Opinion
No. C 04-2710 CRB (PR).
July 14, 2005
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
(Doc # 14).
Petitioner Javier Hernandez was convicted of possessing a controlled substance in prison following a court trial in the Superior Court of the State of California in and for the County of Monterey. The trial court also found that petitioner had at least one prior felony strike conviction, and sentenced him to four years in state prison, representing the low term of two years for the possession charge doubled by one prior strike, per the terms of the agreement by which petitioner waived his right to a jury trial.
On November 21, 2003, the California Court of Appeal affirmed petitioner's conviction, and on January 28, 2004, the California Supreme Court denied review. Petitioner did not seek collateral review in the state courts.
Petitioner then filed the instant federal petition for a writ of habeus corpus under 28 U.S.C. § 2254. Per order filed on October 26, 2004, the court found that the petition, when liberally construed, stated cognizable claims under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause. Petitioner did not file a traverse.
FACTUAL BACKGROUND
The California Court of Appeal summarized the facts of the case as follows:
On June 22, 2000, defendant was an inmate at Salinas Valley State Prison. He and another inmate were waiting in line to get their prescribed medication when Officer Stevenson pulled defendant out of line because another officer believed defendant was involved in "suspicious activity." During a pat-down search, Stevenson noticed that defendant "kept pulling . . . his left hand into the sleeve of his jacket." After defendant was ordered to open his clenched left hand, he tried to move his left hand towards his mouth. As Stevenson pulled defendant's head back, defendant made a throwing motion with his left hand. Stevenson then saw defendant drop an object on the ground. Officer Rincon picked up the object defendant had dropped. It was stipulated that analysis of that object revealed that it contained a "usable quantity" (".73 grams gross") of heroin.People v. Hernandez, No. H025379, slip op. at 2-3 (Cal.Ct.App. Nov. 21, 2003) (Resp't Ex. 3).
DISCUSSION
A. Standard of Review
This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's 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." Id. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts."Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case."Id. at 413.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.
B. Claims
Petitioner raises three claims for relief: (1) the record was inadequate for the California Court of Appeal to conduct a meaningful review; (2) the evidence is insufficient to sustain a finding that petitioner suffered a prior strike conviction; and (3) trial counsel provided ineffective assistance by failing to object to the introduction of hearsay evidence contained in the section 969b packet on which the trial court relied to find that petitioner had suffered at least one prior strike conviction. The section 969b packet is a certified copy of petitioner's prison records, including petititioner's multi-state criminal history record, two California Department of Corrections numbers, fingerprint card, chronological prison history, probation reports, and abstracts of judgments for three prior first degree burglaries, two in 1990 and one in 1995.
1. Adequacy of the Record
Petitioner waived his right to a jury trial in exchange for an agreement with the prosecution that his maximum sentence would be the lower term of two years, doubled by one prior strike for a total maximum of four years. The trial court found that there were three first degree burglaries proven by the section 969b packet and that petitioner was guilty of possessing a controlled substance in prison, and, pursuant to the waiver agreement, sentenced petitioner to a term of four years. On appeal, petitioner argued that the record was inadequate for meaningful appellate review because the trial court did not specify upon which prior strike conviction it relied, and that he was prejudiced by the court's failure to identify the specific prior conviction because he only should have had to challenge the viability of one prior strike conviction.
The California Court of Appeal rejected petitioner's claim on the ground that the record was adequate. It explained:
The record is adequate for meaningful review because the court specified the three convictions that were the possible basis of the single strike enhancement; thus, if any one of those three strike findings can be sustained on appeal, defendant's sentence was appropriate. Defendant has an adequate basis to challenge the trial court's finding that three prior strike convictions had been proven and its decision to double defendant's sentence in accordance with the waiver agreement on the basis that at least one strike had been proven. We are convinced the lack of a reference to the specific conviction used to double the sentence is not prejudicial in this case.People v. Hernandez, No. Ho25379, slip op. at 5.
The Supreme Court has held that a criminal defendant must be provided with a record of his trial proceedings in order to permit effective appellate review. Draper v. Washington, 372 U.S. 487, 496-99 (1963); Griffen v. Illinois, 351 U.S. 12, 20 (1956). Here, petitioner was provided with an adequate record, which included information on all of the strikes on which the trial court could have relied on to enhance petitioner's sentence per the terms of the waiver agreement. The California Court of Appeal's determination that the record on appeal was adequate was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C. § 2254(a). Petitioner is not entitled to federal habeas relief on this claim.
2. Sufficiency of Evidence to Support One Strike Conviction
Per the terms of petitioner's waiver agreement, the trial court sentenced petitioner to the low term sentence of two years for the possession charge, doubled by one prior strike for a total of four years. Petitioner claims there is insufficient evidence to support the finding that he suffered any prior strike convictions.
On the basis of the section 969b packet, the trial court found that petitioner suffered three strike convictions. On appeal, the California Court of Appeal found that there was insufficient evidence to support a finding that petitioner had been convicted of a first degree burglary in 1995, but that there was sufficient evidence to support a finding that petitioner had been convicted of two first degree burglaries in 1990, either of which would be sufficient grounds for the prior strike enhancement. People v. Hernandez, No. Ho25379, slip op. at 5-6.
Petitioner claims that the section 969b packet that was used to prove the prior strike convictions contained inadmissable hearsay, and therefore that the record contains insufficient evidence to support a finding that he was convicted of any of the prior strike convictions. Petitioner explains that he was convicted under different aliases and that the source of the sheet which lists his aliases was not identified. According to petitioner, the alias list was therefore inadmissible and, without it, there was insufficient evidence to link him to any of the prior convictions.
The California Court of Appeal found that even if the printout of aliases was not admissible, there was sufficient evidence to link petitioner to the prior convictions on the basis of unchallenged documents in the 969b packet. The California Court of Appeal explained:
In this case, even without relying upon the challenged computer printout or the challenged 1995 probation report, we conclude there is substantial evidence in the remaining material in the section 969b packet to link defendant to the relevant abstracts in the section 969b packet, namely, the 1990 abstract of conviction for first degree burglary in Los Angeles County case BA012583 and the 1990 abstract of conviction for first degree burglary in Los Angeles County case ECR3216. . . . The above documents [in the 969b packet, including defendant's chronological history, defendant's fingerprint card, the 1995 abstract of conviction for second degree burglary, and the 1990 abstracts of conviction for first degree burglaries, each of which list some of defendant's aliases] reveal that the defendant in the present case is the same individual who was convicted in 1990 of first degree burglary in Los Angeles County case numbers BA012583 and ECR3216. Accordingly, we conclude that there was substantial credible evidence introduced that identified defendant as the person who suffered the 1990 prior strike convictions contained in the section 969b packet.People v. Hernandez, No. H025379, slip op. at 10-11.
The relevant inquiry on review of a constitutional challenge to the sufficiency of the evidence to support a criminal conviction is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). The reviewing court "faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear on the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution."Id. at 326.
The California Court of Appeal's rejection of petitioner's insufficiency of the evidence claim was not contrary to, or involved an unreasonable application of, the Jackson standard.See 28 U.S.C. § 2254(d). Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that the unchallenged documents in the 969b packet link petitioner to his aliases and identify him as the individual who suffered the two 1990 prior strike convictions. See Jackson, 443 U.S. at 319. Petitioner is not entitled to federal habeas relief on this claim.
3. Ineffective Assistance of Counsel
Petitioner claims his attorney was constitutionally ineffective for failing to object to the alleged hearsay documents in the 969b packet, specifically to the printout of aliases that he contends is the only evidence linking him to any of the prior strike convictions. Petitioner argues that he was prejudiced by counsel's failure to object because, had counsel objected, the printout would have been excluded, and he could not have been linked to the prior convictions.
In order to prevail on an ineffective assistance of counsel claim, petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine the confidence in the outcome. Id.
In order to show prejudice under Strickland from failure to make a motion, petitioner must show that (1) had his counsel made the motion, it is reasonable that the trial court would have granted it as meritorious; and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him. Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999).
Petitioner's claim is without merit because even if the proposed hearsay objection had been made and sustained, it cannot be said that there would have been an outcome more favorable to him. See id. As discussed earlier, even without the allegedly inadmissible printout of aliases, there was sufficient evidence on the record for a reasonable trier of fact to find that petitioner had been convicted of at least one of the priors. The California Court of Appeal's rejection of petitioner's ineffective assistance of counsel claim was not contrary to, or involved an unreasonable application of, the Strickland standard. See 28 U.S.C. § 2254(d).
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.The clerk shall enter judgment in favor of respondent, terminate all pending motions as moot (see, e.g., doc #14) and close the file.
SO ORDERED.