Ronald Eugene Lais v. Kenneth Ford, No. 8:2011cv00420 - Document 39 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER DENYING PETITION AND DISMISSING ACTION WITH PREJUDICE by Magistrate Judge Jean P Rosenbluth. (See document for details.) IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice. (rla)

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1 0 2 3 FILED ¢ SOUTHERN OIVISION CLERK, US DISTRICT COURT :: 4 NOV 2 8 2012 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RONALD EUGENE LAIS, Petitioner, 12 14 KENNETH FORD, California Parole Region IV, 15 Respondent. 16 17 ) ) ) MEMORANDUM OPINION AND ORDER ) DENYING PETITION AND DISMISSING ) ACTION WITH PREJUDICE vs. 13 ) Case No. SACV 11-0420-JPR ) ) ) ) ) PROCEEDINGS 18 On March 15, 2011, Petitioner filed a Petition for Writ of 19 Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 20 § 21 undersigned U.S. Magistrate Judge pursuant to 28 22 On August 25, 2011, after four extensions of time, Respondent 23 filed an Answer with an attached Memorandum of Points and 24 Authorities, arguing, among other things, that the Petition was 25 time barred. 26 27 2254. The parties consented to the jurisdiction of the u.s.c. § 636(c). On April 27, 2012, after three extensions of time, Petitioner filed a "Traverse to Answer to Petition for Writ of Habeas Corpus; Request for Evidentiary Hearing, and Appointment 28 1 """] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of Counsel" with an attached Memorandum of Points and Authorities. On July 20, 2012, the Court ordered Respondent to lodge two additional state habeas petitions and the rulings on them and file a supplemental brief addressing whether those petitions resulted in statutory tolling of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") limitation period sufficient to render the federal Petition timely. On August 29, 2012, after one extension of time, Respondent lodged the requested documents and filed a supplemental brief conceding that the Petition was timely. For the reasons discussed below, the Court denies the Petition and dismisses this action with prejudice. BACKGROUND Following a bench trial in Orange County Superior Court, Petitioner was convicted on July 29, 2005, of 25 counts of holding himself out as entitled to practice law after resigning from the State Bar while facing disciplinary charges (Cal. Bus. & Prof. Code§ 6126(b)). (Lodged Doc. 1, 4 Clerk's Tr. at 716-19; Lodged Doc. 2, 4 Rep.'s Tr. at 683-84.) The court found that Petitioner was subject to a sentencing enhancement because he committed nine of those offenses while released on his own recognizance after being charged with another felony (Cal. Penal Code § 12022.1). (Lodged Doc. 2, 4 Rep.'s Tr. at 683-84.) On September 23, 2005, Petitioner was sentenced to 14 years in prison. (Id. at 756-57.) Petitioner appealed, arguing that (1) the terms "practice law" and "legal advice" in California Business and Professions Code section 6126 were unconstitutionally vague and overbroad; 2 J 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (2) section 6126 violated the equal protection clauses of the federal and state consti~utions; (3) his convictions on some counts were duplicative of others; (4) the evidence was insufficient to support some counts because it did not show that Petitioner "held himself out" as entitled to practice law; (5) some of the convictions violated ex post facto principles; (6) giving advice on foreign law did not violate section 6126; (7) the evidence was insufficient on some counts because there was no testimony about them; and {8) Petitioner's sentences on some counts violated California Penal Code section 654's proscription against multiple punishments. (Lodged Doc. 3.) After retaining new counsel, Petitioner filed a supplemental brief that adopted the claims in the opening brief and further argued that insufficient evidence supported some of his convictions because the victims retained Petitioner as an expert consultant while separately represented by an attorney. (Id.) On May 14, 2008, the California Court of Appeal reversed Petitioner's convictions on eight counts for lack of substantial evidence and directed the trial court to resentence Petitioner. (Lodged Doc. 5.) The court of appeal affirmed the judgment in all other respects. (Id.) Petitioner filed a Petition for Review in the California Supreme Court, arguing that section 6126 was unconstitutionally vague and overbroad. (Lodged Doc. 6.) On July 23, 2008, the state supreme court summarily denied review. (Lodged Doc. 7.) On January 16, 2009, pursuant to the court of appeal's order, the trial court dismissed Petitioner's convictions on the eight counts and resentenced Petitioner to 12 years 8 months in 3 -' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 state prison. (Lodged Doc. 8, 1 Clerk's Tr. at 298-99; Lodged Doc. 9, 1 Rep.'s Tr. at 8-9.) Petitioner appealed, arguing that the trial court erred by resentencing him without first addressing his request to appoint a new lawyer. 10.) (Lodged Doc. On December 21, 2009, the state court of appeal affirmed the trial court's resentencing and directed it to prepare and file an amended abstract of judgment. (Id.) Meanwhile, on May 8, 2009, Petitioner filed a habeas petition in the state court of appeal, raising two grounds for relief: judicial bias and ineffective assistance of counsel ( "IAC") . (Lodged Doc. 11.) Specifically, Petitioner argued that his trial counsel rendered ineffective assistance by failing to (1) raise state and federal constitutional issues related to regulation of the unauthorized practice of law; (2) employ or call expert witnesses "to challenge [unlawful practice of law] prosecutions and validate [his] business model"; (3) "file a 1538.5 motion 1 to challenge the complaint as promised"; (4) cross-examine witnesses, challenge documents, or call any witnesses; (5) present "DOJ/FTC data limiting [unlawful practice of law] prosecutions"; (6) communicate a plea agreement; Petitioner of a "potential prison term"; {9) (7) warn (8) prepare for trial; "raise the issue of cruel and unusual punishment"; or (10) "argue on [his] behalf on post-trial motions." (Id.) On May 19, 2009, the court of appeal summarily denied Petitioner's petition. (Lodged Doc. 12.) 1 California Penal Code section 1538.5 states that in certain circumstances a defendant may file a motion to suppress evidence obtained as the result of a search or seizure. 4 1 On June 9, 2009, Petitioner filed a habeas petition in the 2 3 claims. 4 denied the petition on three "separate and independent" grounds: 5 (1) Petitioner was convicted in 2005 but failed to explain or 6 justify his delay in bringing the claims "insofar as Petitioner 7 8 9 complains about the representation prior to his conviction and state superior court, raising the same judicial-bias and IAC (Lodged Doc. 13.) during his court trial"; On June 23, 2009, the superior court (2) he failed to plead sufficient grounds for relief; and (3) he failed to show that his trial 10 counsel's performance was deficient or that it resulted in 11 prejudice. 12 13 (Lodged Doc. 14.) On October 14, 2009, Petitioner filed another habeas petition in the state court of appeal, raising the same judicial- 14 bias and IAC claims. (Lodged Doc. 15.) On October 29, 2009, the 15 state court of appeal summarily denied the petition. 16 Doc. 16.) 17 petition in the California Supreme Court, again raising the same 18 judicial-bias and IAC claims. 19 (Lodged On December 18, 2009, Petitioner filed a habeas (Lodged Doc. 17.) On February 3, 2010, Petitioner filed a habeas petition in 20 the state superior court, raising two claims for relief. 21 Doc. 18.) 22 rendered ineffective assistance by "fail[ing] to raise defense of 23 cruel and unusual punishment as instructed by [P]etitioner" or 24 "argue for leniency based on trends in the law of 'unauthorized 25 practice of law.'" 26 27 28 for the first time, that his felony convictions and sentence for First, Petitioner argued that his trial counsel had (Id. at 3-3(a) .) Second, Petitioner argued, violating section 6126{b) constituted cruel and unusual punishment. (Lodged (Id. at 4.) 5 1 On March 10, 2010, the California Supreme Court summarily 2 denied the December 2009 habeas petition raising judicial bias 3 and IAC. 4 court denied Petitioner's February 2010 habeas petition, which 5 raised IAC and cruel and unusual punishment, on the grounds that 6 it was untimely and successive, citing In re Clark, 5 Cal. 4th 7 750, 765, 797, 782, 21 Cal. Rptr. 2d 509, 518, 530, 540 (1993), 8 and In re Stankewitz, 40 Cal. 3d 391, 396 n.1, 220 Cal. Rptr. 9 382, 384 n.1 (1985). 10 (Lodged Doc. 20.) That same day, the state superior (Lodged Doc. 19.) On March 24, 2010, Petitioner filed a habeas petition in the 11 state superior court, arguing that he was entitled to additional 12 presentence conduct credits. 13 28, 2010, Petitioner filed a habeas petition in the state court 14 of appeal, again arguing that (1) trial counsel rendered 15 ineffective assistance by "fail[ing] to raise the defense of 16 cruel and unusual punishment" or "argue for leniency based on 17 trends in the law of 'unauthorized practice of law'" and (2) his 18 felony convictions and sentence constituted cruel and unusual 19 punishment. 20 superior court denied the sentencing-credits petition. 21 Doc. 26.) 22 the petition alleging IAC and cruel and unusual punishment. 23 (Lodged Doc. 22.) 24 (Lodged Doc. 25 at 3.) (Lodged Doc. 21 at 3-4.) On April On April 13, 2010, the (Lodged On May 6, 2010, the court of appeal summarily denied On June 21, 2010, Petitioner filed a habeas petition in the 25 court of appeal, again arguing that he was entitled to additional 26 presentence conduct credits. 27 Petitioner filed a final habeas petition in the California 28 Supreme Court, raising five grounds for relief: (Lodged Doc. 27.) 6 On July 1, 2010, (1) the evidence 1 was insufficient to support his convictions because he "never 2 advertised or held [himself] out as eligible to practice law in 3 California when [he] was not"; 4 constituted cruel and unusual punishment; 5 6 7 violated equal protection because "former California lawyers" 8 Facto application of law"; and (5) his trial and appellate 9 counsel rendered ineffective assistance because they failed to (2) his conviction and sentence (3) section 6126(b) were "singled out for harsher penalties . . . than their nonlawyer counterparts"; (4) his convictions constituted "Ex Post 10 raise the issues Petitioner was asserting in his petition. 11 (Lodged Doc. 23 at 3-4, 4(a) .) 12 On November 24, 2010, the state court of appeal granted 13 Petitioner's petition seeking additional presentence conduct 14 credits. 15 supreme court summarily denied Petitioner's June 2010 petition. 16 (Lodged Doc. 24.) 17 18 19 (Lodged Doc. 28.) On January 26, 2011, the state PETITIONER'S CLAIMS 1. Petitioner's trial and appellate counsel were constitutionally ineffective. 20 (A) Trial counsel was ineffective by failing to 21 (i) investigate and prepare for trial, 22 (ii) communicate a plea-bargain offer, 23 (iii) follow instructions in trial and 24 posttrial proceedings, 25 (iv) return Petitioner's case file, 26 (v) obtain replacement counsel, 27 (vi) present evidence at trial, and 28 (vii) object to improper evidence. 7 (Pet. at 1 5.) 2 (B) Petitioner's appellate counsel was ineffective 3 by failing to "raise all issues on appeal" and refusing 4 to file habeas corpus petitions. 5 2. Petitioner's sentence for unauthorized practice of law 6 7 8 9 (Pet. at 5.) constituted cruel and unusual punishment. (Pet. at 5.) 3. Insufficient evidence supported Petitioner's convictions for unlawful practice of law because "each alleged victim was represented by properly licensed counsel and signed an engagement 10 agreement acknowledging [Petitioner's] role in their case as a 11 qualified expert consultant." (Pet. at 5-6.) 12 4. Petitioner's convictions violated equal protection 13 because attorneys who are suspended, disbarred, or have resigned 14 with charges pending "are treated more severely than laypersons 15 who commit [unlawful practice of law] 16 ( Pet . at 6 . ) 17 for no cogent reason." 5. Petitioner's convictions constitute an "Ex Post Facto 18 application of law" because he was "prosecuted and convicted 19 under [an] amended statute, which was not in effect at the time 20 of the alleged offenses." 21 22 (Pet. at 6.) 6. Section 6126(b) was unconstitutionally vague and overbroad. (Pet. at 6(a) .) 23 STANDARD OF REVIEW u.s.c. 24 Under 28 25 An application for a writ of habeas corpus on behalf of 26 a person in custody pursuant to the judgment of a State 27 court shall not be granted with respect to any claim that 28 was adjudicated on the merits in State court proceedings § 2254(d), as amended by AEDPA: 8 1 unless the adjudication of the claim - (1) resulted in a 2 3 4 5 6 7 8 decision or Under AEDPA, the "clearly established Federal law" that controls 9 federal habeas review of state-court decisions consists of that was contrary to, 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. 10 holdings of Supreme Court cases "as of the time of the relevant 11 state-court decision." 12 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000). 13 Williams v. Taylor, 529 U.S. 362, 412, Although a particular state-court decision may be both 14 "contrary to" and "an unreasonable application of" controlling 15 Supreme Court law, the two phrases have distinct meanings. 16 at 391, 413. 17 established federal law if it either applies a rule that 18 contradicts governing Supreme Court law or reaches a result that 19 differs from the result the Supreme Court reached on "materially 20 indistinguishable" facts. 21 Ct. 362, 365, 154 L. Ed. 2d 263 (2002). 22 cite or even be aware of the controlling Supreme Court cases, "so 23 long as neither the reasoning nor the result of the state-court 24 decision contradicts them." Id. A state-court decision is "contrary to" clearly Early v. Packer, 537 u.s. 3, 8, 123 S. A state court need not Id. 25 State-court decisions that are not "contrary to" Supreme 26 Court law may be set aside on federal habeas review only "if they 27 are not merely erroneous, but 'an unreasonable application' of 28 clearly established federal law, or based on 'an unreasonable 9 I determination of the facts' 2 state-court decision that correctly identifies the governing 3 legal rule may be rejected if it unreasonably applies the rule to 4 the facts of a particular case. 5 6 7 8 To obtain federal habeas relief for such an "unreasonable unreasonable." 9 warranted only if the state court's ruling is "so lacking in (emphasis added)." Id. at 11. A Williams, 529 U.S. at 406-08. application," however, a petitioner must show that the state court's application of Supreme Court law is "objectively Id. at 409-10. In other words, habeas relief is IO justification that there was an error well understood and II comprehended in existing law beyond any possibility for I2 fairminded disagreement." I3 131 S. Ct. 770, 786-87, 178 L. Ed. 2d 624 (2011). I4 Harrington v. Richter, 562 u.s. Respondent asserts that ground one is procedurally I5 defaulted. I6 forth in the Discussion section below, the Court finds that only I7 one subclaim of ground one - that trial counsel was I8 constitutionally ineffective for failing to follow Petitioner's I9 "instructions" - is arguably procedurally defaulted. 20 is easier to dispose of that subclaim on the merits, however, the 2I Court has not addressed Respondent's procedural-bar argument. 22 See Lambrix v. Singletary, 520 U.S. 518, 524-25, 117 S. Ct. 1517, 23 1523, 137 L. Ed. 2d 771 (1997); Franklin v. Johnson, 290 F.3d 24 1223, 1232 (9th Cir. 2002) 25 empowered to, and in some cases should, reach the merits of 26 habeas petitions if they are, on their face and without regard to 27 any facts that could be developed below, clearly not meritorious 28 despite an asserted procedural bar"); see also Smith v. Stewart, (Answer Mem. P. & A. at 24-26.) For the reasons set Because it (noting that federal courts "are 10 -j 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 407 F. App'x 237, 237-38 (9th Cir.) ("We need not address the state's procedural default and exhaustion arguments because [the] petition is clearly without merit."), cert. denied, 131 S. Ct. 2117 (2011). Petitioner presented most of his subclaims of ground one that trial and appellate counsel were constitutionally ineffective - to the state courts on habeas review. On May 8, 2009, Petitioner filed a habeas petition in the state court of appeal raising arguments that appear to correspond with four subclaims of ground one: that trial counsel was ineffective by failing to (1) investigate and prepare for trial; a plea offer; evidence. 3 (2) communicate (3) present evidence; 2 or (4) object to improper (Lodged Doc. 11 at 3.) denied those claims. The court of appeal summarily (Lodged Doc. 12.) Petitioner raised the same claims in a June 9, 2009 habeas petition filed in state superior court (Lodged Doc. 13 at 3), which denied them on the following "separate and independent grounds": (1) Petitioner failed to explain or justify his delay in filing his petition; (2) he failed to "plead sufficient grounds for relief"; and (3) he failed to show that counsel's performance was deficient or demonstrate any resulting prejudice (Lodged Doc. 14). Petitioner then raised the same subclaims in habeas petitions 2 Specifically, Petitioner alleged that trial counsel was ineffective for failing to call any witnesses, call an expert witness, cross-examine witnesses, challenge documents, or present "DOJ/FTC data limiting UPL prosecutions." (Lodged Doc. 11 at 3.) 3 Specifically, Petitioner alleged that trial counsel was ineffective for failing to file a "1538.5 motion to challenge the complaint as promised." (Lodged Doc. 11 at 3.) 11 1 filed in the court of appeal and supreme court, which both 2 summarily denied them without citation to authority. 3 Docs. 15, 16, 17, 20.) (Lodged The Court looks through the silent 4 denials to the superior court's reasoned decision, see Delgadillo 5 6 7 8 9 v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008), and reviews it under the deferential AEDPA standard because the superior court reached the merits of the four subclaims in the alternative, even though the court also rejected those claims on procedural grounds, see James v. Ryan, 679 F.3d 780, 802 (9th Cir. 2012) 10 (holding that when state court primarily rejects habeas claim on 11 procedural ground but alternatively reaches and resolves merits 12 of claim, denial of it is entitled to AEDPA deference), pet. for 13 cert. filed, 81 U.S.L.W. 3047 (U.S. June 28, 2012) 14 (No. 11A1119). Petitioner raised one of his IAC subclaims - that appellate 15 counsel was ineffective in failing to raise various issues on 16 appeal - 17 (Lodged Doc. 23 at 4(a) .) 18 petition without citation to authority (Lodged Doc. 24), which is 19 presumed to be an adjudication on the merits, Richter, 131 20 at 784 21 from an unreasonable legal or factual conclusion does not require 22 that there be an opinion from the state court explaining the 23 state court's reasoning"). 24 court decision at any level as to this subclaim, the Court 25 conducts an independent review of the record to determine whether 26 the supreme court, in denying this claim, was objectively 27 unreasonable in applying controlling federal law. 28 Adams, in a habeas petition filed in the state supreme court. The supreme court summarily denied the s. Ct. ("determining whether a state court's decision resulted Because there was no reasoned state- 641 F.3d 1168, 1171 (9th Cir.) 12 See Haney v. (holding that independent 1 review "is not de novo review of the constitutional issue, but 2 3 4 5 6 7 8 9 only a means to determine whether the state court decision is objectively unreasonable" (internal quotation marks omitted)), cert. denied, 132 S. Ct. 551 (2011); see also Richter, 131 S. Ct. at 784, 786 (holding that "petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief," and reviewing 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 10 fairminded jurists could disagree that those arguments or 11 theories are inconsistent with the holding in a prior decision of 12 [the Supreme Court]"). 13 Petitioner failed to raise his remaining four IAC subclaims 14 in the state supreme court. 15 superior court and court of appeal, Petitioner arguably raised 16 his subclaim that trial counsel was constitutionally ineffective 17 by refusing to follow instructions. 4 18 21, 22.) 19 ineffective in failing to return Petitioner's case file in a 20 habeas petition filed in the superior court. 21 3.) In habeas petitions filed in the (Lodged Doc. 18 at 3, 19, Petitioner raised his subclaim that trial counsel was (Lodged Doc. 18 at Petitioner failed to present to any state court his 22 23 4 24 25 26 27 28 Specifically, in the lower state courts Petitioner argued that trial counsel was ineffective by refusing to follow Petitioner's instruction, prior to resentencing, to "construct a credible defense of cruel and unusual punishment under federal and state constitutions based on prevailing case law, regulations, and rules of court," the "guidelines of the U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC)," and the "blatant disparity of punishments for similar crimes worldwide." (Lodged Doc . 18 at 3 . ) 13 1 subclaims that trial counsel was ineffective for failing to 2 3 obtain replacement counsel or that appellate counsel was 4 four subclaims are unexhausted. 5 6 7 8 9 address an unexhausted claim on the merits, it must be "perfectly 10 its discretion to address and reject them on the merits under de 11 novo review. 12 (9th Cir. 2002) 13 habeas review is de novo); Bybee v. Lewis, No. ED CV 11-1299-PSG 14 (PLA), 2012 WL 1325623, at *5 (C.D. Cal. Mar. 19) 15 unexhausted but noncolorable habeas claim de novo), accepted by 16 2012 WL 1325547 (C.D. Cal. Apr. 16, 2012). 17 ineffective in failing to file habeas petitions. Thus, those For a federal habeas court to clear that the applicant does not raise even a colorable federal claim." 2005). Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. Here, because it is clear that Petitioner's unexhausted subclaims of ground one are not colorable, the Court exercises Id.; see also Pirtle v. Morgan, 313 F.3d 1160, 1167 (when no state-court decision on merits exists, (reviewing Petitioner first presented ground two, alleging that his 18 sentence constituted "cruel and unusual punishment," in a 19 February 3, 2010 petition filed with the superior court. 20 Doc. 18.) 21 "untimely and successive," citing Clark, 5 Cal. 4th at 765, 797, 22 782, and Stankewitz, 40 Cal. 3d at 396 n.1. 23 The state court of appeal and supreme court summarily denied 24 subsequent petitions raising the same issue. 25 22, 23, 24.) 26 the state superior court's decision. 27 1145, 1148 n.13 28 "clearly and expressly" rejected ground two as both untimely and (Lodged The superior court denied the petition because it was (Lodged Doc. 19.) (Lodged Docs. 21, The Court "looks through" those silent denials to (9th Cir. 2005). 14 Bonner v. Carey, 425 F.3d Because the superior court 1 successive, see Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct. 2 1038, 1043, 103 L. Ed. 2d 308 (1989) 3 default does not bar habeas claim unless last reasoned 4 state-court decision "clearly and expressly" stated that judgment 5 6 rested on state procedural bar) , and for the reasons set forth in the Discussion section below, the Court does not address ground 7 two because it is procedurally defaulted, as Respondent argues. 8 9 (holding that procedural Petitioner first presented grounds three, four, five, and six on direct appeal to the state court of appeal, which rejected 10 them in a reasoned decision. 11 16.) 12 in the state supreme court, which summarily denied review. 13 (Lodged Docs. 6, 7.) 14 four, and five in the July 2010 habeas petition filed with the 15 state supreme court, which summarily denied them. 16 23 at 3; Lodged Doc. 24.) 17 the merits of grounds three, four, five, and six is the state 18 appellate-court decision on direct appeal. 19 Nunnemaker, 501 U.S. 797, 803, 805, 111 20 L. Ed. 2d 706 (1991) 21 of AEDPA review is last reasoned state judgement) ; see also 22 Berghuis v. Thompkins, 560 U.S. ___ , 130 S. Ct. 2250, 2259, 176 23 L. Ed. 2d 1098 (2010) 24 silent denial of petition for review to reasoned opinion of court 25 of appeal as relevant state-court decision for purposes of AEDPA 26 review); Bonner, 425 F.3d at 1148 n.13 27 through two "level[s] of mute decision" regarding state habeas 28 petition (citation omitted)). (Lodged Doc. 3; Lodged Doc. 5 at Petitioner raised ground six in a petition for review filed Petitioner then presented grounds three, (Lodged Doc. The last reasoned decision regarding s. See Ylst v. Ct. 2590, 2594-95, 115 (relevant state-court decision for purposes (looking through state supreme court's (applying Ylst to look Because the state courts 15 I -----; 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 adjudicated grounds three, four, five, and six on the merits, the Court reviews them under the deferential AEDPA standard of review. See Richter, 131 S. Ct. at 784. SUMMARY OF THE EVIDENCE PRESENTED AT TRIAL Because Petitioner challenges the sufficiency of the evidence to support his convictions, the Court has independently reviewed the state-court record and finds the following to be an accurate recitation of what the evidence at trial showed. See Jones v. Wood, 114 F.3d 1002, 1008 (9th Cir. 1997). The State Bar suspended Petitioner from the practice of law from August 13 to December 7, 1999. 5 Traverse at 2.) (Lodged Doc. 5 at 4; Petitioner attempted to resign from the bar with charges pending on November 30, 2000, and he was again suspended from the bar on December 1. 41.) (Lodged Doc. 2, 3 Rep.'s Tr. at 540- Petitioner's resignation with charges pending became effective March 11, 2001. (Id.) At trial, attorney Merritt McKeon testified that she worked for Petitioner's law practice from June to November 1999. Lodged Doc., 2 Rep.'s Tr. at 283-84.) (2 McKeon later discovered that Petitioner had used her signature stamp without her authorization. (Id. at 294-95.) Attorney Donald Kemp testified that he worked for Petitioner from August to November 2000. (Lodged Doc. 2, 1 Rep.'s Tr. at 5 Petitioner testified that he received a 90-day suspension that ended on November 11, 1999 (Lodged Doc. 2, 3 Rep.'s Tr. at 539), but, as Petitioner acknowledges in his Traverse, the State Bar apparently made his reinstatement contingent on certain conditions that were not satisfied until December 7 (id. at 597-60; Traverse at 2). 16 1 35, 37-38.) 2 he was going to be suspended from the bar effective December 1 3 and offered him a raise if Petitioner could continue to operate 4 the firm under Kemp's bar number or, alternatively, a smaller 5 raise if Kemp would continue to make appearances at Petitioner's 6 7 8 9 direction while Petitioner acted as a consultant. 46-50.) In mid-November 2000, Petitioner informed Kemp that (Id. at 40-41, Petitioner said that he would continue to be the "primary strategist" on the cases. (Id. at 42.) Kemp rejected the offer and resigned from the firm effective November 30, 2000. 10 (Id. at 43.) 11 Count 1 -Richard Chavez 12 Chavez testified that on January 21, 2001, he told 13 Petitioner that he was "in need of an aggressive attorney in an 14 effort to protect [his] son," and Petitioner responded that the 15 matter was "something that he could handle" and that they needed 16 an ex parte hearing. 17 Petitioner advised Chavez to keep custody of his son even though 18 his visitation period was ending and said if his ex-wife 19 contacted the police, to "let the police know that we have [an ex 20 parte] hearing on Tuesday, and if there's an issue, they can 21 contact me." 22 Chavez seek permanent custody rather than temporary custody of 23 his son because they could "always negotiate for something less." 24 (Id. at 136-37.) 25 would protect their conversation. (Lodged Doc. 2, 1 Rep.'s Tr. at 131-32.) (Id. at 132-33, 135.) Petitioner recommended that Petitioner said that attorney-client privilege (Id. at 132-33, 136.) 26 The next day, January 22, 2001, Chavez again met with 27 Petitioner, who explained that he usually stayed in the office 28 and "ma[de] himself available to clients so he can advise them," 17 1 and he introduced Chavez to attorney Dean Schroeter, who "does 2 the administrative side of going to court and handling the 3 proceeding." 4 wrote a check for $3000 to "Ronald Lais." 5 point, no one had informed Chavez that Petitioner was not 6 authorized to practice law. 7 8 9 (Id. at 142.) At the end of that meeting, Chavez (Id. at 143.) At that (Id. at 144.) On January 23, 2001, Chavez and Schroeter went to court. (Id.) The next day, Chavez called Petitioner to complain about Schroeter's representation and said that he had just learned that 10 Petitioner had been disbarred. 11 "extremely angry" and said that he had not been disbarred, he had 12 resigned, and that he had a law license from India. 13 Count 2 - Kathleen Monroe 14 (Id. at 146.) Petitioner became (Id.) Monroe testified that on October 29, 1999, she contacted 15 Petitioner after finding his website during an internet search. 16 (Lodged Doc. 2, 2 Rep.'s Tr. at 331-32, 335.) 17 Petitioner that she needed an attorney who does "interstate law," 18 and Petitioner responded that he was the "only game in town." 19 (Id. at 337.) 20 office, which had law degrees on the wall, legal books on the 21 bookshelf, and a sign that said "Ronald E. Lais, Attorney at Law" 22 on his desk. 23 would be "very aggressive in handling the case" and advised her 24 to seek modification of her spousal and child support. 25 339-40.) 26 Lais" at Petitioner's instruction, along with a notation that it 27 was for "attorneys' fees." 28 informed Monroe that he had been suspended from the Bar. She told That same day, she met with Petitioner in his (Id. at 336-37.) Petitioner told Monroe that he (Id. at Monroe wrote a check for $5000 to "Law Office of Ron (Id. at 340-41.) 18 Petitioner never (Id. at 1 341, 345.) 2 Monroe later discovered through an internet search that 3 Petitioner was suspended from the Bar, and she confronted him on 4 November 17, 1999. 5 was just a "misunderstanding with the Bar" that was being 6 resolved and that it shouldn't be of concern to her. 7 Count 3 - Jay and Rebecca Seagrave 6 8 9 (Id. at 345.) Petitioner told her that it (Id.) Jay testified that on September 7, 1999, he and Rebecca found Petitioner's contact information after searching the 10 internet for an attorney to help Rebecca with a child custody 11 dispute. 12 9, 1999, Jay told Petitioner that he and Rebecca wanted "an 13 aggressive male attorney," and Petitioner responded that it was 14 "a good thing" they had called him. 15 told Jay and Rebecca that it would be "no problem" to handle the 16 child custody issue and that he would file emergency custody 17 orders the next day. 18 his fee for interstate child custody cases was $5000, which, at 19 Petitioner's request, Rebecca wired to Petitioner that same day. 20 (Id. at 246, 248.) 21 (Lodged Doc. 2, 2 Rep.'s Tr. at 241-42.) (Id. at 249.) (Id. at 244-46.) On September Petitioner Petitioner told them that The next day, September 10, 1999, Petitioner told Jay and 22 Rebecca to take Rebecca's child to the emergency room to document 23 any abuse, which would be important for their case. 24 261.) (Id. at Petitioner said that he had not filed the emergency 25 26 27 28 6 Because Jay and Rebecca Seagrave share the same last name, the Court refers to them by their first names. At the time of the events they testified about at trial, Jay and Rebecca were not married and Rebecca apparently went by the last name Wilson. (Lodged Doc. 2, 2 Rep.'s Tr. at 241.) 19 1 custody order because he had been in court all day. 2 262.) 3 their fee. 4 Petitioner never informed Jay that he was suspended from the Bar. 5 (Id. at 244-45, 251-52, 264-65.) 6 7 On September 14, 1999, Jay demanded that Petitioner return (Id. at 263-64.) Between September 9 and 14, 1999, Rebecca testified that on September 9, 1999, Petitioner said he would file the custody order the next day and told her not to 8 worry, everything would be fine. 9 (Id. at (Id. at 274-75.) After that conversation, she wired $5000 to the account of "Ronald D. Lais, 10 Incorporated." 11 she discovered that Petitioner had not filed the motions and 12 "nothing had been done." 13 14, 1999, Petitioner never informed Rebecca that he was not 14 authorized to practice law. 15 Count 4 - Jeremy and Johnnie Snow7 16 (Id. at 270-71.) On September 10, 1999, however, (Id. at 278.) Between September 9 and (Id.) Jeremy testified that he retained Petitioner in July 2000 to 17 represent him in a child custody case. 18 Tr. at 424.) 19 Germany until May 2001, his mother, Johnnie, primarily 20 communicated with Petitioner. 21 advise Jeremy of his suspension from the practice of law at any 22 time before December 1, 2000, and Jeremy did not recall any 23 conversations with Petitioner after December 1. 24 25 (Lodged Doc. 2, 2 Rep.'s Because Jeremy was in the military and stationed in (Id. at 426.) Petitioner did not (Id. at 429-30.) Johnnie testified that between July and November 2000, Petitioner never advised her that he was going to be suspended 26 27 28 7 Because Jeremy Snow and his mother, Johnnie Snow, share the same last name, the court refers to them by their first names. 20 1 from the Bar. (Id. at 433-34.) On December 1, 2000, Petitioner 2 said he would not be able to make a court date on December 4 and 3 that Jeremy and Johnnie should get another attorney, which would 4 save them money because Petitioner's per diem was so high. 5 at 435-36.) 6 should do in court. 7 fees. 8 Johnnie that he had been suspended from the Bar. 9 Thereafter, Petitioner continued to assure Johnnie that he was (Id. Petitioner told Johnnie what the other attorney (Id. at 436.) (Id.) He also asked for another $5000 in On December 8, 2000, Petitioner told (Id. at 440.) 10 going to prepare documents to be filed, and he asked for another 11 $5000 for his legal research. 12 Petitioner sent Johnnie a document retaining him as a "child 13 custody expert" and told her he wanted to keep the case "in 14 house." 15 Counts 6 & 7 - William Parkkonen and Attorney Nelson Mosher 16 (Id. at 442-43, 446-53.) (Id. at 443-44.) Parkkonen testified that he had hired Petitioner in May 2000 17 to represent him in an interstate child custody and divorce case 18 and in 2000 paid Petitioner $10,000 in fees. 19 Rep.'s Tr. at 299-302.) 20 accompanied Parkkonen to court, and Parkkonen and his wife's 21 depositions were taken. 22 December 1, 2000, Parkkonen received a copy of his wife's 23 deposition in an envelope with a return address of "The Law 24 Office of Ronald E. Lais." 25 2000 and May 1, 2001, Parkkonen and Petitioner exchanged emails 26 about Parkkonen's child custody case, but Petitioner did not tell 27 Parkkonen that he had been suspended from the Bar.· 28 14, 317.) (Lodged Doc. 2, 2 On November 30, 2000, Petitioner (Id. at 305-06.) Sometime after (Id. at 306-07.) Between November (Id. at 307- Moreover, on January 17, 2001, Parkkonen told 21 1 Petitioner that he didn't want any other attorneys on his case, 2 3 4 5 6 7 8 9 and Petitioner responded that he would continue to handle it. (Id. at 329-30.) Attorney Mosher testified that he began representing Parkkonen's wife in a child custody matter in July or August 2000 and that Petitioner represented Parkkonen. Rep.'s Tr. at 233-34.) (Lodged Doc. 2, 2 On November 30, 2000, Mosher and Petitioner both appeared at a court date for that case, but Petitioner did not inform Mosher that he would be suspended from 10 the Bar the following day. 11 Mosher sent Petitioner a letter addressed to "Ronald E. Lais, 12 Attorney at Law." 13 and January 22, 2001, Petitioner never told Mosher that he had 14 been suspended from the state Bar. 8 15 Counts 8 & 9 - David and Jeanne Seidman 9 16 (Id. at 236.) (Id. at 237-38.) On January 22, 2001, Between December 1, 2000, (Id. at 238-39.) David testified that he first contacted Petitioner around 17 November 2000. 18 told Petitioner that he needed a "real aggressive attorney," and 19 Petitioner responded, "I'm your man." 20 2000, David and his wife, Jeanne, met with Petitioner to discuss 21 legal issues related to their child custody case and thereafter 22 communicated with him about once a week. 23 December 11, 2000, David arrived at Petitioner's office to 24 prepare for a deposition later that day. (Lodged Doc. 2, 1 Rep.'s Tr. at 162-63.) (Id. at 163.) David In November (Id. at 163-64.) On (Id. at 165.) 25 26 8 Mosher discovered that Petitioner had been suspended by reading about it in the state-bar newsletter. (Id. at 239.) 27 9 28 Because David and Jeanne Seidman share the same last name, the Court refers to them by their first names. 22 1 Petitioner told him that another attorney, Schroeter, would 2 represent him at the deposition because Petitioner's "services 3 would be best served by him staying in his office." 4 5 6 7 166.) Petitioner also told David not to answer any questions about finances at the deposition, and David followed that advice. (Id. at 166-68.) Petitioner did not inform David that he had been suspended from the Bar. 8 9 (Id. at (Id. at 166-67.) In February and March 2001, David exchanged emails with Petitioner at his email address, REL®LAISLAW.COM. (Id. at 170- 10 76.) 11 Petitioner discussed David's case, answered a question about a 12 legal matter, told David that he would "evaluate" another issue, 13 and suggested filing a new lawsuit against other parties. David provided information for use in his case, and (Id.) 14 Although David was told that Petitioner and his associates worked 15 as a team, David believed that Petitioner was his attorney. 16 at 182.) 17 consulting and being an advisor and giving me legal advice, and 18 [Attorney Schroeter] would go ahead and show up" in court. 19 at 181.) 20 would be "best" if Petitioner "worked in the office orchestrating 21 all the legal ramifications and whatever was going to happen 22 legally, and that other people would go to court." 23 (Id. David testified that he thought Petitioner "would be (Id. David also testified that Petitioner had said that it (Id. at 187.) David first discovered that Petitioner was not a licensed 24 attorney in February 2001. 25 early to mid-2001, Petitioner continued to assure David that 26 27 "he' [d] won mostly all of the cases" like David's and that it "look[ed] very positive." 28 to early 2001, David paid Petitioner approximately $25,000 in (Id. at 185-87.) (Id. at 189.) 23 Nevertheless, in From late November 2000 1 2 fees. (Id. at 168-69.) Jeanne testified that she first met Petitioner in December 3 2000, and between then and April 2001, she met with Petitioner in 4 person up to a dozen times and spoke with him on the phone many 5 times. 6 told Jeanne not to worry, that he was an "expert" and had "done 7 this many times before" and described winning similar cases for 8 other clients. 9 provide him with documents "so that he could use [them] as (Id. at 192-94.) During those conversations, Petitioner (Id. at 194-95.) Petitioner asked Jeanne to 10 evidence to present in court." 11 said he was the "head attorney," so it was more "effective" for 12 him to be in the office. 13 Petitioner's paralegal told Jeanne that Petitioner would not be 14 able to appear at an upcoming court date, and when Jeanne became 15 worried, Petitioner came on the line and said there was "no 16 problem," he was still her attorney, it would "all be handled" 17 and was "going along as scheduled," and there was "nothing to 18 worry about." 19 (Id. at 202.) (Id. at 197-98.) Petitioner also In April 2001, (Id. at 197.) Attorney Gerald Phillips represented David's former wife. 20 (Lodged Doc. 2, 2 Rep.'s Tr. 225-26.) 21 day before David's deposition, Phillips spoke with Petitioner, 22 who said he was not going to appear with David at the deposition 23 and asked that Phillips "not disclose to [David] any issues that 24 he had with the state Bar." 25 Counts 10 & 11 - Michael Bakhtari and Attorneys Richard Thomas 26 and Jill Church 27 28 On December 10, 2000, the (Id. at 228.) Michael Bakhtari contacted Petitioner in June 2000 because he needed a lawyer to help him with a child custody matter. 24 -' 1 2 3 4 5 6 7 8 9 10 (Lodged Doc. 2, 2 Rep.'s Tr. at 351.) Petitioner began acting as Bakhtari's lawyer and gave him advice on how to proceed with his case. (Id. at 354.) Petitioner told Bakhtari that he was "one hell of an attorney" who "knows how to talk to judges" and that he was going to have a dozen attorneys working for him. 357.) (Id. at Between December 1, 2000, and mid-April 2001, Bakhtari continued to discuss his case with Petitioner, but Petitioner never disclosed that he had been suspended from the Bar, and Bakhtari believed Petitioner was still his attorney. 355-56, 359-61, 369, 373.) (Id. at In April 2001, Bakhtari signed an 11 agreement to hire Petitioner as a "consultant," which Bakhtari 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 understood to mean that Petitioner would "go to civil court" and "get a judgment against the defendant." (Id. at 368-69.) Attorney Thomas testified that he represented Bakhtari from the spring of 2000 through the early part of 2001. (Id. at 379.) Thomas and his associate, Jill Church, associated with Petitioner "because of his expertise in international law" and filed a document with the court indicating that Petitioner was serving as counsel with them. (Id. at 383-84, 387-88.) Beginning in 2000 and continuing into 2001, Petitioner advised Thomas and Church regarding Bakhtari's case. (Id. at 383-84.) At no time prior to March 2001 did Petitioner inform Thomas or Church that he had been suspended from the Bar. (Id. at 387-88.) Attorney Church testified that she discussed Bakhtari's case with Petitioner from 2000 into 2001, and that between December 1, 2000, and March 6, 2001, Petitioner never revealed that he was no longer entitled to practice law. Count 12 - Donna Turnbow 25 (Id. at 390-91, 394.) 1 Turnbow retained Petitioner in August 2000 because she was 2 looking for a lawyer to handle her child custody case. 3 470.) 4 that he was going to be suspended from the Bar. 5 In December 2000, Turnbow went to Petitioner's office for a 6 deposition. 7 8 9 suspended and so attorney Schroeter would ask the questions in (Id. at Before December 1, 2000, Petitioner never told Turnbow (Id.) (Id. at 472.) Petitioner told Turnbow that he had just been the deposition, but Petitioner would "guide him through." (Id.) Petitioner told Turnbow that he could not perform the deposition 10 or appear in court for her, but he would still be the "main 11 attorney" on her case. 12 on January 18, 2001; prior to that date Turnbow spoke and emailed 13 with Petitioner about her case "numerous times," but she never 14 spoke with Schroeter. 15 that "everything was in control" and he was "handling everything 16 appropriately." 17 Turnbow to sign a substitution of attorney and back-date it to 18 December 2000, but Turnbow refused. 19 Count 13 - Christian Fuentes 20 (Id.) Schroeter attended another hearing (Id. at 475.) (Id. at 476.) Petitioner assured Turnbow In March 2001, Petitioner asked (Id. at 476-78.) Fuentes testified that Petitioner represented him from 1996 21 through 2001 in divorce and international child custody cases and 22 that he had paid Petitioner approximately $108,000. 23 2, 1 Rep.'s Tr. at 54.) 24 2001, Fuentes met with Petitioner about five times, had several 25 telephone conferences, and exchanged emails. 26 63, 89.) 27 strategy" with Petitioner and relied upon his advice. 28 56-63, 89.) (Lodged Doc. Between December 1, 2000, and March 18, (Id. at 56-57, 59- Fuentes discussed his pending legal matters and "case 26 (Id. at 1 On December 16, 2000, Petitioner sent Fuentes a 2 substitution-of-attorney form. 3 that, Fuentes met with Petitioner to discuss the substitution, 4 5 and Petitioner said that he had been suspended and couldn't 6 7 8 9 practice law anymore. (Id. at 61.) (Id. at 76.) Sometime after After Petitioner was suspended, Fuentes understood that a new lawyer would represent him but he "would still get legal advice from [Petitioner] because he was familiar with the case." (Id. at 81, 83-84.) Count 14 - Michael Camunas 10 Camunas testified that Petitioner began representing him in 11 an international paternity suit in April 2000. 12 some point, Petitioner said that he would be working with 13 attorney Schroeter, but Camunas never met Schroeter. 14 418.) 15 Camunas that he was suspended or had resigned from the Bar. 16 at 418-19.) 17 Petitioner exchanged emails about garnishment papers and 18 Camunas's case. 19 Count 16 - Belinda Hunt 20 (Id. at 416.) At (Id. at From December 2000 through 2001, Petitioner never told (Id. In January, February, and March 2001, Camunas and (Id. at 420-22.) Hunt testified that she met with Petitioner on about January 21 19 and 22, 2001, because she was separated from her husband and 22 seeking legal counsel. 23 Hunt asked Petitioner about alimony, child support, and what the 24 course of action should be, and Petitioner gave her calculations 25 of what kind of support she would receive. 26 Petitioner did not tell Hunt that he was suspended or had 27 resigned from the Bar. 28 Petitioner told Hunt that he was going to focus his practice on (Lodged Doc. 2, 3 Rep.'s Tr. at 510-11.) (Id. at 511-12.) 27 (Id. at 513.) At a third meeting, 1 international custody cases and no longer wanted to handle 2 divorces, and that attorney Schroeter would be handling her case 3 "under [Petitioner's] direction." 4 5 6 7 that she understood that Petitioner would still be handling her (Id. at 517.) Hunt testified case and that Schroeter would work under Petitioner's direction. (Id. at 520.) "Ron Lais." Hunt paid Petitioner $5200 in a check made out to (Id. at 521-22.) Petitioner never revealed that he 8 was no longer entitled to practice law, and Hunt did not discover 9 that fact until a district attorney investigator called her. 10 (Id. at 530-31.) 11 Count 19 - Peter Mendez 12 Mendez was referred to Petitioner in January 2002, when he 13 was searching for a new attorney to represent him in a child 14 custody case. 15 phone conversation, Petitioner said that he believed he could 16 help Mendez with his case, but Petitioner did not reveal that he 17 was not a licensed attorney. 18 Petitioner told Mendez that he "had a lot of experience in child 19 custody matters" and would handle Mendez's case. 20 401.) 21 wife to tell her that he was representing Mendez. 22 99.) 23 (Lodged Doc. 2, 2 Rep.'s Tr. at 395-96.) (Id. at 397.) In a In January 2002, (Id. at 398-99, At the end of the meeting, Petitioner called Mendez's ex(Id. at 398- Attorney Schroeter accompanied Mendez to court the following 24 week. 25 going to represent him but that Petitioner could not always be in 26 court at a given time. 27 Petitioner, and Schroeter, Schroeter asked Petitioner what he 28 should do in Mendez's case and Petitioner advised him. (Id. at 403-04.) Mendez believed that Petitioner was (Id. at 408.) 28 In a meeting among Mendez, (Id. at 1 410.) 2 3 4 5 for the filing of certain documents, and in March 2005, was not authorized to practice law. 6 Count 21 - 7 8 9 Mendez's legal matter was resolved in February 2002 except Petitioner agreed to complete and file child custody orders. (Id. at 411-14.) At no time did Petitioner inform Mendez that he (Id. at 406.) Zachariah Patrick and Terri Flynn Patrick testified that he contacted Petitioner in January 2003 because he needed an attorney skilled in international custody law to help him gain custody of his daughter, who lived 10 in Canada. 11 fiancée, Flynn, met with Petitioner on January 6, 2003. 12 494-95.) 13 experience in those matters, it "wouldn't be a problem," they 14 should be able to get an ex parte order very rapidly, and Patrick 15 should have custody of his daughter within a week. 16 Petitioner said he would hire an attorney in Canada but that 17 Petitioner would be "driving the bus" and "controlling and 18 contacting" that attorney. 19 Petitioner in early March 2003. 20 time, Petitioner never told Patrick that he was unauthorized to 21 practice law. 22 (Lodged Doc. 2, 3 Rep.'s Tr. at 494.) He and his (Id. at Petitioner told Patrick that he had plenty of (Id. at 497-98.) (Id. at 496.) Patrick terminated (Id. at 499-501.) Up until that (Id. at 499.) Flynn, an assistant U.S. Attorney, testified that she 23 accompanied Patrick to a meeting with Petitioner on January 6, 24 2003. 25 international child law specialist and ran a consulting business. 26 (Id. at 484.) 27 jurisdictions who would work with him to file lawsuits and that 28 it was better to go through Petitioner because "he knew all about (Id. at 483.) Petitioner said that he was an Petitioner said he could retain attorneys in other 29 1 2 3 attorney] to prepare the documents for the attorney to file in 4 -- the laws of other countries and would work with [the other immediately have an ex parte hearing set and that he would be 5 able to get Patrick's daughter out of Canada and with Patrick 6 within a week. 7 "retired" attorney but that he would be "driving the bus" and 8 that neither Flynn nor Patrick was to contact the attorney in 9 Canada. the other district." (Id. at 484-85.) Petitioner said he would ..J 10 11 (Id. at 485.) Petitioner said that he was a (Id. at 486.) Count 30 - Lewis and Lissette Perales 10 Lissette testified that she found Petitioner's information 12 after searching the internet for a lawyer to help with her 13 husband's, Lewis's, child support case. 14 Tr. at 213.) 15 and Lissette and Lewis met with Petitioner on September 18. 16 at 213, 215.) 17 not practicing in California at that time and was instead acting 18 as a "child consultant." 19 had lawyers working for him who would help Lissette and Lewis, 20 and he "would be advising [Lissette and Lewis] on what to do." 21 (Id. at 216.) 22 received paperwork from San Diego County asking for information 23 about his wages; Petitioner had Lewis fax the documents to him 24 and then told him not to worry about them because Lewis had not 25 yet been served. (Lodged Doc. 2, 1 Rep.'s Lissette called Petitioner in early September 2002, (Id. Petitioner told them that he was a lawyer but was (Id. at 214-15.) Petitioner said he Lissette testified that in December 2003, Lewis (Id. at 217-18.) Lissette testified that she 26 27 10 28 Because Lissette and Lewis Perales share the same last name, the Court refers to them by their first names. 30 --: l 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 never spoke to another attorney and communicated only with Petitioner. (Id. at 218.) Lewis testified that he first met with Petitioner on September 18, 2002, and that Petitioner said that he was a lawyer (Lodged Doc. 2, 1 Rep.'s but could not practice in California. Tr. at 204.) Petitioner nevertheless said that he could handle Lewis's child custody case. (Id. at 205.) In September 2002, Petitioner sent Lewis a proposed pleading, which Lewis signed and returned to Petitioner. (Id. at 209.) Another time, Petitioner said Lewis should forward any papers to him after he was served and Petitioner "would take care of it." (Id. at 210-11.) Petitioner's Testimony Petitioner testified at trial. Among other things, he testified that he was a child custody expert and never held himself out as entitled to practice law after he had lost his license. 87.) (Lodged Doc. 2, 3 Rep.'s Tr. at 545-48, 553-56, 585- Petitioner also claimed to have been qualified as an expert in Orange County cases but said he couldn't remember any of the case names or numbers. (Id. at 601.) DISCUSSION11 As a preliminary matter, Respondent asserts that ground two which asserts that Petitioner's sentence constituted cruel and unusual punishment - is procedurally defaulted because the state superior court denied Petitioner's claim on the grounds that his petition was untimely and successive. 11 (Answer Mem. P. & A. at The Court has rearranged the order in which it addresses Petitioner's claims from that followed by the parties, in order to avoid repetition and for other reasons. 31 1 29-31 (citing Lodged Doc. 19) .) 2 Petitioner generally "denies that any of the claims set forth in his Petition are procedurally 3 defaulted on any grounds." (Traverse at 1.) Moreover, although 4 Petitioner does not dispute that his February 3, 2010 state 5 habeas petition was untimely, he conclusorily claims that his 6 filing of successive petitions should be excused because his 7 first and second rounds of habeas concerned "largely separate and 8 distinct subjects," and he "did everything he could under the 9 10 11 circumstances to bring his claims in a timely fashion." (Traverse at 26, 29.) In order for a claim to be procedurally defaulted for 12 federal habeas corpus purposes, "the application of the state 13 procedural rule must provide an adequate and independent state 14 law basis on which the state court can deny relief." 15 California, 202 F.3d 1146, 1151 (9th Cir. 2000) 16 internal quotation marks omitted) . 17 to be 'independent,' the state law basis for the decision must 18 not be interwoven with federal law." 19 F.3d 702, 704 (9th Cir. 2001); cf. Morales v. Calderon, 85 F.3d 20 1387, 1393 (9th Cir. 1996) 21 if the state decision 'fairly appears to rest primarily on 22 federal law, or to be interwoven with the federal law.'" 23 Coleman v. Thompson, 501 U.S. 722, 735, 111 S. Ct. 2546, 2557, 24 115 L. Ed. 2d 640 (1991)). 25 to be "adequate," the state courts must employ a "firmly 26 established and regularly followed state practice." 27 Georgia, 498 28 935 (1991). u.s. Park v. (citations and "For a state procedural rule La Crosse v. Kernan, 244 ("Federal habeas review is not barred (quoting In order for a state procedural bar Ford v. 411, 423-24, 111 S. Ct. 850, 857, 112 L. Ed. 2d 32 1 Under California law, a petition must be filed without 2 "substantial delay," which is "measured from the time the 3 4 5 petitioner or his or her counsel knew, or reasonably should have 6 77 Cal. Rptr. 2d 153, 159-60 (1998); accord Clark, 5 Cal. 4th at 7 8 9 765. known, of the information offered in support of the claim and the legal basis for the claim." In re Robbins, 18 Cal. 4th 770, 780, A petitioner who "belatedly presents" a collateral attack must explain that delay, particularly when he has made prior attacks on the validity of the judgment. Clark, 5 Cal. 4th at 10 765. 11 timeliness requirement qualifies as an independent state ground 12 adequate to bar habeas relief in federal court. 13 Martin, 562 U.S. 14 (2011) . 15 The U.S. Supreme Court has held that California's Walker v. , 131 S. Ct. 1120, 1128-30, 179 L. Ed. 2d 62 "Once the state has adequately pled the existence of an 16 independent and adequate state procedural ground as an 17 affirmative defense, the burden to place that defense in issue 18 shifts to the petitioner." 19 (9th Cir. 2003) . 20 asserting specific factual allegations that demonstrate the 21 inadequacy of the state procedure, including citation to 22 authority demonstrating inconsistent application of the rule." 23 Id. 24 existence of an independent and adequate state procedural ground 25 and the petitioner has not satisfied his burden of placing the 26 procedural-default defense at issue, habeas review is not barred 27 if the petitioner can demonstrate cause for his procedural 28 default and actual prejudice as a result of the alleged violation Bennett v. Mueller, 322 F.3d 573, 586 The petitioner can satisfy this burden "by Assuming that the respondent has adequately pled the 33 1 of federal law. 2 3 4 5 6 7 8 9 at 580. 10 11 See Coleman, 501 U.S. at 750; Bennett, 322 F.3d To satisfy his burden of demonstrating cause, the petitioner must show "that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Coleman, 501 u.s. at 753. To show actual prejudice, the petitioner must show that the errors at trial "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 102 S. Ct. 1584, 1596, 71 L. Ed. 2d 816 (1982) (emphasis in original) . In July 2005, Petitioner was convicted of 25 counts of 12 felony unlawful practice of law, and in October 2005, he was 13 sentenced to 14 years in state prison. 14 Tr. at 716-19; Lodged Doc. 2, 4 Rep.'s Tr. at 683-84, 756-57.) 15 In May 2008, the court of appeal reversed some of Petitioner's 16 convictions and remanded for resentencing. 17 January 2009, Petitioner was resentenced to 12 years 8 months in 18 state prison. 19 (Lodged Doc. 1, 4 Clerk's (Lodged Doc. 5.) In (Lodged Doc. 8, 1 Clerk's Tr. at 298-99.) Between May and December 2009, Petitioner filed four habeas 20 petitions in the state courts. 21 Petitioner did not raise ground two until his fifth habeas 22 petition, which he filed in the superior court in February 2010, 23 nearly five years after his convictions and over a year after his 24 resentencing. 25 both claims in the petition on the same two procedural grounds: 26 (Lodged Docs. 11, 13, 15, 17.) (Lodged Doc. 18 at 4.) The superior court denied The petition is denied on grounds it is untimely and 27 successive. 28 long delay in presenting these claims of error or his Petitioner does not adequately explain the 34 1 failure to raise these issues in his prior petition for 2 writ of habeas corpus filed with the court last year. 3 petitioner must explain and justify any significant delay 4 5 6 7 in seeking habeas corpus relief. A Absent justification for the failure to present all known claims in a single, timely petition for writ of habeas corpus, untimely and successive petitions will be summarily denied. (In re 8 Clark (1993) 5 Cal. 4th 750, 765, 797.) 9 not delay filing a petition for writ of habeas corpus 10 until 11 Stankewitz 12 A petitioner may Clark, supra, 5 Cal. 4th at 782.) the judgment (1985) is affirmed 40 Cal. on appeal. 3d 391, 396, fn. (In 1; re In re 13 Neither of petitioner's two claims of error amount 14 to a fundamental miscarriage of justice sufficient to 15 overcome 16 consideration of untimely and successive requests for 17 habeas 18 requests 19 entertained where it is demonstrated that a fundamental 20 miscarriage of justice occurred in any proceeding leading 21 to conviction and sentence. 22 797-98.) the corpus for procedural relief. habeas bar Untimely corpus against and/or relief will judicial successive only be (In re Clark, 5 Cal. 4th at 23 (Lodged Doc. 19 at 1-2.) 24 court summarily denied subsequent petitions raising ground two. 25 (Lodged Docs. 21, 22, 23, 24.) 26 The state court of appeal and supreme Ground two is procedurally defaulted and thus the Court does 27 not consider its merits. 28 and adequate state procedural ground barring review of ground two Respondent has asserted an independent 35 1 (Answer Mem. P. & A. at 29-31), and Petitioner has failed to 2 discharge his burden by demonstrating the inadequacy of 3 California's timeliness rule - indeed, Petitioner does not even 4 argue that the rule is in any way inadequate or inconsistently 5 applied. 6 Petitioner can show cause and prejudice for the default. 7 8 9 Petitioner argues that his fifth habeas petition was not 10 As a result, the claim is procedurally barred unless successive because it pertained to the resentencing, whereas his first four petitions pertained to the trial and original sentencing. (Traverse at 26-27.) But Petitioner filed his first 11 four petitions months after he was resentenced, and thus at that 12 time Petitioner was aware of, and could have raised, any issues 13 related to resentencing. 14 everything he could under the circumstances to 15 in a timely fashion," but he alleges no facts in support of that 16 assertion. 17 unidentified impediment, he was nevertheless able to file four 18 separate habeas petitions in the state courts before finally 19 raising ground two in his fifth petition. 20 failed to overcome the default. 21 address ground two on the merits. 12 Petitioner also asserts that he "did (Traverse at 29.) b~ing his claims Moreover, despite this Thus, Petitioner has Accordingly, this Court does not See Paulino v. Castro, 371 22 23 24 25 26 27 28 12 The Supreme Court has recognized an exception to the requirement that the petitioner demonstrate both cause and prejudice: if he can demonstrate that failure to consider the procedurally defaulted claim would result in a fundamental miscarriage of justice because he is actually innocent of the crimes of which he was convicted. See Coleman, 501 U.S. at 750. In order to qualify for this "miscarriage of justice" exception, however, the petitioner must "support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, 36 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F.3d 1083, 1093 (9th Cir. 2004) (finding claim procedurally defaulted because petitioner "nowhere argues" inadequacy of state procedural ground "[n]or does he suggest that there was cause for his procedural default"). Respondent also asserts that ground one, alleging IAC, which Petitioner also raised in his fifth state habeas petition and which the state court also rejected as untimely and successive, is procedurally defaulted. (Answer Mem. P. & A. at 24-26.) As discussed above in the Standard of Review section, however, all but one of the subclaims of ground one either were raised in the state supreme court before Petitioner filed his fifth habeas petition or were not raised in the fifth habeas petition. Lodged Doc. 17, 18.) (See The superior court's denial of the fifth petition as untimely and successive therefore could not have resulted in a procedural bar as to those claims. Only one subclaim of ground one - that trial counsel was constitutionally ineffective for failing to follow Petitioner's "instructions" was first raised in the fifth petition and therefore is arguably procedurally barred. Because it is easier to dispose of that subclaim on the merits, however, the Court has not addressed or critical physical evidence- that was not presented at trial." Schlup v. Delo, 513 U.S. 298, 324, 115 S. Ct. 851, 865, 130 L. Ed. 2d 808 (1995) (recognizing that such evidence "is obviously unavailable in the vast majority of cases"). Further, to establish the requisite probability that a constitutional violation has resulted in the conviction of one who is actually innocent, "the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id. at 327. Here, Petitioner does not qualify for this exception both because he has not asserted it and because he has not introduced any new reliable evidence. 37 u.s. 1 Respondent's argument. 2 Franklin, 290 F.3d at 1232 (noting that federal courts "are 3 empowered to, and in some cases should, reach the merits of 4 habeas petitions if they are, on their face and without regard to 5 any facts that could be developed below, clearly not meritorious 6 despite an asserted procedural bar"); see also Smith, 407 F. 7 8 9 App'x at 237-38 ("We need not address the state's procedural 10 See Lambrix, 520 at 524-25; default and exhaustion arguments because [the] petition is clearly without merit."). I. Habeas relief is not warranted on Petitioner's sufficiency- 11 of-the-evidence claim 12 Petitioner contends in ground three of the Petition that the 13 evidence was insufficient to support his convictions because 14 "each alleged victim was represented by properly licensed counsel 15 and signed an engagement agreement acknowledging [his] role as a 16 qualified expert consultant in [his] field (child custody and 17 divorce)," and he "never held [himself out] as anything but a 18 consultant." 19 (Pet. at 6.) The Due Process Clause of the 14th Amendment of the U.S. 20 Constitution protects a criminal defendant from conviction 21 "except upon proof beyond a reasonable doubt of every fact 22 necessary to constitute the crime with which he is charged." 23 re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 24 368 (1970) . 25 introduced at trial was insufficient to support the jury's 26 findings states a cognizable federal habeas claim. 27 Collins, 506 U.S. 390, 401-02, 113 S. Ct. 853, 861, 122 L. Ed. 2d 28 203 In Thus, a state prisoner who alleges that the evidence (1993). 38 Herrera v. - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In considering a sufficiency-of-the-evidence claim, a court must determine 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, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979) (emphasis in original). California's standard for determining the sufficiency of evidence to support a conviction is identical to the federal standard enunciated in Jackson. People v. Johnson, 26 Cal. 3d 557, 576, 162 Cal. Rptr. 431, 443 (1980). On habeas review, a state court's resolution of a sufficiency-of-the-evidence claim is evaluated under 28 U.S.C. § 2254(d) (1) rather than§ 2254(d) (2). Juan H. v. Allen, 408 F.3d 1262, 1274-75 (9th Cir. 2005). A federal habeas court reviews a sufficiency claim with an additional layer of deference, in that relief is not warranted unless the state court's application of Jackson was "objectively unreasonable." Id. at 1274-75 & n.13. Thus, a federal habeas petitioner "faces a heavy burden when challenging the sufficiency of the evidence used to obtain a state conviction on federal due process grounds." Id. at 1274. Under Jackson, a federal habeas court "makes no determination of the facts in the ordinary sense of resolving factual disputes." 671, 678 (9th Cir.) Sarausad v. Porter, 479 F.3d (internal quotation marks omitted), vacated in part, 503 F.3d 822 (9th Cir. 2007), rev'd on other grounds by Waddington v. Sarausad, 555 U.S. 179, 129 S. Ct. 823, 172 L. Ed. 2d 532 (2009). Rather, the reviewing court "must respect the province of the jury to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences 39 1 from proven facts by assuming that the jury resolved all 2 conflicts in a manner that supports the verdict." 3 F.3d at 1008 (internal quotation marks omitted). 4 5 6 7 8 9 10 Jones, 114 The reviewing court "must look to state law for the substantive elements of the criminal offense," although the "minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law." v. Johnson, 566 U.S. 978 (2012) Coleman , 132 S. Ct. 2060, 2064, 182 L. Ed. 2d (internal quotation marks omitted) . Before January 1, 2003, section 6126(b) provided that 11 [a]ny person who has been involuntarily enrolled as an 12 inactive member of the State Bar, or has been suspended 13 from 14 disbarred, 15 charges pending, 16 himself or 17 entitled to practice law, is guilty of a crime punishable 18 by imprisonment in the state prison or county jail. membership or from has the State resigned and herself from thereafter out as Bar, the or State advertises practicing or has been Bar with or holds otherwise 19 Cal. Bus. 20 section 6126(b) was amended to include "practic[ing] or 21 attempt[ing] to practice law" as among the punishable offenses. 22 2002 Cal. Legis. Serv. Ch. 394. 23 practiced or attempted to practice law without being an active 24 member of the state Bar was guilty of only a misdemeanor under 25 section 6126 (a) . 26 27 28 & Prof. Code§ 6126(b) Cal. Bus. & (2002). As of January 1, 2003, Previously, any person who Prof. Code § 6126 (a) (2002) . The court of appeal denied Petitioner's claim: [Petitioner] challenges the sufficiency of the evidence he held himself out as an attorney on most 40 1 counts 2 agreements signed by his clients did not identify him as 3 an attorney, 4 "child custody and visitation 5 [the] client . . . 6 7 argument is that, 8 "main 9 establishes . because the applicable written retainer but instead expressly stated he provided " consulting services to (Italics added.) The flaw in this despite the terms of the agreement, [Petitioner's] actions of assuring clients he was their attorney" that or was he "directing" was not other merely attorneys acting as a 10 consultant, but rather held himself out as entitled to 11 practice law. 12 immunize himself with a misleading written disclaimer 13 that was at odds with his actual conduct. 14 In sum, (Lodged Doc. 5 at 16~) [Petitioner] was not entitled to Elsewhere, the court of appeal noted that 15 even when [Petitioner] advised some clients he had been 16 suspended by the bar, he held himself out as nevertheless 17 authorized to practice law by directing less experienced 18 attorneys on his clients' behalf. 19 represented to his clients he was entitled to practice 20 law in this manner so long as he did not, for example, 21 defend depositions or appear in court. 22 23 His actions impliedly ( Id. at 20.) The court of appeal's rejection of this claim was not 24 objectively unreasonable. 25 Petitioner held himself out as entitled to practice law. 26 Petitioner failed to inform attorneys, clients, and potential 27 clients that he had been suspended or had resigned from the Bar. 28 Petitioner also actively fostered the impression that he was a The evidence amply established that 41 1 practicing attorney by, for example, telling his victims that he 2 could handle their cases and file or prepare documents on their 3 behalf, advising them regarding case strategy, and discussing the 4 5 status of their cases. he would direct or guide other attorneys handling their case, he 6 was the "head attorney," or he preferred to stay in the office 7 8 9 while his other attorneys made court appearances. Petitioner told some of his victims that Even when Petitioner admitted that he had been suspended or claimed to be "retired" - which usually occurred well into the representation 10 he nevertheless gave assurances that led his victims to believe 11 he was still entitled to dispense legal advice and prepare legal 12 documents. 13 sufficient to show that he held himself out as entitled to 14 practice law. 15 (lOth Cir. 2012) 16 conviction for wire fraud under 18 U.S.C. 17 other things, by "[u]sing terms such as 'attorneys,' 18 'practice,' 19 listing his email address as hkieffer@dcounsel.com, Defendant 20 undoubtedly designed the content of his website to give the 21 impression that he was a criminal defense attorney authorized to 22 engage in the practice of law"); United States v. Kieffer, 621 23 F.3d 825, 832-33 (8th Cir. 2010) 24 nonattorney's conviction for mail fraud because he had "devised a 25 scheme to defraud others into believing he was a licensed 26 attorney" by, among other things, bragging "of an 85% success 27 rate in [28 U.S.C.] 28 Cal. 3d 762, 770-71, 125 Cal. Rptr. 889, 893-94 (1975) Petitioner's conduct was therefore more than Cf. United States v. Kieffer, 681 F.3d 1143, 1156 (sufficient evidence supported nonattorney's 'defense,' § § 1343 because, among 'firm,' 'representation,' and 'advocacy,' and (sufficient evidence supported 2255 motions"); see also In re Cadwell, 15 42 (adopting 1 discipline recommendation when, among other things, suspended 2 attorney employed by attorney as law clerk held himself out to 3 both client and opposing counsel as a practicing attorney by (1) 4 meeting with client on behalf of law firm; (2) engaging in 5 settlement negotiations with opposing counsel on that client's 6 behalf; (3) signing letter to opposing counsel in employer 7 attorney's name "by" suspended attorney; and (4) failing to 8 clarify his status as legal assistant); Farnham v. State Bar, 17 9 Cal. 3d 605, 612, 131 Cal. Rptr. 661, 665 (1976) (adopting 10 discipline recommendation when suspended attorney held himself 11 out as entitled to practice law by stating that he would accept 12 case and complaint would be filed yet failed to inform client he 13 was under suspension); In re Naney, 51 Cal. 3d 186, 195, 270 Cal. 14 Rptr. 848, 853 (1990) 15 when, among other things, suspended attorney impliedly "held 16 himself out as a person entitled to practice law" when he 17 submitted resume for position as in-house counsel, resume stated 18 attorney was admitted to State Bar but did not acknowledge he was 19 suspended from practice, and attorney did not mention suspension 20 during job interview) . 21 (adopting recommendation of disbarment As the court of appeal found, sufficient evidence supported 22 Petitioner's convictions even when his victims were represented 23 by other attorneys or signed agreements stating that Petitioner 24 was acting as a "consultant." 25 disclaimer was contrary to Petitioner's statements to his victims 26 that he was handling their legal matters or directing and guiding 27 the other attorneys. 28 Petitioner's convictions, and the state court's rejection of this As the court observed, the written Thus, sufficient evidence supported 43 1 claim was not objectively unreasonable. 2 not entitled to habeas relief on it. Petitioner is therefore 3 4 II. Habeas relief is not warranted on Petitioner's claim that 5 his conviction constituted an ex post facto application of 6 law 7 8 Petitioner argues in ground five of the Petition that section 6126(b) was a "fundamentally defective statute" when he 9 was charged and that he was "prosecuted and convicted under the 10 amended statute, which was not in effect at the time of the 11 alleged offenses." 12 he claims, his convictions violated the Ex Post Facto clause. 13 (Pet. at 6; see also Traverse at 33.) Thus, The Constitution provides that "[n]o State shall pass 14 any . . . ex post facto Law." 15 violates the Ex Post Facto Clause if it (1) punishes as criminal 16 an act that was not criminal when committed; 17 punishment greater than when the crime was committed; or (3) 18 deprives a person of a defense available at the time the crime 19 was committed. 20 Ct. 2715, 2719, 111 L. Ed. 2d 30 (1990); Beazell v. Ohio, 269 21 U.S. 167, 169-70, 46 S. Ct. 68, 68-69, 70 L. Ed. 216 (1925). 22 Ex Post Facto Clause "is aimed at laws that retroactively alter 23 the definition of crimes or increase the punishment for criminal 24 acts." 25 504-05, 115 S. Ct. 1597, 1601, 131 L. Ed. 2d 588 (1995) 26 (citations and internal quotation marks omitted) . 27 an ex post facto violation, a petitioner must show that a 28 retroactive change in the law created a "sufficient risk of U.S. Const. art. I, § 10. A law (2) makes a crime's Collins v. Youngblood, 497 U.S. 37, 42, 110 S. The California Dep't of Corr. v. Morales, 514.U.S. 499, 44 To establish 1 increasing the measure of punishment"; a "speculative and 2 3 attenuated possibility" is insufficient. Garner v. Jones, 529 U.S. 244, 256, 120 S. Ct. 1362, 1370, 146 L. 4 Ed. 2d 236 (2000) 5 6 7 application of [the law at issue] increases, to a significant Id. at 508-09; see also ("Without knowledge of whether retroactive degree, the likelihood or probability of prolonging [the prisoner's] incarceration, his claim rests upon speculation."). 8 As stated in Section I, before January 1, 2003, section 9 6126(b) provided that an attorney who had been suspended or had 10 resigned from the State Bar with charges pending "and thereafter 11 advertises or holds himself or herself out as practicing or 12 otherwise entitled to practice law, is guilty of a crime 13 punishable by imprisonment in the state prison or county jail." 14 Cal. Bus. 15 meanwhile, provided that "[a]ny person" who was not an active 16 member of the Bar who held himself out as entitled to practice 17 law, "or otherwise practic[es] law," was guilty of a misdemeanor. 18 Id. 19 attorney could be convicted of a felony 13 for "hold [ing] himself 20 . . . 21 actually "practicing law." 22 § & Prof. Code 6126(a). § 6126 (b) (2002) . Section 6126 (a) , Thus, before 2003, a disbarred or suspended out" as entitled to practice law but only a misdemeanor for The California Legislature amended section 6126 effective 23 January 1, 2003. 24 subsection (b), the Legislature explained that 2002 Cal. Legis. Serv. Ch. 394. With regard to 25 26 27 28 13 In California, "[a] felony is a crime that is punishable with death, by imprisonment in the state prison, or notwithstanding any other provision of law, by imprisonment in a county jail under the provisions of subdivision (h) of Section 1170." Cal. Penal Code § 17 (a) . 45 1 [e]xisting law provides that a person who holds himself 2 or herself out as practicing or entitled to practice law 3 is guilty of a crime punishable by imprisonment in the 4 state prison or county jail if he or she has been (1) 5 involuntarily enrolled as an inactive member of the State 6 7 8 Bar, (3) (2) suspended from membership from the State Bar, disbarred, or (4) has resigned from the State Bar with charges pending. 9 This bill would provide that the penal ties also 10 apply if a person meeting that criteria practices or 11 attempts to practice law. 12 Id. 13 relevant part: Thus, the amended version of section 6126(b) provided, in 14 Any person who has been involuntarily enrolled as an 15 inactive member of the State Bar, or has been suspended 16 from 17 disbarred, 18 charges pending, and thereafter practices or attempts to 19 practice law, advertises or holds himself or herself out 20 as practicing or otherwise entitled to practice law, is 21 guilty of a crime punishable by imprisonment in the state 22 prison or county jail. 23 Cal. Bus. & Prof. Code§ 6126(b) 24 25 membership or has from the resigned State from (2003) Bar, the or State has been Bar with (emphasis added) . 14 The court of appeal denied Petitioner's claim that his conviction violated ex post facto principles. After noting that 26 27 28 14 Section 6126 (b) 's sentencing prov1s1on has since been amended to add references to California Penal Code section 1170(h). 2011 Cal. Legis. Serv. Ch. 15. 46 1 the 2003 amendment "elevat[ed] the practice or attempted practice 2 of law by a former attorney to a felony," the court found that 3 [t]his statutory change, however, has no relevance here 4 because the information charged [Petitioner] not with the 5 actual practice of law, but with holding himself out as 6 entitled to practice, which was a felony both before and 7 after 2003. 8 The prosecutor did not attempt to prove [Petitioner] 9 actually practiced law, but rather that he represented he 10 was entitled to do so, 11 Accordingly, we see no reason to conclude the trial court 12 found 13 section 14 practice of law. 15 the information, decided the cause based on the evidence 16 presented. (Evid. Code, 17 post bar 18 application here. 19 20 [Petitioner] 6126, facto as charged in the information. guilty of violating the portion of subdivision (b) , aimed at the actual Rather, we presume the court, guided by on which § 664.) Consequently, the ex [Petitioner] relies has no (Lodged Doc. 5 at 24-25.) The court of appeal's denial of Petitioner's claim was not 21 objectively unreasonable. 22 through 4 and 6 through 18, which concerned Petitioner's 23 activities before 2003, alleged that Petitioner had "advertis[ed] 24 and h[eld] himself/herself out as practicing or otherwise 25 entitled to practice law" but did not allege that he had actually As the court of appeal found, counts 1 26 27 28 47 1 practiced or attempted to practice law. 15 (Lodged Doc. 1, 3 2 Clerk's Tr. at 556-63.) 3 a violation of section 6126(b) for conduct occurring from 2002 to 4 2003, based on either "holding himself out" as entitled to Count 19, which involved Mendez, alleged 5 practice law or actually practicing law, but the evidence for 6 that count, like the others alleging pre-2003 violations, 7 supported a finding that Petitioner held himself out as entitled 8 to practice law. 9 said that he would handle Mendez's case (Lodged Doc. 2, 2 Rep.'s For example, Mendez testified that Petitioner 10 Tr. at 397-99, 401) and told Mendez's ex-wife, in Mendez's 11 presence, that he was representing Mendez (id. at 398-99), and 12 Petitioner never revealed that he was not authorized to practice 13 law (id. at 406). 14 Indeed, the trial court, when rendering its verdict, made 15 findings consistent with the pre-2003 language of section 16 6126(b), stating that there was "more than sufficient evidence to 17 lead this court to believe beyond a reasonable doubt that 18 [Petitioner] did indeed willfully, unlawfully advertise and hold 19 himself out as practicing or otherwise entitled to practice as an 20 attorney, to practice law after having resigned from the state 21 bar with charges pending." 22 Such activity was a felony both before and after 2003 and thus 23 could not have resulted in an ex post facto application of the 24 amended statute. 25 not objectively unreasonable. (Lodged Doc. 2, 4 Rep.'s Tr. at 682.) The state court's rejection of this claim was Accordingly, Petitioner is not 26 27 28 15 Count 5 alleged a misdemeanor violation 6126 (a) . 48 of section 1 entitled to habeas relief. 2 3 III. Habeas relief is not warranted on Petitioner's egualprotection claim 4 Petitioner claims in ground four of the Petition that he was 5 denied equal protection of the law because "[s]uspended, 6 resigned, and disbarred attorneys are treated more severely than 7 laypersons who commit [unlawful practice of law]," and "[t]here 8 is no justification in fact or law for felony [unlawful practice 9 of law]." (Pet at 6.) In his Traverse, Petitioner argues that 10 "the fundamental basis of the whole concept of UPL is competency" 11 and his 25 years of experience practicing law "is evidence enough 12 that Petitioner's competence exceeds that of a layperson." 13 (Traverse at 32.) 14 should have been misdemeanors because "former lawyers are less 15 dangerous than layman [sic] when committing UPL." 16 33.) 17 Thus, Petitioner argues, his convictions (Id. at 32- The Equal Protection Clause essentially directs that all 18 persons similarly situated should be treated alike. 19 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 20 3249, 3254, 87 L. Ed. 2d 313 (1985). 21 that disadvantage a "suspect class" or impinge on a fundamental 22 right are subjected to strict scrutiny. 23 Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312, 96 24 2566, 49 L. Ed. 2d 520 (1976). 25 classification is analyzed under a "rational basis" standard of 26 review and is valid if it is rationally related to a legitimate 27 state interest. 28 rational-basis review, "[c]lassifications are set aside only if City of s. Ct. Legislative classifications Id. at 440-41; see also s. Ct. 2562, Otherwise, a legislative City of Cleburne, 473 U.S. at 440. 49 Under 1 they are based solely on reasons totally unrelated to the pursuit 2 of the State's goals and only if no grounds can be conceived to 3 justify them." 4 Ct. 2836, 2843, 73 L. Ed. 2d 508 (1982); accord Heller v. Doe, 5 6 7 8 9 509 U.S~ 312, 320, 113 S. Ct. 2637, 2642, 125 L. Ed. 257 (1993) 10 11 Clements v. Fashing, 457 U.S. 957, 963, 102 S. (under rational-basis review, classification "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification" (citation and internal quotation marks omitted)). The court of appeal rejected Petitioner's claim that the 12 California Legislature violated the Equal Protection Clause by 13 making unauthorized practice of law a misdemeanor for laymen but 14 a felony for defrocked lawyers: 15 The Legislature . 16 lawyers pose a greater danger of misleading clients that 17 they 18 deterrence was appropriate for those whose suspension or 19 disbarment demonstrates ample willingness to flout rules 20 and standards. 21 lawyers are not similarly situated, [Petitioner's] equal 22 protection argument fails. 23 v. County of El Dorado (1971) 5 Cal. 3d 480, 502 [equal 24 protection "means simply 'that persons similarly situated 25 with respect to the legitimate purpose of the law receive 26 like treatment'"].) 27 28 are entitled could reasonably conclude former to practice law and that greater In short, because nonlawyers and former (See People ex rel. Younger (Lodged Doc. 5 at 25.) The court of appeal's rejection of Petitioner's claim was 50 1 not objectively unreasonable. 2 3 4 5 Petitioner has alleged only that he is an attorney who was suspended or who resigned from the State Bar with disciplinary charges pending, not that he was discriminated against because of his membership in a suspect class. See City of Cleburne, 473 U.S. at 440-41 (distinctions 6 based on race, alienage, national origin, or sex are subject to 7 8 9 higher level of scrutiny). Thus, the California Legislature's decision to make unlawful practice of law a misdemeanor for laymen but a felony for certain former attorneys need only be 10 "rationally related to a legitimate state interest" in order to 11 survive an equal protection challenge. 12 Id. at 440. California has a legitimate interest in protecting the 13 public from harm caused by disbarred or suspended lawyers 14 providing legal services. 15 CV04-2309-PHX-SRB, 2006 WL 839162, at *7 (D. Ariz. Mar. 30, 2006) 16 (state has legitimate interest in protecting public from harm 17 caused by nonlawyers providing legal services, and "[p]rohibiting 18 disbarred lawyers from owning [legal-document-preparation] 19 businesses is rationally related to that interest"), aff'd 286 F. 20 App'x 433 (9th Cir. 2008) 21 the distinction between disbarred attorneys and people who have 22 never been attorneys is not rationally related to a legitimate 23 governmental purpose."). 24 California Legislature could rationally conclude that attorneys 25 who continue to hold themselves out to practice law even after 26 suspension, disbarment, or resignation with disciplinary charges 27 pending should be more severely penalized than laymen who engage 28 in similar conduct. See Berry v. Grau, No. ("Plaintiffs have failed to show that As the court of appeal found, the Former attorneys can more easily mislead 51 --- i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 people into believing that they are entitled to practice law than laymen can, as they may have reputations as attorneys, relationships with former clients, and the knowledge necessary to convince victims that they are able to perform legal work on their behalf. Thus, section 6126 does not violate the Equal Protection Clause, particularly given that "courts are compelled under rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends." Heller, 509 U.S. at 321. Petitioner is not entitled to habeas relief on this claim. IV. Habeas relief is not warranted on Petitioner's claim that section 6126(b) is unconstitutionally vague and overbroad Petitioner argues in ground six of the Petition that section 6126(b) is unconstitutionally vague and overbroad because it is "confusing" and "uncertain" and "does not adhere to precepts set forth by the U.S. Department of Justice and Federal Trade Commission concerning the construction of [unlawful practice of law] statutes and permissible activities to be restricted thereby." (Pet. at Attach. 6(a) .) Petitioner argues that the California Supreme Court "wrestled" with the definition of unlawful practice of law in Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal. 4th 119, 128, 70 Cal. Rptr. 2d 304 (1998), and "[t]he state courts should not be entitled to deference where their own cases are unsettled." 34.) (Traverse at 33- Petitioner also argues that the prosecutor, by making a plea offer prior to trial, "was acknowledging that the law of [unlawful practice of law] in California was unsettled." 34.) 52 (Id. at 1 2 3 4 5 6 7 Due process requires that a criminal statute "give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." Bouie v. City of Columbia, 378 U.S. 347, 351, 84 S. Ct. 1697, 1701, 12 L. Ed. 2d 894 (1964); Mendez v. Small, 298 F.3d 1154, 1158 (9th Cir. 2002). "[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary 8 people can understand what conduct is prohibited and in a manner 9 that does not encourage arbitrary and discriminatory 10 enforcement." 11 1855, 1858, 75 L. Ed. 2d 903 (1983). 12 Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. The court of appeal rejected Petitioner's claim: 13 [Petitioner] attacks section 6126 as vague and 14 overbroad but our Supreme Court has repeatedly rejected 15 these claims, most recently in Birbrower. 16 16 supra, 17 Merchants 18 (Merchants).) 19 Legislature did not define "'practice law,'" but "case 20 law explained it as "'the doing and performing services 21 in a court of justice in any matter depending therein 22 throughout its various stages and in conformity with the 23 adopted rules 24 included 17 Cal. 4th at p. Protective in 128; Corp. see, (1922) (Birbrower, ~, 189 Cal. People v. 531, 535 In Birbrower, the Supreme Court noted the of procedure."' its definition [Citation.] legal advice Merchants and legal 25 26 27 28 16 Birbrower addressed a violation of California Business and Professions Code section 6125, which is premised on the unauthorized practice of law, not section 6126(b). 17 Cal. 4th at 124. 53 1 instrument and contract preparation, whether or not these 2 subjects were rendered in the course of litigation. 3 (Birbrower, 4 court endorsed precedent concluding that the Legislature 5 "'accepted 6 supplied for the term and the declaration of the Supreme 7 Court [in Merchants] that it had a sufficiently definite 8 meaning 9 (Birbrower, at p. 128.) 10 [Petitioner] 11 dissent in Birbrower, 12 from a respected law journal, 13 carry 14 [Petitioner] argues "the complexities of modern life did 15 not exist when Merchants was decided, 16 no new salience since the Supreme Court majority turned 17 it aside. 18 (1962) 19 challenge warrants particularly close scrutiny based on 20 the First Amendment, but there is no free speech right to 21 give legal advice without a license. 22 Court (1975) 52 Cal. App. 3d 722, 727.) 23 vagueness and overbreadth arguments are therefore without 24 merit. 25 26 to the at p. 128, both need the italics added.) definition no further relies day. The Birbrower already judicially definition on Justice 11 I II Kennard's lone including her lengthy quotation Echoing but this view did not the (Auto Eguity Sales, 57 Cal.2d 450, 455.) Birbrower 11 dissent, but this point has Inc. v. Superior Court [Petitioner] contends his (Howard v. Superior [Petitioner's] (Lodged Doc. 5 at 25-26 (footnote omitted).) The court of appeal's denial of this claim was not 27 objectively unreasonable. 28 Doc. 5 at 25-26), the Birbrower majority noted that settled case As the court of appeal found (Lodged 54 1 law defined the term "practice of law" to include performing 2 services in court, giving legal advice, and preparing legal 3 instruments and contracts, whether or not those services were 4 rendered in the course of litigation. 5 6 7 8 9 doing so, the majority rejected the dissent's argument that the 17 Cal. 4th at 128. In definition was overbroad because for many professionals, such as accountants, bankers, real estate brokers, and insurance agents, "it would be impossible to give intelligent counsel without reference to legal concerns." Id. at 144. With reasoning along 10 the lines of that in Birbrower, the Ninth Circuit has found that 11 a similar definition of the term "practice of law" was not 12 unconstitutionally vague or overbroad. 13 at 433~34 (finding definition of "practice of law" in Arizona 14 Supreme Court Rule 31 not unconstitutionally vague or 15 overbroad) . 17 See Berry, 286 F. App'x 16 17 18 19 20 17 Arizona Supreme Court Rule 31 defines "practice of law" as "providing legal advice or services to or for another" by: (1) preparing any document in any medium intended to affect or secure legal rights for a specific person or entity; 21 (2) preparing or expressing legal opinions; 22 (3) representing another in a judicial, quasi-judicial, or administrative proceeding, or other formal dispute resolution process such as arbitration and mediation; 23 24 25 26 27 28 (4) preparing any document through any medium for filing in any court, administrative agency or tribunal for a specific person or entity; or (5) negotiating legal rights or responsibilities for a specific person or entity. Ariz. Sup. Ct. R. 31. 55 1 2 3 4 5 6 7 8 9 Petitioner summarily asserts that the appellate courts nevertheless "continue to wrestle" with what "practice of law" means, but he cites no facts or cases that support his assertion. (Traverse at 33-34.) Petitioner also summarily states that the prosecutor, by making a plea offer, somehow implicitly "acknowledg[ed] that the law of [unlawful practice of law] was unsettled, and that there were no criminal precedents to work from." (Traverse at 33-34.) Even assuming the truth of Petitioner's bare assertion that the prosecutor subjectively 10 believed the law to be unsettled, Petitioner fails to show how 11 that would prove that section 6126(b) is unconstitutionally vague 12 and overbroad. 13 insufficient to warrant habeas relief. 18 14 F.3d 20, 26 (9th Cir. 1994). 15 Petitioner's conclusory allegations are See James v. Borg, 24 Finally, Petitioner asserts that section 6126(b) is vague 16 and overbroad because it does not adhere to "precepts set forth 17 by the U.S. Department of Justice and Federal Trade Commission 18 concerning the construction of [unlawful practice of law] 19 statutes and permissible activities to be restricted." 20 Attach. 6(a) .) 21 to document to his Petition or Traverse, but a December 2002 22 letter submitted to the American Bar Association by the DOJ and 23 FTC was attached to a habeas petition he filed in state court. (Pet. at Petitioner did not attach a copy of the alluded- 24 18 25 26 27 28 Petitioner's 34-page Traverse includes no specific citations to the record; he occasionally cites to a lodgment, but he never provides a page citation. The lack of record cites renders his conclusory assertions all the more unacceptable. See Hernandez v. Martel, 824 F. Supp. 2d 1025, 1111 (C.D. Cal. 2011) (denying habeas claim in part because petitioner provided no record citations to support it) . 56 1 (Lodged Doc. 15 at Ex. E.) 2 "Comments on the American Bar Association's Proposed Model 3 Definition of the Practice of Law," did not discuss section 4 6126(b), nor is it binding on this Court, the California state 5 courts, or the California legislature. That letter, which concerned (See id.) Moreover, the 6 DOJ and FTC's comments concerned maintaining competition between 7 lawyers and certain nonlawyer professionals in order to benefit 8 the public, for example, real estate agents' assistance in real 9 estate transfers, accountants' preparation of tax returns, and 10 financial planners' advice as to certain governing financial 11 laws. 12 bankers, real estate brokers and others skilled in business 13 should remain able to provide advice and legal information 14 related to their particular practices without harming the 15 public." 16 to people who are not and have never been lawyers, do not apply 17 here, where a defrocked attorney, acting under the guise of an 18 "expert consultant" on the law, has collected large fees while 19 conveying to former and new clients seeking an attorney that he 20 could "handle" their cases. 21 22 23 (Id. at 1-4.) (Id. at 6.) The DOJ and FTC argued that "accountants, Those concerns, which relate exclusively Petitioner is not entitled to habeas relief on this claim. V. Habeas relief is not warranted on Petitioner's IAC claims Petitioner argues in ground one of the Petition that his 24 trial and appellate counsel were constitutionally ineffective. 25 (Pet. at 5; Traverse at 3-16.) 26 Under Strickland v. Washington, 466 U.S. 668, 687, 104 S. 27 Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984), a petitioner claiming 28 IAC must show that counsel's performance was deficient and that 57 1 the deficient performance prejudiced his defense. 2 performance" means unreasonable representation falling below "Deficient 3 professional norms prevailing at the time of trial. Id. at 688- 4 89. 5 6 7 a "strong presumption" that his lawyer "rendered adequate To show deficient performance, the petitioner must overcome assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Further, the 8 petitioner "must identify the acts or omissions of counsel that 9 are alleged not to have been the result of reasonable 10 professional judgment." 11 claim must then "determine whether, in light of all the 12 circumstances, the identified acts or omissions were outside the 13 wide range of professionally competent assistance." 14 Id. The initial court considering the Id. The Supreme Court has recognized that "it is all too easy 15 for a court, examining counsel's defense after it has proved 16 unsuccessful, to conclude that a particular act or omission of 17 counsel was unreasonable." 18 the strong presumption of adequate assistance, the petitioner 19 must demonstrate that the challenged action could not reasonably 20 be considered sound trial strategy under the circumstances of the 21 case. 22 Id. at 689. Accordingly, to overturn Id. To meet his burden of showing the distinctive kind of 23 "prejudice" required by Strickland, the petitioner must 24 affirmatively 25 show that there is a reasonable probability that, but for 26 counsel's 27 proceeding would have 28 probability is unprofessional a errors, the result been different. probability sufficient 58 of the A reasonable to undermine 1 confidence in the outcome. s. 2 Id. at 694; see also Richter, 131 3 4 5 6 7 8 9 prejudice under Strickland, the question is not whether a court 10 Ct. at 791 ("In assessing 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."). A court deciding an IAC claim need not address both components of the inquiry if the petitioner makes an insufficient showing on one. Strickland, 466 U.S. at 697. In Richter, the Supreme Court reiterated that AEDPA requires 11 an additional level of deference to a state-court decision 12 rejecting an IAC claim: 13 The 14 application of the Strickland standard was unreasonable. 15 This is different from asking whether defense counsel's 16 performance fell below Strickland's standard. 17 pivotal question 131 S. Ct. at 785. is whether the state court's The Supreme Court further explained, 18 Establishing 19 Strickland was unreasonable under§ 2254(d) 20 more difficult. 21 § 2254(d) are both "highly deferential," . . . and when 22 the two apply in tandem, 23 Strickland standard is a general one, 24 reasonable applications is substantial. 25 courts 26 unreasonableness under Strickland with unreasonableness 27 under § 2254 (d). 28 not must whether that a state court's application of is all the The standards created by Strickland and guard review is "doubly" so. against the The so the range of danger Federal habeas of equating When § 2254 (d) applies, the question is counsel' s actions 59 were reasonable. The 1 question is whether there is any reasonable argument that 2 3 counsel satisfied Strickland's deferential standard. Id. at 788 (citations omitted) . 4 A. 5 6 Petitioner argues that the performance of his trial counsel 7 8 9 Trial Counsel was constitutionally ineffective because he failed to (1) "investigate and prepare for trial"; plea bargain"; (3) (2) "communicate offer of "follow instructions in trial and post-trial proceedings"; (4) 10 counsel"; "present evidence at trial"; or (7) 11 improper evidence." 12 13 (6) 1. "return case file"; (5) "obtain replacement "object to (Pet. at 5.) Alleged failure to prepare for trial Petitioner argues that counsel failed to prepare for trial 14 by failing to develop a "theory of the case" based on 15 Petitioner's "consultancy business model." 16 Contrary to Petitioner's argument, counsel did raise, both before 17 and during trial, the argument that Petitioner was acting only as 18 a consultant and not as an attorney. 19 filed and subsequently argued a motion to dismiss averring that 20 the victims could not have believed Petitioner was entitled to 21 practice law because they received an email or letter or signed 22 an engagement agreement stating that Petitioner was not a lawyer; 23 he also argued that Petitioner was acting as an expert on child 24 custody and not as a lawyer. 25 602-05; Lodged Doc. 2, 1 Rep.'s Tr. at 22-24.) 26 called Petitioner as a witness, and Petitioner testified 27 extensively about his "business model" and the retainer 28 agreements he used as part of his "consulting operation." (Traverse at 4.) Prior to trial, counsel (Lodged Doc. 1, 3 Clerk's Tr. at 60 At trial, counsel 1 (Lodged Doc. 2, 3 Rep.'s Tr. at 545-47, 553-56, 585-87.) 2 many of the agreements to engage a "consultant" were introduced 3 into evidence at trial (see Lodged Doc. 1, 4 Clerk's Tr. at 625- 4 40 (exhibit list showing retainer agreements for Chavez, David, 5 6 Monroe, Parkkonen, Bakhtari, Snow, Patrick, Hunt)), and counsel 7 Doc. 2, 3 Rep.'s Tr. at 565-66, 584). 8 Petitioner about his relationship with attorneys McKeon, Kemp, 9 and Schroeter (id. at 549-50, 555-56, 568-70), his Indeed, questioned Petitioner about them on direct examination (Lodged Counsel also questioned 10 representations to attorney Mosher (id. at 566-67), and his 11 "consultant" arrangement with Fuentes (id. at 556-58), Chavez 12 (id. at 561-63), David and Jeanne (id. at 563-65), Lissette and 13 Lewis (id. at 566), Parkkonen (id. at 566-67), Rebecca and Jay 14 (id. at 567-69), Monroe (id. at 571, 574-75), Bakhtari (id. at 15 575-78), Mendez (id. at 578-80), Camunas (id. at 580-81), Jeremy 16 and Johnnie (id. at 581-84, 587-88), Turnbow (id. at 589-91), and 17 Patrick and Flynn (id. at 591-92). 18 more generally, that he never held himself out as entitled to 19 practice law or stated that he would "handle" anyone's case. 20 (Lodged Doc. 2, 3 Rep.'s Tr. at 548, 587.) 21 matter, Petitioner's claim fails. 22 Petitioner also testified, Thus, as a factual Petitioner also argues that his attorney was ineffective by 23 failing to conduct "meaningful cross-examination of adverse trial 24 witnesses." 25 most of the prosecution's witnesses. 26 1 Rep.'s Tr. at 73-88 (Fuentes), 150-55 (Chavez), 181-87 (David), 27 190-91 (David); Lodged Doc. 2, 2 Rep.'s Tr. at 239-40 (Mosher), 28 265-68 (Jay), 280-81 (Rebecca), 295-96 (McKeon), 323-30 (Traverse at 4.) But counsel in fact cross-examined 61 (See, e.g., Lodged Doc. 2, I (Parkkonen), 366-72 (Bakhtari), 386-87 (Thomas), 406-09 (Mendez), 2 431 (Jeremy), 455 (Johnnie); Lodged Doc. 2, 2 Rep.'s Tr. at 502- 3 08 (Patrick), 523-29 (Hunt).) Petitioner fails to state with any 4 particularity what other questions counsel should have asked or 5 6 7 8 9 IO how the responses would have changed the outcome of his trial. In any event, counsel's alleged decision not to ask certain questions on cross-examination was simply a matter of trial strategy, and Petitioner's mere criticism of counsel's tactics is insufficient to warrant habeas relief. F.3d 480, 487 (9th Cir. 2000) See Dows v. Wood, 211 ("counsel's tactical decisions at II trial, such as refraining from cross-examining a particular I2 witness or from asking a particular line of questions, are given I3 great deference"); see also Reynoso v. Giurbino, 462 F.3d 1099, I4 1113 (9th Cir. 2006) I5 such as counsel's approach to impeachment, "do not constitute I6 deficient conduct simply because there are better options"); I7 Gustave v. United States, 627 F.2d 901, 904 (9th Cir. 1980) I8 ("Mere criticis~ of a tactic or strategy is not in itself I9 sufficient to support a charge of inadequate representation."). (holding that generally, tactical decisions, 20 Petitioner also summarily asserts that counsel was 2I ineffective by failing to (1) conduct "investigation or 22 discovery"; 23 suppress evidence"; 24 testified"; 25 develop legal issues"; 26 witnesses or documents"; or (6) 27 Petitioner during trial about the progress of the case or elicit 28 potentially helpful input from Petitioner." (2) file a "pretrial Penal Code§ 1538.5 motion to (3) "prepare to examine Petitioner when he (4) prepare jury instructions "to identify and (5) issue subpoenas for "potential trial "communicate meaningfully with 62 (Traverse at 4.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner fails to allege sufficient facts in support of those claims, nor does he explain how the alleged deficient performance prejudiced his defense. Petitioner's conclusory allegations that his counsel was unprepared for trial are insufficient to warrant habeas relief. See James, 24 F.3d at 26; Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995). 2. Alleged failure to "present evidence at trial" Petitioner argues that his attorney was constitutionally ineffective by "failing to seek or produce expert testimony to support Petitioner's consultancy business model." 4, 6.) (Traverse at Even assuming that an expert was available to support Petitioner's own testimony and that counsel was deficient for not calling him or her, in light of the extensive evidence at trial including testimony that Petitioner said he would "handle" victims' legal cases, prepare legal documents, and direct the other attorneys, as well as Petitioner's own inability to recall any specific cases in which he was allegedly qualified as an expert - Petitioner cannot show prejudice. 472 F. App'x 564, 567 (9th Cir. 2012) See Martin v. Quinn, (as amended) (counsel not ineffective by failing to call expert to testify regarding how mental illness affected reliability of petitioner's confession because "given the testimony of [petitioner's] stepfather and the two eyewitnesses to the murder, it is not reasonably probable that the jury would have reached a different outcome if [petitioner's] confession had been shown to be unreliable"); see also King v. McDaniel, 357 F. App'x 856, 859 (9th Cir. 2009) (rejecting IAC claim when petitioner failed to demonstrate that prejudice resulted from counsel's failure to call expert 63 1 witness); Smith v. Schriro, 290 F. App'x 44, 46 (9th Cir. 2008) 2 (same) . 3 Although not entirely clear, Petitioner also apparently 4 5 argues in his Traverse that counsel should have presented 6 that he was an expert consultant (Traverse at 8-15); 7 8 9 and Jonnie Snow never signed a new engagement agreement or paid a evidence that (1) Petitioner's retainer agreements established (2) Jeremy fee after Petitioner's December 1, 2000 suspension (id. at 11); (3) Parkkonen was "essentially unrepresented by his own choice" 10 between December 1, 2000, and May 2, 2001 (id. at 12); 11 Petitioner told Thomas and Church that "he was no longer 12 practicing law, and working exclusively as a consultant" 13 13); 14 2000 (id. at 13-14); 15 "approached Petitioner outside the courtroom and asked if 16 Petitioner would continue to assist him with his various domestic 17 relations matters" 18 accommodation of his own with the adverse party," then terminated 19 Petitioner (id. at 15). 20 counsel did present extensive argument and evidence that 21 Petitioner was merely a "consultant" and not holding himself out 22 as entitled to practice law, and Petitioner testified that he did 23 not hold himself out as entitled to practice law. 24 is not clear how the rest of Petitioner's asserted evidence, if 25 it indeed exists, would have proved that Petitioner did not hold 26 27 himself out as entitled to practice law. 28 the district attorney's investigator, Dina Mauger, as his own (3) (id. at (4) Turnbow's fee account was depleted after December 1, (5) Fuentes, after testifying at trial, (id. at 14); and (6) Patrick "worked out an As discussed in Section V.A.1, however, Moreover, it Petitioner further asserts that counsel should have called 64 1 witness "to explain her investigative procedures"; called 2 attorney Schroeter as a witness "to explain his representation of 3 Seidman"; asked McKeon about the count regarding Jay and Rebecca 4 Seagrave; and challenged Phillips's testimony, which was 5 allegedly "highly inaccurate." 6 Mauger did not testify at the trial, and given that she 7 apparently investigated Petitioner's crimes on behalf of the 8 district attorney (Lodged Doc. 1, 1 Clerk's Tr. at 12), it was 9 reasonable for counsel not to call her as a defense witness (Traverse at 7-8, 10, 13.) 10 because doing so would pose a substantial risk of backfiring. 11 See Stanley v. Schriro, 598 F.3d 612, 636 & n.28 (9th Cir. 2010) 12 ("Capable lawyers evaluate not only what they ought to do, but 13 what they ought not to do. 14 has a considerable likelihood of backfiring, they avoid it."); 15 Brodit v. Cambra, 350 F.3d 985, 992-93 (9th Cir. 2003) 16 not ineffective for deciding not to present expert testimony that 17 would have opened door to damaging rebuttal). 18 Where action on behalf of a client (counsel In any event, to the extent Petitioner claims that counsel 19 was deficient for failing to call certain witnesses, he has 20 failed to provide sufficient proof that they were available or 21 would have provided testimony helpful to the defense. 22 211 F.3d at 486 (rejecting IAC claim based on counsel's failure 23 to interview or call alibi witness, when Petitioner provided "no 24 evidence that this witness would have provided helpful testimony 25 for the defense i.e., 26 this alleged witness"); Mack v. Sisto, No. CV 09-1638 DSF (FMO), 27 2012 WL 3018205, at *13 (C.D. Cal. May 9) 28 merit when Petitioner "has not presented any competent evidence See Dows, [he] has not presented an affidavit from 65 (IAC claim without 1 demonstrating that [potential witness] was available and willing 2 3 4 5 6 7 8 9 to testify," such as affidavit or declaration), accepted by 2012 WL 3018159 (C.D. Cal. July 23, 2012). Petitioner's self-serving allegations that certain witnesses would have provided helpful information if questioned differently on cross-examination are also insufficient to warrant habeas relief. See Dows, 211 F.3d at 486-87 (petitioner's "self-serving affidavit" was insufficient evidence of counsel's lack of preparation to prove he was constitutionally ineffective) . 10 Alleged failure to "follow instructions in trial 3. 11 and posttrial proceedings" 12 Petitioner argues that counsel failed to "follow 13 instructions in trial and post-trial proceedings." 14 In his Traverse, Petitioner argues, more specifically, that 15 counsel "failed to argue a 'cruel and unusual punishment' defense 16 as instructed by Petitioner.'" 17 Petitioner's claim fails even on de novo review. 18 (Pet. at 5.) (Traverse at 5-6, 19-20.) The Eighth Amendment contains a "narrow" proportionality 19 principle that forbids only "extreme sentences that are grossly 20 disproportionate to the crime"; it does not require "strict 21 proportionality between crime and sentence." 22 560 23 (quoting Harmelin v. Michigan, 501 U.S. 957, 997, 1000-01, 111 S. 24 Ct. 2680, 2702, 2705, 115 L. Ed. 2d 836 (1991) 25 concurring in part and concurring in judgment (internal quotation 26 marks omitted))). 27 to show that his sentence is unconstitutionally disproportionate. 28 See Ewing v. California, 538 U.S. 11, 21, 123 S. Ct. 1179, 1185, u.s. I 130 s. Ct~ Graham v. Florida, 2011, 2021, 176 L. Ed. 2d 825 (2010) (Kennedy, J., It is exceptionally difficult for a criminal 66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 155 L. Ed. 2d 108 (2003) (noting that successful Eighth Amendment challenges in noncapital cases are "exceedingly rare"). Counsel was not constitutionally ineffective for declining to argue that Petitioner's sentence constituted cruel and unusual punishment because that argument was unlikely to succeed. Petitioner's sentence, which ultimately totaled 12 years 8 months in state prison (Lodged Doc. 8, 1 Clerk's Tr. at 298-99; Lodged Doc. 9, 1 Rep.'s Tr. at 8-9), was not one of the "exceedingly rare" cases involving gross disproportionality sufficient to constitute an Eighth Amendment violation. Petitioner was ultimately convicted of 17 counts of felony unlawful practice of law, several of which were committed while he was released on his own recognizance for another felony case. (Lodged Doc. 2, 4 Rep.'s Tr. at 683-84; Lodged Doc. 8, 1 Clerk's Tr. at 239-41.) The court reasonably sentenced Petitioner to the middle term, or two years, for four of those counts, and one-third of the middle term, or eight months, for each of the remaining counts. (Lodged Doc. 2, 4 Rep.'s Tr. at 756-57; Lodged Doc. 8, 1 Clerk's Tr. at 239-41; Lodged Doc. 9, 1 Rep.'s Tr. at 9.) The court also sentenced Petitioner to a mandatory two-year enhancement because he committed many of his crimes while on release after having been charged with another felony. (Id.) Petitioner's sentence appears particularly reasonable given the circumstances of his crimes. At the initial sentencing, the trial court noted that Petitioner's sentence seemed long when viewed "in a vacuum" but that several factors showed that Petitioner had "earned this term." at 757.) (Lodged Doc. 2, 4 Rep.'s Tr. The court found that Petitioner had "used his skill, 67 1 intellect, and abilities to prey on victims who were extremely 2 3 4 5 6 7 8 9 vulnerable" and that "[t]here are few situations in life where people are as desperate as they are when dealing with childcustody issues." (Id. at 752.) The court found that Petitioner separated his victims "from over $100,000" but "performed few worthwhile services." (Id.) Petitioner "held himself out as an expert, yet recommended legal actions that were futile, contrary to the law, and exposed his clients to penal as well as monetary sanctions," and Petitioner's "sole motive for doing so was 10 personal gain." (Id. at 752-53.) Petitioner also continued to 11 provide legal advice after he was told not to by the state Bar 12 and held to answer on criminal charges. 13 Petitioner "continue[d] to show no empathy or remorse" and a 14 "callous disregard" for the people he victimized. 15 (Id. at 753.) Moreover, ( Id.) In sum, counsel did not act unreasonably by failing to argue 16 that Petitioner's 12-year, a-month sentence for 17 counts of 17 unlawful practice of law constituted cruel and unusual 18 punishment. 19 sentences for less serious crimes. 20 U.S. 63, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003) 21 life under California's three-strikes law for stealing $150 worth 22 of videotapes); Ewing, 538 23 California's three-strikes law for theft of three golf clubs); 24 Harmelin, 501 U.S. at 957 (life without parole for possessing 25 large quantity of cocaine); Rummel v. Estelle, 445 U.S. 263, 100 26 S. Ct. 1133, 63 L. Ed. 2d 382 (1980) 27 parole for obtaining money by false pretenses, defendant's third 28 nonviolent felony); Hutto v. Davis, 454 U.S. 370, 102 S. Ct. 703, Indeed, the Supreme Court has upheld far tougher u.s. See Lockyer v. Andrade, 538 (50 years to at 11 (25 years to life under 68 (life with possibility of 1 70 L. Ed. 2d 556 (1982) 2 3 4 with intent to distribute and distribution of marijuana) . 5 (40 years for possession of marijuana This claim therefore fails even on de novo review. 4. Petitioner's remaining claims Petitioner alleges that his trial counsel was ineffective by 6 "fail[ing] to communicate an offer of a plea bargain, which 7 8 9 Petitioner would have accepted." at 5.) (Traverse at 5; see also Pet. As a general rule, "defense counsel has the duty to communicate formal offers from the prosecution to accept a plea 10 on terms and conditions that may be favorable to the accused." 11 Missouri v. Frye, 566 U.S. ___ , 132 12 2d 379 (2012) . 13 Traverse that the alleged offer consisted of "two misdemeanors, 14 restitution, and a right of appeal" and that it was "never 15 communicated to Petitioner until after the trial was concluded 16 and Petitioner was incarcerated" 17 allege any facts about when that offer was allegedly made or how 18 it was eventually communicated to him once he was already in 19 prison. s. Ct. 1399, 1408, 182 L. Ed. But although Petitioner briefly asserts in his (Traverse at 34), he fails to The evidence, moreover, shows that Petitioner knew of 20 and rejected the alleged offer or one that was very similar: 21 during a presentence interview at the Probation Department, 22 Petitioner "report[ed] that he turned down a two-misdemeanor 23 conviction plea and took his chance at a Court trial because he 24 wanted to continue his work as a 'worldwide child custody and 25 divorce expert."' 26 In any event, Petitioner does not cite any record evidence 27 regarding an alleged plea offer that was not communicated, nor 28 does he proffer sworn statements from himself or trial counsel (Lodged Doc. 1, 4 Clerk's Tr. at 651, 667.) 69 1 regarding the alleged plea. Petitioner's bare assertion that an 2 offer was made and not communicated to him, with no supporting 3 facts, 4 5 6 7 F.3d at 26; Jones, 66 F.3d at 205. is insufficient to warrant habeas relief. See James, 24 Even assuming the offer was made and not communicated, moreover, Petitioner has failed to adequately allege that he was prejudiced. See Frye, 132 s. Ct. at 1409 (to show prejudice from 8 counsel's failure to communicate plea offer, defendants must 9 demonstrate "reasonable probability they would have accepted the 10 earlier plea offer had they been afforded effective assistance of 11 counsel," "reasonable probability the plea would have been 12 entered without the prosecution canceling it or the trial court 13 refusing to accept it," and "reasonable probability that the end 14 result of the criminal process would have been more favorable by 15 reason of a plea to a lesser charge or a sentence of less prison 16 time"); accord Lafler v. Cooper, 566 U.S. 17 1385, 182 L. Ed. 2d 398 (2012) 18 counsel's ineffective advice regarding plea offer, defendant 19 "must show that but for the ineffective advice of counsel there 20 is a reasonable probability that the plea offer would have been 21 presented to the court (i.e., that the defendant would have 22 accepted the plea and the prosecution would not have withdrawn it 23 in light of intervening circumstances) , that the court would have 24 accepted its terms, and that the conviction or sentence, or both, 25 under the offer's terms would have been less severe than under 26 the judgment and sentence that in fact were imposed"). 27 given its comments when rendering the verdict and at sentencing, 28 it appears unlikely that the trial court would have accepted a , 132 S. Ct. 1376, (to establish prejudice from 70 Indeed, 1 guilty plea to two misdemeanors. It also appears that the 2 3 evidence showed that Petitioner continued to hold himself out as 4 -' prosecution would likely have withdrawn any offer because entitled to practice law after his arrest and the preliminary 5 hearing in this case (see, e.g., Lodged Doc. 1, 2 Clerk's Tr. at 6 397 (October 2003 order releasing Petitioner on own recognizance 7 on condition that he dismantle website and remove any internet 8 reference to phone number and email address); Lodged Doc. 1, 3 9 Clerk's Tr. at 506 (prosecutor's April 2004 statement at 10 preliminary hearing that Petitioner had not dismantled websites 11 listing address, phone number, website, and email address), 517- 12 18 (May 2004 order revoking Petitioner's own-recognizance status 13 and conditioning release on bail on his dismantling of website 14 and internet references to phone number and email address), 617 15 (August 2005 letter from community member stating that Petitioner 16 continued to refuse to take down websites); Lodged Doc. 1, 4 17 Clerk's Tr. at 653 (September 2005 probation and sentence report 18 noting prosecutor's statement that Petitioner "continued to 19 practice law after he had been arrested with charges filed and 20 after the initial Preliminary hearing thereby committing crime- 21 bail-crime"); Lodged Doc. 2, 4 Rep.'s Tr. at 753 (court's 22 statement at sentencing that Petitioner "continued to provide 23 legal advice after he was told not to by the state bar, after he 24 had been held to answer on criminal charges, and, arguably, after 25 he was held to answer on additional charges"). 26 therefore was not objectively unreasonable in denying this claim. 27 28 The state court Petitioner also does not allege any facts in support of his conclusory allegations that counsel was constitutionally 71 1 ineffective by failing to object to "improper evidence," return 2 Petitioner's case file "after representation terminated," or 3 obtain replacement counsel. 4 Petitioner's bare assertions, with no supporting facts, are 5 insufficient to warrant habeas relief. 6 Jones, 66 F.3d at 205. 7 (Pet. at 5; Traverse at 5.) Again, James, 24 F.3d at 26; Finally, in his Traverse, Petitioner argues for the first 8 time that counsel "failed to adequately communicate the substance 9 of various chambers conferences between counsel and the judge 10 before, during, and after trial" and "failed to advise Petitioner 11 about the potential outcome of his trial vis-a-vis an offer of a 12 plea bargain." 13 raised in the Petition, this Court declines to consider them on 14 habeas review. 15 reply is not proper pleading to raise additional grounds for 16 relief or amend petition); Cacoperdo v. Demosthenes, 37 F.3d 504, 17 507 (9th Cir. 1994) (Traverse at 5.) Because these issues were not Delgadillo, 527 F.3d at 930 n.4 (holding that (same). 18 B. 19 Petitioner alleges that appellate counsel was ineffective by 20 "fail[ing] to raise all issues on appeal" and "refus[ing] to file 21 habeas corpus petitions." Appellate Counsel (Pet. at 5.) 22 Appellate counsel properly may decline to raise an argument 23 on appeal because he foresees little or no likelihood of success 24 on that claim. 25 746, 765, 145 L. Ed. 2d 756 (2000). 26 27 28 counsel's failure to raise issues on direct appeal does not Smith v. Robbins, 528 U.S. 259, 288, 120 S. Ct. Thus, an "appellate constitute ineffective assistance when appeal would not have provided grounds for reversal." Wildman v. Johnson, 261 F.3d 72 1 832, 840 (9th Cir. 2001). 2 3 was not objectively unreasonable because none of the claims 4 counsel's failure to raise them on appeal could not have been 5 6 7 8 9 ineffective assistance. asserting ineffectiveness of Petitioner's trial counsel because 10 v. Mendoza Tello, 15 Cal. 4th 264, 266-67, 62 Cal. Rptr. 2d 437, 11 438 (1997). The state courts' denial of this claim Petitioner has raised are meritorious, and therefore appellate Further, appellate counsel was not ineffective for failing to raise on direct appeal claims California law dictates that those claims generally are "more appropriately litigated in a habeas corpus proceeding." 12 People Accordingly, this claim fails on independent review. Petitioner's claim that appellate counsel was ineffective by 13 "refusing to file habeas corpus petitions" also fails. 14 5.) 15 is no right to counsel in a habeas proceeding. 16 at 753 17 state postconviction proceedings."); Pennsylvania v. Finley, 481 18 U.S. 551, 555, 107 S. Ct. 1990, 1993, 95 L. Ed. 2d 539 (1987) 19 (prisoners' right to appointed counsel does not extend to 20 "collateral attacks upon their convicti'ons"). 21 petitioner cannot claim constitutionally ineffective assistance 22 of counsel in such proceedings." 23 also Bonin v. Calderon, 77 F.3d 1155, 1159-60 (9th Cir. 1996). 24 25 (Pet. at Although there is a right to counsel on direct appeal, there Coleman, 501 U.S. ("[T]here is no constitutional right to an attorney in Thus, "a Coleman, 501 U.S. at 752; see Petitioner is not entitled to habeas relief on this ground. VI. Petitioner's request for appointment of counsel and an 26 evidentiary hearing are denied 27 Petitioner requests an evidentiary hearing and appointment 28 of counsel. (Traverse at 2.) The interests of justice do not 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 require appointment of counsel at this late stage of the proceedings, particularly given that Petitioner is a trained former attorney. Cir. 1983). See Weygandt v. Look, 718 F.2d 952, 954 (9th Thus, his request is denied. Moreover, an evidentiary hearing is not authorized on issues that can be resolved by reference to the state-court record under § 2254(d) (1), as five subclaims of ground one and all of grounds three, four, five, and six can. Cullen v. Pinholster, 563 U.S. , 131 S. Ct. 1388, 1399, 179 L. Ed. 2d 557 (2011). Pinholster limits federal habeas review under§ 2254(d) (1) to evidence introduced before the state court. Id. at 1398-1401. With respect to the four remaining subclaims of ground one, which the Court has reviewed de novo, an evidentiary hearing is also not warranted. Further factual development is not warranted on Petitioner's claim that appellate counsel was ineffective by refusing to file habeas petitions because it is barred as a matter of law, so no further factual development is needed. Coleman, 501 u.s. at 752. As to his other claims - See that trial counsel was constitutionally ineffective by failing to follow instructions, return Petitioner's case file, or obtain replacement counsel - Petitioner fails to specify what helpful evidence could be adduced at an evidentiary hearing. request for an evidentiary hearing is denied. Thus, his See also Schriro v. Landrigan, 550 U.S. 465, 474, 127 S. Ct. 1933, 1940, 167 L. Ed. 2d 836 (2007) ("[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing."). 74 1 2 3 ORDER IT THEREFORE IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice. ~ 4 5 DATED: November 28, 2012 ROSENBLUTH MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 75

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