Lozano v. Curry, No. 4:2009cv01461 - Document 24 (N.D. Cal. 2010)

Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 11/24/2010. (ndr, COURT STAFF) (Filed on 11/24/2010)
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Lozano v. Curry Doc. 24 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 JOSE A. LOZANO, 6 No. 09-01461 CW Petitioner, 7 v. 8 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY BEN CURRY, 9 Respondent. / United States District Court For the Northern District of California 10 11 12 On September 3, 2009, Petitioner Jose Lozano, a state prisoner 13 currently incarcerated at California State Prison, Solano, in 14 Vacaville, California, filed this amended petition for a writ of 15 habeas corpus pursuant to 28 U.S.C. § 2254, challenging the 16 validity of his incarceration. 17 Petitioner filed a traverse. 18 submitted by the parties, the Court DENIES the petition for writ of 19 habeas corpus and DENIES a certificate of appealability. 20 21 Respondent filed an answer. Having considered all the papers BACKGROUND In 2006, Petitioner was charged with the following five counts 22 for causing a multi-vehicle car accident while driving under the 23 influence of alcohol and phencylidine (PCP): (1) violation of 24 California Vehicle Code §§ 23153(a) and 23558, driving under the 25 influence of alcohol and drugs proximately causing injury to more 26 than one person; (2) violation of Vehicle Code §§ 23152 and 27 23550.5(a), driving under the influence of a drug with a felony 28 Dockets.Justia.com 1 prior within the last ten years;1 (3) violation of Vehicle Code 2 §§ 20001(a) and (b)(1), causing a hit and run accident resulting in 3 injury or death; (4) violation of Vehicle Code § 20002(a)(1)-(2), 4 causing a vehicle accident involving property damage; and 5 (5) violation of California Health and Safety Code § 11550(a), 6 being under the influence of a controlled substance. 7 and five were misdemeanors. 8 9 Counts four Resp.’s Ex. 6 at 1-2. On March 12, 2007, Petitioner plead no contest to all five counts. Resp.’s Ex. 2 at 19. He admitted that a prior conviction United States District Court For the Northern District of California 10 for driving under the influence and inflicting bodily injury, for 11 which he was convicted in 1991, was both a prior strike and prior 12 serious felony conviction. 13 sentencing court informed Petitioner that the maximum sentence he 14 faced under his plea agreement was eighteen years and four months; 15 the maximum term he faced if he did not accept the agreement was 16 sixty-years to life. 17 to waive his right to bring a Romero motion “in exchange for this 18 offer.” 19 sentenced to a term of sixteen years and four months on counts one, 20 two and three, which included a five year enhancement for the 1991 21 prior serious felony conviction. 22 Additionally, the court sentenced Petitioner to ninety days on 23 counts four and five to run concurrent, which was deemed satisfied 24 at the time of sentencing. Id.; Resp.’s Ex. 1, at 304-06. Resp.’s Ex. 2, at 10-11. Resp.’s Ex. 2, at 16. The Petitioner agreed On May 10, 2007, Petitioner was Resp.’s Ex. 6, at 2. Id. at 3. 25 26 27 28 1 The felony prior was Petitioner’s conviction in 1997 for driving under the influence. Resp.’s Ex. 2 at 18. This prior conviction was not charged as a strike. Id. at 19. 2 1 On October, 2007, Petitioner timely appealed to the California 2 court of appeal, alleging that the trial court committed error when 3 it imposed a $117.50 penalty assessment in addition to a $50 4 criminal laboratory analysis fee. 5 2008, the court of appeal filed an unpublished opinion rejecting 6 Petitioner’s claim and affirming the judgment. 7 Resp.’s Ex. 3 at 10. On May 16, Resp.’s Ex. 6. Subsequently, Petitioner timely filed a petition for a writ of 8 habeas corpus in California superior court, alleging that his 9 sentence was unconstitutional and the result of ineffective United States District Court For the Northern District of California 10 assistance of counsel, prosecutorial misconduct and judicial bias. 11 Resp.’s Ex. 7. 12 court denied the petition, finding that, under the circumstances, 13 “Petitioner received a very favorable plea bargain” and his claims 14 were baseless. 15 appeal summarily denied the same petition. 16 On September 4, 2008, in an one-page order, the Id. On September 23, 2008, the California court of Resp.’s Ex. 8. On April 3, 2009, Petitioner filed a petition for a writ of 17 habeas corpus in federal court, alleging ineffective assistance of 18 counsel. 19 habeas proceedings pending Petitioner’s exhaustion of his state 20 judicial remedies. 21 Court denied Petitioner’s petition. 22 3, 2009, Petitioner filed a motion in federal court for leave to 23 lift the stay on his habeas proceedings and simultaneously filed an 24 amended petition for writ of habeas corpus, alleging the same claim 25 of ineffective assistance of counsel as before. 26 2010, the Court issued an order lifting the stay. On June 23, 2009, this Court issued an order staying On August 26, 2009, the California Supreme 27 28 3 Resp.’s Ex. 10. On September On February 12, 1 2 3 DISCUSSION I. Standard of Review Under the Antiterrorism and Effective Death Penalty Act 4 (AEDPA), a federal writ of habeas corpus may not be granted with 5 respect to any claim that was adjudicated on the merits in state 6 court unless the state court's adjudication of the claims: 7 "(1) resulted in a decision that was contrary to, or involved an 8 unreasonable application of, clearly established Federal law, as 9 determined by the Supreme Court of the United States; or United States District Court For the Northern District of California 10 (2) resulted in a decision that was based on an unreasonable 11 determination of the facts in light of the evidence presented in 12 the state court proceeding.” 13 28 U.S.C. § 2254(d). "Under the 'contrary to' clause, a federal habeas court may 14 grant the writ if the state court arrives at a conclusion opposite 15 to that reached by [the Supreme] Court on a question of law or if 16 the state court decides a case differently than [the Supreme] Court 17 has on a set of materially indistinguishable facts." 18 Taylor, 529 U.S. 362, 412-13 (2000). 19 application' clause, a federal habeas court may grant the writ if 20 the state court identifies the correct governing legal principle 21 from the [Supreme] Court's decision but unreasonably applies that 22 principle to the facts of the prisoner's case." 23 only definitive source of clearly established federal law under 28 24 U.S.C. § 2254(d) is in the holdings of the Supreme Court as of the 25 time of the relevant state court decision. 26 27 28 William v. "Under the 'unreasonable Id. at 413. The Id. at 412. When a state court reaches a decision on the merits, but provides no reasoning to support its conclusion, the habeas court 4 1 must conduct an independent review of the record to determine 2 whether the state court clearly erred in its application of Supreme 3 Court law. 4 This review is not de novo; although the court independently 5 reviews the record, it still defers to the state court’s ultimate 6 conclusion. 7 Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). In determining whether the state court's decision is contrary 8 to, or involved an unreasonable application of, clearly established 9 federal law, a federal court looks to the decision of the highest United States District Court For the Northern District of California 10 state court to address the merits of a petitioner's claim in a 11 reasoned decision. 12 Cir. 2000). 13 addressing Petitioner’s claim is the Santa Clara County superior 14 court. 15 analysis other than to note that Petitioner’s sentence pursuant to 16 the plea agreement was very favorable, the Court conducts an 17 independent review of the record. 18 II. Lajoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Here, the highest state court to issue an opinion Because the state court opinion offered very little Ineffective Assistance of Counsel 19 Petitioner’s claim that trial counsel was ineffective rests 20 primarily on his argument that his 1991 conviction under Vehicle 21 Code § 23153(b), for driving under the influence and causing bodily 22 injury to another, was not a serious felony. 23 304-306. 24 to admit that his prior conviction was a serious felony; 25 (2) improperly stipulated that there was a factual basis for 26 Petitioner’s admission to the truth of the prior strike, when there 27 was insufficient proof; and (3) failed properly to investigate 28 Resp.’s Ex. 1, at Petitioner claims his counsel (1) erroneously advised him 5 1 Petitioner’s prior conviction before advising him to admit to it. 2 A claim of ineffective assistance of counsel is cognizable as 3 a claim of the denial of the Sixth Amendment right to counsel, 4 which guarantees not only assistance, but effective assistance of 5 counsel. 6 benchmark for judging any claim of ineffectiveness must be whether 7 counsel's conduct so undermined the proper functioning of the 8 adversarial process that the trial cannot be relied upon as having 9 produced a just result. United States District Court For the Northern District of California 10 Strickland v. Washington, 466 U.S. 668, 686 (1984). to guilty pleas. 11 Id. The Strickland also applies to challenges Hill v. Lockhart, 474 U.S. 52, 58 (1985). To prevail under Strickland, a petitioner must pass a two- 12 prong test. 13 performance was deficient in a way that falls below an objectively 14 reasonable standard. 15 petitioner must show that the deficiency prejudiced him. 16 687. 17 made errors so serious that counsel was not functioning as the 18 "counsel" guaranteed by the Sixth Amendment. 19 scrutiny of counsel's performance must be highly deferential, and a 20 court must indulge a strong presumption that counsel's conduct 21 falls within the wide range of reasonable professional assistance. 22 Id. at 689; Wildman v. Johnson, 261 F.3d 832, 838 (9th Cir. 2001). 23 In the context of guilty pleas, Strickland’s “prejudice” First, the petitioner must show that counsel's Strickland, 466 U.S. at 687-88. Second, the Id. at The first prong of Strickland requires a showing that counsel Id. Judicial 24 requirement focuses on whether counsel’s ineffective assistance 25 affected the outcome of the plea process; that is, the petitioner 26 must show “a reasonable probability that, but for counsel’s errors, 27 he would not have pleaded guilty and would have insisted on going 28 6 1 to trial.” 2 probability sufficient to undermine confidence in the outcome. 3 Strickland, 466 U.S. at 694. 4 considering an ineffective assistance of counsel claim to address 5 the prejudice prong of the Strickland test if the petitioner cannot 6 establish incompetence under the first prong. 7 Calderon, 133 F.3d 732, 737 (9th Cir. 1998). Hill, 474 U.S. at 59. A reasonable probability is a It is unnecessary for a federal court Siripongs v. 8 Under California law, any person convicted of a serious felony 9 who has also previously been convicted of a serious felony receives United States District Court For the Northern District of California 10 a five-year enhancement for the prior conviction. 11 § 667. 12 “great bodily injury” on another person, other than an accomplice, 13 is considered a serious felony. 14 Cal. Pen. Code Any felony in which the defendant personally inflicts Cal. Pen. Code § 1192.7(c)(8). Plaintiff does not dispute that his 2006 offense involved 15 infliction of great bodily injury. 16 that there was insufficient evidence to support a finding that his 17 1991 conviction for driving under the influence and causing bodily 18 injury was a serious felony. 19 available to the prosecution was the probation officer’s report 20 stating that one of the victims, Frankie Martinez, suffered 21 fractured ribs, a broken clavicle and closed head injuries. 22 argues that this report was insufficient to prove great bodily 23 injury because it was inadmissible hearsay. 24 argument, Petitioner cites People v. Trujillo, 40 Cal. 4th 165 25 (2006), and People v. Thoma, 150 Cal. App. 4th 1096 (2007). 26 27 28 Trujillo is inapposite. However, Petitioner contends He maintains that the only evidence He In support of his There, the prosecution argued that Trujillo’s prior conviction for inflicting corporal injury was a 7 1 serious felony based on Trujillo’s statement to the probation 2 officer, included in the probation report, that he had used a 3 knife. 4 held that this could not be used as a strike because, in the plea 5 bargain for the prior offense, the prosecution agreed to dismiss 6 the allegation that Trujillo had used a deadly or dangerous weapon. 7 Id. at 175. 8 probation officer that he had used a knife could not be used to 9 prove that the prior conviction involved use of a deadly or United States District Court For the Northern District of California 10 11 Trujillo, 40 Cal. 4th at 171. The California Supreme Court Thus, Trujillo’s post-conviction admission to his dangerous weapon. Id. at 179. The facts here are not analogous. Thoma does stand for the proposition that a statement in a 12 probation report, by itself, may be insufficient to prove great 13 bodily injury. 14 a prior conviction for driving under the influence causing bodily 15 injury, Vehicle Code § 23153(a), constituted a strike, arguing that 16 the record of the conviction did not show that he inflicted great 17 bodily injury. 18 strike. 19 injury included a pre-conviction probation report in which the 20 victim recounted her injuries to the probation officer, and a 21 police officer’s testimony at the preliminary hearing describing 22 his conversation with the nurse who treated the victim. 23 1100-01. 24 testimony indicated that the victim had suffered fractured arms and 25 legs, as well as a fractured clavicle, the court of appeal held 26 that only transcripts of the preliminary hearing, the defendant’s 27 guilty plea and the sentencing hearing could be considered in 28 There, the defendant contested the allegation that Id. at 1098. Id. at 1099. The defendant did not admit to the The evidence used to prove great bodily Id. at Although both the probation report and the officer’s 8 1 determining the facts of a prior conviction allegation. 2 court further held that the officer’s testimony in the preliminary 3 hearing was inadmissible because it involved multiple hearsay and 4 that, as a result, the evidence was insufficient to prove the 5 bodily injury in the prior strike. 6 remanded the matter to trial court for re-sentencing or, at the 7 prosecutor’s election, retrial of the strike allegation. 8 1104-05. 9 Id. at 1103. Id. The The court Id. at Petitioner is correct that the probation report from the 1991 United States District Court For the Northern District of California 10 conviction, by itself, would not have been sufficient to prove 11 great bodily injury. 12 all three of the victims testified at a preliminary hearing. 13 Resp.’s Ex. 1, at 308. 14 testimony by Martinez regarding her injuries would be admissible to 15 prove the great bodily injury involved in Petitioner’s prior strike 16 and would not be hearsay. 17 his trial counsel had access to the 1991 probation report which 18 described Martinez’ devastating injuries in detail and stated that 19 she, as well as the other victims, had testified at the preliminary 20 hearing. 21 what she said, it was not unreasonable for trial counsel to 22 conclude, based on the probation report, that the prosecution would 23 be able to present sufficient admissible evidence to prove great 24 bodily injury in the form of the transcript of her testimony. 25 There is no evidence suggesting that trial counsel failed properly 26 to investigate Petitioner’s prior conviction or that counsel was 27 mistaken in stipulating that there was a factual basis for it. 28 However, the probation report indicates that Petitioner does not dispute this. The At the time Petitioner entered his plea, Although the probation report does not indicate exactly 9 1 Petitioner provides no reason to believe that, if he had not 2 admitted to the prior serious felony conviction, the prosecution 3 could not have obtained a transcript of Martinez’ testimony at the 4 preliminary hearing. 5 reasonable to assume that she would have described it sufficiently 6 to amount to great bodily injury. 7 any of the victims were Petitioner’s accomplices. 8 was reasonable for counsel to advise Petitioner to admit to the 9 enhancement. United States District Court For the Northern District of California 10 11 Given the gravity of Martinez’ injury, it is Nor is there any indication that Therefore, it Petitioner’s counsel’s performance was not deficient and does not fall below an objectively reasonable standard. 12 Nor does Petitioner show that, “but for” trial counsel’s 13 ineffectiveness, he would not have plead guilty and would have gone 14 to trial. 15 been reduced by five years due to the enhancement for the prior 16 strike. 17 his ineffective assistance of counsel claim, Petitioner was facing 18 a maximum sentence of sixty-six years to life had he gone to trial, 19 and the court rejected Petitioner’s ineffective assistance of 20 counsel claim, in part, because Petitioner received a “very 21 favorable plea bargain.” 22 disputes the sixty-six year maximum sentence, the court informed 23 him of the maximum sentence he faced when he entered his plea. 24 Resp.’s Ex. 2 at 11. 25 the prior strike, he was sentenced to sixteen years and four 26 months, fifty years less than the maximum sentence he could have 27 received. 28 Petitioner merely argues that his sentence should have As the Santa Clara superior court noted when evaluating Resp.’s Ex. 7 at 1. Although Petitioner Because Petitioner plead guilty and admitted Thus, although Petitioner argues that, had he contested 10 1 his prior serious felony conviction, his sentence would have been 2 eleven years and four months, he overlooks that, had he not 3 admitted to the prior serious felony, he would not have received 4 the benefit he did. 5 prejudice prong of the Strickland test. 6 7 Therefore, Petitioner fails to satisfy the Accordingly, Petitioner’s claim for ineffective assistance of counsel fails. 8 CONCLUSION 9 For the foregoing reasons, the petition for writ of habeas United States District Court For the Northern District of California 10 corpus is DENIED. 11 appealability. 12 28 U.S.C. foll. § 2254 (requiring district court to rule on 13 certificate of appealability in same order that denies petition). 14 A certificate of appealability should be granted "only if the 15 applicant has made a substantial showing of the denial of a 16 constitutional right." 17 that Petitioner has not made a sufficient showing of the denial of 18 a constitutional right to justify a certificate of appealability. 19 The Clerk of the Court shall enter judgment, terminate all pending 20 motions, and close the file. 21 IT IS SO ORDERED. The Court must rule on a certificate of See Rule 11(a) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2253(c)(2). The Court finds 22 23 Dated: 11/24/2010 CLAUDIA WILKEN United States District Judge 24 25 26 27 28 11 1 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 JOSE A. LOZANO, Case Number: CV09-01461 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 BEN CURRY et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 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 November 24, 2010, 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 15 16 17 18 Jose A. Lozano F-75812 California State Prison - Solano P.O. Box 4000 Vacaville, CA 95696-4000 Dated: November 24, 2010 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 19 20 21 22 23 24 25 26 27 28 12