Smith v. McDonald
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 6/24/11 Recommending that Petitioner's Petition for Writ of Habeas Corpus 1 be denied as moot. These Findings and Recommendations are referred to U.S. District Judge Kimberly J. Mueller. Within 14 days after being served with these Findings and Recommendations, any party may file written objections with the Court. (Mena-Sanchez, L)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ROY GERALD SMITH,
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Petitioner,
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No. CIV S-10-1737-KJM-CMK-P
vs.
FINDINGS AND RECOMMENDATIONS
M.D. McDONALD,
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Respondent.
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/
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s petition for
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a writ of habeas corpus (Doc. 1), respondent’s answer (Doc. 14), and petitioner’s traverse (Doc.
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22).1 Also before the court are petitioner’s motion for discovery (Doc. 19) and motion to stay
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these proceedings (Doc. 20).
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Petitioner has filed a motion for an extension of time to file his traverse (Doc. 21).
The traverse was thereafter filed. The motion for an extension of time should be granted, nunc
pro tunc, and the traverse deemed timely.
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I. BACKGROUND
A.
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Facts2
The state court recited the following facts, and petitioner has not offered any clear
and convincing evidence to rebut the presumption that these facts are correct:
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Defendant Roy Gerald Smith was charged with murder with the
special circumstance of lying in wait. . ., grand theft auto. . . ., and having
four prior serious felony convictions. . . . The prosecution announced its
intent to seek the death penalty.
The victim, 46-year-old Mary Starkey, had advertised a boat for
sale. Apparently claiming that he was interested in buying the boat,
defendant went to Starkey’s residence on June 15, 2005, where he was
seen by Starkey’s mother, Olivia Morino. When Starkey came out of the
house with paperwork for the boat, defendant said that he needed to
retrieve some money from a safe deposit box. He drove off in a brown
minivan, and Starkey followed in her Saturn. When Starkey did not return
home, Morino contacted the police to file a missing person report.
The day after Starkey was reported missing, members of her
extended family went looking for her. A cousin saw Starkey’s Saturn in
the parking lot of a local winery and reported this to the police. Officers
examined the Saturn and found a woman’s purse containing a driver’s
license and credit cards in the name of Mary Starkey, as well as $327 in
cash.
Surveillance tapes showed the Saturn arriving in the parking lot
between 10:30 and 11:00 p.m. on June 15, 2005. A man wearing a
numbered sports jersey, later identified as defendant, got out of the car and
went into the winery through an entrance requiring an employee
identification card. Larry Perez, who worked at the winery, saw defendant
arrive in the car and asked him about it. Defendant said it belonged to a
friend.
At the change of shift the next morning, defendant left the winery
in the van of a fellow employee, Jorge Estrada. After having told Estrada
that the car belonged to a drug dealer, defendant said: “You know what,
Jorge? I think I did something bad.” Defendant later said he had killed
the dealer in a drug dispute. He used the word “asphyxiate” when he
demonstrated how he reached around the dealer from behind and covered
the mouth to prevent the dealer from breathing. Estrada saw scratches and
abrasions on defendant’s hands. Defendant explained the dealer struggled
and kicked really hard. He said his wife saw the body in the bathtub and
became angry with him. He asked Estrada for suggestions as to where he
should dump the body. Estrada suggested a dumpster. Defendant looked
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Pursuant to 28 U.S.C. § 2254(e)(1), “. . . a determination of a factual issue made
by a State court shall be presumed to be correct.” Petitioner bears the burden of rebutting this
presumption by clear and convincing evidence. See id. These facts are, therefore, drawn from
the state court’s opinion(s), lodged in this court. Petitioner may also be referred to as
“defendant.”
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at Estrada and asked, “you ain’t going to tell on me, would you?”
A warrant search of defendant’s residence yielded a sports jersey
with the same number as the one seen in the surveillance video.
Defendant’s wife, Lolita Rodriguez, told an officer that she knew nothing
about the homicide, but that she saw a woman’s shoulder in the bathroom
shower on June 15, 2005. In a later interview, Rodriguez said that when
she arrived home from work on June 15, defendant emerged from the
bathroom wearing jeans and no shirt; he appeared to be wet. Their
children asked to use the bathroom, but defendant at first said no. Then he
went into the bathroom, came back out, and said that the children could
use it. After he did so, Rodriguez followed defendant into the bathroom
and saw a Caucasian woman’s shoulder in the tub. She screamed,
gathered the children, and took them to a local restaurant where they
stayed until it closed. When she returned home, defendant was there but
the body was gone. Defendant left for work at 10:00 p.m. After he was
arrested, defendant said to Rodriguez: “I don’t know if I’m going to be
able to get out of this, so I want you to go back to your family.”
Mary Starkey’s body had not yet been discovered when defendant
was charged with her death.
As part of a negotiated plea agreement, defendant furnished
information leading to recovery of the victim’s body. The prosecutor
amended the information to allege first degree murder and agreed not to
seek the death penalty. Defendant pled guilty to the charge and admitted
the lying in wait special circumstance. The charge of grand theft and the
four prior serious felony conviction enhancements were dismissed. In
accordance with the plea agreement, defendant was sentenced to state
prison for life without the possibility of parole, was awarded 756 days’
custody credit, and was ordered to pay a $200 restitution fine plus 10
percent surcharge. . . and a $20 court security fee. . . .
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B.
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Procedural History
Petitioner was sentenced on July 16, 2007, and the California Court of Appeal
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affirmed on February 19, 2009. Petitioner did not seek direct review by the California Supreme
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Court. Petition did, however, file a state habeas petition in the trial court, which was denied in a
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reasoned decision on July 2, 2009. Petitioner then filed a habeas petition in the California Court
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of Appeal, which was denied on September 3, 2009. Petitioner filed a petition for writ of habeas
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corpus in the California Supreme Court on November 30, 2009. That petition was denied on
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May 12, 2010.
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II. STANDARDS OF REVIEW
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Because this action was filed after April 26, 1996, the provisions of the
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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) are presumptively
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applicable. See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Calderon v. United States Dist. Ct.
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(Beeler), 128 F.3d 1283, 1287 (9th Cir. 1997), cert. denied, 522 U.S. 1099 (1998). The AEDPA
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does not, however, apply in all circumstances. When it is clear that a state court has not reached
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the merits of a petitioner’s claim, because it was not raised in state court or because the court
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denied it on procedural grounds, the AEDPA deference scheme does not apply and a federal
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habeas court must review the claim de novo. See Pirtle v. Morgan, 313 F.3d 1160 (9th Cir.
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2002) (holding that the AEDPA did not apply where Washington Supreme Court refused to reach
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petitioner’s claim under its “re-litigation rule”); see also Killian v. Poole, 282 F.3d 1204, 1208
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(9th Cir. 2002) (holding that, where state court denied petitioner an evidentiary hearing on
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perjury claim, AEDPA did not apply because evidence of the perjury was adduced only at the
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evidentiary hearing in federal court); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001) (reviewing
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petition de novo where state court had issued a ruling on the merits of a related claim, but not the
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claim alleged by petitioner). When the state court does not reach the merits of a claim,
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“concerns about comity and federalism . . . do not exist.” Pirtle, 313 F. 3d at 1167.
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Where AEDPA is applicable, federal habeas relief under 28 U.S.C. § 2254(d) is
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not available for any claim decided on the merits in state court proceedings unless the state
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court’s adjudication of the claim:
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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
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Under § 2254(d)(1), federal habeas relief is available only where the state court’s decision is
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“contrary to” or represents an “unreasonable application of” clearly established law. Under both
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standards, “clearly established law” means those holdings of the United States Supreme Court as
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of the time of the relevant state court decision. See Carey v. Musladin, 549 U.S. 70, 74 (2006)
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(citing Williams, 529 U.S. at 412) . “What matters are the holdings of the Supreme Court, not
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the holdings of lower federal courts.” Plumlee v. Masto, 512 F.3d 1204 (9th Cir. 2008) (en
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banc). Supreme Court precedent is not clearly established law, and therefore federal habeas
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relief is unavailable, unless it “squarely addresses” an issue. See Moses v. Payne, 555 F.3d 742,
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753-54 (9th Cir. 2009) (citing Wright v. Van Patten, 552 U.S. 120, 28 S. Ct. 743, 746 (2008)).
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For federal law to be clearly established, the Supreme Court must provide a “categorical answer”
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to the question before the state court. See id.; see also Carey, 549 U.S. at 76-77 (holding that a
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state court’s decision that a defendant was not prejudiced by spectators’ conduct at trial was not
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contrary to, or an unreasonable application of, the Supreme Court’s test for determining prejudice
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created by state conduct at trial because the Court had never applied the test to spectators’
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conduct). Circuit court precedent may not be used to fill open questions in the Supreme Court’s
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holdings. See Carey, 549 U.S. at 74.
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In Williams v. Taylor, 529 U.S. 362 (2000) (O’Connor, J., concurring, garnering a
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majority of the Court), the United States Supreme Court explained these different standards. A
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state court decision is “contrary to” Supreme Court precedent if it is opposite to that reached by
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the Supreme Court on the same question of law, or if the state court decides the case differently
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than the Supreme Court has on a set of materially indistinguishable facts. See id. at 405. A state
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court decision is also “contrary to” established law if it applies a rule which contradicts the
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governing law set forth in Supreme Court cases. See id. In sum, the petitioner must demonstrate
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that Supreme Court precedent requires a contrary outcome because the state court applied the
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wrong legal rules. Thus, a state court decision applying the correct legal rule from Supreme
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Court cases to the facts of a particular case is not reviewed under the “contrary to” standard. See
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id. at 406. If a state court decision is “contrary to” clearly established law, it is reviewed to
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determine first whether it resulted in constitutional error. See Benn v. Lambert, 283 F.3d 1040,
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1052 n.6 (9th Cir. 2002). If so, the next question is whether such error was structural, in which
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case federal habeas relief is warranted. See id. If the error was not structural, the final question
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is whether the error had a substantial and injurious effect on the verdict, or was harmless. See id.
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State court decisions are reviewed under the far more deferential “unreasonable
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application of” standard where it identifies the correct legal rule from Supreme Court cases, but
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unreasonably applies the rule to the facts of a particular case. See Wiggins v. Smith, 539 U.S.
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510, 520 (2003). While declining to rule on the issue, the Supreme Court in Williams, suggested
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that federal habeas relief may be available under this standard where the state court either
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unreasonably extends a legal principle to a new context where it should not apply, or
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unreasonably refuses to extend that principle to a new context where it should apply. See
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Williams, 529 U.S. at 408-09. The Supreme Court has, however, made it clear that a state court
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decision is not an “unreasonable application of” controlling law simply because it is an erroneous
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or incorrect application of federal law. See id. at 410; see also Lockyer v. Andrade, 538 U.S. 63,
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75-76 (2003). An “unreasonable application of” controlling law cannot necessarily be found
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even where the federal habeas court concludes that the state court decision is clearly erroneous.
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See Lockyer, 538 U.S. at 75-76. This is because “[t]he gloss of clear error fails to give proper
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deference to state courts by conflating error (even clear error) with unreasonableness.” Id. at 75.
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As with state court decisions which are “contrary to” established federal law, where a state court
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decision is an “unreasonable application of” controlling law, federal habeas relief is nonetheless
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unavailable if the error was non-structural and harmless. See Benn, 283 F.3d at 1052 n.6.
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The “unreasonable application of” standard also applies where the state court
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denies a claim without providing any reasoning whatsoever. See Himes v. Thompson, 336 F.3d
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848, 853 (9th Cir. 2003); Delgado v. Lewis, 233 F.3d 976, 982 (9th Cir. 2000). Such decisions
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are considered adjudications on the merits and are, therefore, entitled to deference under the
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AEDPA. See Green v. Lambert, 288 F.3d 1081 1089 (9th Cir. 2002); Delgado, 233 F.3d at 982.
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The federal habeas court assumes that state court applied the correct law and analyzes whether
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the state court’s summary denial was based on an objectively unreasonable application of that
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law. See Himes, 336 F.3d at 853; Delgado, 233 F.3d at 982.
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III. DISCUSSION
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Petitioner raises three grounds for relief based on ineffective assistance of
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counsel. First, he argues that his trial counsel was ineffective for coercing petitioner into
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accepting a plea bargain. Second, he contends that his trial counsel was ineffective for failing to
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disclose meritorious defenses to him before taking a plea bargain. Third, petitioner claims that
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his trial counsel was ineffective for failing to raise the meritorious defense that a third party was
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actually responsible for the crime. Respondent contends that the second and third claims are
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unexhausted and that none of the claims has merit.3
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The Sixth Amendment guarantees the effective assistance of counsel. The United
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States Supreme Court set forth the test for demonstrating ineffective assistance of counsel in
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Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show that, considering
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all the circumstances, counsel’s performance fell below an objective standard of reasonableness.
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See id. at 688. To this end, petitioner must identify the acts or omissions that are alleged not to
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have been the result of reasonable professional judgment. See id. at 690. The federal court must
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then determine whether, in light of all the circumstances, the identified acts or omissions were
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outside the wide range of professional competent assistance. See id. In making this
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determination, however, there is a strong presumption “that counsel’s conduct was within the
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wide range of reasonable assistance, and that he exercised acceptable professional judgment in all
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significant decisions made.” Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing
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Strickland, 466 U.S. at 689).
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An unexhausted claim may nevertheless be denied on the merits. See 28 U.S.C.
§ 2254(b)(2).
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Second, a petitioner must affirmatively prove prejudice. See Strickland, 466 U.S.
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at 693. Prejudice is found where “there is a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A
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reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id.;
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see also Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). A reviewing court “need not
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determine whether counsel’s performance was deficient before examining the prejudice suffered
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by the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an
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ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be
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followed.” Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (quoting Strickland, 466 U.S. at
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697).
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A.
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Regarding petitioner’s first claim that the plea agreement was coerced by his trial
counsel, the state court addressed the claim as follows:
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It appearing that a Petition for Writ of Habeas Corpus was filed
herein on June 23, 2009, and good cause appearing therefor, IT IS
HEREBY ORDERED that the Petition for Writ of Habeas Corpus is
DENIED for the reasons indicated.
REASON: Petitioner contends that he was “under duress and
coerced by both trial attorneys” to entering a plea of guilty to the charge of
murder . . . with the special circumstance of laying in wait. . . .
Petitioner fails to inform this Court that Petitioner entered into a
written agreement with the District Attorney’s Office whereby he agreed to
assist law enforcement officers in locating the victim’s body (including “a
detailed description of where the body was disposed, how it was disposed,
and on what date it was disposed”) and if a substantial portion of the
victim’s body was found, Petitioner would be allowed to enter a plea of
guilty to the murder charge and admit the special circumstance allegation in
exchange for the District Attorney’s Office agreeing that it would no longer
seek a death sentence. This Agreement was signed by the Petitioner on
July 11, 2007.
Petitioner alleges that his counsel informed him that he would be
appearing at a Motion for Change of Venue hearing, instead of a change of
plea hearing, and that all he needed to state was “yes, yes, yes” to any
question posed by the Court. However, the Court’s transcript for the
Change of Plea Statement hearing which occurred on July 16, 2007, clearly
reflects that the Court specifically asked the Petitioner if he understood
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First Claim
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what was going on at the hearing and he stated, “Yes, Your Honor, I
do.” . . . . The following excerpt is from the Change of Plea hearing:
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“The Court:
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So Mr. Smith, as to the allegation in Count 1,
murder, 187, in the first degree, June 15, 2005, as to
Mary Theresa Morino Starkey, how do you plead?
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The defendant:
Guilty.” (citation to transcript omitted).
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It is clear from this exchange that the Petitioner did not merely
answer “yes, yes, yes” to all questions posed to him by the Court and that
he clearly understood what type of hearing he was attending and that he
was pleading guilty to a charge of murder in the first degree.
In determining whether a defendant, with effective assistance,
would have accepted the offer, pertinent factors to be considered include:
whether counsel actually and accurately communicated the offer to the
defendant; the advice, if any, given by counsel; the disparity between the
terms of the proposed plea bargain and the probable consequences of
proceeding to trial, as viewed at the time of the offer; and whether the
defendant indicated he or she was amenable to negotiating a plea bargain.
In this context, a defendant’s self-serving statement – after trial, conviction,
and sentence – that with competent advice he or she would [not] have
accepted a proffered plea bargain, is insufficient in and of itself to sustain
the defendant’s burden of proof as to prejudice, and must be corroborated
independently by objective evidence. A contrary holding would lead to an
unchecked flow of easily fabricated claims. (citation omitted).
As stated above, when defendants claim they received ineffective
assistance of counsel at the plea bargain stage, they must show that had they
received effective representation, they would not have accepted the offer.
(citations omitted). . . .
The Attorney General rightly reminds us, however, that petitioner’s
assertion he would not have pled guilty if given competent advice “must be
corroborated independently by objective evidence.” (citations omitted). . . .
Petitioner has failed to meet his burden of proof that he was
prejudiced by counsel’s decision and advice to enter a plea of guilty instead
of proceeding to trial and risking a possible death sentence. Petitioner has
therefore failed to set forth a prima facie case of ineffective assistance of
counsel so far as these claims are concerned. (citation omitted).
Conclusory allegations are insufficient to constitute a prima facie showing
for habeas corpus relief. (citations omitted). If no prima facie claim for
relief is stated, . . . the court will summarily deny the petition. (citation
omitted).
The Petition is hereby DENIED.
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A plea bargain is enforceable if the plea represents a “voluntary and intelligent
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choice among the alternative courses of action open to the defendant.” Parke v. Raley, 506 U.S.
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20, 29 (1992). The defendant must have sufficient awareness of the relevant circumstances and
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likely consequences of the waiver of certain constitutional rights. See Brady v. United States, 397
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U.S. 742, 947-48 & n.4 (1970). A defendant’s representations on the record, as well as any
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findings made by the trial court, present a “formidable barrier” in a collateral challenge.
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Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). “Solemn declarations in open court carry a
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strong presumption of verity.” Id. at 74.
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In this case, the court agrees with the state court that petitioner’s representations on
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the record at the change of plea hearing preclude habeas relief. Specifically, contrary to
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petitioner’s allegation that all he said was “yes, yes, yes” per counsel’s instructions, the hearing
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transcript reveals that he said much more. The trial court specifically asked petitioner what plea
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he wished to enter to the charge of first degree murder and petitioner stated “Guilty.” Petitioner
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also admitted to the facts of the crime and that the crime was committed by means of lying in
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wait. And, when asked whether petitioner wanted life in prison instead of a possible death
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sentence, he said “Yes, your Honor.” Finally, petitioner signed a written plea agreement in which
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he stated that he had discussed the facts of the case and consequences of a guilty plea with
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counsel.
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Because the sate court identified the appropriate legal standards, the court reviews
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under the deferential “unreasonable application of” standard and finds that the state court’s
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rejection of petitioner’s claim that trial counsel coerced the guilty plea was not based on an
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unreasonable application of federal law. As outlined above, petitioner’s statements in open court
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are presumed correct. The state court was not objectively unreasonable in relying on this
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presumption to conclude that plaintiff had not met his burden of showing that the plea was
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involuntary due to coercion, or that he was prejudiced in any way by counsel’s advice with respect
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to the plea agreement. In fact, given the overwhelming evidence of petitioner’s guilt and the
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existence of special circumstances which would have justified the death penalty, the court cannot
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see any reasonable probability that the outcome would have been any better had petitioner opted
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for a trial. Rather, it would have been likely that petitioner would have faced the death penalty
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had he not entered into the plea bargain.
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B.
Second and Third Claims
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In his second claim, petitioner asserts:
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Petitioner submits that defense counsel(s) were in possession of, or
were aware of the following information which would have exonerated him
of first or even second degree murder.
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1)
Knew that the prosecution had no direct, physical, nor
circumstantial evidence that positively identified petitioner
as to the killing of Ms. Mary Starkey, that would positively
lead to a conviction for first or second degree murder.
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Knew through discovery that the day that Ms. Starkey had
disappeared that to wit: a Spiros Kanakis (white male) was
seen at the Starkey residence; a van identified by license
plate was seen at the Starkey residence and that such van did
not belong to either victim nor her husband, and that a
person fitting the description of Jorge Estrada (male
Hispanic) was also seen at the Starkey residence the day that
Ms. Starkey came up missing.
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Such was clearly relevant in terms of a meritorious thirdparty defense as petitioner informed both of his defense
counsel that it was Jorge Estrada who had committed the
murder leading to petitioner’s culpability as an accessory
“after the fact.”
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With convincing evidence that petitioner did not match any
description as set forth by eyewitnesses (neighbors) and
reports and testimony as to Jorge Estrada’s propensity and
culpability to have murdered Ms. Starkey, such issue alone
required an investigation before any negotiated plea took
place.
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Knew that besides petitioner’s steadfast denials that he did
not kill Ms. Starkey, that they could prove and produce an
alibi defense for petitioner based on his “Washington
Mutual Card” and purchases not only on the day Ms. Starkey
came up missing, but specific times on that day conclusively
showing petitioner was nowhere near the Starkey residence.
(It should be noted, petitioner purchased a salad and beer
according to recorded transactions at Finley’s Restaurant at
12:30 p.m. and made another withdrawal at the corner store
for $10.00 on the disappearance day in question. Defense
counsel(s) were in possession of this information and did
nothing to confirm it, let alone present such evidence to the
prosecution in terms of an alibi defense or actual innocence
claim for petitioner).
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4)
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Knew that petitioner’s alibi and potential alibi defense was
meritorious based on the knowledge of that day Ms. Starkey
disappeared as disclosed in discovery.
Ironically, the day that Ms. Starkey disappeared, she was in
the process of signing her divorce papers, another fact turned
over to the defense counsel(s) in discovery.
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Petitioner adds that defense counsel knew “that Jorge Estrada had threatened petitioner and his
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family if petitioner refused to confess to the murder of Ms. Mary Starkey.” In his third claim,
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petitioner argues that defense counsel rendered ineffective assistance by “failing to investigate and
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present evidence that Jorge Estrada was responsible for the murder of Mary Starkey.”
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Respondent argues that neither claim is federally cognizable. As respondent
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correctly observes, claims of failure to investigate must be accompanied by a showing of what
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facts an investigation would have uncovered and how such facts would have changed the
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outcome. See Hamilton v. Vasquez, 17 F.3d 1149, 1157 (9th Cir. 1994). The court agrees with
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respondent that:
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Here, Petitioner does not identify a witness by name, nor does he
demonstrate that any witness was willing and available to testify on his
behalf. Furthermore, Petitioner does not support his claim with reasonably
available evidence, such as the record from the trial court, witness
affidavits, attorney affidavits, police reports, or even a receipt or credit card
statement substantiating his assertion that “recorded transactions” existed
which would have supported an alibi defense.
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Quite simply, petitioner’s second and third claims are conclusory and unsupported by any factual
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showing.
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Finally, even assuming that the second and third claims are cognizable, the court
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cannot find any reasonably possibility of a different outcome to life in prison without the
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possibility of parole had counsel conducted the investigations petitioner asserts should have been
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done. The purported factual underpinning of petitioner’s second and third claims is that someone
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else, and not he, killed Ms. Starkey. Such underpinning, however, is completely eroded by the
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state court’s findings of fact which must be presumed correct because petitioner has presented no
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evidence (let alone clear and convincing evidence) otherwise. See 28 U.S.C. § 2254(e)(1).4
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IV. CONCLUSION
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Based on the foregoing, the undersigned recommends that petitioner’s petition for
a writ of habeas corpus (Doc. 1) be denied and that all pending motions be denied as moot.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
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after being served with these findings and recommendations, any party may file written objections
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with the court. Responses to objections shall be filed within 14 days after service of objections.
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Failure to file objections within the specified time may waive the right to appeal. See Martinez v.
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Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: June 24, 2011
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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The facts found by the state court establishing that petitioner killed Ms. Starkey
include: eyewitness identification by the victim’s mother, surveillance videotape, clothing worn
by the man in the videotape found at petitioner’s residence, evidence that petitioner confessed to
Estrada, evidence that petitioner made incriminating statements to his wife on the day of the
murder after she saw portions of a body in their bathtub, and evidence that petitioner possessed
the victim’s car and purse after her disappearance.
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