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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ARMANDO J. MENA, 12 13 14 15 Petitioner, v. DAVID A. LONG, Case No. ED CV 13-00490 CJC (AFM) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE Respondent. 16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the First Amended 19 Petition, the records on file, the Report and Recommendation of United States 20 Magistrate Judge, petitioner’s objections to the Report, and respondent’s response 21 to the objections. Further, the Court has engaged in a de novo review of those 22 portions of the Report to which petitioner has made objections. 23 The crux of the First Amended Petition is that petitioner’s guilty plea to 24 multiple counts of forcible lewd acts on a child was involuntary because he lacked 25 real notice of the critical element of “force.” For the following reasons, petitioner’s 26 objections to the Report do not warrant a change in the Magistrate Judge’s 27 recommendation that the First Amended Petition be denied that this action be 28 dismissed with prejudice. 1 First, petitioner argues that it the California Supreme Court’s fact-finding 2 process was defective under 28 U.S.C. § 2254(d)(2) because it rejected petitioner’s 3 claims without first permitting further development of the state court record. 4 (Objections at 2.) “In some limited circumstances,” a state court’s “failure to hold 5 an evidentiary hearing may render its fact-finding process unreasonable under 6 § 2254(d)(2).” Hibbler v. Benedetti, 693 F.3d 1140, 1147 (9th Cir. 2012). “But we 7 have never held that a state court must conduct an evidentiary hearing to resolve 8 every disputed factual question; such a per se rule would be counter not only to the 9 deference owed to state courts under AEDPA, but to Supreme Court precedent.” 10 Id. “A state court’s decision not to hold an evidentiary hearing does not render its 11 fact-finding process unreasonable so long as the state court could have reasonably 12 concluded that the evidence already adduced was sufficient to resolve the factual 13 question.” Id. In light of the evidence already adduced in the state court record, as 14 discussed in detail in the Report, it was not objectively unreasonable for the 15 California Supreme Court to reject petitioner’s claims without further development 16 of the record. 17 Second, petitioner argues that it would have been objectively unreasonable 18 for the California Supreme Court to presume from petitioner’s plea form that he had 19 real notice of the force element because the plea form contained an important error. 20 (Objections at 3.) The error, which is undisputed, is that the sentencing range for 21 the offense to which petitioner pled guilty was written incorrectly on the plea form 22 as three, six, or eight years. (Clerk’s Transcript [“CT”] 170 at ¶ 3.) The trial court 23 repeated this error about the sentencing range during the plea colloquy. (Reporter’s 24 Transcript [“RT”] 33.) In fact, the correct sentencing range for the offense to which 25 petitioner pled guilty, forcible lewd on a child, is five, eight, or ten years. See Cal. 26 Penal Code § 288(b)(1). This error, however, could not have confused petitioner 27 about the nature of the charge, because on the same plea form, next to the 28 misstatement about the sentencing range, is a correct citation to § 288(b)(1), as well 2 1 as a correct description of the offense as “forcible lewd act on child.” (CT 170 at ¶ 2 3.) Nothing in the record before the California Supreme Court suggests that the 3 misstated sentencing range was relevant to petitioner’s understanding of the nature 4 of the charge. Indeed, the sentencing range, which was only hypothetical, appeared 5 to play no role in petitioner’s decision to plead guilty because he had negotiated a 6 total sentence of forty years before entering his plea, and because the plea form 7 elsewhere affirmed that he was to be sentenced to forty years. (RT 33; CT 171 at 8 ¶ 9.)1 9 Third, petitioner argues that it would have been objectively unreasonable for 10 the California Supreme Court to presume that petitioner had real notice of the force 11 element in light of his “mental impairment.” (Objections at 4.) The record before 12 the state courts, however, did not contain any evidence of petitioner having a 13 mental impairment. Rather, it reflected that he had a low literacy level, shown by 14 petitioner’s score of 3.2 on the Test for Adult Basic Education. (ECF No. 1 at 15; 15 Lodgment 8 at 95.) Notwithstanding petitioner’s low literacy level, it would not 16 have been objectively unreasonable to presume that he had real notice of the charge 17 because his trial counsel explained, and the Spanish-language interpreter translated, 18 the entire contents of the plea form to him, including the fact that he was pleading 19 guilty to five counts of “forcible lewd act on child” under Cal. Penal Code 20 § 288(b)(1). (CT 170 at ¶ 3 and 171 at ¶¶ 19, 22.) Nothing in the record suggests 21 that this process required reading. Petitioner has not explained how his low literacy 22 level would have prevented him from understanding the contents of the plea form 23 when they were explained and translated to him. 24 25 26 27 28 1 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). 3 1 Fourth, petitioner argues that it would have been objectively unreasonable for 2 the California Supreme Court to reject his claim of ineffective assistance of trial 3 counsel, based on trial counsel’s failure to explain the nature of the charge to him. 4 (Objections at 7-8.) In particular, petitioner argues that the Court improperly relied 5 on the Tenth Circuit’s decision in Miller v. Champion, 161 F.3d 1249 (10th Cir. 6 1998), to apply a test for deficient performance. Although circuit authority cannot 7 be relied upon to grant relief under the AEDPA, it can serve as persuasive authority 8 for purposes of determining whether a particular state court decision is an 9 unreasonable application of Supreme Court law, and may help determine what law 10 is clearly established. Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir. 2004). 11 The Court did not misapply circuit authority in this context. As respondent points 12 out, petitioner has not shown that Miller is contrary to Supreme Court precedent. 13 Moreover, this objection goes only to deficient performance, but petitioner raises no 14 objection to the Court’s conclusion that he had failed to show prejudice, which by 15 itself is enough to defeat his claim of ineffective assistance of trial counsel. 16 Fifth, petitioner argues that the Court improperly analyzed his claim of 17 ineffective assistance of appellate counsel. (Objections at 9-10.) Petitioner argues 18 that appellate counsel was ineffective for filing a Wende brief despite the fact that 19 the trial court had earlier issued a certificate of probable cause — thereby 20 permitting him to challenge his guilty plea on appeal — for his claim that “he did 21 not receive good advice from his trial attorney regarding his plea and sentence.” 22 (CT 198.) In Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir. 2000), the Ninth 23 Circuit remarked that it would be “unusual” for appellate counsel to file a Wende 24 brief after a certificate of probable cause had been issued. But in Delgado, the 25 prisoner also had “very viable appellate issues.” 26 petitioner received a certificate of probable cause, ineffective assistance of trial 27 counsel, was not similarly viable. For the reasons discussed in the Report, there 28 was no reasonable probability that, but for trial counsel’s failure to give good 4 Id. Here, the claim for which 1 advice regarding the plea and sentence, petitioner would have rejected the plea offer 2 and insisted on going to trial. (Report at 23-24.) It was trial counsel, not petitioner, 3 who insisted on going to trial. By all accounts, petitioner was determined to plead 4 guilty and ignore trial counsel’s advice to go to trial. As noted, petitioner does not 5 object to the Court’s determination that, based on these circumstances, he had failed 6 to show prejudice for purposes of his Strickland claim. 7 Relatedly, petitioner argues that the Court should not have presumed in the 8 Report that, because his proposed appellate claims would have failed under the 9 stringent AEDPA standard of review, they necessarily would have failed had 10 appellate counsel raised them under a less-stringent standard on direct appeal. 11 Petitioner has not shown that this distinction would have made any difference. 12 Under California law, a claim by appellate counsel on direct appeal that petitioner 13 lacked real notice of the charge would have failed because, for the same reasons 14 discussed in the Report, the record before the state courts would have permitted a 15 reasonable presumption that petitioner had real notice of the force element. See 16 In re Ronald E., 19 Cal. 3d 315, 324 (1977) (noting that there is no compulsion that 17 the record show an explanation of the technical elements of the offense; it is 18 sufficient that the record fairly demonstrates that the defendant knowingly admitted 19 to having engaged in a detailed course of conduct which constituted the violation), 20 overruled on another ground by People v. Howard, 1 Cal. 4th 1132, 1175-78 21 (1992); People v. Dolliver, 181 Cal. App. 3d 49, 61 (1986) (“The law does not 22 require that an express discussion of the elements of the offense be contained in the 23 transcript nor even an express statement that the elements have been discussed with 24 counsel.”). In sum, petitioner’s objections are overruled. 25 26 // 27 // 28 // 5 1 // 2 IT THEREFORE IS ORDERED that (1) the Report and Recommendation of 3 the Magistrate Judge is accepted and adopted; (2) petitioner’s request for an 4 evidentiary hearing is denied; and (3) Judgment shall be entered denying the First 5 Amended Petition and dismissing this action with prejudice. 6 7 DATED: March 29, 2017 8 9 10 ____________________________________ CORMAC J. CARNEY UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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