ELBERT HARRIS, Jr. v. DEBBIE ASUNCION, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELBERT HARRIS, Jr.,
Petitioner-Appellant,
v.
DEBBIE ASUNCION, Warden,
Respondent-Appellee.
No. 17-56244
D.C. No.
5:16-cv-02040-SVW-AJW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted February 11, 2019**
Pasadena, California
Before: D.W. NELSON, CALLAHAN, and OWENS, Circuit Judges.
California state prisoner Elbert Harris, Jr., appeals from the district court’s
denial of his 28 U.S.C. § 2254 habeas corpus petition challenging the revocation of
his probation. As the parties are familiar with the facts, we do not recount them
here. We review de novo a district court’s denial of a habeas petition. Fairbank v.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
FEB 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Ayers, 650 F.3d 1243, 1250 (9th Cir. 2011). We affirm.
The California Court of Appeal concluded that, based on a preponderance of
the evidence, sufficient evidence supported the trial court’s revocation of Harris’s
probation due to his possession of methamphetamine. Harris contends that there
was insufficient evidence that the substance he possessed was methamphetamine
because the officer’s visual identification of the substance and other circumstantial
evidence were too speculative.
However, it was not unreasonable for the California Court of Appeal to
determine that there was sufficient proof that the substance was methamphetamine
based on the evidence that: (1) Harris was carrying 2.1 grams of the white
crystalline substance in a pill bottle like container, which was a weight and vessel
consistent with controlled substances; (2) the officer, who had seen
methamphetamine multiple times during his career, stated that the substance
looked like methamphetamine; and (3) Harris gave an unreasonable explanation
that he found the container on the street, suggesting consciousness of guilt.
Thus, the California Court of Appeal’s decision was not “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
In particular, the California Court of Appeal did not misapply Morrissey v. Brewer,
408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973), which set

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forth due process requirements for parole and probation revocation. Nor was the
California Court of Appeal’s decision “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)(2).
AFFIRMED.

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