(HC) Goddard v Kernan, No. 2:2006cv02747 - Document 26 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge James P. Hutton on 2/2/2009 recommending that 1 Petition for Writ of Habeas Corpus, filed by Robert Goddard be denied. Objections to F&R due w/in 10 days. (Matson, R)
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(HC) Goddard v Kernan Doc. 26 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 ROBERT GODDARD, Petitioner, 10 11 12 13 ) ) No. CV-06-2747 RHW JPH ) ) REPORT AND RECOMMENDATION TO ) DENY WRIT OF HABEAS CORPUS ) ) ) ) ) ) ) v. SCOTT K. KERNAN, Warden, et al., Respondents. 14 15 16 BEFORE THE COURT is a Petition under 28 U.S.C. § 2254 for 17 Writ of Habeas Corpus by a person in state custody (Ct. Rec. 1), 18 Respondent’s Answer (Ct. Rec. 13), Petitioner’s Traverse (Ct. Rec 19 18), Respondent’s Amended Answer (Ct. Rec. 21), and Petitioner’s 20 Amended Traverse (Ct. Rec. 23). 21 counsel Scott L. Tedmon and Respondent is represented by Deputy 22 Attorney General Justain P. Riley. 23 oral argument. 24 pleadings submitted, it is recommended that the Petition for Writ 25 of Habeas Corpus be denied. 26 27 Petitioner is represented by This matter was heard without After careful review and consideration of the At the time his petition was filed, Petitioner was in custody in Vacaville, California, pursuant to his 2004 Yolo County 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 1 Dockets.Justia.com 1 conviction for inflicting corporal injury on a former cohabitant, 2 with an enhancement for causing great bodily injury. (Ct. Rec. 1, 3 attachment 12(a) at 3, Lodged Document 1.) 4 represented by counsel, pleaded no contest to the charge and 5 admitted the great bodily injury enhancement on August 30, 2004. 6 (Lodged Document 18.) 7 parties’ plea agreement and imposed a sentence consistent with the 8 agreement. 9 counsel. Petitioner, On October 18, 2004, the court accepted the Petitioner challenges the effectiveness of trial (Ct. Rec. 1.) 10 I. BACKGROUND 11 A. Factual History 12 The parties stipulated that the transcript of the preliminary 13 hearing could serve as the factual basis for Mr. Goddard’s plea. 14 (Lodged Document 18 at 7-8.) 15 Johnson testified that she lived with Mr. Goddard on and off for 16 about a year. 17 18 19 20 21 22 23 24 25 26 At the hearing, victim Heather (Lodged Document 14 at 5.) Her mother, Karen Johnson, testified to the events that occurred on September 25, 2003: Q: About how many times did Heather try and get in the middle and Mr. Goddard threw her to the side? A: About three or four times. Q: Did Mr. Goddard do anything else to Heather? A: He struck her in the jaw and broke it. Q: How did that happen? A: They were towards the sidewalk and the lawn, and she was facing him, and he struck her, and she fell straight down to the ground. (Lodged Document 14 at 44-45.) 27 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 2 - 1 Woodland Police Department Officer Darren Imus testified: 2 Q: Okay, did you observe Heather Johnson? 3 A: Yes. I did. 4 Q: What was she doing? 5 A: She was seated in a vehicle in the driveway holding a towel or a shirt up to her lip. 6 7 8 9 10 11 12 13 14 Q: Okay. Did Karen Johnson tell you what had happened? A: She briefly stated that Mr. Goddard had punched or slapped Heather in the face, and that he had left on his motorized scooter. . . . A: I [Officer Imus] came back. And I was attempting to speak with Karen and Heather further, but [a neighbor] Mr. Ryhall was standing in the front yard of 1516. He said that “Karen had taken Heather to the hospital.” So I asked him if he had been a witness or seen anything that transpired. And he said he had. . . . 15 Q: What did he tell you? 16 19 A: Well, he lives two houses south of 1516 Ashley. He said about 15 minutes, maybe 20 minutes, prior to my arrival, he heard loud arguing coming from the front yard of that residence. He looked – at one point he saw Mr. Goddard cock his hand back. He doesn’t recall which. And slapped Heather in the jaw. It made a loud pop. And that she had fallen to the ground. 20 . . . 21 23 A: Mr. Ryhall said that Mr. Goddard pushed him in the chest and the face. At which time Mr. Ryhall pushed Mr. Goddard back in the chest, said “You don’t hit a lady.” Mr. Goddard replied back, “that wasn’t a lady that I hit. That was a dude.” 24 . . . 25 A: I spoke to her [a nurse] that evening, nurse Franchi, she said “yes, her [Heather’s] jaw was in fact broken.” 17 18 22 26 Officer Imus spoke with the victim’s younger sister, 27 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 3 - 1 Aubrey: A: And I believe Aubrey had seen Mr. Goddard throw her [Heather] two or three separate times. And she {Aubrey] said each time was about five to six feet. Maybe seven feet out onto the law[n]. She [Heather] would jump on his shoulder . . . She also said at the end of it, that Mr. Goddard had come out onto the front grass area, cocked his hand back – she couldn’t remember which. And punched Heather in the jaw. And she wasn’t sure which side. It made a loud pop noise, and Heather immediately collapsed on the grass. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (Lodged Document 15 at 4-6, 8-10.) B. Procedural History On August 30, 2004, petitioner withdrew his not guilty plea and entered a counseled plea of no contest to inflicting corporal injury on a former cohabitant, and admitted the great bodily injury enhancement. (Lodged Doc. 1, 18.) At the conclusion of the hearing Mr. Goddard was found guilty of the charge and the enhancement was found true. (Lodged Document 18 at 8.) was imposed on October 18, 2004. Sentence (Lodged Document 2.) Prior to accepting the change of plea, the trial court advised Mr. Goddard that if the court followed the plea agreement, he would be sentenced to seven years imprisonment, suspended, on the condition that he perform under a grant of probation. The court advised Mr. Goddard that if he violated any terms or conditions of probation, the court “would lift the suspension and impose it and can send you to prison for seven years.” Document. 18 at 3.) (Lodged As part of the plea agreement, the People dismissed five additional counts relating to incidents that occurred on a different date but involved the same victim. (Lodged Document. 18 at 8-9, Ct. Rec. 1, attachment 11(a)(8).) On October 18, 2004, the court followed the terms of the plea 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 4 - 1 agreement and sentenced Mr. Goddard to a suspended state prison 2 aggregate term of seven years, comprised of the mid-term of three 3 years for the Penal Code §273.5(a) violation and the mid-term of 4 four years for the Penal Code §12022.7(e) enhancement. 5 sentenced to five years of probation. No jail time was imposed. 6 (Lodged Document. 2; Ct. Rec. 1, attachment 11(a)(8).) 7 Goddard’s conditions of probation required that he commit no 8 further violations of the law and refrain from using alcohol. 9 (Lodged Document. 2 at 2.) Less than three weeks later, on He was Mr. 10 November 3, 2004, Mr. Goddard was arrested for driving while under 11 the influence of alcohol. 12 On December 17, 2004, Mr. Goddard pleaded guilty to driving 13 with a blood alcohol level of .08 or higher, in violation of 14 Vehicle Code §23152(b). 15 admitted violating probation in the domestic violence case. 16 Rec. 1, attachment 12(a) at 2.) 17 violence felony probation violation 18 2005 at Mr. Goddard’s counsel’s request. (Id.) 19 As a result of this conviction, he (Ct. Sentencing on the domestic was continued to January 21, At hearings held on January 21, 28, and 31, 2005, the court 20 heard and considered the testimony of three witnesses who appeared 21 on Mr. Goddard’s behalf: Mark Corey, Ph.D., Heather Johnson 22 Goddard, the victim of the underlying domestic violence offense 23 and (at the time of the violation hearings) Mr. Goddard’s spouse; 24 and Mr. Goddard on his own behalf. 25 at 2-3).) 26 court imposed the previously suspended seven year state prison 27 sentence. (Lodged Document 1, Ct. Rec. 1, attachment 12(a) at 3.) (Ct. Rec. 1, attachment 12(a) At the end of the hearing on January 31, 2005, the 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 5 - 1 Mr. Goddard did not appeal from his judgment of conviction. 2 (Ct. Rec. 1 at 3.) 3 writ of habeas corpus in Yolo County Superior Court alleging 4 ineffective assistance of trial counsel. 5 The superior court denied the petition in a reasoned decision on 6 January 10, 2006. (Lodged Document 6.) 7 8 9 10 11 12 13 On November 7, 2005, he filed a petition for (Lodged Document 5.) Petitioner then presented the following claim to the California Supreme Court in a state habeas petition: (1) Was counsel ineffective for failing to fully and properly advise the defendant prior to entry of his plea, resulting in a plea not fully informed, in violation of his Sixth amendment right to counsel and Fifth amendment right to due process? (Lodged Document 7, attachment 6(a) at 1.) On October 11, 2006, the California Supreme Court denied 14 without comment Mr. Goddard’s petition for a writ. (Lodged 15 Document 8.) 16 his current petition for writ of habeas corpus with this Court. 17 (Ct. Rec. 1.) 18 On December 5, 2006, Mr. Goddard filed In his federal habeas petition, Mr. Goddard claims 19 ineffective assistance of counsel. 20 attachment to Petition 12(a).) 21 petition raises the same claim as that raised in the state’s 22 highest court. 23 II. EXHAUSTION OF STATE REMEDIES 24 (Ct. Rec. 1 at 6 and Mr. Goddard’s federal habeas As a preliminary issue, Petitioner must have exhausted his 25 state remedies before seeking habeas review. 26 courts are not to grant a writ of habeas corpus brought by a 27 person in state custody pursuant to a state court judgment 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 6 - The federal 1 unless “the applicant has exhausted the remedies available in 2 the courts of the State.” Wooten v. Kirkland, 540 F.3d 1019, 3 1023 (9th Cir. 2008), citing 28 U.S.C. §2254(b)(1)(A). 4 exhaustion requirement is ‘grounded in principles of comity’ as 5 it gives states ‘the first opportunity to address and correct 6 alleged violations of state prisoner’s federal rights.’” Id., 7 citing Coleman v. Thompson, 501 U.S. 722, 731 (1991). 8 “This In order to exhaust state remedies, a petitioner must have 9 raised the claim in state court as a federal claim, not merely as 10 a state law equivalent of that claim. 11 U.S. 364, 365-66 (1995). See Duncan v. Henry, 513 The state’s highest court must be 12 alerted to and given the opportunity to correct specific alleged 13 violations of its prisoners’ federal rights. Wooten, 540 F.3d at 14 1023, citing Picard v. Connor, 404 U.S. 270, 275 (1971). To 15 properly exhaust a federal claim, the petitioner is required to 16 have presented the claim to the state’s highest court based on the 17 same federal legal theory and the same factual basis as is 18 subsequently asserted in federal court. Hudson v. Rushen, 686 F. 19 2d 826, 829-30 (9th Cir. 1982), cert. denied, 461 U. S. 916 (1983). 20 Respondent may waive the exhaustion requirement. See 28 21 U.S.C. § 2254 (b)(3) (“A state shall not be deemed to have waived 22 the exhaustion requirement or be estopped from reliance on the 23 requirement unless the state, through counsel, expressly waives 24 the requirement.”) Respondent’s answer to the petition 25 affirmatively alleges “Respondent admits that Petitioner has 26 exhausted the stated grounds for relief in his Petition to the 27 extent interpreted by Respondent herein.” 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 7 - (Ct. Rec. 13 at 2.) 1 This clearly constitutes an express waiver by counsel of the 2 exhaustion requirement of the ineffective assistance claim. See 3 Dorsey v. Chapman, 262 F. 3d 1181, 1187 at n. 8 (11th Cir. 2001). 4 Generally, a habeas court may, in its discretion reach the merits 5 of a habeas claim or may insist on exhaustion of state remedies 6 despite a State’s waiver of the defense. 7 147 F. 3d 1124, 1127 (9th Cir. 1998). See Boyd v. Thompson, The court’s discretion 8 should be exercised to further the interests of comity, 9 federalism, and judicial efficiency. See id. It appears to 10 advance the interests of the parties and judicial efficiency 11 (without unduly offending the interests of either comity or 12 federalism) for the Court to decide petitioner’s claim is 13 exhausted and may, unless otherwise barred, be considered on the 14 merits. Respondent concedes that if the court finds the federal 15 16 habeas petition timely, the federal court should consider the 17 claims because petitioner has properly exhausted them, but dismiss 18 the claims and deny the petition on the merits. (Ct. Rec. 13 at 219 3, Ct. Rec. 21 at 2-3). Ineffective assistance of counsel - prosecutor’s statement 20 21 Petitioner argues trial counsel was ineffective because he told 22 Mr. Goddard the prosecutor intended to seek a maximum prison term, 23 but the record reflects otherwise. At the plea hearing in August 24 of 2004, the prosecutor said, “I don’t know that a conviction at 25 trial would result in a prison commitment.” (Lodged Document 18 at 26 6.) Petitioner alleges that if trial counsel had not falsely told 27 him the prosecutor intended to seek the maximum sentence, Mr. 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 8 - 1 Goddard would have gone to trial rather than accept the plea 2 agreement. (Ct. Rec. 1 at Exhibit, Ct. Rec. 18 at 2-5.) This is 3 the same claim based on the same facts presented by petitioner in 4 the habeas petition he filed in the California Supreme Court. 5 Petitioner cited federal case law in the state court in support of 6 his argument. 7 (Ct. Rec. 1, attachment 12(a) at 1, 3.) Ineffective assistance of counsel - failing to obtain 8 psychological evaluation Petitioner alleges trial counsel was 9 ineffective because he failed to have Mr. Goddard evaluated by a 10 psychologist before he changed his plea. (Ct. Rec. 23 at 10-13.) 11 Mr. Goddard raised this claim based on the same facts in both 12 federal court and the state’s highest court. He invoked the same 13 federal legal protections in the federal petition and in the 14 petition filed in the state’s highest court, namely, the Sixth 15 Amendment. Respondent is correct that Mr. Goddard exhausted both 16 of his federal habeas claims of ineffective assistance. 17 III. AEDPA STATUTE OF LIMITATIONS 18 The current federal petition was filed December 5, 2006. Its 19 disposition is therefore governed by the Antiterrorism and 20 Effective Death Penalty Act of 1996 (AEDPA), effective April 24, 21 1996. 22 (Ct. Rec. 13 at 5, Ct. Rec. 18 at 1.) Respondent asks that the petition be dismissed as untimely. 23 (Ct. Rec. 21 at 2, 5-6.) Respondent argues that the time frame 24 for determining when Mr. Goddard’s conviction became final begins 25 with the date he entered his no contest plea (August 30, 2004) and 26 ends with the 60-day deadline thereafter for filing a direct 27 appeal, October 29, 2004. (Ct. Rec. 21 at 6.) 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 9 - As noted, Mr. 1 Goddard did not file a direct appeal. Respondent asserts that Mr. 2 Goddard’s federal habeas petition was due one year after the date 3 his conviction became final, on October 29, 2005. 4 (Id.) With respect to tolling, Respondent argues that no time is 5 tolled in this case. While AEDPA’s statute of limitations is 6 normally tolled during periods of state review, Respondent argues 7 that tolling does not apply here because Mr. Goddard filed his 8 state habeas petition on November 7, 2005 – nine days after the 9 federal petition was due. Respondent contends that because the 10 statute never tolled, it ran on October 29, 2005. Mr. Goddard’s 11 filing of his federal habeas petition on December 5, 2006, was 12 therefore untimely. 13 (Ct. Rec. 21 at 6.) Petitioner answers that he meets an exception to AEDPA’s one- 14 year statute of limitation, which provides: 15 “(d)(1) A 1-year period of limitation shall apply to an 16 application for a writ of habeas corpus by a person in custody 17 pursuant to the judgment of a State court. The limitation period 18 shall run from the latest of: 19 . . . (D) the date on which the factual predicate of the 20 claim or claims presented could have been discovered through the 21 exercise of due diligence.” 22 (Lodged Document 23 at 1-2, citing 28 U.S.C. §2244(d)(1)(D). 23 Also significant is 28 U.S.C. § 2244(d)(2), which provides: 24 “The time during which a properly filed application for State 25 post-conviction or other collateral review with respect to the 26 pertinent judgment or claim is pending shall not be counted toward 27 any period of limitation under this section.” 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 10 - 1 28 U.S.C. § 2244(d)(2). In his amended traverse, petitioner describes the factual 2 3 predicate relied on: “it is uncontested in the record that the first time 4 5 Petitioner Goddard became aware of his claim of defense counsel 6 Beede’s ineffective assistance of counsel was in September of 2005 7 when he first read the transcripts of the state court 8 proceedings.” (Lodged Document 23 at 2.) Mr. Goddard’s October 27, 2005, declaration attached to his 9 10 federal petition states: “I have read in the court transcripts that the D.A. said to 11 12 the court that she didn’t know that a conviction at trial would 13 result in a prison commitment. The first time I became aware of 14 this statement by the D.A. was one month ago, September 2005.” 15 (Lodged Document 23 at 2, referring to Ct. Rec. 1, Exhibit B at 16 2.) 17 The court notes that in most cases, the limitation period 18 begins running on the date that the direct review becomes final. 19 California state law governs the period within which prisoners 20 have to file an appeal, and, in turn, that law governs the date of 21 finality of convictions. See e.g., Mendoza v. Carey, 449 F. 3d 22 1065, 1067 (9th Cir. 2006); Lewis v. Mitchell, 173 F. Supp. 2d 23 1057, 1060 (C.D. Cal 2001) (California conviction becomes final 60 24 days after the superior court proceedings have concluded, citing 25 prior California Rule of Court, Rule 31(d)). 26 Pursuant to California Rules of Court, Rule 8.308(a), 27 formerly Rule 31(d), a criminal defendant convicted of a felony 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 11 - 1 must file his notice of appeal within sixty days of the rendition 2 of judgment. See People v. Mendez, 19 Cal. 4th 1084 (1999). Mr. 3 Goddard did not file a notice of appeal. His superior court 4 proceedings concluded at sentencing on October 18, 2004. His 5 conviction became final when the sixty-day period for filing a 6 notice of appeal expired, December 16, 2004. 7 AEDPA’s one-year period commenced the following day, on 8 December 17, 2004, meaning petitioner had one year from that date, 9 until December 16, 2005, to file his federal petition for writ of 10 habeas corpus, absent tolling. See Patterson v. Stewart, 251 F. 11 3d 1243, 1245 (9th Cir. 2001). 12 Mr. Goddard filed his state petition on November 7, 2005 and 13 federal petition December 5, 2006. (Ct. Rec. 1.) Contrary to 14 Respondent’s argument, AEDPA’s limitation had not expired before 15 Mr. Goddard filed his state habeas petition. Rather, there were 16 39 days (November 7, 2005 through the AEDPA deadline of December 17 16, 2005) left on the AEDPA clock when Mr. Goddard filed his state 18 petition. The time that the state habeas petition was pending is 19 statutorily tolled. Thus, time is tolled from November 7, 2005 20 (the date of filing the state petition) until October 11, 2006 21 (the date the California Supreme Court denied review). Beginning 22 October 12, 2006, Mr. Goddard’s federal petition was no longer 23 subject to statutory tolling. The original 39 days remaining 24 began to run, meaning he had until November 20, 2006, to file his 25 federal petition. Since Mr. Goddard filed his federal petition on 26 December 5, 2006, the petition is untimely. The court considers 27 whether petitioner establishes an exception to the statute of 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 12 - 1 limitations. 2 After reviewing the record the court finds that petitioner 3 fails to establish that he could not, exercising due diligence, 4 have discovered the factual predicate of his claims sooner. The 5 record shows Mr. Goddard was present in the courtroom to change 6 his plea on August 30, 2004, when the prosecutor made the 7 statement Mr. Goddard claims he did not learn about until much 8 later. (Lodged Document 18.) Presumably, Mr. Goddard heard what 9 was said in his presence. 10 Even if Mr. Goddard did not learn of the comment until later, 11 the context of the prosecutor’s remark does not lend it the 12 meaning Mr. Goddard ascribes. The following took place at the 13 plea hearing: 14 COURT: . . . And the reason for the offer, Ms. Serafin? 15 PROSECUTOR: It really – his minimal record. I don’t know that a conviction at trial would result in a prison commitment. 16 17 18 19 20 21 22 23 24 25 26 27 COURT: Okay. Mr. Goddard, is that your understanding of the offer that’s been made to today? DEFENDANT: Yes, your Honor. (Lodged Document 18 at 6-7.) On this record, petitioner fails to show that, exercising due diligence, he was prevented from discovering the factual predicate of this claim within the statutory time limits. With respect to the second basis of his claim, Mr. Goddard argues the statute is similarly tolled based on trial counsel’s failure to obtain an evaluation before Mr. Goddard entered his plea change. Petitioner alleges he did not become aware of his need for such an evaluation (and that the failure to obtain one 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 13 - 1 constituted ineffective assistance) until Dr. Corey filed his 2 report dated January 13, 2005, prior to the probation revocation 3 hearing. (Lodged Document at 23 at 10-13.) As more fully 4 discussed herein, petitioner similarly fails to show that he could 5 not have discovered the factual predicate of this claim within the 6 statutory time limits. In the event the court finds petitioner meets the exception 7 8 to the time bar, the merits of his claims are discussed. 9 IV. MERITS 10 A. 11 Standard of Review Under AEDPA, a federal court may grant habeas relief if a 12 state court adjudication resulted in a decision that was contrary 13 to, or involved an unreasonable application of clearly established 14 federal law, as determined by the Supreme Court of the United 15 States, or resulted in a decision that was based upon an 16 unreasonable determination of the facts in light of the evidence. 17 28 U.S.C. § 2254 (d). “AEDPA does not require a federal habeas 18 court to adopt any one methodology in deciding the only question 19 that matters under § 2254(d)(1) - whether a state court decision 20 is contrary to, or involved an unreasonable application of, 21 clearly established federal law.” 22 63, 71 (2003), referring to 23 237 (2000). Lockyer v. Andrade, 538 U.S. Weeks v. Angelone, 528 U.S. 225 at Where no decision of the Supreme Court “squarely 24 addresses” an issue or provides a “categorical answer” to the 25 question before the state court, § 2254(d)(1) bars relief. Moses 26 v. Payne, 543 F. 3d 1090, 1098 (9th Cir. 2008), relying on Wright 27 v. Van Patten, __ U.S. __, 128 S. Ct. 743, 746 (2008); Carey v. 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 14 - 1 Musladin, 549 U.S. 70 (2006). Federal courts apply the Brecht standard to determine whether 2 3 a constitutional error was harmless. Fry v. Pliler, 551 U.S. 112 4 (2000); Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). Habeas 5 relief is warranted only if the error had a “substantial and 6 injurious effect or influence in determining the jury’s verdict.” 7 Brecht, 507 U.S. at 637 ((citing Kotteakos v. United States, 328 8 U.S. 750, 776 (1946)); Bains v. Cambra, 204 F. 3d 964, 977-78 (9th 9 Cir.) cert. denied, 531 U.S. 1037 (2000)). That is, the 10 Petitioner is entitled to habeas relief only if he can show that 11 any constitutional violation “resulted in actual prejudice.” 12 Brecht, 507 U.S. at 638 (internal citation omitted). 13 B. 14 Ineffective assistance: prosecutor’s statement Petitioner claims that the superior and state supreme courts 15 erred by denying his claim of ineffective assistance of counsel. 16 The Yolo County superior court judge who considered Mr. Goddard’s 17 state habeas petition wrote: 18 19 20 21 22 23 24 25 26 27 First, petitioner asserts that trial counsel was ineffective because, prior to petitioner withdrawing his not guilty plea and pleading no contest pursuant, counsel failed to advise him that the prosecutor was not sure that a prison sentence would have been imposed if petitioner went to trial and was convicted. The fact that at the change of plea hearing the prosecutor indicated that he [she] could not know that a prison term would be imposed if petitioner were to be convicted after a trial is a statement of the obvious, not an offer to limit post-trial sentencing arguments. It does not raise a prima facie case of ineffective assistance of defense counsel. The information set forth in the declaration of trial counsel which petitioner relies on to support his claim provides no support for this claim. Nothing in the record suggests in any way that trial counsel was ever informed by the prosecutor that the prosecutor intended to limit any post-trial sentencing arguments to a suspended seven-year prison sentence or even an immediately imposed seven-year prison sentence. 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 15 - 1 2 3 By accepting the plea deal he was offered, petitioner obtained a surprising[ly] lenient disposition where even no jail time was imposed. His after-the-fact effort to attack his change of plea, the plea deal, and trial counsel’s conduct on this ground is without merit. 4 (Lodged Document 6 at 2.) 5 Strickland v. Washington, 466 U.S. 668 (1984) ordinarily 6 applies to claims of ineffective assistance of counsel at the plea 7 hearing stage. Wright v. Van Patten, __ U.S. __, 128 S. Ct. 743, 8 746 (2008); see Hill v. Lockhart, 474 U.S. 52, 58 (1985)(“[T]he 9 two-part Strickland v. Washington test applies to challenges to 10 guilty pleas based on ineffective assistance of counsel”). 11 Strickland’s two-pronged test requires a showing of deficient 12 performance and prejudice to the defendant. 13 at 688-689. Strickland, 466 U.S. To satisfy the first prong, a petitioner must show 14 that, considering all the circumstances, counsel’s performance 15 fell below an objective standard of reasonableness. (Id., at 688.) 16 This requires identifying the acts or omissions that are alleged 17 to not have been the result of reasonable professional judgment. 18 (Id., at 690.) The federal court then determines whether, in 19 light of all the circumstances, the acts or omissions were outside 20 the wide range of professional competent assistance. (Id.) In 21 making this determination, there is a strong presumption “that 22 counsel’s conduct was within the wide range of reasonable 23 assistance, and that he exercised acceptable professional judgment 24 in all significant decisions made.” Hughes v. Borg, 898 F. 2d 695 25 (9th Cir. 1999), citing Strickland, 466 U.S. at 689. 26 Second, a petitioner must prove prejudice. 27 466 U.S. at 693. See Strickland, Prejudice is established when “there is a 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 16 - 1 reasonable probability that, but for counsel’s unprofessional 2 errors, the result of the proceeding would have been different.” 3 (Id. at 694.) A reviewing court “need not determine whether 4 counsel’s performance was deficient before examining the prejudice 5 suffered by the defendant as a result of the alleged deficiencies. 6 . . If it is easier to dispose of an ineffectiveness claim on the 7 ground of lack of sufficient prejudice . . . that course should be 8 followed.” Pizzuto v. Arave, 280 F. 3d 949, 955 (9th Cir. 2002), 9 quoting Strickland, 466 U.S. at 697. 10 Pursuant to 28 U.S.C. § 2254(e)(1), if a habeas petitioner is 11 in state custody pursuant to a state court judgment, the 12 determination of a factual issue made by a state court shall be 13 presumed to be correct. Miller-El v. Cockrell, 537 U.S. 322, 340 14 (2003), citing 28 U.S.C. § 2254(e)(1). 15 The trial court ascertained that Mr. Goddard reviewed the 16 plea form with counsel, had all of his questions answered, was 17 made no other promises with respect to the plea agreement, was not 18 being forced to change his plea, and entered the plea and 19 enhancement admission freely and voluntarily. (Lodged Document 18 20 at 7.) 21 As the superior court noted when reviewing the state 22 petition, the prosecutor’s statement (“I don’t know that a 23 conviction at trial would result in a prison commitment”) was a 24 statement of the obvious rather than an offer to limit argument at 25 post-trial sentencing. Prosecutors or defense counsel do not know 26 (in most cases) with any certainty what will happen after trial 27 with respect to sentencing. The superior court further observed 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 17 - 1 that nothing in the record suggests that trial counsel was at any 2 time informed by the prosecutor that she intended to limit post3 trial sentencing arguments to a suspended seven-year prison 4 sentence or even an immediately imposed seven-year prison 5 sentence. 6 (Lodged Document 6 at 2.) The record reveals no prejudice resulted from trial counsel’s 7 performance. As noted by the superior court, Mr. Goddard received 8 no jail time as part of his initial sentence. Pursuant to the 9 plea agreement negotiated by trial counsel, Mr. Goddard was 10 sentenced to serve five years of probation, with seven years of 11 confinement suspended; five additional counts were dismissed. 12 This is by any standard a lenient sentence. 13 The lack of prejudice to Mr. Goddard resulting from the plea 14 agreement is further shown by trial counsel’s comments with 15 respect to the dismissed counts before Mr. Goddard changed his 16 plea: 17 18 19 20 21 22 23 24 25 26 27 DEFENSE: The other events [resulting in other charges], if they were considered by Probation, are messier, and frankly, not acknowledged. In fact, the victim in that case, the same victim as in this case, denied that it happened. In that fashion, I’m reluctant to enter into a Harvey waiver. I think it should be dismiss for the plea, seven-year suspended sentence, which is a strike, which he will serve eighty-five percent of the time, if imposed, is enough. PROSECUTOR: I just want the, you know, probation and the Court to consider the fact that there was more than one instance, but I did not, you know, I take responsibility for that. I did not discuss that with Mr. Beede before he signed the plea agreement. DEFENSE: I agree with those comments. It’s honest, but one of the things Ms. Serafin ought to consider is that that event is a primary reason that possible second strike [arising from the other charges], had he fallen 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 18 - 1 2 3 4 on it at trial, is a substantial reason why Mr. Goddard takes this deal. It was considered in a situation where an act of domestic violence is resulting in a seven-year suspended term. This was something we were all aware of, and something that has caused this arrangement this afternoon. 5 (Lodged Document18 at 4.)(bold added) 6 Not only did Mr. Goddard receive a suspended sentence, trial 7 counsel’s representation resulted in Mr. Goddard ending up with 8 one criminal strike on his record rather than two. Mr. Goddard 9 fails to show any prejudice resulting from trial counsel’s 10 performance. 11 Petitioner also does not show the state court’s decision was 12 contrary to, or involved an unreasonable application of, clearly 13 established federal law, or resulted in a decision that was based 14 upon an unreasonable determination of the facts in light of the 15 evidence, as required by habeas jurisprudence. See e.g., Lockyer 16 v. Andrade, 538 U.S. 63, 70-71 (2003); Moses v. Payne, 543 F. 3d 17 1090, 1097-1098(9th Cir. 2008). The first basis for petitioner’s 18 claim of ineffective assistance of counsel is therefore without 19 merit. 20 C. Ineffective assistance - failure to obtain evaluation 21 Petitioner claims trial counsel’s representation was 22 ineffective because he did not refer Mr. Goddard to an evaluating 23 psychologist before Mr. Goddard entered his change of plea. The 24 superior court wrote: 25 26 27 Second, petitioner asserts that his trial counsel provided ineffective assistance of counsel because he failed to have petitioner examined by a mental health professional to determine whether he was capable of successfully completing probation. The issue of whether a defendant is competent to knowingly and intelligently waive his or her constitutional 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 19 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 rights in exchange for a lenient sentencing deal is a far different matter from the speculative question of whether that same defendant will be able to complete probation successfully. Petitioner has cited no apposite authority for his argument that trial counsel’s performance was inadequate because he failed to obtain additional expert assistance to assess the likelihood of petitioner’s success on probation in light of petitioner’s undisputed mental and emotional health issues and alcohol and drug dependency history and issues. In his declaration, trial counsel attests that he has previously represented petitioner in a number of other cases including cases where petitioner successfully completed years of probation. Irrespective of petitioner’s mental health, emotional, and drug dependency issues, nothing in the petition or in the record suggests that petitioner was any less capable of successfully completing probation in connection with Case No. CR F 6319 [the current case] than he was in earlier cases in which the same counsel represented him. Nor can trial counsel be faulted for failing to seek a more restrictive probation requirement - a residential treatment program - than that which was imposed. It does not take an expert to understand that a person with such issues may find it difficult to successfully complete probation. That obvious circumstance does not require an attorney to argue for a more restrictive probation. Accordingly, the court concludes that petitioner has failed to make a prima facie showing that he is entitled to relief on the grounds cited. (Lodged Document 6 at 2-3.)(bold added) Mr. Goddard’s pleadings filed in support of his federal habeas petition similarly cite no apposite authority supporting his argument. Petitioner fails to establish prejudice as required by Strickland. The state court’s denial of the second basis on which ineffectiveness is claimed is not contrary to or an unreasonable application of clearly established federal law. The second basis of Mr. Goddard’s ineffectiveness claim is therefore without merit. 25 26 27 This court finds the superior court’s conclusion that Mr. Goddard fails to show ineffectiveness is error-free. 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 20 - Accordingly, 1 both allegations of alleged ineffectiveness are without merit. 2 V. 3 CONCLUSION For the reasons stated above, IT IS RECOMMENDED the Petition 4 for Writ of Habeas Corpus (Ct. Rec. 1) be DENIED. OBJECTIONS 5 6 Any party may object to the magistrate judge’s proposed 7 findings, recommendations or report within ten (10) days following 8 service with a copy thereof. Such party shall file with the Clerk 9 of the Court all written objections, specifically identifying the 10 portions to which objection is being made, and the basis therefor. 11 Attention is directed to Fed. R. Civ. P. 6(e), which adds another 12 three (3) days from the date of mailing if service is by mail. A 13 district judge will make a de novo determination of those portions 14 to which objection ids made and may accept, reject, or modify the 15 magistrate judge’s determination. The district judge need not 16 conduct a new hearing or hear arguments and may consider the 17 magistrate judge’s record and make an independent determination 18 thereon. The district judge may also receive further evidence or 19 recommit the matter to the magistrate judge with instructions. 20 See 28 U.S.C. § 636 (b) (1) (C) , Fed. R. Civ. P. 73, and LMR 4, 21 Local Rules for the Eastern District of Washington. A magistrate 22 judge’s recommendation cannot be appealed to a court of appeals; 23 only the district judge’s order or judgment can be appealed. 24 The District Court Executive SHALL FILE this report and 25 recommendation and serve copies of it on the referring judge and 26 the parties. 27 DATED this 2nd day of February, 2009. 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 21 - 1 2 s/James P. Hutton 3 JAMES P. HUTTON UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 22 -
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