Anthony Clarke v. Matthew Cate, No. 2:2010cv07337 - Document 46 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 by Magistrate Judge Frederick F. Mumm. Therefore, the Court orders that judgment be entered denying the Petition on the merits with prejudice. (See Order for Details) (rp)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 ANTHONY CLARKE, Petitioner, 11 v. 12 13 14 MATTHEW CATE, SECRETARY OF CALIFORNIA DEPARTMENT OF CORRECTIONS, Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-7337 FFM MEMORANDUM DECISION DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 16 17 I. PROCEEDINGS 18 Petitioner Anthony Clarke, a state prisoner in the custody of the California 19 Department of Corrections, filed a Petition for Writ of Habeas Corpus by a Person in 20 State Custody pursuant to 28 U.S.C. § 2254 ( Petition ) on October 1, 2010. 21 Petitioner and respondent consented to proceed before the undersigned United States 22 Magistrate Judge pursuant to 28 U.S.C. § 636(c). On November 16, 2010, respondent 23 filed a Return to the Petition. Petitioner did not file a Reply. The matter thus stands 24 submitted and ready for decision. 25 /// 26 /// 27 /// 28 /// 1 II. BACKGROUND AND PROCEDURAL HISTORY 2 On April 1, 2010, petitioner pleaded no contest to a violation of Penal Code 3 section 666, petty theft with a prior. (Lodged Doc. #2.) Petitioner admitted the truth 4 of a prior strike allegation and the court struck two remaining priors alleged in the 5 Complaint. (Lodged Doc. #16.) Pursuant to the plea agreement, petitioner was 6 sentenced to 32 months in state prison. (Lodged Doc. ## 3, 16.) 7 III. PETITIONER S CLAIMS 8 9 1. The trial court s imposition of a sentencing enhancement based on his prior 10 conviction violated petitioner s Sixth Amendment right to have a jury finding of 11 whether the prior conviction was for a serious or violent felony. 12 2 Trial counsel deprived petitioner of his Sixth Amendment right to effective 13 assistance of counsel by committing the following errors: 14 (a) object to its use as a strike pursuant to California law; and 15 16 failing to investigate the status of petitioner s prior conviction and to (b) failing to consult with petitioner about challenging the sentence on appeal. 17 18 19 IV. STANDARD OF REVIEW The standard of review applicable to petitioner s claims herein is set forth in 28 20 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 21 1996 ( AEDPA ) (Pub. L. No. 104-132, 110 Stat. 1214 (1996)). See 28 U.S.C. § 22 2254(d); see also Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d 23 481 (1997). Under AEDPA, a federal court may not grant habeas relief on a claim 24 adjudicated on its merits in state court unless that adjudication resulted in a decision 25 that was contrary to, or involved an unreasonable application of, clearly established 26 Federal law, as determined by the Supreme Court of the United States, or resulted in 27 a decision that was based on an unreasonable determination of the facts in light of the 28 2 1 evidence presented in the State court proceeding. 1 28 U.S.C. § 2254(d); see Williams 2 v. Taylor, 529 U.S. 362, 402, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). The phrase clearly established Federal law means the governing legal 3 4 principle or principles set forth by the Supreme Court at the time the state court renders 5 its decision. 2 Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S. Ct. 1166, 155 L. Ed. 2d 6 144 (2003). However, a state court need not cite the controlling Supreme Court cases 7 in its own decision, so long as neither the reasoning nor the result of the state-court 8 decision contradicts relevant Supreme Court precedent which may pertain to a 9 particular claim for relief. Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 10 2d 263 (2002) (per curiam). A state court decision is contrary to clearly established federal law if the 11 12 decision applies a rule that contradicts the governing Supreme Court law or reaches a 13 result that differs from a result the Supreme Court reached on materially 14 indistinguishable facts. Williams, 529 U.S. at 405-06. A decision involves an 15 unreasonable application of federal law if the state court identifies the correct 16 governing legal principle from [Supreme Court] decisions but unreasonably applies 17 that principle to the facts of the prisoner s case. Id. at 413. A federal habeas court 18 may not overrule a state court decision based on the federal court s independent 19 20 1 21 22 23 24 25 26 27 28 In addition, under 28 U.S.C. § 2254(e)(1), factual determinations by a state court shall be presumed to be correct unless the petitioner rebuts the presumption by clear and convincing evidence. 2 Under AEDPA, the only definitive source of clearly established federal law is set forth in a holding (as opposed to dicta) of the Supreme Court. See Williams, 529 U.S. at 412; see also Yarborough v. Alvarado, 541 U.S. 652, 660-61, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004). Thus, while circuit law may be persuasive authority in analyzing whether a state court decision was an unreasonable application of Supreme Court law, only the Supreme Court s holdings are binding on the state courts and only those holdings need be reasonably applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). 3 1 determination that the state court s application of governing law was incorrect, 2 erroneous, or even clear error. Lockyer, 538 U.S. at 75. Rather, a decision may be 3 rejected only if the state court s application of Supreme Court law was objectively 4 unreasonable. Id. The standard of unreasonableness that applies in determining the unreasonable 5 6 application of federal law under Section 2254(d)(1) also applies in determining the 7 unreasonable determination of the facts in light of the evidence under Section 8 2254(d)(2). Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). Accordingly, a 9 federal court may not second-guess a state court s fact-finding process unless, after 10 review of the state-court record, it determines that the state court was not merely 11 wrong, but actually unreasonable. Id. Where more than one state court has adjudicated the petitioner s claims, the 12 13 federal habeas court analyzes the last reasoned decision. Barker v. Fleming, 423 F.3d 14 1085, 1091 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 15 2590, 115 L. Ed. 2d 706 (1991) for presumption that later unexplained orders, 16 upholding judgment or rejecting same claim, rest upon same ground as the prior order). 17 Thus, a federal habeas court looks through ambiguous or unexplained state court 18 decisions to the last reasoned decision in order to determine whether that decision was 19 contrary to or an unreasonable application of clearly established federal law. Bailey v. 20 Rae, 339 F.3d 1107, 1112-13 (9th Cir. 2003). Here, petitioner presented his claims to the Superior Court for the County of Los 21 22 Angeles, the California Court of Appeal and the California Supreme Court on habeas 23 review. The Supreme Court and Court of Appeal summarily denied the petitions. The 24 Los Angeles County Superior Court denied the petition in a short minute order. To the 25 extent any reasoned decision has denied petitioner s claims, it would be that of the Los 26 Angeles County Superior Court. 27 /// 28 /// 4 V. DISCUSSION 1 2 3 A. Right to Jury Trial on Whether Robbery Is a Serious or Violent Felony Petitioner contends that he was deprived of his Sixth Amendment right to a jury 4 trial because the trial court sentenced him to an elevated sentence based on his prior 5 robbery conviction without a jury determination of whether robbery is a serious or 6 violent felony. Petitioner relies on Cunningham v. California, 549 U.S. 270, 127 S. Ct. 7 856, 166 L. Ed. 2d 856 (2007), Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 8 159 L. Ed. 2d 403 (2004) and, Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 9 147 L. Ed. 2d 435 (2000). 10 In denying this claim, the Superior Court provided the following rationale: 11 The defendant admitted a prior serious felony conviction as 12 part of the plea agreement in this case. No Cunningham 13 violation occurred. 14 Apprendi v. New Jersey (200) 530 U.S. 466 15 Blakely v. Washington (2004) 542 U.S. 296 16 Lodged Doc. #5 at 2. 17 In Blakely, the Supreme Court held that the statutory maximum for any sentence 18 is the maximum sentence a judge may impose solely on the basis of the facts reflected 19 in the jury verdict or admitted by the defendant. Id. at 303 (emphasis in original) 20 (citation omitted). 21 The Superior Court correctly applied Supreme Court precedent in denying this 22 claim. During the plea colloquy, petitioner specifically admitted that he had previously 23 sustained a conviction for robbery. By definition, robbery is both a violent felony 24 and a serious felony for purposes of a sentence enhancement pursuant to the Three 25 Strikes law. See Cal. Penal Code §§ 667.5(c)(9), 1170.12(b)(1), and 1192.7(c)(19). 26 Accordingly, the resulting sentence could not have violated petitioner s Sixth 27 Amendment rights, as the sentence did not exceed the statutory maximum based on the 28 facts admitted by petitioner. 5 1 Moreover, petitioner s claim is without merit for additional reasons as well. 2 First, the sentence was the result of a negotiated agreement between the parties 3 an agreement whereby petitioner received the benefit of having two other prior felony 4 convictions stricken. The Supreme Court has never held that a sentence imposed 5 pursuant to a plea agreement under such circumstances runs afoul of Blakely or 6 Cunningham. Accordingly, the California court s decision upholding the sentence 7 could not provide a basis for habeas relief. See Carey v. Musladin, 549 U.S. 70, 77, 8 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006) (where Supreme Court precedent gives no 9 clear answer to question presented, it cannot be said that the state court 10 unreasonab[ly] appli[ed] clearly established Federal law ). Secondly, petitioner explicitly waived any right that he had to a jury trial. See 11 12 Lodged Doc ## 15 at 2 (( Felony Advisement of Rights, Waiver, and Plea Form ) and 13 16 at 3-4 (transcript of plea proceedings). The Supreme Court has made clear that [a] 14 criminal defendant may knowingly and voluntarily waive many of the most 15 fundamental protections afforded by the Constitution. United States v. Mezzanatto, 16 513 U.S. 196, 201, 115 S. Ct. 797, 801, 130 L. Ed. 2d 697 (1995) (citations omitted). 17 Thus, absent some affirmative indication of Congress intent to preclude waiver, 18 waivers are presumptively valid. Id. Here, nothing suggests that petitioner s waiver of 19 his right to a jury trial was invalid. Petitioner s claim, therefore, is without merit. 20 21 B. Trial Counsel s Performance In his second claim for relief, petitioner maintains that his counsel provided 22 23 ineffective assistance by committing two errors, one in the period preceding 24 petitioner s plea and one after the plea had been entered. The Superior Court denied 25 these claims with the statement that Counsel s performance at all times was within all 26 reasonable state bar professional standards: [¶] In re Clarke, 5 Cal. 4th 730. [¶] In re 27 Harris, 5 Cal. 4th 813. (Lodged Doc. #5 at 2.) 28 /// 6 With respect to the pre-plea error, petitioner contends that counsel failed to 1 2 investigate the status of petitioner s prior conviction and to object to its use as a strike 3 pursuant to California law. As a general rule, one who has voluntarily and 4 intelligently pled guilty to a criminal charge may not subsequently seek federal habeas 5 relief on the basis of pre-plea constitutional violations. Mitchell v. Superior Court, 6 632 F.2d 767, 769 (9th Cir. 1980). In Tollett v. Henderson, 411 U.S. 258, 267, 93 S. 7 Ct. 1602, 36 L. Ed. 2d 235 (1973), the United States Supreme Court explained: 8 [A] guilty plea represents a break in the chain of events 9 which has preceded it in the criminal process. When a 10 criminal defendant has solemnly admitted in open court 11 that he is in fact guilty of the offense with which he is 12 charged, he may not thereafter raise independent claims 13 relating to the deprivation of constitutional rights that 14 occurred prior to the entry of the guilty plea. He may 15 only attack the voluntary and intelligent character of the 16 guilty plea[.] 17 Since Tollett, the Supreme Court has recognized that the bar on attacking 18 pre-plea constitutional errors applies unless the defect in question is a jurisdictional 19 one that implicates the government s power to prosecute the defendant. United States 20 v. Johnston, 199 F.3d 1015, 1019 n.3 (9th Cir. 1999) ( The Court has subsequently 21 limited the scope of those exceptions to include only those claims in which, judged on 22 the face of the indictment and record, the charge in question is one which the state may 23 not constitutionally prosecute. ) (citing United States v. Broce, 488 U.S. 563, 574-76, 24 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989)); see also Menna v. New York, 423 U.S. 61, 25 62, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975) (holding that bar on collateral challenges to 26 pre-plea errors did not preclude defendant from asserting double jeopardy to 27 indictment under which he pleaded guilty); Blackledge v. Perry, 417 U.S. 28 /// 7 1 21, 30-31, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974) (holding that guilty plea did not 2 foreclose claim that a defendant was vindictively prosecuted). 3 Here, petitioner s challenge to counsel s pre-plea performance does not 4 implicate the voluntariness of petitioner s plea. Accordingly, that challenge is 5 foreclosed by Tollett. See Moran v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994) 6 (petitioner s claim that his attorneys were ineffective for failing to prevent use of his 7 confession at trial was precluded by petitioner s plea), overruled on other grounds by 8 Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003); 9 United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (per curiam) (guilty plea 10 precluded claim that counsel provided ineffective assistance at in camera hearing 11 occurring prior to plea). Further, no jurisdictional exception to the Tollett rule 12 applies, as petitioner s challenge does not concern the power of the State to prosecute 13 him. Thus, petitioner s no contest plea precludes federal habeas relief on this 14 ineffective assistance of counsel ground for relief. See Tollett, 411 U.S. at 267. 15 Moreover, even if Tollet did not preclude relief on petitioner s challenge to his 16 counsel s pre-plea performance, the challenge would fail on the merits. A two-step 17 analysis governs petitioner s ineffective assistance of counsel claims for relief. 18 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 19 (1984). First, petitioner must prove that his attorney s representation fell below an 20 objective standard of reasonableness. Id. at 687-88, 690. To establish deficient 21 performance, the petitioner must show his counsel made errors so serious that counsel 22 was not functioning as the counsel guaranteed the defendant by the Sixth 23 Amendment. Id. at 687; Williams v. Taylor, 529 U.S. 362, 391, 120 S. Ct. 1495, 146 24 L. Ed. 2d 389 (2000). In reviewing trial counsel s performance, however, courts 25 strongly presume[] [that counsel] rendered adequate assistance and made all 26 significant decisions in the exercise of reasonable professional judgment. Strickland, 27 466 U.S. at 690; Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 157 L. Ed. 2d 1 28 (2003). Only if counsel s acts and omissions, examined within the context of all the 8 1 surrounding circumstances, were outside the wide range of professionally competent 2 assistance, will petitioner meet this initial burden. Kimmelman v. Morrison, 477 U.S. 3 365, 386, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986); Strickland, 466 U.S. at 690. 4 Second, the petitioner must show that he was prejudiced by demonstrating a 5 reasonable probability that, but for his counsel s errors, the result would have been 6 different. Strickland, 466 U.S. at 694. The errors must not merely undermine 7 confidence in the outcome of the trial, but must result in a proceeding that was 8 fundamentally unfair. Williams, 529 U.S. at 393 n.17. With respect to voluntary pleas, 9 prejudice is shown if there is a reasonable probability that, but for [his] counsel s 10 errors, he would not have pleaded guilty and would have insisted on going to trial. 11 Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). The petitioner must prove both deficient performance and prejudice. A court 12 13 need not, however, determine whether counsel s performance was deficient before 14 determining whether the petitioner suffered prejudice as the result of the alleged 15 deficiencies. Strickland, 466 U.S. at 697. 16 The cases cited by the Superior Court in denying petitioner s ineffective 17 assistance of counsel claims rely on the same test described in Strickland. The 18 Superior Court did not unreasonably apply Strickland in denying these claims, because 19 petitioner s challenge does not satisfy either part of Strickland s two-part test. First, petitioner has not provided any evidence that his counsel failed to examine 20 21 the prior convictions or that, had he done so, there was anything about the prior 22 convictions that would have disqualified their use as priors. Indeed, as shown above, 23 the robbery conviction, by definition, is a serious and violent felony for purposes of 24 California s Three Strike law. As the Ninth Circuit has observed, the failure to take a 25 futile action can never be deficient performance. Rupe v. Wood, 93 F.3d 1434, 1445 26 (9th Cir. 1996). 27 /// 28 9 Second, petitioner cannot show prejudice for the same reasons he has failed to 1 2 show deficient performance. Given the record before this Court, nothing suggests that 3 there is a reasonable probability that petitioner would not have pleaded no contest if 4 counsel had investigated petitioner s prior convictions. Finally, petitioner contends that his counsel provided ineffective assistance by 5 6 failing to consult with him about appealing the sentence. A failure to discuss the 7 possibility of an appeal with a defendant may constitute ineffective assistance. See 8 Roe v. Flores-Ortega, 528 U.S. 470, 480, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000) 9 ( counsel has a constitutionally imposed duty to consult with the defendant about an 10 appeal when there is reason to think either (1) that a rational defendant would want to 11 appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that 12 this particular defendant reasonably demonstrated to counsel that he was interested in 13 appealing. ). Petitioner has made neither showing here. Therefore, this claim also is without 14 15 16 17 merit. Therefore, the Court orders that judgment be entered denying the Petition on the merits with prejudice. 18 19 20 21 DATED: December 22, 2011 /S/ FREDERICK F. MUMM FREDERICK F. MUMM United States Magistrate Judge 22 23 24 25 26 27 28 10

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