Foster v. Johnson

Filing 18

ORDER signed by Magistrate Judge Kendall J. Newman on 9/28/2017 DENYING Petitioner's application for a petition for writ of habeas corpus. A certificate of appealability is not issued. CASE CLOSED. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JANNELLE FOSTER,

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No. 2: 15-cv-1774 KJN P

Petitioner,
v.

ORDER

D.K. JOHNSON, Warden,

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Respondent.

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I. Introduction
Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Both parties have consented to the jurisdiction of the

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undersigned. (ECF Nos. 9, 10.)

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Petitioner challenges her 2014 conviction for second degree robbery with great bodily

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injury and prior prison term enhancements. Petitioner is serving a sentence of 9 years. Petitioner

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raises one claim: the trial court wrongly denied her motion to substitute counsel. After carefully

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reviewing the record, the undersigned orders the petition denied.

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II. 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. 1, 4 (2010); Estelle v. McGuire, 502

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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:

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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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28 U.S.C. § 2254(d).
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, 132 S. Ct.

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38 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529

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U.S. 362, 405-06 (2000)). 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 at

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

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may not be “used to refine or sharpen a general principle of Supreme Court jurisprudence into a

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specific legal rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, 133 S.

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Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012) (per curiam)).

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Nor may it be used to “determine whether a particular rule of law is so widely accepted among

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the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct.

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Id. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said

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that there is “clearly established Federal law” governing that issue. Carey v. Musladin, 549 U.S.

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70, 77 (2006).

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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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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. See also 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.
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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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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considering de novo the constitutional issues raised.”).
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 a

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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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A summary denial is presumed to be a denial on the merits of the petitioner’s claims.

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Stancle v. Clay, 692 F.3d 948, 957 & n.3 (9th Cir. 2012). While the federal court cannot analyze

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just what the state court did when it issued a summary denial, the federal court must review the

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state court record to determine whether there was any “reasonable basis for the state court to deny

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relief.” Richter, 131 S. Ct. at 784. This court “must determine what arguments or theories . . .
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could have supported, the state court’s decision; and then it must ask whether it is possible

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fairminded jurists could disagree that those arguments or theories are inconsistent with the

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holding in a prior decision of [the Supreme] Court.” Id. at 786. The petitioner bears “the burden

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to demonstrate that ‘there was no reasonable basis for the state court to deny relief.’” Walker v.

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Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 131 S. Ct. at 784).
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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III. Discussion

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In her opening brief, filed in the California Court of Appeal, and petition for review, filed

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in the California Supreme Court, petitioner argued that the denial of her Marsden2 motion

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violated state law and her federal constitutional right to counsel. (Respondent’s Lodged

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Documents 1, 4.) The California Court of Appeal issued a reasoned decision, but did not address

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petitioner’s federal claim. (See ECF No. 13-1.) The California Supreme Court summarily denied

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petitioner’s petition for review. (See ECF No. 13-2.)

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Because petitioner raised her federal claim in state court, although it was not expressly

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addressed by the state courts, the undersigned presumes, subject to rebuttal, that this claim was

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adjudicated on the merits. Johnson v. Williams, 133 S. Ct. 1088, 1091 (2013).

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A. Opinion of California Court of Appeal

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Although the California Court of Appeal did not address petitioner’s federal claim, the

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undersigned sets forth herein the state appellate court’s opinion denying petitioner’s related state

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law claim:

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On March 22, 2013, defendant was charged by information with
three counts as follows: (1) assault with a deadly weapon
(Pen.Code, § 245, subd. (a)(1) — count 1); [Footnote omitted] (2)
second degree robbery (§ 211 — count 2); and (3) dissuasion of a
witness by force or by an express or implied threat of force or
violence (§ 136.1, subd. (c)(1) — count 3). With respect to count 1,

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People v. Marsden, 2 Cal.3d 118 (1970).
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the information alleged that defendant personally inflicted great
bodily injury on the victim. (§ 12022.7, subd. (a).) The information
further alleged that defendant had been previously convicted of
assault with a deadly weapon (§ 245, subd. (a)(1)) and served a
prior prison term within the meaning of section 667.5, subdivision
(b).

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The parties entered into a plea agreement on November 13, 2013,
less than a week before the scheduled trial date. As part of the plea
agreement, the People made an unopposed motion to amend the
information to add a great bodily injury enhancement (§ 12022.7,
subd. (a)) to count 2. Defendant then entered a plea of no contest to
the second degree robbery charge (§ 211), admitted the great bodily
injury enhancement (§ 12022.7, subd. (a)), and admitted the prior
prison term (§ 667.5, subd. (b)). In exchange for her plea, the
remaining counts would be dismissed and defendant would receive
a stipulated sentence of nine years in state prison.
The parties’ plea agreement was memorialized in a document
entitled, “Plea Form—Felony (With Explanations & Waiver of
Rights).” The first page of the plea form indicates that defendant’s
“Aggregate Maximum Time of Imprisonment” will be “9 (@
85%).” The second page of the preprinted form indicates that
defendant will be sentenced to nine years in state prison and
includes the handwritten notation “85%.” Defendant signed the plea
form, and initialed the appropriate boxes, acknowledging that she
understood she would be sentenced to nine years at 85 percent time.
The trial court accepted defendant’s plea and admissions, and found
that they were knowingly, intelligently, and voluntarily made.

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Sentencing was set for January 13, 2014. Before the sentencing
hearing began, defense counsel informed the trial court that
defendant was considering a motion to withdraw her plea. In
addition, defense counsel said, defendant had raised a “Marsdenish
issue” that should be decided before proceeding with the possible
motion to withdraw the plea. At defense counsel’s request, the trial
court cleared the courtroom and conducted a hearing pursuant to
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
During the Marsden hearing, the trial court asked defendant to
describe the reasons for her dissatisfaction with appointed counsel.
Defendant responded: “I feel my case is—wasn’t looked into like
it—like it should have been.” When asked to elaborate, defendant
explained: “I don’t know how to say it. Maybe like it wasn’t
investigated enough.” In particular, defendant suggested that other,
unidentified witnesses should have been interviewed. In addition,
defendant opined that the victim’s injuries were inconsistent with
the weapon alleged to have been used.
In response, defense counsel explained that the case was
“investigated thoroughly” by a private investigator used by defense
counsel since 2011. Defense counsel indicated that various
witnesses had been interviewed, including defendant, a
codefendant, and the victim. Defense counsel also indicated that he
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consulted with a defense expert on the question whether the
victim’s injuries were consistent with the weapon alleged to have
been used. Defense counsel noted, however, that defendant had
previously indicated that she felt pressured or coerced into
accepting the plea. Defense counsel urged the trial court to focus
the inquiry on the issue of coercion.

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Before turning to the issue of coercion, the trial court asked defense
counsel to outline his background and experience as a criminal
defense attorney. Defense counsel responded that he has been an
active member of the criminal defense bar since 1996, having
handled “thousands of jury trials and court trials,” including death
penalty cases.
The trial court then asked defense counsel to describe the
circumstances leading to defendant’s plea. Defense counsel
explained that the prosecution originally offered nine years but took
the offer off the table as the case proceeded to trial. The next series
of offers had been in the 12– to 13–year range. Defense counsel
said that defendant called to say she wanted to accept the original
nine-year offer during the week-long interval between the pretrial
conference and the trial readiness conference. Defense counsel
convinced the prosecution to resurrect the original offer and
arranged to have the case added to the trial court’s calendar so that
defendant's plea could be entered.

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The trial court then turned to the question of coercion, and the
following colloquy took place: “The Court: Ms. Foster, do you
believe that you were coerced into entering a plea in this case?

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“The Defendant: Yes, I do.

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“The Court: Tell me why that is.

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“The Defendant: For the fact that we had court two days before
taking this plea, I got called in the office to sign it right now, go to
court right now, take it right now, or it’s off the table. I'm like, why
don’t we wait until the court date to do it? Why do it right now?

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“The Court: Anything else regarding your statement that you
believe that you were coerced?

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“The Defendant: No, your Honor.”

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Defense counsel then clarified that the prosecution’s original nineyear offer dated “back to the original filing or offer sheet prior to
[the preliminary hearing,] which would have put it at ten months
ago, nine months ago.” The prosecution took the nine-year offer off
the table after the preliminary hearing on March 15, 2013. The
prosecution’s subsequent offers “were in the double digits.” The
prosecution agreed to renew the original nine-year offer the week
before trial but would only hold the offer open until the date of the
trial readiness conference. “So that left us with days for [defendant]
to consider.”

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The trial court then asked defense counsel and defendant whether
either had anything else to say on the subject of coercion; each
replied in the negative.
The trial court denied the motion, stating, “there is no basis that I
can find that the case wasn't investigated or prepared.
“In terms of the coercion,” the trial court continued, “there is
pressure to settle a case in any case, and the pressure comes from
the standpoint that there is time. If you wait until the date of trial,
nobody is going to settle a case.” The trial court then observed:
“What I’ve heard today is that [defense counsel] was able to
resurrect the nine-year offer, did get the district attorney to agree
that they would accept that offer, that is indeed what you wanted to
do, and in terms of the timing, which is where the pressure may
have been to get it done that day or the next day, that was [defense
counsel’s] effort to make that nine-year offer happen. It wasn’t
going to happen on the trial readiness conference date. It had to
happen on a day when court was in session with a court reporter
available.
“And, let’s see, November 13th of 2013, was a Wednesday
calendar. The trial readiness conference would have been Friday the
15th. Jury trial was set for November 19th. It was—the 13th was
the only day it could get done. In fact, it was the last day to get it
done. So I can’t make any finding that you were coerced into
accepting a deal that you did not want to do. Moreover, I was the
judge who took the plea. I have a plea form in front of me
indicating that in fact was the deal that you wanted to accept.”
Accordingly, the trial court concluded, “the Marsden motion is
denied on each basis, lack of preparation and the coercion.”
After the trial court denied the motion, defendant asked to be heard,
stating: “I was signing with nine with half and not nine with 85
percent.” Defense counsel explained that the parties discussed the
possibility of a stipulated sentence of nine years at 50 percent, but
the prosecution insisted on nine years at 85 percent. Accordingly,
the trial court concluded, “[t]o the extent that—that argument is
made as part of the Marsden hearing, I am denying the Marsden
motion on that basis as well.”

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On February 3, 2014, defense counsel informed the trial court that
defendant was withdrawing her request to file a motion to withdraw
her plea. The trial court confirmed that defendant wanted to
withdraw her motion to withdraw her plea. As the trial court was
preparing to sentence defendant, an unidentified person interrupted,
stating, “The robbery charge was mine and I admitted to it.”
Moments later, the unidentified speaker was removed from the
courtroom and defendant was sentenced according to her plea
agreement.

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On February 24, 2014, defendant filed a timely notice of appeal,
requesting a certificate of probable cause on the grounds that she
was innocent of the charges against her, did not have enough time
to consider her plea, and was led to believe that she would be
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receiving nine years at 50 percent time, rather than nine years at 85
percent time. The trial court denied the certificate of probable
cause.

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DISCUSSION

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On appeal, defendant contends the trial court abused its discretion
in denying her Marsden motion because defense counsel coerced
her into accepting the plea agreement, thereby creating an
irreconcilable conflict such that ineffective representation was
likely to result. Defendant also contends that her relationship with
defense counsel was irretrievably broken down as a result of
defense counsel’s alleged coercion, inadequate investigation, and a
misrepresentation concerning the terms of the plea agreement. We
conclude that defendant’s claims lack merit.

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At the outset, we reject the People’s contention that defendant’s
appeal must be dismissed because she did not obtain a certificate of
probable cause. “A determination that defendant is entitled to
substitute counsel has no necessary implication for his no contest
plea, which plea stands until a motion to withdraw it is made and
granted.” (People v. Vera (2004) 122 Cal.App.4th 970, 978.)
Consequently, defendant “was not required to obtain a certificate of
probable cause to challenge the trial court’s denial of defendant’s
postplea Marsden motion,” even though defendant’s complaints
pertain to her counsel’s preplea conduct. (Vera, at p. 978.)

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Turning to the merits, we have reviewed the record and find no
error. A defendant is entitled to new appointed counsel if the record
clearly shows the first appointed attorney is not providing adequate
representation or there is such an irreconcilable conflict between
defendant and counsel that ineffective representation is likely to
result. (People v. Valdez (2004) 32 Cal.4th 73, 95.) When a
defendant requests substitution of counsel, the trial court must
conduct an informal hearing at which the defendant is permitted to
explain his or her complaints. (Id. at pp. 95–96.) Complaints about
the way in which the defendant relates to counsel do not alone show
incompetence. (Id. at p. 96.) Similarly, mere tactical disagreements
between the defendant and counsel do not constitute an
irreconcilable conflict. (Id. at p. 95.) “‘A defendant does not have
the right to present a defense of his own choosing, but merely the
right to an adequate and competent defense.’” (Ibid.)

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We review the denial of a Marsden motion for abuse of discretion.
(People v. Jones (2003) 29 Cal.4th 1229, 1245 (Jones); see People
v. Smith (1993) 6 Cal.4th 684, 695 (Smith).) “‘Denial of the motion
is not an abuse of discretion unless the defendant has shown that a
failure to replace the appointed attorney would “substantially
impair” the defendant’s right to assistance of counsel.’ [Citations.]”
(People v. Hart (1999) 20 Cal.4th 546, 603.)

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The record shows no abuse of discretion. The trial court thoroughly
explored the reasons for defendant’s dissatisfaction with appointed
counsel, giving her several opportunities to articulate her concerns.
When defendant expressed doubts about the adequacy of defense
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counsel’s pretrial investigation, the trial court pressed for details,
asking which witnesses should have been interviewed and which
avenues of investigation pursued. Defendant was unable to identify
any particular respect in which defense counsel failed to investigate
the case. Even so, the trial court carefully questioned defense
counsel and determined that the investigation was adequate. We
have reviewed the record and find nothing that would undermine
the trial court’s conclusion.

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The trial court also carefully considered defendant’s claim that she
was coerced. Defendant said that she felt coerced into accepting the
plea because she was told to “sign it right now, go to court right
now, take it right now, or it’s off the table.” However, defense
counsel explained that the prosecution was willing to hold the nineyear offer open only until the date of the trial readiness conference.
The trial court was entitled to accept defense counsel's explanation
(Smith, supra, 6 Cal.4th at p. 696) and reasonably concluded that
defendant accepted the offer on the last possible date, given the
court’s schedule and the upcoming trial date.
We find further support for the trial court’s conclusion in the fact
that defendant contacted defense counsel to accept the offer, and
not the other way around. Although defendant may have
experienced some pressure to accept the offer, there is nothing in
the record to suggest that defense counsel was the source of any
such pressure. Furthermore, the record indicates that defendant
accepted an offer that was originally discussed before the
preliminary hearing, many months earlier. Thus, the record suggests
that defendant had adequate time to consider the offer, despite the
rush to enter the plea before the trial readiness conference.
Accordingly, we find no abuse of discretion in the trial court's
conclusion that defendant’s plea was not coerced.

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Defendant contends the trial court erred in denying her Marsden
motion in light of her contemplated motion to withdraw her plea.
She argues that an irreconcilable conflict of interest existed because
“the basis for the motion to withdraw her plea was, in fact, the
direct actions of [defense counsel] and whether he had provided
effective assistance or unduly coerced her into taking a deal she did
not want to accept.” We reject defendant's contention for several
reasons.
First, defendant never filed a motion to withdraw her plea. As a
result, there was no need for defense counsel to argue for his own
incompetence, and no conflict of interest materialized.
Second, the trial court reasonably rejected the factual premise for
defendant’s contention that she and defense counsel were embroiled
in an irreconcilable conflict of interest. According to defendant, an
irreconcilable conflict arose from the fact that defense counsel
allegedly coerced her plea and would need to acknowledge the
coercion to effectively argue a motion to withdraw the plea.
However, the trial court flatly rejected the underlying contention
that defense counsel coerced defendant’s plea. Under the
circumstances, defendant has failed to demonstrate that she was
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embroiled in an irreconcilable conflict of interest with defense
counsel such that ineffective representation was likely to result.

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Third, a motion to withdraw a plea does not necessarily require the
appointment of substitute counsel. Our Supreme Court has
recognized that a defense attorney is placed in an awkward position
and “[t]he potential for conflict is obvious” when a defendant
claims after trial or a guilty plea that counsel was ineffective.
(Smith, supra, 6 Cal.4th at p. 694.) However, while acknowledging
that “it is difficult for counsel to argue his or her own
incompetence” (ibid.), the Supreme Court has concluded that it is
not impossible for counsel to do so (People v. Sanchez (2011) 53
Cal.4th 80, 89). [Footnote 3.] Thus, even a motion requiring an
attorney to argue his or her own incompetence does not
automatically require appointment of substitute counsel. Here, the
trial court impliedly found that defendant’s contemplated motion to
withdraw her plea would not give rise to an irreconcilable conflict
of interest. We find no abuse of discretion in the trial court’s
conclusion.
[Footnote 3: The Supreme Court has also recognized the
undesirable consequences resulting from the appointment of
substitute counsel without an adequate showing, for the
purpose of arguing that previous counsel was incompetent.
In People v. Makabali (1993) 14 Cal.App.4th 847, for
example, the trial court appointed second counsel to
investigate a possible motion to withdraw a guilty plea on
the basis of ineffective assistance of counsel. New counsel
did not make the motion. On appeal, appointed counsel,
defendant’s third attorney, claimed that the second was
incompetent for not claiming the first was incompetent.
Addressing these types of situations, the court in Smith,
supra, 6 Cal.4th at page 695, stated: “The spectacles of a
series of attorneys appointed at public expense whose sole
job, or at least a major portion of whose job, is to claim the
previous attorney was, or previous attorneys were,
incompetent discredits the legal profession and judicial
system, often with little benefit in protecting a defendant’s
legitimate interests.”]
Next, defendant contends that the trial court erred in denying her
Marsden motion because defense counsel’s alleged incompetence
resulted in a “breakdown of the attorney-client relationship.” Once
again, we reject defendant’s contention.

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25
26

Defendant contends her relationship with defense counsel was
irretrievably broken down because she no longer trusted him.
Defendant did not say anything about a breakdown in her
relationship with defense counsel during the Marsden hearing. She
did not complain at the hearing that she no longer trusted defense
counsel or otherwise indicate that the relationship was impaired,
much less irretrievably so.

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In the absence of any such discussion in the trial court, defendant
now contends that she lost trust in defense counsel because he
11

1

failed to adequately investigate her case, coerced her plea, and
misrepresented the terms of her plea agreement. As discussed, the
trial court reasonably rejected defendant’s contention that defense
counsel failed to investigate her case and coerced defendant’s plea.
The trial court also rejected defendant’s contention that defense
counsel misrepresented the terms of the plea agreement. We have
reviewed the record and conclude that the trial court’s
determination that defense counsel did not misrepresent the terms
of the plea agreement was supported by substantial evidence.

2
3
4
5
6

During the Marsden hearing, defendant suggested that defense
counsel led her to believe she would be sentenced to nine years at
50 percent time. Defense counsel responded that while the parties
discussed the possibility that defendant might be sentenced to nine
years at 50 percent time, they ultimately agreed to nine years at 85
percent time. There is nothing in the record to suggest that defense
counsel misrepresented the terms of the plea agreement. To the
contrary, the plea agreement clearly stated that defendant's
“Aggregate Maximum Time of Imprisonment” would be “9 (@
85%).” Defendant signed the plea form, acknowledging that she
understood she would be sentenced to nine years at 85 percent time.
The trial court conducted an adequate inquiry into the basis for
defendant's contention that defense counsel misrepresented the
terms of the plea agreement and reasonably rejected the claim. We
perceive no abuse of discretion.

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8
9
10
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Furthermore, there was no abuse of discretion in the trial court’s
implied finding that defendant’s loss of confidence in defense
counsel did not necessitate the appointment of substitute counsel.
“Defendant’s mere allegation that he did not trust his defense
attorney, without more, was insufficient to compel the trial court to
replace him. ‘If a defendant’s claimed lack of trust in, or inability to
get along with, an appointed attorney were sufficient to compel
appointment of substitute counsel, defendants effectively would
have a veto power over any appointment, and by a process of
elimination could obtain appointment of their preferred attorneys,
which is certainly not the law.’ [Citation.]” (People v. Abilez
(2007) 41 Cal.4th 472, 489.)

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The trial court gave defendant an opportunity to explain the reasons
for each of these complaints and permitted counsel to respond.
Defense counsel had adequate explanations for each grievance, and
“ ‘[t]o the extent there was a credibility question between defendant
and counsel at the hearing, the court was “entitled to accept
counsel’s explanation.” [Citation.]’ [Citation.]” (Jones, supra, 29
Cal.4th at pp. 1245–1246.) Accordingly, we conclude the trial court
conducted an adequate Marsden hearing and did not abuse its
discretion in denying the motion.

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26

(People v. Foster, 2015 WL 1156769 at *1-6 (2015).

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1

B. Legal Standard

2

Denial of a motion pursuant to People v. Marsden may implicate the Sixth Amendment

3

right to counsel. Schell v. Witek, 218 F.3d 1017, 1023 (9th Cir. 2000) (en banc); Bland v.

4

California Dep’t of Corrections, 20 F.3d 1469, 1475-76 (9th Cir. 1994), overruled in part on other

5

grounds in Schell, 218 F.3d at 1025-26; Hudson v. Rushen, 686 F.2d 826, 828-29 (9th Cir. 1982).

6

Therefore, when a criminal defendant makes a request for substitution of counsel, the trial court is

7

constitutionally required to inquire into the defendant’s reasons for wanting a new attorney.

8

Schell, 218 F.3d at 1025 (“[I]t is well established and clear that the Sixth Amendment requires on

9

the record an appropriate inquiry into the grounds for such a motion, and that the matter be

10

resolved on the merits before the case goes forward.”); see also Stenson v. Lambert, 504 F.3d

11

873, 886 (9th Cir. 2007) (“A trial court’s inquiry regarding counsel’s performance on a motion to

12

substitute counsel should be such necessary inquiry as might ease the defendant’s dissatisfaction,

13

distrust and concern.”) (citation and internal quotation marks omitted); Bland, 20 F.3d at 1476-77.

14

For an indigent defendant, such an inquiry can serve to protect against constitutional

15

injury because the failure to provide substitute counsel “may result in a denial of the

16

constitutional right to effective assistance of counsel if the defendant and his attorney are

17

embroiled in an ‘irreconcilable conflict.’” United States v. Mills, 597 F.2d 693, 700 (9th Cir.

18

1979) (quoting Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970) (“[T]o compel one charged

19

with grievous crime to undergo a trial with the assistance of an attorney with whom he has

20

become embroiled in irreconcilable conflict is to deprive him of the effective assistance of any

21

counsel whatsoever”)).

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In reviewing a federal habeas claim based on the denial of a substitution motion, “the

23

ultimate constitutional question the federal courts must answer” is whether the state trial court’s

24

disposition of the motion violated a petitioner’s constitutional rights because the conflict between

25

the petitioner and appointed counsel “had become so great that it resulted in a total lack of

26

communication or other significant impediment that resulted in turn in an attorney-client

27

relationship that fell short of that required by the Sixth Amendment.” Schell, 218 F.3d at 1026.

28

If the reviewing court determines that a conflict developed between the petitioner and appointed
13

1

counsel so serious that it “resulted in the constructive denial of assistance of counsel, no further

2

showing of prejudice is required.” Schell, 218 F.3d at 1027-28 (citing Strickland, 466 U.S. at

3

692).

4

On the other hand, “not every conflict or disagreement between the defendant and counsel

5

implicates Sixth Amendment rights.” Schell, 218 F.3d at 1027 (citing Morris v. Slappy, 461 U.S.

6

1, 13-14 (1983) (holding that the Sixth Amendment does not guarantee a “meaningful

7

relationship” between defendant and counsel)); see also Stenson, 504 F.3d at 886 (“An

8

irreconcilable conflict in violation of the Sixth Amendment occurs only where there is a complete

9

breakdown in communication between the attorney and client, and the breakdown prevents

10

effective assistance of counsel. Disagreements over strategic or tactical decisions do not rise to

11

[the] level of a complete breakdown in communication.” (citing Schell, 281 F.3d at 1026)).

12

As explained by the Ninth Circuit:

13

The test for determining whether the trial judge should have granted
a substitution motion is the same as the test for determining
whether an irreconcilable conflict existed. The court must consider:
(1) the extent of the conflict; (2) whether the trial judge made an
appropriate inquiry into the extent of the conflict; and (3) the
timeliness of the motion to substitute counsel.

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Daniels v. Woodford, 428 F.3d 1181, 1197-98 (9th Cir. 2005) (citations omitted).

18

C. Analysis

19

In the instant case, respondent filed, under seal, a copy of the transcript from petitioner’s

20

Marsden hearing. (ECF No. 17.) Petitioner attached a copy of this transcript to the petition.

21

(ECF No. 1 at 34-46.) After independently reviewing the transcript from the Marsden hearing,

22

with one exception discussed herein, the undersigned finds that the opinion of the California

23

Court of Appeal accurately summarizes this transcript.
Turning to the merits of the instant claim, the timeliness of petitioner’s motion to

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25

substitute counsel is not at issue. Accordingly, the undersigned focuses on the extent of the

26

conflict between petitioner and her counsel and the trial judge’s inquiry.

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1

Trial Court’s Inquiry

2

As discussed herein, the record reflects that the trial court made full and appropriate

3

inquiries into petitioner’s complaints against defense counsel. The trial court first asked

4

petitioner to explain why she made the Marsden motion. (ECF No. 17 at 2.) Petitioner initially

5

told the court that she made the motion because her case was not “looked into…like it should

6

have been.” (Id.) After discussing this issue with petitioner and trial counsel, trial counsel told

7

the court that petitioner initially told him that she wanted to file a Marsden motion for a different

8

reason, which was that counsel had coerced or pressured her into taking a plea. (Id. at 4.) The

9

trial court talked to petitioner and trial counsel regarding her claim of coercion. (Id. at 6-10.) The

10

trial court also discussed with petitioner her claim that she thought her plea agreement was for 9

11

years with 50% time, but that the plea agreement she signed was for 9 years with 85% time. (Id.

12

at 12-14.)

13

With respect to petitioner’s claim that trial counsel had not adequately investigated the

14

case, trial counsel explained the witnesses his investigator interviewed as well as the evidence

15

that had been reviewed before petitioner entered her plea. (Id. at 3-5.) Trial counsel described

16

his experience. (Id. at 5-6.) Trial counsel stated that he had been using his private investigator

17

since 2011. (Id. at 5-6.) While petitioner stated that she wanted further investigation done

18

regarding the weapon involved, trial counsel stated that investigation had been conducted

19

regarding the weapon. (Id. at 3-4.) Petitioner stated that more witnesses should have been

20

interviewed. (Id. at 3.) After the trial court asked her which witness should have been talked to,

21

petitioner responded, “Maybe the people at the scene other than just the victim and her sons.”

22

(Id.) Trial counsel responded that every witness made available in the discovery or told to him

23

and his investigator by petitioner was interviewed. (Id. at 3-4.) The trial court found that there

24

was no basis to petitioner’s complaints that her case was not adequately investigated or prepared.

25

(Id. at 10.)

26

After trial counsel told the trial court that petitioner had informed him that she felt that he

27

had pressured her into taking the plea, the trial court asked trial counsel to explain what happened

28

regarding the 9 year offer. (Id. at 7-10.) Trial counsel explained that the 9 year offer was
15

1

available for a short period of time, and that petitioner contacted his office because she wanted to

2

accept it. (Id.) After describing the sequence of events that led petitioner to plead guilty, the trial

3

court found that petitioner was not coerced into accepting a deal she did not want. (Id. at 10-12.)

4

The trial court observed that petitioner’s trial counsel was able to “resurrect” the original nine

5

year offer, but that this offer had to be accepted prior to the trial readiness conference date. (Id. at

6

11.)

7

The California Court of Appeal found that during the week long interval between the

8

pretrial conference and the trial readiness conference, petitioner called defense counsel to say that

9

she wanted to accept the original nine year offer. The California Court of Appeal then found that

10

trial counsel convinced the prosecution to resurrect the original offer and arranged for the case to

11

be added to the trial court’s calendar so that the plea could be entered. The transcript from the

12

Marsden hearing suggests that the district attorney reverted to the nine year offer at the last

13

minute, rather than defense counsel negotiating for resurrection of the offer at petitioner’s

14

request:

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Trial counsel: Correct. So the next series of offers were in the
double digits. They were ten years and odd months. But
everything came up to an arrangement of a 12-year, three-month
offer. Rather than risking the maximum at trial, and that was in
place for quite a while, that situation was in place up to the pretrial
conference date immediately before trial readiness, and then an
offer was finally made by the D.A. to revert to the nine year offer,
but it was not going to be in place on the trial readiness calendar
point blank on that date.

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So that left us with days for Ms. Foster to consider. And it was
then she contacted our office that we add it back on calendar. I
thought it was a wise move. I still do. Submitted.

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22

Court: When she contacted your office, what did she contact your
office about?

23

Trial Counsel: The offer. There was no other reason to do it. The
question is, is this offer – is this offer going to be gone. The answer
was yes. The offer has been put in place if we do this prior to trial
readiness calendar, and that’s why it needed to be added on.

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25
26
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(Id. at 9-10.)
The trial court also asked trial counsel whether he told petitioner that the offer was for 9
years, 50% time. (Id. at 13-15.) Trial counsel told the court that while 50% had been discussed,
16

1

he advised petitioner that the offer was for 85%. (Id.)

2

After reviewing the transcript from the Marsden hearing, the undersigned finds that the

3

factual record was sufficiently developed to allow the trial court to make an informed decision

4

that petitioner’s claim of conflict with his attorney was not sufficient to require substitute counsel.

5

See United States v. Prime, 431 F.3d 1147, 1155 (9th Cir. 2005) (inquiry was adequate where

6

defendant “was given the opportunity to express whatever concerns he had, and the court inquired

7

as to [defense attorney’s] commitment to the case and his perspective on the degree of

8

communication.”). The trial court thoroughly discussed with petitioner, and trial counsel, the

9

grounds of her motion for substitute counsel.

10

Extent of Conflict Between Petitioner and Defense Counsel

11

The undersigned next finds that the conflict between petitioner and her trial counsel did

12

not result in a total lack of communication or other significant impediment that resulted in an

13

attorney-client relationship that violated petitioner’s Sixth Amendment rights. Schell, 218 F.3d at

14

1026. Although petitioner alleged in her appeal, and in the instant habeas petition, that her

15

relationship with trial counsel had “irretrievably broken down,” the record does not support this

16

claim. An irreconcilable conflict in violation of the Sixth Amendment occurs only where there is

17

a complete breakdown in communication between the attorney and client, and the breakdown

18

prevents effective assistance of counsel. Schell, 218 F.3d at 1026. Disagreements over

19

strategical or tactical decisions do not rise to level of a complete breakdown in communication.

20

Id.

21

The disagreements petitioner alleged with her trial counsel during the Marsden hearing

22

did not demonstrate a complete breakdown in communication that prevented effective assistance

23

of counsel. Trial counsel’s description of his investigation rebutted petitioner’s claim that he had

24

not adequately investigated her case. While petitioner indicated that she felt pressured to take the

25

9 year deal, the record demonstrates that the “resurrected” offer was available for only a short

26

period of time, as are many plea offers.3 In addition, the 9 year offer had been offered earlier

27
28

3

Whether trial counsel or the district attorney “resurrected” the offer is not important to the
court’s evaluation of the instant claim.
17

1

during the case. The record contained no evidence of improper pressure or coercion by defense

2

counsel that resulted in a complete breakdown of in communication. Finally, the record

3

demonstrates that counsel did not misrepresent the terms of the plea to petitioner.

4

Petitioner also argues that the trial court should have granted her Marsden motion based

5

on her contemplated motion to withdraw her plea based on trial counsel’s alleged failure to

6

investigate her case and coercion. As noted by the California Court of Appeal, petitioner’s failure

7

to file a motion to withdraw her plea undermines this claim. Moreover, as noted by the California

8

Court of Appeal, the trial court reasonably rejected the factual premise for petitioner’s complaints

9

against trial counsel.

10

For the reasons discussed above, the undersigned finds that the denial of petitioner’s Sixth

11

Amendment claim by the state courts was not an unreasonable application of clearly established

12

Supreme Court authority.

13

Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s application for a petition for writ of habeas corpus is denied;

15

2. A certificate of appealability is not issued.

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Dated: September 28, 2017

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Fos1774,157
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