(HC) Davis v. Ducart, No. 2:2016cv00733 - Document 43 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 06/18/18 RECOMMENDING that petitioner's application for a writ of habeas corpus be denied. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)
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(HC) Davis v. Ducart Doc. 43 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID M. DAVIS, 12 Petitioner, 13 14 No. 2:16-cv-0733-JAM-EFB P FINDINGS AND RECOMMENDATIONS vs. CLARK DUCART, 15 Respondent. 16 Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas 17 18 corpus pursuant to 28 U.S.C. § 2254.1 He challenges a judgment of conviction entered against 19 him on December 5, 2012 in the Sutter County Superior Court on charges of: (1) child cruelty 20 pursuant to Cal. Penal Code § 273d(a); (2) dissuading a witness pursuant to Cal. Penal Code 21 § 136.1(c)(1); (3) spousal abuse pursuant to Cal. Penal Code § 273.5(a); and assault with a 22 weapon pursuant to Cal. Penal Code § 245(a)(1). He seeks federal habeas relief on the following 23 grounds: (1) he is actually innocent; (2) his rights were violated when the state court failed to 24 interpret his plea agreement according to “California Contract Law”; and (3) his trial counsel was 25 ineffective. 26 ///// 27 28 1 The matter has been referred to the magistrate judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. 1 Dockets.Justia.com 1 2 3 4 For the reasons stated below, petitioner’s application for habeas corpus relief must be denied. I. Background In its unpublished memorandum and opinion affirming petitioner’s judgment of 5 conviction on appeal, the California Court of Appeal for the Third Appellate District provided the 6 following factual summary: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant David Marshall Davis and his stepson, 16 year-old D.W., were cleaning out a room in the family home when D.W. fell asleep. Defendant threw a plastic object at D.W., striking his right eye. Defendant also punched him in the ribs about 10 times. As a result, D.W. had a horizontal line across his field of vision which did not heal. Later that week, defendant assaulted his cohabitant, D.W.'s mother Page G. He pushed her against the kitchen wall, hit her in the face with a closed fist, and threw her to the ground. Page G. was three months pregnant with defendant's child. While she was on the ground, defendant stomped on her stomach with his foot and yelled that he hoped she would miscarry. He also threatened to kill Page G. if she got law enforcement involved. D.W. distracted defendant by letting the dogs in, and then fled with his mother. In a search incident to defendant's arrest, officers found a marijuana growing facility in one of the rooms. Wiring for the operation was stripped and spliced and hanging exposed instead of inside a junction box. Exposed electrical wiring emerged from the sheetrock as well. A search warrant was later executed on the residence. Officers found 390.88 grams of marijuana in a paper bag, a sheet of paper indicating the respective values of different amounts of marijuana, and 21 jars containing a total of 384.28 grams of marijuana. While in jail, defendant called Page G. and instructed her to have D.W. testify that he made up the whole story because he was angry at defendant. Defendant was charged in case No. CRF121011 with corporal injury to a child with great bodily injury (Pen. Code, §§ 273d, subd. (a), 12022.7, subd. (a); undesignated statutory references are to the Penal Code), child endangerment (§ 273a, subd. (a)), corporal injury to a cohabitant (§ 273.5, subd. (a)), dissuading a witness (§ 136.1, subd. (c)(1)), criminal threats (§ 422), assault by means likely to cause great bodily injury (§ 245, subd. (a)(1)), misdemeanor false imprisonment (§§ 236, 237), and possession of marijuana for sale (Health & Saf. Code, § 11359). A few days after being released from jail, defendant confronted D.W. and accused him of stealing some marijuana. D.W. denied stealing marijuana, but admitted selling some while defendant was in jail. Defendant and Page G. told D.W. to leave the home; D.W. went to 2 1 his girlfriend's residence. Defendant and Page G. drove D.W. home the following day. After Page G. and their other children left, defendant confronted D.W. in the room where the marijuana was grown. Defendant, armed with an aluminum baseball bat, told D.W. he would knock his head off if he said anything stupid. When D.W. continued to deny stealing the marijuana, defendant struck him in the shin with the bat. Defendant left the residence when Page G. and the children returned. 2 3 4 5 Defendant was subsequently charged in case No. CRF121645 with corporal injury to a child with personal use of a deadly weapon (§§ 273d, subd. (a), 12022, subd. (b)(1)), criminal threats with personal use of a deadly weapon (§§ 422, 12022, subd. (b)(1)), dissuading a witness (§ 136.1, subd. (b)(1)), subornation of perjury (§ 127), assault with a deadly weapon (§ 245, subd. (a)(1)), and on bail enhancements for all counts (§ 12022.1). 6 7 8 9 Pleading in both cases, defendant pleaded no contest to corporal injury to a child, corporal injury to a cohabitant, dissuading a witness, and assault with a deadly weapon, and admitted great bodily injury and on bail enhancement. The remaining charges were dismissed with a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.) The trial court sentenced defendant to 16 years in state prison, imposed various fines and fees, and awarded 166 days of credit (145 actual and 21 conduct) in case No. CRF12011 and 93 days of credit (81 actual and 12 conduct) in case No. CRF121645 (§ 2933.1). In a subsequent proceeding, the trial court ordered $1,681.50 victim restitution to Medi–Cal for Page G.'s and D.W.'s medical expenses and $120 to the home's owner for damages resulting from defendant's marijuana operation. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 People v. Davis, 2013 Cal. App. Unpub. LEXIS 6396, 2013 WL 4780963, at *1–2 (Cal.App. 3 Dist., 2013) (unpublished). II. Standards of Review Applicable to Habeas Corpus Claims An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1,5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000). Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief: 26 27 28 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim 3 1 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 2 3 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 For purposes of applying § 2254(d)(1), “clearly established federal law” consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 565 U.S. 34, (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be “used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 567 U.S. 37, 49 (2012) (per curiam)). Nor may it be used to “determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said that there is “clearly established Federal law” governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006). A state court decision is “contrary to” clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s case. 2 Lockyer v. 26 27 28 2 Under § 2254(d)(2), a state court decision based on a factual determination is not to be overturned on factual grounds unless it is “objectively unreasonable in light of the evidence presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford, 4 1 Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 2 (9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply because that 3 court concludes in its independent judgment that the relevant state-court decision applied clearly 4 established federal law erroneously or incorrectly. Rather, that application must also be 5 unreasonable.” Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 6 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its independent 7 review of the legal question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”). 8 “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as 9 ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v. 10 Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 11 Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner 12 must show that the state court’s ruling on the claim being presented in federal court was so 13 lacking in justification that there was an error well understood and comprehended in existing law 14 beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. 15 If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing 16 court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford, 17 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) 18 (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of § 19 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering 20 de novo the constitutional issues raised.”). 21 The court looks to the last reasoned state court decision as the basis for the state court 22 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If 23 the last reasoned state court decision adopts or substantially incorporates the reasoning from a 24 previous state court decision, this court may consider both decisions to ascertain the reasoning of 25 the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When 26 a federal claim has been presented to a state court and the state court has denied relief, it may be 27 28 384 F.3d 628, 638 (9th Cir. 2004)). 5 1 presumed that the state court adjudicated the claim on the merits in the absence of any indication 2 or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption 3 may be overcome by a showing “there is reason to think some other explanation for the state 4 court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). 5 Similarly, when a state court decision on a petitioner’s claims rejects some claims but does not 6 expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that 7 the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289, 293 (2013). 8 Where the state court reaches a decision on the merits but provides no reasoning to 9 support its conclusion, a federal habeas court independently reviews the record to determine 10 whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. 11 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo 12 review of the constitutional issue, but rather, the only method by which we can determine whether 13 a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no 14 reasoned decision is available, the habeas petitioner still has the burden of “showing there was no 15 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. 16 A summary denial is presumed to be a denial on the merits of the petitioner’s claims. 17 Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze 18 just what the state court did when it issued a summary denial, the federal court must review the 19 state court record to determine whether there was any “reasonable basis for the state court to deny 20 relief.” Richter, 562 U.S. at 98. This court “must determine what arguments or theories ... could 21 have supported, the state court's decision; and then it must ask whether it is possible fairminded 22 jurists could disagree that those arguments or theories are inconsistent with the holding in a prior 23 decision of [the Supreme] Court.” Id. at 102. The petitioner bears “the burden to demonstrate 24 that ‘there was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d 25 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98). 26 When it is clear, however, that a state court has not reached the merits of a petitioner’s 27 claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal 28 habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 6 1 2 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003). III. Petitioner’s Claims 3 A. 4 In his first claim, petitioner argues that his conviction must be vacated because he is Actual Innocence 5 actually innocent. In support of this claim, he argues that witness De-Anthony Ward gave false 6 testimony against him. ECF No. 29 at 9-10. 3 Petitioner points to a signed statement attached to 7 his original petition wherein Ward recants statements he provided to law enforcement. ECF No. 8 1 at 74-76. 9 10 1. Applicable Legal Standards The Supreme Court has never decided whether a freestanding claim of actual innocence is 11 cognizable in federal habeas corpus. Herrera v. Collins, 506 U.S. 390, 400 (1993) (“Claims of 12 actual innocence based on newly discovered evidence have never been held to state a ground for 13 federal habeas relief absent an independent constitutional violation occurring in the underlying 14 state criminal proceeding.”); see also DA’s Office v. Osborne, 557 U.S. 52, 71 (2009). Assuming 15 such a claim was cognizable, a petitioner would have to meet an “extraordinarily high” bar to 16 establish actual innocence. House v. Bell, 547 U.S. 518, 554 (2006). 17 18 2. Petitioner did not present a claim based on actual innocence to the state courts. 19 20 The State Court’s Ruling 3. Analysis As a preliminary matter, respondent argues that this claim is unexhausted and the court 21 agrees. Nevertheless, the court concludes that this claim fails on the merits and elects to dispose 22 of it on those terms. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may 23 be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies 24 available in the courts of the State.”). 25 The court finds that the recantation statement from Ward is insufficient to carry 26 petitioner’s burden of establishing actual innocence. The Ninth Circuit, drawing from language 27 28 3 Page number citations such as this one are to the page numbers reflected on the court’s CM/ECF system and not to page numbers assigned by the parties. 7 1 in Justice Blackmun’s dissent in Herrera, has determined that a petitioner claiming actual 2 innocence must “go beyond demonstrating doubt about his guilt, and must affirmatively prove 3 that he is probably innocent.” Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (citing 4 Herrera, 506 U.S. at 442-44 (Blackmun, J., dissenting)). The recantation evidence offered by 5 petitioner is inadequate to this task. In Jones v. Taylor, the Ninth Circuit rejected a petitioner’s 6 actual innocence claim where he relied solely on recantation testimony. 763 F.3d 1242, 1248 (9th 7 Cir. 2014). “As a general matter, recantation evidence is viewed with great suspicion.” Id. 8 (citing Dobbert v. Wainwright, 468 U.S. 1231, 1233 (1984) (Brennan, J., dissenting from denial 9 of certiorari) (internal quotation marks omitted)). “Recanting testimony is easy to find but 10 difficult to confirm or refute: witnesses forget, witnesses disappear, witnesses with personal 11 motives change their stories many times, before and after trial.” Id. (citing Carriger, 132 F.3d at 12 483 (Kozinski, J., dissenting) (internal quotation marks omitted)). A witnesses’ “later recantation 13 of his trial testimony does not render his earlier testimony false.” Allen v. Woodford, 395 F.3d 14 979, 994 (9th Cir. 2004). As respondent correctly notes, Ward’s recantation is suspect insofar as 15 he had changed his accounting of events once before and noted that he was afraid of petitioner. 16 1CT4 at 145-46; 2CT 342-43. Petitioner took responsibility for this prior recantation after he 17 entered his plea. 2CT at 342. 18 19 Based on the foregoing, the court finds that petitioner has failed to carry his heavy burden of establishing that he is actually innocent and this claim should be denied. 20 B. 21 Next, petitioner claims that his plea of no contest was not knowing. He argues that the 22 trial court failed to advise him of the ultimate consequences of his plea and the rights he would 23 waive by entering such a plea. ECF No. 29 at 11-12. 24 25 26 Unknowing Plea 1. Applicable Legal Standards The Supreme Court has held that, to satisfy due process, a guilty plea “not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant 27 28 4 “CT” refers to the Clerk’s Transcript on Appeal. 8 1 circumstances and likely consequences.” Brady v. United States, 397 U.S. 742, 748 (1970). 2 However, “the Constitution . . . does not require complete knowledge, but permits a court to 3 accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various 4 forms of misapprehension under which a defendant might labor.” United States v. Ruiz, 536 U.S. 5 622, 625 (2002). To determine whether a plea is voluntary a federal habeas court must consider 6 all of the relevant circumstances surrounding it. Brady, 397 U.S. at 749. These circumstances 7 include, for example, “the possibility of a heavier sentence following a guilty verdict after a trial.” 8 Id. A plea is intelligent if a defendant “was advised by competent counsel, he was made aware of 9 the nature of the charge against him, and there was nothing to indicate that he was incompetent or 10 otherwise not in control of his mental faculties.” Id. at 756. 11 2. 12 13 State Court Decision Petitioner raised this claim in his habeas petition submitted to the California Supreme Court. Lodg. Doc. 7. The petition received a silent denial. Lodg. Doc. 8. 14 3. 15 Analysis The record indicates that petitioner’s plea was knowing and intelligent. He was 16 represented by counsel and his counsel told the superior court that he had explained the plea 17 agreement to the petitioner. RT5 at 45, 47. The superior court asked petitioner to verify his 18 signature and initials on the plea forms. Id. at 47-48. It then asked whether petitioner had any 19 questions about ‘anything’ before he entered his plea. Id. at 48. Petitioner responded that he did 20 not. Id. 21 Petitioner argues that he was not advised of: (1) ‘any of the consequences’ of his plea; (2) 22 his constitutional rights; and (3) the ‘direct consequences’ of his plea. ECF No. 29 at 10-12. He 23 contends that his counsel promised that he would receive probation. Id. at 12. The plea forms 24 which petitioner signed and initialed, however, contained various advisements concerning the 25 maximum penalties and waiver of rights. 1CT at 272-80, 286-94. These plea forms noted that 26 ///// 27 28 5 “RT” refers to the Reporter’s Transcript. 9 1 petitioner faced the possibility substantial prison time. Id. at 272, 286. With respect to the 2 possibility of probation, petitioner initialed the following stipulations: 3 4 (1) I understand the minimum and maximum sentence for the charges and allegations to which I am pleading. No one has made any other promises to me about what sentence the court may order. 5 (2) I understand that I am not eligible for probation. 6 (3) I understand that I will not be granted probation unless the court finds at the time of sentencing that this is an unusual case where the interests of justice would be best served by granting probation. 7 8 9 Id. at 273, 287. Additionally, in sections titled ‘constitutional rights’ and ‘waiver of 10 constitutional rights’ petitioner initialed next to various stipulations indicating his understanding 11 of his constitutional rights and his waiver of those rights. Id. at 278-79, 292-93. As noted above, 12 petitioner was asked by the superior court whether these initials were his and he stated that they 13 were. RT at 48. Petitioner now contends that he did not actually read this form because his 14 counsel was in a rush to return the forms to the prosecutor. ECF No. 29 at 12. He had an 15 opportunity to state as much during his plea hearing, however, when the superior court asked 16 whether he had any questions. RT at 48. Instead, petitioner answered that he had no questions 17 regarding his plea. Id. The superior court then read each charge aloud and asked petitioner for his 18 plea on each. Id. at 48-49. Petitioner entered pleas of no contest to each. Id. Additionally, the 19 superior court asked petitioner’s counsel whether he had an opportunity to discuss the pleas and 20 admissions with petitioner. Id. at 47. Petitioner’s counsel stated that he had done so and was 21 satisfied that petitioner understood the plea agreement. Id. It is settled that “[s]olemn 22 declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 23 63, 74 (1977). Petitioner has not carried his burden of establishing that the plea was not knowing. 24 See Little v. Crawford, 449 F.3d 1075, 1080 (9th Cir. 2006) (“A habeas petitioner bears the 25 burden of establishing that his guilty plea was not voluntary and knowing”).6 26 ///// 27 28 6 Under California law a plea of no contest is equivalent to a guilty plea. See Cal. Penal Code § 1016; People v. Mendez, 19 Cal. 4th 1084, 1094-95 (1999). 10 1 Finally, petitioner’s contention that the state courts failed to interpret his plea agreement 2 in accordance with California contract law does not state a viable federal habeas claim. See 3 Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (“[A]lleged errors in the application of 4 state law are not cognizable in federal habeas corpus.”). 5 6 Based on the foregoing, the court finds that the California Supreme Court’s denial of this claim was not contrary to, nor an unreasonable application of clearly established federal law. 7 C. 8 Plaintiff raises five grounds on which his counsel was allegedly ineffective. These are: 9 (1) counsel advised him to take the plea agreement without explaining the consequences of that 10 plea; (2) counsel told petitioner he could secure a probation sentence which petitioner was not 11 eligible for; (3) counsel failed to investigate petitioner’s mental disability; (4) counsel submitted 12 ‘fraudulent’ information to the court in his attempt to secure probation for petitioner; and (5) 13 counsel told petitioner he would withdraw if petitioner declined to take the plea. ECF No. 29 at 14 18-23. 15 Ineffective Assistance of Counsel 1. 16 Applicable Legal Standards The clearly established federal law governing ineffective assistance of counsel claims is 17 that set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To 18 succeed on a Strickland claim, a defendant must show that (1) his counsel's performance was 19 deficient and that (2) the “deficient performance prejudiced the defense.” Id. at 687. Counsel is 20 constitutionally deficient if his or her representation “fell below an objective standard of 21 reasonableness” such that it was outside “the range of competence demanded of attorneys in 22 criminal cases.” Id. at 687-88 (internal quotation marks omitted). “Counsel's errors must be ‘so 23 serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’” Richter, 562 at 24 104 (quoting Strickland, 466 U.S. at 687). 25 Prejudice is found where “there is a reasonable probability that, but for counsel's 26 unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 27 U.S. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the 28 ///// 11 1 outcome.” Id. “The likelihood of a different result must be substantial, not just conceivable.” 2 Richter, 562 U.S. at 112. 3 4 2. State Court Decision In his habeas petition to the California Supreme Court, petitioner raised his ineffective 5 assistance claims regarding: (1) the failure to investigate his competence; (2) the submission of 6 fraudulent information; and (3) the failure to advise petitioner of the consequences of the plea. 7 Lodg. Doc. 7. This petition received a silent denial. Lodg. Doc. 8. 8 9 3. Analysis Petitioner’s ineffective assistance claims are unavailing. As a preliminary matter, not all 10 of his current claims were raised in his habeas petition to the California Supreme Court and, thus, 11 not all were exhausted.7 Nevertheless, the court finds it more efficient to dispose of each of these 12 contentions on the merits. See 28 U.S.C. § 2254(b)(2). 13 a. The Consequences of the Plea 14 The court has already found that petitioner has not carried his burden of establishing that 15 his plea was not knowing. As noted above, petitioner signed and initialed statements indicating 16 that he: (1) understood the penalties he could be subject to as part of his plea; (2) understood the 17 constitutional rights he was waiving in electing to plead no contest; and (3) that he had discussed 18 the plea agreement with his attorney and understood its effects and contents. 1CT at 278-79, 292- 19 93. At his plea hearing, after being asked whether he had any questions about the plea, plaintiff 20 stated he did not. RT at 48. Thus, based on these statements by the petitioner in open court this 21 court finds that petitioner has failed to show that his counsel did not inform him of the possible 22 consequences of his plea. 23 To the extent petitioner alleges that his counsel rendered ineffective assistance simply by 24 advising him to accept the plea, that claim also fails. The plea agreement dismissed various 25 charges which, if included and proven at trial, would have increased petitioner’s prison exposure 26 27 28 7 The two unexhausted claims are: (1) that counsel misled him into believing he was eligible for probation and; (2) that counsel threatened to discontinue representation if he moved to withdraw his no contest plea. 12 1 to a maximum of twenty-six years. ECF No. 38 at 16 n. 2; People v. Davis, 2013 Cal. App. 2 Unpub. LEXIS 6396, 2013 WL 4780963, at *1–2 (Cal.App. 3 Dist., 2013) (unpublished). Thus, 3 the court concludes that it was not outside the range of professionally competent assistance to 4 advise petitioner to accept the plea agreement. Additionally, petitioner had the tools necessary to 5 make an informed decision as to whether to accept the plea agreement. See Turner v. Calderon, 6 281 F.3d 851, 881, (9th Cir. 2002) (finding that counsel’s advice was not deficient where 7 petitioner had the “tools he needed to make an informed decision – the critical information and 8 the time to think about it.”).8 Nor is petitioner entitled to relief merely because his counsel 9 erroneously predicted that he would receive probation.9 See Chizen v. Hunter, 809 F.2d 560, 561 10 (9th Cir. 1986) (no habeas relief where petitioner’s counsel “erroneously predicted the favorable 11 consequences of a guilty plea”) (emphasis in original). 12 13 b. Eligibility for Probation Next, petitioner claims that his counsel was deficient in seeking a probation sentence 14 because he was ineligible for probation. Although petitioner was presumptively ineligible for 15 probation, the fact remained that he could receive probation if the superior court concluded that 16 his was the “unusual case where the interests of justice would be best served” by such a sentence. 17 Cal. Penal Code § 1203(e). An “unusual case” may be found where a “fact or circumstance not 18 amounting to a defense, but reducing the defendant’s culpability for the offense” is present. Cal. 19 20 21 22 23 24 25 26 27 28 8 The court recognizes that petitioner now states, without any evidence, that he did not actually read the plea agreement which he initialed, signed, and declined to ask any questions about. These self-serving statements are insufficient to establish that petitioner was not fully advised of his options. See United States v. Allen, 153 F.3d 1037, 1041 (9th Cir. 1998) (citing Cuppett v. Duckworth, 8 F.3d 1132, 1139 (7th Cir. 1993)(en banc) (“Self-serving statements by a defendant that his conviction was constitutionally infirm are insufficient to overcome the presumption of regularity accorded state convictions.”); Womack v. McDaniel, 497 F.3d 998, 1004 (9th Cir. 2007) (rejecting ineffective assistance claim where “[o]ther than [petitioner’s] own self-serving statement, there is no evidence that his attorney failed to discuss potential defenses with him.”). 9 Petitioner alleges that his counsel assured him that he would receive probation, but there is no evidence that his counsel guaranteed rather than merely predicted that outcome. And, as noted above, the plea forms which petitioner initialed and signed stipulated that he understood the maximum and minimum sentences to which he was pleading and that no one had made any other promises to him about what sentence he might receive. 1CT at 273, 287. 13 1 R. Ct. 4.413(a)-(c). One example articulated in the California Rules of Court is where “[t]he 2 crime was committed because of a mental condition not amounting to a defense, and there is a 3 high likelihood the defendant would respond favorably to mental health care and treatment as 4 would be required as a condition of probation.” Cal. R. Ct. 4.413(c)(2)(B). 5 Respondent notes, and the record supports, that petitioner’s counsel went on to argue that 6 petitioner’s crimes resulted from his alcoholism. RT at 64-65. Counsel stated that petitioner had 7 been successful in battling his alcoholism for about a decade, until he experienced a relapse 8 following the death of his mother. Id. at 66. Petitioner’s wife offered testimony at the sentencing 9 hearing that, prior to his relapse, he had been a “wonderful husband”, had held a job, and been 10 involved in the lives of his children. Id. at 60. Finally, petitioner’s counsel had secured a bed for 11 him at an inpatient treatment program. 2CT at 356. The superior court ultimately found that 12 petitioner’s was not an unusual case that merited probation, but the fact remains that probation 13 was not, as petitioner implies in his petition, an impossibility. Accordingly, the court cannot say 14 that counsel’s strategy fell outside the range of competence demanded of attorneys in criminal 15 cases. The court notes that it must review counsel’s performance deferentially and apply a strong 16 presumption that it was within the wide range of competence. Strickland, 466 U.S. at 689. The 17 fact that an attorney’s strategy was unsuccessful or that other strategies could have been pursued 18 does not mandate a finding of ineffective assistance. Id. (“There are countless ways to provide 19 effective assistance in any given case. Even the best criminal defense attorneys would not defend 20 a particular client in the same way.”); Campbell v. Wood, 18 F.3d 662, 673 (9th Cir. 1994) (“We 21 will neither second-guess counsel’s decisions, nor apply the fabled twenty-twenty vision of 22 hindsight.”). 23 24 c. Failure to Investigate Petitioner’s Mental Disability The court concludes that petitioner has failed to establish that he was prejudiced by his 25 counsel’s failure to investigate his mental disability. The standard for competence to stand trial is 26 whether the defendant has “sufficient present ability to consult with his lawyer with a reasonable 27 degree of rational understanding” and has “a rational as well as factual understanding of the 28 proceedings against him.” Godinez v. Moran, 509 U.S. 389, 396 (1993) (quoting Dusky v. United 14 1 States, 362 U.S. 402 (1960)). Petitioner’s comportment during the superior court proceedings 2 indicated that he was capable of understanding those proceedings, consulting with his counsel, 3 and making a knowing plea. As noted above, he was questioned prior to the entry of his plea by 4 the superior court and answered the questions cogently. RT at 47-48. Additionally, during an 5 interview with a probation officer, petitioner described his alcoholism, indicated his desire to 6 accept responsibility for his actions, and emphasized that he was not the person he “appears to be 7 on paper.” 2CT at 341-42. His actions and responses evince a rational understanding of the 8 proceedings against him. 9 As evidence of his incompetence, petitioner points to: (1) a June 4, 2014 hand-written 10 statement from his wife which states that petitioner has post-traumatic stress disorder, paranoid 11 thoughts, and hears voices (ECF No. 1 at 37); (2) a June 4, 2014 statement from his father which 12 states that petitioner is mentally disabled and on numerous medications for his disability (id. at 13 40); and (3) evidence of social security disability payments (id. at 42). None of these exhibits 14 establish that petitioner was incapable of rationally or factually understanding the proceedings 15 against him. The fact that petitioner had mental health issues which required medication does not 16 automatically establish that he lacked competence to stand trial. 17 To the extent petitioner is arguing that his counsel should have investigated the possibility 18 of an insanity defense, that claim also fails. A successful insanity defense under California law 19 requires the trier of fact to find that it is more likely than not that the defendant “was incapable of 20 knowing or understanding the nature and quality of his or her act and of distinguishing right from 21 wrong at the time of the commission of the offense.” Cal. Penal Code § 25(b). There was no 22 evidence which suggested that petitioner was incapable of understanding the nature of his acts or 23 of distinguishing right from wrong at the time of his offenses. To the contrary, the record 24 indicates that petitioner threatened his wife the day after he assaulted her and advised her not to 25 report the previous evening’s assault to the police. 2CT 331-32. This evidences that petitioner 26 was capable of understanding the nature of his actions and of distinguishing right from wrong.10 27 28 10 To the extent petitioner argues that he could have staked an insanity defense based on his inebriation, that claim fails. See People v. Cabonce, 169 Cal. App. 4th 1421, 1434 (2009) 15 1 2 3 Thus, petitioner was not prejudiced by his counsel’s failure to investigate an insanity defense. d. Submission of Fraudulent Information Petitioner alleges that his counsel offered “fabricated lies” in his statement in support of a 4 sentence of probation. ECF No. 29 at 22-23. These lies included that petitioner had held a job 5 for six years and that, at one point, he had been free from alcohol for over a decade. Id. at 23. As 6 respondent persuasively argues, however, these lies actually helped petitioner’s case for probation 7 insofar as they supported the notion that probation and substance treatment would better serve the 8 interests of justice than a prison sentence. Thus, assuming counsel lied rather than simply 9 misstated facts, there is no evidence that petitioner suffered any prejudice. 10 e. Threat to Withdraw 11 Petitioner argues that his counsel rendered ineffective assistance by informing him that he 12 would no longer represent petitioner if he moved to withdraw his no contest plea. ECF No. 29 at 13 22. This claim fails because, as noted in the petition, the purported threat to discontinue 14 representation came after petitioner had already entered his plea. Id. Thus, the court cannot say, 15 assuming the truth of petitioner’s allegation, that he was coerced by counsel into entering his plea. 16 And the Supreme Court has never held that the Strickland standard applies in the context of a 17 motion to withdraw a plea of no contest. See Missouri v. Frye, 566 U.S. 134, 140 (2012) (“The 18 Sixth Amendment guarantees a defendant the right to have counsel present at all 'critical' stages 19 of the criminal proceedings. . . . [c]ritical stages include arraignments, postindictment 20 interrogations, postindictment lineups, and the entry of a guilty plea.”) (internal citations and 21 quotation marks omitted) (emphasis added); see also Monterrosa v. Belleque, 2008 U.S. Dist. 22 LEXIS 2172, 2008 WL 123858, *6 (D. Or. Jan. 8, 2008); Miller v. Cate, No. CV 13-1041 JLS 23 (JC), 2015 U.S. Dist. LEXIS 123821, *38 (C.D. Cal. May 8, 2015). It is even less clear that 24 Strickland would apply in this instance, where petitioner never actually moved to withdraw his 25 plea. Nor has petitioner established that he was prejudiced by his counsel’s ultimatum. Had he 26 27 28 (“Thus, there can be no insanity defense when the inability to tell right from wrong [is] derived (1) solely from an addiction or abuse of intoxicating substances, or (2) from a mental defect or disorder that itself was caused solely by such addiction or abuse.”). 16 1 desired to move to withdraw his plea, petitioner could have notified the court of his irreconcilable 2 conflicts with retained counsel and sought a substitution – either of newly retained or appointed 3 counsel. Whether the superior court would have permitted substitution or an ultimate withdrawal 4 of petitioner’s plea is uncertain, but the court need not speculate on this point to resolve this issue. 5 The fact remains that petitioner could have moved forward with his attempt to withdraw his plea 6 prior to his sentencing hearing and evidently chose not to. 7 8 9 IV. Conclusion Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas corpus be denied. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 15 shall be served and filed within fourteen days after service of the objections. Failure to file 16 objections within the specified time may waive the right to appeal the District Court’s order. 17 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 18 1991). In his objections petitioner may address whether a certificate of appealability should issue 19 in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 20 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a 21 final order adverse to the applicant). 22 DATED: June 18, 2018. 23 24 25 26 27 28 17