Mize v. Cate et al

Filing 22

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 03/28/13 recommending that petitioner's application for a writ of habeas corpus be denied. Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNIS WAYNE MIZE, SR.
Petitioner,

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FINDINGS AND RECOMMENDATIONS

vs.

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No. 2:11-cv-2007 KJM EFB P

Respondent.

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M. CATE,

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/

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Petitioner is a state prisoner without counsel proceeding with an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2007 judgment of

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conviction entered against him in the Shasta County Superior Court for threatening to commit a

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crime that would result in death or great bodily injury. He seeks relief on the grounds that: (1)

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his trial counsel rendered ineffective assistance, and (2) his right to due process was violated

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when his state habeas corpus petition was decided by the same Superior Court judge who

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presided over his trial. Upon careful consideration of the record and the applicable law, the

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undersigned recommends that petitioner’s application for habeas corpus relief be denied.

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I.

Background1

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Defendant Dennis Wayne Mize pleaded no contest to threatening
to commit a crime that would result in death or great bodily injury.
(Pen.Code, § 422.)2 He admitted three prior serious felony
allegations (§ 667, subd. (a)) and a strike allegation (§§ 667,
subds.(b)-(I), 1170.12). In exchange, counts of assault by force
likely to produce great bodily injury (§ 245, subd. (a)(1)) and
obstructing a peace officer (§ 148, subd. (a)(1)) were dismissed,
along with several enhancing allegations. Defendant was
sentenced to state prison for 19 years. The trial court issued a
certificate of probable cause.

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On appeal, defendant contends his motion to dismiss for lack of
venue in Shasta County was erroneously denied. We shall affirm
the judgment.

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Facts3

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Suzanne Rodriguez testified for the prosecution that she had an
argument with defendant, her boyfriend, on an afternoon in June
2006. She “thought it would be better that we took off and went
somewhere.” They purchased gasoline, packed a blanket, a
12-pack of beer, and some tomato juice and left their residence in
Redding, which is in Shasta County, and drove toward
Weaverville, which is in Trinity County. Defendant was the
driver. No one else was in the car.

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Shortly after leaving Redding, defendant and Rodriguez found
themselves on a winding two-lane road that ascended a mountain
where there were no houses, lots of trees, and very little traffic.
Rodriguez and possibly defendant were drinking during the trip.
Defendant got upset at Rodriguez because she had taken too long
to return to the car from the gas station. He started hitting her on
the left side of her body while he drove and she sat in the
passenger seat. Her lip was injured, her nose started bleeding, and
her entire left side was bruised. Blood spilled from her face onto
the paneling of the passenger door. She asked defendant to stop
the car so she could get out.

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In its unpublished memorandum and opinion affirming petitioner’s judgment of
conviction on appeal, the California Court of Appeal for the Third Appellate District provided
the following factual summary.

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Hereafter, undesignated section references are to the Penal Code.

Because the matter was resolved by plea, our statement of facts is taken from the
hearing on the motion to dismiss for lack of venue.

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Both defendant and Rodriguez had to use the restroom, so
defendant pulled off the road onto a little dirt roadway. Rodriguez
got out of the car, used the restroom, and then started to walk back
to the road. Defendant stopped her, put his hands around her neck,
and started to choke her. She fell to the ground; he kicked her and
told her to get back into the car or he would kill her. She returned
to the car because she was afraid.

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Defendant discontinued the trip to Weaverville. He turned the car
around and they descended back down the winding road toward
Redding. It was still light outside. Rodriguez, who was scared,
put her arms up in the air and tried to get the attention of an
oncoming motorist. A couple in an oncoming car looked right at
them. Defendant immediately pulled over into a turnabout.
Rodriguez got out of the car and flagged down a truck. The truck
driver assisted Rodriguez by calling an ambulance and the police.
She recalled that it was dusk when she flagged down the passerby.

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Around 8:35 p.m., Deputy Nelson responded to a call on Highway
299 westbound. He arrived on the scene a few minutes later. At
the venue hearing, it was stipulated that the scene is in Shasta
County, 19.4 miles from the Trinity County line, and 4.4 miles
from the Shasta County courthouse.

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Contrary to Rodriguez's testimony that she and defendant were
alone, Kelly Bohannan testified for the defense that he and his
sister, Candi Kenyon, were passengers during the trip. Bohannan
was seated behind defendant, and Kenyon was seated behind
Rodriguez.

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Bohannan estimated that after they left the house, they drove for
35 to 40 minutes, passed Whiskeytown Lake, and then drove
another 30 to 40 miles. He was uncertain where they were or how
long they had driven because “most of the time [he] was passed
out.” However, he claimed that it was “good and dark” before they
turned the car around. He claimed that Rodriguez had been
drinking before the trip began and continued drinking as they
drove. She was antagonistic and belligerent, and she continually
bickered at defendant. Defendant, who was driving, never struck
her.

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At some point during the drive, defendant stopped the car for a
bathroom break. Bohannan remembered crossing a bridge and
seeing a sign that said Weaverville was six, seven, or eight miles
away. At the stop, Rodriguez got out of the car and walked out of
sight. Bohannan heard Rodriguez screaming and yelling, believed
he heard her fall down a hill, and then saw her tangled up in her
clothes and the surrounding bushes. Defendant helped her back up
the hill.

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Bohannan saw Rodriguez stagger to the roadway and saw a truck
coming in their direction. Defendant ran over to Rodriguez and
tackled her to get her out of the truck's way. Bohannan noticed
that Rodriguez was bleeding from her nose and was complaining
of pain in her ribs and shoulder. Believing Rodriguez may need
medical attention, the group headed back toward Redding.

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Rodriguez continued to complain that she was hurt; she asked for
another beer and drank it. Bohannan fell asleep again and did not
recall anything until they got to his mother's house. Bohannan
entered the house, got something to eat, and went to sleep.
Bohannan testified that in November 2006 he was arrested and
placed in the Shasta County jail. At one point during his jail term,
he and defendant were in the same pod and spent most of their
days together. Bohannan claimed that defendant did not talk about
his case.
Bohannan added that he and defendant were in jail at the same
time again in July 2007. Bohannan slept most of the time and did
not talk to defendant.
Bohannan's sister, Candi Kenyon, testified for the defense that she
was in the car when the group took the trip to Weaverville. She
recalled that they left a little before dark, around 7:00 p.m., drove
down Swasey Drive, and then went west about 30 miles on
Highway 299. During the trip, Rodriguez was argumentative, was
hitting defendant, and wanted out of the car; Kenyon tried to
persuade Rodriguez to desist. Kenyon never saw defendant hit or
threaten Rodriguez.

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When the car stopped, Rodriguez got out of the car and ran up and
down the road. Defendant tried to get her back inside the car.
When she reentered the car, Kenyon noticed that Rodriguez's face
and nose were bleeding because she had been falling down. The
group turned around and headed back toward Redding.

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Rodriguez continued to hit defendant, but Kenyon did not see
defendant retaliate. After passing Whiskeytown Lake, defendant
stopped and let Rodriguez out of the car and the group continued
back to Redding and Kenyon's mother's house. Kenyon left the
house for a while; when she returned, law enforcement was there.

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Some time thereafter, Kenyon and a defense investigator traveled
westbound on Highway 299 in an attempt to locate the area in
which defendant had turned the car around. Kenyon identified an
area past a bridge where a sign indicated that Weaverville was
seven miles away. The investigator testified that the sign is
located in Trinity County, over 20 miles from the Shasta County
line.

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During the venue hearing, the trial court examined letters
defendant had written to Rodriguez's cat, Gracie, following a court
order that he have no contact with Rodriguez. In one letter,
defendant wrote that the group had pulled over “at the Weaverville
ten mile sign.” In another letter, he referred to an area just past the
Weaverville ten mile sign. In yet another letter, he stated, “[a]t
Swazey [sic] Drive I pulled over, took off my shirt and poured beer
on her and waved [sic] her face which hurt her nose.” Defendant
wrote that it was his “hope to get this domestic case dropped in
Shasta County because [he] doubt[ed] that Trinity County will
even pick it up.” In a final letter, defendant wrote, “[a]s long as
Suzie [Rodriguez] recalls that we passed the ‘Weaverville ten
miles' sign, Shasta County will have to ‘dismiss with prejudice,’
which means the DA cannot refile it.”

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The trial court found by a preponderance of the evidence that at
least a portion of the assaultive behavior occurred inside the car.
The finding was based upon Rodriguez's testimony and the
physical evidence of blood inside the car. The court found that the
testimony of Bohannan and Kenyon was “less than fully credible.”
The motion to dismiss for lack of venue was denied.

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II.

Analysis

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A. Standards for a Writ of Habeas Corpus

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An application for a writ of habeas corpus by a person in custody under a judgment of a

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state court can be granted only for violations of the Constitution or laws of the United States. 28

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U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

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application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010);

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Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir.

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2000).

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Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated on
the merits in State court proceedings unless the adjudication of the
claim (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
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(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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For purposes of applying § 2254(d)(1), “clearly established federal law” consists of

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holdings of the United States Supreme Court at the time of the state court decision. Stanley v.

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Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06

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(2000)). Nonetheless, “circuit court precedent may be persuasive in determining what law is

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clearly established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d

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at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).

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A state court decision is “contrary to” clearly established federal law if it applies a rule

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contradicting a holding of the Supreme Court or reaches a result different from Supreme Court

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precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).

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Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant

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the writ if the state court identifies the correct governing legal principle from the Supreme

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Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s case.4

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Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360

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F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ

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simply because that court concludes in its independent judgment that the relevant state-court

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decision applied clearly established federal law erroneously or incorrectly. Rather, that

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application must also be unreasonable.” Williams, 529 U.S. at 412. See also Schriro v.

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Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal

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habeas court, in its independent review of the legal question, is left with a ‘firm conviction’ that

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the state court was ‘erroneous.’”). “A state court’s determination that a claim lacks merit

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precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness

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Under § 2254(d)(2), a state court decision based on a factual determination is not to be
overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)).
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of the state court’s decision.” Harrington v. Richter, 562 U.S.___,___, 131 S. Ct. 770, 786

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(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a

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condition for obtaining habeas corpus from a federal court, a state prisoner must show that the

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state court’s ruling on the claim being presented in federal court was so lacking in justification

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that there was an error well understood and comprehended in existing law beyond any possibility

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for fairminded disagreement.” Harrington,131 S. Ct. at 786-87.

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If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing

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court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,

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527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)

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(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of §

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2254(d)(1) error and that, if there is such error, we must decide the habeas petition by

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considering de novo the constitutional issues raised.”).

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The court looks to the last reasoned state court decision as the basis for the state court

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judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

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If the last reasoned state court decision adopts or substantially incorporates the reasoning from a

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previous state court decision, this court may consider both decisions to ascertain the reasoning of

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the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When

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a federal claim has been presented to a state court and the state court has denied relief, it may be

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presumed that the state court adjudicated the claim on the merits in the absence of any indication

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or state-law procedural principles to the contrary.” Harrington, 131 S. Ct. at 784-85. This

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presumption may be overcome by a showing “there is reason to think some other explanation for

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the state court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797,

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803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to

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support its conclusion, a federal habeas court independently reviews the record to determine

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whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.

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Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo
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review of the constitutional issue, but rather, the only method by which we can determine

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whether a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853.

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Where no reasoned decision is available, the habeas petitioner still has the burden of “showing

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there was no reasonable basis for the state court to deny relief.” Harrington, 131 S. Ct. at 784.

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When it is clear, however, that a state court has not reached the merits of a petitioner’s

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claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal

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habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462

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F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).5

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B. Petitioner’s Claims

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1. Ineffective Assistance of Counsel/Motion to Dismiss for Lack of Venue

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In his first and second grounds for relief, petitioner claims that his trial counsel rendered

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ineffective assistance in connection with his handling of a defense motion to dismiss for lack of

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venue, which was filed and decided prior to the entry of petitioner’s plea of nolo contendere.

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The background to these claims is the following.

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On June 1, 2007, petitioner’s trial counsel filed a motion to dismiss for lack of venue.

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Clerk’s Transcript on Appeal (CT) at 217. It was petitioner’s contention that venue was only

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proper in Trinity County. Id. The prosecutor filed an opposition to that motion on June 6, 2007,

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arguing that the evidence introduced at the preliminary hearing established that venue was

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proper in Shasta County. Id. at 227.

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At the hearing before the trial court on June 11, 2007, the presiding judge stated that,

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after reading the “paperwork” related to the motion, his tentative ruling was to deny the motion.

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The United States Supreme Court has recently granted certiorari in a case apparently to
consider this issue. See Williams v. Cavazos, 646 F.3d 626, 639-41 (9th Cir. 2011), cert. granted
in part, ___U.S.___, 132 S. Ct. 1088 (2012).
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Reporter’s Transcript on Appeal (RT) at 70. The judge explained that, based on the transcript of

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the preliminary hearing, there was “ample indication that there’s venue here.” Id. The judge

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informed the parties, however, that he was willing to hear argument on the motion. Id.

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Petitioner’s counsel objected to the use of evidence introduced at the preliminary hearing

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to establish venue. Id. at 71. He argued that such evidence was inadmissible hearsay. Id. The

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judge then noted that petitioner’s counsel had not provided any evidence in support of his motion

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to dismiss. Id. Petitioner’s counsel responded that since the burden to show proper venue rested

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on the prosecution, petitioner should prevail on his motion because neither side had presented

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any evidence. Id. at 72. Counsel explained that he had “made several attempts to get one of my

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witnesses here today and I have an unserved subpoena here for Ms. Kenyon.” Id. He stated that

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if the prosecution had been prepared to proceed with an evidentiary hearing on the motion

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immediately, he would “ask for a continuance based on that unserved subpoena.” Id. Counsel

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further requested that “if the court intends to deny my motion, at the – at the very least, I would

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ask the opportunity to – for it not to be with prejudice and that I can bring it in trial for the

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motion in limine for a full evidentiary hearing.” Id. at 72-73. After hearing argument from the

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prosecutor, the presiding judge modified his earlier expressed tentative ruling on the motion to

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dismiss, as follows:

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THE COURT: Why don’t I do this. Here’s a new – a new and
improved, perhaps, tentative ruling. I’m going to deny your
motion without prejudice to be presented in limine without any
more filings, unless you have something more you want to file.

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Id. at 73-74.

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On August 21, 2007, petitioner’s motion to dismiss for lack of venue was heard in the

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trial court before the trial judge. Id. at 85. The prosecutor introduced the preliminary hearing

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and direct testimony of victim Suzanne Rodriguez, and letters written by petitioner to

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Rodriguez’s cat, Gracie. Id. at 85, 94-95, 99-112. Petitioner’s counsel presented the testimony

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of Kelly Bohannan, Candi Kenyon, and Chester Ashmun in support of his motion. Id. at 123,
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147, 161. After hearing the evidence and arguments of counsel, the trial court denied

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petitioner’s motion for change of venue, ruling as follows:

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Remembering that the burden of proof on this issue is not proof
beyond a reasonable doubt, so I’m coming to no conclusions about
the guilt or innocence of Mr. Mize with regards to the alleged
assault or criminal threat, but I do conclude that by a
preponderance of the evidence, the greater weight of evidence, that
at least a portion of the assaultive behavior occurred in the vehicle.
I think the testimony of Miss Rodriguez is consistent with that; the
physical evidence, the placement of the blood inside the vehicle, is
consistent with that. I find the testimony of Miss Kenyon and Mr.
Bohannan to be less than fully credible. And to the extent that it –
if this testimony disagrees with the physical evidence and the
testimony of Miss Rodriguez, I find greater support from Miss
Rodriguez’s testimony.

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So by a preponderance, this motion is denied. So, the case is going
to be tried here.

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Id. at 169.
In claim one contained in the instant petition, petitioner argues that his trial counsel

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improperly failed to call witnesses, especially Candi Kenyon, or present any other evidence,

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including a tape recorded interview with the victim, at the June 11, 2007 hearing on his motion

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for change of venue. Dckt. 1 (hereinafter Pet.) at 11-24. He argues that his counsel was

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unprepared “for the motion hearing at all, as he filed the motion and did not follow up with any

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subpoenas or anything.” Id. at 16. In the traverse, petitioner argues that his trial counsel

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improperly “said that he had attempted to serve witnesses with subpoenas when he in fact did

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not.” Dckt. 21 at 9. Petitioner concedes that defense witnesses were called at the August 21,

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2007 hearing on the motion to dismiss. However, he appears to be claiming that if his trial

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counsel had presented his witnesses at the first hearing on June 11, he would have prevailed on

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the motion because the prosecutor was unprepared to present evidence at that time and would not

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have been able to rebut evidence in support of the motion. Pet. at 18. In the traverse, petitioner

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argues that his trial counsel rendered ineffective assistance in “ask[ing] for a continuance after

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the judge balked at making a ruling on the motion.” Dckt. 21 at 9. He states, “it was not
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[counsel’s] duty to ask for a continuance to allow the prosecution time to prepare Rodriguez’s

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story . . . .” Id.

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Petitioner contends that the continuance of the motion hearing unfairly allowed the

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prosecutor to obtain evidence in support of his opposition to the motion. Pet. at 18. He argues

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that, although “there was eventually enough evidence” at the subsequent hearing on the motion

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to demonstrate venue in Shasta County, there is a reasonable probability that the motion would

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have been granted by the original presiding judge on June 11, 2007 had his trial counsel been

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prepared to introduce the testimony of witnesses and other evidence at that time. Id. at 23.

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Petitioner argues that he suffered prejudice from the actions of his trial counsel because there is

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no evidence Trinity County would have pursued his case if it had been transferred there. Id. at

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Finally, petitioner argues that his trial counsel rendered ineffective assistance in failing to

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file a writ of mandate following the trial court’s June 11, 2007 tentative ruling denying the

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motion to dismiss. Id. at 12, 14, 18, 21-22. He states that he was “further prejudiced because the

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failed motion and counsel’s failure to bring it up in an extraordinary writ cause [sic] petitioner to

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waive his rights to trial in order to retain his right to Direct Appeal of the venue issue.” Id. at 23.

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Petitioner summarizes his arguments in claim one as follows:

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There can be no tacticle [sic] decision or choice in not presenting
evidence in support of a motion to dismiss when you have that
evidence at hand and the judge issued a tentative ruling
denyingdenying [sic] your motion because you’ve not presented
any evidence.
There can, further, be no tacticle [sic] choice for not presenting the
denial of that motion to an appellate court for review if he was, in
fact in the right about it being the People’s burden to prove venue.
If counsel had presented any evidence in support of his motion, it
would have been granted by the sheer prepoderance [sic] of that
evidence, assuming, arguendo, that the motion was still denied,
even after presenting evidence that showed that the crimes
occurred in another county, out of the vehicle, while stopped to
pee on the side of the road, the petitioner’s counsel still would
have had meritorious grounds for granting a Petition for Writ of
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Mandate and therefore should have filed one.

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Prejudice is plain here because the failed motion to dismiss is the
reason why the petitioner pled guilty and got 19 years in prison.

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Had counsel acted reasonably under prevailing professional norms,
then there is beyond a doubt a reasonable probability that a more
favorable outcome would have been reached given the fact that he
acted reasonably, as outlined, then the motion would have been
granted, and that was the goal of this motion to dismiss for lack of
venue.

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Id. at 15-16.

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In claim two of the instant petition, petitioner argues that his trial counsel rendered
ineffective assistance in failing to effectively impeach victim Rodriguez at the August 21, 2007

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hearing on his motion to dismiss for lack of venue. Id. at 26-34. Petitioner contends that

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Rodriguez’s prior recorded statement to police contradicted her testimony at the hearing on the

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motion to dismiss and corroborated the testimony of the defense witnesses with regard to the

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county in which the assault and threats took place. Id. Petitioner faults his trial counsel for

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failing to impeach Rodriguez with her statements during the taped interview. Id.

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Petitioner also argues that his trial counsel was ineffective in failing to obtain other

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witnesses and evidence to support his arguments at the hearing on the motion to dismiss,

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including nurses at the medical center where Rodriguez was taken and evidence concerning a

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“Sweet Deal” offered to Rodriguez by the prosecutor in exchange for her testimony that the

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assault and threats took place in Shasta County. Id. at 27. Petitioner argues that his trial counsel

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failed to demonstrate that Rodriguez was “lying” when she testified as to where the alleged

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abuse took place. Id. at 28-32. He argues that he suffered prejudice from counsel’s ineffective

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performance because “simply put, without Rodriguez’s testimony the judge would have had to

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have granted the motion to dismiss for lack of venue.” Id. at 32. In the traverse, petitioner

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claims that he was “deprived of his constitutional right to effective assistance of counsel by

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counsel totally giving up on the case and not preparing for trial.” Dckt. No. 21 at 2.

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All of the instances of ineffective assistance of trial counsel alleged by petitioner in

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claims one and two, described above, are concerned with counsel’s prosecution of the motion to

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dismiss and occurred prior to the entry of petitioner’s plea of nolo contendere. These claims are

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not directly related to counsel’s advice regarding whether to accept the plea offer. The law is

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clear that petitioner may not raise claims of deprivation of his constitutional rights that occurred

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prior to his plea. To the extent that a petitioner seeks to claim that he received ineffective

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assistance of counsel premised on his attorney’s allegedly faulty advice, he may do so only based

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upon that advice as it related to the decision to enter his guilty plea. Any ineffective assistance

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claims relating to other, earlier actions by his counsel are barred by the holding in Tollett v.

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Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendant has solemnly admitted in

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open court that he is in fact guilty of the offense with which he is charged, he may not thereafter

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raise independent claims relating to the deprivation of constitutional rights that occurred prior to

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the entry of the guilty plea”). See also McMann v. Richardson, 397 U.S. 759, 770-71 (1970);

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Ortberg v. Moody, 961 F.2d 135, 137 (9th Cir. 1992) (“petitioner’s nolo contendere plea

15

precludes him from challenging alleged constitutional violations that occurred prior to the entry

16

of that plea”); Hudson v. Moran, 760 F.2d 1027, 1029-30 (9th Cir. 1985) (voluntary and

17

intelligent guilty plea precludes federal habeas relief based upon “independent claims” of pre-

18

plea constitutional violations). See also Givens v. Sisto, No. C 08-05231 JW (PR), 2010 WL

19

1875766 (N.D. Cal. May 7, 2010) (“the only challenges left open in federal habeas corpus after a

20

guilty plea is the voluntary and intelligent character of the plea and the nature of the advice of

21

counsel to plead.”). Because the instances of ineffective assistance of trial counsel alleged by

22

petitioner in claims one and two occurred prior to the entry of his plea of nolo contendere,

23

petitioner may not pursue these claims in this federal habeas proceeding. Tollett, 411 U.S. 258.6

24
25
26

6

Even if these claims were not barred, petitioner has failed to demonstrate prejudice.
There is no significant evidence in the record that petitioner would have prevailed on his motion
to dismiss even if his trial counsel had presented the evidence that petitioner suggests he should
13

1

2. Ineffective Assistance of Counsel/Advice to Plead Guilty

2

In ground three, petitioner claims that his plea of nolo contendere was involuntary

3

because his trial counsel falsely told him he had to plead guilty in order to be able to contest the

4

trial court’s finding that venue was proper in Shasta County. Pet. at 36-38. According to

5

petitioner, his trial counsel told him that “if the case went to trial then there would be no appeal

6

on the venue issue” and that “the venue issue could not be revisited at trial.” Id. at 36. Petitioner

7

states that he “now knows that the venue issue could have been tried to the jury.” Id. Petitioner

8

claims that, after receiving this advice from counsel, he decided to enter a plea in order to

9

“preserve the venue issue for appeal.” Id. at 36, 47. Petitioner also states that he “would have

10

taken the case to trial had he been properly advised about the prosecution’s burden of proving

11

venue by a preponderance of the evidence to a jury.” Id. at 37.

12

Petitioner also claims that his trial counsel “assured petitioner that the venue issue would

13

be overturned on appeal and that petitioner could be tried in Trinity County.” Id. He claims that

14

he “pled guilty because [his trial counsel] told him that his case would get overturned on appeal

15

by the appellate court.” Id. He states, “had counsel properly advised the petitioner about his

16

options and not wrongly told him to that [sic] he had to plead guilty in order to have his case

17

overturned on appeal, the petitioner would have taken his case to trial.” Id. Petitioner has

18

attached his own declaration in support of this claim, in which he essentially repeats the

19

allegations set forth above. Id. at 47-50. In essence, petitioner is attacking the voluntary and

20

intelligent character of his guilty plea by alleging that the advice he received from his counsel

21

during the plea negotiation process was inadequate.

22

To support a claim of ineffective assistance of counsel, a petitioner must first show that,

23

considering all the circumstances, counsel’s performance fell below an objective standard of

24

reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). After a petitioner

25
26

have presented, at either of the hearings on the motion.
14

1

identifies the acts or omissions that are alleged not to have been the result of reasonable

2

professional judgment, the court must determine whether, in light of all the circumstances, the

3

identified acts or omissions were outside the wide range of professionally competent assistance.

4

Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). The relevant question under AEDPA “is

5

not whether counsel’s actions were reasonable, but whether there is any reasonable argument

6

that counsel satisfied Strickland’s deferential standard. Richter, 131 S. Ct. at 778 -779. When

7

evaluating counsel’s performance under the first step of Strickland, federal courts must apply a

8

strong presumption that counsel “rendered adequate assistance and made all significant decisions

9

in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690.

10

The United States Supreme court has recently confirmed that the Sixth Amendment right

11

to counsel “extends to the plea-bargaining process.” Lafler v. Cooper, ___ U.S. ___, 132 S.Ct.

12

1376, 1384 (2012). To prevail on such a claim, a petitioner must show that: (1) counsel’s

13

representation fell below the range of competence demanded of attorneys in criminal cases, and

14

(2) “there is a reasonable probability that, but for counsel's errors, he would not have pleaded

15

guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 56 (1985). A

16

petitioner must also demonstrate “‘gross error on the part of counsel,’” Turner v. Calderon, 281

17

F.3d 851, 880 (9th Cir. 2002) (quoting McMann, 397 U.S. at 772), and that the advice he

18

received from his counsel was “so incorrect and so insufficient that it undermined his ability to

19

make an intelligent decision about whether to accept the [plea] offer.’” Id. (quoting United States

20

v. Day, 969 F.2d 39, 43 (3rd Cir. 1992)).

21

Petitioner has made self-serving, unsupported, and somewhat confusing allegations in his

22

petition regarding the advice that his trial counsel purportedly gave him about his options for

23

appealing the trial court’s ruling on his motion to dismiss for lack of venue. These allegations

24

are insufficient to establish that trial counsel rendered ineffective assistance. “Self-serving

25

statements by a defendant that his conviction was constitutionally infirm are insufficient to

26

overcome the presumption of regularity accorded state convictions.” Turner, 281 F.3d at 881
15

1

(citations omitted). Several circuit courts have concluded that a habeas petitioner must show

2

some objective evidence other than his unsupported assertions to establish that he suffered

3

prejudice in this context. See Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003) (citing

4

United States v. Gordon, 145 F.3d 376, 379-80 (2d Cir. 1998)); Toro v. Fairman, 940 F.2d 1065,

5

1068 (7th Cir. 1991) (requiring further “objective evidence” that a petitioner would have

6

accepted a plea offer); Diaz v. United States, 930 F.2d 832, 835 (11th Cir. 1991) (petitioner’s

7

“after the fact testimony concerning his desire to plead, without more, is insufficient to establish

8

that but for counsel’s alleged advice or inaction, he would have accepted the plea offer).

9

The record before the court belies petitioner’s assertion that he would have proceeded to

10

trial if he had been correctly advised about the procedure for appealing the trial court’s ruling on

11

his venue motion. Under the circumstances presented here, it is not plausible that concern about

12

the venue of his trial would have caused petitioner to pass up a favorable plea offer. First, even

13

if petitioner were somehow able to prevail at trial on a challenge to the trial court’s ruling on his

14

motion to dismiss for lack of venue, he would simply be retried on the same charges in Trinity

15

County. Petitioner’s assertion that Trinity County would be uninterested in pursuing his case,

16

and would simply let it drop, is completely speculative and is not supported by anything in the

17

record. In addition, the court notes petitioner’s assertion that his trial counsel rendered

18

ineffective assistance when he assured petitioner that he would prevail on his appeal of the venue

19

issue and “could be tried in Trinity County.” Pet. at 37. This allegation contradicts petitioner’s

20

assertion that he believed he would not be retried in Trinity County if venue was found to be

21

improper in Shasta County. In light of the above, petitioner has failed to demonstrate that there

22

is a reasonable probability he would have rejected a reasonable plea offer and insisted on going

23

to trial if he had been correctly advised that he could raise the venue issue again at trial.7

24

////

25
7

26

The court also notes that petitioner has not cited any authority for his vague assertion
that “the venue issue could have been tried to the jury.”
16

1

Further, the state court record reflects that petitioner had an extensive criminal

2

background and was facing a lengthy sentence if he were convicted after a trial. RT at 191.

3

Indeed, the sentence imposed on petitioner in the instant case runs consecutively to another

4

sentence of twenty-six years to life that he was already serving at the time of his conviction in

5

this case. Id. at 191, 195. As a result of his plea, petitioner received a determinate sentence of

6

only nineteen years in prison, despite admitting that he had one prior strike and three prior

7

serious felony convictions. Id. at 191. On the other hand, had petitioner chosen to go to trial the

8

evidence against him was substantial, even overwhelming. Further, there was little likelihood

9

petitioner would have prevailed in the trial court on a motion to dismiss for lack of venue, given

10

the substantial evidence introduced at the hearing on petitioner’s pretrial motion to dismiss

11

which supported the trial judge’s finding that venue was appropriate in Shasta County. In light

12

of these circumstances, petitioner’s self-serving statement that he would have risked a much

13

larger sentence on the unlikely chance that he would prevail on a venue argument he had already

14

raised and lost is not sufficient to establish that he suffered prejudice from his counsel’s

15

allegedly incorrect advice. In short, petitioner has failed to show that “the outcome of the plea

16

process would have been different with competent advice.” Lafler, 132 S.Ct. at 1384.

17

Petitioner has also failed to demonstrate that his trial counsel’s advice during the plea

18

negotiation process was deficient. There is no dispute that petitioner’s trial counsel correctly

19

advised him about the plea offer and its terms, as well as the sentence he faced if he proceeded to

20

trial. The plea colloquy confirms that petitioner was so advised. RT at 191-203. There is also

21

no dispute that petitioner knowingly and voluntarily waived his constitutional rights in foregoing

22

his right to a trial on the charges against him. Id. In addition, petitioner stated at the change of

23

plea hearing that no promises had been made to him other than those contained on the change of

24

plea form. Id. at 195. This statement in open court casts doubt on petitioner’s assertion that his

25

trial counsel promised him he would prevail on “the venue issue” on appeal and that his case

26

would “get overturned on appeal by the appellate court.” In short, petitioner has failed to
17

1

demonstrate that his trial counsel committed “gross error” in connection with the plea process or

2

that the advice he received from his counsel was “so incorrect and so insufficient that it

3

undermined his ability to make an intelligent decision about whether to accept the [plea] offer.’”

4

Turner, 281 F.3d at 880. Petitioner has also failed to overcome the strong presumption that his

5

trial counsel’s advice fell within the “wide range” of professional assistance.

6

To the extent petitioner is arguing his trial counsel overestimated the chances of success

7

on an appeal of the denial of his motion to dismiss, his claim lacks merit and should be denied.

8

A “mere inaccurate prediction, standing alone, would not constitute ineffective assistance.” Iaea

9

v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986).

10

For all of these reasons, petitioner has failed to demonstrate that the California Supreme

11

Court’s ruling rejecting this ineffective assistance of counsel claim is based on an unreasonable

12

application of Strickland. Accordingly, petitioner is not entitled to federal habeas relief.

13
14

3. Due Process Violation
In his final ground for relief, petitioner claims that the California Superior Court’s

15

“practice” of “assigning habeas corpus petition [sic], challenging a ruling or order, to the same

16

judge who made the original ruling is improper, prohibited by statute, and denied the petitioner

17

his right to impartial and fair review of his habeas claims.” Pet. at 40. Petitioner explains that

18

the judge who denied his motion to dismiss for lack of venue was the same judge who ruled on

19

his habeas petition filed in the California Superior Court, in which he challenged the ruling on

20

the motion to dismiss. Id. Petitioner argues that this situation violated state law and his federal

21

right to due process.

22

The state court record reflects that Judge Bradley L. Boeckman presided over petitioner’s

23

trial proceedings on August 21, 2007, when the motion to dismiss for lack of venue was denied.

24

Judge Boeckman was also the judge who denied petitioner’s subsequent habeas petition filed in

25

the Shasta County Superior Court. CT at 252; Resp.’s Lodg. Doc. 8. In that habeas petition,

26

petitioner raised three claims, arguing that his trial counsel rendered ineffective assistance in
18

1

connection with his advice to petitioner to enter a plea and in his prosecution of the defense

2

motion to dismiss for lack of venue. In his ruling on the habeas petition, Judge Boeckman

3

erroneously stated that petitioner was challenging “an issue (improper venue) that was raised on

4

appeal.” Resp.’s Lodg. Doc. 8. In fact, petitioner’s claims did not constitute a direct challenge

5

to Judge Boeckman’s ruling on the motion to dismiss. Petitioner asserts that “although none of

6

the grounds before the Superior Court were appeals of orders or rulings by Judge Boeckman in

7

actuality, Judge Boeckman believed they were as cand [sic] be evidenced by [the denial of the

8

habeas petition].” Pet. at 41. Petitioner concludes, “the fact that [Judge Boeckman] believed he

9

was reviewing his own ruling or order is enough to cast a shadow of impropriety upon his entire

10

ruling . . . .” Id. Petitioner requests that this court “remand this petition to the Superior Court

11

with instructions that it be assigned to a different judge for consideration of the grounds stated

12

within.” Id. at 42.

13

Petitioner has failed to demonstrate that the denial of his habeas petition by Judge

14

Boeckman violated any of his federal constitutional rights. As noted above, the federal writ is

15

not available for alleged error in the application of state law, and habeas corpus cannot be

16

utilized in federal court to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377

17

(1972). See also Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) (“[W]e have repeatedly

18

held that ‘it is not the province of a federal habeas court to reexamine state-court determinations

19

on state-law questions.”); Rivera v. Illinois, 556 U.S. 148, 158 (2009) (“[A] mere error of state

20

law . . . is not a denial of due process”) (quoting Engle v. Isaac, 456 U.S. 107, 121, n.21 (1982)

21

and Estelle v. McGuire, 502 U.S. 62, 67, 72-73 (1991)); Bradshaw v. Richey, 546 U.S. 74, 76

22

(2005) “a state court’s interpretation of state law . . . binds a federal court sitting in federal

23

habeas”). Whether or not Judge Boeckman violated state law in ruling on petitioner’s state

24

habeas petition, or whether the judge should have recused himself from deciding petitioner’s

25

state habeas petition, are questions of state law which are not cognizable in the instant federal

26

habeas petition.
19

1

Petitioner has not cited any federal authority prohibiting a state court judge from ruling

2

on a petition for writ of habeas corpus where that judge presided over the matters that are the

3

subject of the petition. For this reason, petitioner has failed to demonstrate that the decision of

4

the California Supreme Court rejecting this due process claim is contrary to or an unreasonable

5

application of United States Supreme Court authority, as required by AEDPA. As stated by one

6

district court:

7
8
9
10
11
12

Petitioner does not cite and this court is unable to find any
Supreme Court authority prohibiting a state court judge from
considering a habeas petition when that judge presided over the
trial that is the subject of the petition. To the contrary, the court
notes that in the federal equivalent to this situation, Rule 4(a) of
the Federal Rules Governing § 2255 Habeas Proceedings directs
that a habeas petition “be presented promptly to the judge of the
district court who presided at the movant's trial and sentenced him
. . . .” (footnote omitted.) Therefore, it cannot be said, under
AEDPA, that there is clearly established Supreme Court precedent
addressing this issue, and as such, this court must defer to the state
court's decision.

13
14

Moore v. Clark, No. 2:07-cv-423 BJR, 2010 WL 3125979, *13 (E.D. Cal. Aug. 6, 2010).

15

Cf. Clemmons v. Wolfe, 377 F.3d 322, 329 (3rd Cir. 2004) (Third Circuit exercised its

16

supervisory power to require that federal district judges recuse themselves from participating in a

17

28 U.S.C. § 2254 habeas petition where the petitioner raises an issue concerning the trial or

18

conviction over which that judge presided in his/her former capacity as a state court judge).

19

The court also notes that after Judge Boeckman denied the claims contained in

20

petitioner’s state habeas petition, petitioner raised the same claims again in a petition for writ of

21

habeas corpus filed in the California Supreme Court. “State habeas petitions in California are

22

presented to the state supreme court as original petitions, rather than as requests for review of

23

lower-court rulings denying relief; accordingly, the Supreme Court of California must actually

24

adjudicate each habeas petition.” Williams v. Cavazos, 646 F.3d 626, 634-35 (9th Cir. 2011).

25

Summary denials of original petitions for habeas corpus filed in the California Supreme Court

26

should “be presumed” to be “adjudicated . . . on the merits.” Richter, 131 S.Ct. 174-75. In other
20

1

words, petitioner’s ineffective assistance of counsel claims were exhausted in state court through

2

a habeas petition filed in the California Supreme Court, which was denied on the merits by

3

judges other than Judge Boeckman. Under these circumstances, petitioner cannot demonstrate

4

that his state habeas proceedings were rendered fundamentally unfair simply because the judge

5

who presided over his trial ruled on the habeas petition he filed in the Superior Court.

6

For all of these reasons, petitioner is not entitled to relief on this due process claim.

7

C. Request for Evidentiary Hearing

8

Petitioner requests an evidentiary hearing on the claims raised in the instant federal

9
10
11
12
13

habeas petition. Dckt. 21 at 3.
Pursuant to 28 U.S.C. § 2254(e)(2), an evidentiary hearing is appropriate under the
following circumstances:
(e)(2) If the applicant has failed to develop the factual basis of a
claim in State court proceedings, the court shall not hold an
evidentiary hearing on the claim unless the applicant shows that-

14

(A) the claim relies on-

15

(I) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or

16
17

(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and

18
19
20
21

(B) the facts underlying the claim would be sufficient to establish
by clear and convincing evidence that but for constitutional error,
no reasonable fact finder would have found the applicant guilty of
the underlying offense[.]
Under this statutory scheme, a district court presented with a request for an evidentiary

22

hearing must first determine whether a factual basis exists in the record to support a petitioner’s

23

claims and, if not, whether an evidentiary hearing “might be appropriate.” Baja v. Ducharme,

24

187 F.3d 1075, 1078 (9th Cir. 1999). See also Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir.

25

2005); Insyxiengmay v. Morgan, 403 F.3d 657, 669-70 (9th Cir. 2005). A petitioner requesting

26

an evidentiary hearing must also demonstrate that he has presented a “colorable claim for relief.”
21

1

Earp, 431 F.3d at 1167 (citing Insyxiengmay, 403 F.3d at 670, Stankewitz v. Woodford, 365 F.3d

2

706, 708 (9th Cir. 2004) and Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001)). To show

3

that a claim is “colorable,” a petitioner is “required to allege specific facts which, if true, would

4

entitle him to relief.” Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998) (internal quotation

5

marks and citation omitted).8

6

The court concludes that no additional factual supplementation is necessary in this case

7

and that an evidentiary hearing is not appropriate with respect to the claims raised in the instant

8

petition. The facts alleged in support of these claims, even if established at a hearing, would not

9

entitle petitioner to federal habeas relief. Further, petitioner has not identified any factual

10

conflict that would require this court to hold an evidentiary hearing in order to resolve.

11

Therefore, petitioner’s request for an evidentiary hearing should be denied.

12

III. Conclusion

13
14

For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner’s
application for a writ of habeas corpus be denied.

15

These findings and recommendations are submitted to the United States District Judge

16

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

17

after being served with these findings and recommendations, any party may file written

18

objections with the court and serve a copy on all parties. Such a document should be captioned

19

“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

20

within the specified time may waive the right to appeal the District Court’s order. Turner v.

21

Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In

22

his objections petitioner may address whether a certificate of appealability should issue in the

23

event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing

24
8

25
26

The Supreme Court has recently held that federal habeas review under 28 U.S.C.
§ 2254(d)(1) “is limited to the record that was before the state court that adjudicated the claim
on the merits” and “that evidence introduced in federal court has no bearing on” such review.
Pinholster, 131 S. Ct. at 1398.
22

1

Section 2254 Cases (the district court must issue or deny a certificate of appealability when it

2

enters a final order adverse to the applicant).

3

DATED: March 28, 2013.

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