Melvin Anderson v. Daniel Paramo
Filing
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REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus, filed by Melvin Anderson. Objections to R&R due by 11/16/2018. Replies due by 12/7/2018. Signed by Magistrate Judge Nita L. Stormes on 10/30/2018.(All non-registered users served via U.S. Mail Service)(acc)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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MELVIN ANDERSON,
Case No.: 17-cv-1541-AJB (NLS)
Petitioner,
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REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE RE:
DENYING PETITION FOR WRIT
OF HABEAS CORPUS
v.
DANIEL PARAMO, Warden,
Respondent.
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[ECF. No. 1]
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I.
INTRODUCTION
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Petitioner Melvin Anderson (“Petitioner,” “Anderson,” or “Melvin”), a state
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prisoner proceeding pro se and in forma pauperis, has filed a Petition for Writ of Habeas
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Corpus pursuant to 28 U.S.C. § 2254, challenging his San Diego Superior Court
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convictions in case number SCS225148. (ECF No. 1 at 2 (“Petition”).)1 Respondent
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filed an answer, arguing that Petitioner’s petition fails for one claim on a procedural bar
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and on his other claim on the merits, and lodged the court records. (ECF No. 14
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Due to discrepancies between original and imprinted page numbers, page numbers for
docketed materials cited in this Report and Recommendation refer to those imprinted by
the court’s electronic case filing system.
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17-cv-1541-AJB (NLS)
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(“Answer”); ECF No. 15 (“Lodgment”).) Petitioner filed a traverse, and the Court took
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the matter under submission. (ECF No. 16 (“Traverse”).) After reviewing the parties’
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submissions and the lodgments, and for the reasons discussed below, the Court
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RECOMMENDS the Petition be DENIED.
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II.
FACTUAL BACKGROUND
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The following facts are taken from the California Court of Appeal opinions:2
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Melvin James Anderson was sentenced to prison in March 2013 for an
aggregate term of 23 years after a jury found him guilty of residential burglary,
first degree robbery, assault with a firearm, and possession of a firearm by a
felon, and found true firearm enhancement allegations attached to the
burglary, robbery, and assault charges, and he admitted he had served three
prior prison terms and had a prior conviction that constituted a serious felony
and a strike under the Three Strikes law.
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(Lodgment No. 21 at 1; see also Lodgment No. 13 at 2.)
At the time of the incident giving rise to the charges in this case,
Anderson lived with his cousin, Kellie Thomas, and her three children.
Gregory Moore and his girlfriend, Niya Watson, who is a cousin of both
Anderson and Thomas, had previously lived with Thomas and her children.
Moore and Watson testified that Thomas abused prescription pills, and that
Moore occasionally provided Thomas with Vicodin pills that were prescribed
for him when they lived together. Thomas sometimes paid Moore money for
the Vicodin pills and sometimes paid him for the pills by letting him use her
electronic benefit transfer (EBT) card to buy food. When Thomas’s mother,
Diane Sawyer, found out that Moore was giving Thomas Vicodin, she asked
Moore and Watson to move out of Thomas's apartment, and paid them $200
to expedite their move.
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After Moore and Watson moved out of Thomas’s apartment, Moore
continued to provide Thomas with Vicodin from his prescriptions, and
Thomas occasionally paid Moore for the pills by letting him purchase food
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This Court gives deference to state court findings of fact and presumes them to be
correct; Petitioner may rebut the presumption of correctness, but only by clear and
convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); Slovik v. Yates, 545 F.3d
1181, 1183 n.1 (9th Cir. 2008); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992)
(holding findings of historical fact, including inferences properly drawn from those facts,
are entitled to statutory presumption of correctness). Here, Petitioner does not raise a
challenge to any of these facts.
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with her EBT card. Moore testified that he would “front” Thomas the pills and
Thomas would pay him with the EBT card “about a week or so later.” On
March 1, 2012, Thomas met with Moore and Watson at a grocery store across
the street from her residence to give them the EBT card as payment for
Vicodin that Moore had given her earlier in the week. Thomas agreed to allow
Moore to spend $200 on the card for food. Thomas also paid Moore $300 in
cash toward an $800 debt for pills that he had given her and money that he
and Watson had loaned her. After Thomas bought groceries for her household,
she gave Watson the EBT card and told her that she could spend “$200 off the
EBT card.” Moore would normally “go right to the store” when Thomas let
him use her EBT card, and would return the card to Thomas within a couple
of hours. However, when Thomas gave Watson the card that day, Moore did
not have time to shop because he had a “previous engagement” and “other
things to do.” Consequently, he and Watson drove home with the EBT card
and Thomas walked home.
After Moore and Watson returned to their apartment, Anderson called
Watson and asked her if she had Thomas’s EBT card. Thomas later sent
Moore and Watson several text messages telling them that she, Anderson, and
Sawyer were on their way to Moore and Watson's apartment to retrieve the
card. Thomas told Moore that they were going to bring him $200 in cash in
exchange for the card.
Anderson arrived at Moore and Watson's apartment and knocked on the
door. Moore opened the door with the EBT card in his right hand. Anderson
said, “Yo, man. I need that card.” Moore replied, “Okay, well, where is the
$200?” Anderson said that he did not have the money, but would give it to
Moore later. Moore told Anderson that he needed to buy food before he
returned the card and turned to close the door. Anderson pushed the door open
and hit Moore on the head with what appeared to Moore to be a “skull cap,”
which Moore explained is a “beanie that you put over your skull.” The blow
caused Moore to lose his balance and stumble. As he stumbled, he saw a gun
clip fall out of the cap onto the floor, and saw Anderson pick up the clip.
Moore then heard the sound of a clip being inserted into a gun.
Watson testified that she saw the gun clip on the floor and saw
Anderson pick up the clip and insert it into a black gun. She yelled at Anderson
and told him to get out of her house. In response, Anderson said, “Get the fuck
out of my face. Get back. You will get hurt, too.” Before he left the apartment,
Anderson pushed Watson, pointed the gun at her and said, “I ought to rob you
right now.”
Medical assistant Shawn Ireland and a doctor were making a house call
at an apartment located down the hall from Moore and Watson’s apartment
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when the altercation between Anderson, Moore, and Watson occurred. Ireland
and the doctor heard yelling and screaming coming from down the hall. The
doctor told Ireland to “go break that up.” Ireland went into the hallway and
walked toward Moore and Watson’s apartment. As he approached their door,
he said something to the effect of, “Hey, hey, guys, calm down.” Anderson,
who was standing in the doorway, turned around and looked at Ireland. Ireland
saw a pistol in Anderson's right hand. He was familiar with guns and
recognized the gun in Anderson's hand as a semiautomatic “Glock” type of
pistol. Anderson was holding the gun by the barrel with the handle sticking
out the backside. When Ireland saw the gun, he backed away from Anderson,
returned to his patient's apartment, and called 911. A few minutes later, the
police arrived at Moore and Watson’s apartment. Moore told the police that
he had received his welfare check that day and that Anderson had probably
come to his home to rob him.
[] Anderson testified that he lived with his cousin, Thomas, and her
three children and was employed as an in-home caregiver. He testified that
Thomas was a “sickly person” and is mentally “slow.” He helped Thomas by
making sure that she shopped for groceries for the children, got the children
to school, made it to her medical appointments, and cleaned herself and the
children. Thomas’s mother, Sawyer, told Anderson in late 2011 that Thomas
had a drug problem. Anderson tried to talk to Thomas about the problem and
began to watch her more closely. Watson and Thomas told Anderson that
Thomas was getting pills from Watson, and Anderson knew that Watson was
getting the pills from Moore. Anderson spoke with Moore about providing
Thomas with pills. He asked Moore, “Why would you guys do this to your
family?” Moore responded, “I need my money. I’ve got to live too.”
After Thomas was hospitalized in December 2011 as a result of a drug
overdose, Anderson began monitoring her money. Thomas gave Anderson her
bank card and EBT card, but he later returned them to her when he “noticed
that she was doing better.” However, he continued to monitor her use of the
EBT card by asking her for receipts.
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The day before the March 1 incident, Sawyer and Anderson became
concerned because Thomas was missing and Sawyer discovered that money
had been withdrawn from Thomas’s bank account from a 7/11 store across
the street from Moore and Watson’s apartment. Anderson suspected that
Moore and Watson were selling drugs to Thomas again. When Thomas came
home, Anderson searched her and found Vicodin pills in her pocket. Anderson
was upset. He took the pills and Thomas’s cards from Thomas, but returned
the cards that night.
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The next day, Anderson and Sawyer confronted Thomas and asked her
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where the money missing from her account and her EBT card were. Thomas
said that she had paid bills with the money. She pretended to look for her EBT
card for a few minutes, but eventually admitted that Moore and Watson had
the card. Anderson “started arguing” with Thomas and expressing disapproval
that she had allowed Moore and Watson to take the card. Thomas responded,
“Well, she snatched it. It was two of them and just me. What was I going to
do?” Sawyer suggested that they go to Moore and Watson's apartment to
retrieve the EBT card and told Thomas to “tell them we’re coming to get the
card.” Thomas sent a text message to Moore and Watson while Sawyer,
Anderson and Thomas drove to their apartment. Anderson testified that he did
not have a gun. He explained that he wore a knife attached to his belt on his
right hip, and wore a cell phone holder behind the knife.
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Anderson arrived at Moore and Watson’s apartment and knocked on
the door. When Moore opened the door, he was holding Thomas's EBT card
in his hand. Anderson said, “I’m going to need that.” Moore turned to Watson
and asked her if he should give Moore the card. Watson said, “No, no. Hell
no.” Anderson reached for the card and Moore held onto it. They both pulled
on the card, but Anderson won the “struggle” and left with the card. Anderson
testified that he did not hit Moore over the head with a gun or with anything
else, and said that he did not own a gun. When Anderson was asked if Moore
fell during the struggle, he answered, “I’m not sure what happened when I
left. He was kind of, like, hurling towards the bathroom.” Anderson added
that Moore was not steady on his feet during the struggle and seemed “kind
of scared,” “slow,” and “groggy.” When Anderson was shown a photograph
of Moore with blood on his head after the incident, he testified that he might
have caused Moore to fall because Moore was unstable, but he denied that he
had hit Moore on the head.
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(Lodgment No. 13 at 3-8.)
III.
PROCEDURAL BACKGROUND
A.
Trial Court Proceedings
Matthew Williams (“Mr. Williams”) was the deputy district attorney assigned to
prosecute the case, and Debbie Kirkwood (“Ms. Kirkwood”) served as Petitioner’s public
defender. (Lodgment No. 1 at 2.)
Petitioner was initially charged by information on March 7, 2012. (Lodgment No.
9 at 8-12.) On May 9, 2012, Petitioner was charged by an amended information with first
degree residential burglary (Cal. Penal Code §§ 459-60, 667.5(c)(21)), first degree
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robbery (Cal. Penal Code §§ 211, 212.5(a), 12022.53(b)), assault with a firearm (Cal.
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Penal Code § 245(a)(2)), and being a felon in possession of a firearm (Cal. Penal Code §
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29800(a)(1)). (Id. at 19-21.) The State also alleged that in the commission or attempted
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commission of the robbery and assault, Petitioner personally used a firearm (a firearm
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enhancement under Cal. Penal Code §§ 12022.5(a), 12022.53(b)). (Id. at 20.) The State
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further alleged that Petitioner had served three prison terms (within the meaning of Cal.
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Penal Code §§ 667.5(b), 668), and that he had a prior conviction which constituted a
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serious felony (under Cal. Penal Code §§ 667(a)(1), 1192.7(c)) and a strike (under Cal.
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Penal Code §§ 667(b)-(i), 668, 1170.12). (Id. at 22.)
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On May 16, 2012, a jury convicted Anderson of all charges and found true the
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accompanying allegations. (Id. at 84-90.) In a bifurcated proceeding, Anderson admitted
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to the prior convictions. (Id. at 268-69.)
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On March 19, 2013, the trial court sentenced Petitioner to 23 years in state prison.
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(Id. at 281-82.) There, the trial court sentenced Petitioner to eight years for robbery (a
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middle term of four years, doubled under the Three Strikes law), ten years for the robbery
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firearm enhancement, and five years for the prior felony conviction enhancement.3 (Id.)
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B.
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On February 22, 2014, Petitioner filed a notice of appeal. (See Lodgment No. 10 at
Direct Appeal
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13.) In his direct appeal, Petitioner claimed that the trial court erred by failing to instruct
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the jury on Petitioner’s meritorious claim of right defense, and by allowing Mr. Williams
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to impeach him with a 23-year-old prior robbery conviction. (Id. at 21-30, 45-55.)
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Petitioner also claimed that the trial court erred by not excluding impeachment evidence
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regarding prior gun use, or, in the alternative, that Ms. Kirkwood rendered ineffective
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assistance of counsel by failing to object to the same. (Id. at 31-45.) Further, Petitioner
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The additional eight year burglary sentence (four-year middle term, doubled) with four
year accompanying firearm enhancement was later stayed by the California Court of
Appeal, in accordance with Cal. Penal Code § 654’s prohibition against multiple
punishments for crimes arising out of a single act. (Lodgment No. 13 at 30-31.)
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claimed that the cumulative effect of the errors deprived him of due process. (Id. at 55-
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56.) Lastly, Petitioner claimed that his burglary sentence should have been stayed
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pursuant to Cal. Penal Code § 654. (Id. at 56-59.) On March 13, 2015, the California
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Court of Appeal stayed a portion of Petitioner’s sentence,4 but affirmed the remainder of
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the judgment. (Lodgment No. 13.)
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On April 22, 2015, Petitioner sought review from the California Supreme Court.
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(Lodgment No. 14.) There, he raised issues regarding the denied claim of right defense,
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the admission of his 1989 robbery conviction, and Ms. Kirkwood’s ineffective assistance
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as to permitting his prior gun use to be introduced. (Id. at 7.) The California Supreme
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Court issued an order denying review on June 24, 2015. (Lodgment No. 15.)
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C.
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On January 22, 2016, Petitioner filed a petition for writ of habeas corpus in San
State Habeas Proceedings
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Diego County Superior Court. (Lodgment No. 16.) Petitioner argued that Ms. Kirkwood
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“advised him to reject the plea offer [and] insisted if he lost he would only receive 10
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years.” (Id. at 3.) However, in his habeas petition, he noted that these5 claims of
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ineffective assistance of counsel were not made during those initial appeals because
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“appellate counsel failed to adequately review the record on appeal in lieu of filing
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above-claims.” (Id. at 5.) Respondent subsequently filed a return to an order to show
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cause, arguing that Petitioner was not entitled to relief, (Lodgment No. 17), to which the
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Petitioner responded with a traverse, (Lodgment No. 18). On December 15, 2016, the
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superior court denied the habeas petition, pointing to Petitioner’s delay in raising the
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claims and also concluding that Petitioner’s claim failed on the merits. (Lodgment No.
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See supra note 3.
In contrast, during Petitioner’s direct appeals, he claimed that “(1) the trial court erred
by failing to instruct the jury on a claim-of-right defense, (2) the court erred by admitting
impeachment evidence regarding his prior gun use, [and] (3) the court prejudicially erred
in allowing the prosecution to impeach him with 23yrs.” (Lodgment No. 16 at 5.)
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On February 14, 2017, Petitioner filed a petition for writ of habeas corpus in the
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California Court of Appeal. (Lodgment No. 20.) Petitioner argued that he received
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ineffective assistance because counsel advised him to reject prosecution’s eight-year offer
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because of a meritorious claim of right defense and advised him that he would receive no
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more than ten years if convicted. (Id. at 29.) Petitioner further argued that he was denied
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due process at his Alvernaz6 waiver hearing, where he rejected the plea bargain. (Id. at
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15-19.) On February 28, 2017, the state appellate court denied the habeas petition,
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concluding that his claims were untimely, and, even if they were not procedurally barred,
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that they would fail on the merits. (Lodgment No. 21 at 4.)
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On June 9, 2017, Petitioner filed a petition for review in the California Supreme
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Court. (Lodgment No. 22.) He argued that there was confusion in the lower courts as to
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what questions may be asked during an Alvernaz waiver hearing, thus entitling him to
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review. (Id. at 8.) He also reasserted his previous ineffective assistance of counsel and
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due process claims. (Id. at 26-30.) On April 26, 2017, the California Supreme Court
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summarily denied the petition for review without comment or citation. (Lodgment No.
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23.)
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D.
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On July 20, 2017, Petitioner then filed the instant federal petition for writ of habeas
Federal Habeas Proceedings
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corpus in this Court. (Petition at 1.)
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IV.
SCOPE OF REVIEW
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Petitioner’s petition is governed by the provisions of the Antiterrorism and
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Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320
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(1997). Under AEDPA, a habeas petition will not be granted unless the adjudication: (1)
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resulted in a decision that was contrary to, or involved an unreasonable application of
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clearly established federal law; or (2) resulted in a decision that was based on an
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unreasonable determination of the facts in light of the evidence presented at the state
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Referring to In re Alvernaz, 2 Cal. 4th 924 (1992).
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court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002).
A federal court is not called upon to decide whether it agrees with the state court’s
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determination; rather, the court applies an extraordinarily deferential review, inquiring
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only whether the state court’s decision was objectively unreasonable. See Yarborough v.
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Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). In
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order to grant relief under § 2254(d)(2), a federal court “must be convinced that an
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appellate panel, applying the normal standards of appellate review, could not reasonably
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conclude that the finding is supported by the record.” See Taylor v. Maddox, 366 F.3d
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992, 1001 (9th Cir. 2004).
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A federal habeas court may grant relief under the “contrary to” clause if the state
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court applied a rule different from the governing law set forth in Supreme Court cases, or
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if it decided a case differently than the Supreme Court on a set of materially
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indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). A state court need
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not cite Supreme Court precedent when resolving a habeas corpus claim. See Early, 537
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U.S. at 8. As long as neither the reasoning nor the result of the state court decision
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contradicts Supreme Court precedent, the decision will not be “contrary to” clearly
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established federal law. Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). Clearly
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established federal law, for purposes of § 2254(d), means “the governing principle or
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principles set forth by the Supreme Court at the time the state court renders its decision.”
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Lockyer v. Andrade, 538 U.S. 63, 72 (2003)
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The court may grant relief under the “unreasonable application” clause if the state
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court correctly identified the governing legal principle from Supreme Court decisions but
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unreasonably applied those decisions to the facts of a particular case. Bell, 535 U.S. at
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694. The “unreasonable application” clause requires that the state court decision be more
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than incorrect or erroneous; to warrant habeas relief, the state court’s application of
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clearly established federal law must be “objectively unreasonable.” See Lockyer, 538
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U.S. at 75. “[A] habeas court [must] determine what arguments or theories supported, or
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could have supported, the state-court decision and then . . . ask whether it is possible
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fairminded jurists could disagree that those arguments or theories are inconsistent with a
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prior decision of [the Supreme Court].” Harrington v. Richter, 562 U.S. 86, 88 (2011).
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This is an extremely deferential review, posing a heavy burden on the Petitioner: to prove
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that the state court’s ruling on the claim was “so lacking in justification that there was an
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error well understood and comprehended in existing law beyond any possibility for
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fairminded disagreement.” Id. at 103.
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To determine if a decision was based on an unreasonable determination of the facts
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in light of the evidence presented, the state court’s factual findings are presumed correct
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and this presumption will not be overturned on factual grounds unless this Court finds
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that the factual determinations were objectively unreasonable in light of the evidence
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presented in state court. See Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see also
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Rice v. Collins, 546 U.S. 333, 341-42 (2006) (the fact that “[r]easonable minds reviewing
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the record might disagree” does not render a decision objectively unreasonable).
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Petitioner may overcome that presumption only by clear and convincing evidence. See
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28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007). A state
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court decision is only considered objectively unreasonable when it is “more than
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incorrect or erroneous.” Williams v. Taylor, 529 U.S. 362, 407 (2000).
Where there is no reasoned decision from the state’s highest court, the Court
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“looks through” to the underlying appellate court decision and presumes it provides the
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basis for the higher court’s denial of a claim or claims. See Ylst, 501 U.S. at 805-06. If
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the dispositive state court order does not “furnish a basis for its reasoning,” federal
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habeas courts must conduct an independent review of the record to determine whether the
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state court’s decision is contrary to, or an unreasonable application of, clearly established
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Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled
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on other grounds by Andrade, 538 U.S. at 75-76); accord Himes v. Thompson, 336 F.3d
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848, 853 (9th Cir. 2003).
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V.
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DISCUSSION
Petitioner raises two claims in his petition: (1) that he was deprived of effective
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assistance of counsel, and (2) that he was deprived due process in the Alvernaz waiver
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hearing. (Petition at 12.) Respondent argues that Petitioner’s ineffective assistance of
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counsel claim was reasonably rejected by the appellate court, and that his due process
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claim is procedurally defaulted. (Answer at 17-26.)
Ineffective Assistance of Counsel7
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A.
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In Petitioner’s first claim, he argues that he was deprived of effective assistance of
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counsel related to the plea bargain he was offered for the following reasons: (1) Ms.
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Kirkwood incorrectly advised him that if convicted, he would get a maximum of 10
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years; (2) Ms. Kirkwood incorrectly advised him that he had a meritorious claim of right
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defense; (3) Ms. Kirkwood instructed him to reject the plea bargain with an eight-year
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stipulated prison term; and (4) Ms. Kirkwood told him that he would win at trial.
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(Petition at 12-15.) Petitioner contends that he would have accepted the plea bargain but
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for Kirkwood’s erroneous advise. (Id. at 14.)
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Petitioner raised this ineffective assistance of counsel claim in his state habeas
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petition to the San Diego County Superior Court. (Lodgment No. 16.) The claim was
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also presented to and ruled upon by the California Court of Appeals. (Lodgment No. 20.)
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Petitioner’s habeas petition to the state supreme court was summarily denied. (See
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In his petition, Petitioner states that his “imprisonment is unlawful because Melvin was
deprived of his rights . . . to effective assistance of counsel before and during trial[.]”
(Petition at 12. Emphasis added.) However, Petitioner wholly failed to substantively
discuss this argument in his petition or traverse, or support it with any facts or argument.
Rather, Petitioner focused on the Alvernaz hearing and the events surrounding the plea
bargain prior to trial. Thus, the Court finds that any arguments as to ineffective
assistance of counsel during trial have been waived and the Court will not address it. See
Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996) (“Issues raised in a brief
that are not supported by argument are deemed abandoned.”); FDIC v. Garner, 126 F.3d
1138, 1145 (9th Cir. 1997) (“Appellants present no case law or argument in support of
this claim. Accordingly, we deem the argument waived.”); Creech v. Ramirez, No. 1:99CV-00224-BLW, 2016 WL 8605324, at *6 (D. Idaho Jan. 29, 2016) (finding that claims
with “no particular argument or evidentiary support” are “either forfeited or voluntarily
waived”).
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Lodgment No. 22.) Therefore, this Court “looks through” to the last reasoned state court
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decision to address Petitioner’s claim—i.e., the appellate court decision—and presumes
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that it provides the basis for the higher court’s denial of Petitioner’s claim. See Ylst, 501
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U.S. at 805-06.
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1. Legal Standard
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The clearly established United States Supreme Court law governing ineffective
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assistance of counsel (“IAC”) claims is set forth in Strickland v. Washington, 466 U.S.
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668 (1984). See Baylor v. Estelle, 94 F.3d 1321, 1323 (9th Cir. 1996) (stating that
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Strickland “has long been clearly established federal law determined by the Supreme
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Court of the United States”).
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To prevail on a claim of ineffective assistance of trial counsel in federal court,
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Petitioner must have first established in state court that his trial counsel’s performance
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was deficient—that it fell below an objective standard of reasonableness. Strickland, 466
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U.S. at 687. “This requires showing that counsel made errors so serious that counsel was
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not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id.
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Second, he must have shown counsel’s deficient performance prejudiced the defense,
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such that the result of the proceeding would have been different absent counsel’s errors.
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Id; see People v. Lucero, 23 Cal. 4th 692, 728 (2000) (“Prejudice occurs only if the
19
record demonstrates a reasonable probability that, but for counsel’s unprofessional errors,
20
the result of the proceeding would have been different.”) (internal quotation marks
21
omitted).8 Counsel’s errors must be so serious that the result of the proceeding was
22
23
24
25
26
27
28
The appropriate inquiry focuses on the adversarial process, not on the Petitioner’s
relationship with his lawyer:
8
If counsel is a reasonably effective advocate, [s]he meets constitutional
standards irrespective of h[er] client’s evaluation of h[er] performance. It is
for this reason that we attach no weight to either respondent’s expression of
satisfaction with counsel’s performance at the time of his trial, or to his later
expression of dissatisfaction.
United States v. Cronic, 466 U.S. 648, 657 n.21 (1984) (internal citations omitted).
12
17-cv-1541-AJB (NLS)
1
fundamentally unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993).
2
In assessing counsel’s performance, the Court employs a strong presumption that counsel
3
rendered adequate assistance and exercised reasonable professional judgment.
4
Strickland, 466 U.S. at 690.
5
On federal habeas review, “the question is not whether counsel’s actions were
6
reasonable, [but] whether there is any reasonable argument that counsel satisfied
7
Strickland’s deferential standard.” Harrington, 562 U.S.at 105. The Court need not
8
address the performance prong if the claim can be resolved on the ground of lack of
9
sufficient prejudice. Strickland, 466 U.S. at 697.
10
Effective assistance of counsel also attaches to the decision to accept or reject a
11
plea bargain. Turner v. Calderon, 281 F.3d 851, 879 (9th Cir. 2002); see also United
12
States v. Fuller, 941 F.2d 993, 995 (9th Cir. 1991) (“Our law has long recognized that a
13
defendant has the right to assistance of counsel in deciding whether or not to plead
14
guilty.”). Strickland’s two-prong test applies to ineffectiveness claims arising from the
15
plea process. Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). The first prong assesses not
16
whether “counsel’s advice was right or wrong but . . . whether that advice was within the
17
range of competence demanded of attorneys in criminal cases.” Turner, 281 F.3d at 879
18
(quotation omitted). To satisfy the “prejudice” requirement, petitioner must show “but
19
for counsel’s errors, he would have pleaded guilty and would not have insisted on going
20
to trial.” Id.
21
22
2. Timeliness
As a threshold matter, the Court will briefly address the issue of timeliness because
23
it was the first ground upon which the California Court of Appeal denied Petitioner’s
24
habeas petition. The state appellate court stated:
25
26
27
28
As the trial court observed, the unexplained delay of nearly three years
between sentencing and the filing of the habeas corpus petition in the trial
court bars the claims as untimely. (In re Reno (2012) 55 Cal.4th 428, 459; In
re Swain (1949) 34 Cal.2d 300, 302.)
(Lodgment No. 21 at 4.)
13
17-cv-1541-AJB (NLS)
1
A state court finding that a state habeas petition was untimely is generally
2
sufficient grounds to bar the federal habeas petition as well. California’s timeliness bar
3
has been found to be an “independent and adequate” state procedural ground barring
4
subsequent habeas relief in federal court. Walker v. Martin, 562 U.S. 307, 317 (2011);
5
Ayala v. Chappell, 829 F.3d 1081, 1095 (9th Cir. 2016) (“Walker holds that California’s
6
timeliness rule is an independent and adequate state law ground sufficient to bar federal
7
habeas relief on untimely claims.”) (original emphasis omitted). This federal bar applies
8
even if the appellate court found the petition untimely but still went on to address the
9
merits—as the appellate court did here. Loveland v. Hatcher, 231 F.3d 640, 643 (9th Cir.
10
2000) (concluding that federal habeas review was precluded when the state court
11
dismissed the “state habeas petition, independently stated that his petition was
12
procedurally barred because it was untimely and then separately concluded that his
13
claims were without merit”).
14
However, neither party raised this timeliness ground as a procedural bar to the
15
instant claim in the federal habeas petition. Failing to raise a procedural bar as a defense
16
to a claim generally waives it. Morrison v. Mahoney, 399 F.3d 1042, 1046-47 (9th Cir.
17
2005) (stating that, in the habeas context, “a state waives its statute of limitations defense
18
by filing a responsive pleading that fails to affirmatively set forth the defense”); Vang v.
19
Nevada, 329 F.3d 1069, 1073 (9th Cir. 2003) (stating that, in the habeas context,
20
procedural default is an affirmative defense, which is waived if not asserted by the state);
21
Batchelor v. Cupp, 693 F.2d 859, 864 (9th Cir. 1982).
22
Moreover, the Court retains the discretion to consider a claim on the merits even if
23
it may be procedurally barred. Harmon v. Ryan, 959 F.2d 1457, 1461 (9th Cir. 1992); see
24
Reed v. Ross, 468 U.S. 1, 9 (1984) (courts have “uniformly acknowledged that federal
25
courts are empowered under 28 U.S.C. § 2254 to look beyond a state procedural
26
forfeiture and entertain a state prisoner’s contention that his constitutional rights have
27
been violated.”); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (“[C]ourts are
28
empowered to, and in some cases should, reach the merits of habeas petitions if they are,
14
17-cv-1541-AJB (NLS)
1
on their face and without regard to any facts that could be developed below, clearly not
2
meritorious despite an asserted procedural bar.”).
Thus, the Court will address the merits of Petitioner’s ineffective of counsel claim.9
3
4
3. Merits
5
6
After finding the petition untimely, the California Court of Appeal continued to
also deny Petitioner’s ineffective assistance of counsel claim on the merits:
7
Even were the petition not procedurally barred, it would be denied on the
merits. To prevail on his claim of ineffective assistance of counsel, Anderson
must show his trial counsel’s advice to reject the prosecutor’s plea offer both
fell below an objective standard of reasonableness and also caused him
prejudice in that, but for her bad advice, there is a reasonable probability he
would have accepted the offer and the trial court would have approved it.
(Lafler v. Cooper (2012) 566 U.S. 156, 162-164; In re Alvernaz (1992) 2
Cal.4th 924, 936-941.) “In this context, a defendant’s self-serving
statement—after trial, conviction, and sentence—that with competent advice
he or she would have accepted a proffered plea bargain, is insufficient in and
of itself to sustain the defendant’s burden of proof as to prejudice, and must
be corroborated independently by objective evidence.” (In re Alvernaz, supra,
at p. 938.) As the trial court noted, the transcript of the hearing at which
Anderson rejected the prosecutor’s plea offer—the only objective evidence in
the record—completely undermines his claim that he decided to go to trial
because counsel had misinformed him he was facing only 10 years in prison
if convicted. At the hearing, both the prosecutor and the trial court stated the
maximum exposure was 30 years in prison, and Anderson said he understood
that when asked by the court. He also said he was aware of the prosecutor’s
offer of a stipulated eight-year prison sentence in exchange for a guilty plea,
8
9
10
11
12
13
14
15
16
17
18
19
20
21
9
22
23
24
25
26
27
28
Similarly, neither party raises any potential timeliness issue with the federal habeas
petition. AEDPA imposes a one year period of limitations on petitioners seeking to file a
federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). While this statute of
limitations is subject to statutory tolling with a “properly filed application for State postconviction or other collateral review,” 28 U.S.C. § 2244(d)(2), an untimely filed state
habeas petition does not toll the statute of limitations. Pace v. DiGuglielmo, 544 U.S.
408, 412-13 (2005) (a state post-conviction petition that a state court rejects as untimely
is not considered “properly filed” such that it tolls the federal statute of limitations).
Regardless, neither party raised this issue so the Court will not rule on it. Day v.
McDonough, 547 U.S. 198, 209 (2006) (“[D]istrict courts are permitted, but not obliged,
to consider, sua sponte, the timeliness of a state prisoner’s habeas petition.”).
15
17-cv-1541-AJB (NLS)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
had discussed the offer with counsel, and had decided to reject the offer and
go to trial. Anderson’s related claim that counsel misadvised him about the
strength of his claim of-right defense also fails. The only evidentiary support
for this claim is Anderson’s own declaration, which “is insufficiently
corroborated by independent, objective evidence.” (Id. at p. 945.) The
declarations of Anderson’s obviously biased family members and friends say
nothing about this defense. Those witnesses state only in very vague terms
that counsel advised Anderson not to accept the plea offer because he had a
good chance of prevailing at trial, and four of them suspiciously state they
heard counsel give that advice five days after the hearing at which Anderson
rejected the plea offer. Moreover, Anderson’s claim is contradicted by the
declaration of his counsel, who stated she advised Anderson the claim-of-right
defense was not worth taking to trial and he should accept the plea offer.
Based on “an independent review of the record,” this court concludes
Anderson has not “established by a preponderance of substantial, credible
evidence” that his counsel provided constitutionally ineffective assistance.
(Id. at pp. 944-945.)
(Lodgment No. 21 at 4.)
Here, for the reasons below, the Court finds that the state appellate court’s decision
15
was not contrary to or an unreasonable application of established federal law and did not
16
reflect an unreasonable determination of the facts in light of the evidence presented.
17
Because Petitioner presents several basis for the IAC claim, the Court will address each
18
in turn.
19
First, Petitioner claims that Ms. Kirkwood mistakenly told him that he only faced a
20
maximum of 10 years in prison if convicted. In support of this claim, in his state habeas
21
petition, Petitioner submitted a declaration stating that Ms. Kirkwood told him that “even
22
if she lost the case [Petitioner] wouldn’t get over 10 years.” (Lodgment No. 16 at 12; see
23
also Lodgment No. 18 at 4.)
24
The appellate court found that this statement from Petitioner—which was the only
25
evidence he submitted in support of this specific claim—was not sufficient to overcome
26
the objective evidence to the contrary. Specifically, the appellate court pointed to
27
Petitioner’s rejection of the prosecution’s plea offer on the record, where the following
28
exchange took place:
16
17-cv-1541-AJB (NLS)
1
2
THE COURT: You have any objection to me inquiring of him along the lines
of People v. Alvern[a]z?
3
MS. KIRKWOOD: No, your Honor.
4
THE COURT: Mr. Anderson, let me talk to you personally about what you
just heard. I sometimes feel uncomfortable having this conversation because
I am not in any way trying to pressure you, trying to nudge you in one way or
the other. It’s your call in consultation with your attorney. So please don’t
take anything I’m saying now with any indication of what I think you should
do, any, you know, arm twisting or anything. Understood?
5
6
7
8
9
10
11
12
13
14
15
16
THE DEFENDANT: Yes, sir.
THE COURT: I want you to have the information that was just given to me
so you understand that and you can put that in your calculations. The district
attorney wants me to go forward on a new amended information this morning,
arraign you on it, and he’s added some prior convictions of yours to it and
he’s changed one of the allegations to not only simply “uses a firearm” but
“uses a firearm during a robbery” which is a mandatory 10-year sentence
enhancement to any sentence. So that is what is happening. According to his
calculations, if we go forward in trial on that and you’re convicted on all
counts and all priors are found to be true, at sentencing you’re facing a
potential sentence of 30 years. Understood?
17
THE DEFENDANT: Yes, sir.
18
THE COURT: Before we go forward on that, Mr. Williams has made an offer
on the original complaint, that’s the only one now in effect until I arraign you
on the new one, and has offered you a plea bargain if you plead guilty to the
robbery and admit to the use of a gun and stipulate to an eight-year prison
sentence. That’s the offer of the district attorney right now. It will expire if
you don’t accept it, frankly. I presume you’ve had these conversations. I
don’t want you to tell me about your conversations. I presume you’ve
discussed these issues with your attorney.
19
20
21
22
23
24
THE WITNESS: Yes, sir.
25
THE COURT: You’re aware of the district attorney’s offer of eight years?
26
THE DEFENDANT: Yes, sir.
27
THE COURT: Is it your intention to refuse the offer and go forward in trial?
28
17
17-cv-1541-AJB (NLS)
1
THE DEFENDANT: Yes, sir.
2
THE COURT: Okay, I’ll note that Mr. Anderson has been advised of the
district attorney’s offer on the original complaint and has consulted with his
attorney about it and has advised the court that he is turning it down and
willing to go forward on trial.
3
4
5
6
7
8
9
(Lodgment No. 1 at 6-8.)
After Petitioner rejected the plea and the court moved onto other matters, Ms.
Kirkwood herself repeated that Petitioner faced a 30-year maximum in open court and in
the presence of Petitioner. In the hearing for motions in limine with Petitioner present, in
the context of whether Petitioner’s prior convictions could be used as propensity
10
evidence, Ms. Kirkwood stated “Mr. Anderson is facing 30 years in prison for this. We
11
have to make sure he receives a fair trial.” (Lodgment No. 1 at 34.) Later on, Ms.
12
Kirkwood again repeated “[w]e need to assure that Mr. Anderson receives a fair trial
13
acknowledging that he is looking at 30 years on this case.” (Id. at 46.) Petitioner did not
14
15
raise an issue with him misunderstanding his maximum sentence at this time either.
On this factual record, the appellate court was not objectively unreasonable in
16
rejecting Petitioner’s claim that counsel was ineffective because she misinformed him of
17
the sentence he was facing. The appellate court pointed out that the only “objective”
18
19
20
21
22
23
evidence on the record—the hearing transcript—showed that the prosecutor and the trial
court stated the maximum exposure was 30 years in prison, and Petitioner said he
understood that when asked by the court. In his state habeas brief, Petitioner argued that
his statements on the record that he understood the consequences of going to trial was
actually based on Ms. Kirkwood’s advice about 10 years, not 30 years. (Lodgment No.
18 at 9.) However, courts are not required to give weight to self-serving statements made
24
years after the fact. See Turner, 281 F.3d at 881 (rejecting petitioner’s “self-serving
25
statement, made years later,” that his counsel told him he would not face the death
26
27
penalty when petitioner sat through charging information, which included the possible
penalty of death, as insufficient to establish he was unaware of the possible punishment).
28
18
17-cv-1541-AJB (NLS)
1
Second, Petitioner contends that Ms. Kirkwood rendered inefficient assistance
2
because she assured him that he had a meritorious claim of right defense. Petitioner
3
argues that the claim of right defense clearly did not apply to his situation, because it
4
“does not apply if the claim arises from an activity known to be illegal or known by the
5
defendant to be illegal. . . . [and here,] the EBT card was being used in criminal activity.”
6
(Petition at 14-15.)
7
The appellate court weighed the evidence on both sides. In support of Petitioner’s
8
claim, he had his declaration which stated “Ms. Kirkwood told me that my good faith
9
believe [sic] that I had legal right to retrieve the card from Gregory Moore whom was
10
wrongfully holding the card would be my defense to the crime I was charge [sic].”
11
(Lodgment 16 at 12.) In addition, he stated “Still I worry and consultant [sic] with a
12
family friend. He told me that O.J. Simpson try the same defense and lost his case with
13
paid attorneys.” (Id.) In contrast, Ms. Kirkwood’s declaration, submitted to the state
14
court, stated:
15
16
17
18
19
20
After Anderson made clear to me that he was not going to plead guilty, I
formulated the claim-of-right defense based on the available facts. I believed
that arguing Anderson had a right to the property taken from the victim was
Anderson's best defense under the circumstances. As a zealous advocate, I
also argued Anderson’s theory that his cellular telephone carrier and knife
looked like a gun. I did not think these defenses were worth the risk of going
to trial, and I explained my candid assessment of these defense theories to
Anderson. However, Anderson still wanted to go to trial.
21
(Lodgment No. 17 at 56.). None of the other declarations submitted by Petitioner
22
included any statements specific to this defense. Balancing the two dueling declarations
23
from Petitioner and Ms. Kirkwood, the appellate court found that Petitioner’s own self-
24
serving, uncorroborated declaration was insufficient evidence that Ms. Kirkwood assured
25
him he had a meritorious claim of right defense.
26
The Court does not find this conclusion to be contrary to or an unreasonable
27
application of Strickland or an unreasonable interpretation of the evidence. Self-serving
28
statements, made after the fact, are often insufficient to overcome the presumption of
19
17-cv-1541-AJB (NLS)
1
validity accorded to state convictions. See Turner, 281 F.3d at 881; United States v.
2
Allen, 153 F.3d 1037, 1041 (9th Cir. 1998) (“[S]elf-serving statements by a defendant
3
that his conviction was constitutionally infirm are insufficient to overcome the
4
presumption of regularity accorded state convictions.”).
5
Moreover, even if Ms. Kirkwood did make statements to Petitioner suggesting that
6
he had a strong claim of right defense, this would not be sufficient to establish ineffective
7
assistance of counsel. Whether or not the claim of right defense applied to Petitioner’s
8
situation was not so clear that his counsel’s pursuit of the defense would have placed her
9
“outside the range of competence demanded of attorneys in criminal cases.” Turner, 281
10
F.3d at 879.
11
During trial, after the defense rested and prosecution declined to introduce rebuttal
12
evidence, Ms. Kirkwood requested the claim of right instruction.10 (Lodgment No. 4 at
13
62-63.) Ms. Kirkwood argued that Petitioner believed he had a bona fide belief to a
14
claim of right to the EBT card. (Id. at 63.) Ms. Kirkwood differentiated Petitioner’s
15
factual situation from cases cited by the State, arguing that Petitioner was not engaged in
16
“notorious illegal activity” such that the defense would be inapplicable. (Id. at 63-65.) In
17
a lengthy debate, the trial court debated whether to give the instruction, questioning Ms.
18
Kirkwood regarding how the defense applies when the property was not technically
19
Petitioner’s but belonged to another (i.e., Kellie Thomas). (Id. at 65-91.) Eventually,
20
21
22
23
24
25
26
27
28
10
Specifically, she requested California Criminal Jury Instruction 1863, which reads in
relevant part:
If the defendant obtained property under a claim of right, (he/she) did not have
the intent required for the crime of (theft/ [or] robbery). The defendant
obtained property under a claim of right if (he/she) believed in good faith that
(he/she) had a right to the specific property or a specific amount of money,
and (he/she) openly took it. . . . The claim-of-right defense does not apply if
the claim arose from an activity commonly known to be illegal or known by
the defendant to be illegal.
CALCRIM 1863.
20
17-cv-1541-AJB (NLS)
1
after noting that he “struggled” with the issue, the trial judge denied her request to give
2
the instruction. (Id. at 88-91.)
3
This record shows that the claim had some merit, as it was not summarily
4
dismissed as frivolous. Indeed, Petitioner himself argued that the claim of right defense
5
was meritorious, in his motions for new trial and direct appeals. (Lodgment No. 9 at 150-
6
53 (arguing that trial court should have given claim of right instruction because it was
7
supported by the evidence); Lodgment No. 10 at 18-19, 25-27 (arguing same on direct
8
appeal).11) Given this record, Petitioner’s claim that Ms. Kirkwood’s pursuit of this
9
defense arose to ineffective assistance of counsel does not stand.
10
Third, turning to the last two arguments petitioner makes—that Ms. Kirkwood
11
erred in telling him that he would prevail at trial and that she instructed him to not accept
12
the plea bargain—neither of these are sufficient to grant Petitioner habeas relief for an
13
IAC claim either.
14
The state appellate court reviewed the evidence submitted by the parties on this
15
issue. Petitioner submitted a declaration stating that Ms. Kirkwood told him “not to
16
worry we would win the case” and advised him to decline the eight year plea bargain.
17
(Lodgment No. 16 at 12.) He submitted a declaration from Gary L. Peavy, who stated
18
that he asked Ms. Kirkwood “you don’t believe he should have took the deal” and she
19
responded “No, he has a very good chance of success.” (Id. at 14.) He submitted a
20
declaration from Da’Lundra Anderson, which stated:
21
On several occasions while accompanying Melvin Anderson to court
proceedings [I] spoke with Mrs. Kirkwood in regards of his case. Mrs.
Kirkwood expressed her desire to take the case to trial and to reject the plea
22
23
24
25
26
27
28
The court of appeal rejected Petitioner’s argument that he was acting as Thomas’s
agent in retrieving her rightful property, holding that the trial court did not err in refusing
to give the claim of right instruction because there is a “strong public policy against
forcible self-help” of Petitioner taking the property for Thomas. (Lodgment No. 13 at 1013.) Thus, court of appeal rejected this claim on a different basis than the trial court.
This again shows that whether or not the defense applied was not a simple matter of black
letter law and required a nuanced application.
11
21
17-cv-1541-AJB (NLS)
3
deal because she felt there wasn’t enough to convict him and she could win
the case. Melvin and I went back and forth on making this decision on what
should he do and Mrs. Kirkwood kept assuring us to not worry and of course
we believed her since she was his attorney.
4
(Id. at 16.) He also submitted declarations from Kenya Dye, Gwendolyn D. White,
5
Timmy Anderson, and Jacqueline Anderson, which all identically stated “While in the
6
hallway of the court I heard [Petitioner’s] attorney Ms. Kirkwood tell [him] don’t take the
7
plea bargain because she believed it was no doubt[] that she would prevail during trial.”
8
(Id. at 18, 20, 22, 24.)
1
2
9
On the other hand, Ms. Kirkwood submitted a declaration, stating that she “never
10
guaranteed any outcome at trial” because “jury trials are inherently unpredictable” so it
11
was her “standard practice to never guarantee outcomes at trial.” (Lodgment No. 17 at
12
56.) She stated further that she was “pessimistic about [Petitioner’s] chances at trial” and
13
never stated to Petitioner’s declarants that he had a good chance at trial. (Id.) She also
14
stated that she “never counselled [Petitioner] to reject” the plea deal and instead
15
“counselled Petitioner to plead guilty.” (Id. at 57.)
16
In weighing this evidence, the state appellate court found that Petitioner’s
17
declarants were “biased family members” and noted that four of them “suspiciously”
18
stated that they overheard Ms. Kirkwood telling Petitioner to reject the plea bargain five
19
days after the hearing at which Petitioner already rejected the plea offer. The court
20
weighed these declarations against the contradictory statements submitted by Ms.
21
Kirkwood, ultimately finding that the evidence was insufficient to establish an IAC
22
claim. To obtain habeas relief, Petitioner must show that the state court’s factual
23
conclusion was more than “incorrect or erroneous” or that “reasonable minds reviewing
24
the record might disagree”—Petitioner must show that the conclusion was “objectively
25
unreasonable.” Williams, 529 U.S. at 407; Rice, 546 U.S. at 341-42. Under this
26
deferential review, the Court cannot say that the state appellate court’s conclusion was
27
“objectively unreasonable.” The state appellate court reviewed the evidence and gave
28
reasons for discounting certain declarations.
22
17-cv-1541-AJB (NLS)
1
The Court also does not find that the state court’s conclusion was contrary to or an
2
unreasonable application of established Supreme Court law. “[A]n erroneous strategic
3
prediction about the outcome of a trial is not necessarily deficient performance.” Lafler
4
v. Cooper, 566 U.S. 156, 174 (2012). A “defense attorney’s simple misjudgment as to
5
the strength of the prosecution’s case, the chances of acquittal, or the sentence a
6
defendant is likely to receive upon conviction, among other matters involving the
7
exercise of counsel’s judgment, will not, without more, give rise to a claim of ineffective
8
assistance of counsel.” In re Alvernaz, 2 Cal. 4th at 936. In other words, while the
9
attorney must give the client accurate information—such as the terms of the plea deal
10
offered or the maximum sentence he faces or issues of black letter law—the same does
11
not extend to opinions or advice. The attorney must only provide information such that
12
the defendant can “make an intelligent decision about an available plea bargain.” Perez
13
v. Rosario, 294 F. Supp. 2d 1125, 1139 (N.D. Cal. 2003) (“While counsel is not required
14
to accurately predict the outcome of a trial, he is required to provide the defendant with
15
the tools needed to make an intelligent decision about an available plea bargain.”).
16
As discussed above, the Court finds that Petitioner has not established that he was
17
told wrong information regarding the maximum sentence he faced and that Ms.
18
Kirkwood acted outside the accepted realm of competence in asserting the claim of right
19
defense. Armed with that information, his decision to accept or reject the plea bargain
20
was his own to make. Thus, this case is not unlike others where no ineffective assistance
21
of counsel was found. For example, in Turner v. Calderon, the court found no legal basis
22
for petitioner’s IAC claim where petitioner argued that he had a right to “an accurate
23
prediction of the outcome of his case” or that “counsel had an obligation to strongly
24
recommend the acceptance or rejection of a plea offer.” 281 F.3d at 881. The court
25
noted that “[c]ounsel cannot be required to accurately predict what the jury or court might
26
find, but he can be required to give the defendant the tools he needs to make an intelligent
27
decision.” Id. Finding that counsel in Turner accurately conveyed to the petitioner the
28
terms of the plea offer and that is case could result in a death sentence, the court found
23
17-cv-1541-AJB (NLS)
1
that counsel satisfied his obligation. Id. Similarly, in Van Wyk v. Beard, the petitioner
2
argued that his counsel “made a prediction about what was likely to happen, and that
3
prediction turned out to be wrong.” No. SACV1501257BROKES, 2016 WL 3381283, at
4
*9-10 (C.D. Cal. Mar. 14, 2016). The court found the advice from counsel was “based on
5
an erroneous strategic prediction, not an incorrect legal rule.” Id. Such advice was not a
6
basis for an IAC claim. See also Roberson v. Adams, 170 F. App’x 462, 464 (9th Cir.
7
2006) (rejecting IAC claim where attorney advised client that “she believed she had a
8
triable case and because she also believed that a 13-year sentence was too high”). Errors
9
in counsel’s judgment that turn out to be mistaken cannot be faulted after the fact as the
10
basis for an IAC claim. See Turner, 281 F.3d at 851 (“That counsel and Turner chose to
11
proceed to trial based on counsel’s defense strategy and presumably sincere prediction
12
that the jury would not award a sentence of death, does not demonstrate that Turner was
13
not fully advised of his options. Trial counsel was not constitutionally defective because
14
he lacked a crystal ball.”); Roberson, 170 F. App’x 462, 464 (9th Cir. 2006) (“In
15
hindsight, counsel’s advice appears to have been mistaken. Whether an attorney’s advice
16
constituted ineffective assistance of counsel, however, must be determined on the basis of
17
the situation as the attorney saw it when she gave the advice and not on the basis of a
18
hindsight analysis of the correctness of that advice.”).
19
Finally, Petitioner argues that his case is like Lafler v. Cooper, 566 U.S. 156
20
(2012), and Missouri v. Frye, 566 U.S. 134 (2012), because Ms. Kirkwood gave him
21
advice that turned out to be wrong about his probability of success at trial and to not
22
accept the plea bargain. Petitioner’s reliance on these cases is misplaced. In Lafler,
23
counsel told petitioner that he could not be convicted for assault with intent to murder
24
because he shot the victim below the waist. 566 U.S. at 174. This amounted to a
25
statement of “an incorrect legal rule.” In Frye, counsel wholly failed to communicate the
26
plea deal to petitioner before it expired. 566 U.S. at 134. For the reasons discussed
27
above, neither of these cases are factually applicable to Petitioner’s situation here.
28
Petitioner also fails to provide support for his claim that he would have accepted
24
17-cv-1541-AJB (NLS)
1
the plea bargain but for Ms. Kirkwood’s advice. This is a required showing under
2
Strickland—to show that counsel’s deficient performance prejudiced the defense, such
3
that the result of the proceeding would have been different absent counsel’s errors. None
4
of the third party declarations Petitioner submitted in support of his petition stated that
5
Petitioner would have taken the plea bargain but for Ms. Kirkwood’s advice. A
6
declaration from Petitioner stating that he was prejudiced is not itself sufficient; it must
7
be accompanied by some corroborating evidence. In re Alvernaz, 2 Cal. 4th at 938 (“A
8
defendant’s self-serving statement-after trial, conviction, and sentence that with
9
competent advice he or she would have accepted a proffered plea bargain, is insufficient
10
in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be
11
corroborated independently by objective evidence.”); see also Belton v. Knipp, No. C 12-
12
03582 BLF (PR), 2014 WL 3345793, at *14 (N.D. Cal. June 27, 2014).
13
14
Accordingly, after due consideration of the parties’ arguments, the Court
recommends that Petitioner’s petition as to his IAC claim be DENIED.
15
B.
16
In Petitioner’s second claim, Petitioner states that he was deprived due process in
Due Process
17
his Alvernaz waiver hearing, where he rejected the plea bargain at issue. (Petition at 12.)
18
Respondent argues that Petitioner’s due process claim is procedurally barred as untimely,
19
because the issue was raised three years after sentencing. (Answer at 17.) Petitioner
20
contends that he did not know his rights had been violated, nor that there was a legal
21
procedure to raise a due process claim, which should toll the statute of limitations.
22
(Traverse at 13.)
23
1. Procedural Bar
24
The state appellate court, in denying the habeas petition, reiterated that Petitioner’s
25
due process claim regarding his Alvernaz hearing was not only untimely, but also “further
26
barred because it could have been raised on [direct] appeal, but was not.” (Lodgment No.
27
21 at 4.) This is the basis that Respondent challenges Petitioner’s due process claim.
28
(Answer at 17-18.) Petitioner contends that his due process claim is not procedurally
25
17-cv-1541-AJB (NLS)
1
barred because he did not know the claim was litigable until much later, due to
2
ineffective assistance of counsel. (Traverse at 13.).
3
“[H]abeas corpus cannot serve as a substitute for an appeal.” In re Dixon, 41 Cal.
4
2d 756, 759 (1953). In California, “a convicted defendant desiring to bring claims in a
5
state habeas petition, must, if possible, have pursued the claims on direct appeal from his
6
conviction.” Park v. California, 202 F.3d 1146, 1151 (9th Cir. 2000) (calling this
7
requirement the “Dixon rule”) (citing In re Dixon, 41 Cal. 2d at 759); accord Johnson v.
8
Lee, 136 S. Ct. 1802 (May 31, 2016) (per curiam) (noting that it is a ubiquitous rule
9
across the country). However, the California state court would get to the merits of a
10
claim if one of four exceptions applied: “(1) fundamental constitutional error, (2) a lack
11
of fundamental jurisdiction by the trial court over the petitioner, (3) the trial court’s
12
acting in excess of jurisdiction, and (4) an intervening change in the law.” Park, 202
13
F.3d at 1151 (internal quotation marks omitted) (citing Fields v. Calderon, 125 F.3d 757,
14
760 (9th Cir. 1997)).
15
Federal habeas review is barred when a California defendant procedurally defaults
16
his claim under Dixon by raising it for the first time on state collateral review if it could
17
have been raised on direct review. Johnson, 136 S. Ct. at 1802 (holding that the Dixon
18
procedural bar is adequate to bar federal habeas review). A district court may, however,
19
reach the merits if the Petitioner can “demonstrate cause and prejudice or a fundamental
20
miscarriage of justice.” Park, 202 F.3d at 1150.
21
Here, Petitioner contends that his appellate counsel was ineffective for failing to
22
raise the issue on direct appeal. (Traverse at 13; see Lodgment No. 16 at 5 (“appellate
23
counsel failed to adequately review the record on appeal”).) Petitioner argues that he
24
“never knew that there was a legal procedure or basis to raise the claim that he had been
25
26
27
28
26
17-cv-1541-AJB (NLS)
1
denied due process[,]”12 because of his treatment at the Enhanced Outpatient Program
2
(“EOP”),13 and thus did not tell his attorney to raise the issue. (Traverse at 13.) The
3
Court imputes that Petitioner essentially makes two arguments. First, that the ineffective
4
assistance of counsel qualified as the “fundamental constitutional error” exception under
5
Dixon and so his claim should not be considered procedurally defaulted. Second, that
6
even if his claim was procedurally defaulted, the ineffective assistance of counsel and his
7
own lack of legal knowledge and mental status constitute cause under the cause and
8
prejudice standard and this Court should review the merits on federal habeas.
Ineffective assistance of counsel falls within “fundamental constitutional error” to
9
10
constitute an exception to the Dixon bar. See Garner v. Small, No. CV 09-9332 SVW JC,
11
2011 WL 1584062, at *7 (C.D. Cal. Jan. 7, 2011) (citing In re Robbins, 18 Cal. 4th 770,
12
814 n.34 (1998)). Similarly, ineffective assistance of counsel can also qualify as
13
sufficient “cause” to overcome a state’s procedural bar rule. Edwards v. Carpenter, 529
14
U.S. 446, 451 (2000) (“in certain circumstances counsel’s ineffectiveness in failing
15
properly to preserve the claim for review will suffice” to excuse procedural default.); see
16
Martinez v. Ryan, 566 U.S. 1, 8-9 (2012); Loveland, 231 F.3d at 644. “Not just any
17
deficiency in counsel’s performance will do, however; the assistance must have been so
18
ineffective as to violate the Federal Constitution.” Edwards, 529 U.S. at 451. Indeed,
19
“the mere fact that prior counsel omitted a particular nonfrivolous claim, however, is not
20
in itself sufficient to establish prior counsel was incompetent.” In re Reno, 55 Cal. 4th
21
22
23
24
25
26
27
28
12
However, evidence exists to the contrary; the Court notes that Petitioner raised a due
process claim (unrelated to the one at issue here) in his direct appeal. (Lodgment No. 10
at 55-56.)
13
There are three levels of mental health services care at Richard J. Donovan
Correctional Facility: Enhanced Outpatient Program is the second level, and is for
inmates who have difficulty adjusting to living in the prison’s general population, but
who are not so gravely disabled that they require inpatient care. California Dep’t of
Corrections & Rehabilitation, Richard J. Donovan Correctional Facility Psychology
Internship Handbook, at 4 (2018-2019), https://cchcs.ca.gov/wpcontent/uploads/sites/60/2017/12/RJDPsychologyInternshipHandbook.pdf.
27
17-cv-1541-AJB (NLS)
1
428, 464 (2012). Petitioner has the burden to show that an exception to Dixon applies or
2
that he has met the cause and prejudice requirement. See Roevekamp v. Choates, No. CV
3
12-3845-CAS CW, 2013 WL 2456615, at *3 (C.D. Cal. June 5, 2013); Giang Kien
4
Huynh v. Walker, No. EDCV 09-1288-R CW, 2013 WL 5934016, at *19 (C.D. Cal. Nov.
5
1, 2013).
6
Here, Petitioner fails to meet his burden. Stating only that appellate counsel failed
7
to adequately review the record, without more, is not sufficient to establish ineffective
8
assistance of counsel. See, e.g., United States v. Gevock, No. 211CR526JAMEFBP, 2016
9
WL 4209516, at *7 (E.D. Cal. Aug. 9, 2016) (“[V]ague allegations” that “his [] counsel
10
did not review evidence or discovery with him” are “insufficient to support a claim of
11
ineffective assistance of counsel.”); United States v. Park, No. CRS-02-0133 LKK
12
DADP, 2009 WL 3806232, at *4 (E.D. Cal. Nov. 12, 2009) (“[V]ague allegation” that
13
counsel “failed to perform effective legal services” are insufficient to excuse tolling.).
14
Even if counsel should have brought this claim on direct appeal because it had some
15
merit—which, as the Court explains below, it does not—failure to bring a particular
16
nonfrivolous claim does not alone constitute ineffective assistance, cognizable under the
17
Federal Constitution. In re Reno, 55 Cal. 4th at 464.
18
The other reason that Petitioner posits—his own ignorance of the law—is
19
insufficient to establish cause. See Vansickel v. White, 166 F.3d 953, 958 (9th Cir. 1999)
20
(“Attorney inadvertence or ignorance of the law does not establish cause for a procedural
21
default.”) (citing Murray v. Carrier, 477 U.S. 478, 486-87 (1986)); Thiessen v. Knipp,
22
No. 2:13-CV-0722 JAM GGH, 2016 WL 3512300, at *8 (E.D. Cal. June 28, 2016)
23
(“ignorance of law” not sufficient reason to excuse procedural default). Furthermore,
24
Petitioner’s status as an EOP patient does not present adequate cause either. Schneider v.
25
McDaniel, 674 F.3d 1144, 1153-1154 (9th Cir. 2012) (“[A] pro se petitioner’s mental
26
condition cannot serve as cause for a procedural default, at least when the petitioner on
27
his own or with assistance remains able to apply for post-conviction relief to a state
28
court.”) (internal quotation marks omitted); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th
28
17-cv-1541-AJB (NLS)
1
Cir. 1988) (“Petitioner’s arguments concerning his mental condition and that he relied
2
upon incompetent ‘jailhouse lawyers’ do not constitute cause.”).
Accordingly, the Court holds that Petitioner’s due process claim relating to his
3
4
Alvernaz waiver hearing is procedurally barred under Dixon and Petitioner has failed to
5
meet his burden to establish cause and prejudice.14
6
2. Merits
7
Regardless, for completeness, the Court will briefly address the merits of
8
Petitioner’s due process claim. Even if Petitioner’s due process claim was not
9
procedurally barred, it would fail on the merits.
Petitioner argues that he “was denied a sufficient Alvernaz waiver hearing because
10
11
the hearing never determined what his attorney advised him regarding the exposure he
12
faced; what he was advised the offer was and what he was advised as to taking the
13
prosecution offer.” (Lodgment No. 18 at 9.) Petitioner contends that the trial court did
14
not ask Ms. Kirkwood “what she advised Petitioner as to his exposure, the offer, and
15
whether he should take the offer[,]” thus constituting a violation of Petitioner’s due
16
process rights. (Lodgment No. 18 at 9-10.)
This Court liberally construes Petitioner’s contentions15 as arguing that there was a
17
18
procedural due process violation, that he did not have fair notice or opportunity to be
19
heard. To obtain relief on a procedural due process claim, Petitioner must have
20
established “(1) a liberty or property interest protected by the Constitution; (2) a
21
22
23
24
25
26
27
28
14
In addition, the Court notes that Petitioner’s due process claim was not only not
addressed in direct appeal, but also is missing from his state habeas petition; it was not
until his traverse, (Lodgment No. 18 at 9), when he raised the issue for the first time. As
such, the Superior Court did not address any alleged due process violation in its decision
to deny the petition. (Lodgment No. 19 at 3 (noting that the record of the Alvernaz
hearing refutes Petitioner’s contention that his attorney advised him that he faced a tenyear maximum, but never mentioning the due process concerns of the hearing itself).)
15
See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (reasoning
that pro se pleadings are liberally construed).
29
17-cv-1541-AJB (NLS)
1
deprivation of the interest by the government; and (3) lack of process.” Shanks v.
2
Dressel, 540 F.3d 1082, 1090 (9th Cir. 2008) (internal quotation marks omitted). Even
3
with this Court’s attempts to liberally construe Petitioner’s argument, he has not
4
overcome his burden: the record is clear that Petitioner’s due process rights were not
5
violated at his Alvernaz waiver hearing.
6
The purpose of an Alvernaz waiver hearing is to ensure that the defendant received
7
effective assistance of counsel during the pre-trial stages, namely plea-negotiations, by
8
correctly and accurately communicating the prosecution’s offer to the defendant. See
9
generally In re Alvernaz, 2 Cal. 4th at 928 (holding that if a defendant demonstrates with
10
objective evidence that ineffective representation at the pretrial stage of a criminal
11
proceeding caused him reject a plea bargain, he has been deprived of the effective
12
assistance of counsel). This Alvernaz hearing avoids any later confusion and ensures that
13
the record reflects that the defendant knew (1) the terms of the plea bargain offered, (2)
14
how to resolve the case via the available plea bargain, and (3) what could happen if he
15
proceeded to trial. Here, the Alvernaz waiver hearing fulfilled its purpose; thus Petitioner
16
was not denied due process.
17
During the Alvernaz hearing, the court addressed Petitioner directly, stating: “[I]f
18
we go forward in trial on that and you’re convicted on all counts and all the priors found
19
to be true, at sentencing you’re facing a potential sentence of 30 years.” (Lodgment No.
20
1 at 7.) When the court asked Petitioner if he understood, Petitioner replied, “Yes, sir.”
21
(Id.) The court then explained the plea bargain currently on the table:
22
23
24
25
Mr. Williams has made an offer on the original complaint, that’s the one now
in effect until I arraign you on the new one, and has offered you a plea bargain
if you plead guilty to the robbery and admit to the use of a gun and stipulate
to an eight-year prison sentence. That’s the offer of the district attorney right
now. It will expire if you don’t accept it, frankly.
26
(Id. at 7-8.) When asked by the court if he was aware of “the district attorney’s offer of
27
eight years[,]” Petitioner responded with, “Yes, sir.” (Id. at 8.)
28
In the hearing, the court also sought to ensure that Petitioner had discussed the plea
30
17-cv-1541-AJB (NLS)
1
bargain with his counsel: “I presume you’ve had these conversations. I don’t want you to
2
tell me about your conversations. I presume you’ve discussed these issues with your
3
attorney,” to which Petitioner responded, “Yes, sir.” (Id. at 8.) Thus, on this record,
4
Petitioner advised the court that he had discussed the plea bargain with his attorney16 and
5
that it was his intention to refuse the offer and go forward with trial. (Id. at 8.)
6
Petitioner appears to argue that this exchange was insufficient and the court should
7
have inquired into what he was advised by his counsel. The Court disagrees that such
8
questions are required in an Alvernaz hearing, especially since such questions may invade
9
the attorney-client privilege. The trial court in fact recognized this—the judge asked
10
Petitioner only whether he discussed the plea bargain with his counsel but specifically
11
cautioned him not to divulge the contents of those discussions. Petitioner fails to cite any
12
authority suggesting that such questioning is required for a sufficient Alvernaz hearing.
13
In alleging violation of his due process rights, Petitioner provides no objective
14
evidence to overcome the overwhelming evidence in the record to the contrary. In re
15
Alvernaz, 2 Cal. 4th at 938. As the trial court noted in responding to Petitioner’s motion
16
for new trial:
17
It was very, very plain. . . . [Petitioner] is not a kid. He and I had a straightup conversation and he told me ‘yes, sir, I want to go to trial.’ So I cannot
find, here, ineffective assistance of counsel or confusion that resulted in him
turning down an offer that now, facing the sentence he is facing today, perhaps
he should have taken.
18
19
20
21
(Lodgment No. 8 at 20-21.) The court in Alvernaz stated that “a reviewing court can take
22
23
16
24
25
26
27
28
In his state court habeas traverse, Petitioner alleged that when the trial court cautioned
him against revealing attorney-client privileged information, “he thought [that meant] he
could not tell the court what he had been told by his attorney[,]” when asked if they had
discussed the potential sentence. (Lodgment No. 18 at 8.) Petitioner alleges that though
he answered affirmatively that he understood the potential consequences of going to trial,
he actually was basing his choice on Kirkwood’s advice about his maximum exposure of
10 years. (Lodgment No. 18 at 9.) As discussed below, Petitioner’s assertions are not
enough to succeed with his claim.
31
17-cv-1541-AJB (NLS)
1
judicial notice of trial court proceedings, including a defendant's ‘trial stance.’”
2
Buenrosto v. Spearman, No. 14-CV-3166-LHK, 2015 WL 2251063, at *6 n.5 (N.D. Cal.
3
May 13, 2015) (citing In re Alvernaz, 2 Cal. 4th at 940). Here, that stance, as expressed
4
to the court, was that Petitioner was advised adequately by Ms. Kirkwood regarding the
5
plea bargain, and decided on his own volition to reject the plea bargain and go to trial.
6
(See Lodgment No. 1 at 8.) Thus, were the Court to reach the merits, this claim would
7
still fail.
Accordingly, the Court also recommends that Petitioner’s petition as to his due
8
9
10
process claim be DENIED.
VI.
CONCLUSION AND RECOMMENDATION
11
The Court submits this Report and Recommendation to United States District
12
Judge Anthony J. Battaglia under 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the
13
United States District Court for the Southern District of California. In addition, IT IS
14
HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting
15
this Report and Recommendation, and (2) directing that Judgment be entered DENYING
16
the Petition.
17
IT IS HEREBY ORDERED that any party to this action may file written
18
objections with the Court and serve a copy on all parties no later than November 16,
19
2018. The document should be captioned “Objections to Report and Recommendation.”
20
IT IS FURTHER ORDERED that any Reply to the Objections shall be filed with
21
the Court and served on all parties no later than December 7, 2018. The parties are
22
advised that failure to file objections within the specified time may waive the right to
23
raise those objections on appeal of the Court’s Order. See Turner v. Duncan, 158 F.3d
24
449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
25
Dated: October 30, 2018
26
27
28
32
17-cv-1541-AJB (NLS)
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