(HC) Newton v. Salazar, No. 1:2009cv01686 - Document 21 (E.D. Cal. 2010)
Court Description: ORDER DENYING Petition for Writ of Habeas Corpus; ORDER DIRECTING Clerk of Court to Enter Judgment; ORDER DECLINING to Issue Certificate of Appealability signed by Magistrate Judge John M. Dixon, Jr on 8/5/2010. CASE CLOSED. (Bradley, A)
Download PDF
<![CDATA[
(HC) Newton v. Salazar Doc. 21 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 GARY WAYNE NEWTON, 10 Petitioner, 11 v. 12 J. F. SALAZAR, 13 Respondent. ) ) ) ) ) ) ) ) ) ) 1:09-CV-01686 JMD HC ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF COURT TO ENTER JUDGEMENT ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 14 Gary Wayne Newton (hereinafter “Petitioner”) is a state prisoner proceeding pro se with a 15 16 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 17 PROCEDURAL HISTORY 18 Petitioner is currently in the custody of the California Department of Corrections and 19 Rehabilitation pursuant to a plea of no contest entered on July 7, 2007, for transporting 20 methamphetamine (Cal. Health & Safety Code § 11379(a)). Petitioner admitted to having prior 21 felony convictions within the meaning of California’s Three Strikes Law (Cal. Penal Code § 22 1170.12(a)-(d)). The trial court sentenced Petitioner to a prison term of fourteen years, consisting of 23 double the upper term for the substantive offense. 24 Petitioner appealed his conviction to the California Court of Appeal, Fifth Appellate District, 25 which issued a reasoned opinion on June 17, 2008, affirming Petitioner’s conviction. (See Lod. Doc. 26 1, 3.) 27 28 On March 5, 2009, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court. (Lod. Doc. 4) The California Supreme Court denied the petition on August 12, U .S. D istrict C ourt E. D . C alifornia 1 Dockets.Justia.com 1 2 3 4 2009. (Lod. Doc. 5.) On September 8, 2009, Petitioner filed the instant federal petition for writ of habeas corpus in the Central District of California. The petition was transferred to this Court on September 23, 2009. On January 15, 2010, Respondent filed an answer to the petition, to which Petitioner filed a 5 traverse on February 1, 2010. 6 Consent to Magistrate Judge Jurisdiction 7 On October 5, 2009, Petitioner consented, pursuant to Title 18 U.S.C. section 636(c)(1), to 8 have a magistrate judge conduct all further proceedings, including the entry of final judgment. 9 (Consent to Jurisdiction by US Magistrate Judge, ECF No. 7.) Respondent consented to the 10 jurisdiction of a magistrate judge on October 30, 2009. (Consent to Jurisdiction by US Magistrate 11 Judge, ECF No. 11.) On July 30, 2010, the case was reassigned to the undersigned for all further 12 proceedings. (Order Reassignment, ECF No. 20.) 13 FACTUAL BACKGROUND1 14 15 16 17 18 19 20 21 22 23 On April 17, 2007 at about 1:53 p.m., Deputy Trevor Lopes with the Kings County Sheriff's Department was driving a marked patrol car eastbound on Florinda at Gladys. Lopes was wearing his uniform. Lopes caught up to a white passenger vehicle at the intersection of Whitney Drive and stopped. The driver stared back at Lopes in his rearview mirror, drove through the intersection, and immediately pulled into the first residential driveway from the intersection. Lopes thought the driver's actions seemed suspicious so he drove down the road, made a U-turn, and watched the vehicle. After 20 seconds, the driver backed out of the driveway onto Florinda without exiting the vehicle and traveled eastbound past Lopes. The driver looked over toward Lopes and appeared to be stunned. The driver pulled over immediately to the side of the road and walked through a front yard toward the door of a home. The driver never made contact with anyone, walked back to his vehicle, and continued driving eastbound. The driver made a right turn and drove southbound on Cortner. Lopes followed the driver who then turned onto Lacey. When Lopes caught up with the driver, he turned into an open paved lot where there were half a dozen enclosed shops and some abandoned vehicles. 24 25 Lopes contacted the driver and identified him during the preliminary hearing as appellant. Lopes approached the car, standing four or five feet from the driver's 26 27 28 1 These facts are derived from the California Court of Appeal’s opinion issued on June 17, 2008. (See Lod. Doc. 3.) Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, a determination of fact by the state court is presumed to be correct unless Petitioner rebuts that presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004); Moses v. Payne, 555 F.3d 742, 746 n. 1 (9th Cir. 2009). U .S. D istrict C ourt E. D . C alifornia 2 1 side window. Appellant told Lopes he had just come from a meeting regarding his parole. Lopes asked appellant if he was supposed to be driving. Appellant admitted his license was suspended. When Lopes asked appellant if he could search the car, appellant replied, “I guess.” In the trunk, inside a black CD case, Lopes found a black digital scale that had white residue all over it. There was a small black pouch with two baggies, one clear and one black, that contained a crystal-like substance. 2 3 4 A presumptive test was negative for methamphetamine in the black baggie but positive for methamphetamine for the substance in the clear baggie. The clear baggie weighed 1.8 grams, a usable amount of methamphetamine. Appellant later told Lopes that he parked in the driveway to avoid the deputy and that the methamphetamine belonged to him. 5 6 7 (Lod. Doc. 3 at 4-5.) 8 DISCUSSION 9 I. Jurisdiction 10 A person in custody pursuant to a state court judgement may petition a district court for relief 11 by way of a writ of habeas corpus if the custody is in violation of the Constitution, laws, or treaties of 12 the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 13 375 n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United 14 States Constitution. While Petitioner is currently incarcerated at Chuckawalla Valley State Prison in 15 Blythe, California,2 Petitioner’s custody arose from a conviction in the Kings County Superior Court. 16 (Pet. at 2.) As Kings County falls within this judicial district, 28 U.S.C. § 84(b), the Court has 17 jurisdiction over Petitioner’s application for writ of habeas corpus. See 28 U.S.C. § 2241(d) (vesting 18 concurrent jurisdiction over application for writ of habeas corpus to the district court where the 19 petitioner is currently in custody or the district court in which a state court convicted and sentenced 20 the petitioner if the state “contains two or more Federal judicial districts”). 21 II. AEDPA Standard of Review 22 On April 24, 1996, Congress enacted the Anti-terrorism and Effective Death Penalty Act of 23 1996 (“AEDPA”), which applies to all petitions for a writ of habeas corpus filed after the statute’s 24 enactment. Lindh v. Murphy, 521 U.S. 320, 326-327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 25 (9th Cir. 1997). The instant petition was filed after the enactment of AEDPA and is consequently 26 27 2 28 The city of Blythe falls within Riverside County, which is within the jurisdiction of the Central District of California. See 28 U.S.C. § 84(a). U .S. D istrict C ourt E. D . C alifornia 3 1 governed by its provisions. See Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Thus, the petition 2 “may be granted only if [Petitioner] demonstrates that the state court decision denying relief was 3 ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as 4 determined by the Supreme Court of the United States.’” Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 5 2007) (quoting 28 U.S.C. § 2254(d)(1)), overruled in part on other grounds, Hayward v. Marshall, 6 603 F.3d 546, 555 (9th Cir. 2010) (en banc); see Lockyer, 538 U.S. at 70-71. 7 Title 28 of the United States Code, section 2254 remains the exclusive vehicle for 8 Petitioner’s habeas petition as Petitioner is in the custody of the California Department of 9 Corrections and Rehabilitation pursuant to a state court judgment. See Sass v. California Board of 10 Prison Terms, 461 F.3d 1123, 1126-1127 (9th Cir. 2006) overruled in part on other grounds, 11 Hayward, 603 F.3d at 555. As a threshold matter, this Court must “first decide what constitutes 12 ‘clearly established Federal law, as determined by the Supreme Court of the United States.’” 13 Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly 14 established Federal law,” this Court must look to the “holdings, as opposed to the dicta, of [the 15 Supreme Court’s] decisions as of the time of the relevant state-court decision.” Id. (quoting 16 Williams v. Taylor, 529 U.S. 362, 412 (2000)). “In other words, ‘clearly established Federal law’ 17 under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at 18 the time the state court renders its decision.” Id. Finally, this Court must consider whether the state 19 court’s decision was “contrary to, or involved an unreasonable application of, clearly established 20 Federal law.” Id. at 72 (quoting 28 U.S.C. § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal 21 habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by 22 [the Supreme] Court on a question of law or if the state court decides a case differently than [the] 23 Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413; see also 24 Lockyer, 538 U.S. at 72. “Under the ‘unreasonable application clause,’ a federal habeas court may 25 grant the writ if the state court identifies the correct governing legal principle from [the] Court's 26 decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 27 U.S. at 413. “[A] federal court may not issue the writ simply because the court concludes in its 28 independent judgment that the relevant state court decision applied clearly established federal law U .S. D istrict C ourt E. D . C alifornia 4 1 erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. A federal 2 habeas court making the “unreasonable application” inquiry should ask whether the State court's 3 application of clearly established federal law was “objectively unreasonable.” Id. at 409. 4 Petitioner bears the burden of establishing that the state court’s decision is contrary to or 5 involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 6 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth 7 Circuit precedent remains relevant persuasive authority in determining whether a state court decision 8 is objectively unreasonable. Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir. 2003) (“While only the 9 Supreme Court’s precedents are binding on the Arizona court, and only those precedents need be 10 reasonably applied, we may look for guidance to circuit precedents”); Duhaime v. Ducharme, 200 11 F.3d 597, 600-01 (9th Cir. 1999) (“because of the 1996 AEDPA amendments, it can no longer 12 reverse a state court decision merely because that decision conflicts with Ninth Circuit precedent on 13 a federal Constitutional issue....This does not mean that Ninth Circuit caselaw is never relevant to a 14 habeas case after AEDPA. Our cases may be persuasive authority for purposes of determining 15 whether a particular state court decision is an ‘unreasonable application’ of Supreme Court law, and 16 also may help us determine what law is ‘clearly established’”). Furthermore, the AEDPA requires 17 that the Court give considerable deference to state court decisions. The state court’s factual findings 18 are presumed correct. 28 U.S.C. § 2254(e)(1). A federal habeas court is bound by a state’s 19 interpretation of its own laws. Souch v. Schaivo, 289 F.3d 616, 621 (9th Cir. 2002). 20 III. Review of Petitioner’s Claims 21 The petition for writ of habeas corpus sets forth four grounds for relief. In his first and 22 second ground for relief, Petitioner contends that he was denied his Sixth Amendment right to 23 counsel by trial counsel’s deficient performance. Petitioner’s third ground for relief alleges that his 24 right to a fundamentally fair trial was denied by the prosecutor’s comments during the motion for a 25 continuance. Lastly, Petitioner contends that the denial of a continuance deprived him of his 26 Fourteenth and Sixth Amendment rights. 27 \\\ 28 \\\ U .S. D istrict C ourt E. D . C alifornia 5 1 A. 2 In his first two grounds for relief, Petitioner contends that his Sixth Amendment right to Grounds One and Two: Ineffective Assistance of Trial Counsel 3 counsel was violated by the ineffective assistance rendered by trial counsel. Specifically, Petitioner 4 faults counsel’s refusal to file a motion to disqualify the district attorney’s office and counsel’s 5 failure to fully explain the terms of Petitioner’s stipulated plea. 6 The initial step in applying AEDPA’s standards is to “identify the state court decision that is 7 appropriate for our review.” Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). Where more 8 than one State court has adjudicated Petitioner’s claims, a federal habeas court analyzes the last 9 reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) for the presumption that 10 later unexplained orders, upholding a judgment or rejecting the same claim, rests upon the same 11 ground as the prior order). Thus, a federal habeas court looks through ambiguous or unexplained 12 state court decisions to the last reasoned decision to determine whether that decision was contrary to 13 or an unreasonable application of clearly established federal law. Bailey v. Rae, 339 F.3d 1107, 14 1112-1113 (9th Cir. 2003). The California Court of Appeal did not reach a decision on the merits of 15 this claim, finding that a review of the matter on direct appeal was improper as there was no record 16 of what trial counsel told Petitioner. (Lod. Doc. 3 at 6.) Thus, the California Supreme Court was the 17 only court to issue a decision on the merits of Petitioner’s ineffective assistance of counsel claims 18 (Grounds One and Two). As the California Supreme Court summarily denied the claim, there does 19 not exist a reasoned decision issued by the State courts on these claims. Thus, the Court must 20 conduct an independent review of the record to determine whether the State court’s denial was 21 objectively unreasonable. See Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009); Himes v. 22 Thompson, 336 F.3d 848, 853 (9th Cir. 2003) (quoting Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 23 2000)). 24 An allegation of ineffective assistance of counsel requires that a petitioner establish two 25 elements–(1) counsel’s performance was deficient and (2) petitioner was prejudiced by the 26 deficiency. Strickland v. Washington, 466 U.S. 668, 687(1984); Lowry v. Lewis, 21 F.3d 344, 346 27 (9th Cir. 1994). Under the first element, the petitioner must establish that counsel’s representation 28 fell below an objective standard of reasonableness, specifically identifying alleged acts or omissions U .S. D istrict C ourt E. D . C alifornia 6 1 which did not fall within reasonable professional judgment considering the circumstances. 2 Strickland, 466 U.S. at 688; United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). 3 Judicial scrutiny of counsel’s performance is highly deferential and there exists a strong presumption 4 that counsel’s conduct fell within the wide range of reasonable professional assistance. Strickland, 5 466 U.S. at 687; Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). 6 Additionally, a petitioner must show that counsel’s errors prejudiced the trial’s outcome. 7 Strickland, 466 U.S. at 687. Where the habeas petitioner pled guilty, this prong requires that the 8 petitioner “show that there is a reasonable probability that, but for counsel’s errors, he would not 9 have pleaded guilty and would have insisted on going to trial.” See Hill v. Lockhart, 474 U.S. 52, 59 10 (1985) (holding that two part Strickland test is applicable for defendant challenging guilty pleas 11 based on ineffective assistance of counsel); see also Moore v. Czerniak, 574 F.3d 1092, 1100 (9th 12 Cir. 2009) (“In the context of a plea bargain, we specifically ask whether there is a reasonable 13 probability that, but for counsel's deficient performance, the petitioner would have gone to trial rather 14 than accept the plea bargain offered by the state”). A court need not determine whether counsel’s 15 performance was deficient before examining whether petitioner suffered as a result of the alleged 16 deficiencies as prejudice is a prerequisite to a successful claim; therefore, any deficiency that was not 17 sufficiently prejudicial to the petitioner’s case is fatal to an ineffective assistance of counsel claim. 18 Strickland, 466 U.S. at 697. 19 1. 20 Motion to Disqualify District Attorney’s Office Petitioner contends that his trial counsel rejected Petitioner’s request to file a motion to 21 disqualify the district attorney’s office as counsel did not see any basis for the motion. Petitioner 22 claims that but for counsel’s failure to raise this motion, he would not have pled guilty. Petitioner 23 contends that the entire prosecutor’s office should have been disqualified because a family member, 24 who disliked him, worked in the office. Petitioner additionally contends that the actual attorney 25 prosecuting his case was biased because she has prosecuted Petitioner in a previous case and stated 26 that she would put him away for good. 27 \\\ 28 \\\ U .S. D istrict C ourt E. D . C alifornia 7 1 In order to succeed on his ineffective assistance of counsel claim, Petitioner is required to 2 show that the motions to disqualify the entire district attorney’s office and the particular attorney 3 who was prosecuting him were meritorious. See Moore v. Czerniak, 574 F.3d 1092, 1101-1102 (9th 4 Cir. 2009) (noting that underlying claim for suppression motion must be meritorious to succeed on 5 claim that counsel was deficient for failing to file suppression motion). California Penal Code 6 section 1424(a)(1) states that “a motion to disqualify a district attorney from performing an 7 authorized duty . . . may not be granted unless the evidence shows that a conflict of interest exists 8 that would render it unlikely that the defendant would receive a fair trial.” As the California 9 Supreme Court summarized: 10 11 12 13 14 15 16 17 18 [S]ection 1424 sets out a two-part test for determining whether recusal is appropriate. Under the first part, a court must determine whether a conflict exists, that is, whether “the circumstances of a case evidence a reasonable possibility that the DA's office may not exercise its discretionary function in an evenhanded manner.” ( People v. Conner, [34 Cal.3d 141,148 (1983)]; accord, People v. Eubanks, [14 Cal. 4th 580, 594 (1996)]. If such a conflict exists, the court must further determine whether the conflict is “ ‘ “so grave as to render it unlikely that defendant will receive fair treatment during all portions of the criminal proceedings.” ’ ” ( People v. Vasquez, [39 Cal. 4th 47, 56 (2006)], italics omitted.) Thus, the first half of the inquiry asks only whether a “reasonable possibility” of less than impartial treatment exists, while the second half of the inquiry asks whether any such possibility is so great that it is more likely than not the defendant will be treated unfairly during some portion of the criminal proceedings. Haraguchi v. Superior Court, 43 Cal. 4th 706, 713 (2008). “Disqualification of an entire prosecutorial office from a case is disfavored by the courts, 19 absent a substantial reason related to the proper administration of justice.” People v. Hernandez, 235 20 Cal. App. 3d 674, 679-680 (1991). The California Supreme Court has found that a close familial 21 relation employed by the district attorney’s office may constitute a conflict of interest. In Vasquez, 22 the California Supreme Court found that longtime employees of the district attorney’s office who 23 were the mother and stepfather of the defendant created a conflict of interest. Vasquez, 39 Cal. 4th at 24 55. The Vasquez court further found that recusal was necessary as there existed consequential 25 likelihood of unfair treatment as the prosecuting attorney admitted that the relationship influenced 26 her treatment of the case. 27 28 However, Petitioner’s case is distinct from Vasquez. The Court notes that Petitioner claims that a family member works for the district attorney’s office but fails to identify what the exact U .S. D istrict C ourt E. D . C alifornia 8 1 relationship is between Petitioner and this family member or how long she has worked in the district 2 attorney’s office. More importantly, as the Vasquez court itself noted: 3 4 5 In most circumstances, the fact one or two employees of a large district attorney’s office have a personal interest in a case would not warrant disqualifying the entire office. [Citation] But where the record on the recusal motion indicates that the conduct of any deputy district attorney assigned to the case, or of the office as a whole, would likely be influenced by the personal interest of the district attorney or an employee, the motion is properly granted. 6 Id. at 57. 7 Even assuming that a conflict of interest existed, Petitioner has failed to provide any evidence 8 upon which the Court could conclude that there existed a likelihood of unfair treatment. Petitioner 9 does not produce any evidence that this familial relation is likely to influence the district attorney 10 prosecuting the case. While Petitioner asserts that this family member previously made statements 11 threatening to put him away, Petitioner does not actually produce any evidence that the family 12 member exerted any influence in this particular case. As the California Supreme Court noted in 13 People v. Gamache, 48 Cal. 4th 347, 363 (2010), “the possibility that a prosecutor might be 14 influenced does not alone establish the requisite likelihood or probability that a defendant will be 15 treated unfairly.” See also Millsap v. Superior Court, 70 Cal. App. 4th 196, 202-204 (1999) (finding 16 that recusal of entire district attorney’s office not warranted even though defendants had solicited 17 someone to assassinate two members of that office). In sum, the Court does not find that a motion to 18 recuse the entire district attorney’s office was meritorious. 19 Petitioner additionally claims that the district attorney prosecuting his case should have been 20 disqualified as the attorney had previously prosecuted him on an unrelated charge and made 21 statements that she would “get me on something else and when she did she would stick it to me and 22 push it to the limit.” (Pet. at 9.) While the California courts have found a prosecutor who previously 23 represented a criminal defendant creates a conflict of interest, the Court has not found any case in 24 which a previous prosecution by the same attorney would be grounds for a recusal. See People v. 25 Lepe, 164 Cal. App. 3d 685, 687-688 (1985) (finding entire district attorney’s office must be recused 26 where the head district attorney was defendant’s former counsel); see also People v. Lopez, 155 Cal. 27 App. 3d 813, 824- 829 (1984) (recusal of individual attorney warranted by previous representation of 28 defendant but entire office not need to be recused where case involved deputy district attorney). In U .S. D istrict C ourt E. D . C alifornia 9 1 fact, in an analogous situation, the California Supreme Court has found that there exists no conflict 2 of interest “simply because the district attorney and the defendant have been adversaries in other 3 legal proceedings, even where the defendant previous prevailed. Other evidence of overriding bias 4 must be present to warrant disqualification.” People v. Millwee, 18 Cal 4th 96, 123 (1998) (finding 5 that previous prosecution does not warrant recusal where there was no evidence of personal 6 animosity or improper tactics). Here, Petitioner has submitted no evidence that the prosecutor 7 harbored personal animosity toward Petitioner. The Court notes the statements Petitioner attributes 8 to the prosecutor were supposedly made to a third party and this third party had not submitted a 9 verified declaration. Even assuming the veracity of these statements, the statement merely evidence 10 the prosecutor’s desire to prosecute Petitioner to the full extent of the law. Furthermore, the Court 11 notes that the prosecutor entered into settlement talks with Petitioner when she could have proceeded 12 to trial, thus negating the argument that she intended to “stick it” to Petitioner. Thus, Petitioner’s 13 motion to disqualify the district attorney prosecuting his case was not meritorious. 14 As the motion to disqualify the district attorney’s office and the specific district attorney 15 prosecuting his case were not meritorious, the Court finds trial counsel was not deficient in refusing 16 to make these motions. Consequently, Petitioner is not entitled to habeas corpus relief on this 17 ground. 18 19 2. Failure to Advise About Stipulated Plea Petitioner contends he would not have taken the deal had he been advised that he would have 20 to serve eighty percent of the fourteen year deal. Petitioner further contends that trial counsel failed 21 to advise him of the meaning of a stipulated sentence. Assuming arguendo that trial counsel was 22 deficient in failing to explain the term stipulated plea and that Petitioner would have to serve eighty 23 percent of his time, the Court does not find counsel’s deficiency prejudiced Petitioner. Petitioner’s 24 claim that he would have rejected the plea agreement had he known what a stipulated plea was and 25 that he would have to serve eighty percent of the sentence is undermined by several factors. As 26 Petitioner himself admits, he potentially faced a sentence of twenty-two years had he proceed to 27 28 U .S. D istrict C ourt E. D . C alifornia 10 1 trial.3 The evidence against Petitioner was overwhelming and Petitioner presents no viable defense 2 that he could have proceeded on at trial. At the preliminary hearing, Deputy Trevor Lopes testified 3 that his search of Petitioner’s vehicle turned up two baggies, weighing approximately 1.8 and 2 4 grams each. (CT at 19-20.) The baggies contained a crystal like substance that later tested positive 5 as methamphetamine. (Id. at 19.) Officer Lopes also testified that Petitioner confessed that the 6 methamphetamine belonged to him and that Petitioner’s urine tested positive for methamphetamine. 7 (Id. at 22.) Petitioner’s claim that he would have rejected the plea is even more doubtful as 8 Petitioner himself stated to the trial court that he understood that the stipulated sentence in this case 9 was fourteen years. (CT at 45.) Petitioner further averred to the trial court that there had been no 10 other promises of a lesser sentence other than the fourteen year stipulated sentence. (Id.) In light of 11 this record, the Court does not find Petitioner’s argument, that he would had rejected the plea had he 12 known that he was required to serve eighty percent of the fourteen years, persuasive. Consequently, 13 Petitioner is not entitled to habeas corpus relief on this ground. 14 B. 15 In his third ground for relief, Petitioner contends that the district attorney’s comments during 16 17 Ground Three: Prosecutorial Misconduct the continuance motion hearing violated his constitutional rights. The standard of review for a claim of prosecutorial misconduct raised in a petition for writ of 18 habeas corpus is “the narrow one of due process, and not the broad exercise of supervisory power.” 19 Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 20 642 (1974)); accord Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir. 1995). “[I]t is not enough that 21 the prosecutors’ remarks were undesirable or even universally condemned.” Darden, 477 U.S. at 22 181 (internal quotation marks omitted). Rather, the court must decide “whether the prosecutors’ 23 comments so infected the trial with unfairness as to make the resulting conviction a denial of due 24 process.” Id. (internal quotation marks omitted); Renderos v. Ryan, 469 F.3d 788, 799 (9th Cir. 25 2006) (quoting Donnelly, 416 U.S. at 643) (“Thus, to succeed, [Petitioner] must demonstrate that it 26 ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process”). 27 28 3 Respondent argues that Petitioner could have potentially faced a sentence of at least twenty-five years. (Resp’t Answer Mem. P. & A. at 14, n. 3.) U .S. D istrict C ourt E. D . C alifornia 11 1 Thus, the first issue for the Court to decide is whether the prosecutor’s remarks were improper and 2 secondly, whether such remarks or conduct infected the trial with unfairness. Tan v. Runnels, 413 3 F.3d 1101, 1112 (9th Cir. 2005) (citing Darden, 477 U.S. at 181). 4 In determining whether the State court decision adjudicating this claim is objectively 5 unreasonable, the Court looks to the decision of the California Court of Appeal. While both the 6 California Court of Appeal and the California Supreme Court reached the merits of Petitioner’s 7 claims, the California Supreme Court issued a summary denial of the claim. Thus, the Court looks 8 through that decision to the last reasoned decision; namely, the decision by the California Court of 9 Appeal. See Nunnemaker, 501 U.S. at 804. Here, the California Court of Appeal found that the 10 comment did not so infect the trial with unfairness. In making this determination, the appellate court 11 noted that: 12 Appellant was not tried by a jury. He pled guilty to transportation of methamphetamine and admitted a prior serious felony allegation and prior drug conviction enhancements. The prosecutor's comments were after appellant's plea and just prior to sentencing. These comments would not have affected the trial court's judgment. The court sentenced appellant to a sentence he had stipulated to as part of the plea agreement. Even if we assume arguendo that the prosecutor's statement was error, it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.). 13 14 15 16 (Lod. Doc. 3 at 5.) 17 The Court does not find this decision by the appellate court to be an objectively unreasonable 18 application of Darden. First, the Court does not find the prosecutor’s statement to be improper. The 19 prosecutor stated in response to defense counsel’s motion for a continuance that: 20 The People are opposed to any continuance in this matter. My notes reflect that [defense counsel] substituted in, in court on August 7th. That’s more than 20 days ago and should have been ample time to receive any transcripts that he needed to receive. And in any event, it was a stipulated sentence. The People are ready to go today and prefer that Mr. Newton not take up anymore space in our jail for anymore time. 21 22 23 (RT at 103.4) 24 This statement does not impugn Petitioner’s character or that of his attorney, does not make 25 allusion’s to Petitioner’s culpability, nor does it create inflammatory prejudice. See Hein v. Sullivan, 26 601 F.3d 897, 912-913 (9th Cir. 2010) (finding improper statements impugning character of defense 27 28 4 The Reporter’s Transcript of the continuance motion proceeding is contained in Respondent’s Lodged Document No. 4. U .S. D istrict C ourt E. D . C alifornia 12 1 counsel, calling counsel dishonest and alluding to cheap lawyer tricks, and vouching for 2 prosecutorial witness’s credibility); Kellog v. Skon, 176 F.3d 447, 451-452 (8th Cir. 1999) 3 (prosecutor’s remarks referring to defendant as “monster,” a “sexual deviant,” and a “liar” were 4 improper as they were personal expression of defendant’s guilt and created inflammatory prejudice). 5 As the Ninth Circuit observed, “[e]very slight excess of a prosecutor does not require that a verdict 6 be overturned and a new trial ordered.” United States v. Yarbrough, 852 F.2d 1522, 1539 (9th Cir. 7 1988). Here, the Court does not find the statement by the prosecutor that the State was ready to 8 proceed and would prefer that Petitioner not take up anymore space in the jail improper. 9 Even assuming that the statement was improper, the Court does not find that the statement 10 infected the trial with unfairness. As the Ninth Circuit succinctly stated, “misconduct does not 11 require reversal where there is strong evidence of the defendant’s guilt.” Yarbrough, 852 F.3d at 12 1539. Here, there was substantial evidence of Petitioner’s guilt as evidenced by Deputy Lopes’ 13 testimony at the preliminary hearing. Deputy Lopes testified that a search of Petitioner’s car 14 revealed two baggies containing methamphetamine. Petitioner’s urine also tested positive for 15 methamphetamine and Petitioner admitted the drugs were his. 16 Additionally, it is unclear how the prosecutor’s comments could have infected the proceeding 17 with unfairness when the statements came after Petitioner had already entered his plea and just prior 18 to sentencing. The statement obviously could not have influenced the trial judge’s imposition of the 19 sentence as Petitioner himself admits in his earlier grounds for relief that the trial court judge had no 20 discretion in sentencing him since the plea was a stipulated plea. If Petitioner’s argument is that the 21 statement infected his trial with unfairness by influencing the judge to rule against his continuance 22 motion, the Court finds such an argument unpersuasive. The statement was not misleading nor did it 23 misstate the evidence or law. Darden, 477 U.S. at 180, n. 12 (finding that prosecutor’s remarks, that 24 defendant was an animal and that the prosecutor wished defendant’s face had been blown off during 25 his crimes, did not deprive defendant of fundamentally fair trial since statements did not manipulate 26 or misstate evidence and the statements were responsive to defense’s comments). 27 \\\ 28 \\\ U .S. D istrict C ourt E. D . C alifornia 13 1 Furthermore, as noted by the California Court of Appeal, even if Petitioner could show that 2 the comment so infected his trial with unfairness that a constitutional violation occurred, Petitioner is 3 also required to establish that the misconduct had a “substantial and injurious effect or influence in 4 determining” the outcome, specifically whether Petitioner would have pled guilty but for the 5 constitutional error. See O’ Neal v. McAninch, 513 U.S. 432, 436 (1995); Brecht v. Abrahamson, 6 507 U.S. 619, 637-638 (1993). Here, the statement occurred after Petitioner pled guilty and the trial 7 judge had no discretion in sentencing Petitioner; thus, the argument that it had a substantial and 8 injurious effect on Petitioner’s decision to plead guilty or on the trial judge’s imposition of the 9 sentence is unavailing. Thus, Petitioner is not entitled to habeas corpus relief on this ground. 10 C. 11 Petitioner contends that the denial of his continuance motion implicated his constitutional Denial of Continuance Motion 12 rights under the Sixth and Fourteenth Amendment. Petitioner argues that he was effectively 13 deprived his right to counsel when the trial court denied his continuance motion. 14 The California Court of Appeal set forth the factual basis for the claim, summarizing that: 15 Appellant retained private counsel, J.M. Irigoyen, for sentencing. On August 7, 2007, the court granted appellant's motion to substitute Irigoyen as counsel. The court granted appellant a continuance until August 29, 2007. Irigoyen informed the court he was planning to make a motion to set aside the plea agreement. Irigoyen said he would have his motion filed in two weeks, by August 21, 2007. 16 17 18 On August 17, 2007, Irigoyen filed a motion to continue sentencing because he could not obtain a transcript of the change of plea hearing. On August 29, 2007, Irigoyen explained to the court that he received the documents he needed and had talked to appellant and was prepared to proceed on September 14, 2007. The court stated it was concerned because there was no suggestion in the motion that Irigoyen was still pursuing a motion to set aside the plea. 19 20 21 Irigoyen stated he believed appellant had legal cause to challenge a strike. Irigoyen said he did not believe the strike was valid even though appellant admitted it. [The prior serious felony conviction Irigoyen was referring to was appellant's conviction in 2006 for making a criminal threat in violation of section 422.] Irigoyen conceded that after reading the change of plea transcript, he found no other basis to set aside the plea. Irigoyen still believed the strike was invalid based on an unnamed case from the Ninth Circuit Court of Appeals. Irigoyen explained this case, for which he had no citation, gives the court discretion to strike a strike in a case such as appellant's where the defendant is not factually guilty of the crime. The court then denied the motion for a continuance. 22 23 24 25 26 27 (Lod. Doc. 3 at 7-8.) 28 \\\ U .S. D istrict C ourt E. D . C alifornia 14 1 Petitioner’s argument, that had it not been for the denial of a continuance Petitioner would 2 have filed a motion to set aside or withdraw his plea, is patently contradicted by the record. The 3 California Court of Appeal, the last state court to have issued a reasoned decision in this case, 4 observed that Petitioner’s substituted counsel had indicated that he wanted to use the time during the 5 requested continuance to pursue a collateral attack on Petitioner’s prior convictions, not a motion to 6 set aside his plea.5 In fact, as noted in the Court of Appeal decision and in the transcript of the court 7 proceedings, substituted counsel admitted that nothing from the change of plea transcript could serve 8 as a basis for setting aside the plea. (RT at 104; Lod. Doc. 3 at 8.) Thus, it is unclear how Petitioner 9 was deprived his right to counsel when counsel’s reason for a continuance was the unavailability of 10 the transcript and when counsel himself stated there was no basis for setting aside the plea contained 11 in the transcript. 12 In requesting relief on this ground, Petitioner also alludes to a violation of his rights under 13 Cunningham v. California, 549 U.S. 270 (2007). As observed by the California Court of Appeal, 14 while Petitioner was sentenced to the upper term, he does not fall within the type of cases protected 15 by Cunningham. (Lod. Doc. 3 at 3, n. 6.) The Court does not find this to be an objectively 16 unreasonable application of Supreme Court precedent. Most factors used to impose the upper term 17 must be found by a jury beyond a reasonable doubt as it exceeds the maximum sentence. See id. at 18 274 (holding that imposition of the upper term based solely upon a trial judge’s fact finding violated 19 the defendant’s Sixth and Fourteenth Amendment rights because it “assigns to the trial judge, not the 20 jury, authority to find facts that expose a defendant to an elevated ‘upper term’ sentence”). However, 21 the imposition of the upper term in Petitioner’s case was based on his prior convictions. The use of a 22 prior conviction to impose a term beyond the statutory maximum has long been recognized as an 23 exception to the rule requiring a jury finding. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) 24 (holding that “other than the fact of a prior conviction, any fact that increases the penalty for a crime 25 beyond the prescribed maximum must be submitted to a jury, and proved beyond a reasonable 26 doubt”); Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998). Consequently, Petitioner’s 27 5 28 W ith respect to the collateral attack, the California Court of Appeal found that the trial court had not abused its discretion in denying the motion as Petitioner’s new counsel did not need the transcript of the plea hearing to collaterally attack the prior conviction. U .S. D istrict C ourt E. D . C alifornia 15 1 Cunningham claim does not entitle him to habeas corpus relief. 2 IV. 3 Certificate of Appealability A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 4 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller- 5 El v. Cockrell, 123 S. Ct. 1029, 1039 (2003). The controlling statute in determining whether to issue 6 a certificate of appealability is 28 U.S.C. § 2253, which provides that a judge may issue a certificate 7 of appealability where “the applicant has made a substantial showing of the denial of a constitutional 8 right.” Where the court denies a habeas petition, the court may only issue a certificate of 9 appealability “if jurists of reason could disagree with the district court’s resolution of his 10 constitutional claims or that jurists could conclude the issues presented are adequate to deserve 11 encouragement to proceed further.” Miller-El, 123 S. Ct. at 1034; Slack v. McDaniel, 529 U.S. 473, 12 484 (2000). While the petitioner is not required to prove the merits of his case, he must demonstrate 13 “something more than the absence of frivolity or the existence of mere good faith on his . . . part.” 14 Miller-El, 123 S. Ct. at 1040. Here, the Court finds that reasonable jurists would not disagree with 15 the Court’s denial of Petitioner’s habeas claim and that Petitioner’s claims are not deserving of 16 encouragement to proceed further. Additionally, the Court finds that Petitioner has failed to make 17 the requisite showing that he was denied a constitutional right. Accordingly, the Court hereby 18 DECLINES to issue a certificate of appealability. 19 ORDER 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. The Petition for Writ of Habeas Corpus is DENIED with prejudice; 22 2. The Clerk of Court is DIRECTED to enter judgment; and 23 3. The Court DECLINES to issue a certificate of appealability. 24 IT IS SO ORDERED. 25 Dated: hlked6 August 5, 2010 /s/ John M. Dixon UNITED STATES MAGISTRATE JUDGE 26 27 28 U .S. D istrict C ourt E. D . C alifornia 16
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
