Opinion
No. C 99-4351 WHA (PR).
February 28, 2003
DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent has filed an answer and a memorandum of points and authorities in support of it, and has lodged exhibits with the court. Petitioner has responded with a traverse. The matter is submitted.
STATEMENT
Petitioner was convicted by a jury of robbery. With enhancements for six prior offenses, he was sentenced to prison for thirty years to life.
The facts of petitioner's offense are not relevant to his issue. He contends only that the 1997 trial court, in sentencing him to thirty years to life, acted contrary to the terms of a 1992 plea bargain which resulted in four of his six prior convictions. He asserts that the 1992 bargain provided that those convictions would, if he were to be convicted of a serious felony in the future, result in only a five-year enhancement.
DISCUSSION
A. Standard of review
The petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply to it. See Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499-1500 (9th Cir.), cert. denied, 522 U.S. 93 (1997) ("justice and judicial economy are better served by applying the Act to cases filed after the enactment date."). Under the AEDPA a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's 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 proceeding." 28 U.S.C. § 2254(d).
A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 120 S.Ct. 1495, 1518, 1523 (2000). A state court decision is an "unreasonable application of" Supreme Court authority, falls under the second clause of § 2254(d), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 1522. Rather, the application must be "objectively unreasonable" to support granting the writ. See id. at 1521-22. The writ may be granted under the "unreasonable application of' clause only when the court's "independent review of the legal question does not merely allow [the court] ultimately to conclude that the petitioner has the better of two reasonable legal arguments, but rather leaves [the court] with a "firm conviction' that one answer, the one rejected by the [state] court, was correct and the other, the application of the federal law that the court adopted, was erroneous — in other words that clear error occurred."Tran v. Lindsey, 212 F.3d 1143, 1152-54 (9th Cir 2000).
B. Issue Presented
1. Facts
In 1992 petitioner pleaded guilty to two counts of robbery and pleaded no contest to two more counts of robbery. Petition (hereafter "Pet."), Ex. A. The pleas on all counts were taken at the same time. Id. The court taking the plea informed petitioner that if he were convicted in the future of a serious felony, the convictions pursuant to the pleas would cause the future sentence to be enhanced by five years. Id. at 3. When petitioner was charged with the crime at issue here, his attorney attempted to withdraw the pleas on the four 1992 priors, arguing that the passage of the "three strikes" law after those pleas were entered had caused a breach in the plea bargain, i.e., that because of the change in the law the bargain was not being carried out. Pet. Ex. B at 4. The attempt to withdraw the pleas was summarily rebuffed. Id.
2. Exhaustion
In his answer respondent contends that petitioner's s issue was not exhausted. This contention has been withdrawn; respondent concedes that the issue is exhausted.
3. Cognizability of claim on collateral review
Respondent contends that petitioner's claim is barred by Custis v. United States, 511 U.S. 485 (1994). In Custis the United States Supreme Court held that a collateral challenge to a prior state conviction used to enhance a federal sentence may not be considered at the time of sentencing, except in the limited circumstance of a conviction obtained in violation of the right to the appointment of counsel. Id. at 490-97. Respondent suggests that the Custis rule would also bar collateral attacks on prior convictions in a federal habeas action directed to a current conviction. The Supreme Court has agreed, in a decision after the answer was filed. Lackawanna County Dist. Attorney v. Coss, 121 S.Ct. 1567, 1574 (2001) (defendant generally may not challenge enhanced sentence in proceeding under § 2254 on the ground prior convictions used to enhance were unconstitutionally obtained).
Petitioner states in the petition that "at best" he should be allowed to withdraw his "plea of record." Pet. at 5. Because the conviction at issue here was by a jury, it is clear he is referring to the 1992 plea. He also asserts in the petition that because of the alleged constitutional errors he is entitled to "relief' from the thirty-years-to-life sentence, a contention which is directed to the sentence in the present case, rather than the 1992 convictions. Pet. at 4. In the traverse he asks this court to "modify" his present sentence to conform to what he believes was the 1992 promise. Trav, at (unnumbered) 3.
At least to the extent petitioner contends that the 1992 convictions should be vacated, Lackawanna clearly applies and bars such claims. That leaves the question, however, whether Lackawanna bars a claim that thepresent life sentence is a violation of his rights because it is contrary to a promise petitioner believes was made by the court at the 1992 sentencing.
Lackawanna held that defendants generally may not challenge enhanced sentences in proceedings under § 2254 on the ground that the prior convictions used to enhance were unconstitutionally obtained. 121 S.Ct. 1574. This holding was based on the need for finality of convictions and considerations of ease of administration. 121 S.Ct. at 1573. States have a strong interest in the integrity of a judgment once direct and collateral proceedings are complete. Id. at 1573-74. It is also difficult for a federal court to obtain state court records and transcripts to review the constitutionality of long-past convictions which have been used to enhance a present sentence, particularly when the sentence imposed in the prior conviction has been fully served.Id. at 1574.
The problems identified in Lackawanna arise in a claim like petitioner's as well. As to finality, although the validity of the prior convictions is not really in issue here, what occurred at the time of those convictions is. Rather than a state court being able to look at a record of prior convictions and rely on them in applying current state enhancement law, if a challenge such as this were allowed state courts would never know if a federal court considering a challenge to an enhancement might find that, because of events not discernable on the bare record of conviction, the effect of the prior convictions must be other than what state law requires. In a sense, petitioner asks this court to hold that although he suffered four serious felony convictions in 1992, these must be treated as if they were not strikes because of events which occurred in 1992.
And of course the "ease of administration" considerations relied upon in Lackawanna apply here as well, in that records and transcripts for long-past convictions may be difficult or impossible to obtain.
The Court concludes that a challenge such as this is sufficiently similar to those foreclosed by Lackawanna that the Lackawanna rule must apply here as well. Petitioner may not challenge his present enhanced sentence on the ground that it is contrary to the agreement reached at the time of the prior convictions.
4. Merits
Alternatively, the Court will consider the merits of petitioner's claim.
Petitioner appears to contend that the sentence in this case was a breach of a plea bargain reached with the court in 1992. Trav, at (unnumbered) 2. The record shows that the court taking the 1992 pleas informed petitioner, in the course of giving the various warning attendant to a plea, that if he were convicted of a serious felony in the future he would receive, as a result of the convictions, a five-year enhancement. Pet. Ex. A at 3-4. Because the four convictions were not for crimes brought and tried separately, that was a correct statement of the law at that time. See Cal. Pen. Code § 667(a) (1992). It was not a concession, or consideration for the plea; it did not offer petitioner any benefit. It also still is an accurate statement, in the sense that under present § 667(a)(1) the four 1992 priors would result in only a five-year enhancement. It is only because of the addition of the three-strikes provisions, which over-ride § 667(a), see Cal. Pen. Code 667(a)(2), that the consequences of the plea turned out to be greater than those the 1992 court had warned about. So, although petitioner attempts to phrase his issues in terms of a breach of plea bargain, what he is really arguing is that the 1992 court promised him that the state law would not change, or if it did, it would not be enforced.
When a plea agreement rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, the promise must be fulfilled.Santobello v. New York, 404 U.S. 257, 262 (1971). It may be that an agreement reached with the court must be carried out, just as one reached with the prosecution must be see Johnson v. Lumpkin, 769 F.2d 630, 633 (9th Cir. 1985) (plea bargaining and "analogous contexts"), but the promissor must have authority to make the promise, id. As noted below, there is no evidence that the court made the promise petitioner claims it did, but in any event the 1992 court would not have had authority to promise that a future sentencing court would disregard California law.
The record shows no such promise. The 1992 court warned petitioner that if he were to be convicted of a serious felony in the future his sentence would be enhanced by five years because of the convictions on the charges to which he was pleading. This correct statement of existing law was simply a warning or advisement, not a promise. In view of the absence of any factual record to support petitioner's claim regarding what he was promised, his claim is without merit.
The 1992 court was not constitutionally required to warn petitioner of possible sentence enhancement consequences at all. See United States v. Brownlee, 915 F.2d 527, 528 (9th Cir. 1990) (possibility of future sentence enhancement is a collateral consequence of plea; court need not advise of that possibility). Given that the possibility of a future enactment is a collateral consequence, failure to warn petitioner that the law regarding enhancements might change could not be anything other than a collateral consequence too. Because a court taking a plea is not constitutionally required to warn of collateral consequences, see Torrey v. Estelle, 842 F.2d 234, 23 5-36 (9th Cir. 1988), the 1992 court was not constitutionally required to warn petitioner that the law might change.
The state appellate courts' rejection of this claim was not contrary to, or an unreasonable application of, clearly established Supreme Court authority.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.