Gallegos v. Premo
Filing
46
OPINION AND ORDER: Petitioner's Petition For Writ of Habeas Corpus is DENIED, and this proceeding is DISMISSED, with prejudice. Because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability is DENIED. (See 29 page opinion for more information) Signed on 8/3/15 by Judge Owen M. Panner. (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JASON GALLEGOS,
6:13-cv-00929-PA
Petitioner,
v.
JEFF PREMO,
Respondent.
THOMAS J. HESTER
Assistant Federal Public Defender
101 S.W. Main St., Suite 1700
Portland, Oregon 97204
Attorney for Petitioner
FREDERICK BOSS
Deputy Attorney General
SAMUEL A. KUBERNICK
Assistant Attorney General
Department of Justice
1162 Court Street N.E.
Salem, Oregon 97301-4096
Attorneys for Respondent
1 - OPINION AND ORDER
OPINION AND ORDER
PANNER~
Judge
Petitioner, an inmate at the Oregon State Penitentiary, brings
this habeas corpus proceeding puisuant to 28 U.S.C.
the
reasons
set
forth
below,
petitioner's
2254.
For
petition
is
§
habeas
DENIED.
BACKGROUND
In February 2004, while incarcerated at the Northern Oregon
Regional Correctional Facilities (NORCOR) , petitioner told fellow
inmate
Eric
Hasselblad
that
Transcript ("Tr."), p .. 111.
he
"wanted
his
wife
killed."
Petitioner informed Hasselblad that he
had already hired and paid an individual named Curtis Reeves to
kill his wife but was concerned that Reeves was "ripping him off."
Tr., pp. 46-48.
Hasselblad reported petitioner's plan to Sheriff Deputy Jerry
Sackmaster.
Resp.
Ex.
agent of the police,
someone
to
kill
his
128, p.
6;
Resp.
Ex.
116.
Working as an
Hasselblad offered to help petitioner find
wife.
Petitioner
accepted
and
provided
Hasselblad a note with information about his estranged wife and how
to find her.
Resp. Ex. 128, p.
7; Tr. p. 119.
Police taped two
conversations between Hasselblad and petitioner discussing the best
way to murder petitioner's wife.
Resp. Ex. 128 at 7.
Hasselblad
recommended Victor Castro (an undercover police officer) to be the
"hit man."
Resp. Ex. 128, p. 8.
2 - DPINION AND ORDER
On
March
2,
2004,
Castro
had
a
taped
conversation
with
petitioner about murdering petitioner's wife:
VICTOR:
So~
consider your ~ife as good as dead.
Do you want to change your mind?
PETITIONER:
What's that?
VICTOR:
Consider it done.
PETITIONER:
Okay.
VICTOR:
She's as good as dead.
PETITIONER:
Okay.
VICTOR:
Do you want out of it or are you going
for it?
PETITIONER:
I'm on. We're goin';
Resp. Ex. 128, pp. 25, 31-32.
On March 4, 2004, a grand jury indicted petitioner on charges
of attempted aggravated murder (five counts), conspiracy to commit
aggravated murder
(one
count),
attempted
murder
(two
counts),
attempted violation of a court's stalking protective order
counts), and solicitation to commit murder (two counts).
102.
Attorneys
David A.
Corden and M.
(two
Resp. Ex.
Christian Bottoms,
were
appointed to represent petitioner.
Resp. Ex. 129.
They moved to
withdraw
bar
against
after
Resp. Ex. 129.
petitioner
filed >a
complaint
them.
The trial court granted the motion and appointed
Theodore Coran to represent petitioner.
111, p. 2.
3 - OPINION AND ORDER
Resp. Ex. 129; Resp. Ex.
On August 31, 2005, petitioner pled guilty to five counts of
attempted aggravated murder.
Resp.
Ex.
103.
The trial
sentenced petitioner to a 157-month term of ·imprisonment.
Ex. 101.
court
Resp.
Petitioner filed a direct appeal assigning plain error to
the trial court's failure to merge the five counts of attempted
murder into two counts for sentencing.
Court
of
Appeals
reversed
merging the con'victions.
P.3d 255 (2006).
and
Resp. Ex. 105.
remanded
for
entry
The Oregon
of
judgment
State v. Gallego$, 208 Or. App. 488, 145
Prior to resentencing, petitioner filed a motion
to withdraw his guilty plea.
Tr., p. 514.
The trial court denied
petitioner's motion and imposed the same sentence after merging the
convictions.
Tr., pp. 527-528.
Petitioner subsequently sought state post-conviction relief on
the basis that he received ineffective assistance of trial and
appellate counsel and that the trial court had violated his Sixth
Amendment right to conflict-free counsel.
Resp. Ex. 111, pp. 5-8.
Following an evidentiary hearing, the post-conviction (PCR) court
denied
relief.
The . Oregon
Court
of
Appeals
affirmed
opinion, and the Oregon Supreme Court denied review.
without
Gallegos v.
Premo, 250 Or. App. 570, 284 P.3d 599 (2012), rev. denied, 352 Or.
377, 290 P. 3d 813 (2012).
Petitioner now alleges that:
(1)
his Sixth Amendment rights
were violated when the state trial court denied his request for new
/
4 - OPINION AND ORDER
counsel and his request to proceed pro se;
was ineffective;
and
( 3)
( 2) his trial counsel
he was denied due process because his
guilty plea was not knowing and voluntary.
DISCUSSION
I.
Procedural Default
Before seeking federal habeas corpus relief, a state prisoner
~fairly
must exhaust his available state remedies by
his federal claims to the appropriate state courts.
presenting"
28
2254(b) (1); Baldwin v. Reese, 541 U.,S. 27, 29 (2004).
is satisfied if petitioner invokes
state's
established
appellate
Boerckel, 526 U.S. 838
When a
~one
review
u.s.c~
§
Exhaustion
complete round" of the
O'Sullivan
process.
v.
(1999).
state prisoner fails
claims in state court,
to fairly present his federal
and the state court would now find the
claims barred under applicable state rules, the federal claims are
procedurally defaulted.
Coleman v. Thompson, 501 U.S. 722, 735 n.
1 (1991); Casey v. Moorer 386 F. 3d 896, 920 (9th Cir. 2004); Cook
v. Schriro, 538 F.3d 1000, 1025 (9th Cir. 2008).
A federal
claim
is
also
procedurally
actually raised in state court,
court based upon a state law.
(2009).
defaulted
if
it
is
but explicitly rejected by the
Cone v.
Bell,
556 U.S.
449,
465
Federal habeas relief is precluded in these cases provided
that the state law invoked is independent of the federal question
5 - OPINION AND ORDER
and adequate to support the judgment.
556 U.S.
Cone,
at 465.
·Coleman,
501 U.S. at 750;
Habeas review of procedurally defaulted
claims is precluded absent a showing of cause and prejudice,
or
that the failure to consider the federal claims will result in a
fundamental miscarriage of justice.
Respondent
argues
that
Coleman,
subparts
of
501 U.S. at 750.
Grounds
One
and
Two,
regarding the trial court's denial of his motion to withdraw his
guilty
plea
and
trial
counsel's
alleged
lack
subparts
in his
petition to
contact
althou~h
petitioner, are procedurally defaulted because,
raised these
of
the
with
petitioner
PCR trial
court,
petitioner failed to fairly present these claims on appeal.
A careful review of the record reveals that petitioner argued
that counsel was ineffective for failing to communicate with him
within the discussion of his
ineffective assistance of counsel
claim in his appellate briefing (Ground Two).
With respect to the
trial court's denial of his motion to withdraw his guilty plea,
petitioner fairly presented this subpart by citing to his amended
post-conviction petition and discussing this issue in his appellate
brief.
However, there is a question as to whether petitioner's Sixth
Amendment claim is barred by an independent and adequate state
rule.
In Oregon,
direct
appeal,
and
a defendant must raise trial court errors on
failure
6 - OPINION AND ORDER
to
do
so
results
in
preclusion
of
post-conviction relief.
867 P.2d 1368
723, 725
1983).
Palmer v.
State of Oregonr 318 Or.
(1994); Hunter v. Maass,
(1991); Kellotat v. Cupp,
532,
106 Or. App. 438, 808 P.2d
719 F.2d 1027, 1030
(9th Cir.
However, when a defendant enters a guilty plea in Oregon,
trial court errors are not subject to direct appeal.
ORS 138.050. 1
While the Oregon Court of Appeals has held that defendants may
raise all other issues on post-conviction appeal, few Oregon cases
See State v. Buckles,
address this issue.
268 Or. App. 293,
342
P.3d 116, 119
(2014) ("constitutional claims that fall outside of
the
ORS
scope .of
138.050 ( 1)
'must
be
left
to
possible
post-
conviciion relief'").
In the instant proceeding, petitioner's appellate counsel did
not raise ground one, trial court error~, on direct appeal because
ORS 138.050 narrowed the scope of appeal to only issues challenging
the length of sentencing.
On post-conviction appeal, the PCR court
held that Palmer.procedurally bars petitioner from raising trial
court
errors
appeal.
2
because
he
failed
to
raise
this
claim on
direct
In light of ORS 138.050 and the accompanying limited
1
0RS 138.050 provides that a defendant who has pleaded
guilty or no contest may only appeal the judgment on the grounds
that the length of the sentence exceeds the maximum allowed by
law or that the sent~nce is unconstitutionally cruel and unusual.
2
While the PCR court also addressed ground one on the
merits, its invocation of Palmer still procedurally bars habeas
relief. See Bennett v. Muellerr 322 F.3d 573, 580 (9th Cir.
2003) ("a state court's application of a procedural bar is not
7 - OPINION AND ORDER
Oregon
case
law,
the
PCR
court's
application
of
Palmer
as
a
procedural bar presents a complex and unclear question of Oregon
state law that I need not resolve here.
See 28 U.S.C.
claim on the merits.
be denied on the merits,
§
Instead,
I address this
2254(2) (habeas petition may
notwithstanding the failure to exhaust
available state remedies).
Finally, to the extent that petitioner directly challenges his
guilty plea as a violation of due process, petitioner procedurally
defaulted this claim by failing to raise it on appeal from the
denial of post-conviction relief.
that
a
due
process
claim
can
I reject petitioner's suggestion
be
exhausted
by
alleging
an
ineffective assistance of appellate counsel claim.
II.
Relief on the Merits
A petition for writ of habeas corpus filed by a state prisoner
shall not be granted with respect to any claim that was adjudicated
on the merits in state court unless the adjudication resulted in a
decision
that
was
"contrary
to,
or
involved
an
unreasonable
application of, clearly established Federal law," or "resulted in
a decision that was based on an unreasonable determination of the
facts in light of evidence presented."
(2);
Harrington v. Richter,
562 U.S.
86,
28 U.S.C.
100
§
(2011).
2254 (d) (1)
&
Petitioner
undermined where, as here, the state court simultaneously rejects
the merits of the claim."); see also Harris v. Reed, 489 U.S.
255, 264, n.10 (1989).
8 - OPINION AND ORDER
bears the burden of proof.
Cullen v. Pinholster, 131 S.Ct. 1388,
1398 (2011).
A.
Ground One: Sixth Amendment Violation
In Ground for Relief One, petitioner alleges that the trial
court violated his Sixth Amendment right to counsel by denying his
motions for substitute counsel and to proceed pro se.
argues
that
an actual
conflict
of
interest
Petitioner
arose when
counsel
defended himself against petitioner's complaints and endorsed the
trial
cou.rt' s
manipulation.
speculation
that
petitioner
was
engaged
in
According to petitioner, his relationship with trial
counsel collapsed, creating an irreconcilable conflict.
Finally,
petitioner argues that the trial court's denial of his motion to
proceed pro se violated his Sixth Amendment right as defined in
Faretta v. California, 422 U.S. 806 (1975).
Respondent argues that this ground -is not reviewable as an
independent
basis .for . habeas
constitutional
errors
that
petitioner's guilty plea.
v.
relief
because
occurred
prior
the
cla{m attacks
to
the
entry
of
Respondent cites to the rule in Tollett
Henderson that a defendant who voluntarily and intelligently
pleads guilty may not subsequently seek federal habeas relief on
the basis of pre-plea constitutional violations.
266-67
(1973) ("defendant
may
only
attack
intelligent character of the guilty plea'").
9 - OPINION AND ORDER
the
411 U.S.
'voluntary
I disagree.
258,
and
While the violation of petitioner's Sixth Amendment rights
allegedly occurred prior to his guilty plea, petitioner nonetheless
is challenging
th~
voluntary nature of
hi~
Specifically,
plea.
petitioner alleges that because his right to substitute counsel and
to proceed pro
se were violated,
guilty.
this claim is not barred by petitioner's guilty
plea.
Thus,
he was
coerced into pleadi.ng
Accordingly, I address petitioner's Sixth Amendment claim on
the merits below.
1. Standards
The
Sixth
Amendment
provides
that
"[i]n
all
prosecutions, the accused shall enjoy the right to
Assistance of Counsel for his defense."
U.S.
This
right
right
has
two
components:
representation; and (2)
( 1)
the
criminal
have the
Const. Amend.
to
VI.
conflict-free
the right to effective representation of
counsel.
Daniels v. Woodford, 428 F. 3d 1181, 1196 (9th Cir. 2005);
Wheat v.
United States,
486 U.S.
153,
Washington, 466 U.S. 668, 687-88 (1984).
162. (1988);
Strickland v.
A trial court's denial of
a motion to substitute counsel can implicate a criminal defendant's
Sixth Amendment right to counsel and,
claim on federal habeas review.
F.3d 1469,
1475
Schell v. Witek,
(9th Cir.
10 - OPINION AND ORDER
is a cognizable
Bland v. Cal. Dep't of Corr., 20
1994),
218 F.3d 1017
therefore,
overruled .on other grounds by
(9th Cir. 2000) (en bane).
"To
establish
a
violation
of
the
right
counsel, the petitioner must either show that
to
(1)
conflict-free
in spite of an
objection, the trial court failed to allow him the 'opportunity to
show that potential conflicts impermissibly imperil his right to a
fair trial;' or (2) that an actual conflict of interest existed."
Alberni v. McDaniel,
Sixth
Amendment
458 F.3d 860,
does
not
protect
869-70 ·(9th Cir.
2006).
against
theoretical
a
"mere
The
division of loyalties," but rather protects against conflicts of
interest that adversely affect counsel's performance.
Taylor,
535 U.S.
162,
172 n.
5
Mickens v.
(2002) (emphasis added);
see also
Plumlee v. Masto, 512 F.3d 1204, 1210 (9th Cir. 2008) (en bane).
The question on federal habeas review is whether "the conflict
between [the petitioner] and his attorney had become so great that
it resulted in a total lack of communication or other significant
impediment
that
relationship
Amendment."
that
resulted,
fell
in
short
turn,
of
that
in
an
required
attorney-client
by
the
Sixth
Schell, 218 F.3d at 1026; Daniels, 428 F.3d at 1197.
2. Motion for Substitute Counsel
On the day before trial,
pretrial
motions.
Tr. ,
p.
the trial court held a hearing on
3.
Petitioner's
trial
counsel
unsuccessfully moved to suppress evidence colletted by a police
wiretap and intercept.
Tr., p. 33.
counsel reported that
following the motion hearing,
11 - OPINION AND ORDER
On the morning of trial, trial
he and the
prosecutor came to a possible resolution of the case:
That resolution was communicated to Mr. Gallegos last
night in the presence of my irivestigator. We discussed
that along with what we believed to be the strengths and
weaknesses of the case given the Court's ruling
yesterday.
[This morning, petitioner] indicated to me that he has no
·longer any faith in my abilities to defend him and has
as ked for new counsel, or in the alternative, to be
allowed to represent himself.
Tr., pp. 321-322.
The
trial
petitioner
court
regarding
engaged
his
motion
in
a
for
lengthy
discussion
with
substitute
counsel,
which
included the following exchange:
PETITIONER:
I don't have a choice because I have no confidence
in my counsel .
I have no working relationship
with Mr. Coran --
THE COURT:
I observed you yesterday all day long. You appeared
to have a very good working relationship with Mr.
Coran. Mr. Coran asked the questions that you
insisting on being asked. When I left here last
night at 7 o'clock, you and Mr. Coran and Mr.
Coran's investigator were still in here discussing
issues.
Tr., p. 340.
Mr. Coran defended his representation of petitioner stating
that "for anybody to tell me that I am not aware of what's going on
or prepared to defend is simply self-serving, and I won't stand for
it."
Tr., p. 347.
The trial court questioned Mr. Coran on whether
he could "professionally continue to represent [petitioner] given
the personality issues that have arisen."
12 - OPINION AND ORDER
Tr., p. 349.
Mr. Coran
apologized for becoming too emotional and stated that he is able to
work with petitioner and "will do what
communicate with him today."
[he]
need [ s]
to try to
Tr., p. 358.
Following an extended discussion,
including
stat~ments
.from
Mr. Coran and the prosecutor, the trial court denied petitioner's
motions £or either substitute counsel or to proceed pro se.
pp. 360-361.
Tr.,
After conferring with Mr. Coran during a three hour
recess, petitioner entered a guilty plea in exchange for the state
dropping charges six through twelve and· agreeing not to prosecute
petitioner for witness tampering.
Tr., pp. 370-380.
At the PCR court proceeding, petitioner declared that he moved
for substitute counsel because he felt trial counsel had failed to
adequately prepare
conflict."
for
trial
and due
Resp. Ex. 122, p. 2 at! 5.
to
"a
severe personality
Petitioner referred to the
numerous letters he had written trial counsel and complained that
trial counsel had failed to "communicate a clear defense strategy
or theory."
Resp.
Ex.
122, p.
3 at !
6.
In contrast,
counsel
informed the trial court that he and petitioner experienced "no
problems" until petitioner lost his motion to suppress.
Tr., p.
349.
The PCR court rejected petitioner's assertions that there was
an actual conflict between petitioner and trial counsel, concluding
that petitioner was not credible.
13 - OPINION AND ORDER
Concluding that the trial court
did not violate petitioner's Sixth Amendment rights, the PCR court
stated:
3.
Petitioner has not proved that ncoran and the Court
had no intention of trying this ca~e."
Throughout the transcript of the proceedings on the
day of trial, it is clear that the Court, DA, and
Mr. Coran were all prepared for trial. and that a
jury panel was waiting in the hallway.
* * * * *
8.
Trial counsel demonstrated his willingness to
follow petitioner's demands if it was legally
possible. Trial counsel stated, and the prosecutor
affirmed, that he was prepared for trial just
before petitioner chose to accept the plea deal.
Petitioner's general allegation that trial counsel
was
unprepared
for
trial
is
inaccurate
and
unproved.
* * * *
*
10.
Petitioner
claimed
that
trial
counsel
was
unprepared for the pre-trial motion hearing from
the day before and for trial on that day. The court
responded that trial counsel ndid an excellent job
yesterday" despite the reality that nfactually, I'm
sorry, [petitioner], but you didn't have much to
work with, and your lawyer doesn't have much to
work with" at the hearing. Even the prosecutor told
the court that he believed trial counsel was
working on the case, was nvery prepared," and
appeared to be making motions at the request of
petitioner.
11.
Petitioner's real problem was that he did not like
the way the case was heading.
Trial counsel
explained,
n[y]esterday, we h~d no problem~. Yesterday,
we were in there fighting and working together
and talking, and everything was moving along
fine. I think once the Court made its rulings
[denying the motions to suppress damaging
pieces of evidence] and [petitioner] ha:d to
14 - OPINION AND ORDER
finally accept what it was that I had been
telling him for several months, I think that
may have changed his mind."
[Trial counsel] believed that petitioner complained
of his representation for merely "self-serving"
reasons, not legitimate reasons. The prosecutor
also believed that petitioner was making
"an intention.al attempt to preserve the record
to ensure that he can file a post-conviction
relief or an appellate claim for ineffective
assistance of counsel....
[P]etitioner was
actively engaged in the case [yesterday],
writing notes, communicating with his attorney
and through notes, verbally, and they were
actually working very well together in my
opinion."
* * * * *
17.
The trial court did not err by denying petitioner's
motions. The court properly denied the motion for
substitution of counsel. The court believed that
petitioner's motion was "an attempt to manipulate
the system" in orqer to get a continuance since
petitioner "did that once. You play~d the game once
in March. Okay. We're not going to play that game
again." The prosecutor had overwhelming evidence
that petitioner hired people to shoot his wife in
the head in front of their small children and he
tampered with witnesses.
Resp. Ex. 134, pp. 4,
6, 7, 9 at
CJ[CJ[
3, 8, 10, 11, 17.
Petitioner has failed to show that the PCR court's factual
fin~ing
that there was no actual conflict between petitioner and
trial counsel is unreasonable in light of the evidence presented.
28 U.S.C.
§
2254 (d) (2).
As noted by the PCR court,
(1) petitioner
and trial counsel worked well together at the pre-trial motions
hearing; (2)
tria~
counsel was prepared and effectively argued pre-
15 - OPINION AND ORDER
trial motions the day before trial;
(3) trial counsel demonstrated
an effort to follow petitioner's demands if legally possible; and
(4) trial court viewed petitioner's motion on the morning of trial
as a delay tactic.
In
sum,
petitioner
has
failed
to
point
counsel's allegedly conflicting interests
adequacy of counsel's representation."
to
evidence
~'actually
that
affected the
Mickens, 535 U.S. at 1243.
Petitioner's distrust of trial counsel does not rise to the level
See Plumlee,
of an actual conflict.
512 F.3d at 1211
(no actual
conflict when representation by a "lawyer free of actual conflicts
of
interest,
but with whom the
defendant
refuses
to
cooperate
because of dislike or distrust"); compare with Mickens, 535 U.S. at
164-65
(recognizing
a
"potential
conflict
of
interest"
when
appointed counsel previously represented the murder victim in a
separate case").
Moreover,
in finding petitioner was not
credible,
the
PCR
court held that trial counsel maintained adequate communication
with petitioner and was prepared for trial.
Resp. Ex. 134, p. 6 at
~
9.
Resp. Ex.- 133, p. 3;
As the PCR court noted, trial counsel
explained to the trial court that he and petitioner discussed and
agreed that their trial strategy was to prevent the admission of
petitioner's taped conversations with Hasselblad and Castro.
p.
345.
Tr.,
Trial counsel also noted that he and petitioner worked
16 - OPINION AND ORDER
well together on the day of the pre-trial motions hearing.
Ex. 134, p. 7 at
~
Resp.
11.
Accordingly, petitioner has failed to demonstrate that the PCR
court's rejection of his Sixth Amendment claim is contrary to or an
unreasonable application of federal law.
While counsel did not
agree with petitioner's desire to go to trial, counsel was prepared
to t:J='y the case.
T r. , pp.
3 4 9-3 50 .
This disagreement fails to
rise to the level of an actual or irreconcilable conflict that
affected counsel's performance.
13-14
(1983) ("no
relationship'
Sixth
between
an
See Morris
Amendment
accused
and
v.
right
his
Slappy, 461 U.S. 1,
to
a
counsel")
'meaningful
Although
counsel did not respond to every letter petitioner wrote to him,
counsel adequately informed petitioner of developments and strategy
in the case.
3. Right to Proceed ProSe
Petitioner also argues that in denying his motion to proceed
pro se, the trial court violated his Sixth Amendment rights under
Faretta.
Petitioner argues that the PCR court's holding that trial
court did not violate petitioner's Sixth Amendment right to proceed
pro se is an unreasonable application of Faretta because the trial
court relied on petitioner's lack of legal expertise.
contends
that
the
PCR
court's
application of federal law.
17 -OPINION AND ORDER
holding
I agree.
is
not
an
Respondent
unreasonable
After
the
trial
substitute counsel,
court
denied
petitioner's. request
for
petitioner moved to represent himself.
The
trial court discussed the motion with petitioner in depth,
ultimately denied the motion.
gave three
untimely;
reasons
but
Tr., pp. 323-361. · The trial court
for denying petitioner's motion:
( 1)
it was
(2) petitioner lacked the legal expertise to proceed pro
se; and (3) it was an attempt to manipulate the system.
Tr., pp.
339, 341, 361.
In Faretta, the Supreme Court held that a criminal defendant
has a right to represent himself "provided. only that he knowingly
and intelligently forgoes his right to counsel and that he is able
and willing to abide by rules of procedure and courtroom protocol."
Frantz v.
422
U.S.
Hazey, 533 F.3d 724,
at
"In
819).
739 (9th Cir. 2008) (citing Faretta,
order
to
invoke
the
right
of
self-
representation successfully, a defendant's waiver of counsel must
be
'timely,
not
for
the
purposes
knowing, and intelligent."'
(9th Cir.
2010).
of
delay,
McCormick v. Adams,
unequivocal,
and
621 F.3d 970, 976
A court may not deny a defendant's request to
proceed pro se under Faretta solely on the basis of lack of legal
expertise and knowledge.
(9th Cir. 2003); Faretta,
Van
Lynn v.
Farman,
347 F.3d 735,
740
422 U.S. at 834.
Relying on Van Lynn, petitioner argues that the PCR court's
holding that the trial court did not violate his Sixth Amendment
18 - OPINION AND ORDER
right is contrary to Faretta because the trial court relied on
petitioner's lack of legal expertise.
I disagree.
In Van Lynn,·
the trial court denied petitioner's motion solely on the basis of
lack of legal knowledge.
Here, in contrast, the trial court gave
two additional reasons for denying petitioner's motion to proceed
pro
se.
Petitioner
has
failed
to
demonstrate
that
the
trial
court's reliance on those factors (untimeliness and intent to cause
·delay)
u.s.c.
was unreasonable in light of the evidence presented.
§
28
2254 (d) (2).
With respect to timeliness, the Supreme Court held in Faretta
that a request for self-representation made "weeks.before trial" is
timely.
Faretta, 422 U.S. at 835.
Here in contrast, petitioner
made his request the morning of trial.
The trial court noted that
it was an untimely request given that they had a jury impaneled and
waiting.
Marshall
v.
Taylor,
395
F.3d
1058,
1061
(9th
Cir.
2005) (petitioner's request was untimely where he "made his request
to represent himself on the day his trial was to commence and after
several continuances").
Moreover, the trial court concluded that petitioner's motion
was an attempt to manipulate the system to further delay his case.
The
trial
scheduled
court
for
noted
trial
on
that
March
petitioner's
15th,
2005.
case
was
On
March
initially
7th,
his
attorneys withdrew due to petitioner's bar complaint, requiring a
19 - OPINION AND ORDER
continuance.
Tr.,
p.
329;
Resp.
Ex.
129.
In fact,
petitioner
again filed a bar complaint, this time against his current counsel
on the eve of trial.
Tr., p. 343.
In sum, the trial court's denial 6f petitioner's motion on the
grounds that it was untimely and made for purposes of delay is
consistent with Faretta.
Roe,
92
Fed.
Appx.
See McCormick, 621 F.3d at 976; Howze v.
515
(9th
Cir.
2004).
The
trial
court's
additional reference to petitioner's lack of legal expertise does
not violate the Sixth Amendment.
Accordingly,
the
PCR court's
rejection of ground one is neither contrary to, nor an unreasonable
application
of
clearl'y
established
federal
law.
28
u.s.c.
§
2254 (d) (1).
B.
Ground Two: Ineffective Assistance of Counsel
Petitioner
deficient
argues
because
he
in
his
failed
brief
to
that
provide
trial
counsel
petitioner
was
adequate
information and assistance on his case, resulting in petitioner's
entry of an involuntary guilty plea.
Respondent moves the court to
deny habeas relief on the basis that the PCR court's rejection of
petitioner's claim is neither contrary to,
application of Strickland.
nor an unreasonable
I agree.
1. Standards
A claim of ineffective assistance of counsel
requires
the
petitioner to prove that counsel's performance was deficient, and
20 - OPINION AND ORDER
that there is a
reasonable probability that,
but for counsel's
errors,
the result of the proceeding would have been different.
Bell v.
Cone,
535 U.S.
685,
695
(2002);
Williams v.
Taylor,
U.S. 362, 390-91 (2000); Strickland, 466 U.S. at 687-88 (1987).
529
If
there is a failure of proof on either prong, habeas relief is not
warranted.
746 F.3d 418, 457
Murray v. Schriro,
(9th Cir. 2014).
Strickland applies to ineffective assistance claims arising
out of the plea process.
Hill v. Lockhart, 474 U.S. 52, 57 (1985).
To show deficient counsel,
a
counsel's
was
representation
defendant must establish that his
outside
professionally competent assistance.
In
order
to
petitioner
establish
must
show
prejudice
a
wide
the
range
of
Strickland, 466 U.S: at 690.
in
reasonable
the
guilty
probability
plea
that,
context,
but
for
counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial.
Hibbler v. Benedetti,
693 F.3d 1140,
1150 (9th Cir. 2012); Doe v. Woodford, 508 F.3d 563, 568 (9th Cir.
2007); Hill,
474 U.S. at 59.
Because "plea bargains are the result of complex negotiations
suffused with uncertainty, and defense attorneys must make careful
strategic choices in balancing opportunities and risks," strict
adherence to the deferential Strickland standard is "all the more
essential when reviewing the choices an attorney made at the plea
bargain stage."
Premo v. Moore,
21 - OPINION AND ORDER
562 U.S.
115,
124
(2011).
The
issue
is
not
whether
determination under
this
court
Strickland was
believes
the
incorrect,
state
court's
but whether that
determination was unreasonable, a substantially higher threshold.
Knowles v. Mirzayance,
556 U.S.
123-24
111,
(2009); Hibbler,
693
F.3d at 1146.
2. Analysis
Petitioner
pled guilty pursuant
to
a
plea
petition which
provided that he (1) understood he was pleading to five counts of
attempted aggravated murder; ( 2 ). understood the minimum and maximum
sentences f6r the crime; and (3) offered his guilty plea "FREELY,
VOLUNTARILY AND BY MY OWN CHOICE.
UNDERSTANDING
OF
ALL
THE
MATTERS
PLEAD GUILTY WITH A FULL
I
SET
INSTRUMENT AND IN THIS PLEA PETITION."
FORTH
IN
THE
CHARGING
Resp. Ex. 103 (emphasis in
original).
At the plea hearing,
the trial court engaged in a colloquy
with petitioner to ensure he understood the terms of the plea:
THE COURT:
First of all, as to the plea petition,
the
three-page
document
and
the
indication is that you have, in fact,
signed that today. Is that correct, sir?
PETITIONER:
Yes, Your Honor.
THE COURT:
And do you swear that all the information
in that plea petition is true, sir?
PETITIONER:
Yes, Your Honor.
* * * * *
22 - OPINION AND ORDER
THE COURT:
And
the
last
para~raph
says: "I
understand that my agreement to these
facts is part of a plea bargain, that I
am agreeing to these .facts. I a~ stating
that they are voluntary, accurate and not
a
product
of
duress,
coercion
or
otherwise undue influence."
And do you agree that that's true, sir?
PETITIONER:
Yes, Your Honor.
Tr . , pp . 3 7 1 , 3 7 2 , 3 7 5 .
At
the
PCR
proceeding,
however,
petitioner
declared
that
counsel was deficient for failing to maintain contact with him and
because he appeared unprepared for trial.
4.
Between the time of Mr. Cor an's appointment . and
August 30, 2005, I had virtually no substantive
contact with him. It was apparent to me that Mr.
Coran was not properly preparing my case for trial.
As a result, I sent a series of letters to Mr.
Coran and the court complaining about his conduct.
5.
I felt that I had no alternative but to resolve my
case pursuant to a plea agreement because I • was
convinced that I could not receive a fair trial. I
was convinced that Mr. Coran had no intention of
zealously advocating on my behalf.
Resp. Ex. 122, p. 2 at
~~
4 & 5.
Petitioner's trial counsel provided an entirely different view
of his representation.
trial,
Counsel stated that prior to the day of
he and petitioner were "working together and talking and
everything was moving along fine."
Tr., p. 349.
Counsel further
declared that he and petitioner "had no problems at all."
349.
23 - OPINION AND ORDER
Tr., p.
The PCR trial court rejected petitioner's claim, finding trial
counsel
credible
and
concluded
that
petitioner
knowingly
voluntarily entered his guilty plea:
8.
Trial counsel was prepared for trial. He argued to
suppress damaging evidence for nine hours the day
before trial was set to begin. When the court
denied the motions to suppress~ which trial counsel
had anticipated because the law favored allowing
the evidence, trial counsel worked out a very good
plea deal the night before trial.
9.
Trial
counsel
kept
petitioner
appropriately
informed and increased contact with trial counsel
would not have improved petitioner's case. The
trial court remarked that, in its observation of
the
previous
day's
lengthy
motion
hearing,
petitioner and trial counsel had a good. working
relationship.
Petitioner complained to the court
that trial counsel had ignored his requests for
copies of evidence in the past month. The court
pointed out then that there had not been much new
evidence or case development since the case was
continued
and
trial
counsel
substituted
for
petitioner's previous counsel.
The court also
described the approximately three-inch stack of
papers that petitioner had in front of him, which
included police reports that he had claimed he did
not have ..
* * * * *
12.
Petitioner has not shown any resulting prejudice
even if trial counsel did not maintain adequate
contact .
. Two of the witnesses that petitioner
told counsel to investigate turned out to be lying,
at petitioner's request, in their affidavits. As
the court noted, trial counsel did the ·best he
could under the circumstances. The prosecution had
overwhelming evidence of petitioner's guilt and
petitioner's only witnesses on his behalf turned
out to be lying. Petitioner was lucky that trial
counsel was able to secure a plea at the last
minute.
24 - OPINION AND ORDER
and
13.
Trial counsel followed appropriate investigatory
avenues . . . Trial counsel did everything he could
to try to find exculpatory information from
Hasselblad and, when that failed~ to minimize the
damage caused by his testimony.
14.
The record shows that trial counsel did, in fact,
contact and interview witnesses Hasselblad, Pushor,
and
Nebergall.
These
men
were
inmates
with
petitioner. Petitioner drafted false affidavits for
the inmates to sign, in order to improve his case .
Petitioner has offered no credible evidence
that further investigation would have yielded to
anything of consequence.
Resp. Ex. 134, pp. 6-8 at
Petitioner has
findings
that
trial
~~
8, 9, 12-14 (emphasis added).
failed to demonstrate that the
counsel
kept
adequately prepared for trial,
evidence presented.
28 U.S.C.
court, trial counsel:
with
exculpatory
( 1)
petitioner
PCR court's
informed
and
was
is unreasonable in light of the
§
2254 (d) (2).
As noted by the PCR
interviewed critical defense witnesses
evidence;
(2)
kept
petitioner
appropriately
informed of his case; and (3) argued to suppress damaging evidence
for nine hours the day before trial was set to begin.
Accordingly,
petitioner
has
failed
to
demonstrate
counsel's occasional communication was not within the
competence demanded of attorneys in criminal cases.
to providing assistance,
adequately
case.
interviewed
that
range of
With respect
the PCR court found that trial counsel
witnesses
and
investigated
petitioner's
Given the fact that petitioner lost his motion to suppress
tape recordings of him soliciting a man to murder petitioner's
25 - OPINION AND ORDER
wife, the PCR court's finding that counsel's advice to enter into
a guilty p1ea was not deficient under Stri-ckland is reasonable.
u.s.c.
§
28
2254 (d) (1).
Moreover, petitioner has failed to demonstrate that there is
a reasonable probability that, but for counsel's conduct, he would
not have pled guilty and would have insisted on going to trial on
five counts of attempted aggravated murder.
petitioner
was
overwhelming.
The
The evidence against
state
had
recordings
of
petitioner soliciting Castro to murder his wife, and testimony from
Curtis Reeves that petitioner previously solicited him to kill his
wife and paid him a down payment of $1,000.
~
4.
Resp. Ex. 134, p. 4 at
Petitioner also provided Hasselblad written notes detailing
physical
descriptions,
locations
facilitating his wife's murder.
and
Resp.
other
Ex.
information
134,
p.
4 at
for
~
4.
Petitioner fabricated exculpatory evidence in the case by tampering
with
three
trial
witnesses
statements to the court.
Champion,
and
attempted
Resp. Ex. 134, p. 4 at
262 F.3d 1066, 1068
&
to
~
provide
false
4; see Miller v.
1074-75 (lOth Cir. 2001) (strength
of prosecutor's case is often best evidence of whether petitioner
would have insisted on going to trial); Brown v. Hill, No. 05-CV1393-HU, 2007 WL 464712 *5
Appx. 630
(D. Or.,
Feb.
7~
20.07), aff'd 267 Ted
(9th Cir. 2008).
To the extent that petitioner argues that counsel's alleged
26 - OPINION AND ORDER
deficient representation forced him to plead guilty, petitioner's
argument
The
fails.
participated
in
a
trial
thorough
record
plea
reflects
that
petitioner
during· which
colloquy,
represented that he understood the plea petition,
had not been
coerced, and had a clear understanding of what he was doing.
pp.
Tr.,
Petitioner's signed plea agreement stated that he
364-376.
entered his
choice."
he
guilty plea
"freely,
voluntarily and by
[his]
own
See Blackledge v. Allison, 431 U.S. 63,
Resp. Ex. 103.
7 4 ( 197 7) (representations made by a defendant during a plea hearing
"carry a strong presumption of verity") .
finding
that
petitioner
entered
voluntarily is not unreasonable,
a
Thus,
guilty
plea
the PCR court's
knowingly
and
and the PCR court's conclusion
that trial counsel was not constitutionally ineffective is neither
contrary to, nor an unreasonable application of clearly established
federal law.
28
u.s.c.
§
2254 (d) (1).
III. Unarqued Claims
In Ground One, petitioner alleges that the trial court erred
in denying his motion to substitute counsel, in denying his motion
to proceed pro se, and in denying his motion to withdraw his guilty
plea.
the
In his supporting brief, however, plaintiff addressed only
denial
of
proceed pro se.
his
motion
to
substitute
counsel
and motion
to
Similarly, in Ground Two, petitioner asserts five
discrete claims of ineffective assistance of trial counsel.
27 - OPINION AND ORDER
In his
brief,
however,
petitioner limits his ineffective assistance of
counsel claim to the issue of trial counsel's failure to provide
information and maintain contact.
In an
applica~ion
burden of proof.
for habeas relief, petitioner carries the
Cullen,
131 S.Ct. at 1398.
Because petitioner
fails to address any of the unargued subparts of grounds one and
two in his brief, he has failed to sustain his burden of proving
habeas relief is warranted.
Lambert v. Blodgett, 393 F.3d 943, 970
n. 16 (9th Cir. 2004) (petitioner bears burden of proving his case);
Davis
v.
Woodford,
Nevertheless,
satisfied
384
F. 3d
628,
638
(9th
2004) .
Cir.
the court has reviewed his unargued claims and is
that
petitioner
is
not
entitled
to
relief
on
the
remaining ineffective assistance of counsel claims, as well as the
claim
alleging
denial
of
motion
to
Accordingly, habeas relief is denied.
28 - OPINION AND ORDER
withdraw
his
guilty
plea.
CONCLUSION
Based on the
foregoing,
Habeas Corpus is DENIED,
prejudice.
of
the
petitioner's
Petition For Writ of
and this proceeding is DISMISSED,
with
Because petitioner has not made a substantial showing
denial
of
a
constitutional
appealability is DENIED.
See 28 U.S.C.
right,
§
a
certificate
2253(c) (2).
of
IT IS SO
ORDERED.
DATED this
-2i-
day of August, 2015.
~!!~
United States District Judge
29 - OPINION AND ORDER
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