Jones v. Cates

Filing 25

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/29/2015 RECOMMENDING that petitioner's 1 application for writ of habeas corpus be denied. Referred to Judge Troy L. Nunley; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES B. JONES,

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No. 2:12-cv-1647-TLN-EFB P

Petitioner,
vs.

FINDINGS AND RECOMMENDATIONS

MATTHEW L. CATE,

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Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. He challenges a 2010 judgment of conviction entered against him

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pursuant to his plea of no contest in the Solano County Superior Court. He seeks federal habeas

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relief on the alleged grounds that his trial and appellate counsel rendered ineffective assistance

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and that his plea of no contest was involuntary. Upon careful consideration of the record and the

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applicable law, it is recommended that petitioner’s application for habeas corpus relief be denied.

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I. Background

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In a pre-sentence report, petitioner’s probation officer described the facts underlying the
charges as follows:
Count 1: The following is summarized from Fairfield Police
Department crime report #08-08216, dated 02 June 2008. The
victim observed a subject, later identified as the defendant, walking
out of her garage holding her husband’s DeWalt drill case in his
hand. She told the defendant, “You better put that back.” The
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defendant ran to a vehicle and drove off with the drill case. The
victim was able to describe the vehicle, a blue Cherokee Jeep, and
provided the license plate number to the police.
Police responded to the address linked to the license plate. The
suspect vehicle and defendant were located at the residence. The
defendant was in the threshold of the driveway and garage area
when he was instructed to sit on the curb in front of the residence.
The defendant initially walked into the garage and stood between
the front of the suspect vehicle and a workbench, but was
subsequently detained. The victim was brought to this residence for
a field identification. She was able to identify the defendant as the
person who was carrying the drill case from her garage.
The defendant advised officers he was on parole. Inside the garage,
a DeWalt drill case was located. The drill and a battery were
located in the case. The serial number of the battery in the case
matched a serial number of another battery at the victim’s home.
The property was subsequently returned to the victim.
At the Fairfield Police Department, the defendant was given his
Miranda admonishment. He stated he did not take the drill or case.
He stated they belonged to him and were not stolen. A parole hold
was subsequently placed on the defendant.

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Count 2/Dismissed with Harvey Waiver: The following is
summarized from Fairfield Police Department crime report #0817120, dated 03 December 2008. The victim was sleeping in his
residence when he heard his dog barking, which suggested someone
was near his home. He looked out his window and saw a white
Chevrolet pickup truck parked on the street. When he exited his
front door, he saw an individual, later identified as the defendant,
attempting to remove an air compressor from his backyard into his
front yard. The air compressor was stored in a latched shed in his
backyard.
The victim confronted the defendant. The defendant dropped the
air compressor and fled to the truck and drove off. The victim was
able to obtain the license plate of the vehicle. Less than a minute
later, the defendant returned and offered the victim money to not
report this incident to the police. The victim did not accept the
money and advised the defendant he was going to call the police.
The victim also noticed a chainsaw was missing, but did not know
if the defendant took it.

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As the police responded to the address that was linked to the truck,
the truck was seen in the area and a traffic stop was initiated. A
record check revealed the defendant was on parole, which he
confirmed. The defendant was detained and a parole search was
conducted. The search did not reveal any contraband material.

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The victim was able to identify the defendant during an in-field
identification even though the defendant changed his clothing. The
defendant was taken into custody and given his Miranda
admonishment. The defendant stated, “It wasn’t me. I don’t got no
statement.” A parole hold was also placed on the defendant.

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Resp’t’s Lodg. Doc. 6 at 174-75.
On October 23, 2009, the Solano County District Attorney charged petitioner with two

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counts of burglary and alleged that petitioner had served four prior prison terms, had suffered one

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prior strike conviction and two prior serious felony convictions, and was on bail when he

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committed one of the burglaries. Resp’t’s Lodg. Doc. 5 at 126-29. On December 9, 2009,

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petitioner pled no contest to one count of burglary and admitted the prior strike and three prior

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prison term allegations. Id. at 141-46. On June 30, 2010, the trial court sentenced petitioner to a

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stipulated sentence of 11 years in state prison and ordered the payment of several restitution fines.

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Id. at 187-89, 193.

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Petitioner appealed his judgment of conviction to the California Court of Appeal for the

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First Appellate District, claiming that the abstract of judgment should be modified to accurately

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reflect the restitution fines orally imposed by the trial court at sentencing. Resp’t’s Ex. 1. The

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Court of Appeal modified the abstract of judgment to correct the amount of the restitution fines

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and affirmed the judgment as modified. Id.

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Petitioner subsequently filed a petition for writ of habeas corpus in the California Superior

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Court, claiming that his plea was involuntary and that his trial and appellate counsel rendered

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ineffective assistance. ECF No. 14-13. The Superior Court denied that petition in a reasoned

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decision dated November 4, 2011. Id.

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Petitioner raised the same claims in petitions for a writ of habeas corpus filed in the

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California Court of Appeal and California Supreme Court. Resp’t’s Lodg. Docs. 2, 3. Those

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petitions were summarily denied. ECF No. 14-14; Resp’t’s Lodg. Doc. 3.

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II. Analysis

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A. Standards of Review Applicable to Habeas Corpus Claims
An application for a writ of habeas corpus by a person in custody under a judgment of a
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, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire,

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

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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

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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 last reasoned state court decision.

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Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, ___ U.S.

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___, 132 S.Ct. 38 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v.

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Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, “circuit court precedent may be persuasive in

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determining what law is clearly established and whether a state court applied that law

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unreasonably.” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir.

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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 the

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

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decisions, but unreasonably applies that principle to the facts of the prisoner’s case.1 Lockyer v.

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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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Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002

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(9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply because that

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court concludes in its independent judgment that the relevant state-court decision applied clearly

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established federal law erroneously or incorrectly. Rather, that application must also be

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unreasonable.” Williams, 529 U.S. at 412; accord Schriro v. Landrigan, 550 U.S. 465, 473

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(2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its independent

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review of the legal question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”).

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“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as

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‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.

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Richter, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

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Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner

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must show that the state court’s ruling on the claim being presented in federal court was so

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lacking in justification that there was an error well understood and comprehended in existing law

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beyond any possibility for fairminded disagreement.” Richter,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). If

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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.” Richter, 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)). Similarly, when a state court decision on a petitioner’s claims rejects some claims

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but does not expressly address a federal claim, a federal habeas court must presume, subject to

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rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, 133 S. Ct.

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1088, 1091 (2013).

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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 whether

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a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no

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

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reasonable basis for the state court to deny relief.” Richter, 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).

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B. Petitioner’s Claims

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1. Ineffective Assistance of Trial Counsel

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In his first ground for relief, petitioner claims that his trial counsel rendered ineffective

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assistance in his handling of a pretrial motion to suppress and in failing to obtain a ruling

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prohibiting “in-court identification.” ECF No. 1 at 6; ECF No. 1-1 at 6-7; ECF No. 21-1 at 12-

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14. Petitioner raised this claim for the first time in the California Superior Court, which denied it

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on the grounds that “[a]fter a criminal defendant has entered a plea, he may only attack the

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voluntary and intelligent character of the plea.” ECF No. 14-13 at 3. This court agrees with the

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reasoning of the Superior Court.

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Trial counsel’s performance on the motion to suppress, including any failure to obtain a

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ruling precluding in-court identification of petitioner took place prior to the entry of petitioner’s

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plea of no contest. The law is clear that petitioner may not raise claims of deprivation of his

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constitutional rights that occurred prior to his plea. “When a criminal defendant has solemnly

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

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thereafter raise independent claims relating to the deprivation of constitutional rights that

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occurred prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973).

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See also McMann v. Richardson, 397 U.S. 759, 770-71 (1970); Moran v. Godinez, 57 F.3d 690,

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700 (9th Cir. 1994) (“As a general rule, one who voluntarily pleads guilty to a criminal charge

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may not subsequently seek federal habeas relief on the basis of pre-plea constitutional

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violations”), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003);

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

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

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

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

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constitutional violations); United States v. DeVaughn, 694 F.3d 1141, 1153 (10th Cir. 2012) (“A

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guilty plea waives all defenses except those that go to the court’s subject-matter jurisdiction and

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the narrow class of constitutional claims involving the right not to be haled into court.”).

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To the extent that petitioner is claiming he received ineffective assistance of counsel

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premised on his attorney’s allegedly faulty advice, he may do so only based upon that advice as it

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related to the decision to enter his no contest plea. Any ineffective assistance claims relating to

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other, earlier actions by his counsel are barred by Tollett v. Henderson. See Moran, 57 F.3d at

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700. See also Givens v. Sisto, No. C 08-05231 JW (PR), 2010 WL 1875766, at *1 (N.D. Cal.

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May 7, 2010) (“the only challenges left open in federal habeas corpus after a guilty plea is the

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voluntary and intelligent character of the plea and the nature of the advice of counsel to plead.”).

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Petitioner does not challenge the advice of trial counsel as it related to his decision to plead no

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contest. Accordingly, he is not entitled to relief on his claim of ineffective assistance of trial

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counsel.
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2. Involuntary Plea

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Petitioner’s next ground for relief is a claim that his plea of no contest was involuntary.

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ECF No. 1-1 at 10-17. He argues that the record does not “affirmatively show” that he waived

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his constitutional rights before pleading no contest to the burglary and admitting the prior

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conviction allegations. He states that he agreed to enter that plea only because he was “in

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disbelief” that the trial court had denied his motion for new trial counsel. Id. at 10-11.

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The California Superior Court denied this claim on the procedural ground that it should

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have been raised on direct appeal. ECF No. 14-13 at 2. The California Court of Appeal and

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California Supreme Court adopted this reasoning when each of those courts summarily denied the

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habeas petitions. Stanley, 633 F.3d at 859. Because the California courts denied petitioner’s

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claim on procedural grounds and not on the merits of the claim, AEDPA’s deferential standard

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does not apply and this court must review the claim de novo. See Miranda v. Bennett, 322 F.3d

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171, 178 (2d Cir. 2003) (§ 2254(d) requires deference only to state court adjudication on the

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merits and not to a disposition on procedural or other grounds); Neal v. Puckett, 286 F.3d 230,

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235 (5th Cir. 2002) (en banc) (defining “adjudication on the merits” to be a substantive, rather

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than a procedural, decision); Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999) (court declined to

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apply deferential AEDPA standard because of state court’s awareness of, and explicit reliance on,

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a procedural ground to dismiss petitioner’s claim).2

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a. Background
The state court record reflects that petitioner filed a pre-trial motion for substitute counsel
(Marsden motion). Resp’t’s Ex. 7 at 91-92. Petitioner planned that if his Marsden motion was

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In the part of its opinion rejecting petitioner’s claims of ineffective assistance of
counsel, the California Superior Court made the following statement: “Petitioner’s underlying
criminal file (FCR261338) includes a plea form that indicates that Petitioner voluntarily and
intelligently entered his plea.” ECF No. 14-13 at 3. The Superior Court also stated that petitioner
had failed to set forth “facts or evidence to support that he did not voluntarily and intelligently
enter the plea.” Id. at 3-4. Assuming arguendo that these statements constitute a decision on the
merits of petitioner’s claim that his plea of no contest was involuntary, he is still not entitled to
federal habeas relief under AEDPA. As discussed below, the state court’s rejection of this claim
is consistent with relevant federal law and is based on a reasonable interpretation of the facts of
this case.
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denied he would enter a plea of no contest to some of the charges against him. Id. at 91-92, 95.

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To that end, petitioner had already filled out and signed a negotiated plea agreement, including a

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waiver of rights form, which his counsel brought to court on the day of the hearing on the

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Marsden motion. ECF No. 1-9 at 2. When the Marsden motion was denied, petitioner’s trial

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counsel immediately informed the court that petitioner would enter a plea. Id. The following

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colloquy then occurred:

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THE COURT: I didn’t anticipate that. Which case is he pleading
to, the 269832?

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MR. BARRETT (petitioner’s counsel): Your Honor, he’ll plead to
Count One. He’s going to admit the strike prior, to the middle term
the admit [sic] the strike prior doubled, plus the three prison priors.
Since we discussed this case on Friday, the People have offered 11
years instead of 13.

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THE COURT: Well, I think that’s fair.

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MS. ANDERSON (the prosecutor): It’s in 261338.

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(Documents proffered to the court.)

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Mr. Jones, in case 261338, I have your Waiver of Rights form. It’s
dated. It’s signed, and it is initialed.

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Did you sign and initial this document?

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THE DEFENDANT: Yes, ma’am.

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THE COURT: Did you go over the contents with your lawyer?

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THE DEFENDANT: Yes, your Honor.

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THE COURT: Do you have any questions?

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THE DEFENDANT: No, your Honor.

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MR. BARRETT: He is just wanting to request to waive time for
sentencing.

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THE COURT: Understood.

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And the factual basis is being submitted on the preliminary hearing
transcript, and the Court would find there is a factual basis for a
change of plea to Count Two [sic].3

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It appears that the trial judge meant to reference Count One, to which petitioner was
pleading no contest, and not Count Two.
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And, Mr. Jones, what is your plea to Count One, a violation of
Penal Code Section 459, first degree burglary, with a person
present?

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THE DEFENDANT: No contest.

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THE COURT: I’ll accept your no-contest plea.

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And, additionally, do you admit that you suffered three prior prison
terms, pursuant to Penal Code Section 667.5 b, and those are
alleged on the second amended consolidated information from 1998
here out of Solano County, as well as 2004 in Solano County, and
also 1990 out of San Bernardino County.

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Do you admit all three of those prior prison terms?

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THE DEFENDANT: Yes, your Honor.

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THE COURT: And additionally your client is admitting one strike?

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MR. BARRETT: Yes.

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THE COURT: And, sir, do you admit that you suffered three prior
prison terms, pursuant to Penal Code Section 667 b through i on
1170.12 a, specifically that as of July 15th, 1993, a burglary
conviction out of Solano County?

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THE DEFENDANT: Yes.
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THE COURT: All right, you admit that as well. I’ll accept your
plea.

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Are the remaining counts allegations being dismissed in 261338?

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MR. ANDERSON: Yes, your Honor. I would dismiss with a
Harvey waiver Count Two. I would strike the 667 a one allegations
There’s two of them.

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Resp’t’s Ex. 7 at 83-84.
b. Applicable Legal Standards

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It is clearly established federal law that a guilty plea must be voluntarily, knowingly, and

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intelligently entered. Brady v. United States, 397 U.S. 742, 748 (1970); Boykin v. Alabama, 395

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U.S. 238, 242 (1969). The record must reflect that a criminal defendant pleading guilty

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understands, and is voluntarily waiving, his rights to the privilege against compulsory self-

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incrimination, to trial by jury and to confront one's accusers. Boykin, 395 U.S. at 243. However,

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“beyond these essentials, the Constitution ‘does not impose strict requirements on the mechanics
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of plea proceedings.’” Loftis v. Almager, 704 F.3d 645, 648 (9th Cir. 2012) (quoting United

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States v. Escamilla-Rojas, 640 F.3d 1055, 1062 (9th Cir. 2011), cert. denied, ___ U.S. ___, 133

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S.Ct. 101 (2012)). See also Wilkins v. Erickson, 505 F.2d 761, 763 (9th Cir. 1974) (specific

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articulation of the Boykin rights “is not the sine qua non of a valid guilty plea.”). Rather, if the

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record demonstrates that a guilty plea is knowing and voluntary, “no particular ritual or showing

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on the record is required.” United States v. McWilliams, 730 F.2d 1218, 1223 (9th Cir. 1984).

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The long-standing test for determining the validity of a guilty plea is “’whether the plea

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represents a voluntary and intelligent choice among the alternative courses of action open to the

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defendant.”’ Parke v. Raley, 506 U.S. 20, 29 (quoting North Carolina v. Alford, 400 U.S. 25, 31

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(1970)). “The voluntariness of [a petitioner’s] guilty plea can be determined only by considering

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all of the relevant circumstances surrounding it.” Brady, 397 F.2d at 749.

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In Blackledge v. Allison, 431 U.S. 63 (1977), the Supreme Court addressed the

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presumption of verity to be given the record of plea proceeding when the plea is subsequently

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subject to a collateral challenge. While noting that the defendant’s representations at the time of

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his guilty plea are not “invariably insurmountable” when challenging the voluntariness of his

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plea, the court stated that, nonetheless, the defendant’s representations, as well as any findings

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made by the judge accepting the plea, “constitute a formidable barrier in any subsequent collateral

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proceedings” and that “[s]olemn declarations in open court carry a strong presumption of verity.”

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Blackledge, 431 U.S. at 74. A guilty plea is presumed valid in habeas proceeding when the

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pleading defendant was represented by counsel. Marshall v. Lonberger, 459 U.S. 422, 437

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(1983).

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c. Plea of No Contest to Burglary
The state court record in this case includes petitioner’s signed “Waiver of Constitutional

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Rights and Declaration in Support of Defendant’s Motion to Change Plea (waiver of rights

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form),” which he tendered to the trial court when he pled no contest. Resp’t’s Ex. 5 at 141-44.

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Therein, petitioner acknowledged in writing that he had “fully discussed the facts, merits, and

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possible defenses of this case with my attorney.” Id. at 141. He also waived his rights to a

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speedy trial and to a trial by jury, the right to confront his accusers, the right to offer evidence on
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his behalf at a trial, and his right against self-incrimination. Id. The form advised petitioner of

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his maximum possible sentence. Id. Petitioner acknowledged that he was not under the influence

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of alcohol or narcotics, that he was “of sound mind,” and that he understood the nature of the

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proceedings. Id. Petitioner also had notice of the nature of the charges against him. Id. at 141-

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42. See Lonberger, 459 U.S. at 436 (in order for a plea to be voluntary, an accused must receive

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notice of the nature of the charge against him, “the first and most universally recognized

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requirement of due process”) (quoting Smith v. O'Grady, 312 U.S. 329, 334 (1941)).

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Petitioner also affirmed in the waiver of rights form that his attorney had explained the
document to him and that he “hereby freely and voluntarily, having full knowledge and

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understanding of the rights that I am giving up and the possible consequences which may result

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from my plea, do hereby request the Court to accept my new and different plea.” Resp’t’s Ex. 5

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at 143. Petitioner’s trial counsel declared that he had read and explained the waiver of rights

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form to petitioner, that he was satisfied that petitioner understood the consequences of his plea,

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that his plea was freely and voluntarily made, and that petitioner’s decision to enter a plea was

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made “only after a full discussion with me of the facts and the law of this case.” Id. In open

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court, as set forth above, petitioner informed the trial judge that he had signed and initialed the

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waiver of rights form, that he had discussed its contents with his attorney, and that he had no

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questions about the document. This is sufficient for purposes of federal habeas review.

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Lonberger, 459 U.S. at 436.

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In the petition before this court, petitioner argues that he agreed to plead no contest only

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because he was “in disbelief” that his Marsden motion had been denied. ECF No. 1-1 at 10.

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However, the fact that petitioner signed the waiver of rights form prior to his Marsden hearing,

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and that he had agreed to plead no contest before the Marsden motion was ruled on, belies this

24

contention. Petitioner clearly understood there was a chance his Marsden motion could be

25

denied. Under these circumstances, petitioner’s assertion that he pled guilty because he was

26

surprised at the trial court’s ruling is insufficient to demonstrate that his plea was involuntary.

27
28

Petitioner also asserts that the trial judge improperly failed to ask him directly “about
waiving any of his constitutional rights.” Id. Petitioner is apparently arguing that the judge
12

1

should have asked him on the record whether he agreed to waive each of his federal constitutional

2

rights instead of simply asking him whether he understood the form he had signed waiving those

3

rights. This argument lacks merit and should be rejected. Petitioner cites no case holding that a

4

state trial court must discuss a criminal defendant’s waiver of his constitutional rights on the

5

record in open court when the defendant has already waived his rights in writing and orally

6

confirms that he understood the rights that he was waiving through the form that he signed. As

7

noted above, the Constitution “does not impose strict requirements on the mechanics of plea

8

proceedings.” Loftis, 704 F.3d at 648. Rather, the record must affirmatively show that a criminal

9

defendant’s guilty plea is intelligent and voluntary. Boykin, 395 U.S. at 242-43. The record in

10

this case makes that showing.

11

Petitioner also argues that his plea of nolo contendere was invalid because the trial court

12

failed to ensure that it was supported by an adequate factual basis. ECF No. 1-1 at 11-12.

13

However, absent special circumstances not present here, there is no federal constitutional

14

requirement that a no contest plea in state court be supported by a factual basis. See Loftis, 704

15

F.3d at 648 (claim of insufficient factual basis to support petitioner’s no contest plea,

16

unaccompanied by protestations of innocence, not cognizable on federal habeas); Rodriguez v.

17

Ricketts, 777 F.2d 527, 528 (9th Cir. 1985) (same with respect to guilty plea). Accordingly,

18

petitioner is not entitled to federal habeas relief on any such claim.

19

In sum, there is nothing in the record before this court to overcome the presumption that

20

petitioner pled guilty voluntarily and intelligently. Accordingly, he is not entitled to relief on this

21

claim.

22
23

d. Admission of Prior Conviction
Petitioner also claims that his admission of the prior conviction allegations was

24

involuntary because the trial court failed to advise him he was entitled to a trial on those

25

allegations when it accepted his no contest plea. ECF No. 1-1 at 4.

26

In 1972, the Ninth Circuit held that under then-extant California law, an admission of a

27

prior conviction in state court which subjects the accused to an enhanced sentence is the

28

functional equivalent of a guilty plea to a separate charge. Wright v. Craven, 461 F.2d 1109,
13

1

1109 (9th Cir. 1972). Accordingly, the admission is not valid unless the defendant understood the

2

consequences flowing therefrom. Id. at 1110. However, the Ninth Circuit subsequently

3

interpreted the holding in Wright to require only that the trial court determine whether the

4

defendant knowingly and voluntarily agreed to the stipulation of the fact of a prior conviction.

5

Adams v. Peterson, 968 F.2d 835, 841 n.4 (9th Cir. 1992). Several courts have questioned

6

whether Wright is still good law. See United States v. Reed, 575 F.3d 900, 928 (9th Cir. 2009);

7

Sou Hang Saephan v. Schomig, No. C 09-4658 SI (PR), 2011 WL 5834944 (N.D. Cal. Nov. 21,

8

2011). Further, the United States Supreme Court has not yet decided whether Boykin and Brady

9

apply to prior conviction allegations and other Circuit Courts have not held that the Boykin

10

requirements apply to admissions of prior convictions. See e.g., Adams, 968 F.2d at 841 n.4

11

(recognizing that this is an issue on which Circuit courts are split).

12

However, the question as to Wright need not be decided here. Assuming arguendo that

13

Boykin and Brady apply to admissions of prior convictions, for the reasons set forth above the

14

record reflects that petitioner understood and waived his right to a jury trial when he signed the

15

waiver of rights form. Petitioner has cited no case holding that a defendant must be twice

16

advised, at the same proceeding, that he is entitled to a jury trial on the underlying offense and

17

also on the truth of the prior conviction allegation. See Washington v. Kramer, No. CV 09-5078-

18

DOC (PJW), 2010 WL 1947001 (C.D. Cal. Mar. 29, 2010) (petitioner’s waiver of right to jury

19

trial applied to both substantive charge and to prior “strike” allegation); Tribble v. Hernandez,

20

No. CV 06-3992 PSG (PLA), 2009 WL 2969480 (C.D. Cal. Sept. 3, 2009) ((“Petitioner,

21

however, has cited no Supreme Court case holding that a defendant must be twice advised, at the

22

same proceeding, of his federal rights: first, in connection with his plea on the substantive charges

23

and, second, in connection with the admission of a prior conviction allegation.”); Chan v. A.A.

24

Lamarque, Warden, No. 03-1156MMC, 2004 WL 834694, at *4-5 (N.D. Cal. April 9, 2004)

25

(finding that waiver of constitutional rights applied to prior conviction allegation as well as

26

underlying charge). In California, such separate advisements are not required. See, e.g., People v.

27

Forrest, 221 Cal.App.3d 675, 677-81 (1990) (separate advisements are not required in a single

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14

1

plea proceeding where the defendant pleads guilty to a current offense and also admits a prior

2

conviction).

3

The court also notes that petitioner and his attorney were aware of the validity of his prior

4

convictions and petitioner chose not to litigate this issue in order to obtain a reduced sentence.

5

There is no evidence in the record that petitioner’s prior convictions were invalid. There is also

6

no evidence in the record that petitioner would have insisted on a jury trial on the prior conviction

7

allegations if he had been separately informed that he had that right. Further, petitioner had

8

extensive experience with the criminal justice system, including three prior convictions, from

9

which it could reasonably be inferred that he was aware of the relevant circumstances and likely

10

consequences of his admission. See Park v. Raley, 506 U.S. 20, 37 (1992) ( “A defendant's prior

11

experience with the criminal justice system [is] relevant to the question of whether he knowingly

12

waived his constitutional rights.”). It simply appears that petitioner weighed the costs and

13

benefits of stipulating to his prior conviction and made a rational decision to pursue that route in

14

exchange for a stipulated sentence significantly lower than he could have received if he was

15

found guilty after a jury trial. “‘It may be appropriate to presume that in most cases defense

16

counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of

17

what he is being asked to admit.’” United States v. Bigman, 906 F.2d 392, 395 (9th Cir.1990)

18

(quoting Henderson v. Morgan, 426 U.S. 637, 647 (1976)).

19

Moreover, even assuming further that petitioner’s admission of his prior conviction

20

violated his federal constitutional right to due process, habeas relief still would not be warranted

21

with respect to this claim because petitioner does not challenge the legitimacy of his prior

22

convictions or provide any evidence that they were invalid, and he does not state that he would

23

not have entered the no contest plea if he had been advised of the right to a jury trial on the prior

24

convictions. See, e.g., Lowell v. Prunty, 91 F.3d 1358, 1359 (9th Cir.1996) (per curiam) (holding

25

that state trial court's failure to advise petitioner that his admission to prior convictions would add

26

six years to his sentence was harmless error and did not warrant certificate of probable cause to

27

appeal because petitioner did not dispute the validity of his priors) (citing Brecht v. Abrahamson,

28

507 U.S. 619, 628–30 (1993); Steinsvik v. Vinzant, 640 F.2d 949, 955–56 (9th Cir. 1980) (finding
15

1

no prejudice from trial court’s failure to advise petitioner of sentencing consequences of plea

2

where petitioner did not state directly that he would not have entered plea had he known of them);

3

Yellowwolf v. Morris, 536 F.2d 813, 817 (9th Cir.1976) (same).

4
5

For all of the foregoing reasons, petitioner is not entitled to relief on his claim that his
admission of the prior conviction allegations was involuntary.

6

3. Ineffective Assistance of Appellate Counsel

7

Petitioner filed a timely notice of appeal on July 7, 2010, and requested a certificate of

8

probable cause from the California Superior Court. Resp’t’s Ex. 4 at 195. On July 26, 2010, the

9

Superior Court granted a certificate of probable cause on the following claims: “ineffective

10

waiver of constitutional rights;” “inadequate advisement of rights when admitting prior

11

conviction;” and “denial of Marsden hearing.”4 Id. at 195. Before this court, petitioner claims

12

that in light of the fact that he sought and received a certificate of probable cause from the

13

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14

4

Cal. Penal Code § 1237.5 provides that:

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18
19

No appeal shall be taken by the defendant from a judgment of
conviction upon a plea of guilty or nolo contendere, or a revocation
of probation following an admission of violation, except where both
of the following are met:
(a) The defendant has filed with the trial court a written statement,
executed under oath or penalty of perjury showing reasonable
constitutional, jurisdictional, or other grounds going to the legality
of the proceedings.

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23
24
25
26
27
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(b) The trial court has executed and filed a certificate of probable
cause for such appeal with the clerk of the court.
In ruling on an application for certificate of probable cause:
[t]he trial court's sole objective is to eliminate those appeals ‘having
no possible legal basis' by refusing to issue a certificate of probable
cause. [Citations.] Section 1237.5 requires the trial court to certify
any arguably meritorious appeal to the appellate courts. Thus, if the
statement submitted by the defendant in accordance with section
1237.5 presents any cognizable issue for appeal which is not clearly
frivolous and vexatious, the trial court abuses its discretion if it fails
to issue a certificate of probable cause. [Citations.]
Lara v. Superior Court, 133 Cal.App.3d 436, 440 (1982) (quoting People v. Holland, 23 Cal.3d
77, 84 (1978)).
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1

Superior Court, his appellate counsel rendered ineffective assistance in failing to challenge the

2

voluntariness of his plea. ECF No. 1-1 at 13, 16.

3
4

The California Superior Court denied petitioner’s claim of ineffective assistance of
appellate counsel in a reasoned decision, as follows:

5

Petitioner also argues that he suffered from ineffective assistance of
counsel (IAC). Petitioner alleges that his appellate counsel
performed deficiently by failing to raise the following issues on
appeal: the trial court did not advise Petitioner that he was giving
up his right to contest the prior conviction allegations; the trial court
never found a factual basis for count one when accepting the plea;
and his prior convictions did not support the Penal Code section
667.5 enhancements that he received. . .

6
7
8
9

Petitioner fails to state a prima facie case for relief for IAC.
(People v. Duvall, (1995) 9 Cal.4th 464, 475.)

10
11

With regard to Petitioner’s claim of ineffective assistance of
appellate counsel, the record is devoid of evidence that appellate
counsel made unreasonable decisions in failing to raise the claims
Petitioner believes should have been raised on appeal. (Strickland
v. Washington, (1984) 466 U.S. 688, 691.) Petitioner does not
provide any facts or reasonably available documentary evidence,
such as affidavits from his appellate counsel, stating why these
issues were not raised on appeal. (Duvall, 9 Cal.4th at p. 474.)

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13
14
15

Moreover, Petitioner provides no evidence to support the claims he
believes should have been raised on appeal, or to show that these
claims had any merit. As such, Petitioner has not shown prejudice.
(See Chapman v. California, (1967) 386 U.S. 18, 24; People v.
Roldan, (2005) 35 Cal.4th 646, 735.)

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19

ECF No. 14-13 at 2-3.

20

The clearly established federal law for ineffective assistance of counsel claims is

21

Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a Strickland claim, a defendant

22

must show that (1) his counsel's performance was deficient and that (2) the “deficient

23

performance prejudiced the defense.” Id. at 687. Counsel is constitutionally deficient if his or

24

her representation “fell below an objective standard of reasonableness” such that it was outside

25

“the range of competence demanded of attorneys in criminal cases.” Id. at 687–88 (internal

26

quotation marks omitted). “Counsel’s errors must be ‘so serious as to deprive the defendant of a

27

fair trial, a trial whose result is reliable.’” Richter, 131 S.Ct. at 787-88. (quoting Strickland, 466

28

U.S. at 687).
17

1

A reviewing court is required to make every effort “to eliminate the distorting effects of

2

hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the

3

conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 669; see Richter, 131

4

S.Ct. at 789. Reviewing courts must also “indulge a strong presumption that counsel's conduct

5

falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.

6

This presumption of reasonableness means that the court must “give the attorneys the benefit of

7

the doubt,” and must also “affirmatively entertain the range of possible reasons [defense] counsel

8

may have had for proceeding as they did.” Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388,

9

1407 (2011) (internal quotation marks and alterations omitted).

10

Prejudice is found where “there is a reasonable probability that, but for counsel’s

11

unprofessional errors, the result of the proceeding would have been different.” Strickland, 466

12

U.S. at 694. A reasonable probability is “a probability sufficient to undermine confidence in the

13

outcome.” Id. “The likelihood of a different result must be substantial, not just conceivable.”

14

Richter, 131 S.Ct. at 792.

15

Under AEDPA, “[t]he pivotal question is whether the state court's application of the

16

Strickland standard was unreasonable.” Id. at 785. “[B]ecause the Strickland standard is a

17

general standard, a state court has even more latitude to reasonably determine that a defendant has

18

not satisfied that standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

19

The Strickland standards apply to appellate counsel as well as trial counsel. Smith v.

20

Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989).

21

However, an indigent defendant “does not have a constitutional right to compel appointed counsel

22

to press nonfrivolous points requested by the client, if counsel, as a matter of professional

23

judgment, decides not to present those points.” Jones v. Barnes, 463 U.S. 745, 751 (1983).

24

Counsel “must be allowed to decide what issues are to be pressed.” Id. Otherwise, the ability of

25

counsel to present the client’s case in accord with counsel’s professional evaluation would be

26

“seriously undermined.” Id. See also Smith v. Stewart, 140 F.3d 1263, 1274 n.4 (9th Cir. 1998)

27

(Counsel is not required to file “kitchen-sink briefs” because it “is not necessary, and is not even

28

particularly good appellate advocacy.”) There is, of course, no obligation to raise meritless
18

1

arguments on a client’s behalf. See Strickland, 466 U.S. at 687-88 (requiring a showing of

2

deficient performance as well as prejudice). Thus, counsel is not deficient for failing to raise a

3

weak issue. See Miller, 882 F.2d at 1434. In order to establish prejudice in this context,

4

petitioner must demonstrate that, but for counsel’s errors, he probably would have prevailed on

5

appeal. Id. at 1434 n.9.

6

Petitioner’s claims of ineffective assistance of appellate counsel are conclusory, vague,

7

and unsupported by any factual assertions. On this basis alone, this claim should be denied. See

8

Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (“‘[c]onclusory allegations which are not

9

supported by a statement of specific facts do not warrant habeas relief’”) (quoting James v. Borg,

10

24 F.3d 20, 26 (9th Cir. 1994)).

11

In any event, for the reasons set forth above, this court has concluded that petitioner’s

12

claim that his plea was involuntary lacks merit. The failure of an attorney to raise a meritless

13

claim is not prejudicial. See Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir. 2012). In addition,

14

because California law does not require a separate advisement and waiver of rights where a

15

defendant in a single proceeding pleads guilty to a current charge and also admits that he suffered

16

prior convictions, Forrest, 221 Cal.App.3d at 575-76, petitioner’s appellate counsel would not

17

have prevailed on any such claim. Nor would counsel have prevailed on a claim that the trial

18

court improperly failed to find a factual basis for petitioner’s plea to the burglary charge. The

19

state court record reflects that petitioner conceded that the facts upon which his plea was based

20

were contained in the preliminary hearing transcript. Resp’t’s Ex. 5 at 143. Further, in California

21

a plea of guilty or no contest forecloses an appellate claim that the plea lacks a factual basis.

22

People v. Voit, 200 Cal.App.4th 1353, 1365-66 (2011) (“a plea of guilty or no contest forecloses

23

an appellate challenge that the plea lacks a factual basis”). Appellate counsel’s decision not to

24

include these claims in petitioner’s direct appeal in state court, but instead to focus on claims that

25

counsel believed were more meritorious, was "within the range of competence demanded of

26

attorneys in criminal cases." McMann v. Richardson, 397 U.S. 759, 771 (1970). Accordingly,

27

petitioner is not entitled to relief on his claim that his appellate counsel rendered ineffective

28

assistance.
19

1
2
3

III. Conclusion
Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of
habeas corpus be denied.

4

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

5

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

6

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

7

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

8

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

9

shall be served and filed within fourteen days after service of the objections. Failure to file

10

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

11

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

12

1991). In his objections petitioner may address whether a certificate of appealability should issue

13

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

14

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

15

final order adverse to the applicant).

16

DATED: April 29, 2015.

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