Sanchez v. Phiffer

Filing 18

ORDER signed by Magistrate Judge Gregory G. Hollows on 1/21/2019 ORDERING that Claims 1 and 2 of the petition are DENIED. The undersigned will hold an evidentiary hearing on Claim 3. The Clerk shall serve a copy of this order on the Federal Defender, who shall represent petitioner at the evidentiary hearing, or the Federal Defender shall suggest the appointment of a specific private counsel from the Panel. (cc: Office of Federal Defender) (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FABIAN SANCHEZ,

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Petitioner,

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No. 2:17-cv-0080 GGH

ORDER1

v.
CHRISTIAN PHIFFER,

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Respondent.

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Introduction and Summary

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Some defendants experience ineffective assistance at trial, and the usual remedy, if the

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required prejudice is shown, is a new criminal proceeding, even retrial. Not many who have been

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granted a new trial experience ineffective assistance again at the second criminal proceeding.

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Petitioner herein is in that infrequent subset where ineffective assistance struck twice. After

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thorough consideration of the issues in this case, the undersigned will deny Claims 1 and 2, and

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order an evidentiary hearing on Claim 3.

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Background Facts

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As is ordinarily the case, the California Court of Appeal supplies the pertinent facts which
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This matter is proceeding before the undersigned, a United States Magistrate Judge, with the
consent of the parties pursuant to 28 U.S.C. § 636(c).
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guide resolution of this federal habeas.2 This case is no different:

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This case returns after our 2012 reversal of defendant Fabian
Sanchez’s convictions for burglary, petty theft with a prior, and
prowling based on the ineffective assistance of his trial counsel. On
remand, defendant pled no contest to first degree burglary
(Pen.Code, § 459)1 with a special allegation that the dwelling was
occupied during the commission of the burglary (§ 667.5, subd.
(c)(21)), petty theft with a prior (§§ 484, subd. (a), 490.5, subd.
(a),2 666, subd. (b)) and misdemeanor prowling (§ 647, subd. (h)).
He admitted a prior strike conviction and prior serious felony. (§§
667, subds.(a)(1), (c), (e)(1).) His plea was deemed an admission of
a violation of probation in another burglary case. The trial court
sentenced him to an aggregate term of 14 years and four months
and later granted his request for a certificate of probable cause (§
1237.5).

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On appeal, defendant again challenges the adequacy of his legal
representation, contending: (1) his second counsel had a conflict of
interest and the trial court erred in not replacing her; (2) the People
must re-offer him the original plea offer of eight years and four
months; and (3) counsel provided ineffective assistance. Although
we find much of the procedural history in this case troubling, as we
detail post, we conclude that defendant has failed to show
prejudicial error. Accordingly, we must affirm.

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BACKGROUND

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We granted the People’s request to take judicial notice of the record
in defendant’s prior appeal, case No. C066742. We borrow
liberally from our previous opinion in that case. (People v. Sanchez
(Aug. 30, 2012, C066742) [nonpub. opn.] (Sanchez).)

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2010 Proceedings

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“Prior to the preliminary hearing, defendant was offered a plea deal
to resolve both the burglary and probation violation cases.
Defendant would plead to the burglary and admit the occupied
dwelling and prior serious felony conviction enhancements. The
People would dismiss the prior strike allegation. Defendant would
be sentenced to an aggregate term of eight years and four months,
consisting of a low term of two years on the burglary conviction,
plus five years for the prior serious felony enhancement and 16
months on the separate probation violation. The offer was to
remain open until the preliminary hearing. Defendant rejected the
plea. During the preliminary hearing, defense counsel argued
defendant should not be held to answer on the burglary charge,
because even though the surveillance video showed him briefly
entering the garage it could not be inferred he intended to steal from
the garage, only that he intended to commit theft from the vehicle.”
(Sanchez, supra, C066742, slip opn. at p. at *2.)

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Petitioner does not challenge the facts; he does challenge the legal conclusions which are drawn
from the facts.
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At trial, defense counsel conceded the video surveillance of the
burglary established defendant had committed the petty theft from
the truck and the prowling offenses. Counsel argued that although
defendant went into the garage, he was there only a few seconds
and did not take anything, and there was no evidence he had the
intent to steal from the garage. (Sanchez, supra, C066742, slip opn.
at p. at *2.)
A jury found defendant guilty of all counts and found the special
allegation attached to the burglary count true. In bifurcated
proceedings, the court found the prior conviction allegation true.
The trial court sentenced defendant to an aggregate term on both
cases of 14 years and four months in prison. (Sanchez, supra,
C066742, slip opn. at p. at *3.)

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On appeal, we found defense counsel rendered ineffective
assistance. “The record here establishes that from the earliest
stages of the proceedings and throughout, defense counsel was
operating under a misapprehension of the intent required for
burglary. Specifically, counsel wrongly believed defendant had to
have intended to enter the garage with the intent to commit a theft
or felony within the garage. Counsel rested his defense on this
erroneous view of the law. As a result, his defense counsel
effectively argued defendant was guilty of burglary.” (Sanchez,
supra, C066742, slip opn. at p. at *4.) “[A]s a direct result of
counsel’s misunderstanding of the law, he argued a legal theory that
was unsupported by the law on the intent required for burglary. He
also failed to argue an identity defense, a defense that could be
supported by the evidence.” (Id. at p. *5.)

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We concluded defendant was not provided effective assistance of
counsel and no “true adversarial criminal trial was conducted.”
(Sanchez, supra, C066742, slip opn. at p. *5.) Accordingly, we
reversed the conviction and remanded for further proceedings. (Id.
at p. *6.)

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2012–2013 Proceedings

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On remand, the People moved to amend the information; the
amendment charged defendant in count 2 with a felony violation of
“Sections 484(a), 490.5(a), and 666(b) of the California Penal
Code, PETTY THEFT OF RETAIL MERCHANDISE WITH
PRIOR CONVICTION.” The original information had charged
felony petty theft as well, but as a violation of sections 484, subd.
(a), 488, and 666. The trial court granted the motion to amend;
defense counsel did not object to the amendment.

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On December 3, 2012, at defendant’s first appearance in court,
assistant public defender Richard Van Zandt—who had represented
defendant in the first trial—told the court he had spoken with
defendant and there was “not going to be a resolution” to the case.
The case was set for a jury trial. Shortly thereafter, Van Zandt was
replaced by another assistant public defender, his supervisor Sally
Frederickson.

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At a March 1, 2013, pretrial hearing to set an early disposition
conference defense counsel put on the record and defendant
confirmed that he was “not interested” in the original offer of eight
years, four months. The People clarified that they were not
currently offering eight years four months, and that was not their
current position as to how the case should resolve.

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On March 27, 2013, defendant moved for substitute counsel.
Fredericksen and the Public Defender, Tracie Olson, were present.
Defendant first objected that Fredericksen had supervised Van
Zandt, and therefore Van Zandt’s inadequacy could be attributable
to her. In response, Fredericksen claimed Van Zandt was very
experienced and she did not recall discussing the case with him.
Defendant’s primary complaint was that Fredericksen had been
unable to get him a plea deal and he was willing to resolve the case.
He explained he had been offered an eight-year deal before the first
trial, but he did not take it because his attorney told him they “could
beat the case.” Defendant said he declined the offer without
knowing that his attorney “wasn’t knowledgeable on the law.”
Defendant said he had understood he was going to be appointed a
conflict of interest attorney.

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Fredericksen responded that defendant was “dissatisfied with my
inability to get an offer that I cannot get.” She explained she was
limited in her ability to reduce defendant’s sentence due to the
charges, especially the prior serious felony, and the violation of
probation in a prior burglary case. The court agreed with her
assessment, telling defendant: “The fact that you may have been
offered something way back when in the beginning and your
attorney advised you not to take it at the time, and you’re saying,
gee, that’s kind of unfair, and I think I might agree with you, but I
don’t think it has any legal consequence.” The court explained
defense counsel could not control any plea offers by the district
attorney. The court denied defendant’s motion.

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The People made a new offer of 12 years. Defense counsel advised
defendant to reject that offer; she proposed a counteroffer of 10
years four months. Defendant eventually agreed to plead no contest
to all the charges, and to admit the prior conviction allegations and
the violation of probation, with the understanding his sentence
would be between 10 years four months and 14 years 4 months.
The plea form advised defendant that his “maximum exposure” was
18 years and four months in state prison. Counsel stipulated to a
factual basis for the plea based on the court’s assertion it had
conducted the prior trial. The trial court sentenced defendant to an
aggregate term of 14 years and four months.

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People v. Sanchez, No. C0073886, 2015 WL 3902113, at *1-3 (Cal. App. June, 25, 2015).

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Issues

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Petitioner raises the following issues in his federal habeas petition:
1. The Trial Court Erred in Denying Substitution of Counsel;
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2. Ineffective Assistance of Counsel Based on Conflict of Interest; and

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3. Ineffective Assistance of Counsel In Conjunction With No Contest Plea (Second

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Proceeding).
AEDPA Standards

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The statutory limitations of the power of federal courts to issue habeas corpus relief for

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persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and

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Effective Death Penalty Act of 1996 (“AEDPA”). The text of § 2254(d) provides:

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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–
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
For purposes of applying § 2254(d)(1), clearly established federal law consists of holdings

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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, 565 U.S. 34,

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39 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) citing Williams v. Taylor, 529

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U.S. 362, 405-406 (2000). Circuit precedent may not be “used to refine or sharpen a general

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principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has

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not announced.” Marshall v. Rodgers, 569 U.S. 58, 63-64 (2013) citing Parker v. Matthews, 567

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U.S. 37, 48 (2012). Nor may it be used to “determine whether a particular rule of law is so

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widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court,

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be accepted as correct. Id.

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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. Lockyer v.

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

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

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

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

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also be unreasonable.” Williams, supra, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S.

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465, 473 (2007); Lockyer, supra, 538 U.S. at 75 (it is “not enough that a federal habeas court, ‘in

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

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was ‘erroneous.’” “A state court’s determination that a claim lacks merit precludes federal habeas

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relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s

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decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) quoting Yarborough v. Alvarado, 541

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U.S. 652, 664 (2004). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal

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court, a state prisoner must show that the state court’s ruling on the claim being presented in

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federal court was so lacking in justification that there was an error well understood and

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comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington,

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supra, 562 U.S. at 103.

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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, supra, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.

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2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning

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from a previous state court decision, this court may consider both decisions to ascertain the

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

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banc). “[Section] 2254(d) does not require a state court to give reasons before its decision can be

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deemed to have been ‘adjudicated on the merits.’” Harrington, supra, 562 U.S. at 100. Rather,

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“[w]hen a federal claim has been presented to a state court and the state court has denied relief, it

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

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indication or state-law procedural principles to the contrary.” Id. at 99. This presumption may be

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overcome by a showing “there is reason to think some other explanation for the state court’s
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decision is more likely.” Id. at 99-100. Similarly, when a state court decision on a petitioner’s

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claims rejects some claims but does not expressly address a federal claim, a “federal habeas court

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must presume (subject to rebuttal) that the federal claim was adjudicated on the merits.” Johnson

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v. Williams, 568 U.S. 289, 293 (2013). When it is clear, however, that a state court has not

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reached the merits of a petitioner’s claim, the deferential standard set forth in 28 U.S.C. § 2254(d)

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does not apply and a federal habeas court must review the claim de novo. Stanley, supra, 633

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F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d

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1052, 1056 (9th Cir. 2003).

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The state court need not have cited to federal authority, or even have indicated awareness

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of federal authority in arriving at its decision. Early v. Packer, 537 U.S. 3, 8 (2002). Where the

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state court reaches a decision on the merits but provides no reasoning to support its conclusion, a

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federal habeas court independently reviews the record to determine whether habeas corpus relief

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is available under § 2254(d). Stanley, supra, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848,

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853 (9th Cir. 2003). “Independent review of the record is not de novo review of the constitutional

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issue, but rather, the only method by which we can determine whether a silent state court decision

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is objectively unreasonable.” Id. at 853. Where no reasoned decision is available, the habeas

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petitioner still has the burden of “showing there was no reasonable basis for the state

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court to deny relief.” Harrington, supra, 562 U.S. at 98. A summary denial is presumed to be a

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denial on the merits of the petitioner’s claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir.

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2012). While the federal court cannot analyze just what the state court did when it issued a

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summary denial, the federal court must review the state court record to determine whether there

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was any “reasonable basis for the state court to deny relief.” Harrington, supra, 562 U.S. at 98.

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This court “must determine what arguments or theories ... could have supported, the state court’s

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decision; and then it must ask whether it is possible fairminded jurists could disagree that those

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arguments or theories are inconsistent with the application was unreasonable requires considering

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the rule’s specificity. The more general the rule, the more leeway courts have in reaching

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outcomes in case-by-case determinations.’” Id. at 101, quoting Knowles v. Mirzayance, 556 U.S.

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111, 122 (2009). Emphasizing the stringency of this standard, which “stops short of imposing a
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complete bar of federal court relitigation of claims already rejected in state court proceedings [,]”

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the Supreme Court has cautioned that “even a strong case for relief does not mean the state

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court’s contrary conclusion was unreasonable.” Id. at 102, citing Lockyer, supra, 538 U.S. at 75.

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With these principles in mind the court turns to the merits of the petition.

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Discussion

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A. Denying Substitution of Counsel

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Petitioner asserts that the trial judge should have automatically substituted counsel due to

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an actual conflict of counsel. He asserts that this actual conflict stemmed from the fact that the

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Public Defender supervisor --of his first proceeding ineffective counsel-- represented petitioner in

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the second proceeding, and that a presumed “loyalty to one’s subordinate” precluded effective

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representation. Supplementing the petition’s argument with arguments made before the Court of

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Appeal (petitioner did not file a traverse in this federal case), Petitioner goes on to discuss how

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this supposed actual conflict adversely affected counsel’s performance during the second

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proceeding.

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The Court of Appeal treated this claim as one expressing an “actual conflict” evidently

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finding that a proven conflict causing an adverse effect on attorney representation would require a

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substitution of counsel:

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“A criminal defendant is guaranteed the right to the assistance of
counsel by the Sixth Amendment to the United States Constitution
and article I, section 15 of the California Constitution. This
constitutional right includes the correlative right to representation
free from any conflict of interest that undermines counsel’s loyalty
to his or her client. [Citations.] ‘It has long been held that under
both Constitutions, a defendant is deprived of his or her
constitutional right to the assistance of counsel in certain
circumstances when, despite the physical presence of a defense
attorney at trial, that attorney labored under a conflict of interest
that compromised his or her loyalty to the defendant.’ [Citation.]
‘As a general proposition, such conflicts “embrace all situations in
which an attorney’s loyalty to, or efforts on behalf of, a client are
threatened by his responsibilities to another client or a third person
or his own interests. [Citation.]” ’ [Citation.]” (People v. Doolin
(2009) 45 Cal.4th 390, 417 (Doolin).)
Claims of Sixth Amendment violations based on conflicts of
interest are a category of ineffective assistance of counsel claim that
“generally require a defendant to show (1) counsel’s deficient
performance, and (2) a reasonable probability that, absent counsel’s
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deficiencies, the result of the proceeding would have been different.
[Citation.] In the context of a conflict of interest claim, deficient
performance is demonstrated by a showing that defense counsel
labored under an actual conflict of interest ‘that affected counsel’s
performance —as opposed to a mere theoretical division of
loyalties.’ [Citations.] ‘[I]nquiry into actual conflict [does not
require] something separate and apart from adverse effect.’
[Citation.] ‘An “actual conflict,” for Sixth Amendment purposes, is
a conflict of interest that adversely affects counsel’s performance.’
[Citation.]” (, 45 Cal.4th at pp. 417–418.)

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The only articulated adverse effect of the alleged conflict on
Fredericksen’s performance is her failure to ask for an order
requiring the People to re-offer the eight-year, four-month plea
deal.
We next decide whether that failure was deficient
performance.

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People v. Sanchez, 2015 WL 3902113, at *3-4.3
The Court of Appeal went on to find that because petitioner had expressed that he did not

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want the previous deal, the alleged conflict could not have had an adverse effect on counsel’s

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performance (and hence substitution of counsel was not required).

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The record, however, provides a different explanation for counsel’s
failure to act. Counsel may not have sought the remedy provided
by Lafler simply because defendant had indicated multiple times
that he did not want it. At the outset, Van Zandt reported that after
speaking with defendant, there would be no resolution of the case.
Later, Fredericksen and defendant confirmed on the record that
defendant was “not interested” in the original plea offer.

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Although defendant asserts that when he moved for substitute
counsel, he argued “that Fredericksen had not assisted him to obtain
the original plea offer from 2010,” the record does not support his
assertion. Defendant was clearly upset that Fredericksen had not
been able to obtain a plea offer other than an offer of 13 years
which he rejected— “That’s not a deal.” He referred to the previous
offer of eight years and indicated he was willing to resolve the case,
but he never said he wanted the previous offer. In fact, the record
suggests defendant was hoping for an even better offer. Later in the
hearing, defendant said he understood that the five-year prior and
strike would result in a nine-year sentence and seemed to indicate
that was not acceptable. He suggested asking the judge to strike his
strike, and indicated that was how the eight-year offer was reached.
He then calculated this new sentence as two years for the burglary
and a year and a half for the violation. “That’s all.” He made no
mention of the five-year prior or the theft charge; he appears to
have been hoping for a three-year, six-month sentence. This is
consistent with his previous statement to probation that if “given
the chance he would have accepted a four year prison term.” (Italics

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Doolin had cited Mickens v. Taylor, 535 U.S. 162 (2002) at various points in its opinion.
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added)

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Defendant’s ambiguous statements at the hearing on his motion for
substitute counsel, particularly in light of his earlier express
rejection of the prior plea deal, were insufficient to signal to
counsel that she should try to obtain the prior offer by seeking relief
under Lafler. Further, even assuming for the sake of argument that
defendant’s statements at the hearing constituted a request for the
prior plea offer, the record does not show why, at that point,
counsel did not seek a Lafler remedy. If the record does not show
why counsel failed to act in the manner challenged, we must affirm
the judgment unless there simply could be no satisfactory
explanation for counsel’s conduct. (People v. Maury (2003) 30
Cal.4th 342, 389.) Defendant has not shown that counsel was
ignorant of or misunderstood the law. Indeed, by putting
defendant’s lack of interest in the prior offer on the record, counsel
earlier had signaled that resurrecting the prior offer had been
considered and rejected. Thus there could be a satisfactory
explanation for counsel’s failure to act to request a Lafler remedy at
the Marsden hearing.

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People v. Sanchez, 2015 WL 3902113, at *5-6 (footnote omitted).
To the extent that the Court of Appeal in this case, found that the adverse impact of any

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asserted conflict, no matter how remote or illogical, will solely be decided by whether counsel

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made a mistake in representation, the undersigned finds that the Court of Appeal overemphasized

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Mickens v. Taylor. There has to be, at least, a conflict that jurists would view as a possible,

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potential representation of conflicting interests, or a conflict which itself played a causative role in

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the alleged adverse performance.

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Lest today's holding be misconstrued, we note that the only
question presented was the effect of a trial court's failure to inquire
into a potential conflict upon the Sullivan rule that deficient
performance of counsel must be shown. The case was presented
and argued on the assumption that (absent some exception for
failure to inquire) Sullivan would be applicable—requiring a
showing of defective performance, but not requiring in addition (as
Strickland does in other ineffectiveness-of-counsel cases), a
showing of probable effect upon the outcome of trial. That
assumption was not unreasonable in light of the holdings of Courts
of Appeals, which have applied Sullivan “unblinkingly” to “all
kinds of alleged attorney ethical conflicts,” Beets v. Scott, 65 F.3d
1258, 1266 (C.A.5 1995) (en banc). They have invoked the Sullivan
standard not only when (as here) there is a conflict rooted in
counsel's obligations to former clients, see, e.g., Perillo v. Johnson,
205 F.3d 775, 797–799 (C.A.5 2000); Freund v. Butterworth, 165
F.3d 839, 858–860 (C.A.11 1999); Mannhalt v. Reed, 847 F.2d 576,
580 (C.A.9 1988); United States v. Young, 644 F.2d 1008, 1013
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(C.A.4 1981), but even when representation of the defendant
somehow implicates counsel's personal or financial interests,
including a book deal, United States v. Hearst, 638 F.2d 1190, 1193
(C.A.9 1980), a job with the prosecutor's office, Garcia v. Bunnell,
33 F.3d 1193, 1194–1195, 1198, n. 4 (C.A.9 1994), the teaching of
classes to Internal Revenue Service agents, United States v.
Michaud, 925 F.2d 37, 40–42 (C.A.1 1991), a romantic
“entanglement” with the prosecutor, Summerlin v. Stewart, 267
F.3d 926, 935–941 (C.A.9 2001), or fear of antagonizing the trial
judge, United States v. Sayan, 968 F.2d 55, 64–65 (C.A.D.C.1992).

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It must be said, however, that the language of Sullivan itself does
not clearly establish, or indeed even support, such expansive
application. “[U]ntil,” it said, “a defendant shows that his counsel
actively represented conflicting interests, he has not established the
constitutional predicate for his claim of ineffective assistance.” 446
U.S., at 350, 100 S.Ct. 1708 (emphasis added).
Mickens v.Taylor, 535 U.S. 162, 174-175 (2001).
As stated in Hovey v. Ayers, 458 F.3d 892, 908-909 (2004), attorney neglect can be
different from attorney conflict.
Hovey argues that counsel should have followed up on the
informants' histories of mental health problems and drug and
alcohol dependency. Counsel stated that he faced an “impediment”
due to the prior representation of the informants by the Public
Defender's Office and by co-counsel and that there was a certain
amount of investigation that he did not undertake because he felt
constrained by the conflict. The district court, however, did not take
counsel's testimony at face value, but instead made a factual finding
that counsel's failure to fully investigate the informants was not
motivated by any conflict of interest, but rather by counsel's own
incompetence. Based on a review of the evidence, that finding was
not clearly erroneous. Counsel's no-holds-barred impeachment of
the informants, adopting a trial strategy of portraying the
informants as untrustworthy individuals who fabricated testimony
for their own benefit, supports the district court's conclusion that
counsel's handling of the informants was not affected by the
indirect conflict.
Because the district court properly found that any failure to
investigate the evidence supporting an alternative defense theory
stemmed from neglect, not from divided loyalties, we focus our
inquiry on the traditional inquiry into deficiency and prejudice that
is applicable to such ineffective assistance claims.
See also Foote v. Del Papa, 492 F.3d 1026, 1029-1030 (9th Cir. 2007) (emphasis added):
Cuyler v. Sullivan does not save Foote's claim. Sullivan established
that under the Sixth Amendment we will “forgo individual inquiry
into whether counsel's inadequate performance undermined the
reliability of the verdict in instances where assistance of counsel
11

1
2
3
4
5
6
7
8
9

has been denied entirely or during a critical stage of the
proceeding.” 446 U.S. 335, 348, 350, 100 S.Ct. 1708, 64 L.Ed.2d
333 (1980). We have described this principal as the “Sullivan
exception” to the rule that a habeas petitioner must show prejudice
in connection with his ineffective assistance of counsel claim. See
Earp v. Ornoski, 431 F.3d 1158, 1183 (9th Cir.2005); see also
Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d
291 (2002) (recognizing Sullivan exception). The Sullivan
exception applies where the petitioner shows: (1) that his counsel
actively represented conflicting interests; and (2) that this adversely
affected his counsel's performance. See id. at 1182, citing Sullivan,
446 U.S. at 348, 100 S.Ct. 1708. “To show an actual conflict
resulting in an adverse effect, [the petitioner] must demonstrate that
some plausible alternative defense strategy or tactic might have
been pursued but was not and that the alternative defense was
inherently in conflict with or not undertaken due to the attorney's
other loyalties or interests.” Hovey v. Ayers, 458 F.3d 892, 908 (9th
Cir. 2006) (quotations omitted).

10
11

Thus, petitioner’s claim fails on two points under established Supreme Court authority—

12

he has not shown the active representation of conflicting interests, nor did he show any

13

relationship whatsoever between the “failure” to ask for the previous deal and any presumed

14

representation of adverse interests.

15

The Public Defender’s office through its supervisory attorney (not even the previous

16

attorney from the Public Defender’s office), represented petitioner in the second proceeding.

17

There is no realistically possible division of loyalties in such a scenario. The public defender was

18

not representing its previous attorney in any parallel disciplinary proceeding—the mistake of the

19

previous attorney had been adjudicated, and been rectified, and was completely irrelevant to the

20

second proceeding. There was no aspect of the second proceeding dependent in any part in

21

establishing that the first attorney was correct, or excused, in his previous legal error. There was

22

no reason to have to “defend” the previous attorney. To what possible end could have supervisory

23

attorney been conflicted? Petitioner thinks that there had to have been “collegial interest”

24

between the attorneys in the public defender’s office which naturally had an adverse impact on

25

the supervisory attorney’s performance in the second proceeding. However, “collegial interest”

26

is not a conflict in itself. There would have to be some need to “represent” the first attorney, or

27

the “honor” of the public defender’s office, but again, there was no aspect of the second

28
12

1

proceeding where such would have been relevant. What petitioner would have to allege in order

2

to have any relevancy of this “collegial interest” was that the failure to seek the Lafler remedy

3

was marked by some sub rosa vindictive spite on the part of supervisory counsel against

4

petitioner because he had demonstrated the temerity to argue that the first public defender was

5

ineffective, or that the public defender’s office as a whole was of suspect expertise, i.e., she was

6

“representing” first counsel (or her office) in the second proceeding by inflicting some revengeful

7

neglect on petitioner. This is so farfetched under the present facts as not to count as the “active

8

representation of conflicting interests” in the first place. There was no “representation” of the

9

first counsel, or the public defender’s office, relevant to any aspect of the second proceeding,

10

petitioner’s subjective, speculative suspicions notwithstanding.4

11

But even if petitioner’s allegations rise to the level of active representation of conflicting

12

interests, that brings us to the “adverse effect” part of the equation. The Court of Appeal believed

13

that because the facts suggested at the time of the Marsden motion petitioner had expressed no

14

interest in the previous deal,5 counsel’s “conflict” could not have adversely affected petitioner.

15

Petitioner has proffered no facts which would make the factual finding of the Court of Appeal

16

AEDPA unreasonable.6 At best, he postulates his present state of mind, after all was said and

17

done in the second proceeding, that he might have, in hindsight, taken the deal at the time of the

18

Marsden motion if he had to make the decision over again. The undersigned again states that

19

petitioner has gone no distance in establishing any direct facts or reasonable inferences, that

20

counsel was acting adversely in not resurrecting the previously offered deal because of the

21

alleged collegial interest. Petitioner’s requested inference to the contrary is completely a

22

speculative, illogical suspicion and unworthy of being called a “reasonable” inference.

23

The Court of Appeal analyzed Lafler v. Cooper, 566 U.S. 156 (2012), as the supposed

24

adverse effect on petitioner’s representation due to the assumed and not analyzed “conflict of

25

4

26
27
28

Petitioner believes the general commentary during his Marsden motion that the first attorney
was experienced demonstrated the “representation.” But whether first counsel was experienced
or not, had nothing to do with the second proceeding as that counsel was not involved.
5
Ultimately, petitioner accepted a worse deal in the second proceeding; so, his state of mind must
have markedly changed over time for some unexplained reason.
6
The Court of Appeal’s analysis is discussed further, infra.
13

1

interest.” This Supreme Court case held that ineffective assistance in the first proceeding is not

2

cured by a second proceeding free of constitutional error. This has to do with whether in the

3

subsequent proceeding the trial court should be motioned to mandate the re-offer of the plea

4

bargain possibly, erroneously rejected by petitioner on account of bad advice in the first

5

proceeding. As set forth in the facts above, the bad advice was first counsel’s erroneous belief

6

that as a matter of law petitioner was innocent of the burglary charge, and his consequent

7

disparagement of the offered plea bargain. Counsel in the second proceeding did not move the

8

trial court for the discretionary Lafler remedy.

9

The Court of Appeal analyzed this issue under the “conflict” rubric, but without

10

discussion simply assumed the conflict and assumed that its (ultimately found harmless) effect

11

was caused by the supposed conflict. The undersigned will discuss further this alleged

12

ineffectiveness of second counsel in Section C which analyzes “simple” ineffective assistance.

13

However, the point here in Section A is that no conflict was present, nor could any asserted

14

ineffective assistance have been caused by the supposed conflict.

15

Moreover, the Court of Appeal assumed that the Lafler remedy must be made at the time

16

of a Marsden motion, to ward off any “adverse effect” of the “conflicted” second counsel. There

17

was no temporal requirement in Lafler for the motion to mandate the reoffer of the initial case

18

plea bargain, and plea negotiations continued in this case. It might well have been possible for

19

the prosecution to later reoffer the previous plea even without a motion. It would have been

20

possible for the Lafler motion to have been made subsequent to the Marsden hearing. It is never

21

explained why the Lafler remedy had to have been sought at, or prior to, a time when the issue

22

before the judge was substitution of counsel. The fact that the motion had not been made at or

23

prior to the Marsden motion had no bearing on whether counsel could make it in the future.

24

Thus, the undersigned again finds that the supposed conflict had no bearing on the alleged

25

ineffective assistance of counsel which required substitution at that moment.

26

Accordingly, it could not have been federal constitutional error not to substitute counsel

27

independent of the public defender’s office because of a conflict.

28

////
14

1

B. Ineffective Assistance of Counsel Based on Conflict of Interest

2

Petitioner essentially reprises his conflict argument made in Section A. He, again, focuses

3

on the alleged conflict of counsel at the first criminal proceeding. And he sets forth no alleged

4

ineffectiveness (in this section) concerning his different counsel in the second proceeding. The

5

ruling here simply repeats the discussion found in Section A above—there was no cognizable

6

conflict of interest and/or no conflict of interest that caused any adverse effect on petitioner in the

7

second proceeding. However, this finding does not preclude petitioner from asserting ordinary

8

neglect of his counsel stemming from the lack of a Lafler motion made sometime prior to the time

9

when petitioner accepted a much worse offer. That is discussed in the next section below.

10

C. Ineffective Assistance of Counsel In The Second Proceeding

11

The established standards for ordinary ineffective assistance of counsel are set forth

12

below.

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

fair trial, a trial whose result is reliable.’” Harrington, supra, 562 U.S. at 104 (quoting Strickland,

21

466 U.S. at 687). A reviewing court is required to make every effort “to eliminate the distorting

22

effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to

23

evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 669.

24

Reviewing courts must “indulge a strong presumption that counsel’s conduct falls within the wide

25

range of reasonable professional assistance.” Strickland, 466 U.S. at 689. There is in addition a

26

strong presumption that counsel “exercised acceptable professional judgment in all significant

27

decisions made.” Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S.

28

at 689). This presumption of reasonableness means that the court must “give the attorneys the
15

1

benefit of the doubt,” and must also “affirmatively entertain the range of possible reasons

2

[defense] counsel may have had for proceeding as they did.” Cullen v. Pinholster, 563 U.S. 170

3

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

4

Defense counsel has a “duty to make reasonable investigations or to make a reasonable

5

decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691.

6

A reviewing court must “examine the reasonableness of counsel’s conduct ‘as of the time

7

of counsel’s conduct.’” United States v. Chambers, 918 F.2d 1455, 1461 (9th Cir. 1990) (quoting

8

Strickland, 466 U.S. at 690). See also Rhoades v. Henry, 638 F.3d 1027, 1036 (9th Cir. 2011)

9

(counsel did not render ineffective assistance in failing to investigate or raise an argument on

10

appeal where “neither would have gone anywhere”).

11

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

12

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

13

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

14

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

15

Richter, 562 U.S. at 112.

16

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

17

Strickland standard was unreasonable.” Id. at 101. “[B]ecause the Strickland standard is a

18

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

19

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

20
21
22

For the reasons set forth below, the court finds the decision of the Court of Appeal to be
AEDPA unreasonable.
Firstly, while counsel may not have been ineffective for failure to seek a Lafler remedy at

23

or before the Marsden hearing, the record is silent as to why the motion was never made. The

24

Court of Appeal analyzed the Lafler remedy in the conflict context, and found, as set forth above,

25

that prior to the Marsden hearing, petitioner had expressed no desire to accept the first proceeding

26

plea offer. But we unequivocally know that at some time petitioner’s state of mind regarding a

27

plea offer obviously changed with respect to one similar to the plea bargain offered in the first

28

proceeding-- he ultimately accepted a plea offer with more punishing terms. The Lafler motion
16

1

was not without merit, and based on the facts here, reasonable counsel would have attempted such

2

a motion when petitioner was of the mind to settle for more than the 3-4 year deal he initially

3

demanded in the second proceeding. Prejudice is a quite apparent possibility as petitioner would

4

ultimately, certainly have accepted the earlier plea offer as opposed to the harsher one he

5

ultimately accepted.

6

Thus, an evidentiary hearing must be held to determine if there were some facts which

7

weighed against the second counsel making such a motion after the time petitioner had a change

8

of mind about what he would accept, and whether there was a reasonable probability that the

9

motion would have been granted.

10

But that is not the end of the ineffective assistance issue. As set forth by the Court of

11

Appeal, petitioner was also inexplicably sentenced for a crime for which he did not plead guilty.

12

Without quoting the Court of Appeal here, the prosecutor in the second proceeding changed the

13

“ordinary” petty theft charge to one involving petty theft of a retail establishment. As the Court

14

of Appeal further held, there was no basis for such a charge. A sub rosa amendment inserting the

15

correct charging statute was made at sentencing. And petitioner was sentenced on the “correct”

16

charge. The Court of Appeal viewed the situation as “sloppy,” but one involving no harm-no

17

foul.

18

It is probably the law that pleading to a crime which was not possible under the facts is

19

grounds for automatically vacating the plea, at least where there is a possibility of different

20

punishment for the two crimes. But petitioner does not make that claim. He filters the claim

21

through ineffective assistance of counsel which requires a prejudice finding. Although there can

22

be no question that reasonable counsel would have sought amendment of the Information to the

23

correct charge prior to allowing her client to accept a plea, petitioner raises no facts which

24

demonstrate prejudice. And, the undersigned is unaware of any. Thus, this claim for ineffective

25

assistance must fail.

26

Finally, it is unquestioned that prior to accepting the plea offer in the second proceeding

27

which he ultimately accepted, petitioner was misadvised about the maximum penalties for the

28

charges to which he ultimately plead because of principles of double jeopardy. People v Sanchez,
17

1

2015 WL 3902113, at *7. Although the maximum penalties for all the charged crimes were 18

2

years four months, principles of double jeopardy prohibited a punishment worse than that to

3

which petitioner was sentenced in the first proceeding—14 years and four months. However, the

4

factual situation relating to the misadvisement is somewhat unusual.

5

Evidently abandoning his previous reluctance to accept any plea that wasn’t a “good

6

deal,” petitioner and counsel were in court on March 29, 2013 to “plead to the sheet,” i.e. simply

7

plead guilty to all charges. Defense counsel presented a paper to the court and stated:

8

The idea here is that the Court will be sentencing in a range
between ten years, four months to 14 years, four months, and I will
be asking the Court at the time of sentencing to present evidence by
way of a 1204 hearing to help support, obviously, a lower range
sentence.

9
10
11

Res’t’s Lod. Doc. No. 13 at 93.

12

The prosecutor objected to this statement and added: “The only thing as stated on page

13

two, subsection 9, it says that this is a negotiated plea subject to the acceptance of the Superior

14

Court. It is not negotiated, it is just a straight plea to the sheet. Id. (emphasis added). Normally,

15

after this statement, the judge would advise the defendant that if he pled to the sheet, the

16

maximum penalty would be X and that he could not promise what the sentence would be. But in

17

this case, the judge picked up the plea negotiating reins, and stated:

18

I agree. I would ask the term negotiated to be removed. It is a plea
to the sheet, although the court has indicated a sentence that I would
impose based on this plea. The sentence is in a range of ten years,
four months to 14 years, four months. The Court would certainly
consider the arguments of counsel in determining the range as well
as the probation report. I’ll consider all these matters, and if you
wish to have a sentencing hearing, we certainly will do so.

19
20
21
22
23

Id. at 94.
The judge went on to tell petitioner that if for some reason the sentencing range changed

24

for the worse, he would be able to withdraw the plea. He then began to review with petitioner the

25

“plea form” petitioner had previously initialed, and abandoning any discretion with respect to the

26

sentence stated:

27
28

As I look at the plea form, there’s an indication that your maximum
exposure, as pled, would be 18 years, four months state prison, but
the Court has indicated that based on a plea to the sheet…[t]
18

1
2

sentence the Court would impose would be in the range of ten
years, four months to 14 years, four months state prison. You
understand that?

3

THE DEFENDANT: Yes, sir.

4

Id. at 95.

5

It should also be noted that these statements were made in the context of the previous

6

erroneous advisement to petitioner at the Marsden hearing that the court could not order the

7

prosecution to re-offer the previous plea deal.

8
9

Thus, in pleading to the sheet, petitioner had to have possessed the mindset that he was
getting some type of deal as the judge had excised the previously advised maximum potential

10

punishment from the non-plea agreement, plea agreement. Of course, petitioner was not getting

11

any such deal, as the maximum punishment if he pled guilty to all charges was limited by double

12

jeopardy principles, i.e., to the same punishment as was given as the top of the range. And, of

13

course, petitioner had to have been unaware that there was any possibility that Lafler set forth

14

possibility of the plea to 8 years four months, outside the range the judge had just unequivocally

15

said he was going to utilize. Defense counsel did not pick up on these mistakes, not then or

16

afterwards.

17

There was no question in Sanchez that reasonable counsel should have been aware of the

18

correct maximum and advised her client accordingly. See Bradshaw v. Stumph, 545 U.S. 175,

19

183 (2005); Boykin v. Alabama, 395 U.S. 238 (1969). There is no question that petitioner was

20

not advised of the real potential for a Lafler lesser punishment outside the lower end of the given

21

range.7

22
23
24
25
26
27
28

The Court of Appeal, silent as to the fact that counsel never made a Lafler motion, even
7

This is not a situation where counsel predicts a sentence within a given accurate range and
“close enough is good enough” with respect to the actual sentence given. The prediction must be
a gross mischaracterization of the actual sentence to warrant relief. Iaea v. Sun, 800 F.2d 861
(9th Cir. 1986). Here, in contrast, the maximum potential penalty was mischaracterized such that
a defendant might make a determination to plead to the sheet thinking there was actually a
reduction from the maximum in a proffered bargain (even if the bargain was court-initiated).
Defendants must be advised about the consequences of their plea, and no court sanctions a result
where the maximum penalty is stated in terms of “about X years, plus or minus.” Rather, the
actual maximum must be precisely given.
19

1

after petitioner’s state of mind about accepting a plea had changed, essentially assumed the error

2

with respect to the erroneous advisement of the 18 year maximum, and held with respect to

3

prejudice:

4
5
6
7
8
9
10
11
12

Here, by contrast, there is no evidence that defendant had
reservations about the wisdom of entering the plea bargain; he did
not claim that trial counsel coerced him into accepting a plea
bargain, and he did not demonstrate unhappiness with the plea by
attempting to withdraw it before sentencing. (See Johnson, supra,
36 Cal.App.4th at p. 1358.) Defendant has not even claimed, much
less pointed us to any evidence supporting the claim, that the
improper advice as to the maximum term played any part in his
decision to accept the plea offer. He merely asserts cursorily and
without supportive authority that counsel’s misadvisement rendered
his plea “unknowing and unintelligent.” Defendant has failed to
show prejudice.
People v. Sanchez, 2015 WL 3902113, at * 8.
This finding of fact is AEDPA unreasonable under 28 U.S.C. 2245(d)(2) whether one

13

looks to the factual conclusions drawn, or simply the absence of any real opportunity to present

14

the facts of prejudice. Either situation entitles petitioner to an evidentiary hearing. Earp v.

15

Ornoski, 431 F.3d 1158, 1166-1167 (9th Cir. 2005); Hawkins v. Chappell, No. 2:96-cv-01155-

16

TLN-EFB, 2013 WL 4095098, at *2 (E.D. Cal. Aug. 7, 2013) (and cases cited therein). How, on

17

direct appeal, was petitioner, being represented by counsel at all times, to independently offer

18

such facts outside of the record? He certainly could not have done so in the trial court—his

19

counsel was unaware of the error regarding double jeopardy principles in the first place; hence,

20

petitioner was presumably unaware as well. Moreover, claims of ineffective assistance of counsel

21

in California are not adjudged on appeal unless the facts of ineffective assistance, including

22

prejudice, are clear from the facts of record. People v. Lucero, 23 Cal.4th 692, 728-29 (2000).

23

Respondent does not assert that petitioner could have (easily or effectively) been able to

24

overcome this general rule. It does not appear to the undersigned that petitioner had an

25

opportunity to factually present prejudice. The inference drawing of the Court of Appeal cannot

26

suffice as a hearing in this case.

27

The fact of prejudice is colorable. Why would petitioner accept a plea bargain which

28

effectively cemented in the same sentence he was given before in the first proceeding. Some
20

1

bargain. It stands to reason that the analytical factor most important in the plea offer context is

2

the possible downside if one goes to trial. A misrepresented downside gives a false starting point

3

in assessment of whether to accept an offer—even where a counter-offer should start. The

4

misadvisement of the maximum penalty, coupled with the fact that trial counsel was ineffective in

5

not making a Lafler motion in which petitioner would have understood he had the real

6

opportunity for a much lower sentence, indicates the possibility, and perhaps probability, of

7

prejudice. The only fact permitting an inference that petitioner might have accepted the bargain

8

he ultimately did in the second proceeding was the possibility that the trial judge could have

9

sentenced him to ten years (the lower range of the plea bargain, but still in excess of the Lafler

10

remedy). Petitioner and respondent should have the opportunity to fully air the facts of

11

prejudice.

12
13

Accordingly, an evidentiary hearing is ordered for claim three as discussed herein.
Conclusion

14

1. Claims 1 and 2 of the petition are denied.

15

2. The undersigned will hold an evidentiary hearing on Claim 3.

16

3. The Clerk of the Court shall serve a copy of this order on the Federal Defender, who

17

shall represent petitioner at the evidentiary hearing, or the Federal Defender shall

18

suggest the appointment of a specific private counsel from the Panel.

19
20

Dated: January 21, 2019
/s/ Gregory G Hollows
United States Magistrate Judge

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21