EDMUND F. BRENNAN, Magistrate Judge.
Petitioner is a state prisoner proceeding without counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the magistrate judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Petitioner challenges a judgment of conviction entered against him on September 18, 2012 in the Shasta County Superior Court on charges of: (1) possession of marijuana for sale pursuant to Cal. Health & Saf. Code § 11359; (2) transportation of marijuana pursuant to Cal. Health & Saf. Code § 11360; and (3) misdemeanor possession of a switch-blade knife pursuant to Cal. Penal Code § 21510. He seeks federal habeas relief on the following grounds: (1) the trial court violated his right to present a complete defense when it refused to allow his mother to testify about his role as her primary caregiver; (2) the trial court violated his right to present a complete defense when it refused to allow his cannabis expert to testify; (3) the trial court violated his right to due process when it ruled that, because petitioner possessed more than eight ounces of marijuana, a defense under the Compassionate Use Act ("CUA") was inapplicable; and (4) the trial court erred in finding that the husband of petitioner's mother — who did not possess a "valid medical marijuana recommendation" — was her primary caregiver. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
People v. Villalobos, 2013 WL 6147014, at *1-2 (Cal.App. 3 Dist., 2013) (unpublished).
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1,5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 565 U.S. 34 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent "may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012) (per curiam)). Nor may it be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said that there is "clearly established Federal law" governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 562 U.S. at 99. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289, 292 (2013).
Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98.
A summary denial is presumed to be a denial on the merits of the petitioner's claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze just what the state court did when it issued a summary denial, the federal court must review the state court record to determine whether there was any "reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98. This 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 [the Supreme] Court." Id. at 102. The petitioner bears "the burden to demonstrate that `there was no reasonable basis for the state court to deny relief.'" Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
Petitioner argues that the trial court denied him the ability to present a complete defense when it refused to let his mother testify as to his role as her primary caregiver. ECF No. 1 at 6.
Villalobos, 2013 WL 6147014, at *2-4 (Cal.App. 3 Dist., 2013). Petitioner then presented this claim to the California Supreme Court which summarily denied it. Lodg. Docs. Nos. 6 & 7 (Petition for Review & Denial of Review).
Petitioner raised the fourth claim as part of a broader ineffective assistance of counsel claim when he filed a habeas petition in the Shasta County Superior Court in April of 2014. Lodg. Doc. No. 8 (Petition for Writ of Habeas Corpus) at 3.
Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants "a meaningful opportunity to present a complete defense" and the right to present relevant evidence in their own defense. Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). The Supreme Court has held, however, that "[t]he accused does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Montana v. Egelhoff, 518 U.S. 37, 42 (1996) (quoting Taylor v. Illinois, 484 U.S. 400, 410 (1988)). Moreover, evidence may be excluded if it is "repetitive . . ., only marginally relevant or poses an undue risk of harassment, prejudice, [or] confusion of the issues." Holmes, 547 U.S. at 324.
A state law justification for excluding evidence does not violate a defendant's rights unless it is "arbitrary or disproportionate" and "infringe[s] upon a weighty interest of the accused." United States v. Scheffer, 523 U.S. 303, 308 (1998). An exclusion is only unconstitutional if it "significantly undermined fundamental elements of the accused's defense." Id. at 315. Even if a court finds constitutional error it may only grant a habeas petition where the petitioner establishes that the error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
In reviewing a petition under § 2254(d)(2) which challenges a state court's findings of fact, a federal court may only grant relief if it determines that the state court was actually unreasonable in its fact-finding. Schriro, 550 U.S. at 473. "[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010).
Respondent argues that petitioner's fourth claim is procedurally defaulted. ECF No. 29 at 23-24. Respondent emphasizes the California Supreme Court's citation to In re Dixon and argues that, in this instance, Dixon is almost certainly being held out to announce a procedural rejection. See In re Dixon, 41 Cal. 2d at 759 ("The general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction."). That may be, but in this instance the court finds it more efficient to simply dispose of petitioner's claim on the merits. See Flournoy v. Small, 681 F.3d 1000, 1004 n.1 (9th Cir. 2012) ("While we ordinarily resolve the issue of procedural bar prior to any consideration of the merits on habeas review, we are not required to do so when a petition clearly fails on the merits.")
Alternatively, respondent also asserts that the California Supreme Court's citation to Duvall and Swain indicate that its rejection of petitioner's fourth claim was a merits adjudication. ECF No. 29 at 25-26. He notes that Swain holds that a habeas petition must "allege with particularity the facts upon which [the petitioner] would have a final judgment overturned. . . ." Swain, 34 Cal. 2d at 304. Respondent points to Duvall for the proposition that a habeas petition "should both (i) state fully and with particularity the facts on which relief is sought, as well as (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations." Duvall, 9 Cal. 4th at 474 (internal citations omitted). The Ninth Circuit has held, however, that "a citation to Duvall and Swain together constitutes "dismissal without prejudice, with leave to amend to plead required facts with particularity." Seeboth v. Allenby, 789 F.3d 1099, 1103-04, n.3 (9th Cir. 2015). If petitioner's fourth claim was not adjudicated on the merits, then this court is not constrained by AEDPA and may conduct a de novo review. See, e.g., Herbert v. Adams, 2016 U.S. Dist. LEXIS 125196 at * 14 (C.D. Cal. Aug. 11, 2016). A decision regarding the proper standard of review is ultimately unnecessary, however. For the reasons stated hereafter, petitioner's fourth claim fails under de novo review and, consequently, would also fail under the less forgiving AEDPA standard. See Sexton v. Cozner, 679 F.3d 1150, 1156 (9th Cir. 2012) ("Because [petitioner's] claim fails under de novo review, it necessarily fails under AEDPA's deferential review.").
The court evaluates petitioner's first claim under AEDPA and concludes that it fails. The court of appeal — which issued the last reasoned decision on this issue — was not unreasonable in concluding that his mother's husband was her primary caregiver and, consequently, petitioner was not entitled to present her testimony to the contrary. Under the CUA, a primary caregiver is defined as "the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person." Cal. Health & Saf. Code § 11362.5(e). In concluding that the trial court did not err in designating the husband as the primary caregiver, the court of appeal pointed to foundational hearing testimony from petitioner's mother indicating that her husband had provided all of her care for a period of ten years and had done so again after petitioner was arrested on the immediate charges. This testimony is plainly reflected in the record. In relevant part:
Lodg. Doc. No. 11 (Reporter's Transcript on Appeal, Vol. I) at 86. Additionally:
Id. at 93. California courts have held that "the text requires that the primary caregiver have "consistently" assumed responsibility for the patient's care." People v. Mentch, 45 Cal.4th 274, 283 (2008). The court of appeal's conclusion that the husband was the consistent, primary caregiver and petitioner was the "backup or relief caregiver" is plainly supported by the testimony of petitioner's mother. As such, this finding was not unreasonable.
Petitioner's fourth claim, as noted above, is reviewed de novo. His contention that only someone who possesses a medical marijuana recommendation or script can serve as a primary caregiver finds no support in the text of the CUA which simply states "[f]or the purposes of this section, "primary caregiver" means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person." Cal. Health & Saf. Code § 11362.5(e). Additionally, California courts have held that being a primary caregiver "entails an existing, established relationship, distinct from the provision of medical marijuana itself." People v. Hochanadel, 176 Cal.App.4th 997, 1016 (2009) (internal citations omitted); see also People v. Frazier, 128 Cal.App.4th 807, 823 (2005) (rejecting the argument that "a primary caregiver is a person who consistently grows and supplies physician approved marijuana for a medical marijuana patient . . .") (internal quotations and citations omitted). For his part, petitioner has not cited any case law or statutory authority which supports his position. In his previous habeas petition to the California Supreme Court, he cited code sections 11362.765 (b)(3) — (c) which except criminal liability for:
Or
Cal. Health & Saf. Code § 11362.765 (b)(3) — (c). Neither provision stands for the proposition that an individual without a "valid recommendation" or script is precluded from serving as a primary caregiver, however. Put differently, nothing in the CUA explicitly demands that the primary caregiver and the individual supplying the patient's marijuana be one and the same. In some instances, the patient herself might take on the burden of procuring his or her own medical marijuana — hence section 11362.765 (b) (1) which carves an exception from criminal liability for "[a] qualified patient or a person with an identification card who transports or processes marijuana for his or her own use." Cal. Health & Saf. Code § 11362.765 (b)(1). Such a patient could conceivably shoulder the entire burden of transporting his or her marijuana while still relying on a primary caregiver for their housing, health, or safety.
Additionally, as respondent points out, this claim is presented as purely an issue of state law for which federal habeas relief does not lie. Estelle, 502 U.S. at 67-68. Petitioner has not offered an explicit explanation of how this particular error (assuming, arguendo, that it was error) violated his federal rights. It seems natural, however, to read this claim as a corollary to his first claim and interpret them as resting on the same constitutional grounds — namely his right to present a complete defense. To the extent this was his intention, the court relies on the foregoing analysis to reject it.
Petitioner argues that the trial court disallowed the presentation of expert testimony which, if presented to the jury, could have exonerated him. ECF No. 1 at 8. Curiously, he frames this claim as arising out of the ineffective assistance of his trial counsel — specifically counsel's "failure to call appropriate witnesses" or to "object to preserve the record." Id. He did not classify this claim as such on direct appeal, however. Lodg. Doc. No. 2 (Appellant's Opening Brief) at 28. Respondent's interpretation of the claim is that petitioner has confused his counsel's failure to object and preserve a claim regarding his mother's testimony with that of his proposed expert witness. ECF No. 29 at 31. This appears to be correct. On direct appeal, petitioner did argue that, in urging the admissibility of his mother's testimony, his counsel rendered ineffective assistance by failing to reference the constitutional right to present a defense. Lodg. Doc. No. 2 (Appellant's Opening Brief) at 24. This claim was mooted, however, when the court of appeal elected to consider his claim regarding his mother's testimony even though it had not been preserved by objection. Villalobos, 2013 WL 6147014, at *2-4 (Cal.App. 3 Dist., 2013). As such, the court will interpret this claim as tracking the one raised in his direct appeal and his subsequent petition to the California Supreme Court, namely that the trial court erred in refusing to allow expert testimony from cannabis expert Jason Browne. Lodg. Doc. No. 2 (Appellant's Opening Brief) at 28.
The court of appeal addressed and rejected this claim, reasoning:
Villalobos, 2013 WL 6147014, at *4-5. Petitioner raised this claim before the California Supreme Court (Lodg. Doc. No. 6 (Petition for Review) at 27) and it was summarily denied (Lodg. Doc. No. 7 (Denial of Petition for Review)).
The same standards articulated in the previous section regarding a defendant's right to present a complete defense also apply here. It bears noting, however, that the Ninth Circuit has emphasized that the United States Supreme Court has never addressed the issue of whether a "[state] court's exercise of discretion to exclude expert testimony violates a criminal defendant's constitutional right to present relevant evidence." Moses v. Payne, 555 F.3d 742, 758 (9th Cir. 2009); see also Wood v. Alaska, 957 F.2d 1544, 1549 (9th Cir. 1992) (holding trial courts have "wide latitude" to exclude unreliable or marginally relevant evidence).
The court of appeal was not unreasonable in determining that the testimony of petitioner's expert witness was not necessary to establish: (1) the effect of mold on the usability of marijuana; (2) whether the seized marijuana was actually moldy; and (3) whether it was the practice of marijuana co-ops to exchange old or bad product. Villalobos, 2013 WL 6147014, at *5. More fundamentally, the absence of any Supreme Court precedent addressing whether a state court's discretionary exclusion of expert testimony violates a defendant's right to present relevant evidence precludes a finding that the court of appeal's decision was contrary to or an unreasonable application of Supreme Court Precedent. See Moses, 555 F.3d at 758-59.
The court notes that petitioner has attached a letter from his proposed expert to the current petition which vaguely states that "there were several issues that could have been explained to the jury, by an expert such as myself, . . . that were completely necessary in order for you to mount a complete and honest defense to these criminal charges." ECF No. 1 at 45 (Ex. B). As the respondent correctly argues, however, this court is precluded from considering materials which were not presented in state court. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) (holding that record under review is limited to the record before the state court).
Petitioner argues that the trial court erred in concluding that, because he possessed more than eight ounces of marijuana, a defense under the CUA was inapplicable. ECF No. 1 at 9. This claim was raised in petitioner's habeas petition to the California Supreme Court. Lodg. Doc. No. 12 (Petition for Writ of Habeas Corpus to the California Supreme Court) at 3. As noted above, the California Supreme Court denied the entirety of that petition without any analysis save citations to three cases — People v. Duvall (1995) 9 Cal.4th 464, 474; In re Dixon (1953) 41 Cal.2d 756, 759; and In re Swain (1949) 34 Cal.2d 300, 304. Lodg. Doc. No. 13 (Denial of Petition for Writ of Habeas Corpus).
As with claim four, respondent argues that this claim is procedurally defaulted and, alternatively, that the California Supreme Court's denial was a merits adjudication. As before, addressing the merits of this claim is more expedient because it is plainly without merit. Additionally, the court need not resolve whether de novo or AEDPA review is most appropriate because the claim fails under even the more lenient standard.
First, this claim fails insofar as petitioner has failed to adequately plead its contours. See Mayle v. Felix, 545 U.S. 644, 649 (2005) (holding that Rule 2(c) of the Rules Governing Habeas Corpus Cases requires a petitioner to "specify all grounds for relief available to [him]" and to "state the facts supporting each ground."). He does not, for instance, explain what defense the trial court prevented him from raising or cite to any portion of the record which might prove instructive on that point. His petition simply alleges that the trial court erred in ruling that "the defense" was inapplicable. ECF No. 1 at 9. After reviewing the record, the court is unable to find any evidence indicating that the trial court categorically disallowed any defense based on the amount of marijuana petitioner possessed at the time of his arrest. The trial court did, at one point in the early proceedings, state "assuming, for the purposes of argument, he's not doing it for his mom anymore, like I thought he was doing before, that he's not to be in possession of more than eight ounces of marijuana. So, for him to even be in possession of a pound, to do any kind of thing, swap or whatever, he's over the limit, he's gone, he's done." Lodg. Doc. No. 11 (Reporter's Transcript Vol. 1) at 43. There is no indication that petitioner subsequently asked to raise a defense based on a stated medical need for a pound of marijuana and was denied the opportunity to do so, however.
In his habeas petition to the California Supreme Court, petitioner cited People v. Kelly, 47 Cal.4th 1008 (2010) without explanation — presumably in an effort to argue that the trial court had violated Kelly's holding.
Lastly, the trial court did, as petitioner's earlier claims indicated, determine that he was not his mother's primary caregiver and disallow her from testifying to that effect. That determination did not hinge on petitioner's possession of more than eight ounces of marijuana, however. Rather, it hinged on the overall relevance of her testimony. Lodg. Doc. No. 11 (Reporter's Transcript Vol. 1) at 96-97. In excluding that testimony, the trial court noted that petitioner's mother had a recommendation for no more than eight ounces of marijuana (id. at 96), but that statement was consistent with her testimony (id. at 85) and did not speak to or automatically preclude any defense petitioner might have raised concerning his medical need for more than eight ounces.
Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).
