Vurnell Domingo Pollard v. Raymond Madden, No. 2:2015cv09487 - Document 30 (C.D. Cal. 2016)

Court Description: MEMORANDUM DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that the Petition is denied and Judgment be entered dismissing this action with prejudice. (See Order for details) (bem)

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Vurnell Domingo Pollard v. Raymond Madden Doc. 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 VURNELL DOMINGO POLLARD, Petitioner, 12 13 14 15 v. RAYMOND MADDEN, Respondent. ) ) ) ) ) ) ) ) ) ) Case No. CV 15-9487-JPR MEMORANDUM DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS 16 17 18 PROCEEDINGS On December 8, 2015, Petitioner filed a Petition for Writ of 19 Habeas Corpus by a Person in State Custody and a separate 20 memorandum of points and authorities. Petitioner consented to 21 having the assigned U.S. Magistrate Judge conduct all further 22 proceedings in his case, including entering final judgment. On 23 April 26, 2016, Respondent filed an Answer and a memorandum of 24 points and authorities; he also consented to proceed before the 25 Magistrate Judge. On July 5, 2016, Petitioner filed a Reply to 26 Respondent’s Answer. 27 For the reasons discussed below, the Court denies the 28 Petition and dismisses this action with prejudice. 1 Dockets.Justia.com 1 2 BACKGROUND On September 8, 2011, Petitioner was held to answer in Los 3 Angeles County Superior Court on charges that late on the night 4 of January 30, he burglarized the home of Robert Guerrero in San 5 Gabriel and, a little over an hour later, on the morning of 6 January 31, used a gun to rob and burglarize Hung Tran at his 7 home nearby. (See Lodged Doc. 1, Clerk’s Tr. at 95-96.) 8 Petitioner was also held to answer on charges of leading police 9 on a high-speed chase as he fled Tran’s home. 10 (See id.) An Amended Information was filed on October 6, 2011, 11 alleging that Petitioner had used a firearm in connection with 12 the robbery and burglary at Tran’s home, had suffered one prior 13 “strike” conviction within the meaning of California’s Three 14 Strikes Law, and was out on bail pending sentencing in another 15 case when he allegedly committed the charged offenses. 16 at 105-11.) The Amended Information also alleged that some of 17 the charges were serious, violent felonies. 18 (See id. (See id. at 109.) As discussed more fully below, on September 13, 2012, at a 19 pretrial telephonic conference, the trial court briefly discussed 20 the status of plea negotiations with Petitioner’s counsel and the 21 prosecutor, outside of Petitioner’s presence. (See Lodged 22 Doc. 2, 2 Rep.’s Tr. at 605, 608-10.) 23 The next day, the court and all parties, including 24 Petitioner, discussed a plea bargain. (See id. at 901-22.) They 25 discussed the maximum sentence Petitioner might be exposed to if 26 he was convicted on all charges, which would be as high as 27 34 years and four months. (See id. at 1212-13.) Petitioner 28 eventually accepted a plea deal, pleading no contest to the 2 1 robbery of Tran with the firearm allegation and the burglary of 2 Guerrero’s home and admitting his prior-strike conviction in 3 exchange for a total sentence of 23 years and eight months, for 4 both this case and the 2009 conviction for which he had been out 5 on bail. (See id. at 1215-18; Lodged Doc. 1, Clerk’s Tr. at 219- 6 20; Lodged Doc. 3 at 2.) 7 On November 16, 2012, before sentencing, Petitioner moved 8 under Faretta v. California, 422 U.S. 806 (1975), to represent 9 himself, asking that his retained counsel be relieved. (See 10 Lodged Doc. 2, 2 Rep.’s Tr. at 1803.) Petitioner also informed 11 the court that he wished to file a motion to withdraw his plea. 12 (See id. at 1806.) The court granted Petitioner’s Faretta 13 motion, finding that it was “knowingly, intelligently, 14 voluntarily, and freely” made, and he began representing himself. 15 (See id.) The court appointed an investigator and an audio/video 16 expert to assist Petitioner with a planned challenge to the 17 surveillance videos introduced at the preliminary hearing. 18 id. at 1810-11, 2106.) (See The court continued the hearing to allow 19 Petitioner more time to prepare his withdrawal motion. (Id. at 20 1808-09.) 21 On January 28, 2013, Petitioner filed his “Motion to 22 Withdraw Plea.” (Lodged Doc. 1, Clerk’s Tr. at 157-66.) The 23 motion arguably raised three claims: (1) the prosecution violated 24 Brady v. Maryland, 373 U.S. 83 (1963), effectively rendering 25 Petitioner’s plea uninformed; (2) police officers used “coercive 26 and abusive” investigative techniques that resulted in “false 27 information”; and (3) former defense counsel was ineffective for 28 failing to investigate exculpatory evidence in a timely manner, 3 1 which allegedly put Petitioner under “extreme duress” before he 2 pleaded no contest. (See Lodged Doc. 1, Clerk’s Tr. at 157-66.) 3 On February 15, 2013, Petitioner filed a supplement to his 4 motion, in which he argued that ineffective assistance of counsel 5 and an “illusory promise” — that is, that “personal” property 6 seized from his car after his arrest would be returned to him — 7 also contributed to coercing his plea. 8 (See id. at 167-77.) On March 1, 2013, the trial court held a hearing and took 9 the Motion to Withdraw Plea under submission. 10 Doc. 2, 2 Rep.’s Tr. at 2701-52.) (See Lodged On April 2, 2013, the court 11 issued a minute order discussing the procedural history of 12 Petitioner’s plea bargain and his efforts to withdraw his plea 13 and requesting further briefing on sentencing issues. 14 (See Lodged Doc. 1, Clerk’s Tr. at 191-92.) On April 10, 2013, 15 Petitioner filed a second “Motion to Withdraw Guilty Plea.” 16 at 196-204.) (Id. On April 15, 2013, the trial court issued a 17 tentative ruling denying Petitioner’s motion and finding that he 18 could properly be sentenced to the bargained-for 23 years and 19 eight months. 20 (See id. at 213-14.) Later that same day, the trial court held another hearing on 21 Petitioner’s motion and on probation and sentencing matters, 22 including whether the court was “duty-bound” to sentence 23 Petitioner “to a consecutive sentence.” 24 2 Rep.’s Tr. at 3301-24.) (See Lodged Doc. 2, The court eventually stated, “I am now 25 going to deny your motion to withdraw for the reasons stated in 26 the . . . Minute Order that I filed today.” (Id. at 3318.) 27 court then sentenced Petitioner to 23 years and eight months. 28 (See id. at 3321-22.) 4 The 1 On April 29, 2013, the court held an evidentiary hearing on 2 Petitioner’s motion for the return of his “personal” property and 3 took the matter under submission. (See id. at 3601, 3639; see 4 also Lodged Doc. 1, Clerk’s Tr. at 225-27.) It eventually 5 granted the motion as to some items and denied it as to others. 6 (Lodged Doc. 1, Clerk’s Tr. at 221-22.) 7 On May 3, 2013, Petitioner filed an application for a 8 Certificate of Probable Cause, seeking permission to challenge 9 his guilty plea on appeal. (See Pet. at 24.)1 On May 23, 2013, 10 the trial court denied the application in a reasoned, eight-page 11 order. (See id. at 24-31.) On June 7, 2013, Petitioner filed a 12 notice of appeal, expressly acknowledging that he would only 13 challenge “other matters . . . that do not affect validity of the 14 plea.” 15 (Lodged Doc. 1, Clerk’s Tr. at 228.) On October 8, 2013, Petitioner’s appellate counsel filed a 16 brief under People v. Wende, 25 Cal. 3d 436 (1979), raising no 17 issues but asking the court to conduct an independent review of 18 the record on appeal. (See Lodged Doc. 3 at 8.) On November 13, 19 2013, Petitioner filed a supplemental brief in the court of 20 appeal, arguing that (1) the trial court erroneously denied him a 21 continuance at an unspecified time, (2) the trial court erred in 22 considering whether his sentence in the unrelated case should run 23 concurrently or consecutively, and (3) he should be allowed to 24 withdraw his guilty plea because of counsel’s ineffective 25 assistance. (See Lodged Doc. 4.) 26 27 28 1 For all filed as opposed to lodged documents, the Court uses the pagination provided by its Case Management/Electronic Case Filing system. 5 1 On March 27, 2014, the court of appeal issued a reasoned, 2 four-page decision, noting in pertinent part that Petitioner had 3 not obtained a certificate of probable cause before filing his 4 appeal. (See Lodged Doc. 5 at 3.) Without one, he could not 5 challenge the validity of his plea or any related matters, such 6 as his sentence, the denial of his motion to withdraw the plea, 7 or his counsel’s alleged ineffective assistance during the plea8 bargaining process. (See id.) The court of appeal went on to 9 state, 10 We have reviewed the whole record under People v. Kelly 11 (2006) 40 Cal. 4th 106. 12 exist. . . . No arguable issues for appeal The judgment is affirmed. 13 (Id. at 3-4.) 14 In the meantime, on November 18, 2013, Petitioner filed a 15 Petition for Writ of Mandate in the court of appeal, arguing that 16 “[t]he trial court erroneously denied the application for 17 certificate of probable cause.” (Lodged Doc. 8.) On December 18 20, 2013, the court of appeal denied the petition on the ground 19 that Petitioner “has failed to state facts and evidence 20 sufficient to demonstrate entitlement to relief.” (Lodged Doc. 21 9.) 22 On May 9, 2014, Petitioner filed a petition for review in 23 the California Supreme Court, arguing that the trial court 24 wrongly denied an unspecified “continuance” and that that denial 25 violated Petitioner’s right to effective assistance of counsel. 26 (See Lodged Doc. 6 at 5.) On June 18, 2014, the supreme court 27 summarily denied the petition for review. 28 (Lodged Doc. 7.) On October 31, 2014, Petitioner filed a Petition for Writ of 6 1 Habeas Corpus in the California Court of Appeal. 2 Doc. 10 at 6.) (See Lodged That petition argued that (1) Petitioner’s 3 appellate counsel was ineffective for filing a Wende brief; (2) 4 Petitioner’s trial counsel was ineffective for “failure to 5 investigate,” among other things, the surveillance video from the 6 Guerrero robbery, which Petitioner claimed showed a white or 7 Caucasian person; and (3) the trial judge improperly participated 8 in plea discussions. (See Lodged Doc. 10.) On November 20, 9 2014, the court of appeal denied the petition, stating that it 10 “has been read and considered and is denied on the ground 11 petitioner has not stated facts or provided evidence sufficient 12 to demonstrate entitlement to relief.” 13 (Lodged Doc. 11.) On January 20, 2015, Petitioner filed a habeas petition in 14 the California Supreme Court, raising the same three arguments he 15 had just raised in the court of appeal. (Lodged Doc. 12.) On 16 April 1, 2015, the supreme court denied the petition with 17 citations to People v. Duvall, 9 Cal. 4th 464, 474 (1995), and In 18 re Swain, 34 Cal. 2d 300, 304 (1949).6 19 (Lodged Doc. 13.) On August 10, 2015, Petitioner filed another habeas petition 20 in the California Supreme Court. (Lodged Doc. 14.) That 21 petition argued that the “[t]rial judge improperly participated 22 in plea negotiations, violating Federal Rule of Criminal 23 Procedure rule 11(c)(1),” and “[t]rial counsel’s failure to 24 25 26 27 28 6 Citations to Swain and Duvall indicate that the claims were not alleged with sufficient particularity and that the petitioner could attempt to raise them again. See King v. Roe, 340 F.3d 821, 823 (9th Cir. 2003) (per curiam), abrogation on other grounds recognized by Waldrip v. Hall, 548 F.3d 729 (9th Cir. 2008). 7 1 investigate violated the right to effective assistance of counsel 2 as guaranteed by the Sixth Amendment of the U.S. and California 3 Constitutions.” (See Lodged Doc. 14 at 3-4.) On November 10, 4 2015, the California Supreme Court denied the petition with a 5 citation to In re Miller, 17 Cal. 2d 734, 735 (1941).7 (Lodged 6 Doc. 15.) 7 8 PETITIONER’S CLAIMS Construing the Petition liberally, the Court finds that it 9 presents the following claims: 10 1. The trial court violated Petitioner’s rights when it 11 (1) improperly inserted itself into plea negotiations, in 12 violation of Federal Rule of Criminal Procedure 11; (2) 13 influenced or coerced Petitioner to accept a plea bargain, in 14 particular by misrepresenting Petitioner’s eligibility for a work 15 program and what Petitioner’s sentence would be, rendering his 16 plea involuntary; and (3) refused to allow Petitioner to withdraw 17 his plea. 18 2. Petitioner’s counsel provided ineffective assistance by 19 failing to investigate the surveillance video from the robbery at 20 Guerrero’s home, in particular by not hiring an expert to analyze 21 whether the video showed Petitioner or another person, perhaps a 22 23 7 Miller holds that a habeas claim in a previously denied 24 petition must again be denied when there has been no change in the facts or law substantially affecting the petitioner’s rights. 25 See 17 Cal. 2d at 735. Thus, the California Supreme Court’s 26 citation of Miller indicated that its denial of Petitioner’s claims rested on the same ground as its dismissal of the claims 27 in Petitioner’s first habeas petition, namely, failure to raise them with sufficient particularity. See King, 340 F.3d at 823; 28 Kim v. Villalobos, 799 F.2d 1317, 1319 n.1 (9th Cir. 1986). 8 1 white Caucasian suspect, and by failing to adequately challenge 2 the prosecution’s DNA evidence linking Petitioner to the crimes. 3 4 SUMMARY OF PERTINENT FACTS This Court’s review of the state-court record reveals the 5 following facts: 6 I. Preliminary-Hearing Record 7 As noted, a preliminary hearing was held on September 8, 8 2011. 9 10 (See Lodged Doc. 1, Clerk’s Tr. at 1-B.) A. Incident on January 30, 2011, at Guerrero’s Home Guerrero testified that on the night of January 30, 2011, he 11 was asleep in his house in San Gabriel when, around 11:53 p.m., 12 he was awoken by noise in the back of his house. 13 Clerk’s Tr. at 5.) (Lodged Doc. 1, He went to the kitchen and saw someone on the 14 other side of the sliding glass door, trying to enter the house; 15 Guerrero flipped on a light and saw a man about two or three feet 16 away from him. (Id. at 6-7.) Guerrero described the man as 17 “husky,” with a “big body build” and wearing a white-gray sweater 18 and a black ski mask that covered his whole head. (Id. at 6-8.) 19 Guerrero said the sliding glass door was locked and the man was 20 trying to open it. (Id. at 8.) After he turned on the kitchen 21 light, he ran up to the sliding door and banged on the glass, and 22 that scared the man away. (Id. at 9.) Guerrero said the 23 incident “happened really quick,” in a matter of “just seconds.” 24 (Id. at 6, 9.) 25 (Id. at 10.) Guerrero called the police. Before they 26 arrived, Guerrero noticed some damage to the sliding glass door 27 and some “pry marks.” 28 windows. (Id. at 11-12.) (Id. at 12-13.) The kitchen had two Before the incident both windows had 9 1 screens over them, but afterward Guerrero noticed that one of the 2 windows was missing a screen. (See id.) Guerrero found the 3 missing screen right below the window; he noticed “pry marks” on 4 it, too. 5 (Id. at 13-14.) Guerrero testified that he had operable surveillance cameras 6 outside of his home the night of the incident. (Id. at 14.) The 7 prosecutor stated that there were “four clips” from the 8 surveillance cameras and played two of those clips at the 9 preliminary hearing. (Id. at 14-16.) Guerrero confirmed that 10 the two clips were taken from the surveillance cameras at his 11 home on the night of the incident; both showed the suspect he saw 12 outside the sliding glass door. (Id. at 16.) Guerrero stated 13 that he had not been able to see the suspect’s face because he 14 was wearing the ski mask. (Id. at 17.) 15 B. 16 Tran also testified at the preliminary hearing. 17 21.) Incident on January 31, 2011, at Tran’s Home (See id. at He testified that on January 31, 2011, he was sleeping in 18 his house in San Gabriel when, at around 1:10 a.m., he woke to 19 find someone wearing a black ski mask standing in his bedroom, 20 holding a flashlight and pointing a gun in his face. 21 21-23.) (See id. at Tran said the suspect was a man, “heavy-set,” about 22 “five-five, five-six.” 23 shirt or sweatshirt. (Id. at 23.) The man was wearing a white (See id. at 24, 36-37.) Tran said the 24 suspect pointed the gun at his face from about a foot away. (Id. 25 at 25.) 26 Tran testified that the suspect said that “somebody told 27 him” Tran “got money in the house.” (Id.) Tran told the suspect 28 that “I have no money in the house” but “what you want, you can 10 1 take it.” (Id.) Tran got his wallet, and he gave the suspect 2 what he thought were “two hundred-dollar bills and a couple 3 twenties and a couple five [sic] and ones,” and the suspect put 4 the money in his pants pocket. 5 took Tran’s Rolex watch. (Id. at 26.) (Id. at 26-27.) The suspect also Tran said the suspect 6 pointed the gun at him throughout the incident. (Id. at 28-29.) 7 After the suspect left, Tran called the police “right away.” 8 (Id. at 29.) 9 Tran said he had working surveillance cameras at his house 10 that night. (Id.) The prosecutor played one video clip from 11 Tran’s surveillance cameras, and Tran said he recognized the 12 footage, which showed the side of Tran’s house the night of the 13 incident. (Id. at 30-31.) 14 the suspect in the ski mask. Tran confirmed that the video showed (Id.) Tran said he saw only the 15 suspect’s eyes because he was wearing the ski mask. (Id. at 31.) 16 C. 17 San Gabriel Police Officer Nhat Huynh testified that he was Other Testimony 18 on duty on January 31, 2011, when, at about 1:10 a.m., he 19 received a radio call to respond to Tran’s home about a robbery 20 home invasion. (Id. at 40-43.) Because he was nearby, he got to 21 Tran’s home in “literally less than 10 seconds.” (Id. at 40.) 22 Upon his arrival, Officer Huynh saw a red Toyota Corolla speeding 23 away. 24 (Id. at 41.) Officer Huynh switched on his lights and sirens and pursued 25 the Toyota, but the vehicle “sped up even more” and ran a couple 26 of stop signs. (Id. at 42-44.) Huynh pursued the vehicle over 27 surface streets, and during the pursuit he saw the driver throw 28 “a hat or beanie” out the car window. 11 (Id. at 45.) The vehicle 1 drove through a road-closure barricade, got on the freeway, and 2 began traveling at speeds of “over 100 miles an hour.” 3 44-46.) The vehicle eventually exited the freeway. (Id. at (Id. at 46.) 4 Officer Huynh said that as it did so, the suspect threw 5 “numerous” other objects out of the car; at one point he “saw a 6 white shirt being tossed out the window.” (Id. at 47-48.) 7 Officer Huynh testified that after a pursuit that “zigzagged” on 8 surface streets “all over that portion of Los Angeles,” the 9 vehicle finally yielded, and the driver stepped out of the car. 10 (Id. at 48-49.) Officer Huynh identified Petitioner as the 11 driver whom police apprehended at the scene. 12 (Id. at 49.) A subsequent search of the car recovered “numerous items,” 13 including “Chanel, Gucci, [and] Louis Vuitton purses.” (Id.) 14 Another officer searched Petitioner and recovered money that “was 15 a mixture of hundreds, twenties, tens, and fives.” 16 51.) (Id. at 50- Police also found a “black gun bag” in the car, but they 17 did not recover a gun. (Id. at 51.) On cross-examination, 18 Officer Huynh testified that police reports did not reflect that 19 police recovered a gun, a Rolex watch, or any gloves from the 20 car. 21 (Id. at 52-53.) A criminalist from the Los Angeles County Sheriff’s Crime 22 Lab, Sean Yoshii, testified that he performed DNA testing on a 23 black ski mask recovered following the vehicle pursuit and on an 24 “oral reference sample” taken from Petitioner. 25 62.) (See id. at 57- Yoshii testified that “[t]he profile I obtained from the 26 black ski mask is a mixture consistent with two contributors,” 27 and “[t]he profile and major contributor matches the profile of 28 [Petitioner].” (Id. at 62-63.) Yoshii testified that the odds 12 1 of finding another “African-American or black” person with the 2 same DNA genetic profile “would be one in 273 quintillion.” 3 at 64.) (Id. On cross-examination, he testified that the “the minor 4 contributor was very minor in this profile, showing up in only 5 five of the 15 DNA locations.” 6 (Id. at 74.) San Gabriel Police Officer Robert Barada testified that he 7 was part of the police pursuit on January 31, 2011, and when he 8 conducted a search along the route afterward, he recovered a 9 black ski mask, a glove, and a black duffle bag. 10 78.) (See id. at 76- Barada said the duffle bag had miscellaneous jewelry in it. 11 (Id. at 77.) Officer Barada did not find a gun, a flashlight, 12 any cash, or a white shirt or sweatshirt. (Id. at 80.) 13 II. The Events Surrounding Petitioner’s Plea 14 A. 15 16 Discussions Concerning Plea Negotiations Outside Petitioner’s Presence At the telephonic conference conducted outside of 17 Petitioner’s presence on September 13, 2012, the court noted that 18 “[t]his is here for jury trial” and asked for “some basic 19 information about this trial.” (Lodged Doc. 2, 2 Rep.’s Tr. at 20 601-02.) 21 Petitioner’s counsel responded, 22 I did see [Petitioner] in the lockup at the courthouse. 23 He was very distraught. 24 himself. 25 and asking that I be relieved, and things of that sort. 26 (Id. at 605.) He is talking about injuring He’s also divulged coming into court tomorrow Counsel said that Petitioner “is asking to make a 27 counteroffer to the prosecution in the case.” (Id.) The court 28 said, “Let me hear what the offer is outstanding,” and the 13 1 following colloquy occurred: 2 [Prosecutor]: 3 [Petitioner’s counsel]: And [Petitioner] had asked 4 The current offer is 25 years. me to counter at 19 years. 5 6 [Prosecutor]: I will take 19 years to my supervisor and discuss it with her today, absolutely. 7 (Id.) The court later commented that “in light of the ongoing 8 discussions with what appears to me to be a very serious 9 counteroffer — that’s a serious amount of time, 19 years — my 10 inclination . . . is to have you back here first thing tomorrow 11 morning.” (Id. at 608.) The court said it would not order a 12 jury panel until the following week. (See id. at 608-09.) 13 The prosecutor objected, stating, 14 I am requesting that the court order the panel tomorrow. 15 While there is a 19-year offer, and that is a substantial 16 amount of time, this case has been through a lot of 17 negotiation prior to me getting the case. 18 [Petitioner’s counsel] himself actually spoke with my 19 head deputy and the two of them personally met on the 20 case. . . . The offer was originally over 27 years, plus 21 consecutive time on the residential burglary from 2009. 22 And I think my boss came down to 25 years. 23 believe she is likely to come down any lower at all. So 24 I of 25 resolving the case tomorrow. don’t believe there is any realistic And I think I don’t chance 26 (Id. at 609.) 27 The court asked Petitioner’s counsel for his thoughts, and 28 counsel said, 14 1 Well, you know, I think it is a fantastic offer by 2 [Petitioner], and I think he’s come a long way towards 3 acceptance of responsibility in this case. 4 court on its own, if the court were inclined to also 5 accept 19 years. . . . 6 Monday, I think that is a good idea. 7 (Id.) I think the As far as ordering a panel on The court declined to order a panel for the next day. 8 (Id. at 610.) 9 10 B. Further Discussions Before Acceptance of Plea Another hearing was held the next day, with Petitioner and 11 his counsel present. (See id. at 901.) The court announced that 12 “we are here for trial” and asked the prosecutor “what the status 13 is concerning any plea negotiations at this point” and “[h]ow 14 would the court get to the 19 years” that Petitioner sought in a 15 plea bargain. (See id. at 901-02.) The parties and the court 16 discussed at length how the sentence in Petitioner’s other case — 17 the one he had been out on bail on when he committed the crimes 18 in this case — would figure into a plea bargain. 19 902-04.) (See id. at They also discussed whether Petitioner had prior 20 “strike” convictions that would affect sentencing calculations 21 and whether the two sentences would have to run consecutively or 22 could run concurrently. (See id. at 905-10.) Based on the 23 prosecutor’s representations, the court said it understood the 24 People’s plea offer to be for 25 years; it added, “I am in effect 25 unable to get to any lower number unless I strike the strike,” 26 and “based upon the information that I heard, [I am] unwilling to 27 do that at this time.” 28 (Id. at 910-11.) Petitioner’s counsel then informed the court that Petitioner 15 1 wanted to bring a Faretta motion, and the court examined 2 Petitioner about whether he wanted to discharge his counsel and 3 represent himself. (See id. at 911-12.) Petitioner told the 4 court that he wanted counsel relieved because “[i]t is just the 5 communication has been off between the firm and himself and 6 myself.”8 (Id. at 912.) Petitioner said, “I believe we could 7 have came [sic] to a resolution of this case a long time ago” and 8 that he had “been willing to dissolve [sic] this case.” 9 913.) (Id. at The court replied, “Mr. Pollard, let me suggest to you, 10 based upon what I hear, unless you are not willing to take 25 11 years, you can resolve this case,” and Petitioner said, “[y]es, I 12 totally understand that.” 13 (Id.) The court also told Petitioner that it believed that “no 14 other lawyer” could “get you less than 25 years” “in light of the 15 People’s position.” It noted that it had “done [its] (Id.) 16 best” to try to “move the People down below 25” but was unable to 17 do so. (Id.) It acknowledged that in agreeing to 19 years 18 Petitioner was accepting “a lot of time,” and “I have reiterated 19 that to the People and have suggested to them that they should 20 reach a resolution.” (Id.) It noted that “presumably the People 21 will take what I have to say at least as seriously as any private 22 counsel that you might get.” 23 the court for its efforts. 24 (Id. at 914.) Petitioner thanked (Id. at 913.) The court then effectively denied Petitioner’s motion to 25 26 27 28 8 Petitioner’s counsel later explained that he had been part of another law firm that had represented Petitioner and had made earlier appearances in the case, but counsel had since left that law firm but kept Petitioner’s case. (See Lodged Doc. 2, 2 Rep.’s Tr. at 915.) 16 1 relieve his counsel, finding that because “they are not willing 2 to budge” it wouldn’t “make any difference as to which private 3 counsel . . . you get” (id. at 914); Petitioner eventually 4 pleaded no contest to two counts (id. at 1216). Right before he 5 did so, the court warned Petitioner that 6 I also have to consider the [criminal] history and the 7 charges. 8 information is going to cause me to suggest at the front 9 end of the case that I’m willing to strike the strike or And what I’m telling you is that no additional 10 that I’m willing to give you a probation offer. 11 information will become relevant to this court if in fact 12 you’re convicted and you’re sentenced. The 13 Now, at that point — I don’t want you to read too 14 much into what I’m saying. At that point, I’ll take into 15 consideration as mitigation what you’re showing me. 16 I’m not suggesting to you that your sentence is going to 17 be any particular sentence. 18 consistent 19 independent judicial officer. 20 (Id. at 1205.) with my But I can’t say that right now, obligations and duties as an Do you understand that? Petitioner stated that he did. (Id.) The court 21 reiterated that 22 I can’t do anything for you in terms of the sentence. 23 You have to decide whether you want to accept the 24 People’s offer or not because I can’t get to a lower 25 point than the 25 years without striking a strike, and 26 I’m telling you I’m not striking a strike at this point. 27 (Id.) The prosecutor then noted that if Petitioner went to trial 28 and was convicted, he would ask for the maximum sentence, “over 17 1 30 years.” (Id. at 1207.) The court asked the prosecutor to 2 clarify exactly what the sentence would be so that Petitioner 3 could “make a thoughtful judgment in this matter,” and the 4 prosecutor responded, “32 years 8 months maximum,” which defense 5 counsel did not dispute. 6 (Id. at 1208.) The court took a recess, and when it reconvened, Petitioner 7 asked for a precise calculation from the prosecutor as to how he 8 arrived at that sentence and wanted to know “whether or not the 9 court agrees with the calculation.” (Id.) The court and counsel 10 then went through the calculation at length, finally determining 11 that the actual maximum sentence for both cases would be 34 years 12 and four months. 13 (Id. at 1213; see also id. at 1209-13.) The court then began the plea colloquy with Petitioner, but 14 Petitioner interrupted it “to ask the prosecutor, with the 15 court’s permission, whether it’s possible to get 23 years plus 16 that 16 months” on the other case, to run concurrently. 17 1213-14.) (Id. at The court and counsel discussed the issue off the 18 record9 and then took a recess, during which the prosecutor 19 apparently raised the issue with his supervisor. 20 15.) (Id. at 1214- The prosecutor subsequently agreed to reduce the sentence 21 to 23 years and eight months as a result of Petitioner’s 22 counteroffer (id. at 1215), and Petitioner confirmed in open 23 court that he accepted the plea agreement (id. at 1216). 24 C. 25 On May 23, 2013, the court set forth a detailed procedural, Trial Judge’s Factual Findings 26 27 28 9 Petitioner has presented no evidence or argument as to what took place during this or any other off-the-record discussion. 18 1 factual, and legal background concerning Petitioner’s plea in its 2 order denying Petitioner’s application for a certificate of 3 probable cause. (See Pet. at 24-31.) As discussed infra, 4 because even under de novo review the superior court’s recitation 5 of the facts is presumed correct, this Court quotes that order in 6 pertinent part as follows: 7 On September 14, 2012, the parties appeared for 8 trial. 9 private counsel, Christopher Darden. Mr. Darden informed 10 the Court that [Petitioner] wanted to address the Court 11 directly. 12 anxious to settle the case short of trial and asked the 13 Court for its help in trying to resolve it: At the time, [Petitioner] was represented by [Petitioner] then explained that he was 14 I’m almost 100 percent [sic] we can resolve 15 this case. 16 small 17 together . . . and speak to my family, just to 18 inform 19 works . . . . 20 me or assistance as far as helping me resolve 21 this, I’d really appreciate it. 22 The Court then arranged to allow [Petitioner] to I just need time, a little time, a fraction them of time exactly to how get something all this Any kind of help you can give 23 speak with his family, who were in the audience. 24 doing so, the Court explained that it was unwilling to 25 give an indicated sentence lower than the People’s offer 26 of 25 years, and that he therefore had to consider 27 whether he wanted to reach a disposition with the People. 28 The court also informed [Petitioner] that he should not 19 Before 1 allow anyone, including his family, to pressure him to 2 make a decision. 3 accept 4 satisfied that 5 pressured. [Petitioner] acknowledged that he would have 6 to represent to the Court that he made “a deliberative 7 choice, a thoughtful choice” free from any undue coercion 8 and pressure. 9 The Court emphasized that it would not [Petitioner]’s After change [Petitioner] further of plea had reflection not unless it been and was unduly discussion, 10 [Petitioner] made a counter-offer of 23 years. 11 People then lowered its offer to 23 years and 8 months. 12 [Petitioner] accepted that offer and changed his plea to 13 “no contest” as to the first degree residential robbery 14 charge in Count 1 and the first degree residential 15 burglary charge in Count 4. 16 personally used a firearm in committing the robbery and 17 that he had suffered a prior strike offense. 18 accepted the change in the plea and the two admissions 19 and found [Petitioner] guilty on Counts 1 and 4 and found 20 true the firearm and prior-conviction allegation. 21 Court found the plea and waivers were clearly made 22 knowingly, intelligently, voluntarily, and freely. 23 Court then set sentencing and [Petitioner]’s motion for 24 return of property on October 26, 2012. 25 On October 15, 2012, 26 27 28 20 The He also admitted that he [Petitioner] The Court filed The The a 1 handwritten letter to the Court.10 2 [Petitioner] explained that he had carefully considered 3 whether to enter into the plea agreement and that he 4 remained convinced that it was in his best interest to do 5 so: In that letter, 6 On September 14, 2012, I decided that it was 7 in my best interest to plead no contest which 8 is the same as a guilty plea. 9 it feels as if the weight of the world has 10 I must say that been lifted off my shoulders. 11 In that letter, [Petitioner] was requesting that the 12 Court allow him to participate in a residential program 13 offered by the Delancey Street Foundation. 14 The sentencing hearing was continued to November 16, 15 2012. 16 that [Petitioner] wished to represent himself and file a 17 motion 18 [Petitioner]’s request after [Petitioner] completed a 19 Faretta waiver form and after speaking with [Petitioner]. 20 The Court then set the matter for further proceedings on 21 November 30, 2012, to ensure that [Petitioner] received 22 all the material he needed to proceed with his motion to 23 withdraw 24 investigator for [Petitioner]. At that hearing, Mr. Darden informed the Court to withdraw his plea. his plea. The Court The also Court granted appointed an 25 On November 30, 2012, [Petitioner] informed the 26 Court that he was ready to set a hearing date for his 27 28 10 This letter is apparently not in the record. 21 1 motion, but requested that the hearing date be scheduled 2 in 60 days. The Court granted [Petitioner]’s request and 3 set the hearing on February 15, 2013. 4 2013, [Petitioner] filed his motion to withdraw his plea. 5 In 6 alleging that (i) the San Gabriel police department 7 committed misconduct in its investigation (e.g., offering 8 “forged documents” and “deceiving witness[es]”); and 9 (ii) his motion, the [Petitioner] prosecution raised engaged in On January 28, several Brady issues, violations. 10 [Petitioner]’s motion was almost entirely conclusory and 11 unsupported by any evidentiary submission other than a 12 general 13 allegations. 14 declaration attesting to the conclusory Two days before the scheduled hearing, [Petitioner] 15 filed a supplement to his motion. 16 [Petitioner] 17 counsel was ineffective, that he had not suffered a prior 18 strike conviction (despite his admission on September 14, 19 2012 that he had suffered that conviction), and that he 20 was induced by an illusory promise to enter into the plea 21 agreement. 22 conclusory and unsupported. It appears that [Petitioner] 23 was asserting that his counsel was ineffective because he 24 failed “to investigate the true facts in the case,” and 25 that he was induced to enter into the plea by the 26 illusory promise by his counsel that he would be allowed 27 “to litigate the merits of the return of [Petitioner]’s 28 property.” raised new issues, In the supplement, including that his Once again, [Petitioner]’s allegations were [Petitioner] neglected to serve the motion 22 1 and supplemental papers on the People, necessitating a 2 continuance of the hearing. 3 On March 1, 2013, the parties appeared for a hearing 4 on the motion. 5 [Petitioner] was ready to proceed with the hearing on his 6 motion. 7 Court then heard extensive argument. 8 hearing, the Court expressly asked [Petitioner] if he had 9 anything further to say. The Court specifically inquired whether [Petitioner] stated that he was ready. The Before ending the After giving [Petitioner] an 10 additional opportunity to be heard, the Court inquired 11 whether [Petitioner] was prepared to submit the motion 12 for the Court’s decision. 13 was submitting the matter for decision. [Petitioner] stated that he 14 The Court denied the motion, explaining: 15 [Petitioner] entered into a plea agreement on 16 September 14, 2012. 17 the plea proceedings and carefully monitored 18 those 19 resulting plea would be made knowingly and 20 voluntarily, and free of any coercion. 21 court made a point of this to [Petitioner] 22 during the proceedings. 23 [Petitioner] accepted the People’s offer and 24 entered a “no contest” plea. 25 the Court that the defendant’s only material 26 concern was the total amount of time he would 27 be getting under the agreement, and that the 28 final proceedings offer of 23 This Court presided over to make years 23 sure that any The It was clear to and 8 months was 1 acceptable to him. 2 Court 3 agreement of his own free will without any 4 undue coercion, threats, or promises. 5 After entering the plea, [Petitioner] moved to 6 withdraw 7 surveillance was fraudulent or fabricated in 8 some way. The Court understood [Petitioner] to 9 be suggesting that an analysis of the video that It was also clear to the [Petitioner] it, entered claiming that into the the video 10 would support a claim of innocence. 11 the claim, the court was not about to sentence 12 [Petitioner] to more than 23 years in prison 13 without allowing [Petitioner] to have an expert 14 analyze 15 appointed 16 proceedings. 17 The Court received the expert’s report and 18 independently reviewed the video surveillance 19 that the expert had analyzed. 20 the Court is satisfied that the video is not 21 exculpatory. 22 the 23 preliminary hearing provides a factual basis to 24 support the “no contest” plea. 25 Court found that [Petitioner] was aware of his the other video. an The expert Court and Based on therefore continued the Having done so, The Court is also satisfied that evidence as 26 27 28 24 presented at the Moreover, the 1 fraud claim11 before he entered his “no contest” 2 plea. 3 [Petitioner] stated that he had entertained 4 such a belief before he agreed to the plea. 5 The Court accordingly found that the fraud 6 claim did not provide a basis for withdrawing 7 his plea. 8 After raising the fraud claim, [Petitioner] 9 then Indeed, on or about November 30, 2012, expanded the scope of his motion to 10 withdraw his plea, asserting largely conclusory 11 claims about: 12 counsel”; (ii) “police misconduct”; (iii) his 13 admitted 14 (iv) being “induced by an illusory promise.” 15 In (i) “ineffective assistance of “prior denying the strike motion, conviction[”]; the Court and found that 16 [Petitioner] failed to support any of his allegations 17 about police misconduct or ineffective assistance of 18 counsel. 19 documents submitted by the prosecution, that [Petitioner] 20 indeed 21 committing assault with a deadly weapon (i.e., a pipe or 22 metal object), causing great bodily injury. 23 appeared that his admission to a prior strike conviction 24 had a strong factual basis. The Court further found that had The Court also concluded, from supporting suffered a prior strike conviction for It thus 25 26 11 Petitioner’s “fraud claim” was apparently his allegation 27 that police had fabricated evidence having to do with the surveillance tapes. 28 Petition. He has not renewed that claim in the 25 1 [Petitioner]’s 2 meritless. 3 with [Petitioner] in open court on September 14, 2012. 4 Immediately after [Petitioner] had changed his plea, Mr. 5 Darden, [Petitioner]’s counsel at the time, notified the 6 Court that his client intended to move for the return of 7 the property found in [Petitioner]’s car on the day he 8 was arrested. 9 the subject and scheduled a hearing to “adjudicate” the 10 claim that [Petitioner] was entitled to the return of the 11 property. 12 evidentiary hearing and granted in part and denied in 13 part [Petitioner]’s motion for the return of property. 14 The Court’s ruling is set forth in a minute order dated 15 April 29, 2013. claim of an “illusory promise” was This Court specifically addressed the issue The Court had extensive discussion about On April 29, 2013, the Court conducted an 16 (Pet. at 26-30 (some citations omitted).) 17 The court denied the application for a certificate of 18 probable cause, noting that Petitioner had had “a full and fair 19 opportunity to timely present all his claims” but that they did 20 not “rise to the level of probable cause” and were “meritless.” 21 (Id. at 30-31.) 22 D. 23 As discussed above, after Petitioner discharged his counsel The Video Expert 24 and moved to withdraw his plea, the court appointed both an 25 investigator and a “video expert” to help Petitioner investigate 26 whether the surveillance videos had been altered or fabricated. 27 (See Lodged Doc. 2, 2 Rep.’s Tr. at 1802-11.) Petitioner has 28 attached to the Petition a copy of a declaration signed on 26 1 February 8, 2013, from the court-appointed audio/video expert, 2 Michael L. Jones. (See Pet., Jones Decl. at 19-20.) 3 submitted the declaration to the state courts. Petitioner (See Lodged Doc. 4 2, 2 Rep.’s Tr. at 2728-29; Lodged Doc. 10 at 13-17; Lodged Doc. 5 12 at 14-18; Lodged Doc. 14 at 26-30.) 6 Jones declared that the defense investigator gave him one 7 11-second video clip. (See Jones Decl. ¶ 5.II.) He opined that 8 [t]he video contained on the CD is a screen capture of 9 the original video, and was not harvested directly from 10 the 11 utilized a video recording device to capture images of 12 the incident projected from a visual monitor. surveillance system. In other words, a party 13 (Id. ¶ 5.IV.) 14 Jones went on to declare that “[a]fter analyzing and 15 enhancing the image(s) of the subject memorialized on the video 16 in question, the subject appears to be Caucasian or a light 17 complexioned individual.” (Id. ¶ 5.VII.) Jones also declared 18 that he had reviewed “additional surveillance images” — 19 apparently still photos — forwarded to him by the Los Angeles 20 County Sheriff’s Department and purportedly depicting “additional 21 surveillance images from burglary victim Robert Guerrero.” 22 ¶ 6.A.) (Id. Jones opined that “[t]he images forwarded to the 23 Sheriff’s by Mr. Guerrero bear a strong resemblance to the 24 subject memorialized on the video disc in my custody.” (Id.) 25 Jones further opined that “three (3) grainy, photo-copied images” 26 that were obtained from the Sheriff’s Department also portray 27 “the subject in question.” (Id. ¶ 6.C.) 28 27 1 2 STANDARD OF REVIEW Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and 3 Effective Death Penalty Act of 1996: 4 An application for a writ of habeas corpus on behalf of 5 a person in custody pursuant to the judgment of a State 6 court shall not be granted with respect to any claim that 7 was adjudicated on the merits in State court proceedings 8 unless the adjudication of the claim — (1) resulted in a 9 decision that was contrary to, or involved an 10 unreasonable application of, clearly established Federal 11 law, as determined by the Supreme Court of the United 12 States; or (2) resulted in a decision that was based on 13 an unreasonable determination of the facts in light of 14 the evidence presented in the State court proceeding. 15 Petitioner’s two claims do not appear to have been 16 “adjudicated on the merits” by the state supreme court, and thus 17 AEDPA’s deferential standard of review may not apply. Petitioner 18 raised his claims in habeas petitions to the court of appeal and 19 supreme court. (See Lodged Docs. 10, 12 & 14.) The court of 20 appeal considered the claims on the merits and denied them 21 summarily. (See Lodged Doc. 11.) The California Supreme Court 22 denied his first petition by citing Duvall, 9 Cal. 4th at 474, 23 and Swain, 34 Cal. 2d at 304 (see Lodged Doc. 13 at 2), and 24 denied the second by citing Miller, 17 Cal. 2d at 735 (see Lodged 25 Doc. 15 at 2). 26 The supreme court’s citations cast doubt on whether the 27 claims were “adjudicated on the merits” within the meaning of 28 § 2254(d) and thus whether AEDPA’s deferential standard of review 28 1 applies. See Gaston v. Palmer, 417 F.3d 1030, 1038-39 (9th Cir. 2 2005) (decision citing Swain is not final ruling on merits), as 3 modified on other grounds by 447 F.3d 1165 (9th Cir. 2006); 4 Espinoza-Matthews v. McDonald, No. EDCV 03-921-BRO-(CW), 2016 WL 5 2993961, at *8 (C.D. Cal. Feb. 12, 2016) (California Supreme 6 Court decision citing Swain and Duvall was not on merits for 7 purposes of AEDPA review), accepted by No. EDCV 03-921-BRO-(LAL), 8 2016 WL 2993951 (C.D. Cal. May 24, 2016); Carter v. Scribner, No. 9 2:04-cv-00272-MSB, 2009 WL 4163542, at *6 (E.D. Cal. Nov. 23, 10 2009) (citation to Miller is procedural dismissal that does not 11 constitute adjudication on merits), aff’d, 412 F. App’x 35 (9th 12 Cir. 2011). 13 Respondent concedes that Petitioner’s claims “appear to be 14 exhausted” and does not argue that they are procedurally 15 defaulted. (See Answer at 2.) Accordingly, Respondent has 16 waived any procedural-default argument. See Chaker v. Crogan, 17 428 F.3d 1215, 1220-21 (9th Cir. 2005). 18 Respondent nonetheless argues that AEDPA deference applies 19 because the court of appeal’s merits denial is “the relevant 20 adjudication for purposes of 28 U.S.C. § 2254(d) review of the 21 claims,” and “[t]his is so notwithstanding the California Supreme 22 Court’s subsequent rejection of those claims based on Swain, 23 Duvall, and In re Miller.” 24 (Answer at 9.) Respondent cites four cases in support of his argument: 25 Harrington v. Richter, 562 U.S. 86, 98 (2011); Greene v. Fisher, 26 132 S. Ct. 38, 45 (2011); Gonzalez v. Brown, 585 F.3d 1202, 1206 27 (9th Cir. 2009); and Ramsey v. Yearwood, 231 F. App’x 623, 624-25 28 (9th Cir. 2007). Three of those cases are readily distinguished, 29 1 however, because the supreme-court denials at issue were “silent” 2 and thus were presumptively on the merits, see Johnson v. 3 Williams, 133 S. Ct. 1088, 1096-97 (2013); the federal habeas 4 court was therefore authorized to “look through” to the lower 5 state-court opinions. See Richter, 562 U.S. at 98-100 6 (discussing unexplained summary denial from state supreme court); 7 Gonzalez, 585 F.3d at 1205-06 (concerning apparent summary denial 8 of discretionary review by California Supreme Court); Ramsey, 231 9 F. App’x at 624-25 (“look[ing] through” silent denial from 10 California Supreme Court). 11 Greene provides the strongest support for Respondent’s 12 argument. In Greene, the U.S. Supreme Court examined whether 13 “clearly established federal law” included decisions of the Court 14 that were announced after the last state-court adjudication of 15 the merits of a petitioner’s claims but before the petitioner’s 16 conviction became final. See 132 S. Ct. at 42. The petitioner 17 in Greene had presented a claim to the state appellate court, 18 which denied it on the merits; the state’s highest court allowed 19 an appeal but then dismissed it as “improvidently granted.” 20 id. at 42-43. See Petitioner argued that he was entitled to the 21 benefit of the Supreme Court decision even though it postdated 22 the last state merits determination. See id. at 44. The Supreme 23 Court rejected the argument: 24 The words “the adjudication” in the “unless” clause 25 obviously 26 merits,” and the phrase “resulted in a decision” in the 27 “unless” clause obviously refers to the decision produced 28 by that refer same back to the adjudication 30 on “adjudicat[ion] the merits. on A the later 1 affirmance of that decision on alternative procedural 2 grounds, for example, would not be a decision resulting 3 from the merits adjudication. 4 (what is at issue here) a decision by the state supreme 5 court not to hear the appeal — that is, not to decide at 6 all. 7 Id. at 45. And much less would be The Court proceeded to apply AEDPA deference to the 8 claims even though the state supreme court had never considered 9 their merits. Id. Respondent argues that Greene stands for the 10 proposition that a later supreme-court “affirmance” of an earlier 11 court-of-appeal decision “on alternate procedural grounds” does 12 not preclude review under AEDPA when the court-of-appeal decision 13 was on the merits. 14 (See Answer at 9-10.) But here there is no “affirmance on alternate procedural 15 grounds.” The supreme court’s denials of Petitioner’s habeas 16 petitions with citations to Duvall, Swain, and Miller were not 17 affirming the court of appeal but were akin to the grant of a 18 demurrer allowing leave to amend. 19 1039; Kim, 799 F.2d at 1319. See, e.g., Gaston, 417 F.3d at The supreme court thus arguably 20 left open the door for Petitioner to obtain further review of his 21 claims if he stated them more particularly. Further, because the 22 supreme court’s decisions were “reasoned,” this court may not 23 look through them to the court of appeal’s decision. See Fox v. 24 Johnson, 832 F.3d 978, 986 (9th Cir. 2016) (holding that summary 25 denial with single case citation was “reasoned” and, because 26 respondent waived procedural-default argument, reviewing de 27 novo). 28 In any event, as explained infra, Petitioner’s claims fail 31 1 even when reviewed de novo. See Berghuis v. Thompkins, 560 U.S. 2 370, 390 (2010) (“Courts can . . . deny writs of habeas corpus 3 under § 2254 by engaging in de novo review when it is unclear 4 whether AEDPA deference applies, because a habeas petitioner will 5 not be entitled to a writ of habeas corpus if his or her claim is 6 rejected on de novo review[.]”); see also Chaker, 428 F.3d at 7 1220-21 (when state fails to raise procedural default and state 8 court never adjudicated claim on merits, federal habeas court 9 reviews de novo). 10 When a federal habeas court conducts de novo review, it is 11 “unencumbered by the deference AEDPA normally requires,” and its 12 analysis proceeds under § 2254(a). See Hardy v. Chappell, 832 13 F.3d 1128, 1137 (9th Cir. 2016) (citing Frantz v. Hazey, 533 F.3d 14 724, 735-37 (9th Cir. 2008) (en banc)). When the reasoning of a 15 state court, even a trial court, is relevant to resolution of 16 constitutional issues, that reasoning may be part of a federal 17 habeas court’s consideration even under de novo review. See 18 Frantz, 533 F.3d at 738 (focusing, under de novo review, on 19 “trial court’s reasoning to determine whether a constitutional 20 violation occurred”). 21 Further, even under de novo review, this Court still 22 presumes the correctness of state-court factual findings and 23 generally defers to those findings absent clear and convincing 24 evidence to the contrary. See Pirtle v. Morgan, 313 F.3d 1160, 25 1167 (9th Cir. 2002) (citing § 2254(e)); Mayfield v. Woodford, 26 270 F.3d 915, 922 (9th Cir. 2001) (en banc) (under pre-AEDPA de 27 novo standard, federal court presumes state-court findings of 28 fact are correct and defers to those findings in absence of 32 1 “convincing evidence” to contrary or “demonstrated lack of fair 2 support” in record (citations omitted)).12 3 DISCUSSION 4 I. Petitioner’s Claim Concerning the Trial Court’s 5 Participation in Plea Negotiations Does Not Warrant Habeas 6 Relief 7 Petitioner argues that the trial court violated his rights 8 by (1) inserting itself into plea negotiations in violation of 9 Federal Rule of Criminal Procedure 11; (2) improperly influencing 10 or coercing Petitioner to accept a plea bargain with an “illusory 11 promise” that misrepresented Petitioner’s eligibility for a work 12 program and what Petitioner’s sentence would be; and (3) refusing 13 to allow Petitioner to withdraw his plea. 14 A. 15 The heading for this subclaim reads, “Trial judge improperly Violation of Rule 11 16 participated in plea discussions, in violation of Federal Rules 17 of Criminal Procedure, rule 11(c)(1).” 18 Petitioner’s claim is unavailing.13 (Pet. at 5.) Federal rules of procedure 19 generally do not apply in state-court proceedings. See Southland 20 12 Petitioner’s are arguably A 21 habeas court may not claimsan unexhausted unexhausted. it federal deny claim unless is not even “colorable.” See Cassett v. Stewart, 406 F.3d 614, 616 (9th 22 23 24 Cir. 2005) (federal habeas court may deny unexhausted claim when it is “perfectly clear” that claim is not “colorable”). As explained herein, that is the case with Petitioner’s claims. 13 Federal Rule of Criminal Procedure 11, entitled “Pleas,” 25 sets forth federal “Plea Agreement Procedure” and provides, in 26 pertinent part, that “[a]n attorney for the government and the defendant’s attorney, or the defendant when proceeding pro se, 27 may discuss and reach a plea agreement,” but “[t]he court must not participate in these discussions.” 28 11(a), (c)(1). 33 See Fed. R. Crim. P. 1 Corp. v. Keating, 465 U.S. 1, 16 n.10 (1984). A California judge 2 is not bound by those rules, moreover, and the rules are not 3 “laws” whose “violation” by a state court, without more, can form 4 the basis for a federal habeas claim. See, e.g., United States 5 v. Davila, 133 S. Ct. 2139, 2149 (2013) (holding that Rule 11 was 6 adopted as prophylactic measure, “not one impelled by the Due 7 Process Clause or any other constitutional requirement”); Loftis 8 v. Almager, 704 F.3d 645, 648 (9th Cir. 2012) (“While Fed. R. 9 Crim. P. 11 and its state analogs require additional safeguards, 10 violations of such rules do not ordinarily render a plea 11 constitutionally infirm and thus vulnerable to collateral 12 attack.” (citing, among others, Estelle v. McGuire, 502 U.S. 62, 13 68 n.2 (1991)). 14 Accordingly, Petitioner is not entitled to relief on his 15 Rule 11 claim. 16 B. 17 Petitioner complains that shortly before trial was scheduled Petitioner’s Plea and Motion to Withdraw It 18 to start, the trial judge improperly inserted himself into plea 19 negotiations, and because Petitioner’s counsel was ineffective, 20 Petitioner was “starting to feel pressure.” (Pet., Mem. P. & A. 21 at 2 (citing Lodged Doc. 2, 2 Rep.’s Tr. at 902, 1203).) 22 Before Petitioner pleaded no contest, his counsel told the 23 judge that Petitioner wanted to present “a letter from Delancey 24 Street Foundation,” “an alternative incarceration program that 25 the Petitioner had applied to,” and “through a 3-step 26 interviewing process the Petitioner received an acceptance letter 27 into the program by US mail.” (Id. at 2-3.) Petitioner avers 28 that based on the colloquy that followed, he formed the 34 1 impression that he could accept a plea bargain but nevertheless 2 be diverted to a two- or four-year program at Delancey Street in 3 spite of whatever sentence Petitioner agreed to in the plea 4 bargain. 5 916)). (See id. at 3-4 (citing Lodged Doc. 2, 2 Rep.’s Tr. at Petitioner acknowledges, however, that his counsel also 6 told the court that “these are the kind of things I would present 7 in a Romero motion in the event [Petitioner] was convicted prior 8 to sentencing.” (See id. at 3 (citing Lodged Doc. 2, 2 Rep.’s 9 Tr. at 916-18).)14 Petitioner notes that the trial court said it 10 would “certainly” take into consideration “this information 11 if . . . [Petitioner] were convicted in this matter.” 12 (citing Lodged Doc. 2, 2 Rep.’s Tr. at 918).) (Id. Petitioner avers 13 that “[t]his statement by the judge was the beginning of the 14 undue coercion created by the court by participating in plea 15 discussions which had not been agreed upon in open court.” (Id.) 16 Petitioner goes on to state that after he pleaded no contest he 17 “discovered through petitioner’s own legal research that 18 petitioner never had a chance to participate in the Delancey 19 Street Program due to petitioner’s prior history.” 20 21 1. (Id. at 5.) Additional Background The trial judge addressed Petitioner’s claims in numerous 22 23 14 A so-called “Romero motion,” see Cal. Penal Code § 1385, 24 is a request for dismissal of a prior “strike” conviction that could be used to enhance a sentence under California’s Three 25 Strikes Law. See People v. Superior Court (Romero), 13 Cal. 4th 26 497 (1996); see also Daire v. Lattimore, 818 F.3d 454, 466 (9th Cir. 2016) (when defendant brings Romero motion, judge may 27 disregard prior felony for sentencing purposes under California’s Three Strikes Law, but “denial of a Romero motion is generally 28 the expectation, not the exception”). 35 1 hearings, and it set forth its findings in three written orders: 2 (1) a minute order dated April 2, 2013 (Lodged Doc. 1, Clerk’s 3 Tr. at 191-92), (2) a minute order dated April 15, 2013 (id. at 4 213-14), and (3) the Order Denying Application for Certificate of 5 Probable Cause filed on May 23, 2013 (see Pet. at 24-31). 6 At a hearing on September 14, 2012, with Petitioner present, 7 the trial court inquired “what the status is concerning any plea 8 negotiations at this point”; neither Petitioner nor his counsel 9 raised any objection. (See id. at 902-03.) Petitioner addressed 10 the court at that hearing, saying, “I believe we could have came 11 [sic] to a resolution of this case a long time ago,” and “[l]ike 12 I said, I have been willing to dissolve [sic] this case.” 13 at 913.) (Id. The trial judge shared his thoughts on sentences 14 proposed in plea negotiations to that point, and Petitioner said 15 “Yes, sir” and “I thank you for that.” (Id.) Later that same 16 day, Petitioner informed the court that “I would like to resolve 17 the case, and I think we can resolve the case” — “I’m almost 100 18 percent we can resolve the case.” (Id. at 1202.) He asked for 19 “any kind of help” or “assistance” the court could give him. 20 (Id. at 1203.) 21 The court went on to explain that Petitioner could accept 22 the prosecution’s plea offer, or “you could say I want to stand 23 on my constitutional rights, I want to challenge this case at a 24 jury trial.” (Id. at 1205-06.) He asked Petitioner to “[b]ear 25 in mind that you should not allow anyone to pressure you . . . 26 [a]nd you should feel no pressure . . . [b]ut ultimately the 27 decision has to be yours.” 28 (Id. at 1206.) Finally, the court stated as follows: 36 1 If you decide that you want to accept the offer after 2 speaking with your family members, you have to be able to 3 look me in the eye and honestly tell me that: this is my 4 decision. 5 else to accept this deal. 6 feel some pressure because of the circumstances, in other 7 words, I’m looking at a lot of time. But ultimately I’ve 8 made a deliberative choice, a thoughtful choice, and I’ve 9 decided that I want to accept the offer. . . . 10 This is my decision. I may Do you understand what I’m telling you? 11 (Id. at 1206.) 12 I’m not being pressured or forced by anyone Petitioner responded, “Yes, sir.” (Id.) Shortly before Petitioner pleaded no contest, his counsel 13 communicated Petitioner’s request to be referred to the Delancey 14 Street program, which, in Petitioner’s own words, was meant to 15 “help[] someone like myself — ex-cons.” (Id. at 916, 918.) The 16 trial court stated that although it “certainly would take into 17 consideration this information if, in fact, [Petitioner] were 18 convicted in this matter, it does not provide a basis for the 19 court at this time to give any type of indicated sentence.” 20 at 916.) 21 22 The following colloquy then occurred: The Court: Is it your hope that the court is going 23 to somehow give you an indicated sentence on probationary 24 terms at the outset of the case? 25 hoping? 26 [Petitioner]: 27 The Court: 28 Is that what you are No, sir. What is it that you hope to accomplish with respect to presenting this information to another 37 (Id. 1 lawyer, to the court, or to myself? 2 [Petitioner]: Well, what I am hoping to get is, I 3 have been getting different information from different 4 members of the firm.15 5 in circles. 6 The Court: So in my mind — my mind is going That is what I am trying to explain to 7 you. 8 I am trying to explain to you is that this information 9 that you seek to present to the Court — And I understand where you are coming from. What 10 [Petitioner]: 11 The Court: 12 [Petitioner]: 13 The Court: But its usefulness is only going to come 14 Yes, sir. — is useful information potentially? Yes, sir. about — 15 [Petitioner]: 16 The Court: 17 [Petitioner]: 18 (Id. at 919.) Yes, sir. – if you are convicted in this case. Yes, sir. The court then clarified that such information was 19 “premature” and would not be “particularly useful at this time.” 20 (Id. at 920.) It also commented that “right now Mr. Darden is 21 undoubtedly focused on trying this case . . . trying to avoid a 22 conviction so sentencing isn’t necessary.” (Id. at 921.) The 23 court eventually took Petitioner’s no-contest plea at that same 24 hearing, and Petitioner got the prosecutor to agree to his 25 counteroffer of a total sentence of 23 years and eight months, 26 27 15 28 firm. This presumably refers to attorney Darden’s former law 38 1 with no further mention of the Delancey Street program. (See id. 2 at 1208-26.) 3 At a hearing on March 1, 2013, about Petitioner’s motion to 4 withdraw his plea, the trial court stated that “I also have 5 reviewed yet again the transcript of the hearing of the taking of 6 the plea on September 14 of 2012,” and 7 I also have received and reviewed a letter that was sent 8 to the court by [Petitioner] on October 11, 2012. 9 that was shortly after the court took the plea and 10 [Petitioner] wrote a note indicating that he wished to be 11 given a Delancy [sic] Street Foundation alternative to a 12 straight-out prison sentence. And 13 (Id. at 2701-02.) 14 The trial court stated that it had personally reviewed the 15 evidence in the case, including the surveillance videos, and 16 found it “substantial.” (Id. at 2709-10.) The judge quoted from 17 the October 11 letter, stating that Petitioner had said that “I 18 must say that it feels as if the weight of the world has been 19 lifted off my shoulders” as a result of the plea. (Id. at 2710.) 20 The court then asked Petitioner for clarification about why he 21 sought to withdraw his plea. 22 (See id. at 2713.) Petitioner stated that “I am asserting that I am factually 23 innocent,” and he said that “[w]hat I’m saying to you [is] . . . 24 I expressed to [ex-counsel] the chain of events totally and 25 truthfully . . . [and h]e totally lied to me and did not 26 investigate the chain of events.” (Id.) Petitioner went on to 27 state that “I understand that someone else that fits the 28 description has been out there committing the crimes,” and “I am 39 1 not that person.” (Id.) Petitioner said, “This has nothing to 2 do with the prison time” and “is all about coming totally clean.” 3 (Id.) 4 When the trial court asked Petitioner why, then, he had 5 accepted the plea deal, Petitioner stated, “[t]hat plea was 6 entered because on the . . . faulty advice of counsel that if I 7 didn’t take some sort of deal, that I would spend the rest of my 8 life and possibly die.” (Id. at 2714.) Petitioner said his 9 ex-counsel “expressed to me that people find love in their old 10 age; you need to take the deal.” (Id.) Petitioner did not make 11 any allegations concerning Delancey Street or the trial court’s 12 participation in the plea negotiations. 13 The court then noted that it had conducted lengthy plea 14 proceedings and endeavored to make sure that Petitioner was 15 “entering this plea agreement freely, voluntarily, and of your 16 own volition.” (Id. at 2714-15.) “So when you tell me that you 17 were feeling pressured and that you entered into this decision in 18 effect because someone else forced you to do so, because your 19 counsel in effect pressured you to do so, I must tell you that is 20 not consistent with my finding of facts in this matter.” (Id. at 21 2715.) 22 Petitioner then asked the court to allow him “to speak on 23 the illusionary [sic] promise that I would receive my property,” 24 which Petitioner asserted was made “[b]y the court, by the 25 prosecution, and [by] my attorney.” (Id. at 2715-16.) 26 Petitioner stated that “I’m referring to my counsel promised me 27 that I would be able to get my property upon that plea.” 28 2716.) 40 (Id. at 1 The trial court responded, 2 The court finds that there was no illusory promise that 3 was relied upon. . . . 4 finding is because not only did you acknowledge . . . in 5 open court that there were no promises made to you, other 6 than those that were made in open court that were 7 transcribed, but the transcription of the record will 8 show that there were no promises made to you other than 9 the court would conduct a contested hearing on the 10 ownership of the property held by the Agency in the event 11 that the parties could not reach a mutually agreeable 12 resolution. . . . 13 such a hearing . . . . 14 been aborted because of the motion to withdraw the plea. The reason the court makes that And the court does intend to conduct [But t]hat contested hearing has 15 (Id. at 2717-18.) 16 Petitioner then complained that his counsel had inadequately 17 advised him about the nature of his prior “strike” conviction. 18 (See id. at 2720-23.) He gave other reasons for wanting to 19 withdraw his plea as well: “police misconduct of the DNA reports, 20 on the chain of custody,” the court-appointed video expert 21 finding that the person in the video looked “Caucasian,” and the 22 criminalist testifying at the preliminary hearing that DNA from 23 two contributors, one of them Caucasian, was found on the ski 24 mask. (Id. at 2725, 2728.) 25 The court then commented, 26 [T]he court did review the declaration by the person 27 reviewing the video. 28 makes appropriate note that the quality of the image is The person reviewing the video 41 1 less than ideal. . . . 2 the person appears to be Caucasian or light complexion. 3 I will tell you that, based upon my own review of that 4 [video], it was impossible to tell the race of the person 5 involved. 6 complexion; although it’s not clear to me whether that 7 was attributable to the lighting or whether that was, in 8 fact, something that a person viewing the video could 9 accurately ascertain. . . . It looked The declarant further notes that like the person was lighter I will note that you are a 10 light-skinned African-American, quite light-skinned, in 11 my view. 12 appears to match the body type that I saw on that video. And I will also note that your body type 13 (Id. at 2728-29.) 14 Petitioner objected to the trial court’s findings (see id. at 15 2729), but the court stated, 16 I looked at the video with in mind [sic] the purpose for 17 which you had presented it, which was that the videotape 18 in effect exonerates you. 19 videotape, 20 declaration, does not do so . . . . [I]f I thought that 21 it did, I would be very reluctant, of course, to accept 22 a guilty plea in this case and to sentence you in this 23 matter. which you And in my judgment, the have presented along with the 24 (Id.) 25 Petitioner then said that “I never said that the videotape 26 exonerates me.” (Id. at 2730.) Petitioner went on to state that 27 “I would like to request . . . to withdraw my plea because I was 28 promised that I would receive my property.” 42 (Id. at 2731-32.) 1 The trial court took Petitioner’s motion to withdraw his plea 2 under submission. 3 (Id. at 2732.) As noted, in a minute order dated April 2, 2013, the trial 4 court denied the motion. 5 92.) (See Lodged Doc. 1, Clerk’s Tr. at 191- The court noted that Petitioner originally moved to 6 withdraw his plea because he claimed “that the video surveillance 7 was fraudulent or fabricated in some way.” (Id. at 191.) But 8 “[a]fter raising the fraud claim, [Petitioner] then expanded the 9 scope of his motion to withdraw his plea, asserting largely 10 conclusory claims about: . . . (iv) being ‘induced by an illusory 11 promise.’” (Id.) The court observed that “[a]s more fully 12 stated on March 1, 2013, the court found these additional grounds 13 to be unsupported and meritless.” 14 (Id.) The trial court issued a minute order on April 15, 2013, 15 which primarily concerned “whether the court had to consider the 16 strike offense in [the other] case . . . for which [Petitioner] 17 was convicted and is now before this court for sentencing.” 18 at 213.) (Id. The court found that the plea agreement was enforceable 19 notwithstanding any issues with how Petitioner should be 20 sentenced on the two cases. 21 (See id. at 214.) In the May 23, 2013 order denying Petitioner a certificate 22 of probable cause, the trial court stated, 23 [Petitioner] had a full and fair opportunity to timely 24 present all his claims – including any factual support 25 for the claims – before this Court. 26 the 27 [Petitioner] a substantial amount of time to develop and 28 present his claims. The Court then afforded [Petitioner] motion [to withdraw 43 the This Court decided plea] after giving 1 an opportunity to present oral argument. 2 represented to the Court that he was ready to proceed 3 with the hearing on his motion, and after arguing, he 4 informed the Court that he was ready to submit the matter 5 for disposition. Accordingly, the Application appears to 6 be meritless and is hereby denied. [Petitioner] 7 (Pet. at 30-31.) 8 9 2. Applicable Law The 14th Amendment requires that when a criminal defendant 10 enters into a guilty or no-contest plea, the defendant must act 11 knowingly, intelligently, and voluntarily. See Boykin v. 12 Alabama, 395 U.S. 238, 242-44 (1969); Loftis, 704 F.3d at 647. 13 The standard for determining the validity of a guilty plea is 14 “whether the plea represents a voluntary and intelligent choice 15 among the alternative courses of action open to the defendant.” 16 North Carolina v. Alford, 400 U.S. 25, 31 (1970); see also 17 Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005) (guilty plea is 18 valid “only if done voluntarily, knowingly, and intelligently, 19 with sufficient awareness of the relevant circumstances and 20 likely consequences”). The record must reflect that the 21 defendant understood the nature of the charges against him and 22 the consequences of his plea, and that he relinquished his 23 privilege against self-incrimination, his right to trial by jury, 24 and his right to confront his accusers. 25 647. See Loftis, 704 F.3d at Beyond these essentials, “the Constitution ‘does not impose 26 strict requirements on the mechanics of plea proceedings.’” Id. 27 at 648 (quoting United States v. Escamilla-Rojas, 640 F.3d 1055, 28 1062 (9th Cir. 2011)). 44 1 Nevertheless, a guilty plea may be involuntary when it is 2 induced by threats, misrepresentations, or promises “that are by 3 their nature improper.” Mabry v. Johnson, 467 U.S. 504, 509 4 (1984), overruled in part on other grounds by Puckett v. United 5 States, 556 U.S. 129 (2009); see also Brady v. United States, 397 6 U.S. 742, 750 (1970) (“[T]he agents of the State may not produce 7 a plea by actual or threatened physical harm or by mental 8 coercion overbearing the will of the defendant.”); Doe v. 9 Woodford, 508 F.3d 563, 570 (9th Cir. 2007) (guilty plea may be 10 coerced when defendant is induced by promises or threats that 11 deprive plea of nature of voluntary act (citation and alterations 12 omitted)). 13 To determine the voluntariness of a plea, a federal habeas 14 court looks to the “totality of the circumstances,” examining 15 both the defendant’s “subjective state of mind” and the 16 “constitutional acceptability of the external forces inducing the 17 guilty plea.” Woodford, 508 F.3d at 570. When a judge is 18 alleged to have coerced a defendant to plead guilty through his 19 participation in plea negotiations, “[t]he critical inquiry . . . 20 is whether the judge’s conduct rendered [the] [p]etitioner’s plea 21 involuntary.” Robinson v. Chavez, No. CV 09-9324 CAS (JCG), 2011 22 WL 3896944, at *7 (C.D. Cal. July 20, 2011) (citing Brady, 397 23 U.S. at 748), accepted by 2011 WL 3896937 (C.D. Cal. Sept. 2, 24 2011). Finally, “[a] habeas petitioner bears the burden of 25 establishing that his guilty plea was not voluntary and knowing.” 26 Little v. Crawford, 449 F.3d 1075, 1080 (9th Cir. 2006). 27 28 3. Analysis Petitioner is not entitled to federal habeas relief because 45 1 nothing shows that the trial judge “coerced” him or made any 2 “misrepresentations” or “illusory promises,” and thus it did not 3 err in denying his request to withdraw his plea. 4 As an initial matter, Petitioner was not present for some of 5 the trial court’s discussion with counsel concerning the plea 6 negotiations, and thus any comments it made at that time could 7 not have influenced Petitioner one way or the other. 8 Moreover, as the trial judge reasonably set forth in the 9 multiple orders referenced above, the record reflects that far 10 from “coercing” Petitioner into taking a plea, the court was 11 especially solicitous of him throughout the proceedings and, in 12 particular, during the plea hearing. Indeed, the court generally 13 participated simply by “explain[ing] the prosecution’s position 14 and the potential sentence [p]etitioner was facing” rather than 15 injecting its own personal views into the proceedings. 16 Robinson, 2011 WL 3896944, at *7. See To the extent it did more than 17 that, it did not coerce or intimidate Petitioner. 18 The record reflects that Petitioner made a voluntary choice 19 to plead guilty. In response to the trial court’s questions, 20 Petitioner acknowledged, among other things, that he had thought 21 “about this carefully”; he was not pressured by anyone to accept 22 the deal; and he had had enough time to consider the deal and 23 wanted to accept it. (See Lodged Doc. 2, 2 Rep.’s Tr. at 1217.) 24 The trial court went on to advise Petitioner of the rights he was 25 waiving by pleading guilty, and Petitioner accepted each of those 26 waivers. (See id. at 1217-19.) The court asked, “Has anyone 27 threatened you or anyone close to you to get you to enter into a 28 plea agreement and plead either guilty or no contest here 46 1 today?,” and Petitioner responded, “[n]o, sir.” 2 (Id. at 1220.) The record also reflects that the trial court made no 3 “misrepresentations” to Petitioner and, in particular, made no 4 “illusory promise” to Petitioner about the possibility of 5 participating in the Delancey Street program and receiving a 6 reduced sentence. The court explicitly told Petitioner, at 7 numerous points throughout the preplea and plea proceedings, 8 that participation in the Delancey Street program and the chance 9 of a reduced or probationary sentence would only possibly be 10 available and would not even be considered until after Petitioner 11 was convicted. 12 (See, e.g., id. at 919, 1204.) For example, the court asked Petitioner, “[i]s it your hope 13 that the court is going to somehow give you an indicated sentence 14 on probationary terms at the outset of the case?,” and Petitioner 15 replied, “[n]o, sir.” (Id. at 919.) The court explained that 16 the information about the Delancey Street program “is useful 17 information potentially . . . but its usefulness is only going to 18 come about . . . if you are convicted in this case,” to which 19 Petitioner stated, numerous times, “[y]es, sir.” (Id.) The 20 trial court went on to tell Petitioner, before he pleaded no 21 contest, that “there isn’t anything at this point that you can 22 present to the court . . . that would cause me, at this point in 23 time, to strike a strike or to give you a disposition an 24 indicated sentence that would be probation in nature,” and 25 Petitioner replied, “[y]es, sir.” 26 (Id. at 1204.) What Petitioner describes is, at best, his own mistake or 27 misapprehension; he can point to no misrepresentation or 28 “illusory promise” made by the trial court that improperly 47 1 induced him, much less “coerced” him, to accept the plea deal. 2 See Turner v. Calderon, 281 F.3d 851, 881 (9th Cir. 2002) (self3 serving statement, made years later, that petitioner was 4 misinformed is insufficient to undermine guilty plea). The 5 conclusion that Petitioner’s allegations are self-serving is 6 buttressed by the fact that Petitioner complained in the trial 7 court that the “illusory promise” of having his property returned 8 influenced him to plead no contest, but later, in his habeas 9 petitions to the state courts, he complained that the “illusory 10 promise” was participation in the Delancey Street program. 11 Petitioner appears to have floated one “illusory promise” 12 argument after another in a self-serving attempt to latch onto a 13 winning theory. 14 For the most part, “the judge remained neutral and took 15 great pains to ensure that Petitioner’s plea was voluntary and 16 based on a complete understanding of his rights and the 17 consequences of his plea.” See Robinson, 2011 WL 3896944, at *7; 18 cf. Crater v. Galaza, 491 F.3d 1119, 1132 (9th Cir. 2007) (when 19 judge did not perform incompatible accusatory and judicial roles 20 in regard to plea bargain but only “encouraged” plea-bargain 21 process, habeas relief on bias claim not warranted). When the 22 judge arguably strayed from neutrality it was to help Petitioner, 23 trying to get the People to agree to a lighter sentence, for 24 instance, or making arrangements for Petitioner to speak with his 25 family about the plea. Indeed, far from being intimidated by the 26 judge’s participation, Petitioner solicited it and more than once 27 thanked the judge for his efforts. Petitioner also repeatedly 28 spoke up when he wanted more information or a better deal — and 48 1 almost always got what he asked for. Because the trial court did 2 not coerce Petitioner’s plea or intimidate him in any way, it 3 also did not err when it denied his request to withdraw his 4 plea.16 5 II. Petitioner’s Ineffective-Assistance-of-Counsel Claim Does 6 Not Warrant Habeas Relief 7 Petitioner contends that his counsel was ineffective because 8 he failed to adequately review the surveillance videos from the 9 two victims’ homes — what Petitioner calls the prosecution’s 10 “main evidence” — and failed to retain an expert to review the 11 videos, which would have led to reasonable doubt concerning his 12 guilt. (See Pet. at 5, Mem. P. & A. at 5-6.) Petitioner 13 complains that if defense counsel had conducted a proper 14 investigation, Petitioner would not have pleaded no contest. 15 (See id.) 16 A. 17 At a hearing on February 15, 2013, Petitioner advised the Additional Background 18 court that he was submitting Jones’s declaration as part of his 19 motion to withdraw his plea. 20 2403.) (Lodged Doc. 2, 2 Rep.’s Tr. at The court asked Petitioner if the video and the still 21 photos that Jones had reviewed “pertain[] to the January 30th 22 23 16 To the extent Petitioner argues that the trial court 24 erred under California law, his claim is not cognizable on federal habeas review. See Estelle, 502 U.S. at 70; see 25 also Nicholson v. Johnson, No. 2:13-cv-2407 JAM DAD P, 2015 WL 26 1637977, at *11 (E.D. Cal. Apr. 13, 2015) (claim that state court abused its discretion under state law in denying petitioner’s 27 motion to withdraw no-contest plea was not cognizable in federal habeas proceeding), request for cert. of appealability denied, 28 No. 15-16475 (9th Cir. June 2, 2016). 49 1 event with Mr. Guerrero,” and Petitioner said “yes.” 2 2406.) (Id. at The court confirmed that “[t]he video that [Jones] was 3 not able to analyze . . . was the video of the chase, if you 4 will, which relates to the January 31st event, correct?,” and 5 Petitioner said “yes.” (Id.) Petitioner complained that the 6 disk that Jones reviewed had not been authenticated because it 7 “was recorded from someone’s device, I believe . . . one of the 8 officer’s device cell phone, micro recorder, or something 9 . . . .” (Id. at 2407.) Petitioner objected that the video 10 pertaining to the incident at Tran’s house was played at the 11 preliminary hearing, but he did not have a copy of it. (Id. at 12 2407-08.) 13 At a hearing on March 1, 2013, the trial court stated that 14 it had reviewed Jones’s declaration and the transcript of the 15 preliminary hearing. (Id. at 2701, 2709-10.) Petitioner 16 asserted that “I am factually innocent,” and he argued that his 17 defense counsel “totally lied to me and did not investigate the 18 chain of events.” (Id. at 2713.) Petitioner went on, 19 I just would like to state that pertaining to the video 20 expert’s report, that in his opinion the individual was 21 a Caucasian. 22 criminalist’s statement that it was two sets [of DNA on 23 the ski mask] — that there was two contributors. And the 24 criminologist stated that one was African-American and 25 one was Caucasian. And I would like to note that it was the 26 (Id. at 2728.) 27 As noted, the trial judge stated that he had reviewed the 28 video and in his opinion, the video could possibly depict 50 1 Petitioner because he was a “quite light-skinned” African2 American whose body type matched the person in the video. 3 id. at 2728-29.) (See Although the trial judge stated that he was 4 not, in fact, concluding that Petitioner was the person in the 5 video, the video did not exonerate Petitioner. (See id. at 6 2729.) 7 8 plea. The court then denied Petitioner’s motion to withdraw his (See id. at 2732-35.) In particular, the court stated, 9 “[t]he court also finds without support the assertion of 10 ineffective assistance of counsel,” and that “even to the extent 11 that there was any ineffective assistance of counsel, that it was 12 not prejudicial to [Petitioner].” (Id. at 2734.) The court then 13 summarized its reasoning: 14 [Petitioner] had full information as to what was the 15 prosecution’s case and the evidence that they had. In my 16 view, that evidence was strong evidence. 17 review of the preliminary hearing, and my review of the 18 additional information that has been presented to the 19 court, it appears that [Petitioner] was looking at a 20 difficult case in front of him, recognized it as such, 21 and decided to take the deal because of that evaluation, 22 not based upon any other facts or circumstances. Based upon my 23 (Id. at 2734.) 24 Further, as noted above, the trial court’s April 2, 2012 25 minute order also set forth its reasoning: 26 The court received the expert’s report and independently 27 reviewed the video surveillance that the expert had 28 analyzed. Having done so, the court is satisfied that 51 1 the 2 satisfied that the other evidence as presented at the 3 preliminary hearing provides a factual basis to support 4 the “no contest” plea. video is not exculpatory. The Court is also 5 (Lodged Doc. 1, Clerk’s Tr. at 191.) 6 B. 7 Under Strickland v. Washington, 466 U.S. 668, 687 (1984), a Applicable Law 8 petitioner claiming ineffective assistance of counsel must show 9 that counsel’s performance was deficient and that the deficient 10 performance prejudiced his defense. “Deficient performance” 11 means unreasonable representation falling below professional 12 norms prevailing at the time of trial. Id. at 688-89. To show 13 deficient performance, the petitioner must overcome a “strong 14 presumption” that his lawyer “rendered adequate assistance and 15 made all significant decisions in the exercise of reasonable 16 professional judgment.” Id. at 689-90. Further, the petitioner 17 “must identify the acts or omissions of counsel that are alleged 18 not to have been the result of reasonable professional judgment.” 19 Id. at 690. The initial court considering the claim must then 20 “determine whether, in light of all the circumstances, the 21 identified acts or omissions were outside the wide range of 22 professionally competent assistance.” 23 Id. The Supreme Court has recognized that “it is all too easy 24 for a court, examining counsel’s defense after it has proved 25 unsuccessful, to conclude that a particular act or omission of 26 counsel was unreasonable.” Id. at 689. Accordingly, to overturn 27 the strong presumption of adequate assistance, the petitioner 28 must demonstrate that the challenged action could not reasonably 52 1 be considered sound trial strategy under the circumstances of the 2 case. 3 Id. To meet his burden of showing the distinctive kind of 4 “prejudice” required by Strickland, the petitioner must 5 affirmatively 6 show that there is a reasonable probability that, but for 7 counsel’s 8 proceeding would have been different. 9 probability is a probability sufficient to undermine 10 unprofessional errors, the result of the A reasonable confidence in the outcome. 11 Id. at 694; see also Richter, 562 U.S. at 111 (“In assessing 12 prejudice under Strickland, the question is not whether a court 13 can be certain counsel’s performance had no effect on the outcome 14 or whether it is possible a reasonable doubt might have been 15 established if counsel acted differently.”). 16 Strickland applies to challenges to the validity of guilty 17 pleas based on alleged ineffective assistance of counsel. See 18 Hill v. Lockhart, 474 U.S. 52, 58 (1985); see also Missouri v. 19 Frye, 132 S. Ct. 1399, 1405 (2012). To establish prejudice, 20 however, the petitioner must show that “there is a reasonable 21 probability that, but for counsel’s errors, he would not have 22 pleaded guilty and would have insisted on going to trial.” Hill, 23 474 U.S. at 59; see also Padilla v. Kentucky, 559 U.S. 356, 372 24 (2010) (petitioner “must convince the court that a decision to 25 reject the plea bargain would have been rational under the 26 circumstances”). 27 Counsel “has a duty to make reasonable investigations or to 28 make a reasonable decision that makes particular investigations 53 1 unnecessary.” Strickland, 466 U.S. at 691. Counsel’s “duty to 2 investigate,” however, is not “limitless” and does not 3 “necessarily require that every conceivable witness be 4 interviewed” or “every path” pursued. Hamilton v. Ayers, 583 5 F.3d 1100, 1129 (9th Cir. 2009) (citation omitted). Further, 6 “when a defendant has given counsel reason to believe that 7 pursuing certain investigations would be fruitless or even 8 harmful, counsel’s failure to pursue those investigations may not 9 later be challenged as unreasonable.” Strickland, 466 U.S. at 10 691. 11 To find prejudice from counsel’s failure to investigate, the 12 reviewing court must consider “whether the noninvestigated 13 evidence was powerful enough to establish a probability that a 14 reasonable attorney would decide to present it and a probability 15 that such presentation might undermine the jury verdict.” 16 v. Ayers, 606 F.3d 1223, 1236-37 (9th Cir. 2010). Mickey In doing so, 17 the reviewing court must consider the overall strength of the 18 government’s case. Rhoades v. Henry, 638 F.3d 1027, 1049-50 (9th 19 Cir. 2011) (as amended). 20 C. 21 Petitioner is not entitled to habeas relief on his Analysis17 22 Strickland claim even under a de novo standard of review. 23 As an initial matter, because Petitioner never submitted a 24 25 26 27 28 17 A guilty plea generally bars federal habeas relief for any alleged preplea constitutional violations. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). Because Respondent expressly notes that Petitioner’s claims, as construed, “do not appear to be barred” under Tollett (Answer at 8 n.4), the Court takes Respondent at his word. 54 1 declaration from trial counsel regarding his reasons for not 2 conducting further investigation or retaining a video expert, 3 there was no basis for finding that counsel performed 4 deficiently. See Gentry v. Sinclair, 705 F.3d 884, 899-900 (9th 5 Cir. 2012) (as amended Jan. 15, 2013). 6 In any event, Petitioner’s claim fails. The evidence in the 7 Tran incident virtually assured conviction because, among other 8 things, police observed Petitioner driving away from Tran’s home 9 at a high speed and saw him throw numerous incriminating objects 10 out of his car during the chase, including a black ski mask. 11 (See, e.g., Lodged Doc. 1, Clerk’s Tr. at 47-48.) Police found 12 numerous items, including a black gun bag and a number of luxury 13 purses, inside the car. (See id. at 49-51.) When he was 14 arrested, Petitioner was carrying denominations of cash similar 15 to those the robber had taken from Tran. (See id. at 26, 50-51.) 16 Finally, DNA testing on the black ski mask found along the 17 getaway route showed that it had undoubtedly been worn by 18 Petitioner. (See id. at 62-73.) Petitioner sets forth no 19 theories about how his defense counsel could have conceivably 20 challenged the Tran charges, and this Court can think of none 21 either. 22 Arguably, however, because neither Guerrero nor Tran could 23 identify Petitioner and the video expert opined that the person 24 in the black-and-white surveillance video may have been white, a 25 conviction on the Guerrero burglary charge was less certain. But 26 any such argument ignores that the incidents were linked by 27 strong circumstantial evidence. The Guerrero burglary occurred 28 near midnight at a private home in San Gabriel; the Tran crimes 55 1 occurred just more than an hour later, also at a private home in 2 San Gabriel. Guerrero and Tran both testified that a man with a 3 big build, wearing a black ski mask and a white shirt or 4 sweatshirt, was the perpetrator. One of the officers testified 5 that Petitioner threw a white shirt and numerous objects from his 6 car during the chase and positively identified Petitioner as the 7 driver. (See Lodged Doc. 1, Clerk’s Tr. at 48-49.) Based on all 8 the evidence, it could reasonably be inferred that Petitioner was 9 a gun-toting burglar who had committed numerous burglaries, 10 including those of Tran’s and Guerrero’s houses. 11 Further, based on the trial court’s conclusion that the 12 video did not exonerate Petitioner because he was light skinned 13 and had a build similar to the suspect in the video, a jury could 14 reasonably have decided that the person depicted in the video was 15 Petitioner notwithstanding what any video expert might have 16 opined.18 Indeed, testimony from a video expert on the issue of 17 identification might not even have been allowed, given that 18 identifying a perpetrator in a video would appear to be well 19 within the capacity of jurors. See, e.g., United States v. 20 Labansat, 94 F.3d 527, 530 (9th Cir. 1996) (defendant not 21 prejudiced by counsel’s failure to call identification expert at 22 trial in part because jury viewed surveillance photographs 23 itself); People v. Cole, 47 Cal. 2d 99, 103 (1956) (“[D]ecisive 24 consideration in determining the admissibility of expert opinion 25 26 18 Indeed, when asked by defense counsel at the preliminary 27 hearing whether Petitioner was African-American, the state DNA expert answered, “I have no idea.” 28 at 73.) 56 (Lodged Doc. 1, Clerk’s Tr. 1 evidence is whether the subject of inquiry is one of such common 2 knowledge that men of ordinary education could reach a conclusion 3 as intelligently as the [expert] witness[.]”). 4 Petitioner also overlooks that his counsel viewed the 5 surveillance videos at the preliminary hearing and saw for 6 himself what they depicted. Counsel was also aware that based on 7 those videos and the other evidence, the judge at the preliminary 8 hearing had found probable cause to hold Petitioner to answer the 9 charges. In light of all these considerations, trial counsel 10 could have made a strategic decision not to retain a video 11 expert. 12 Likewise, Petitioner’s challenge to the import of the DNA 13 evidence fails. Petitioner does not explain how the presence of 14 DNA from a minority profile on the ski mask would have exonerated 15 him or even been exculpatory. The eyewitness testimony that 16 Petitioner himself had thrown the ski mask from his car during 17 the pursuit was virtually unassailable, as was the DNA evidence 18 showing that regardless of who else might have done so, 19 Petitioner had also worn the mask. Consequently, the video 20 expert’s finding that a light-skinned man was possibly involved 21 in the Guerrero burglary would have had negligible impact on a 22 jury’s analysis of the DNA evidence from the ski mask. 23 In light of these factors, Petitioner’s counsel could have 24 made a reasonable strategic decision to forgo further 25 investigation into the videos and reasonably counseled Petitioner 26 to take the plea. Accordingly, Petitioner’s counsel’s 27 performance was not deficient. See, e.g., Richter, 562 U.S. at 28 106-10 (counsel’s performance not deficient for failing to hire 57 1 expert when it was uncertain if expert’s testimony would have 2 been beneficial); Mickey, 606 F.3d at 1246 (counsel’s performance 3 not deficient for failing to call experts when it was 4 questionable whether admission of experts’ testimony would have 5 been allowed by trial judge and experts’ opinions would have been 6 subject to challenge on cross-examination). 7 Further, Petitioner has not shown that he suffered any 8 prejudice — that is, that he would have gone to trial rather than 9 plead no contest if counsel had retained a video expert and 10 called the DNA evidence into question. In light of all the 11 evidence, the jury could reasonably have convicted on all charges 12 even if a video expert had testified that the person in the 13 Guerrero video looked white. Accordingly, because the Court is 14 not convinced that Petitioner would have stood trial if his 15 counsel had performed differently — much less that he would have 16 been acquitted — Petitioner cannot show prejudice. See, e.g., 17 Lambert v. Blodgett, 393 F.3d 943, 982 (9th Cir. 2004) (“Courts 18 have generally rejected claims of ineffective assistance premised 19 on a failure to investigate where the record demonstrates that 20 the defendant would have pled guilty despite the additional 21 evidence and where the additional evidence was unlikely to change 22 the outcome at trial.” (citing Hill, 474 U.S. at 56)); Langford 23 v. Day, 110 F.3d 1380, 1388 (9th Cir. 1996) (as amended Apr. 14, 24 1997) (denying ineffective-assistance claim on ground that 25 petitioner would have pleaded guilty anyway even if offered 26 defense expert). 27 28 58 1 2 CONCLUSION AND ORDER IT IS ORDERED that the Petition is denied and Judgment be 3 entered dismissing this action with prejudice. 4 5 DATED: November 30, 2016 6 JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 59

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