A J Mena v. David A Long

Filing 56

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Cormac J. Carney for Report and Recommendation (Issued) 48 (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ARMANDO J. MENA,

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Petitioner,
v.
DAVID A. LONG,

Case No. ED CV 13-00490 CJC (AFM)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE

Respondent.

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended

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Petition, the records on file, the Report and Recommendation of United States

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Magistrate Judge, petitioner’s objections to the Report, and respondent’s response

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to the objections. Further, the Court has engaged in a de novo review of those

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portions of the Report to which petitioner has made objections.

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The crux of the First Amended Petition is that petitioner’s guilty plea to

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multiple counts of forcible lewd acts on a child was involuntary because he lacked

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real notice of the critical element of “force.” For the following reasons, petitioner’s

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objections to the Report do not warrant a change in the Magistrate Judge’s

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recommendation that the First Amended Petition be denied that this action be

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dismissed with prejudice.

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First, petitioner argues that it the California Supreme Court’s fact-finding

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process was defective under 28 U.S.C. § 2254(d)(2) because it rejected petitioner’s

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claims without first permitting further development of the state court record.

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(Objections at 2.) “In some limited circumstances,” a state court’s “failure to hold

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an evidentiary hearing may render its fact-finding process unreasonable under

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§ 2254(d)(2).” Hibbler v. Benedetti, 693 F.3d 1140, 1147 (9th Cir. 2012). “But we

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have never held that a state court must conduct an evidentiary hearing to resolve

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every disputed factual question; such a per se rule would be counter not only to the

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deference owed to state courts under AEDPA, but to Supreme Court precedent.”

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Id. “A state court’s decision not to hold an evidentiary hearing does not render its

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fact-finding process unreasonable so long as the state court could have reasonably

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concluded that the evidence already adduced was sufficient to resolve the factual

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question.” Id. In light of the evidence already adduced in the state court record, as

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discussed in detail in the Report, it was not objectively unreasonable for the

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California Supreme Court to reject petitioner’s claims without further development

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of the record.

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Second, petitioner argues that it would have been objectively unreasonable

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for the California Supreme Court to presume from petitioner’s plea form that he had

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real notice of the force element because the plea form contained an important error.

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(Objections at 3.) The error, which is undisputed, is that the sentencing range for

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the offense to which petitioner pled guilty was written incorrectly on the plea form

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as three, six, or eight years. (Clerk’s Transcript [“CT”] 170 at ¶ 3.) The trial court

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repeated this error about the sentencing range during the plea colloquy. (Reporter’s

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Transcript [“RT”] 33.) In fact, the correct sentencing range for the offense to which

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petitioner pled guilty, forcible lewd on a child, is five, eight, or ten years. See Cal.

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Penal Code § 288(b)(1). This error, however, could not have confused petitioner

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about the nature of the charge, because on the same plea form, next to the

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misstatement about the sentencing range, is a correct citation to § 288(b)(1), as well
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as a correct description of the offense as “forcible lewd act on child.” (CT 170 at ¶

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3.) Nothing in the record before the California Supreme Court suggests that the

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misstated sentencing range was relevant to petitioner’s understanding of the nature

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of the charge. Indeed, the sentencing range, which was only hypothetical, appeared

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to play no role in petitioner’s decision to plead guilty because he had negotiated a

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total sentence of forty years before entering his plea, and because the plea form

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elsewhere affirmed that he was to be sentenced to forty years. (RT 33; CT 171 at

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¶ 9.)1

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Third, petitioner argues that it would have been objectively unreasonable for

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the California Supreme Court to presume that petitioner had real notice of the force

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element in light of his “mental impairment.” (Objections at 4.) The record before

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the state courts, however, did not contain any evidence of petitioner having a

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mental impairment. Rather, it reflected that he had a low literacy level, shown by

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petitioner’s score of 3.2 on the Test for Adult Basic Education. (ECF No. 1 at 15;

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Lodgment 8 at 95.) Notwithstanding petitioner’s low literacy level, it would not

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have been objectively unreasonable to presume that he had real notice of the charge

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because his trial counsel explained, and the Spanish-language interpreter translated,

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the entire contents of the plea form to him, including the fact that he was pleading

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guilty to five counts of “forcible lewd act on child” under Cal. Penal Code

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§ 288(b)(1). (CT 170 at ¶ 3 and 171 at ¶¶ 19, 22.) Nothing in the record suggests

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that this process required reading. Petitioner has not explained how his low literacy

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level would have prevented him from understanding the contents of the plea form

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when they were explained and translated to him.

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Respondent also points out that the plea form clearly stated that petitioner was pleading
guilty to a “violent” felony, which would have given petitioner further notice of the force
element. (CT 171 at ¶ 10.) The Court is not persuaded by this fact because the
identification of the offense to which petitioner pled guilty as a violent felony did not
differentiate it from the original charges of non-forcible lewd acts, which also are violent
felonies. See Cal. Penal Code § 667.5(c)(6).
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Fourth, petitioner argues that it would have been objectively unreasonable for

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the California Supreme Court to reject his claim of ineffective assistance of trial

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counsel, based on trial counsel’s failure to explain the nature of the charge to him.

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(Objections at 7-8.) In particular, petitioner argues that the Court improperly relied

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on the Tenth Circuit’s decision in Miller v. Champion, 161 F.3d 1249 (10th Cir.

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1998), to apply a test for deficient performance. Although circuit authority cannot

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be relied upon to grant relief under the AEDPA, it can serve as persuasive authority

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for purposes of determining whether a particular state court decision is an

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unreasonable application of Supreme Court law, and may help determine what law

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is clearly established. Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir. 2004).

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The Court did not misapply circuit authority in this context. As respondent points

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out, petitioner has not shown that Miller is contrary to Supreme Court precedent.

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Moreover, this objection goes only to deficient performance, but petitioner raises no

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objection to the Court’s conclusion that he had failed to show prejudice, which by

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itself is enough to defeat his claim of ineffective assistance of trial counsel.

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Fifth, petitioner argues that the Court improperly analyzed his claim of

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ineffective assistance of appellate counsel. (Objections at 9-10.) Petitioner argues

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that appellate counsel was ineffective for filing a Wende brief despite the fact that

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the trial court had earlier issued a certificate of probable cause — thereby

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permitting him to challenge his guilty plea on appeal — for his claim that “he did

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not receive good advice from his trial attorney regarding his plea and sentence.”

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(CT 198.) In Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir. 2000), the Ninth

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Circuit remarked that it would be “unusual” for appellate counsel to file a Wende

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brief after a certificate of probable cause had been issued. But in Delgado, the

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prisoner also had “very viable appellate issues.”

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petitioner received a certificate of probable cause, ineffective assistance of trial

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counsel, was not similarly viable. For the reasons discussed in the Report, there

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was no reasonable probability that, but for trial counsel’s failure to give good
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Id.

Here, the claim for which

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advice regarding the plea and sentence, petitioner would have rejected the plea offer

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and insisted on going to trial. (Report at 23-24.) It was trial counsel, not petitioner,

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who insisted on going to trial. By all accounts, petitioner was determined to plead

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guilty and ignore trial counsel’s advice to go to trial. As noted, petitioner does not

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object to the Court’s determination that, based on these circumstances, he had failed

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to show prejudice for purposes of his Strickland claim.

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Relatedly, petitioner argues that the Court should not have presumed in the

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Report that, because his proposed appellate claims would have failed under the

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stringent AEDPA standard of review, they necessarily would have failed had

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appellate counsel raised them under a less-stringent standard on direct appeal.

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Petitioner has not shown that this distinction would have made any difference.

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Under California law, a claim by appellate counsel on direct appeal that petitioner

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lacked real notice of the charge would have failed because, for the same reasons

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discussed in the Report, the record before the state courts would have permitted a

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reasonable presumption that petitioner had real notice of the force element. See

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In re Ronald E., 19 Cal. 3d 315, 324 (1977) (noting that there is no compulsion that

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the record show an explanation of the technical elements of the offense; it is

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sufficient that the record fairly demonstrates that the defendant knowingly admitted

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to having engaged in a detailed course of conduct which constituted the violation),

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overruled on another ground by People v. Howard, 1 Cal. 4th 1132, 1175-78

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(1992); People v. Dolliver, 181 Cal. App. 3d 49, 61 (1986) (“The law does not

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require that an express discussion of the elements of the offense be contained in the

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transcript nor even an express statement that the elements have been discussed with

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counsel.”).
In sum, petitioner’s objections are overruled.

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IT THEREFORE IS ORDERED that (1) the Report and Recommendation of

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the Magistrate Judge is accepted and adopted; (2) petitioner’s request for an

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evidentiary hearing is denied; and (3) Judgment shall be entered denying the First

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Amended Petition and dismissing this action with prejudice.

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DATED: March 29, 2017

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____________________________________
CORMAC J. CARNEY
UNITED STATES DISTRICT JUDGE

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