Robert Montelongo v. W. L. Montgomery

Filing 27

ORDER ADOPTING re 18 REPORT AND RECOMMENDATION. The Court OVERRULES Petitioner's objections, (Doc. No. 22), ADOPTS the R&R in its entirety, (Doc. No. 18), DENIES Petitioner's petition for writ of habeas corpus, (Doc. No. 1), and DECLINES to issue a certificate of appealability. Signed by Judge Anthony J. Battaglia on 12/30/2016.(All non-registered users served via U.S. Mail Service)(acc)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 ROBERT MONTELONGO, Case No.: 15-CV-0448-AJB-KSC Petitioner, 13 14 15 ORDER: v. W.L. MONTGOMERY, 16 (1) ADOPTING THE REPORT AND RECOMMENDATION, (Doc. No. 18); Respondent. (2) DENYING PETITION FOR WRIT OF HABEAS CORPUS, (Doc. No. 1); AND 17 18 19 (3) DENYING CERTIFICATE OF APPEALABILITY 20 21 22 23 On February 18, 2015, Robert Montelongo (“Petitioner”) filed a petition for writ of 24 habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner raised 25 the following grounds for relief: (1) ineffective assistance of counsel; (2) a due process 26 violation for the denial of his motion to withdraw from a guilty plea; and (3) a due process 27 violation for the state appellate court’s failure to hold an evidentiary hearing. (Doc. No. 1- 28 1 at 4, 9–11.) On March 17, 2015, the Court denied Petitioner’s request to appoint counsel. 1 15-CV-0448-AJB-KSC 1 (Doc. No. 12.) On May 6, 2015, Respondent filed a response to the Petition. (Doc. No. 14.) 2 Petitioner filed a traverse on June 8, 2015. (Doc. No. 16.) 3 Magistrate Judge Karen S. Crawford issued a report and recommendation (“R&R”) 4 recommending the Petition be denied, finding the three claims to be without merit. (Doc. 5 No 18.) On February 5, 2016, Petitioner filed objections to the R&R. (Doc. No. 22.) 6 Respondent replied to the objections on February 18, 2016, (Doc. No. 24), and Petitioner 7 sur-replied on March 10, 2016, (Doc. No. 26). For the reasons outlined below, the Court 8 ADOPTS the R&R and DENIES the Petition. FACTUAL BACKGROUND 9 10 The Court gives deference to state court findings of fact and presumes them to be 11 correct; Petitioner may rebut this presumption, but only by clear and convincing evidence. 12 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35–36 (1992) (holding that 13 findings of historical fact, including inferences properly drawn therefrom, are entitled to 14 statutory presumption of correctness). The following facts are taken from the California 15 Court of Appeal opinion: 16 17 18 19 On January 2, 2012, in the late afternoon, police were called to an Oceanside house where they found Stephen Board, a documented member of the Crook Mob Gangster Crips gang, dead from a single gunshot to the back of his head. The area where Board was killed was known to be claimed by Varrio Mesas Locos, a Hispanic gang who had a long-standing rivalry with Black gang members. 20 21 22 23 24 25 26 27 28 Witnesses reported observing four “Mexicans” walking towards Board and asking him, “What’s up fool?” Board yelled, “Oh shit he got a pistol,” and then ran in an attempt to escape. Board was then shot in the back of his head. A police investigation identified Montelongo, Solano, and Soria—all members of the Varrio Mesa Locos gang as suspects in the shooting. Following his arrest for a probation violation, Montelongo admitted he saw the shooting, but claimed he was not involved. During a police interview, Soria indicated Montelongo was the shooter. . . . 1. Montelongo’s guilty plea On August 15, 2012, during trial, Montelongo withdrew his not guilty plea, 2 15-CV-0448-AJB-KSC 1 2 3 4 5 6 7 8 9 10 pleaded guilty to one count of murder as charged in count 1, and admitted a gun use enhancement allegation (§ 12022.53, subd. (b)). With the assistance of his appointed counsel, Ricardo D. Garcia, Montelongo executed a guilty plea form, which indicated he had not been induced to enter the plea by any promise or representation, except: “Stip 15–life plus 10 years.” With his initials, Montelongo acknowledged he understood the “maximum punishment” he could receive as [a] result of his plea was “25 years imprisonment or imprisonment plus a term of mandatory supervision.” In court, Montelongo indicated he wished to plead guilty to count 1 and the gun use allegation. He admitted he signed and initialed the plea form after discussing the form with his attorney. He also indicated he had no questions about the contents of the form, and Garcia had answered any questions he had in going over the form. The following exchange occurred among the court, Montelongo, and Montelongo’s counsel, Garcia: 11 12 13 14 “[The Court:] Paragraphs one and two comprise the plea agreement, which indicates you’re going to enter a plea to count [1,] a violation of Penal Code section 187. You’re going to admit an allegation of [section] 12022.53[, subdivision] (b) and the stipulated sentence is 15 years to life plus ten years; is that your full understanding of the plea agreement? 15 16 17 18 “[Montelongo:] Yes. “[The Court:] Has anyone made any other promise or agreement with you other than what I just read to you? 19 “[Montelongo:] No, sir. [¶] . . . 20 “[The Court:] I’m obligated by law to tell you the maximum possible consequences. The plea agreement we know is 15 plus ten. The maximum, technically under the law, can be higher. . . . [¶] . . . [¶] . . . Do you understand all of that? 21 22 23 24 25 26 27 “[Montelongo:] Yes. “[The Court:] Have you had sufficient time to discuss this case with your attorney and make him aware of everything you know about the case? “[Montelongo:] Yes. 28 3 15-CV-0448-AJB-KSC 1 2 “[The Court:] Mr. Garcia, did you advise your client of all his rights, possible defenses to the charges, the consequences of his plea and the admission? 3 “[Garcia:] I have. 4 “[The Court:] Do you join in the waiver of the rights and the entry of plea? 5 6 “[Garcia:] One moment, Your Honor. 7 “[The Court:] Okay. 8 “[Garcia:] Yes, Your Honor, I do.” . . . (Italics added.) 9 10 11 12 13 14 Montelongo indicated he had not been threatened or coerced into pleading guilty and he was pleading guilty freely and voluntarily because he was guilty. He also indicated he had no questions about the form or anything discussed in court. Montelongo then pleaded guilty to count 1 and admitted the firearm allegation. The court accepted the plea and admission, finding Montelongo understood the nature of the proceedings and the consequences of his plea. 15 16 The following month, Garcia was relieved as Montelongo’s counsel and Sean Leslie was submitted as his new counsel of record. 17 18 19 20 21 22 23 24 25 26 2. Montelongo’s motion to withdraw his plea . . . At the hearing on his motion during the sentencing proceeding, Montelongo testified that from the time of his arraignment until his trial, he only saw his attorney, Garcia, three times. Montelongo stated that Garcia told him during trial that he only had “a matter of minutes” to accept a plea deal and he should take the deal because he would be “out” when he was 35 years old. Prior to that day, the prosecutor’s offer was 25 years to life. According to Montelongo, when Garcia spoke to him about the change of plea, he said he requested some time to think about it and discuss the offer with his family. Garcia told him he had to hurry up, and he was not allowed to speak to his parents before pleading guilty. Montelongo testified he “felt overwhelmed and didn’t know what to do.” He stated that Garcia only spent “a minute or two” discussing the plea form with him and indicated he did not know what the word “Stip” referred to. 27 28 Montelongo also stated that while the judge was going through the plea form 4 15-CV-0448-AJB-KSC 1 2 3 4 with him, he was relying on his lawyer, who would nod and say, “Yes.” He indicated that he did not understand what the judge meant when he said “Stip to 15 years to life.” Montelongo claimed his lawyer said he would be out of prison in 15 years, and this was the only reason he pleaded guilty. He indicated he would not have pleaded guilty to the murder count had he known there was a “life charge or a life consequence.” 5 6 7 8 9 10 During cross-examination, Montelongo indicated he had never heard anyone use the term “stip” during the eight months he was in jail. He acknowledged that he initialed the plea form; that the form stated 15 years to life, plus 10 years; that the form stated he understood the maximum punishment was 25 years imprisonment plus a term of mandatory supervision; and that he could get lifetime parole. Montelongo further acknowledged he said “[y]es” when the judge asked him whether he understood that the stipulated sentence was 15 years to life, plus 10 years. 11 12 13 14 15 16 The prosecution called Montelongo’s former counsel, Garcia, to testify. Garcia testified that he spent about 20 hours discussing the case with Montelongo before trial. He indicated that he explained the settlement offers to Montelongo and that he also explained in plain English the difference between an indeterminate life term and a determinate term that is “a straight number of years.” Garcia stated he discussed with Montelongo what a “life” term meant on three or four occasions. Montelongo never communicated any difficulty or confusion understanding this distinction. 17 18 19 20 21 22 Garcia also testified that prior to trial, the prosecutor had offered to settle the matter for a sentence of 15 years to life, plus 10 years, which he had explained to Montelongo, who rejected the offer. Garcia indicated that matters arose during trial which he believed negatively impacted his case, so he discussed resolving the matter with the district attorney’s office. He conveyed the offer to Montelongo, who never communicated any difficulty in understanding the possible sentence. He explained the concept of a stipulated sentence and a “stip” to Montelongo, who appeared to understand. 23 24 25 26 27 28 Garcia further testified he never told Montelongo he would be out of prison after 15 years when he was 35 years old. He did tell Montelongo the deal needed to be done immediately. They went over the change of plea form together and he reviewed the entire form with Montelongo “in detail.” Montelongo did not communicate any failure to understand nor did he indicate anything that would have led Garcia to believe that Montelongo thought he would be getting out of prison in 15 years. 5 15-CV-0448-AJB-KSC 1 2 (Doc. No. 15-8 at 3–8.) PROCEDURAL BACKGROUND 3 On August 2, 2012, a jury trial was commenced against Petitioner. (See Doc. No. 1- 4 1 at 3.) On August 15, 2012, two weeks into the trial, the district attorney communicated a 5 plea agreement offer to Petitioner: a stipulated prison sentence of 15 years to life plus an 6 additional 10 years in exchange for a plea to second-degree murder. (Doc. No. 15-8 at 4.) 7 Petitioner pleaded guilty to second degree murder (Cal. Pen Code § 187(a)) with an 8 enhancement for the use of a gun in commission of the offense (Cal. Pen Code § 9 12022.53(b)). (Id. at 1–2.) The judge accepted the change of plea and set dates for 10 sentencing. (Doc. No. 15-5 at 162–64.) Before the sentencing hearing, Petitioner relieved 11 his attorney, Ricardo Garcia, as counsel and retained Sean Leslie. (Id. at 166; Doc. No. 15- 12 8 at 6.) Leslie filed a motion to withdraw the plea agreement, stating that the initial guilty 13 plea was involuntary. (Doc. No. 15-8 at 2.) On December 6, 2012, the trial court held an 14 evidentiary hearing regarding the plea agreement and the advice Garcia provided 15 Petitioner. (Doc. No. 15-5 at 173.) The motion to withdraw was ultimately denied, and the 16 trial court sentenced Petitioner to the original terms of the plea agreement. (Id. at 225–27.) 17 On August 14, 2013, Petitioner appealed to the California Court of Appeal, 18 contending the trial court erred in denying Petitioner’s motion to withdraw his guilty plea 19 based on the court’s finding that the plea was entered into voluntarily. (Doc. No. 15-6 at 20 12–13.) On November 27, 2013, the appellate court affirmed the original judgment and 21 order denying Petitioner’s motion. (Doc. No. 15-8 at 13–14.) Petitioner did not file a 22 petition for review in the California Supreme Court, nor did he seek a petition for writ of 23 certiorari from the United States Supreme Court. 24 On November 6, 2014, Petitioner filed a petition for writ of habeas corpus in the 25 California Supreme Court. (Doc. No. 15-9.) He claimed he was deprived of effective 26 assistance of counsel during the plea negotiations in violation of his right to due process 27 under the Sixth and Fourteenth Amendments. (Id. at 4.) Petitioner also alleged his appellate 28 counsel was ineffective for failing to file a petition for review, also in violation of his Sixth 6 15-CV-0448-AJB-KSC 1 and Fourteenth Amendment rights. (Id. at 7.) On January 21, 2015, the California Supreme 2 Court denied this petition. (Doc. No. 15-10 at 1.) 3 On February 18, 2015, Petitioner filed the instant Petition in which he alleges (1) 4 ineffective assistance of counsel (“IAC”); (2) a due process violation for the denial of his 5 motion to withdraw from the guilty plea; and (3) a due process violation for the appellate 6 court’s failure to hold an evidentiary hearing. (Doc. No. 1-1 at 4, 9–11.) On May 6, 2015, 7 Respondent filed an answer to the Petition, arguing that Petitioner’s first and second claims 8 were previously exhausted, Petitioner’s third claim is meritless, and he is not entitled to an 9 evidentiary hearing. (Doc. No. 14 at 2.) 10 On December 10, 2015, Judge Crawford issued an R&R, which made the following 11 findings: (1) Petitioner’s claims are exhausted or otherwise plainly meritless; (2) the 12 California Court of Appeal’s determination that Petitioner’s lawyer fully explained all 13 materials related to the plea was reasonable; (3) Petitioner’s trial attorney did not fall below 14 the standard of reasonableness and was not ineffective for the purposes of the Sixth 15 Amendment; (4) the trial court’s refusal to allow Petitioner to withdraw his guilty plea was 16 not a denial of his due process rights; and (5) denial of an evidentiary hearing was 17 insufficient to raise a constitutional violation under the Antiterrorism and Effective Death 18 Penalty Act (“AEDPA”). (Doc. No. 18.) 19 On February 5, 2016, Petitioner filed two objections to the R&R: (1) his IAC claim 20 did not fail to meet the requisite burden of proof; and (2) Judge Crawford improperly 21 rejected his alleged due process violation in relation to the withdrawal of his plea. (Doc. 22 No. 22.) Respondent replied to Petitioner’s objections, (Doc No. 24), and Petitioner sur- 23 replied, (Doc. No. 26). DISCUSSION 24 25 I. Legal Standard 26 The Petition is governed by the AEDPA, applying a “‘highly deferential standard 27 for evaluating state-court rulings,’ which demands that state-court decisions be given the 28 benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting 7 15-CV-0448-AJB-KSC 1 Lindh v. Murphy, 521 U.S. 320, 333 & n.7 (1997)). Federal habeas relief may be granted 2 if the state court (1) applied a rule different from the governing law provided by the United 3 States Supreme Court; or (2) correctly identified the governing legal principle, but 4 unreasonably applied it to the facts of the case. Bell v. Cone, 535 U.S. 685, 694 (2002). 5 The duties of the district court with respect to a magistrate judge’s report and 6 recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 7 28 U.S.C. § 636(b)(1). The district court must “make a de novo determination of those 8 portions of the report . . . to which objection is made” and “may accept, reject, or modify, 9 in whole or in part, the findings or recommendations made by the magistrate judge.” 28 10 U.S.C. § 636(b)(1)(C); see also United States v. Raddatz, 447 U.S. 667, 676 (1980); 11 United States v. Remsing, 874 F.2d 614, 617–18 (9th Cir. 1989). 12 As to portions of the report to which no objection is made, the Court may assume 13 the correctness of the magistrate judge’s findings of fact and decide the motion on the 14 applicable law. Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974); Johnson 15 v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). Under such circumstances, the 16 Ninth Circuit has held that a failure to file objections only relieves the trial court of its 17 burden to give de novo review to factual findings; conclusions of law must still be reviewed 18 de novo. See Robbins v. Carey, 481 F.3d 1143, 1146–47 (9th Cir. 2007). 19 II. Analysis 20 A. Ineffective Assistance of Counsel Claim 21 In the Petition, Petitioner argued that Garcia provided ineffective assistance of 22 counsel based on incorrectly advising Petitioner of the effect and consequences of his plea 23 agreement, as well as Garcia’s overall actions. (See Doc. No. 1-1 at 5.) Petitioner also 24 asserted that Garcia generally acted below professional norms in advising him to accept 25 the agreement. (Id. at 7–9). In the R&R, Judge Crawford found this claim had already been 26 evaluated and rejected once by the state court. (Doc. No. 18 at 9.) Therefore, her only task 27 was to determine whether the state court’s denial of the claim was unreasonable. 28 Harrington v. Richter, 562 U.S. 86, 100–01 (2011). Pursuant to 28 U.S.C. § 2254, federal 8 15-CV-0448-AJB-KSC 1 habeas courts are not required to address whether counsel’s actions were reasonable, but 2 rather whether there is any reasonable argument that counsel satisfied the IAC standard. 3 See Harrington, 562 U.S. at 101–02. 4 In order to succeed on an IAC claim, a petitioner must establish two criteria: (1) 5 counsel’s performance was so deficient as to fall short of the guarantee of counsel under 6 the Sixth Amendment, and (2) counsel’s errors were so prejudicial that the petitioner was 7 deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984). This Strickland 8 standard is highly deferential to trial counsel based upon the ease of second-guessing one’s 9 counsel after an adverse conviction or sentence is entered. Id. at 689. When analyzing an 10 IAC claim, “a court must indulge a strong presumption that counsel’s conduct falls within 11 the wide range of reasonable professional assistance [.]” Id. This standard is heightened 12 when raised in a federal habeas petition. Harrington, 562 U.S. 86 at 100–01. 13 In ground one, Petitioner alleged Garcia was ineffective because he incorrectly 14 represented that Petitioner’s sentence pursuant to the plea agreement was for a fixed term 15 of 15 years and he would be out of prison by age 35. (Doc No. 1-1 at 5–6.) The California 16 Court of Appeal found substantial evidence in the record existed to conclude that Garcia’s 17 performance was not deficient, including accurately advising Petitioner of all the terms, 18 conditions, and effects of the plea agreement, including the sentence of an indeterminate 19 term of 15 years to life plus an additional determinate term of 10 years. (Doc. No. 15-8 at 20 13.) Judge Crawford agreed, finding Petitioner’s allegations against Garcia did not meet 21 the high standard laid out in Strickland. (Doc. No. 18 at 15.) 22 In response to Judge Crawford’s recommended denial of relief for ground 1, 23 Petitioner emphasizes two points: (1) Garcia allowed Petitioner only enough time to make 24 a decision regarding the plea agreement; and (2) Garcia allegedly told Petitioner his 25 sentence would be for a determinate term of 15 years. (Doc. No. 22 at 5.) 26 1. Time Allowed to Decide Whether to Accept the Offer 27 Petitioner argues he had an insufficient amount of time to decide whether to accept 28 the proposed plea. (Id.) Whether a plea is valid turns on “whether the plea represents a 9 15-CV-0448-AJB-KSC 1 voluntary and intelligent choice among the alternative courses of action open to the 2 defendant.” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 3 400 U.S. 25, 31 (1970)). When determining whether a plea was entered voluntarily and 4 intelligently, the record must be reviewed to disclose whether the defendant understood the 5 plea and its effects. See Brady v. United States, 397 U.S. 742, 747–49 & n.4 (1970). A plea 6 is coerced when the defendant was induced by promises or threats that would render the 7 plea inherently involuntary. Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986). The amount 8 of time a defendant is given to consider a plea deal is relevant to determining whether or 9 not a plea was coerced. Doe v. Woodford, 508 F.3d 563, 570 (9th Cir. 2007). 10 Reviewing the record de novo, the Court finds the trial court’s determination that 11 Petitioner voluntarily and intelligently entered his guilty plea was not contrary to, or an 12 objectively unreasonable application of, clearly established federal law. At the evidentiary 13 hearing on Petitioner’s motion to withdraw his guilty plea, Garcia testified that he went 14 over the change of plea form with Petitioner “in detail,” and Petitioner did not communicate 15 any failure to understand or ask any questions that would lead Garcia to believe he was 16 confused. (Doc. No. 15-5 at 208.) Additionally, Garcia testified that Petitioner was offered 17 and rejected the same plea several months earlier. (Id. at 205–06.) According to Garcia, 18 before accepting the plea agreement, Petitioner indicated “he didn’t want to do certain 19 things that were probably necessary to move forward at trial, and based on that he wanted 20 to take the deal.” (Id. at 216–17.) During his testimony at the evidentiary hearing, Petitioner 21 further conceded that the trial seemed to be headed in his favor until an eyewitness 22 identified him as the shooter and the government intercepted an incriminating jailhouse 23 note. (Id. at 182–85, 220–21.) 24 As he testified at the evidentiary hearing, Garcia informed Petitioner of the plea deal 25 before the lunch break. (Id. at 215–16.) Garcia and Petitioner then took their lunches 26 separately and reunited to discuss the plea agreement and the consequences of alternatively 27 going forward with the trial. (Id. at 216–17.) During this discussion, Petitioner initially 28 stated he did not want to plead guilty. (Id. at 216.) However, after Garcia discussed the 10 15-CV-0448-AJB-KSC 1 possible outcome and his possible defense, Petitioner ultimately decided to accept the plea 2 deal. (Id. at 216–17.) The trial court accepted Petitioner’s plea and gun use admission. (Id. 3 at 162.) 4 The trial judge also independently confirmed Petitioner understood that the 5 “stipulated sentence” was “15 years to life plus ten years [.]” (Id. at 157.) Petitioner 6 reiterated the voluntariness of his decision when the trial court asked him several questions 7 about the nature of the plea, whether he understood the terms, explained the sentence, and 8 even asked if Petitioner had sufficient time to discuss the case with Garcia. (Id. at 157–60.) 9 The foregoing amply supports the trial court’s conclusion that Petitioner’s plea was entered 10 voluntarily and intelligently. (Id. at 162.) See Bonner v. Schneckloth, 309 F. Supp. 442, 444 11 (C.D. Cal. 1970) (finding the accused was not entitled to relief for his guilty plea allegedly 12 being coerced because of the plea colloquy performed in court and other statements 13 showing he entered into the plea freely and voluntarily, even though he alleged his trial 14 counsel threatened to withdraw on the eve of his trial if he did not plead guilty). 15 That Garcia spent an admittedly short amount of time discussing the plea offer does 16 not change the Court’s conclusion. It is true Garcia testified he told Petitioner the plea 17 agreement needed to be done immediately, within the same day that the plea was offered. 18 (Doc. No. 15-5 at 207–08.) Though Petitioner stated that the change of plea form was 19 executed in a “matter of minutes,” Garcia testified that he spent a total of 20 hours 20 discussing the case with Petitioner, going over the positive and negative facts, and 21 reviewing settlement options. (Id. at 177, 200–01). In Woodford, the Ninth Circuit found 22 the state trial court was not contrary to or objectively unreasonable in its application of 23 controlling federal law in determining the petitioner’s plea to first-degree murder was 24 voluntary, notwithstanding the petitioner having only two hours to consider whether to 25 enter a plea. 508 F.3d at 570–72. The panel found compelling the fact that the petitioner 26 responded affirmatively to the questions, “You’ve had enough time to talk with [your 27 attorneys] about your case?” and “Are you pleading guilty freely and voluntarily?” Id. at 28 570–71. 11 15-CV-0448-AJB-KSC 1 As in Woodford, the trial court here asked Petitioner whether he “had sufficient time 2 to discuss this case with [Garcia],” and whether anyone threatened him or promised him 3 anything other than that included in the plea agreement to coerce him into pleading guilty. 4 (Doc. No. 15-5 at 157, 160–61.) Like the petitioner in Woodford, Petitioner here responded 5 in the affirmative to each of the trial court’s questions. (Id.) Based in part on this exchange, 6 the trial court determined the plea was “knowing, intelligent and voluntary.” (Id. at 162.) 7 As the Supreme Court has held, findings made by the judge accepting a guilty plea 8 “constitute a formidable barrier in any subsequent collateral proceedings. Solemn 9 declarations in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 10 U.S. 63, 74 (1977). The Court cannot now say that the trial court was objectively 11 unreasonable in its application of controlling federal law. This conclusion is strengthened 12 by the fact that Petitioner, also like the petitioner in Woodford, had received an identical 13 plea agreement from the district attorney months before the trial began. (Doc. No. 15-5 at 14 205–06.) See Woodford, 508 F.3d at 572 (“Recall [] that Doe was offered identical terms 15 shortly after he was arrested, more than a year before he pleaded guilty.”).1 16 2. Petitioner’s Confusion Regarding the Sentence 17 Petitioner next argues that Garcia incorrectly informed him his sentence would be 18 for a determinate term of 15 years rather than an indeterminate term of 15 years to life plus 19 ten years for the gun use enhancement. (Doc. No. 22 at 5.) This is the same argument 20 Petitioner made before the trial court at the motion to withdraw hearing and the state 21 22 23 24 25 26 27 28 1 Petitioner seemingly asks the Court to adopt a bright line rule, holding that fifteen minutes to one hour is insufficient, as a matter of law, for a defendant to enter a guilty plea freely and voluntarily. The Court cannot do so for two reasons. First, it is not the Court’s task when considering habeas relief to enunciate new rules of law; rather, the Court is obligated to determine whether the state court’s application of clearly established federal law as defined by the Supreme Court was objectively unreasonable. See Bell, 535 U.S. at 694. Second, a bright line rule would run afoul of such clearly established federal law, given that the Supreme Court has cautioned that this inquiry turns on the totality of all the circumstances surrounding a guilty plea. Brady, 397 U.S. at 749. The Court therefore cannot elevate time to consider a plea deal over other relevant circumstances. 12 15-CV-0448-AJB-KSC 1 appellate court. (Doc. No. 15-5 at 222–23; Doc. No. 15-6 at 12–13, 17.) Garcia testified 2 contrarily, asserting he never told Petitioner that he would be out of prison by the time he 3 was 35. (Doc. No. 15-5 at 207, 214.) Both state courts rejected Petitioner’s version of 4 events. (Id. at 224; Doc. No. 15-8 at 12–13.) 5 Because Petitioner’s claim rests on a competing factual narrative, the Court will not 6 overturn the state court’s factual determination unless it was “objectively unreasonable in 7 light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 8 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(d)(2)). A decision by the state court is based 9 on an objective unreasonable determination of the facts, for example, when it fails to make 10 a factual finding, makes a factual finding using an incorrect legal standard, or ignores or 11 misstates evidence that supports the petitioner’s claim. Taylor v. Maddox, 366 F.3d 992, 12 1000–01 (9th Cir. 2004). 13 After independently reviewing the record, the Court agrees with Judge Crawford’s 14 assessment that substantial evidence exists to support the state appellate court’s decision 15 to credit Garcia’s testimony that he did not advise Petitioner that he would be out by the 16 time he turned 35 years old. Of the facts relied upon in the R&R, (see Doc. No. 18 at 11– 17 12), the Court finds particularly compelling the fact that, during the plea colloquy, 18 Petitioner indicated he understood the sentence was an indeterminate term of 15 years to 19 life plus ten years, (Doc. No. 15-5 at 157–60, 223–25). As stated previously, “[s]olemn 20 declarations in open court carry a strong presumption of verity.” Blackledge, 431 U.S. at 21 74. Petitioner’s self-serving assertions that Garcia advised him he would be out by the time 22 he was 35, accusations he leveled at the evidentiary hearing on his motion to withdraw plea 23 and on appeal and which those courts rejected, (Doc. No. 15-5 at 177–78, 180, 182, 191, 24 219–20, 224; Doc. No. 15-6 at 12–13, 17; Doc. No. 15-8 at 12–13), do not overcome the 25 formidable barrier imposed by the trial court’s findings at the plea colloquy and evidentiary 26 hearing that Petitioner understood “it was a life term case,” (Doc. No. 15-5 at 224). 27 Based upon the foregoing, the Court finds Petitioner has failed to demonstrate that 28 the state courts were objectively unreasonable in rejecting his version of events, namely, 13 15-CV-0448-AJB-KSC 1 that Garcia incorrectly advised him of his plea’s consequences. The Court accordingly 2 OVERRULES Petitioner’s objection, ADOPTS the R&R in relation to the IAC claim, 3 and DENIES the Petition as to Petitioner’s IAC claims. 4 B. Denial of Due Process Rights 5 In his Petition, Petitioner asserted the trial court erred by not allowing him to 6 withdraw his guilty plea. (Doc. No. 1-1 at 10.) Judge Crawford found the trial court 7 afforded Petitioner due process protections. (Doc. No. 18 at 17.) Based upon the plea 8 colloquy in the record, the California Court of Appeal’s finding that Garcia went over the 9 plea agreement with Petitioner in detail, and the fact that an identical offer was provided 10 to him months earlier, Judge Crawford determined the state court’s adjudication of this 11 claim on the merits was not contrary to, or an unreasonable application of, clearly 12 established federal law. (Id. at 17–18.) 13 Petitioner objects, again arguing that his motion to withdraw his plea should have 14 been granted based upon the limited time he had to make a decision, his confusion 15 regarding the sentence, and Garcia’s failure to clarify these issues. (Doc. No. 22 at 5–6.) 16 “Due process . . . require[s] that a defendant’s guilty plea be voluntary and 17 intelligent.” United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011) (per 18 curiam) (quoting Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir. 1988)). A defendant who 19 pleads guilty based upon the advice of counsel does not justify setting aside an otherwise 20 valid guilty plea. United States v. Broce, 488 U.S. 563, 571–72 (1989). When a defendant 21 wishes to attack a guilty plea based upon his attorney’s assistance, relief may be provided 22 only if a court determines that the advice received was outside the scope of advice provided 23 by competent attorneys handling criminal cases. Tollett v. Henderson, 411 U.S. 258, 266– 24 67 (1973) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). 25 After reviewing the record de novo, the Court finds Petitioner’s due process claims 26 to be meritless. As discussed previously, substantial evidence exists in the record to support 27 the trial court’s determination that Petitioner entered into his guilty plea voluntarily and 28 intelligently. Furthermore, substantial evidence exists to support the trial court’s 14 15-CV-0448-AJB-KSC 1 determination that Garcia correctly advised Petitioner as to the plea’s details. Garcia met 2 with him on several occasions, explained the terms of the plea, and advised him of the 3 consequences. The trial court reiterated the terms and consequences of the plea during the 4 plea colloquy. Based on the foregoing, the Court agrees with Judge Crawford that 5 Petitioner was afforded all the process he was due. The Court therefore OVERRULES 6 Petitioner’s objection, ADOPTS the R&R, and DENIES the Petition as to Petitioner’s due 7 process claims. 8 III. Certificate of Appealability 9 When a district court enters a final order adverse to the applicant in a habeas corpus 10 proceeding, it must either issue or deny a certificate of appealability, which is required to 11 appeal a final order in a habeas corpus proceeding. 28 U.S.C. § 2253(c)(1)(A). A certificate 12 of appealability is appropriate only where the petitioner makes “a substantial showing of 13 the denial of a constitutional right.” Miller-El, 537 U.S. at 327 (quoting 28 U.S.C. § 14 2253(c)(2)). Under this standard, the petitioner must demonstrate that reasonable jurists 15 could debate whether the petition should have been resolved in a different manner or that 16 the issues presented were adequate to deserve encouragement to proceed further. Slack v. 17 McDaniel, 529 U.S. 473, 483–84 (2000). Here, the Court finds that reasonable jurists could 18 not debate the Court’s conclusion to dismiss with prejudice Petitioner’s claims and 19 therefore DECLINES to issue a certificate of appealability. 20 CONCLUSION 21 Based on the foregoing, the Court OVERRULES Petitioner’s objections, (Doc. No. 22 22), ADOPTS the R&R in its entirety, (Doc. No. 18), DENIES Petitioner’s petition for 23 writ of habeas corpus, (Doc. No. 1), and DECLINES to issue a certificate of appealability. 24 IT IS SO ORDERED. 25 Dated: December 30, 2016 26 27 28 15 15-CV-0448-AJB-KSC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 15-CV-0448-AJB-KSC

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