Cortez v. Grounds et al, No. 3:2011cv02063 - Document 16 (S.D. Cal. 2012)
Court Description: ORDER Denying Petition for Writ of Habeaus Corpus and Adopting Report and Recommendation of Magistrate Judge and Denying Certificate of Appealability. Signed by Judge Marilyn L. Huff on 10/31/2012.(All non-registered users served via U.S. Mail Service)(ag)
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Cortez v. Grounds et al Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JORGE ABEL CORTEZ, CASE NO. 11-CV-2063-H-(MDD) Petitioner, 12 13 14 15 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND DENYING CERTIFICATE OF APPEALABILITY vs. R. GROUNDS, Warden, et. al., Respondent. 16 17 18 19 20 21 22 23 24 25 26 27 Jorge Abel Cortez (“Petitioner”), a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on September 7, 2011. (Doc. No. 1.) Respondent filed an answer to the petition opposing relief on December 2, 2011. (Doc. Nos. 7, 8.) The magistrate judge filed a Report and Recommendation on August 14, 2012, recommending that the petition be denied. (Doc. No.11.) Petitioner filed an objection to the Report and Recommendation on September 6, 2012. (Doc. Nos. 14, 15.) Background Petitioner was arrested and charged with two counts of lewd and lascivious acts with his 13 year old male cousin. (Resp. Lodgment No. 1.) The District Attorney offered Petitioner a plea agreement of 12 years and 8 months while he was represented by a public defender. (Resp. Lodgment No. 2, Vol 1 at 1-4.) Petitioner was facing the possibility of life in prison 28 -1- 11CV2063 Dockets.Justia.com 1 but he did not accept that plea agreement. (Id.) Petitioner then hired Mr. Raphael Acosta, who 2 discovered a Miranda violation that had allegedly occurred during Petitioner’s interrogation. 3 (Id. at 5-8, Resp. Lodgment No. 2, Vol. 4.) Counsel also negotiated for a stipulated ten year 4 sentence and the dismissal of six of the eight counts charged against Petitioner. (Id.) On May 5 5, 2009, Petitioner, aided by a Spanish interpreter, pled guilty to both counts while represented 6 by counsel. (Doc. No. 1, Ex. A, Resp. Lodgment No. 2, Vol. 2.) At the change of plea 7 hearing, the court asked Petitioner if he was aware of the legal effects of his plea, and found 8 that his plea was knowing, intelligent, and voluntary. (Id.) 9 On August 7, 2009, Petitioner filed motion to withdraw his guilty plea and have the 10 original charges reinstated. (Resp. Lodgment No. 1, at 30.) After hearing testimony by both 11 Petitioner and his counsel, the trial court held that for each count Petitioner had “pled guilty, 12 waived his rights, and understood the nature of the offense,” and thus denied Petitioner’s 13 motion to withdraw his guilty plea. (Resp. Lodgment No. 2, Vol. 4 at 56.) The California 14 Court of Appeal affirmed the trial court’s judgment and his petition for review was denied by 15 the California Supreme Court. (Resp. Lodgment No. 5; Resp Lodgment No. 8.) 16 On September 7, 2011, Petitioner filed this petition for habeas corpus. (Doc. No. 1.) 17 Petitioner first argues that his guilty plea was not valid because it did not comport with 18 constitutional standards. (Id.) He also argues that he received ineffective assistance of 19 counsel. (Id.) Finally, he argues that his statements to the detective were obtained in violation 20 of Miranda v. Arizona, 384 U.S. 436 (1996). (Id.) 21 Discussion 22 I. Standard of Review 23 A federal court reviews an application for a writ of habeas corpus on behalf of a person 24 in custody pursuant to the judgment of a State Court only on the ground that “he is in custody 25 in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 26 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs the review 27 of the petition in this case. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997); 28 U.S.C. 2254(d). 28 Section 2254(d) bars a federal court from relitigating any claim “adjudicated on the merits” -2- 11CV2063 1 in state court unless the result “was contrary to, or involved an unreasonable application of 2 clearly established federal law, as determined by the Supreme Court of the United States” or 3 “was based on an unreasonable determination of the facts in light of the evidence presented 4 in the state court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). “[R]eview under 28 U.S.C. § 5 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on 6 the merits.” Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1398 (2011). AEDPA imposes 7 a “‘highly deferential standard for evaluating state-court rulings,’” requiring that “state court 8 decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002), 9 (quoting Lindh, 521 U.S. at 333 n.7). 10 Under § 2254(d)(1), a decision is “contrary to” clearly established precedents if it 11 “applies a rule that contradicts the governing law set forth in our cases,” or if it “confronts a 12 set of facts that are materially indistinguishable from” a Supreme Court decision but reaches 13 a different result. Early v. Packer, 537 U.S. 3, 8 (2002). Under 2254(d)(2), a decision is “an 14 unreasonable application of clearly established federal law” if the state court “correctly 15 identifies the governing legal rule but applies it unreasonably to the facts of a particular 16 prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 407-08. The decision must be more than 17 just “incorrect or erroneous;” it “must [be] objectively unreasonable.” Wiggins v. Smith, 539 18 U.S. 510, 520-21 (2003). The petitioner must show that “‘there was no reasonable basis’ for 19 the state high court’s decision.” Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 784 (2011). 20 If there is not clearly established federal law on an issue, a state court cannot be said to have 21 unreasonably applied the law as to that issue. See Carey v. Musladin, 549 U.S. 70, 74 (2006); 22 Holley v. Yarborough, 568 F.3d 1091, 1098 (9th Cir. 2009); Moses v. Payne, 555 F.3d 742, 23 753-754 (9th Cir. 2009). These standards are applied to “the last reasoned decision” by a state 24 court on the merits of the federal constitutional claims raised by a state prisoner seeking relief 25 from sentence. Campbell v. Rice, 408 F.3d 1166, 1170 (9th Cir. 2005). 26 II. Analysis 27 A. 28 Petitioner contends that his guilty plea is invalid because the state court failed to comply Validity of Guilty Plea -3- 11CV2063 1 with the constitutional requirements of Boykin v. Alabama, 395 U.S. 238 (1969), and In re 2 Tahl, 1 Cal. 3d 122 (1969), when it accepted his plea. (Doc No. 1.) He also erroneously 3 claims that he was deprived the assistance of an interpreter to translate for him when he pled 4 guilty, when the record reflects that he had an interpreter. (Id.; Resp. Lodgment No. 2, Vol. 5 2, at 6.) 6 Boykin requires that a court ensure that a person pleading guilty does so voluntarily and 7 intelligently because a guilty plea waives several constitutional rights, such as the privilege 8 against self incrimination, the right to a jury trial, and the right to confront witnesses against 9 him. Boykin, 395 U.S. at 243-244. In California, the defendant must specifically address and 10 waive these rights in order for the guilty plea to be valid. Tahl, 1 Cal. 3d at 132. 11 The California Court of Appeal concluded that the trial court complied with Boykin and 12 Tahl when it accepted Petitioner’s guilty plea. (Resp. Lodgment No. 5.) This finding is 13 neither contrary to federal law nor is it an unreasonable application of federal law. 28 U.S.C. 14 § 2254(d)(1)-(2). The trial court asked petitioner if he was pleading guilty voluntarily and if 15 he understood that by pleading guilty he was waiving his constitutional right to a jury trial, his 16 right to confront the witnesses against him, and his right against self-incrimination. (Resp. 17 Lodgment No. 2, Vol. 2, at 6.) Furthermore, the record also shows that a Spanish language 18 interpreter was assisting Petitioner at the hearing. (Id. at 5.) Since the record shows that the 19 Petitioner made a voluntary and intelligent plea, and that he understood that he was waiving 20 his constitutional rights, the California Court of Appeal’s decision was an objectively 21 reasonable determination of clearly established federal law. 22 B. 23 Petitioner claims that he was deprived of effective assistance of counsel because Ineffective Assistance of Counsel 24 counsel “failed to investigate [Petitioner’s] entire case, failed to prepare for trial, and . . . 25 threatened and pressured . . . [Petitioner] into acceptance of the plea agreement.” (Doc No. 1.) 26 To prove that his counsel provided ineffective assistance, Petitioner must establish both 27 counsel's performance was unreasonably deficient and that the deficient performance 28 prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 689 (1984). To establish -4- 11CV2063 1 by Petitioner to a parent of the victim during a controlled phone call. (Resp. Lodgment No. 2 5.) Therefore, the California Court of Appeal’s decision that Petitioner’s Fifth Amendment 3 Rights were not violated is neither contrary to federal law nor an unreasonable application of 4 federal law. 5 III. Denial of Certificate of Appealability 6 Under AEDPA, a state prisoner seeking to appeal a district court's denial of a habeas 7 petition must obtain a certificate of appealability from the district court judge or a circuit judge. 8 28 U.S.C. § 2253(c)(1)(A). A court may issue a certificate of appealability only if the 9 applicant has made "a substantial showing of the denial of a constitutional right." 28 U.S.C. 10 § 2253(c)(2). To satisfy this standard, the petitioner must show that "reasonable jurists would 11 find the district court's assessment of the constitutional claims debatable or wrong." Slack v. 12 McDaniel, 529 U.S. 473, 484 (2000). In the present case, the Court concludes that petitioner 13 has not made a substantial showing of the denial of a constitutional right. Therefore the Court 14 denies Petitioner a certificate of appealability. 15 16 Conclusion Petitioner has not established that the state court’s determination “was contrary to, or 17 involved an unreasonable application of clearly established federal law, as determined by the 18 Supreme Court of the United States” or that it “was based on an unreasonable determination 19 of the facts in light of the evidence presented in the state court proceeding.” See 28 U.S.C. § 20 2254(d)(1), (2). Accordingly, the Court adopts the Magistrate Judge’s report and 21 recommendation and denies the petition for habeas corpus. In addition, the Court denies 22 Petitioner a certificate of appealability. 23 IT IS SO ORDERED. 24 DATED: October 31, 2012 25 26 ________________________________ MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT 27 28 -7- 11CV2063
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