Opinion
No. C 01-4047 SI (pr)
October 22, 2003
JUDGMENT
Abubacar Ceesay's petition for writ of habeas corpus has been denied. Accordingly, judgment is entered against petitioner and in favor of respondent.
IT IS SO ORDERED AND ADJUDGED.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS INTRODUCTION
This matter is now before the court for consideration of the merits of Abubacar Ceesay's pro se petition for writ of habeas corpus concerning his 1997 conviction in the Santa Clara County Superior Court. For the reasons discussed below, the petition will be denied.BACKGROUND
On October 6, 1997, Abubacar Ceesay pleaded guilty to six of nine counts in a consolidated information. The offenses to which Ceesay pleaded guilty were reckless driving, two counts of automobile theft, passing a worthless check, escape and grand theft of a motor vehicle. Ceesay's guilty plea was the result of a negotiated disposition. In exchange for the guilty plea, the prosecution dismissed one count of embezzlement, one count of resisting and delaying a peace officer, and one count charging false documents, and agreed to drop sentence enhancement allegations. The prosecution also agreed that the court would impose a sentence of no more and no less than two years for the charges to which Ceesay pled guilty. On December 1, 1997, Ceesay was sentenced to the agreed upon two years in state prison and given 357 days of credit.
Ceesay appealed. His conviction was affirmed in an unpublished opinion by the California Court of Appeal and his petition for review was denied by the California Supreme Court.
Ceesay filed this action in October 2001, and alleged two grounds for relief in his habeas petition. First, he contended that he received ineffective assistance of counsel in that counsel refused to file a motion to withdraw the guilty plea that Ceesay had entered. Second, he contended that his right to counsel was violated when the trial court erroneously denied his Marsden motion and refused to appoint replacement counsel to assist him in preparing a motion to withdraw his guilty plea.
JURISDICTION AND VENUE
This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in Santa Clara County, California, which is located within this judicial district. 28 U.S.C. § 224l(d).
EXHAUSTION
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). The parties do not dispute that state court remedies were exhausted for the claims in the petition.
LEGAL STANDARD
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
Under 28 U.S.C. § 2254(d)(1), the petition may not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. See Williams (Terry) v. Taylor, 529 U.S. 362, 402-04, 409 (2000).
DISCUSSION
A. Ineffective Assistance of Counsel Claim
Ceesay first claims that he received ineffective assistance from his appointed counsel. Specifically, he contends that counsel was ineffective in that he misadvised him about the sentence he would receive and refused to file a motion to withdraw the guilty plea. In order to analyze the ineffectiveness claim, it is necessary to consider the propriety of the guilty plea and whether it could have been withdrawn.
1. The Guilty Plea
A guilty plea "is constitutionally valid only to the extent it is `voluntary' and `intelligent.'" Bousley v. United States, 523 U.S. 614,618 (1998); Brady v. United States, 397 U.S. 742, 748 (1970). Due process requires that a guilty plea be both knowing and voluntary because it constitutes the waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination. Parke v. Raley, 506 U.S. 20, 29 (1992);Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). A defendant who pleads guilty may not collaterally challenge a voluntary and intelligent guilty plea entered with the advice of competent counsel. United States v. Broce, 488 U.S. 563, 574 (1989); Mabry v. Johnson, 467 U.S. 504, 508 (1984).
The test for determining the validity of a guilty plea is "`whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Id. at 29 (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). This requires a review of the circumstances surrounding the plea. See Brady v. United States, 397 U.S. 742, 749 (1970). A guilty plea is not voluntary unless it is "entered by one fully aware of the direct consequences" of the plea. Id. at 755.
Ceesay claims that he did not understand the amount of prison time he would have to serve as a result of his plea agreement because his attorney provided incorrect information. (Petition at 3). Ceesay alleges that he believed he would only have to "do three more months and be out."Id. at 2. The transcript of Ceesay's October 6, 1997 guilty plea proceedings included the following exchange:
THE COURT: Let me take up a consolidated information, unless you need some more time?
MR. KENNEDY (Ceesay's Attorney): No. Thank You.
THE COURT: It's a consolidated information on information numbers 17182, 198262, and 198433. This information appears in information number 198433. It involves Mr. Abubacar Ceesay, who is present. He is present with counsel Stefan Kennedy. Stewart Scott for the District Attorney's Office. It is my understanding that Mr. Ceesay intends to resolve these matters as follows: He intends to change his plea from not guilty to guilty to the felony in count one, the felony in count six, the felony in count seven, the felony in count eight, the felony in count nine. With the understanding that counts — three, four and five would be dismissed. And the allegations in count nine would be stricken and dismissed upon motion of the district attorney's office. The sentencing understanding, on a waived referral is two years in prison no more, no less, Is that your understanding?
MR. KENNEDY: Yes, your honor.
THE COURT: Mr. Ceesay, Let me ask you a few questions before I ask your new pleas to these charges, Sir. Have you had enough time to discuss these matters with your attorney?
THE DEFENDANT: Yes.
THE COURT: Has he explained to you the elements of the offenses, the defenses and the possible consequences of your pleas of guilty?
THE DEFENDANT: Yes.
THE COURT: Are you offering these pleas freely and voluntarily?
THE DEFENDANT: Yes.
THE COURT: Because you are guilty of the charges?
THE DEFENDANT: Yes.
THE COURT: Have any promises been made to you except for the ones mentioned earlier?
THE DEFENDANT: No.
THE COURT: Any threats?
THE DEFENDANT: No.
THE COURT: Have you taken any alcohol, medication or drugs which would in any way affect your ability to think clearly?
THE DEFENDANT: No.
Exh. 2A at 2-3 (emphasis added).
The transcript of the guilty plea proceedings undermines Ceesay's claim that he was misinformed of the consequences of pleading guilty and of the amount of prison time he would receive as a result of the plea bargain. The transcript shows that Ceesay was informed by the court that he faced a sentence of two years in prison "no more, no less" and that he entered his guilty plea freely and voluntarily. He specifically denied that any other promises had been made to him. The California Court of Appeal found that the plea transcript of October 6, 1997 rebutted Ceesay's claim that he misunderstood the amount of time he would have to serve as a result of his guilty plea. Exhibit 6 at 2. In particular, the state appellate court found very persuasive Ceesay's representation "that he had enough time to discuss the matters with his counsel and that counsel had explained the elements of the offenses, the defenses, and possible consequences of the pleas." Id. Ceesay has not provided any persuasive evidence which would negate his unequivocal representations to the trial court that he entered his plea voluntarily and that he was aware of the consequences of the plea.
Ceesay was fully advised of the consequences of the plea and the duration of the sentence contemplated by the parties. He received a sentence no longer than that to which he agreed.
2. Assistance of Counsel
To prove that he was denied his Sixth Amendment right to effective assistance of counsel, a petitioner must show that counsel's performance was deficient and prejudicial. Strickland v. Washington, 466 U.S. 668, 686 (1984). First, the petitioner must show that counsel's performance was deficient, i.e., that counsel's representation fell below an objective standard of reasonableness based on prevailing professional norms. Id, at 688. Judicial scrutiny of counsel's performance must be highly deferential, however, and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.; Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994).
Second, the petitioner must show that prejudice resulted from counsel's deficient performance by showing that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. See Hill v. Lockhart 474 U.S. 52, 57-59 (1985). In this context, mere inaccurate prediction does not constitute ineffective assistance of counsel, although a "gross mischaracterization' of the likely outcome of a case can fall below the standard of reasonable assistance. See Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986) (counsel told defendant that the probability of receiving an extended sentence was "almost zero," and that he had a "good chance" of receiving probation; defendant pled guilty and received a life sentence); cf. Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990) (defendant was sentenced to 15 years after pleading guilty; counsel had told him he would receive 12 years, which was not a "gross mischaracterization").
The California Court of Appeal found that Ceesay failed to demonstrate inadequate representation in connection with his guilty plea. The only reference Ceesay made to counsel's deficient performance with regard to the guilty plea was counsel's alleged misadvisement about exactly how much time he would actually have to serve in prison. When he sought substitute counsel Ceesay told the court that counsel said he would get "fifty percent" credits, so a 24-month prison term would be the equivalent of 12 months in jail. That advice was in fact correct. See Cal. Penal Code § 4019. Providing correct advice about the sentence was not deficient performance. Ceesay also told the trial court in seeking substitute counsel that counsel had said Ceesay would only have to serve three months in prison. The court ultimately found that Ceesay was "putting [him] on" and that Ceesay simply did not "like what [he] agreed to." Exh. 6 at 4. The state appellate court accepted this factual credibility determination. Exh. 6 at 7-11. This Court presumes the state court's factual finding was correct under 28 U.S.C. § 2254(e)(1) and there has been no effort to rebut the presumption of correctness. Ceesay's claim of misadvisement by counsel fails for any showing of deficient performance.
Ceesay has also failed to make any showing of prejudice. That is, he has not shown that, but for counsel's error, he would not have pleaded guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. at 59. Indeed, the facts of the plea and the sentence make this highly unlikely: Ceesay received a generous two-year sentence by pleading guilty to six counts of a nine-count information (eight counts of which were felonies). This was further illustrated in the trial court proceedings when the court stated to Ceesay, "Your attorney just saved you a lot of time in prison." Exh. 6 at 5.
As discussed above, Ceesay has not shown ineffective assistance with regard to the advice counsel provided in connection with the plea. The second part of Ceesay's argument — that counsel was ineffective for not moving to set aside that plea — fails for the related reason that it would have been futile. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (failure to take futile action can never be deficient performance). Because the state court determined that there was no ineffectiveness with regard to the guilty plea advisement and because the state court determined that Ceesay was just trying to back out of a plea he knowingly entered but later decided he didn't like, there is no likelihood whatsoever that filing a motion to withdraw the plea would have succeeded. There was no deficient performance and there was no prejudice resulting from counsel's decision not to file the motion to set aside the plea.
Ceesay has failed to carry his burden of demonstrating deficient performance or prejudice — both of which are required under the Strickland test before a petitioner may obtain habeas relief. See Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000) (en banc). The California Court of Appeal's conclusion that trial counsel's representation was not deficient and no prejudice resulted was not an unreasonable application of or contrary to clearly established federal law. See Williams v. Taylor, 120 S. Ct 1495, 1522-1523.
B. Substitution of Counsel
Ceesay also claims that the trial court erred in not appointing him substitute counsel to assist him in filing a motion to withdraw his plea because his trial counsel rendered ineffective assistance. Petition at 6.
The Sixth Amendment grants criminal defendants who can afford to retain counsel a qualified right to hire counsel of their choice. See Wheat v. United States. 486 U.S. 153, 159, 164 (1988); United States v. Washington, 797 F.2d 1461, 1464 (9th Cir. 1986). A criminal defendant who cannot afford to retain counsel has no right to counsel of his own choosing. See Wheat v. United States, 486 U.S. 153, 159 (1988). Nor is he entitled to an attorney who likes and feels comfortable with him. See United States v. Schaff, 948 F.2d 501, 505 (9th Cir. 1991). The Sixth Amendment guarantees effective assistance of counsel, not a "meaningful relationship" between an accused and his counsel. See Morris v. Slappy, 461 U.S. 1, 14 (1983). The denial of a motion to substitute counsel implicates a defendant's Sixth Amendment right to counsel and is properly considered in federal habeas. See Bland V. California Dep't of Corrections, 20 F.3d 1469, 1475 (9th Cir.), cert. denied, 513 U.S. 947 (1994), overruled on other grounds by Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000). The ultimate inquiry in a federal habeas proceeding is whether the petitioner's Sixth Amendment right to counsel was violated. Cf. Schell v. Witek, 218 F.3d 1017, 1024-25 (9th Cir. 2000) (en banc). That is, the habeas court considers whether the trial court's denial of the motion "actually violated [petitioner's] constitutional rights in that the conflict between [petitioner] and his attorney had become so great that it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment."Id. at 1026.
The California Court of Appeal reviewed the trial court's application of the post-plea Marsden hearing in determining whether Ceesay's motion to substitute counsel should have been granted. According to the state appellate court, substitute counsel should be appointed when, and only when, necessary under the Marsden standard. Exh. 6 at 7, 9. The Court of Appeal found that "the trial court denied Ceesay's Marsden request on the basis that his credibility was suspect and that Ceesay's credibility was for the trial court to determine." Id. at 8. (See People v. Smith, 6 Cal.4th at 696). The court also found that Ceesay did not demonstrate inadequate representation since an attorney will not be found ineffective for failing to make a motion to withdraw a guilty plea until the defendant shows some basis for making such a motion. Id. at 10. The court found that Ceesay failed to provide such a basis for making the motion since the trial court's denial of Ceesay's request for new counsel in these circumstances constituted an implicit determination that Ceesay's proposed motion to withdraw his guilty plea lacked merit. Id. There was evidence supporting the trial court's implicit determination.Id. Therefore, the court found that the trial court did not abuse its discretion in denying Ceesay's request for substitute counsel to make a motion to withdraw his guilty plea. Id. at 11.
Under People v. Marsden, 2 Cal.3d 118 (1970), substitute counsel should be appointed whenever, in the exercise of its discretion, the court finds that the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel, or, stated slightly differently, if the record shows that the first appointed attorney is not providing adequate representation or that the defendant and the attorney have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.
Ceesay wanted to substitute counsel because he thought that his original counsel was ineffective. But he did not make an adequate showing of counsel's alleged ineffectiveness. Because he had not shown that his original counsel was ineffective, it was proper for the trial court to deny his request for new counsel to investigate and argue the original counsel's ineffectiveness. As discussed in the preceding section, Ceesay did not receive ineffective assistance in connection with the guilty plea or when his counsel failed to move to set aside that guilty plea. He was not entitled to substitute counsel based on the showing he made in the trial court and made in this court. There was no violation of his Sixth Amendment right to counsel. The state appellate court's rejection of Ceesay's substitution of counsel claim was not an unreasonable application of or contrary to clearly established federal law.
CONCLUSION
For the foregoing reasons, the Court DENIES Ceesay's petition for writ of habeas corpus. The clerk shall close the file.
IT IS SO ORDERED.