Rodriguez v. Woodford, No. 5:2007cv02235 - Document 27 (N.D. Cal. 2010)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY. Signed by Judge Jeremy Fogel on 3/24/10. (dlm, COURT STAFF) (Filed on 4/7/2010)
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Rodriguez v. Woodford Doc. 27 1 2 3 4 5 6 7 8 NOT FOR CITATION 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 RUSSELL GENE RODRIGUEZ, 12 Petitioner, 13 14 v. 15 JEANNE WOODFORD, 16 Respondent. 17 ) ) ) ) ) ) ) ) ) ) ) ) No. C 07-02235 JF (PR) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY 18 Petitioner, a California prisoner proceeding pro se, seeks a writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. The Court ordered Respondent to show cause why the 20 petition should not be granted. Respondent filed an answer and a supporting 21 memorandum of points and authorities addressing the merits of the petition, and 22 Petitioner filed a traverse. Having reviewed the papers and the underlying record, the 23 Court concludes that Petitioner is not entitled to habeas corpus relief and will deny the 24 petition. 25 26 27 28 Order Denying Petition for Writ of Habeas Corpus and Denying Request for Certificate of Appealability P:\PRO-SE\SJ.JF\HC.07\Rodriguez2235_hcruling.wpd Dockets.Justia.com PROCEDURAL BACKGROUND 1 On May 3, 2005, Petitioner pleaded guilty in the Santa Clara Superior Court to one 2 3 count of petty theft with a prior conviction and one count of receiving stolen property. 4 Petitioner also admitted four “strike” prior convictions and two prior prison terms. On 5 September 15, 2005, the trial court sentenced Petitioner to twenty-five years to life in 6 prison. 7 Petitioner appealed the judgment. On November 20, 2006, the California Court of 8 Appeal affirmed. On February 7, 2007, the California Supreme Court denied review. 9 Thereafter, Petitioner filed unsuccessful state habeas petitions in the Santa Clara Superior 10 Court, California Court of Appeal, and California Supreme Court. 11 Petitioner filed the instant federal action on April 24, 2007. 12 FACTUAL BACKGROUND 13 14 Petitioner does not dispute the following facts, which are taken from the probation 15 officer’s pre-sentence report. (Resp. Ex. A, p. 117-119.) On the morning of August 3, 16 2004, Grant Morrow (“Morrow”) hired several plumbers, one of whom was the 17 Petitioner, to perform some plumbing work at this house. (Id. at 117.) After showing 18 them around the house, Morrow left. (Id. at 118.) That night, when Morrow returned to 19 the house, he received a phone call from First U.S. Bank regarding several suspicious 20 transactions on his cards. (Id.) Morrow reported that he did not make the transactions 21 nor did he give anyone permission to do so. (Id.) Morrow then looked for and 22 discovered that his First U.S. Bank credit card was missing. (Id.) 23 One of the unauthorized purchases was from Journey’s Shoe. (Id.) The police 24 contacted the owner of the plumbing company who provided Petitioner’s personal 25 information. (Id.) The police also communicated with an employee of Journey’s Shoe 26 who reported that two suspects entered the store, one of whom fit the description of 27 Petitioner. (Id.) 28 Order Denying Petition for Writ of Habeas Corpus and Denying Request for Certificate of Appealability P:\PRO-SE\SJ.JF\HC.07\Rodriguez2235_hcruling.wpd 2 The following day, police showed up at Petitioner’s residence and were told that 1 2 Petitioner was upstairs taking a shower. (Id.) While waiting for Petitioner, police found 3 the shoes that were purchased at Journey’s Shoe with Morrow’s credit card. (Id.) Then, 4 the officers learned that Petitioner had crawled through a second story window and fled 5 the residence. (Id.) 6 LEGAL CLAIMS 7 Petitioner asserts the following claims for relief: (1) counsel was ineffective in 8 9 giving Petitioner incorrect information regarding a guilty plea, which coerced Petitioner 10 to plead guilty; (2) counsel was ineffective in failing to investigate the case or present oral 11 argument at the hearing on his suppression motion; and (3) Petitioner’s sentence is cruel 12 and unusual. 13 DISCUSSION 14 15 16 A. Standard of Review This Court will entertain a petition for a writ of habeas corpus “in behalf of a 17 person in custody pursuant to the judgment of a State court only on the ground that he is 18 in custody in violation of the Constitution or laws or treaties of the United States.” 28 19 U.S.C. § 2254(a). The petition may not be granted with respect to any claim adjudicated 20 on the merits in state court unless the state court's adjudication of the claim: “(1) resulted 21 in a decision that was contrary to, or involved an unreasonable application of, clearly 22 established federal law, as determined by the Supreme Court of the United States; or (2) 23 resulted in a decision that was based on an unreasonable determination of the facts in 24 light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). 25 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the 26 state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a 27 question of law or if the state court decides a case differently than [the] Court has on a set 28 Order Denying Petition for Writ of Habeas Corpus and Denying Request for Certificate of Appealability P:\PRO-SE\SJ.JF\HC.07\Rodriguez2235_hcruling.wpd 3 1 of materially indistinguishable facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-413 2 (2000). “Under the ‘reasonable application clause,’ a federal habeas court may grant the 3 writ if the state court identifies the correct governing legal principle from [the] Court's 4 decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 5 413. “[A] federal habeas court may not issue the writ simply because that court 6 concludes in its independent judgment that the relevant state-court decision applied 7 clearly established federal law erroneously or incorrectly. Rather, that application must 8 also be unreasonable.” Id. at 411. 9 “[A] federal habeas court making the ‘unreasonable application’ inquiry should 10 ask whether the state court’s application of clearly established federal law was 11 ‘objectively unreasonable.’” Id. at 409. In examining whether the state court decision 12 was objectively unreasonable, the inquiry may require analysis of the state court’s method 13 as well as its result. Nunes v. Mueller, 350 F.3d 1045, 1054 (9th Cir. 2003). The 14 standard for “objectively unreasonable” is not “clear error” because “[t]hese two 15 standards . . . are not the same. The gloss of error fails to give proper deference to state 16 courts by conflating error (even clear error) with unreasonableness.” Lockyer v. 17 Andrade, 538 U.S. 63, 75 (2003). 18 A federal habeas court may grant the writ if it concludes that the state court’s 19 adjudication of the claim “results in a decision that was based on an unreasonable 20 determination of the facts in light of the evidence presented in the State court 21 proceeding.” 28 U.S.C. § 2254(d)(2). The court must presume correct any determination 22 of a factual issue made by a state court unless the petitioner rebuts the presumption of 23 correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 24 Where the highest state court to consider Petitioner’s claims issued a summary 25 opinion which does not explain the rationale of its decision, federal review under section 26 2254(d) is of the last state court opinion to reach the merits. See Ylst v. Nunnemaker, 27 28 Order Denying Petition for Writ of Habeas Corpus and Denying Request for Certificate of Appealability P:\PRO-SE\SJ.JF\HC.07\Rodriguez2235_hcruling.wpd 4 1 501 U.S. 797, 801-06 (1991); Bains v. Cambra, 204 F.3d 964, 970-71, 973-78 (9th Cir. 2 2000). 3 B. Analysis of Legal Claims 4 1. Ineffective Assistance of Counsel - Coerced Guilty Plea 5 Petitioner claims that he received ineffective assistance of counsel because counsel 6 “coerced” him into pleading guilty by advising him that he would not receive a life 7 sentence and by failing to explain the conditions of the plea. (Am. Pet. at 7.) Respondent 8 contends that this claim is not only unexhausted but also meritless. Even assuming that 9 claim is unexhausted, this Court may deny it on the merits. See 28 U.S.C. § 2254(b)(2). 10 A defendant seeking to challenge the validity of his guilty plea on the ground of 11 ineffective assistance of counsel must satisfy the two-part standard of Strickland v. 12 Washington, 466 U.S. 668, 687 (1984) by showing “that (1) his counsel’s representation 13 fell below an objective standard of reasonableness, and (2) there is a reasonable 14 probability that, but for [his] counsel’s errors, he would not have pleaded guilty and 15 would have insisted on going to trial.” Womack v. Del Papa, 497 F.3d 998, 1002 (9th Cir. 16 2007) (internal quotation omitted). 17 In order to establish ineffective assistance from counsel’s inaccurate prediction 18 regarding the likely sentence following a guilty plea, a petitioner must establish a “‘gross 19 mischaracterization of the likely outcome’ of a plea bargain ‘combined with . . . erroneous 20 advice on the probable effects of going to trial.’” Sophanthavong v. Palmateer, 378 F.3d 21 859, 868 (9th Cir. 2004). An attorney’s incorrect prediction as to the likely sentence 22 following a guilty plea does not amount to erroneous advice, or satisfy the deficiency 23 prong of Strickland, simply because the trial court ultimately imposed a longer sentence. 24 Womack, 497 F.3d at 1002-1003. Where a defendant was informed prior to entering his 25 guilty plea of the potential sentence he could receive, he cannot establish prejudice from 26 counsel’s incorrect prediction as to his sentence. Id. at 1003-04. 27 Here, Petitioner does not identify the specific conditions of the plea agreement 28 Order Denying Petition for Writ of Habeas Corpus and Denying Request for Certificate of Appealability P:\PRO-SE\SJ.JF\HC.07\Rodriguez2235_hcruling.wpd 5 1 about which counsel failed to advise him. Further, the transcript of the plea hearing 2 belies Petitioner’s assertions that he believed he would receive a maximum sentence of 3 thirty-two months. (Trav. at 6.) During the plea colloquy, the trial court recited the 4 parties’ understanding of the plea agreement, stating, “[Petitioner] would plead guilty or 5 no contest as to Counts 1 and 3 and receive no promises from the Court, no offers from 6 the District Attorney’s office and the maximum term in this case is twenty-seven years to 7 life in prison.” (Resp. Ex. B, p. 119.) Petitioner affirmed that the trial court’s recitation 8 was his understanding of the agreement and there had been no further promises made to 9 him. (Id.) Petitioner acknowledged in open court that he had not been threatened or 10 coerced to plead guilty, that he had discussed the matter with counsel, that the maximum 11 sentence he could receive was twenty-seven years to life, and that he was pleading 12 knowingly and voluntarily. (Id. at 120-21.) The trial court read the rights that Petitioner 13 was waiving by pleading guilty, and Petitioner affirmed that he understood those rights. 14 (Id. at 121-23.) 15 Nor does Petitioner allege that but for counsel’s alleged errors, there was a 16 reasonable probability that he would have gone to trial. At the outset, Petitioner was 17 charged with three felonies, four strike priors, and two prior prison terms. His sentencing 18 exposure was twenty-seven years to life to seventy-seven years to life, depending on 19 whether the sentences would run concurrently or consecutively. By agreeing to plead 20 guilty, Petitioner limited his exposure to the low-end of his sentencing range. There is no 21 evidence in the record supporting Petitioner’s assertion that counsel misadvised him or 22 that Petitioner was prejudiced by counsel’s advice. 23 Accordingly, the state court’s determination was not contrary to, or an 24 unreasonable application of, clearly established Supreme Court precedent, nor was it 25 based on an unreasonable determination of the facts in light of the evidence presented. 28 26 U.S.C. § 2254(d)(1), (2). 27 28 Order Denying Petition for Writ of Habeas Corpus and Denying Request for Certificate of Appealability P:\PRO-SE\SJ.JF\HC.07\Rodriguez2235_hcruling.wpd 6 1 2. Ineffective Assistance of Counsel - Suppression Motion 2 Petitioner claims that he received ineffective assistance of counsel because counsel 3 failed to investigate or present oral argument in support of his motion to suppress. (Am. 4 Pet. at 7-8; Trav. at 8-11.) Again, Respondent contends that this claim is not only 5 unexhausted but also meritless. Again, this Court will deny the claim on the merits. See 6 28 U.S.C. § 2254(b)(2). 7 It is well-established that a valid plea of guilty bars habeas review of most 8 non-jurisdictional claims alleging antecedent violations of constitutional rights. Tollett v. 9 Henderson, 411 U.S. 258, 267 (1973). As the Supreme Court explained in Tollett, 10 “[w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty 11 of the offense with which he is charged, he may not thereafter raise independent claims 12 relating to the deprivation of constitutional rights that occurred prior to the entry of the 13 guilty plea. He may only attack the voluntary and intelligent character of the guilty plea. . 14 . .” Id. at 267; see Moran v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994) (superseded on 15 other grounds by AEDPA as described in Van Tran v. Lindsey, 212 F.3d 1143 (9th Cir. 16 2000). In other words, a guilty plea forecloses consideration of pre-plea constitutional 17 deprivations in federal habeas corpus. Tollett, 411 U.S. at 267. Other than a claim that 18 the court lacked jurisdiction, which Petitioner has not alleged, the only claim that can be 19 raised in a habeas corpus petition after a guilty plea is a challenge to the constitutional 20 validity of the plea. Hill v. Lockhart, 474 U.S. 52, 56 (1985). 21 This authority does not preclude Petitioner from asserting a claim that his plea was 22 not voluntary and intelligent or that he received ineffective assistance of counsel in 23 connection with his plea. Tollett, 411 U.S. at 266. However, claims of ineffective 24 assistance that are based on acts or omissions of counsel that preceded and are not related 25 to the validity of the plea may not be considered on federal habeas review. Moran, 57 26 F.3d at 700. Petitioner’s claim with respect to counsel’s investigation and presentation of 27 his motion to suppress involves an alleged pre-plea constitutional violation. Accordingly, 28 Order Denying Petition for Writ of Habeas Corpus and Denying Request for Certificate of Appealability P:\PRO-SE\SJ.JF\HC.07\Rodriguez2235_hcruling.wpd 7 1 it is not cognizable on federal habeas review. 2 3. Cruel and Unusual Punishment 3 Petitioner argues that his twenty-five year to life sentence amounts to cruel and 4 unusual punishment in violation of the Eighth Amendment. A criminal sentence that is 5 not proportionate to the crime for which the defendant was convicted violates the Eighth 6 Amendment. Solem v. Helm, 463 U.S. 277, 303 (1983). But “outside the context of 7 capital punishment, successful challenges to the proportionality of particular sentences 8 will be exceedingly rare.” Id. at 289-90. For the purposes of review under 28 U.S.C. 9 § 2254(d)(1), it is clearly established that “[a] gross proportionality principle is applicable 10 11 to sentences for terms of years.” Lockyer v. Andrade, 538 U.S. 63, 72 (2003). In Harmelin v. Michigan, 501 U.S. 957 (1991), Chief Justice Rehnquist and Justice 12 Scalia joined in a two-justice plurality to conclude that Solem should be overruled and 13 that no proportionality review is required under the Eighth Amendment except with 14 respect to death sentences. Id. at 961-985. A three-justice concurrence concluded that 15 Solem should not be rejected and that the Eighth Amendment contains a narrow 16 proportionality principle that is not confined to death penalty cases, but that forbids only 17 extreme sentences which are grossly disproportionate to the crime. Id. at 997-1001. 18 Because no majority opinion emerged in Harmelin on the question of proportionality, the 19 view that the Eighth Amendment forbids only extreme sentences that are grossly 20 disproportionate to the crime is considered the holding of the Court. United States v. 21 Bland, 961 F.2d 123, 128-29 (9th Cir. 1992). 22 In judging the appropriateness of a sentence under a recidivist statute, a court may 23 take into account the government’s interest not only in punishing the offense of 24 conviction, but also its interest “‘in dealing in a harsher manner with those who [are] 25 repeat[] criminal[s].’” Bland, 961 F.2d at 129 (quoting Rummel v. Estelle, 445 U.S. 263, 26 276 (1980)). The Eighth Amendment does not preclude a state from making a judgment 27 that protecting the public safety requires incapacitating criminals who have already been 28 Order Denying Petition for Writ of Habeas Corpus and Denying Request for Certificate of Appealability P:\PRO-SE\SJ.JF\HC.07\Rodriguez2235_hcruling.wpd 8 1 convicted of at least one serious or violent crime, as may occur in a sentencing scheme 2 that imposes longer terms on recidivists. Ewing v. California, 538 U.S. 11, 29-30 (2003) 3 (upholding twenty-five-to-life sentence for recidivist convicted of grand theft); Rummel, 4 445 U.S. at 284-85 (upholding life sentence with possibility of parole for recidivist 5 convicted of fraudulent use of credit card for $80, passing forged check for $28.36 and 6 obtaining $120.75 under false pretenses). Substantial deference is granted to state 7 legislature’s determination of the types and limits of punishments for crimes. United 8 States v. Gomez, 472 F.3d 671, 673-74 (9th Cir. 2006). In addressing this claim in Petitioner’s case, the state appellate court properly 9 10 relied upon these Supreme Court cases above and corresponding California law as 11 explicated in In re Lynch, 8 Cal. 410 (1972). (Resp.’s Ex. D.) The court concluded 12 properly that Petitioner’s current offenses were no less serious than those offenses at issue 13 in Rummel, Ewing, and Lockyer. (Id. at 10.) The court relied upon the fact that 14 Petitioner’s sentence was punishment not only for the instant offenses but also for 15 committing the crimes as a recidivist offender and that recidivism justifies the imposition 16 of longer sentences for subsequent offenses. (Id. at 10-11.) The court noted that 17 Petitioner repeatedly had re-offended, had a criminal history spanning more than twenty- 18 five years, and consistently performed poorly on parole. (Id. at 11.) The court’s 19 conclusion that Petitioner’s sentence was not cruel and unusual thus was not contrary to 20 or an unreasonable application of United States Supreme Court authority. (Id.) 21 C. 22 Certificate of Appealability The federal rules governing habeas cases brought by state prisoners recently have 23 been amended to require a district court that denies a habeas petition to grant or deny a 24 certificate of appealability (“COA”) in its ruling. See Rule 11(a), Rules Governing § 25 2254 Cases, 28 U.S.C. foll. § 2254 (effective December 1, 2009). In light of the 26 foregoing discussion, the Court concludes that Petitioner has not shown “that jurists of 27 reason would find it debatable whether the petition states a valid claim of the denial of a 28 Order Denying Petition for Writ of Habeas Corpus and Denying Request for Certificate of Appealability P:\PRO-SE\SJ.JF\HC.07\Rodriguez2235_hcruling.wpd 9 1 constitutional right [or] that jurists of reason would find it debatable whether the district 2 court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 3 Accordingly, the Court declines to issue a COA. 4 CONCLUSION 5 6 The Court concludes that Petitioner has failed to show any violation of his federal 7 constitutional rights in the underlying state criminal proceedings. Accordingly, the 8 petition for writ of habeas corpus and COA are DENIED. 9 10 11 The Clerk shall terminate all pending motions, enter judgment and close the file. IT IS SO ORDERED. DATED: 3/24/10 JEREMY FOGEL United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Denying Petition for Writ of Habeas Corpus and Denying Request for Certificate of Appealability P:\PRO-SE\SJ.JF\HC.07\Rodriguez2235_hcruling.wpd 10 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA RUSSELL GENE RODRIGUEZ, Case Number: CV07-02235 JF Petitioner, CERTIFICATE OF SERVICE v. JEANNE WOODFORD, Respondent. / 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 4/7/10 , 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. Russell Gene Rodriguez V-97356 Pleasant Valley State Prison P.O. Box 8504 D-2-138 Low Coalinga, CA 93210 Dated: 4/7/10 /s/ Richard W. Wieking, Clerk By: Diana Munz, Deputy Clerk Russell Gene Rodriguez V-97356 Pleasant Valley State Prison P.O. Box 8504 D-2-138 Low Coalinga, CA 93210 CV07-02235 JF
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