Opinion
SA CV 22-470-GW(E)
02-28-2023
BENITO MIRANDA HERNANDEZ, Petitioner, v. MARTIN GAMBOA, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
GEORGE H. WU, UNITED STATES DISTRICT JUDGE.
This Report and Recommendation is submitted to the Honorable George H. Wu, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On March 29, 2022, Petitioner filed: (1) a “Petition for Writ of Habeas Corpus By a Person in State Custody,” accompanied by exhibits; (2) “Petitioner's Opening Brief”; and (3) a “Motion for Stay and Abeyance for Habeas Corpus Petition.” On April 22, 2022, Respondent filed an Opposition to the Motion for Stay and Abeyance. On May 3, 2022, the Court issued an “Order Granting Motion for a Stay,” which stayed the Petition to permit Petitioner to exhaust state remedies.
On September 16, 2022, Petitioner filed: (1) a “Request to Initiate Proceedings,” representing that, on August 24, 2022, the California Supreme Court had denied Petitioner's habeas corpus petition filed in that court; and (2) a “Request for Permission to File First Amended Petition,” accompanied by a proposed First Amended Petition (“FAP”) and “Petitioner's Opening Brief” (“FAP Brief”). By Minute Order filed September 22, 2022, the Court lifted the stay and deemed the First Amended Petition filed.
On October 27, 2022, Respondent filed an Answer to the First Amended Petition. On December 9, 2022, Petitioner filed a Traverse, accompanied by a memorandum (“Trav. Mem.”).
PROCEDURAL BACKGROUND
An Information charged Petitioner with: (1) possession for sale of methamphetamine in violation of California Health and Safety Code section 11378 (Count 1); (2) transportation for sale of methamphetamine in violation of California Health and Safety Code section 11379(a) (Count 2); (3) possession for sale of fentanyl in violation of California Health and Safety Code section 11351 (Count 3); (4) transportation for sale of fentanyl in violation of California Health and Safety Code section 11352 (Count 4); (5) possession of a firearm with a prior use of firearm conviction in violation of California Penal Code section 29800(a)(1) (Count 5); and (6) possession of ammunition by a prohibited person in violation of California Penal Code section 30305 (Clerk's Transcript [“C.T.”] 13437). The Information further alleged that: (1) with respect to Counts 1, 2, 3 and 4, Petitioner was personally armed with a firearm within the meaning of California Penal Code section 12022(c); and (2) with respect to Counts 1 and 2, the substance in the charged offense exceeded 20 kilograms in weight within the meaning of California Health and Safety Code section 11370.4(b)(4) (C.T. 136). The prosecution based all of these charges on evidence found during the search of a vehicle in which Petitioner was a passenger. The search of the vehicle grew out of a traffic stop allegedly resulting from an officer's reported observation that the vehicle had tinted windows in violation of California law. After the stop, a police dog alerted to the presence of drugs, whereupon officers searched the vehicle and recovered the drugs, the firearm and the ammunition.
Section 11370.4(b)(4) provides for an additional 15-year term where the controlled substance “exceeds 20 kilograms by weight.” Cal. Health & Safety Code § 11370.4(b)(4).
Petitioner pled guilty to the charges alleged in Counts 5 and 6 (Reporter's Transcript [“R.T.”] 289-93; C.T. 41, 245-50). A jury found Petitioner guilty of the charges alleged in Counts 1 and 2, and found true the allegations that, as to both of those Counts, the methamphetamine exceeded 20 kilos in weight (R.T. 577, 579-80; C.T. 50-51, 304-05, 312). Petitioner received a prison sentence of 18 years and 8 months (R.T. 590-92; C.T. 53-54; 376-77).
The California Court of Appeal affirmed (Respondent's Lodgment 4; see People v. Hernandez, 2021 WL 1289156 (Cal.App. Apr. 7, 2021)). The California Supreme Court summarily denied Petitioner's petition for review (Respondent's Lodgments 5, 6).
Respondent lodged Lodgments 1 through 7 on April 22, 2022, and Lodgments 8 through 20 on October 27, 2022.
Petitioner filed a habeas corpus petition in the Superior Court, which that court denied in a written order (Respondent's Lodgments 7, 17, 18). Petitioner filed a habeas corpus petition in the California Supreme Court, which that court denied summarily (Respondent's Lodgment 19, 20).
BACKGROUND
“Under this Court's precedents, the Fourth Amendment permits an officer to initiate a brief investigative traffic stop when he has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.'” Kansas v. Glover, 140 S.Ct. 1183, 1187 (2020) (citations omitted). “Although a mere hunch does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.” (citations and quotations omitted).
Prior to trial, Petitioner moved pursuant to California Penal Code section 1538.5 to suppress the evidence obtained as a result of the vehicle search (C.T. 136-42). The prosecution filed a written opposition to the motion, and Petitioner filed a reply (C.T. 181-94, 224-29). The Superior Court held a lengthy evidentiary hearing with respect to the motion (R.T. 111-256).
Two witnesses testified at the hearing: (1) former California Highway Patrol Officer Samuel Garcia, who made the initial traffic stop; and (2) California Highway Patrol Officer Richard Cheever, the handler of the K-9 dog. The California Court of Appeal summarized the hearing evidence as follows:
The Court has conducted an independent review of the Reporter's Transcript and has confirmed the accuracy of this summary of the evidence adduced at the evidentiary hearing in People v. Hernandez, 2021 WL 1289156 (Cal.App. Apr. 7, 2021). See Nasby v. McDaniel, 853 F.3d 1049, 1052-53 (9th Cir. 2017); see also Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).
On the afternoon of May 11, 2018, CHP Officer Samuel Garcia stopped a Toyota Camry on a roadway in Anaheim because its windows were unlawfully tinted. Garcia contacted the driver, Sarah Ventura, and noticed [Petitioner] in the front passenger seat. Garcia informed Ventura he pulled her over because her windows were too dark. He then asked for her driver's license, registration and proof of insurance. While Ventura was retrieving her license, which was issued in Arizona, [Petitioner] volunteered that the car belonged to his mother.
Garcia had Ventura step outside and ushered her to the rear of the car. After receiving assurances from her she
was not in possession of any weapons, Garcia asked her why she was driving with an Arizona license. Ventura said she had arrived here from Arizona about three weeks earlier and did not have a California license. She also said [Petitioner] was her roommate, and they were on their way to Starbucks when Garcia pulled them over. Asked where she and [Petitioner] were coming from, Ventura said “mechanic work” in the area.
Garcia told Ventura to sit on the curb and then contacted [Petitioner], who was still sitting in the Camry. While they were talking, [Petitioner] reiterated the car belonged to his mother. He said he had a driver's license, but had left it at his mother's house while he was doing mechanical work there. Asked about Ventura, [Petitioner] said she was his girlfriend, and they had been living together at his nearby residence for five months. He said they were coming from there and were on their way to visit one of his friends when Garcia stopped them - answers that conflicted with Ventura's.
Garcia had [Petitioner] step out of the car and patted him down for weapons. Finding none, he directed [Petitioner] take a seat on the curb next to Ventura. Both of them seemed very nervous. According to Garcia, [Petitioner] was not only breathing heavily, his chest was visibly contracting and expanding “at a higher rate than normal.”
Garcia asked [Petitioner] for his name, address and date of birth, which [Petitioner] provided. Then he asked [Petitioner] if he knew his driver's license number. [Petitioner] provided two numbers. The first one did not come up in Garcia's computer system, but the second one did, confirming [Petitioner] was a licensed driver.
By that time, CHP Officer Richard Cheever had arrived on the scene, along with his drug-sniffing dog Nero. Garcia asked [Petitioner] if he could search the Camry, and [Petitioner] balked, saying it wasn't his car. At that point, Garcia told him, “So something doesn't make sense, okay? So, what's gonna happen is . . . I'm gonna have the dog . . . take a look at the car [and] if you guys are good, then you guys [will] be on [your] way.”
With that, Cheever walked Nero around the Camry, and the dog promptly alerted for drugs near the driver's window, which was open. Cheever then let Nero off his leash, and he jumped through the window and laid down on a large black trash bag in the back seat. After that, Cheever entered the car, looked in the bag and discovered it was loaded with one-pound bags of methamphetamine. He also found a backpack in the backseat that contained methamphetamine, a pistol and ammunition for the gun. Still more methamphetamine, along with several packages of fentanyl, was found in the trunk of the vehicle. All told, the police recovered about 49 pounds of methamphetamine from the car. At no point did they issue
Ventura a citation for driving with unlawfully tinted windows or give any indication they intended to do so.
Following [Petitioner's arrest, Narcotics Detective Steven Cuevas interviewed him at the scene. [Petitioner] said the drugs in the Camry belonged to him, not Ventura. He also signed a written confession to that effect and directed the police to $10,000 in cash that was inside the glove compartment of Ventura's car.(Respondent's Lodgment 4, pp. 2-4; see People v. Hernandez, 2021 WL 1289156, at *1-2).
The prosecution introduced a DVD recording of the traffic stop, which was played for the court, as well as a transcript of the recording (R.T. 132-34, 212). The prosecution also introduced two still photographs of the vehicle as it passed by the officer's patrol car prior to the stop (R.T. 144, 212). These photographs were obtained from the DVD recording (id.).
In argument, the prosecutor stated, inter alia:
. . . The defense is challenging the initial stop, so I'll discuss that briefly. It was a tinted windows stop. The tinting is visible in the exhibits that I have provided. The statute is unambiguous and says the front windows, the driver window and the front passenger window, have to be clear, colorless and transparent. It's patently obvious
from the exhibits that they are somewhat transparent, but they are, by no definition, clear and colorless. I think that there was obvious reasonable suspicion to stop the vehicle.(R.T. 220-21).
Petitioner's counsel argued that the stop was illegal (R.T. 231). Counsel argued that the statute did not require that the windows be “crystal clear, like the purest water” (R.T. 232). Counsel stated that, while Garcia allegedly said he thought the windows were tinted illegally because “they weren't clear,” the photograph of the car purportedly showed that one could “see clearly” through the windows (R.T. 231-32). With respect to the wall behind the car, counsel argued that the difference in color between the part of the wall as seen next to the car and the part of the wall as seen through the driver's side window and passenger's side window was “not very different” (R.T. 232).
At the conclusion of the hearing, the court took the motion to suppress under submission (R.T. 255-56). The court subsequently denied the motion by minute order (C.T. 38). The minute order simply stated that the motion was denied (id.).
On appeal, Petitioner's appellate counsel argued that prolongation of the stop assertedly rendered the subsequent dog sniff and search unlawful (Respondent's Lodgment 1, pp. 17-34). Appellate counsel did not argue that the initial stop was unlawful, and the California Court of Appeal did not address that issue. The Court of Appeal ruled that, once Garcia had determined that Petitioner had a valid driver's license, “there was no justification for Garcia to extend the stop for the purpose of addressing the underlying traffic violation” (Respondent's Lodgment 4, p. 5; see People v. Hernandez, 2021 WL 1289156, at *2). However, the Court of Appeal also ruled that Garcia had independent reasonable suspicion to extend the duration of the stop to permit the dog to sniff the vehicle, because of the conflicting answers to questions given by Petitioner and Ventura, their nervousness, the fact that neither owned the car and the lack of a reason why Ventura would be driving a car owned by Petitioner's mother (Respondent's Lodgment 4, pp. 5-8; see People v. Hernandez, 2021 WL 1289156, at *2-4). The Court of Appeal concluded that Garcia had reasonable suspicion to detain Petitioner and Ventura until the dog alerted on the car, and that the subsequent search of the car did not violate the Fourth Amendment (Respondent's Lodgment 4, pp. 4-7; see People v. Hernandez, 2021 WL 1289156, at *2-4).
PETITIONER'S CONTENTIONS
Petitioner contends:
1. Petitioner's trial and appellate counsel allegedly rendered ineffective assistance “by failing to pursue the factually supported issue of the initial traffic stop being illegal, thus meriting the suppression of all evidence as fruit of the poisonous tree” (Ground One); and ///
2. Petitioner's trial counsel allegedly rendered ineffective assistance “by failing to perfect the issue of a prolonged stop thus leading to petitioner's direct appeals being wrongly denied” (Ground Two).
STANDARD OF REVIEW
Under the “Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
“Clearly established Federal law” refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is “contrary to” clearly established federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it “confronts a set of facts . . . materially indistinguishable” from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the “unreasonable application” prong of section 2254(d)(1), a federal court may grant habeas relief “based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision “involves an unreasonable application” of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).
“In order for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable,' the state court's decision must have been more than incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). “The state court's application must have been ‘objectively unreasonable.'” Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). “Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. 86, 101 (2011). This is “the only question that matters under § 2254(d)(1).” Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents.” Id. “As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
In applying these standards, the Court looks to the last reasoned state court decision. See Brown v. Davenport, 142 S.Ct. 1510, 1528 (2022) (under AEDPA, federal habeas court must “assess the reasonableness of the last state-court adjudication on the merits of the petitioner's claim”) (citation and quotations omitted); Wilson v. Sellers, 138 S.Ct. 1188, 1193-97 (2018) (endorsing presumption that unexplained decision of state higher court adopted the reasoning of the last reasoned state court decision). Where no reasoned decision exists, as where the state court summarily denies a claim, “[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. at 102; see also Cullen v. Pinholster, 563 U.S. 170, 188 (2011).
DISCUSSION
I. The Doctrine of Stone v. Powell Bars Any Fourth Amendment Claim.
To the extent Petitioner asserts any freestanding Fourth Amendment challenges to the initial stop and/or to the prolongation of the stop (see FAP, pp. 12-19, 22-27), the doctrine enunciated in Stone v. Powell, 428 U.S. 465 (1976) bars federal habeas relief.
“[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence [was] obtained in an unconstitutional search or seizure. . . ." Stone v. Powell, 428 U.S. at 494; see also Woolery v. Arave, 8 F.3d 1325, 1326 (9th Cir. 1993), cert. denied, 511 U.S. 1057 (1994). “The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (citations omitted). “Under Stone, exclusionary rule claims [are] barred if the petitioner had a full and fair opportunity to litigate them below whether or not they were actually adjudicated on the merits and whether or not they involved an unreasonable application of Supreme Court law or unreasonable determination of the facts.” Newman v. Wengler, 790 F.3d 876, 878 (9th Cir. 2015) (holding AEDPA did not abrogate Stone v. Powell).
Here, Petitioner received an opportunity for full and fair litigation of his Fourth Amendment claims in the state courts, and availed himself of that opportunity. See Gordon v. Duran, 895 F.2d 610, 613-14 (9th Cir. 1990) (California Penal Code section 1538.5 provides a defendant with a full and fair opportunity to litigate a Fourth Amendment search and seizure claim in state court); see also Abell v. Raines, 640 F.2d 1085, 1088 (9th Cir. 1981) (petitioner received full and fair opportunity to litigate where issues were briefed and were considered by state courts).
Neither the minute order denying the motion nor the Reporter's Transcript contains any discussion by the Superior Court of its reasons for denying the motion. However, the absence of any statement of findings or reasons for the denial of a motion to suppress does not render the proceedings less than “full and fair.” See Newman v. Wengler, 790 F.3d at 881 (state trial court's alleged failure to make sufficient factual findings did not show absence of “full and fair” proceeding); Caldwell v. Cupp, 781 F.2d 714, 715 (9th Cir. 1986) (“All Stone v. Powell requires is the initial opportunity for a fair hearing. Such an opportunity for a fair hearing forecloses this court's inquiry, upon habeas corpus petition, into the trial court's subsequent course of action, including whether or not the trial court has made express findings of fact.”) (citations and quotations omitted). (emphasis added); accord Newman v. Wengler, 790 F.3d at 880 (“The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided.”) (citation and quotations omitted); Ortiz-Sandoval v. Gomez, 81 F.3d at 899 (same); Siripongs v. Calderon, 35 F.3d 1308, 1321 (9th Cir. 1994), cert. denied, 513 U.S. 1183 (1995) (“the correctness of the state court resolution” of a Fourth Amendment claim is “an issue which Stone v. Powell makes irrelevant”). By the same token, any allegation that the state courts' (implied or express) factual findings were unsupported by the evidence received at the hearing fails to demonstrate that Petitioner lacked a full and fair opportunity to litigate his Fourth Amendment claims in state court. See Moormann v. Schriro, 426 F.3d 1044, 1053 (9th Cir. 2005), cert. denied, 548 U.S. 927 (2006) (hearing was full and fair under Stone v. Powell despite petitioner's allegation that the evidence did not support the state court's findings); see also Mack v. Cupp, 564 F.2d at 901-02 (even where state court mistakenly recited and relied on facts that did not exist, Stone v. Powell barred relief).
Accordingly, the doctrine of Stone v. Powell bars any freestanding Fourth Amendment claims.
II. Petitioner Is Not Entitled to Federal Habeas Relief on His Claims of Alleged Ineffective Assistance of Counsel.
The Court has reordered Petitioner's claims of ineffective assistance of counsel for greater clarity.
A. Governing Legal Standards
To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 697 (1984) (“Strickland”). A reasonable probability of a different result “is a probability sufficient to undermine confidence in the outcome.” Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) (“Failure to satisfy either prong of the Strickland test obviates the need to consider the other.”) (citation omitted).
Review of counsel's performance is “highly deferential” and there is a “strong presumption” that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct “on the facts of the particular case, viewed as of the time of counsel's conduct.” Strickland, 466 U.S. at 690. The court may “neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. . . .” Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (“The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.”) (citations omitted). “Defense lawyers have limited time and resources, and so must choose from among countless strategic options.” Dunn v. Reeves, 141 S.Ct. 2405, 2410 (2021) (citation and quotations omitted). “Such decisions are particularly difficult because certain tactics carry the risk of harming the defense by undermining credibility with the jury or distracting from more important issues.” Id. (citation, quotations and brackets omitted).
Petitioner bears the burden to show that “counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. at 104 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy”) (citation and quotations omitted); see also Morris v. Cal., 966 F.2d 448, 456-57 (9th Cir.), cert. denied, 506 U.S. 831 (1992) (if the reviewing court can conceive of a reasonable explanation for counsel's challenged action or inaction, the court need not determine the actual explanation before denying relief).
“In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently.” Harrington v. Richter, 562 U.S. at 111 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is “‘reasonably likely'” that the result would have been different. Id. (quoting Strickland, 466 U.S. at 696). “The likelihood of a different result must be substantial, not just conceivable.” Id. at 112.
“When the claim at issue is one for ineffective assistance of counsel, moreover, AEDPA review is ‘doubly deferential,' [citation], because counsel is ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'” Woods v. Etherton, 578 U.S. 113, 117 (2016) (citations and internal quotations omitted). “In such circumstances, federal courts are to afford ‘both the state court and the defense attorney the benefit of the doubt.'” Id. (citation omitted). “[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Sexton v. Beaudreaux, 138 S.Ct. 2555, 2560 (2018) (citation and internal quotations omitted).
Petitioner raised his claims of ineffective assistance of trial counsel in his Superior Court habeas petition, which that court denied in a reasoned order (see Respondent's Lodgments 17, 18). Petitioner also raised these claims in his California Supreme Court habeas petition, which was denied summarily (Respondent's Lodgment 19).
Hence, in applying the AEDPA standard of review, the Court looks to the last reasoned state court decision, here the decision of the Superior Court, to evaluate reasonableness under the AEDPA. See Brown v. Davenport, 142 S.Ct. at 1528; Wilson v. Sellers, 138 S.Ct. at 1193-97.
B. Alleged Ineffective Assistance of Trial Counsel
1. Background
California Vehicle Code section 26708(a)(1) provides: “A person shall not drive any motor vehicle with any object or material placed, displayed, installed, affixed, or applied upon the windshield or side or rear windows.” California Vehicle Code section 26708.5(a) provides: “No person shall place, install, affix, or apply any transparent material upon the windshield, or side or rear windows, of any motor vehicle if the material alters the color or reduces the light transmittance of the windshield or side or rear windows, except as provided in subdivision (b), (c), or (d) of Section 26708.” “Sections 26708 and 26708.5 are generally read together to determine issues concerning window tinting.” People v. Niebauer, 214 Cal.App.3d 1278, 1285, 263 Cal.Rptr. 287 (1989) (citations omitted).
Subsection (d) of section 26708 provides, in pertinent part:
The exceptions mentioned in section 26708.5 which are contained in subsections 26708(b) and (c) are inapplicable here.
Notwithstanding subdivision (a), clear, colorless, and transparent material may be installed, affixed, or applied to the front side windows, located to the immediate left and right of the front seat if the following conditions are met:
(1) The material has a minimum visible light transmittance of 88 percent.
(2) The window glazing with the material applied meets all requirements of Federal Motor Vehicle Safety Standard No. 205 (49 C.F.R. 571.205), including the specified minimum light transmittance of 70 percent and the abrasion resistance of AS-14 glazing, as specified in that federal standard.
(3) The material is designed and manufactured to enhance the ability of the existing window glass to block the sun's harmful ultraviolet A rays.
(4) The driver has in his or her possession, or within the vehicle, a certificate signed by the installing company certifying that the windows with the material installed meet the requirements of this subdivision and the certificate identifies the installing company and the material's manufacturer by full name and street address, or, if the material was installed by the vehicle owner, a certificate signed by the material's manufacturer certifying that the windows with the material installed according to
manufacturer's instructions meet the requirements of this subdivision and the certificate identifies the material's manufacturer by full name and street address.
At the hearing on the motion to suppress, Garcia testified that he stopped the car because the front passenger's and driver's side windows were unlawfully tinted in violation of California Vehicle Code section 26708(a)(1), stating that those windows “were not clear” (R.T. 130-31, 139-40). Garcia confirmed that the contemporaneous video recording was a fair depiction of the encounter and that the still photographs taken therefrom were photographs of the same car he stopped (R.T. 134-35, 143-44).
Petitioner's counsel cross-examined Garcia concerning the tinting issue. Counsel asked: “Earlier when we saw that video, would you agree with me that you could see, as the vehicle drove past you, you could see straight through the driver's side, through the passenger side windows to the -- looked like a beige wall behind on the other side, correct?” (R.T. 156). Garcia answered, “Yes” (id.).
In summation, the prosecutor argued that the initial stop was lawful:
The defense is challenging the initial stop, so I'll discuss that briefly. It was a tinted windows stop. The tinting is visible in the exhibits that I have provided. The statute is unambiguous and says the front windows, the driver window and the front passenger window, have to be clear, colorless,
and transparent. It's patently obvious from the exhibits that they are somewhat transparent, but they are, by no definition, clear and colorless. I think that there was obvious reasonable suspicion to stop the vehicle.(R.T. 220-21).
Petitioner's counsel argued that the stop was illegal because the photographs allegedly showed that one could see through the windows (R.T. 231-32). In response to a question by the court asking counsel to identify the point at which the stop was prolonged “under the Fourth Amendment law,” counsel stated:
Well, I think the stop was illegal because it was a stop allegedly for tinted windows, when he was asked why didn't you think they were illegally tinted, he said just - and this is this is a quote - “they weren't clear.”
Now, the People have given their interpretation of what they say is a clear statute, and clear means clear. It modifies clear means clear when it says not 77 percent or 70 percent of light, but 70 percent of visible light. If less than a hundred percent of visible light is going through, then it doesn't mean crystal clear like the purest water. It means you can see through it. You can see clearly through it. And you can see clearly through it. You can see clearly through it on the still show, on the still shot from the video. You can see at that moment in the video
when it's lined up in front of the vehicle, and the difference in the color of the wall through two windows, through the driver's side window and the passenger's side window to the wall is not very different from the color of that wall with nothing in front of it, straight shot.(R.T. 231-32).
2. Analysis
Petitioner contends that trial counsel failed to “pursue the factually supported issue of the initial traffic stop being illegal” on the ground that the vehicle's windows purportedly were not unlawfully tinted. As is evident from subsection II B(1), supra, Petitioner's contention is meritless. As the Superior Court expressly ruled, the record reflects that counsel did challenge the initial stop (see Respondent's Lodgment 18, pp. 2-3); (see also C.T. 224-25 (counsel's reply brief, inter alia, arguing that the stop was illegal and based on a “guess,” and stating that the defense did “not concede any reason for the traffic stop, or that Garcia made any actual observation of the vehicle, or that he perceived any suspected vehicle code violation (equipment or otherwise) or the facts that might justify any vehicle stop, prior to the stop of the Defendant's vehicle”). The record, quoted above, also amply demonstrates the objective reasonableness of the Superior Court's rejection of this challenge to counsel's performance.
In Ground Two of the First Amended Petition, Petitioner additionally contends that trial counsel supposedly erred in failing to “elicit the court's reasoning as to why the petitioner's motion to suppress was denied,” thus purportedly rendering the record on appeal “incomplete” (FAP Brief, pp. 19, 21). On habeas review, the Superior Court also rejected this contention, reasoning that “the denial of a suppression motion is predicated on the basic finding that the search and seizure were reasonable,” and that “[i]f the trial court had found that the initial stop was illegal, that there was no reasonable suspicion, and/or that Officer Garcia's testimony was not credible, the trial court would have granted the motion” (Respondent's Lodgment 18, pp. 2-3).
This reasoning was not objectively unreasonable. In California, where a court denies a motion to suppress without making express findings, a reviewing court infers all findings necessary to support the order. People v. Bishop, 14 Cal.App.4th 203, 214, 17 Cal.Rptr.2d 657 (1993); People v. Fulkman, 235 Cal.App.3d 555, 560, 286 Cal.Rptr. 728 (1991). Hence, counsel reasonably could have decided that it was unnecessary to seek an explanation for the trial court's denial of the motion to suppress. Counsel reasonably could have decided that, in denying the motion to suppress, the trial court necessarily had credited the evidence supporting Garcia's conclusion that the vehicle's windows were unlawfully tinted, including Garcia's testimony. Counsel also reasonably could have decided that the Court of Appeal would so conclude. Strickland did not compel counsel to undertake unnecessary or futile action. See Martinez v. Garcia, 266 Fed. App'x 509, 511 (9th Cir.), cert. denied, 555 U.S. 853 (2008) (counsel's failure to perform unnecessary act did not prejudice petitioner under Strickland); see also Hernandez v. Chappell, 923 F.3d 544, 557 (9th Cir. 2019), cert. denied, 140 S.Ct. 843 (2020) (“the failure to take a futile action can never be deficient performance”) (citation and quotations omitted).
For the same reason, counsel's failure to request further reasoning for the denial of the motion to suppress did not prejudice Petitioner. As the Superior Court on habeas review recognized, denial of the motion necessarily indicated that the trial court made the findings essential to support the conclusion that reasonable suspicion existed to support the traffic stop. Therefore, Petitioner has failed to demonstrate Strickland prejudice. See Strickland, 466 U.S. at 694, 697.
The Court of Appeal received the video and the transcript. This Court takes judicial notice of the docket of the Court of Appeal in People v. Hernandez, case number G059028, available on the California courts' website at www.courts.ca.gov. The docket shows that, on July 24, 2020, in response to the request of Petitioner's appellate counsel, the Court of Appeal ordered that the video and transcript be transmitted to the court, and that the court clerk received these items on July 31, 2020. See Porter v. Ollison, 620 F.3d 952, 954-55 n.1 (9th Cir. 2010) (court may take judicial notice of court records); see also Respondent's Lodgment 2 (Respondent's Brief on Appeal), p. 14 n.2 (noting order requiring transmission of video and transcript to the Court of Appeal).
C. Alleged Ineffective Assistance of Appellate Counsel
The Strickland standards govern claims of ineffective assistance of appellate counsel as well as claims of ineffective assistance of trial counsel. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 2001), cert. denied, 535 U.S. 995 (2002). Appellate counsel has no constitutional obligation to raise all non-frivolous issues on appeal. See Pollard v. White, 119 F.3d 1430, 1435 (9th Cir. 1997); see also Moormann v. Ryan, 628 F.3d 1102, 1109 (9th Cir. 2010), cert. denied, 565 U.S. 921 (2011) (appellate counsel is not required to raise a meritless issue on appeal). “[T]he weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy.” Bailey v. Newland, 263 F.3d at 1028-29 (citation omitted); see also Pollard v. White, 119 F.3d at 1435 (“A hallmark of effective appellate counsel is the ability to weed out claims that have no likelihood of success, instead of throwing in a kitchen sink full of arguments with the hope that some argument will persuade the court.”).
Petitioner faults appellate counsel for failing to challenge the lawfulness of the initial traffic stop. Petitioner claims he asked appellate counsel “to focus on the issue of the initial traffic stop being illegal, thus making all evidence deserving of suppression under the fruit of the poisonous tree doctrine” (FAP Brief, p. 12). According to Petitioner, appellate counsel refused to do so, assertedly telling Petitioner in a letter that “Officer Garcia's testimony was the only evidence regarding your windows, and he testified that they were illegally tinted [so] we cannot argue on appeal that your windows were not illegally tinted” (id., p. 12; see Petitioner's Ex. 16).
The FAP itself contains no exhibits, but cites to various exhibits which Petitioner attached to the original Petition.
In the letter, Petitioner's appellate counsel reportedly explained that counsel decided to forgo arguing that the windows purportedly were not illegally tinted because: (1) “the only evidence presented at the suppression hearing was that the windows were illegally tinted”; (2) “Officer Garcia testified multiple times that your windows were tinted”; (3) although Petitioner's trial attorney “tried to impeach Officer Garcia by asking whether Officer Garcia could see through your windows, Garcia said that he could, but maintained that your windows were illegally tinted”; (4) “the trial court believed Officer Garcia that your windows were tinted and [that] therefore the initial stop was valid”; (5) “[t]he court's factual findings are binding on the court of appeal and therefore we can't just argue that the trial court shouldn't have believed Officer Garcia”; and (6) “because Officer Garcia's testimony was the only evidence regarding your windows, and he testified that they were illegally tinted, we cannot argue on appeal that your windows were not illegally tinted” (Petitioner's Ex. 16). Petitioner points out that the evidence included, in addition to Garcia's testimony, the video and the still photographs taken from the video (id., p. 12).
The FAP refers to exhibits attached to the original Petition. The Court observes that the date on the referenced letter, July 24, 2021, has been stricken and replaced with the handwritten date “Sept. 14.” Petitioner does not explain the discrepancy, which, in any event, has no bearing on the issues raised in the FAP.
Appellate counsel reasonably and correctly advised Petitioner that, on appeal, Petitioner could not “just argue that the trial court shouldn't have believed Officer Garcia.” In reviewing the denial of a motion to suppress, a California appellate court must view the evidence in the light most favorable to the order denying the motion to suppress, and “must accept the trial court's resolution of disputed facts and its assessment of credibility.” People v. Frederickson, 8 Cal. 5th 963, 1010, 258 Cal.Rptr.3d 114, 457 P.3d 1 (2020), cert. denied, 141 S.Ct. 856 (2020). An appellate court must “defer to the trial court's factual findings, express or implied, where supported by substantial evidence.” People v. Redd, 48 Cal.4th 691, 719, 108 Cal.Rptr.3d 192, 229 P.3d 101 (2010), cert. denied, 562 U.S. 932 (2010) (citations and quotations omitted). “Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold [a factual] finding.” People v. Barnwell, 41 Cal.4th 1038, 1052, 63 Cal.Rptr.3d 82, 162 P.3d 596 (2007), cert. denied, 552 U.S. 1261 (2008); see also People v. Carter, 182 Cal.App.4th 522, 529, 105 Cal.Rptr.3d 805 (2010) (officer's testimony “constituted substantial evidence that the traffic stop was supported by a reasonable suspicion” that motorist's car had unlawfully tinted windows).
Appeal. However, the video and photographs did not persuade the trial court to disbelieve Garcia or to conclude that Garcia lacked reasonable suspicion to believe that the tinting on the windows was unlawful. Appellate counsel did not act unreasonably in concluding that any appellate challenge to the trial court's implied finding that Garcia was credible likely would fail. See People v. Niebauer, 214 Cal.App.3d 1278, 1292, 263 Cal.Rptr. 287 (1989) (“We expect that law enforcement officers enforcing this statute, based upon their training and experience with vehicles in general, will be able to examine a suspect vehicle, look through the windows if possible, and form an opinion as to whether or not the tinting on the windows obscures the light below the 70 percent margin. We don't call upon the officers to be scientists or carry around and use burdensome equipment to measure light transmittance, nor do we expect them to discuss the sufficiency or insufficiency of the light transmittance as if they were an expert witness on the subject.”); see also Heien v. North Carolina, 574 U.S. 54, 57, 61 (2014) (police officers' mistakes of law as well as mistakes of facts can give rise to reasonable suspicion).
D. Conclusion
For the foregoing reasons, the state courts' rejection of Petitioner's claims of ineffective assistance of trial and appellate counsel was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d) ; Harrington v. Richter, 562 U.S. at 86. Petitioner is not entitled to federal habeas relief on these claims.
RECOMMENDATION
For the reasons discussed herein, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) directing that judgment be entered denying and dismissing the Petition with prejudice.
Petitioner's request for an evidentiary hearing is denied. Federal habeas relief is unavailable regardless of the nature of any additional evidence Petitioner might present for the first time in federal court. See Cullen v. Pinholster, 563 U.S. 170, 185 (2011); Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013), cert. denied, 573 U.S. 919 (2014) (Pinholster's preclusion of a federal evidentiary hearing applies to section 2254(d)(2) claims as well as section 2254(d)(1) claims). In any event, Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to any of Petitioner's claims. In reaching this conclusion, and the other conclusions discussed herein, this Court has examined all of the evidence of record, including the video in question.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.
ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.
IT IS ORDERED that Judgment shall be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
JUDGMENT
Pursuant to the Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge, IT IS ADJUDGED that the Petition is denied and dismissed with prejudice.