Rangel v. Scribner, No. 4:2008cv01415 - Document 12 (N.D. Cal. 2011)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 3/28/2011. (ndr, COURT STAFF) (Filed on 3/28/2011)
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Rangel v. Scribner Doc. 12 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 11 12 Petitioner, 13 14 No. C 08-1415 CW (PR) ANTHONY RANGEL, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY v. L. E. SCRIBNER, Warden, 15 Respondent. 16 / 17 18 INTRODUCTION 19 Petitioner Anthony Rangel, a state prisoner incarcerated at 20 Mule Creek State Prison in Ione, California, seeks a writ of habeas 21 corpus under 28 U.S.C. § 2254, challenging his criminal convictions 22 and sentence from Santa Clara County Superior Court. 23 On August 22, 2008, the Court issued an Order to Show Cause why 24 the writ should not be granted. 25 filed an Answer. 26 On January 29, 2009, Respondent Petitioner did not file a Traverse. Having considered all of the papers filed by the parties, the 27 Court DENIES the Petition. 28 // Dockets.Justia.com 1 2 BACKGROUND On March 30, 2005, a jury convicted Petitioner of one count of 3 continuous sexual abuse of a child under the age of fourteen (Cal. 4 Pen. Code, § 288.5, subd.(a)) and one count of sexual penetration 5 while the victim is unconscious of the nature of the act. 6 § 289, subd.(d). 7 term, id., § 667.5, subd.(b), and that he had been convicted of one 8 prior serious felony, id., § 667, subd.(a), and two violent or 9 serious felonies that qualified as “strikes” under California’s Id., Petitioner admitted he had served a prior prison 10 Three Strikes law. 11 No. 9, Ex. 10 at 1. 12 Id., §§ 667, subds.(b)-(i) & 1170.12. See Doc. On April 19, 2005, the trial court denied Petitioner’s request 13 to strike one of the prior convictions and sentenced him to sixty- 14 one years to life in prison with an additional consecutive seven- 15 year sentence. 16 petition for review to the California Supreme Court was denied on 17 May 23, 2007. 18 habeas relief in this Court on March 12, 2008. 19 20 See Doc. No. 9, Ex. 10 at 1–2. Doc. No. 9, Exs. 13 & 14. Petitioner’s Petitioner sought federal LEGAL STANDARD The Antiterrorism and Effective Death Penalty Act of 1996 21 (AEDPA), codified under 28 U.S.C. § 2254, provides “the exclusive 22 vehicle for a habeas petition by a state prisoner in custody 23 pursuant to a state court judgment, even when the petitioner is not 24 challenging his underlying state court conviction.” 25 Lambert, 370 F.3d 1002, 1009–10 (9th Cir. 2004). 26 court may entertain a petition for habeas relief on behalf of a 27 28 2 White v. Under AEDPA, this 1 California state inmate “only on the ground that he is in custody in 2 violation of the Constitution or laws or treaties of the United 3 States.” 4 28 U.S.C. § 2254(a). The writ may not be granted unless the state court’s 5 adjudication of any claim on the merits: 6 decision that was contrary to, or involved an unreasonable 7 application of, clearly established Federal law, as determined by 8 the Supreme Court of the United States; or (2) resulted in a 9 decision that was based on an unreasonable determination of the “(1) resulted in a 10 facts in light of the evidence presented in the State court 11 proceeding.” 12 federal habeas relief will not be granted “simply because [this] 13 court concludes in its independent judgment that the relevant 14 state-court decision applied clearly established federal law 15 erroneously or incorrectly. 16 unreasonable.” 17 28 U.S.C. § 2254(d). Under this deferential standard, Rather, that application must also be Williams v. Taylor, 529 U.S. 362, 411 (2000). While circuit law may provide persuasive authority in 18 determining whether the state court made an unreasonable application 19 of Supreme Court precedent, the only definitive source of clearly 20 established federal law under 28 U.S.C. § 2254(d) rests in the 21 holdings (as opposed to the dicta) of the Supreme Court as of the 22 time of the state court decision. 23 v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). 24 Williams, 529 U.S. at 412; Clark The decision to which 28 U.S.C. § 2254 applies is the “last 25 reasoned decision” of the state court. 26 U.S. 797, 803–04 (1991); Norris v. Morgan, 622 F.3d 1276, 1285 (9th 27 28 3 See Ylst v. Nunnemaker, 501 1 Cir. 2010); Barker v. Fleming, 423 F.3d 1085, 1091–92 (9th Cir. 2 2005). 3 the merits” for purposes of 28 U.S.C. § 2254(d) if the court 4 resolved the rights of the petitioner based on the substance of the 5 claim, rather than on the basis of a procedural or other rule that 6 precluded the state court from reviewing the merits. 7 F.3d at 1092. The last reasoned decision constitutes an “adjudication on 8 Barker, 423 DISCUSSION 9 Petitioner raises three claims. Two allege that the trial 10 court abused its discretion in interpreting and applying California 11 sentencing laws; the third alleges that trial counsel was 12 ineffective in advising Petitioner to admit two prior strike 13 convictions. 14 I. 15 Petitioner’s Claims of Sentencing Error Petitioner claims that the trial court “abused its discretion” 16 in interpreting and applying California sentencing laws and in 17 failing to dismiss an alleged “strike” pursuant to People v. 18 Superior Court (Romero), 13 Cal. 4th 497, 508 (1996). 19 the California Supreme Court interpreted the language of California 20 Penal Code § 1385(a) and held that a trial court may, on its own 21 motion, strike prior felony conviction allegations in a case brought 22 under the Three Strikes Law. 23 In Romero, Under AEDPA, this Court may entertain a petition for habeas 24 relief on behalf of a California state inmate “only on the ground 25 that he is in custody in violation of the Constitution or laws or 26 treaties of the United States.” 28 U.S.C. § 2254(a). 27 28 4 Here, 1 Petitioner does not refer to any federal law or constitutional 2 provision in his Petition with respect to either sentencing claim. 3 Rather, he alleges error under state law only. 4 relief is unavailable for violations of state law or for alleged 5 error in the interpretation or application of state law. 6 Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). 7 established that federal courts must defer to a state court’s 8 interpretation of state sentencing laws. 9 F.2d 86, 88 (9th Cir. 1993). Federal habeas See Further, it is well- See Bueno v. Hallahan, 988 “Absent a showing of fundamental 10 unfairness, a state court’s misapplication of its own sentencing 11 laws does not justify federal habeas relief.” 12 41 F.3d 461, 469 (9th Cir. 1994). 13 Christian v. Rhode, Because Petitioner’s claims that the trial court abused its 14 discretion with respect to Petitioner’s sentence arise under state 15 law, they are not cognizable on federal habeas review. 16 502 U.S. at 67–68. 17 habeas relief on these claims. 18 II. See Estelle, Therefore, Petitioner is not entitled to federal Petitioner’s Ineffective Assistance of Counsel Claim 19 Petitioner claims trial counsel was ineffective for advising 20 him to admit two prior strike convictions alleged under the Three 21 Strikes Law because “there was a credible defense that neither of 22 these prior offenses was a serious or violent felony and there was 23 no conviction for a serious or violent felony.” 24 Doc. No. 1 at 8. After a careful review of the record, and as set forth below, 25 the Court finds that the state appellate court’s conclusion that 26 trial counsel did not render ineffective assistance in advising 27 28 5 1 Petitioner to admit the prior convictions was not contrary to, nor 2 did it involve an unreasonable application of, clearly established 3 federal law, and it was not based on an unreasonable determination 4 of the facts. 5 Strickland v. Washington, 466 U.S. 668 (1984). 6 entitled to federal habeas relief on this claim. 7 A. See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 411; Petitioner is not Legal Standard Governing Ineffective Assistance of Counsel Claims 8 The Sixth Amendment guarantees the right to effective 9 assistance of counsel. Strickland, 466 U.S. at 686. To prevail on 10 a claim of ineffective assistance of counsel, Petitioner must show 11 that counsel’s performance was deficient and that the deficient 12 performance prejudiced Petitioner’s defense. Id. at 688. To prove 13 deficient performance, Petitioner must demonstrate that counsel’s 14 15 16 17 18 19 20 21 22 23 24 representation fell below an objective standard of reasonableness under prevailing professional norms. Id. To prove counsel’s performance was prejudicial, Petitioner must demonstrate a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. The two-part test set forth in Strickland applies to ineffective assistance of counsel challenges involving guilty pleas.1 Hill v. Lockhart, 474 U.S. 52, 58 (1985). When a guilty 25 1 27 Here, Petitioner did not enter a guilty plea to the prior convictions; rather, he admitted their truth. Admitting the truth of prior convictions is the functional equivalent of pleading guilty to a criminal offense. 28 6 26 1 plea is involved, the prejudice prong of Strickland “focuses on 2 whether counsel’s constitutionally ineffective performance affected 3 the outcome of the plea process. 4 satisfy the ‘prejudice’ requirement, the defendant must show that 5 there is a reasonable probability that, but for counsel’s errors, he 6 would not have pleaded guilty and would have insisted on going to 7 trial.” 8 B. 9 In other words, in order to Id. Analysis of Petitioner’s Claim In rejecting Petitioner’s ineffective assistance of counsel 10 claim raised on direct appeal, the state appellate court observed 11 that 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a reasonably competent attorney would be informed of the types of prior convictions that qualify as strikes and advise his or her client of the applicable law in any discussion of a plea or admission. . . . [Petitioner] points to no place in the record, however, which indicates that trial counsel was not reasonably informed of the facts before advising him to admit the priors. . . . A recommendation to admit the priors does not necessarily mean that counsel was unaware that the convictions were not serious felonies absent evidence in the record of conviction of use of a firearm; counsel may have advised [Petitioner] to admit the priors because she believed the evidence of [Petitioner’s] firearm use was compelling or that challenge would be futile. Because the priors were not litigated below, we cannot ascertain the strength of the People’s evidence, nor can we conclude that counsel’s decision was unreasonable. Doc. No. 9, Ex. 10 at 6 (citations and footnote omitted). Specifically addressing Petitioner’s claim that trial counsel’s advice to admit the priors deprived Petitioner of a “potentially meritorious defense,” the court stated: “The mere existence of an unasserted but ‘potentially meritorious defense’ does not establish ineffective assistance; defendant must show that counsel’s 7 1 representation fell below that of a reasonably competent attorney.” 2 Id. 3 4 5 6 7 8 The court then concluded: Because the appellate record is silent as to counsel’s investigation of this issue, and as to counsel’s advice to [Petitioner], we “cannot conclude that [Petitioner] has established that defense counsel conducted an inadequate investigation.” . . . We also cannot conclude that counsel misadvised [Petitioner] regarding the ability to defend the priors or that counsel’s strategic decision to advise [Petitioner] to admit the priors was without rational support. . . . We therefore reject [Petitioner’s] contention that he was denied effective assistance of counsel in connection with his admission of the serious felony priors. 9 Id. at 8 (citation omitted). 10 The state appellate court also rejected Petitioner’s 11 ineffective assistance of counsel raised by way of collateral 12 attack, stating: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [Petitioner’s] additional factual allegations and the supporting documents do not establish a prima facie case that counsel provided ineffective assistance in connection with his admission of the serious felony allegations. In regard to counsel’s investigation, appellate counsel states that he contacted trial counsel and she “had no particular recollection of the events surrounding those admissions.” Trial counsel told appellate counsel she was in the process of obtaining the file, but has provided no further information. Although trial counsel did not provide an explanation for the failure to contest the priors, her response is not an acknowledgement [sic] that she has no explanation for her actions. She simply had not reviewed the file. Moreover, the facts that are before us provide ample justification for her recommendation to admit the priors. The supporting declarations show that the priors could be proven from the record of conviction. Appellate counsel states: “My review of the file in case number 177075 also showed that in a reporter’s transcript from January 30, 1995, petitioner pleaded no contest to the first two charges in the information, and at the same time he also admitted the personal use of a firearm allegations.” ([emphasis] added.) [Petitioner] confirms that at the change of plea 8 1 2 3 4 5 hearing for the felony convictions, he admitted, as part of the plea agreement, “that in committing these offenses [he] personally used a firearm.” A reporter’s transcript from a change of plea hearing is part of the record of conviction and may be used to show a prior serious felony. . . . The fact that the firearm enhancement (§ 12022.5, subd. (b)) was thereafter dismissed on the motion of the People does not preclude the prosecution from relying on [Petitioner’s] admission at the change of plea hearing. . . . 6 7 8 9 10 11 12 13 In addition, [Petitioner] does not allege that he was told he had no defense to the priors or that he was otherwise misadvised. He states, instead: “I admitted those prior offenses because my trial attorney, Susannah Shamos, said it would be in my best interest to do so.” That counsel advised him it was in his “best interest” to admit the priors does not mean that she was unaware of a possible defense. In light of [Petitioner’s] admission at the change of plea hearing, it may have been in his “best interest” not to contest the priors. Challenging the priors would have taken additional time and resources with little likelihood of a positive result. Indeed, it was likely to serve only to show [Petitioner’s] lack of responsibility for his past actions, which would adversely impact a later Romero motion to strike the priors. 14 15 16 17 18 19 20 21 22 23 24 25 [Petitioner] also fails to state that had he known of a possible defense at the time of the admission, he would not have admitted the priors. This leaves the record before us bereft of evidence of prejudice resulting from counsel’s alleged errors. (See People v. Ledesma (1987) 43 Cal.3d 171, 217 [“In addition to showing that counsel’s performance was deficient, a criminal defendant must also establish prejudice before he can obtain relief on an ineffective-assistance claim.”].) [Petitioner’s] assurance that he would testify that he did not use a firearm in the commission of the prior felonies, if given the opportunity, does not fill that void, nor does it establish that counsel’s advice to admit the priors was based on inadequate investigation or was otherwise incompetent. We find [Petitioner] has failed to establish a prima facie case which, if true, would entitle him to relief. Doc. No. 9, Ex. 10 at 9–10 (citations and footnote omitted). 26 27 28 9 1 C. Analysis of Petitioner’s Ineffective Assistance of Counsel Claim Under AEDPA 2 Here, Petitioner claims trial counsel was ineffective for 3 failing to investigate and ascertain that his two 1995 prior 4 convictions did not qualify as “serious or violent felonies” as 5 those terms are defined by law and for advising him to admit them 6 prior to being sentenced for the present offenses. Specifically, 7 Petitioner claims that although “at the time these prior offenses 8 were adjudicated in 1995” he admitted that he “committed each 9 offense while personally using a firearm,” the abstract of judgment 10 fails to show firearm use through either a conviction or sentence 11 enhancement allegation and therefore the priors do not constitute 12 “serious or violent felonies.” Petitioner further claims that he 13 had a “meritorious defense” because, if called to testify regarding 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 personal use of a firearm, he would have denied it. Doc. No. 1 at 8, 9, 17, 18 & 34. Petitioner’s Sixth Amendment claim fails. At the time Petitioner was sentenced in 2005, California Penal Code section 1192.7 defined “serious felony” for purposes of sentencing under the Three Strikes law as one that included “any felony in which the defendant personally use[d] a firearm.” Cal. Penal Code § 1192.7, subd. (c)(8) (effective September 17, 2002 to September 19, 2006). Contrary to Petitioner’s assertion, the statute says nothing about the necessity of either a conviction of a crime of which firearm use is an element or a true finding on an attached firearm enhancement allegation. It necessarily follows, then, that Petitioner’s repeated emphasis on the fact that the abstracts of judgment failed 10 1 to reflect firearm use, see Doc. No. 1 at 11, n.1,; id. at 15, 17 & 2 34, is irrelevant. 3 As the state appellate court noted, the prior convictions could 4 be proven from the entire record of conviction, which includes a 5 reporter’s transcript from a change of plea hearing. 6 Ex. 10 at 9 (citing People v. Sohal, 53 Cal. App. 4th 911, 915-916 7 (1997) (in determining whether prior was a serious felony, it was 8 proper for court to consider transcript of plea in which defendant 9 admitted to factual basis for plea, including that he personally Doc. No. 9, 10 used a deadly weapon in the assault) and People v. Abarca, 233 Cal. 11 App. 3d 1347, 1350-1352 (1991) (defendant’s affirmation during 12 change of plea hearing that he was pleading guilty to burglary of a 13 residence reliably established that burglary conviction involved a 14 residence).) 15 references the record of conviction as including Petitioner’s 16 January 30, 1995 change of plea hearing from Santa Clara County case 17 number 1770775, wherein he admitted to personal use of a firearm 18 during the commission of the offenses. 19 Further, the state appellate court correctly noted that even though 20 Petitioner’s firearm enhancements ultimately were dismissed on the 21 motion of the People does not preclude the prosecution from relying 22 on his admissions to firearm use at the change of plea hearing. 23 Doc. #9, Ex. 10 at 9–10 (citing People v. Blackburn 72 Cal. App. 4th 24 1520, 1527-28, 1530–31 (1999) (even if the “personal use” allegation 25 is stricken in the underlying conviction, the trier of fact may use 26 the record of conviction to find that a firearm was used).) Here, evidence Petitioner attaches to his Petition 27 28 11 See Doc. No. 1 at 36–37. 1 And, the instant Petition includes Petitioner’s repeated 2 concessions that he used a firearm during the prior offenses and 3 that doing so made the prior offenses qualify as strikes: 4 5 6 7 8 Petitioner admitted the prior allegations. More specifically, he admitted that he committed each prior offense as that offense was described in the information -– that each involved the personal use of a firearm and that each was a serious or violent felony . . . . Further, at the time these prior offenses were originally adjudicated in 1995, Petitioner pleaded no contest to the two substantive charges and he admitted further that he committed each offense while personally using a firearm. 9 Doc. No. 1 at 9; see also id. at 10 (“the definition of ‘serious 10 felony’ . . . includes ‘any felony in which the defendant personally 11 uses a firearm’ . . . and Petitioner admitted –- in 1995 when he 12 entered the initial pleas and in 2005 when he admitted the prior 13 offenses –- to having used a firearm with each offense”). 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Under these circumstances, where the record of conviction establishes Petitioner’s firearm use, and where Petitioner concedes that he used a firearm when he committed the prior offenses and that therefore they qualified as “serious felon[ies]” under the law, this Court cannot say that the state appellate court’s determination that trial counsel’s advice to Petitioner to admit the prior convictions did not fall below an objective standard of reasonableness was either contrary to, or involved an unreasonable application of, clearly established federal law, or that it was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 411; Strickland, 466 U.S. at 688. Nor can this Court say that the state appellate court’s determination that Petitioner suffered no prejudice as a result of 12 1 trial counsel’s alleged errors was unreasonable under AEDPA. 2 U.S.C. § 2254(d); Williams, 529 U.S. at 411; Strickland, 466 U.S. at 3 694. 4 he would not have admitted the prior convictions. 5 he had a “potentially meritorious defense” to the allegations that 6 he personally used a firearm. 7 See 28 Here, Petitioner does not claim that but for counsel’s advice, Rather, he claims See Doc. No. 1 at 8–20. As the state appellate court noted regarding Petitioner’s 8 “potentially meritorious defense”: 9 he would testify that he did not use a firearm in the commission of “[Petitioner’s] assurance that 10 the prior felonies, if given the opportunity, does not [establish 11 prejudice from trial counsel’s alleged errors], nor does it 12 establish that counsel’s advice to admit the priors was based on 13 inadequate investigation or was otherwise incompetent.” 14 Ex. 10 at 9–10. 15 Petitioner’s repeated admissions throughout the instant Petition 16 that he did, in fact, use a firearm during commission of the prior 17 offenses, the fact that Petitioner now denies personal use of a 18 firearm does not amount to a “potentially meritorious defense.” 19 Doc No. 9, Indeed, given the record of conviction and After a careful review of the record, the Court finds that the 20 state appellate court’s conclusion that trial counsel did not render 21 ineffective assistance was not contrary to, nor did it involve an 22 unreasonable application of, clearly established federal law, and it 23 was not based on an unreasonable determination of the facts. 24 U.S.C. § 2254(d); Williams, 529 U.S. at 411; Strickland, 466 U.S. at 25 686. 26 on this claim. Petitioner is not entitled to a federal habeas corpus relief 27 28 See 28 13 1 CONCLUSION 2 For the foregoing reasons, the Petition for a Writ of Habeas 3 Corpus is DENIED. 4 DENIED. 5 Petitioner has not made “a substantial showing of the denial of a 6 constitutional right.” 7 demonstrated that “reasonable jurists would find the district 8 court’s assessment of the constitutional claims debatable or wrong.” 9 Slack v. McDaniel, 529 U.S. 473, 484 (2000). Further, a Certificate of Appealability is See Rule 11(a) of the Rules Governing Section 2254 Cases. 28 U.S.C. § 2253(c)(2). Nor has Petitioner Petitioner may not 10 appeal this Court’s denial of a Certificate of Appealability but may 11 seek a certificate from the Court of Appeals under Rule 22 of the 12 Federal Rules of Appellate Procedure. 13 Governing Section 2254 Cases. 14 See Rule 11(a) of the Rules The Clerk of Court shall terminate all pending motions as 15 moot, enter Judgment in accordance with this Order and close the 16 file. 17 IT IS SO ORDERED. 18 19 20 Dated: 3/28/2011 CLAUDIA WILKEN United States District Judge 21 22 23 24 25 26 27 28 14 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 ANTHONY A. RANGEL, 4 Case Number: CV08-01415 CW Plaintiff, 5 CERTIFICATE OF SERVICE v. 6 L.E. SCRIBNER et al, 7 Defendant. 8 9 10 11 12 / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on March 28, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 17 Anthony Ancadio Rangel V76618 C-13-130 Mule Creek State Prison P.O. Box 409060 Ione, CA 95640 18 Dated: March 28, 2011 15 16 19 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 20 21 22 23 24 25 26 27 28 15
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