Scalf v. Salazar

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATION denying 1 Petition for Writ of Habeas Corpus and denying a Certificate of Appealability. Signed by Judge Marilyn L. Huff on 06/30/2011.(All non-registered users served via U.S. Mail Service)(ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Civil No.

FRED ROBERT SCALF, III,

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Petitioner,

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09-CV-01676-H (MDD)

ORDER:
(1) DENYING PETITION FOR WRIT
OF HABEAS CORPUS

vs.

(2) DENYING CERTIFICATE OF
APPEALABILITY

JOHN F. SALAZAR, Warden

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Respondent.
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On August 3, 2009, Fred Robert Scalf, III (“Petitioner”), a state prisoner proceeding pro

18 se filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.)
19 Petitioner seeks the abrogation of his guilty pleas to two counts of sexual misconduct with a
20 minor. (Doc. No. 1, at 2.) Specifically, Petitioner contends that (1) the San Diego County
21 Superior Court erred in excluding certain unauthenticated letters in collateral review of his habeas
22 petition; (2) that Petitioner’s trial counsel provided ineffective assistance in advising him to plead
23 guilty; and (3) that the trial court erred in failing to inform him that he was presumptively
24 ineligible for probation. (Doc. No. 1, at 13-15, 16-26, 27-38.) On May 25, 2011, the magistrate
25 judge issued a Report and Recommendation that the Court deny Petitioner’s habeas petition.
26 (Doc. No. 16.) Petitioner did not file objections by the June 20, 2011 deadline. (See Doc. No.
27 16, at 13.) For the reasons set forth below, the Court DENIES Petitioner’s habeas petition, and
28 adopts the Report and Recommendation.
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I.

Background

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On March 8, 2006, acting on the advice of counsel, Petitioner entered a guilty plea to two

3 counts of lewd and lascivious conduct with a minor under the age of 14. (Lodg. No. 10, at 1.)
4 Specifically, Petitioner admitted to having “touched [his stepdaughter] under [her] clothing in the
5 genital area, the breasts, and on her buttocks.” (Lodg. No. 6, at 2.) During Petitioner’s plea
6 hearing, the following colloquy, between Petitioner and the trial court, ensued:
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Q. I see you have reached an agreement with the Office of the District
Attorney. You are going to plead guilty to two charges, Counts One and Three.
You are going to admit the allegation on each of those counts. [¶] In exchange for
that plea, the District Attorney's Office then will dismiss all of the other charges.
[¶] The issue of sentence will be decided by the Court. All options are open. The
District Attorney's Office is free to argue for whatever they think is a fair sentence,
including a prison term. I will consider all of the options, and I know that your
lawyer is going to undertake an effort on your behalf to convince me that a
probationary sentence will be appropriate and not a state prison sentence. I have
made no commitment other than to give full consideration to all options. [¶] I trust
that is consistent with what you have been told.

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A. Yes, sir, it is.

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Q. Anybody promise you anything else?

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A. No, sir.

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(Lodg. 2, RT 2:2-24 (emphasis added).)
Q. Now, the maximum penalty for these two felonies would be the result of
a consecutive sentence. If the maximum penalty were to be imposed, it would be
ten years in the California state prison . . . . [¶] You are aware of that?
A. Yes, sir, I am. . . .
Q. This is a case where it's presumed that you will be sentenced to state
prison. The Court needs to make some specific findings in order to consider
probation, and one of the findings is that a – the probationary sentence would be
in the best interest of the victim. [¶] Do you understand that?

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A. Yes, sir, I do.
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(Lodg. 2, RT 3:19-4:12 (emphasis added).)
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On August 11, 2006, following entry of Petitioner’s guilty pleas, the trial court sentenced

27 Petitioner to prison for eight years, finding that probation would not be in the best interest of the
28 victim. (Lodg. No. 2, at 19-21; Lodg. No. 10, at 1.) Petitioner appealed, claiming that the trial
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1 court abused its discretion by sentencing him to prison rather than placing him on probation.
2 (Lodg. No. 3.) The Court of Appeal affirmed the judgement. (Lodg. No. 6.)
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On May 21, 2008, Petitioner filed an unsuccessful habeas petition with the San Diego

4 County Superior Court, alleging essentially the same claims stated here. (See Lodg. No. 7.) In
5 denying his habeas petition, the court declined to consider certain unauthenticated letters
6 proffered in support of Petitioner’s ineffective assistance of counsel (“IAC”) claim. (Lodg. No.
7 8, at 3-4.) Petitioner thereafter filed habeas petitions in the Court of Appeal, (Lodg. No. 10), and
8 the California Supreme Court, (Lodg. No. 12), both of which were denied. On August 3, 2009,
9 Petitioner filed this federal habeas petition. (Doc. No. 1.)
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II.

A.

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DISCUSSION
Standard of Review

Title 28, United States Code, § 2254(a), sets forth the following scope of review for

13 federal habeas corpus claims:
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The Supreme Court, a Justice thereof, a circuit judge, or a district court shall
entertain an application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or treaties of the United
States.

17 28 U.S.C. § 2254(a).
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A federal court may not grant an application for writ of habeas corpus on behalf of a

19 person in state custody with respect to any claim that was adjudicated on the merits in state
20 court proceedings unless the adjudication of the claim: (1) “resulted in a decision that was
21 contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as
22 determined by the Supreme Court of the United States;” or (2) “resulted in a decision that was
23 based on an unreasonable determination of the facts in light of the evidence presented in the
24 State court proceeding.” 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26
25 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09
26 (2000).
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“Clearly established [f]ederal law” refers to the governing legal principle or principles

28 set forth by the Supreme Court at the time the state court renders its decision. Lockyer v.
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1 Andrade, 538 U.S. 63 (2003). A state court’s decision is “contrary to” clearly established
2 federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it
3 “confronts a set of facts . . . materially indistinguishable from a decision of the Supreme Court
4 but reaches a different result. See Early, 537 U.S. at 8; Williams, 529 U.S. at 405-06.
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“Unreasonable application” requires the state court decision to be “objectively

6 unreasonable, not just incorrect or erroneous.” Lockyer, 538 U.S. at 65; Wiggins v. Smith,
7 539 U.S. 510, 520-21 (2003); see also Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir. 2003),
8 cert. denied 540 U.S. 968 (2003). More specifically, to establish an “unreasonable
9 application” of clearly established Supreme Court precedent, “a state prisoner must show that
10 the state court’s ruling on the claim being presented in federal court was so lacking in
11 justification that there was an error well understood and comprehended in existing law beyond
12 any possibility for fairminded disagreement.” Harrington v. Richter, 131 S.Ct. 770, 786-87
13 (2011).
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A state court decision involves an “unreasonable application” of governing Supreme

15 Court law if the state court: (1) identifies the correct governing Supreme Court law but
16 unreasonably applies the law to the facts; or (2) unreasonably extends a legal principle from
17 governing Supreme Court law to a new context where it should not apply, or unreasonably
18 refuses to extend that principle to a new context where it should apply. Williams, 529 U.S. at
19 407. Under this prong, a federal court may grant habeas relief “based on the application of a
20 governing legal principle to a set of facts different from those of the case in which the
21 principle was announced.” Lockyer, 538 U.S. at 76; see also Woodford v. Visciotti, 537 U.S.
22 at 24-26 (state court division “involves ‘an unreasonable application’ of clearly established
23 federal law if it identifies the correct governing Supreme Court law but unreasonably applies
24 the laws to the facts). “Factual determinations by state courts are presumed correct absent
25 clear and convincing evidence to the contrary.” Miller-El v. Cockrell, 537 U.S. 322, 340
26 (2003) (citing 28 U.S.C. § 2254(e)(1)); see, e.g., Moses v. Payne, 555 F.3d 742, 745 n.1 (9th
27 Cir. 2009).
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Where there is no reasoned decision from the state’s highest court, the Court “looks

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2 through” to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06
3 (1991); Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). If the dispositive state court
4 order does not “furnish a basis for its reasoning” because the state courts rejected a claim without
5 comment, federal habeas courts must conduct an independent review of the record to determine
6 whether the state courts’ unexplained decisions were contrary to, or involved an unreasonable
7 application of, “clearly established” governing Supreme Court law. See Delgado v. Lewis, 223
8 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Lockyer, 538 U.S. at 75-76); accord
9 Himes v. Thompson, 336 F.3d 848 (9th Cir. 2003).

“Independent review of the record is not de novo review of the constitutional issue, but

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11 rather, the only method by which we can determine whether a silent state court decision is
12 objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). A court need
13 not cite Supreme Court precedent when resolving a habeas corpus claim. Early, 537 U.S. 3, 8
14 (2002). The court should examine whether the last reasoned decision reached by the state court
15 was contrary to Supreme Court law. Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir. 2002);
16 see also Harrington, 131 S.Ct. at 784. “[S]o long as neither the reasoning nor the result of the
17 state-court decision contradicts [Supreme Court precedent],” the state court decision will not be
18 “contrary” to clearly established federal law. Early, 537 U.S. 3, 8 (2002).

B.

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Superior Court’s Exclusion of Evidence

Petitioner argues that the San Diego County Superior Court erred when it excluded certain

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21 letters he proffered in support of his habeas petition as “unauthenticated self-serving statements.”
22 (Doc. No. 1, at 26.) This claim challenges the exercise of a state court’s discretion to determine
23 the admissibility of evidence under state law, a matter that is not cognizable to federal habeas
24 relief. See Estelle v. McGuire, 502 U.S. 62, 72 (1991). Accordingly, the Court declines to
25 review Petitioner’s first claim.
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C.

Ineffective Assistance of Counsel

Petitioner alleges that his “trial counsel rendered I.A.C. . . . when his advice to [Petitioner]

3 resulted in a plea of guilt[y] to the under[lying] offenses.” (Doc. No. 1, at 29.) Specifically,
4 Petitioner argues that trial counsel falsely advised him that, under the plea agreement, he would
5 be eligible for probation and face a maximum sentence of three years. (Id. at 29-30, 40.)
6 Petitioner “contends that had he known that the plea agreement was not the range he alleges
7 counsel told him, he would not have signed such agreement . . . .” (Id. at 35.)
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A claim of IAC in the plea bargaining context is cognizable to federal habeas review. See

9 Hill v. Lockhart, 474 U.S. 52, 56-58 (1985). To prevail on a claim for IAC, a claimant must
10 prove (1) that counsel’s performance was objectively unreasonable, and (2) that any deficiencies
11 in counsel’s performance were prejudicial. Strickland v. Washington, 466 U.S. 668, 688, 692
12 (1984). In establishing that counsel’s performance was unreasonable, it is not enough to show
13 that counsel inaccurately predicted the length of the sentence ultimately imposed. Doganiere v.
14 United States, 914 F.2d 165, 168 (9th Cir. 1990) (Counsel predicted a twelve year sentence;
15 defendant ultimately received fifteen); Iaea v. Sun, 800 F.2d 861, 865 (9th Cir. 1986). Further,
16 in IAC claims, there is a “strong presumption” that counsel exercised reasonable professional
17 judgment. Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011). Finally, to establish prejudice, a
18 claimant must show that “but for counsel’s unprofessional errors, the result of the proceeding
19 would have been different.” Strickland, 466 U.S. at 694. The probability of a different result
20 “must be substantial, not just conceivable.” Harrington v. Richter, 131 S.Ct. 770, 791-92 (2011).
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Here, the trial court mitigated any prejudice by advising Petitioner at his plea hearing that

22 “if a maximum penalty were imposed, it would be ten years in California state prison.” (Lodg.
23 No. 2, RT 3:19-4:12.) Because the trial court informed Petitioner that the ten year maximum was
24 still a viable sentence moments before he pled guilty, Petitioner cannot credibly assert that, but
25 for Counsel’s prediction of three years, he would not have accepted the plea agreement. See
26 Strickland, 466 U.S. at 694. Where, as here, a trial court explains to a defendant that it maintains
27 discretion over sentencing, it mitigates any prejudice stemming from counsel’s inaccurate
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1 prediction of the sentence. See Doganiere, 914 F.2d at 168. Similarly, if counsel misadvised
2 Petitioner that he was presumptively eligible for parole, that advice was not prejudicial; the trial
3 judge informed Petitioner that “it’s presumed that you will be sentenced to state prison,” not
4 placed on probation. (Lodg. No. 2, RT 3:19-4:12.) Further, counsel’s prediction that Petitioner
5 would face a three year sentence if he accepted the plea agreement, while inaccurate, was not
6 objectively unreasonable. See Iaea, 800 F.2d at 865. Thus, Petitioner has not established that
7 counsel’s advice was objectively unreasonable as to the predicted sentence, and prejudicial as
8 to both the predicted sentence and parole eligibility. Accordingly, Petitioner has failed to prove
9 his IAC claim. See Strickland, 466 U.S. at 688.
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Trial Court’s Advisement of Probation Eligibility

Petitioner alleges that the “trial court erred when it misinformed the appellant during plea

12 hearing that appellant was eligible for parole.” (Doc. No. 1, at 40.) Petitioner further argues that
13 the Trial Court abrogated its “judicial responsibility to inform [Petitioner] of his presumptive
14 probation ineligibility.” (Doc. No. 1, at 42.) The Court concludes that both claims are factually
15 inconsistent with the plea hearing record.
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To be valid, a defendant’s guilty plea must be made knowingly, intelligently, and

17 voluntarily. Brady v. United States, 397 U.S. 742, 748 (1970). The defendant must be informed
18 of the direct consequences of the plea. See Boykin v. Alabama, 395 U.S. 238, 242-44 (1969).
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Here, the trial judge accurately informed Petitioner that “it’s presumed that you will be

20 sentenced to state prison. The Court needs to make some specific findings in order to consider
21 probation, and one of the findings is that a – the probationary sentence would be in the best
22 interest of the victim.” (Lodg. No. 2, RT 3:19-4:12.) Petitioner responded that he was aware of
23 these facts. (Id.) This colloquy demonstrates that Petitioner knew he was presumptively
24 ineligible for probation. See Little v. Crawford, 449 F.3d 1075, 1081 (9th Cir. 2006) (holding
25 that because the trial court advised appellant that he would be serving actual jail time, he was
26 “aware probation was not an option.”). Further, the trial court’s statement that it could be
27 “convince[d] . . . that a probationary sentence will be appropriate,” (Lodg. No. 2, RT 2:2-24),
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Under California Penal Code §
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1 1203.066(d)(1), though Petitioner was presumed ineligible for probation, he was still eligible if
2 he could prove, among other criteria, that “probation is in the best interest of the child victim.”
3 See Cal. Penal Code § 1203.066(d)(1)(A). The trial court did not err in suggesting that Petitioner
4 was probation-eligible because it simultaneously informed Petitioner that he would have to
5 overcome the opposite presumption. Accordingly, Petitioner made his plea knowingly and
6 intelligently, with an appreciation of its impact on his probation eligibility. See Brady, 397 U.S.
7 at 748.

E.

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Evidentiary Hearing

Petitioner seeks an evidentiary hearing so that acquaintances and family members may

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10 authenticate and explain letters they wrote in support of Petitioner’s claim. (Doc. No. 1, at 2711 28.) Petitioner argues that these letters corroborate his reliance on the alleged misrepresentation
12 of counsel that he would receive a three-year sentence. (Doc. No. 1, at 30.) In habeas
13 proceedings, “an evidentiary hearing is not required on issues that can be resolved by reference
14 to the state court record.” Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998); Campbell v.
15 Wood, 18 F.3d 662, 679 (9th Cir. 1994). Further, pursuant to 28 U.S.C. § 2254(e)(2)(ii), an
16 evidentiary hearing is not warranted unless the claim relies on “a factual predicate that could not
17 have been previously discovered through the exercise of due diligence.”

28 U.S.C. §

18 2254(e)(2)(ii).

Here, both Petitioner’s IAC and trial court error claims can be resolved with reference to

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20 the record of Petitioner’s plea hearing. Further, the Superior Court, (see Doc. No. 1-1, at 42), the
21 Court of Appeal, (see Doc. No. 1-1, at 49), and this Court all previously considered the factual
22 predicate adduced from the letters–that Petitioner relied on Counsel’s representation of a three23 year sentence.

(See, e.g., Doc. No. 1-1, at 14). Accordingly, an evidentiary hearing is

24 unwarranted.
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III.

CONCLUSION

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For the reasons set forth above, the Court DENIES Petitioner’s petition for writ of habeas

3 corpus and adopts the Report and Recommendation. The Court also DENIES a certificate of
4 appealability.
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IT IS SO ORDERED.

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Dated: June 30, 2011
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______________________________
MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT

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