Lira v. Ryan et al
Filing
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ORDER ACCEPTING IN PART AND MODIFYING IN PART THE REPORT AND RECOMMENDATION. 16 as set forth in this order. Petitioner's petition for writ of habeas corpu 1 is denied. A certificate of appealability is denied. (See document for further details). Signed by Judge David G Campbell on 4/23/14. (LAD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Victor Lira,
No. CV-13-01989-PHX-DGC
Petitioner,
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v.
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ORDER
Charles L Ryan, et al.,
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Respondents.
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Pending before the Court are Petitioner Victor Lira’s petition for writ of habeas
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corpus (Doc. 1), United States Magistrate Judge James Metcalf’s Report and
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Recommendation (“R&R”) (Doc. 16), and Petitioner’s objections to the R&R (Doc. 17).
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The R&R recommends that the Court deny the petition, and, if the Court adopts the R&R
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findings, that a certificate of appealability be denied. Doc. 16 at 32. The Court will
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accept the R&R with slight modifications, deny the petition, and deny the certificate of
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appealability.
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I.
Background.
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In 2005, Petitioner was involved in a knife fight. He fatally cut the victim and
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then drove away in the victim’s car with her purse and cash. Doc. 16 at 1-2. Petitioner
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was charged in Pinal County Superior Court with first-degree murder, armed robbery,
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and theft. On September 13, 2007, he was indicted in a second indictment on charges of
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second-degree murder, automobile theft, and armed robbery.
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indictments were consolidated. Id. Petitioner entered into a plea agreement with the state
Id. at 2.
The two
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in which he agreed to plead guilty to manslaughter. Id. On April 8, 2008, the plea was
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accepted and Petitioner was sentenced to 19 years in prison. Id.
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On October 1, 2013, Petitioner, through his counsel, filed a petition for writ of
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habeas corpus on the following two grounds: (1) insufficient factual basis for the plea,
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and (2) ineffective trial counsel.
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II.
Legal Standard.
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A party may file specific, written objections to an R&R within ten days of being
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served with a copy the R&R. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C). The
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Court must undertake a de novo review of those portions of the R&R to which specific
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objections are made. See id.; Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v.
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Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The Court may accept, reject, or
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modify, in whole or in part, the findings or recommendations made by the magistrate
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judge. See 28 U.S.C. § 636(b)(1).
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III.
Analysis.
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Petitioner objects to the R&R’s recommendations that (1) Petitioner’s insufficient
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factual basis claim should be denied for lack of merit; (2) Petitioner’s ineffective
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assistance of counsel claim should be denied for lack of merit; and (3) Petitioner should
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not be granted a certificate of appealability. Doc. 17 at 1.
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A.
Insufficient Factual Basis.
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Petitioner objects to the R&R’s finding that a factual basis was not required
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because he did not protest his innocence. Doc. 17 at 4. “[T]he due process clause does
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not impose on a state court the duty to establish a factual basis for a guilty plea absent
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special circumstances.” Rodriguez v. Ricketts, 777 F.2d 527, 528 (9th Cir. 1985); see
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also Loftis v. Almager, 704 F.3d 645, 648 (9th Cir. 2012) (“habeas courts have held that,
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unless a plea is accompanied by protestations of innocence or other ‘special
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circumstances,’ the Constitution does not require state judges to find a factual basis”). A
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special circumstance, such as a “defendant’s protestation of innocence,” may “impose on
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a state court the constitutional duty to make inquiry and to determine if there is a factual
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basis for the plea.” Id. “When a defendant pleads guilty or no contest without claiming
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innocence or otherwise making statements calling into question the voluntariness of his
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plea . . . the finding of a factual basis is not essential to voluntariness.” Loftis, 704 F.3d
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at 650.
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During his change of plea hearing, Petitioner responded to the court’s question of
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whether his cut led to the victim’s ultimate death by saying: “[i]t’s never been – they
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never established that.” Id. Petitioner contends that he thereby “expressed his belief that
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he was not responsible for the victim’s death.” Doc. 17 at 6. The R&R found, however,
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that “Petitioner merely equivocated on whether the prosecution had ‘established’ that he
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was the cause of death, he did not assert that he in fact was not.” Doc. 16 at 15. The
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Court agrees that Petitioner’s assertion was not a protestation of innocence.
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Petitioner contends that he attempted to “unequivocally express his innocence,”
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but he was “cut off by his own counsel.” Doc. 17 at 6. The record does not support this
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contention. When Petitioner’s counsel stated that “there’s every reason to believe that it
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was this cut or more than one cut that did lead to her death,” the Court asked whether
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Petitioner was satisfied by the investigation conducted by his attorney. He responded
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“[y]es.” Doc. 16 at 14. Because “it is the defendant’s duty to assert innocence,” and
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Petitioner did not do so, the state court did not need to find a factual basis for the plea.
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Id. at 15; Orman v. Cain, 228 F.3d 616, 621 (5th Cir. 2000).
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Petitioner also objects to the R&R’s finding that he did not assert that the state
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court’s decision was “unsupported by sufficient evidence.” Doc. 16 at 6. Pursuant to 28
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U.S.C. § 2254(d)(2), “[a]n application for a writ of habeas corpus . . . shall not be granted
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. . . unless the adjudication of the claim. . . . resulted in a decision that was based on an
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unreasonable determination of the facts in light of the evidence presented in the State
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court proceeding.” When a petitioner makes a challenge based on an unreasonable
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determination of the facts, the “challenge may be based on the claim that the finding is
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unsupported by sufficient evidence.” Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir.
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2004).
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Petitioner argues that the state court “should have established the factual record on
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more than unreliable hearsay statements.” Doc. 17 at 7. As the R&R noted, however,
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Petitioner did not provide any authority that “makes a state court’s reliance on what
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might ultimately turn out to be inaccurate testimony an unreasonable determination.”
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Doc. 16 at 16. Therefore, the R&R found, Petitioner did not challenge the sufficiency of
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the evidence in supporting the state court’s decision. Id. The Court agrees.
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But even if the Court were to accept Petitioner’s contentions that he did challenge
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the sufficiency of evidence, the state court’s decision was not based on an unreasonable
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determination of the facts. According to Petitioner’s statements during the plea colloquy,
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he cut the victim in the left breast area. Doc. 16 at 19. The prosecutor stated that,
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according to the medical examiner’s report, there was a “puncture wound to that area . . .
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that ended up puncturing her lung that may have been one of the fatal wounds.” Id. at 20.
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Moreover, the trial court considered information from the first and second grand jury
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transcripts which included evidence that (1) the autopsy listed the cause of death as stab
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wounds to the neck and torso; (2) Petitioner had been using marijuana and
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methamphetamine prior to his knife fight with the victim; (3) Petitioner stated he was
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fighting the victim’s cousin, the victim intervened and he cut her on her shoulder; (4) the
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victim’s cousin was elderly, suffering from diabetes and Hepatitis C, and was a hospice
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patient; (5) the victim sustained a variety of knife wounds to her chest, throat area,
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shoulder, knee, and skull, some of which were defensive in nature; (6) Petitioner said he
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accidentally stabbed victim at least once or a couple of times – he was unsure of how
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many; and (7) the victim engaged in a violent struggle, with defensive wounds, blood
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spatter on three walls, and the bed torn apart. Doc. 16 at 20-21. Given this information,
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there is strong evidence that Petitioner committed manslaughter by “recklessly causing
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the death of another person” pursuant to A.R.S. § 13-1103. The Court finds that the state
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court’s determination did not constitute an unreasonable determination of fact.
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B.
Ineffective Assistance of Counsel.
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Petitioner objects to the R&R’s finding that the claims of ineffective assistance of
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counsel lack merit. Doc. 17 at 8-11. To establish ineffective assistance of counsel, a
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petitioner must show (1) counsel’s representation fell below an objective standard of
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reasonableness, and (2) she was prejudiced as a result. Strickland v. Washington, 466
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U.S. 668, 688-92 (1984). To establish prejudice, a defendant must show “that there is a
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reasonable probability that, but for counsel's unprofessional errors, the result of the
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proceeding would have been different.” Id. at 694. A “reasonable probability” is one
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“sufficient to undermine confidence in the outcome.” Id. “Unless a defendant makes
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both showings, it cannot be said that the conviction . . . resulted from a breakdown in the
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adversary process that renders the result unreliable.” Id. at 687.
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A court's “[r]eview of counsel’s performance is highly deferential and there is a
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strong presumption that counsel’s conduct fell within the wide range of reasonable
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representation.” United States v. Ferreira-Almeda, 815 F.2d 1251, 1253 (9th Cir. 1986)
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(citation omitted). Moreover, courts are reminded to make “every effort . . . to eliminate
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the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
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challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
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Strickland, 466 U.S. at 689.
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The R&R found that “in light of the grand jury transcripts, any objection by trial
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counsel, even efforts to introduce the autopsy report or explicit denials from Petitioner,
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would not have eliminated the trial court’s ability to find a sufficient factual basis.”
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Doc. 16 at 25; see Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (finding that failure
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to take a futile action can never be deficient performance). Petitioner contends that his
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counsel behaved unreasonably by failing to “address and advocate Petitioner’s belief that
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he was not the cause of the victim’s death.” Doc. 17 at 9. Yet, as the R&R correctly
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found, “[a] guilty plea is not a trial,” and “defense counsel at a guilty plea proceeding is
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seeking to effectuate and secure to the defendant the benefits of a plea agreement.”
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Doc. 16 at 26. Therefore, “reasonable counsel often seeks to facilitate the establishment
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of a factual basis, rather than seeking to destroy it.” Id. The Court agrees that under
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these circumstances, counsel did not act deficiently.
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The R&R also found that “even if counsel was deficient, Petitioner fails to
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establish prejudice.” Id. at 27. “[I]n order to satisfy the ‘prejudice’ requirement, the
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defendant must show that there is a reasonable probability that, but for counsel’s errors,
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he would not have pleaded guilty and would have insisted on going to trial.” Hill v.
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Lockhart, 474 U.S. 52, 59 (1985). Applying Hill, the R&R found that Petitioner did not
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provide any support for the contention that “had counsel opposed the factual basis he
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would have refused to plead guilty and would have proceeded to trial.” Doc. 16 at 28.
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Moreover, the R&R found that Petitioner did not present any “viable reason why he
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would have proceeded to trial.” Id. at 30.
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Relying on Strickland and Hill, Petitioner contends that he need only show that he
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would have rejected the manslaughter plea in order to satisfy the prejudice requirement.
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Doc. 17 at 10. Yet, the language of Hill plainly states that satisfaction of the Strickland
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prejudice prong requires finding that the petitioner would not have pled guilty and would
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have insisted on going to trial. Hill, 474 U.S. at 59; see also Lafler v. Cooper, 132 S. Ct.
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1376, 1384 (2012); Smith v. Mahoney, 611 F.3d 978, 986 (9th Cir. 2010). The R&R
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correctly applied the proper standard. Therefore, the Court agrees that Petitioner did not
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satisfy the prejudice requirement.
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C.
Certificate of Appealability.
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Petitioner argues that the R&R’s recommendation to deny a certificate of
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appealability should not be accepted because there is disagreement over whether the state
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court satisfied its fact finding obligations.
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appealability can be issued only if a petitioner has “made a substantial showing of the
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denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A substantial showing, when
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the district court’s decision to dismiss is based on procedure, requires that “jurists of
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reason would find it debatable whether the district court was correct in its procedural
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ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar is
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present and the district court is correct to invoke it to dispose of the case, a reasonable
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jurist could not conclude either that the district court erred in dismissing the petition or
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Doc. 17 at 11-12.
A certificate of
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that the petitioner should be allowed to proceed further. In such a circumstance, no
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appeal would be warranted.” Id.
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Absent special circumstance, the state court does not have a constitutional duty to
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determine a factual basis for the plea. Rodriguez, 777 F.2d at 528. Because Petitioner
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did not protest his innocence, a finding of factual basis for the plea was not required.
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Moreover, even if a finding of factual basis were constitutionally required, the
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Petitioner’s statements made during the plea colloquy and the grand jury testimony were
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strong evidence of guilt. Accordingly, the Court accepts the R&R’s recommendation.
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IT IS ORDERED:
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The R&R (Doc. 16) is accepted in part and modified in part as set forth
in this order.
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2.
Petitioner’s petition for writ of habeas corpus (Doc. 1) is denied.
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3.
A certificate of appealability is denied.
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Dated this 23rd day of April, 2014.
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