Masson v. Valenzuela

Filing 20

CLERK'S JUDGMENT. IT IS SO ORDERED AND ADJUDGED : The Court adopts the Report and & Recommendation, and denies each claim of Petitioner's Petition for Habeas Corpus.(All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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THOMAS L. MASSON, JR.,

Case No.: 16-CV-916 JLS (JLB)
Petitioner,

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ORDER ADOPTING REPORT AND
RECOMMENDATION RE
PETITION FOR HABEAS CORPUS

v.
E. VALENZUELA,

(ECF No. 18)

Respondent.

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Petitioner Thomas L. Masson Jr. has filed a Petition for Writ of Habeas Corpus,

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(“Petition,” ECF No. 1), to which Respondent E. Valenzuela has filed a Response, (ECF

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No. 15). Petitioner then filed a Traverse, (ECF No. 17). Magistrate Judge Jill L. Burkhardt

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issued a Report and Recommendation, recommending the Court deny Petitioner’s Petition,

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(“R&R,” ECF No. 18). Judge Burkhardt ordered objections to the R&R to be filed no later

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than November 24, 2017. Petitioner did not file objections.

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Having considered the Parties’ arguments and the law, as well as the underlying state

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court record, the Court ADOPTS Judge Burkhardt’s Report and Recommendation, and

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DENIES Petitioner’s Petition for Habeas Corpus.

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BACKGROUND

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Judge Burkhardt’s R&R contains a complete and accurate recitation of the relevant

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portions of the factual and procedural histories underlying Petitioner’s claims. (See R&R

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1–4.)1 This Order incorporates by reference the background as set forth therein.

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LEGAL STANDARD

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

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court’s duties in connection with a magistrate judge’s R&R. The district court must “make

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a de novo determination of those portions of the report or specified proposed findings or

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recommendations to which objection is made,” and “may accept, reject, or modify, in

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whole or in part, the findings or recommendations made by the magistrate judge.” 28

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U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673–76 (1980); United

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States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely

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objection, the Court “need only satisfy itself that there is no clear error on the face of the

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record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s

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note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

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ANALYSIS

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Petitioner filed the present Petition pursuant to 28 U.S.C. § 2254(d).

Judge

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Burkhardt reviewed each of Petitioner’s arguments, and the Court will do the same.

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Petitioner has not objected to the R&R; thus, the Court applies a clear error standard of

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review.

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Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), this

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Court may grant habeas relief only if the state court’s decision (1) “was contrary to, or

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involved an unreasonable application of, clearly established federal law, as determined by

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the Supreme Court . . . ; or (2) resulted in a decision that was based on an unreasonable

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determination of the facts in light of the evidence presented in the State court proceeding.”

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28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 7–8 (2002).

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Pin citations refer to the CM/ECF page numbers electronically stamped at the top of each page.
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Under § 2254(d)(1), federal law must be “clearly established” to support a habeas

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claim. Clearly established federal law “refers to the holdings, as opposed to the dicta, of

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[the United States Supreme] Court’s decisions.” Williams v. Taylor, 529 U.S. 362, 412

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(2000). A state court’s decision may be “contrary to” clearly established Supreme Court

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precedent “if the state court applies a rule that contradicts the governing law set forth in

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[the Court’s] cases” or “if the state court confronts a set of facts that are materially

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indistinguishable from a decision of [the] Court and nevertheless arrives at a result different

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from [the Court’s] precedent.” Id. at 406. A state court decision does not have to

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demonstrate an awareness of clearly established Supreme Court precedent, provided

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neither the reasoning nor the result of the state court decision contradict such precedent.

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Early, 537 U.S. at 8.

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A state court decision involves an “unreasonable application” of Supreme Court

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precedent “if the state court identifies the correct governing legal rule from this Court's

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cases but unreasonably applies it to the facts of the particular state prisoner’s case.”

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Williams, 529 U.S. at 407. An unreasonable application may also be found “if the state

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court either unreasonably extends a legal principle from [Supreme Court] precedent to a

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new context where it should not apply or unreasonably refuses to extend that principle to a

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new context where it should apply.” Id.; Wiggins v. Smith, 539 U.S. 510, 520 (2003); Clark

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v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003).

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Relief under the “unreasonable application” clause of § 2254(d) is available “if, and

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only if, it is so obvious that a clearly established rule applies to a given set of facts that

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there could be no ‘fairminded disagreement’ on the question.” White v. Woodall, 134 S.

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Ct. 1697, 1706–07 (2014) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). An

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unreasonable application of federal law requires the state court decision to be more than

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incorrect or erroneous. Lockyer v. Andrade, 538 U.S. 63, 76 (2003). Instead, the state

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court’s application must be “objectively unreasonable.” Id.; Miller-El v. Cockrell, 537 U.S.

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322, 340 (2003). Even if a petitioner can satisfy § 2254(d), the petitioner must still

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demonstrate a constitutional violation. Fry v. Pliler, 551 U.S. 112, 119–22 (2007). With

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this general framework in mind, the Court turns to Petitioner’s claims.

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I.

Claim One: Ineffective Assistance of Counsel

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Petitioner raises an ineffective assistance of counsel claim. Petitioner argues that his

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counsel was “in collaboration” or “in concert” with the state’s “malicious prosecution”

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when Petitioner pled guilty to “an illegal enhancement added to count 2.” (Petition 7.) As

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Judge Burkhardt recognized, Petitioner failed to exhaust his ineffective assistance of

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counsel claim. (R&R 11–13.) Generally a habeas petition may not be granted unless the

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applicant has exhausted remedies in state court. 28 U.S.C. § 2254(b)(1). However, a

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district court may deny a habeas petition when “it is perfectly clear that the applicant does

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not raise even a colorable federal claim.” Cassett v. Stewart, 406 F.3d 614, 623–24 (9th

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Cir. 2005); see 28 U.S.C. § 2254(b)(2). Judge Burkhardt correctly concluded that the Court

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may reach the merits of Petitioner’s claim under § 2254(b)(2).

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Judge Burkhardt identified the relevant Supreme Court precedent for claims of

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ineffective assistance of counsel in the plea bargain context. (R&R 13 (citing Missouri v.

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Frye, 566 U.S. 134, 140 (2012); and Hill v. Lockhart, 474 U.S. 52, 57 (1985); and

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Strickland v. Washington, 466 U.S. 668, 688 (1984)).) Judge Burkhardt determined that

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Petitioner’s ineffective assistance of counsel claim rests on essentially two contentions.

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First, Petitioner argues his counsel should have challenged Count 2 and the California

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Penal Code § 667.5(c)(21) special allegation brought against him. As Judge Burkhardt

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correctly recognized, legal jeopardy does not attach upon arrest and therefore Petitioner

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could have been arrested for a prior burglary, released, and later charged with that burglary.

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(See id. at 14.)

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Second, Petitioner asserts that he received ineffective assistance of counsel on the

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grounds that his attorney forced him to enter into a plea agreement “under extreme duress.”

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(Id. at 15 (quoting Petition 7).) Where a criminal defendant pleads guilty on the advice of

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counsel, the defendant may only contest the voluntary and intelligent nature of his guilty

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plea by demonstrating his counsel’s advice was not “within the range of competence
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demanded of attorneys in criminal cases.” Tollet v. Henderson, 411 U.S. 258, 266 (1973)

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(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). Judge Burkhardt determined

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that Petitioner faced a sentence of up to twenty-two years and eight months if convicted at

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trial. (R&R 16.) Further, Petitioner could have been sentenced to a maximum of eleven

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years and four months at his sentencing hearing. (Id.) The Court agrees with Judge

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Burkhardt that Petitioner does not show how he could have succeeded at trial. Petitioner

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has not demonstrated an underlying “constitutional infirmity,” Tollet, 411 U.S. at 266, and

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accepting a plea bargain well under the maximum possible sentence does not overcome the

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strong presumption that his counsel’s advice to take the plea bargain was “well within the

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range of reasonable professional assistance.” Strickland, 466 U.S. at 689.
Accordingly, the Court finds no error in Judge Burkhardt’s finding and ADOPTS

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the R&R as to Petitioner’s first claim. The Court DENIES Petitioner’s first claim.

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II.

Claim Two: Prosecutorial Misconduct

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Petitioner brings a prosecutorial misconduct claim on three bases. First, Petitioner

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“suffered malicious prosecution and misconduct” when the prosecution charged him with

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violating California Penal Code § 667.5(c)(21) “with the intent to expose petitioner to

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greater punishment.” (R&R 17 (quoting Petition 3).) Second, Petitioner alleges that the

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prosecution “willfully and intentionally altered” the pretrial services report used at

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Petitioner’s proceedings to “aggravate Petitioner[’]s prior criminal history (or lack thereof)

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at his arraignment.” (Id. at 18 (quoting Traverse 4–5, 7).) Third, Petitioner claims that the

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prosecutor coerced him to plead guilty. (Id.)

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Judge Burkhardt first cites Tollet v. Henderson, 411 U.S. at 267, for the proposition

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that when a criminal defendant pleads guilty on the advice of counsel, he may not thereafter

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raise independent claims relating to the deprivation of his constitutional rights occurring

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prior to the guilty plea. (R&R 19.) Because Petitioner pled guilty on the advice of counsel,

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he may not raise a habeas challenge against the prosecutor’s decision to charge Petitioner

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with Penal Code § 667.5(c)(21) and the characterization of the pretrial services report. (Id.)

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The Court agrees with Judge Burkhardt’s conclusion that Petitioner’s claims are
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preempted.

Additionally, the Court concurs with Judge Burkhardt’s findings that

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Petitioner’s first and second argument fail on the merits. (See id. at 20–26.) Finally, Judge

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Burkhardt finds that Petitioner has not demonstrated that his guilty plea was not entered

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into knowingly, intelligently, and voluntarily. (Id. at 27.) The Court agrees; Petitioner’s

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argument that he was improperly charged with the Count 2 burglary and § 667.5(c)(21) is

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incorrect on its face. (See id. at 7–9 (explaining why California Penal Code § 667.5(c)(21)

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was correctly applied to Petitioner).) Further, Petitioner has not demonstrated any threat,

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misrepresentation, or promise that was outside the prosecutor’s discretion. (Id. at 28 (citing

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Brady v. United States, 397 U.S. 742, 755 (1970)).)

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In light of the foregoing, the Court finds no error in Judge Burkhardt’s finding and

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ADOPTS the R&R as to Petitioner’s second claim and DENIES Petitioner’s second claim.

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III.

Claim Three: Judicial Error

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Petitioner’s third claim is that the trial court erred by accepting and applying Penal

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Code § 667.5(c)(21) thus resulting in the imposition of a greater sentence. (Id. at 29 (citing

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Petition 9).)

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enhancement statute; the statute makes Petitioner’s burglary conviction a “violent felony.”

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The statute means that Petitioner may face an increased punishment if he faces future

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offenses and limits Petitioner’s good conduct credits. (Id. at 31.) Thus, Petitioner’s claim

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is based on an incorrect premise. And, the decision to bring certain charges rests with the

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prosecution and not the court. (Id. at 30 (citing, e.g., Wayte v. United States, 470 U.S. 598,

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607 (1985)).)

As Judge Burkhardt recognized, Penal Code § 667.5(c)(21) is not an

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Finally, Petitioner raises a claim, for the first time, in his Traverse that “he was never

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assigned counsel during his arraignment process.” (Traverse 5.) Instead, he asserts that he

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was assigned an unidentified woman claiming to be “an intern for the San Diego County

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Public Defenders Office.” (Id.) Judge Burkhardt determined that this claim is unexhausted

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and meritless. (R&R 31–32.) The Court agrees. Assuming, for the sake of argument, that

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Petitioner was denied counsel at his arraignment, see Bell v. Cone, 535 U.S. 685, 695–96

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(2002) (citing Hamilton v. Alabama, 368 U.S. 52, 54 (1961); and White v. Maryland, 373
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U.S. 59, 60 (1963) (per curiam)), he later pled guilty on the advice of counsel. Therefore,

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under Tollet, Petitioner may only contest the voluntary and intelligent nature of his guilty

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plea by demonstrating his counsel’s advice was not “within the range of competence

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demanded of attorneys in criminal cases.” 411 U.S. at 266 (citation omitted). As

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previously discussed, Petitioner has not demonstrated his guilty plea was outside the range

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of competence demanded by attorneys in criminal cases.

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constitutional infirmity, such as denial of counsel during arraignment, was preempted by

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Petitioner’s knowing and voluntary guilty plea.

Thus, any underlying

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Moreover, new habeas claims cannot be raised for the first time in a Traverse. See

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Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994); see also Delgadillo v.

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Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008). Petitioner states that he is not attempting

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to amend his Petition—he is only supplementing it. (Traverse 2.) His Petition does not

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raise any argument as to his arraignment or representation during arraignment; this is

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clearly a new claim.
Accordingly, the Court ADOPTS the R&R as to Petitioner’s third claim. The Court

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DENIES Petitioner’s third claim.

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IV.

Evidentiary Hearing

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The Court briefly addresses the issue of an evidentiary hearing. Petitioner’s habeas

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Petition does not explicitly move for an evidentiary hearing. His Traverse, however,

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obliquely references an evidentiary hearing when Petitioner requested his allegations

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regarding his third claim “be deemed true until an evidentiary hearing.” (Traverse 5, 9.)

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“In habeas proceedings, an evidentiary hearing is required when the petitioner’s

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allegations, if proven, would establish the right to relief.” Totten v. Merkle, 137 F.3d 1172,

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1176 (9th Cir. 1998) (citing Campbell v. Wood, 18 F.3d 662, 679 (9th Cir. 1994); and

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Townsend v. Sain, 372 U.S. 293, 312 (1963)). “However, an evidentiary hearing is not

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required on issues that can be resolved by reference to the state court record.” Id. (citing

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Campbell, 18 F.3d at 679; and United States v. Moore, 921 F.2d 207, 211 (9th Cir. 1990);

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and United States v. Birtle, 792 F.2d 846, 849 (9th Cir. 1986)).
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Judge Burkhardt’s finding as to Petitioner’s third claim was based on the legal

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conclusion that Petitioner did not identify an applicable Supreme Court holding. (R&R

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32.) Thus, there is no issue of fact. Moreover, Petitioner cannot raise a habeas claim for

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the first time in a Traverse. See Cacoperdo, 37 F.3d at 507. Accordingly, the issues

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Petitioner raised may be resolved to the state court record and an evidentiary hearing is not

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warranted.

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V.

Certificate of Appealability

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Petitioner does not request a certificate of appealability. When a district court enters

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a final order adverse to a petitioner in a habeas proceeding, it must either issue or deny a

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certificate of appealability, which is required to appeal a final order in a habeas corpus

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proceeding. See 28 U.S.C. § 2253(c)(1)(A). A petitioner seeking a writ of habeas corpus

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has no absolute entitlement to appeal a district court’s denial of his petition, but may only

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appeal in certain circumstances. Miller–El, 537 U.S. at 335–36. The federal rules

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governing habeas cases brought by state prisoners require a district court that dismisses or

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denies a habeas petition to grant or deny a certificate of appealability in its ruling. See Rule

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11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. For the reasons set forth

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above, Petitioner has not shown “that reasonable jurists of reason would find it debatable

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whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529

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U.S. 743, 484 (2000). Accordingly, the Court DECLINES to issue a certificate of

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appealability.

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CONCLUSION

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For the foregoing reasons, the Court ADOPTS the R&R, (ECF No. 18), and

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DENIES each claim of Petitioner’s Petition for Habeas Corpus, (ECF No. 1). Because this

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Order concludes litigation in this matter, the Clerk SHALL close the file.

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IT IS SO ORDERED.
Dated: May 14, 2018

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