Opinion
No. C 04-0748 MJJ (PR).
June 20, 2005
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a California prisoner who filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After reviewing this petition, the Court dismissed three of the claims as not cognizable and denied Petitioner's motion for appointment of counsel. The Court, however, ordered Respondent to show cause why the petition should not be granted on the basis of the Petitioner's remaining cognizable claim. Respondent filed an answer accompanied by a memorandum and exhibits contending that the petition should be denied. Petitioner filed a traverse accompanied by a supporting memorandum of points and authorities.
FACTUAL BACKGROUND
The events leading to Petitioner's conviction began on November 7, 2001, when Shan Damani, a clerk at Colonial Liquors in San Rafael, California, received a telephone call from a nearby business complaining about the store's patrons who were drinking in an alley outside of the store. Mr. Damani went outside the store, saw Petitioner and two other people, and ordered them not to drink in the area. After the people acknowledged Mr. Damani's request, he returned to the store. Shortly thereafter, Petitioner entered the store, and an argument between Petitioner and Mr. Damani ensued. During this heated exchange of words, Petitioner allegedly yelled racial insults at Mr. Damani and threatened to kill him; Mr. Damani responded by pepper-spraying Petitioner. Robert Wedge, a customer in the store, attempted to settle the argument, and Petitioner allegedly punched Mr. Wedge in the face. Mr. Damani phoned the police, who quickly arrived and arrested Petitioner.
This factual background derives from Petitioner's brief filed in the California Court of Appeal, which was based on testimony given by a witness at the preliminary hearing. Petitioner entered a nolo contendere plea in the trial court, and continues to maintain his innocence.
On April 12, 2001, the Marin County Superior Court originally charged the Petitioner with making terrorist threats (Cal. Penal Code, § 422), making terrorist threats with the intent to violate another's civil rights (§ 422.7) and battery (§ 242), a misdemeanor. The Petitioner suffered three prior strikes, but the court granted the prosecution's motion to dismiss one of the alleged strikes for lack of evidence. The court dismissed a second alleged strike in the interest of justice and granted Petitioner's motion to reduce the count of making terrorist threats (§ 422) to a misdemeanor pursuant to § 17(b).
All further statutory references are to the California Penal Code, unless otherwise noted.
Petitioner pleaded guilty to making terrorist threats with the intent to violate another's civil rights (§ 422.7), and to two misdemeanors: making terrorist threats (§ 422) and battery (§ 242). Petitioner further admitted a strike (§ 1170.12).
The Marin County Superior Court sentenced Petitioner to the middle term of two years in state prison for making terrorist threats with the intent to violate another's civil rights (§ 422.7) and then doubled the term to four years because of Petitioner's admitted strike (§ 1170.12). The Marin County Superior Court granted Petitioner 381 days pre-sentence credit for time served for the two misdemeanor counts (§ 422, 242) and ordered him to pay a $1,200 restitution fine.
Petitioner filed a motion in the California Court of Appeal, requesting new appellate counsel due to inadequate representation. He contended that the trial counsel failed to adequately challenge certain suppositions in the probation report, and that he was promised probation if he was accepted into a program that was acceptable to the trial court. On January 24, 2003, the Court of Appeal denied Petitioner's appeal. The court concluded that Petitioner waived all evidentiary issues on appeal because of his guilty plea, and therefore refused appointment of new counsel. The court also reasoned that the Petitioner failed to demonstrate any prejudice from his counsel's alleged inaction because the Marin County Superior Court declined to dismiss the remaining strike (§ 1170.12) pursuant to People v. Superior Court (Romero), 13 Cal.4th 497 (Cal. 1996), making a prison commitment mandatory. The Court of Appeal determined that the Marin County Superior Court upheld the strike based primarily on appellant's previous record, which he did not allege was misrepresented in the probation record, not as a result of counsel's ineffective assistance in connection with his plea. The court reasoned that because the trial court advised him of all of the constitutional rights he would be waiving, as well as the direct consequences of his plea, Petitioner knowingly and voluntarily entered the plea. On April 23, 2003, the California Supreme Court denied the petition for review of this decision.
Appellate counsel filed a no-merits appeal pursuant toPeople v. Wende (1979) 25 Cal.3d 436.
DISCUSSION
A. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a district court may grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court only if 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).
Under the `contrary to' clause of 28 U.S.C. § 2254(d)(1), this Court may grant a writ if the "state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts."Williams (Terry) v. Taylor, 529 U.S. 362, 413 (2000). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 412-13.
Under 28 U.S.C. § 2254(d)(2), an unreasonable determination of the facts occurs where the state court fails to consider and weigh highly probative, relevant evidence, central to Petitioner's claim, that was properly presented and made part of the state-court record. Taylor v. Maddox, 366 F.3d 992, 1005 (9th Cir. 2004). Where a state court has not made a necessary factual finding, the reviewing court determines the fact de novo.Wiggins v. Smith, 539 U.S. 510, 531 (2003). A court must presume correct any factual determination made by a state court unless the Petitioner rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
B. Legal Claims
I. Ineffective Assistance of Counsel
On May 3, 2004, after reviewing the petition, this Court recognized as cognizable Petitioner's claim that his trial counsel was ineffective. A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id. The right to effective assistance of counsel applies to the performance of both retained and appointed counsel without distinction. See Cuyler v. Sullivan, 446 U.S. 335, 344-45 (1980).
In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, Petitioner must prove two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland, at 687-88. Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.
The Strickland framework for analyzing ineffective assistance of counsel claims is considered to be "clearly established Federal law, as determined by the Supreme Court of the United States" for the purposes of 28 U.S.C. § 2254(d) analysis. See Williams, 529 U.S. at 404-08. A defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases. See Hill v. Lockart, 474 U.S. 52, 56 (1985); United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988); Hudson v. Moran, 760 F.2d 1027, 1030 (9th Cir. 1985).
1. Pre-Plea Claims of Ineffective Assistance of Counsel
The Petitioner claims that his counsel was ineffective based upon a number of alleged pre-plea actions, including the counsel's failure to request a polygraph test, failure to adequately cross-examine witnesses at the preliminary hearing, and failure to file motions to dismiss the claims, suppress evidence, or to reduce bail. A defendant who pleads guilty, however, cannot later raise in habeas corpus proceedings independent claims relating to the deprivation of constitutional rights that occurred before the plea of guilty. See Haring v. Prosise, 462 U.S. 306, 319-20 (1983) (guilty plea forecloses consideration of pre-plea constitutional deprivations); Tollett v. Henderson, 411 U.S. 258, 266-67 (1973) (same); Moran v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994) (refusing to consider contention that Petitioner's attorneys were ineffective because they failed to attempt to prevent the use of his confession as pre-plea constitutional violation). All of these alleged failures by counsel occurred prior to Petitioner's entry of the plea agreement. Therefore, upon entering the plea agreement, petitioner waived the right to raise these issues in his federal habeas petition as a basis for a claim of ineffective assistance of counsel.
2. Insufficient Discovery of Evidence
Petitioner also claims counsel failed to adequately investigate evidence regarding a security camera videotape recording of the crime. Where counsel's alleged error is a failure to investigate or discover potentially exculpatory evidence, the determination of whether the error "prejudiced" the defendant will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. Hill, 474 U.S. 52, 59. This assessment will depend in large part on a prediction of whether the evidence likely would have changed the outcome of the trial. Id. Although insufficient discovery of evidence may constitute ineffective assistance of counsel, Petitioner's counsel did, in fact, attempt to retrieve any videotape that captured the alleged crimes, but no such videotape was available. Furthermore, in the absence of such evidence, counsel conducted a thorough cross-examination of the witnesses during the preliminary hearing to create a blackboard diagram depicting the location of specific events that led Petitioner's conviction. The record indicates that Petitioner's counsel attempted to uncover any facts regarding the videotape that might have improved the prospects of Petitioner's case via cross-examination and discovery. The fact that the information he gathered through these avenues did not ultimately lead to any viable defenses does not render the counsel's assistance ineffective.
See E-mail from La Dell Dangerfield, III, Deputy Public Defender, Marin County Public Defender's Office, to Patricia Williams, Deputy District Attorney, Marin County District Attorney's Office (Nov. 13, 2001, 09:29 PST) (Pet. Ex. 2) ("I am writing to request any copies of any videotapes from Colonial Liquors."); E-mail from Patricia Williams, Deputy District Attorney, Marin County District Attorney's Office, to La Dell Dangerfield, III, Deputy Public Defender, Marin County Public Defender's Office (Nov. 13, 2001, 15:45 PST) (Pet. Ex. 2) ("I am told by the Mr. Damani that the videotape is not turned on until 5pm, and since this happened in the afternoon the tape was not on.")
See Resp't P. A., Ex. A, Reporter's Transcript of Preliminary Hearing, 10-33, 41-44, 93.
3. Voluntary, Intelligent Character of Plea and Nature of Advice of Counsel
The primary challenges left open in federal habeas corpus after a guilty plea is the voluntary and intelligent character of the plea and the nature of the advice of counsel to plead. Hill, 474 U.S. 52, 56-57 (1985); Tollett, 411 U.S. 258, 267 (1973). A guilty plea not made voluntarily and intelligently violates due process. See Boykin v. Alabama, 395 U.S. 238, 242 (1969). The longstanding 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.'" Parke v. Raley, 506 U.S. 20, 29 (1992) (quotingNorth Carolina v. Alford, 400 U.S. 25, 31 (1970)). Failure to inform a defendant of the direct consequences of a guilty plea may therefore render a plea involuntary. See, e.g., United States v. Benitez, 310 F.3d 1221, 1224-25 (9th Cir. 2002) (district court committed reversible error by failing to advise defendant in open court that he would be prohibited under plea agreement from withdrawing plea if he failed to receive sentence recommended by prosecutor).
Petitioner claims he involuntarily and unintelligently entered into the plea because the defense counsel promised Petitioner probation if he was accepted into a treatment program. Petitioner points to a letter from his attorney that stated "[m]y suggestion would be to get into a program that meets your rehabilitation needs . . . whatever program whose programming is acceptable to the court, I think we're safe." Counsel's statement that a rehabilitation program would be a "safe" alternative is simply an opinion that this is the wisest course of action. There was no promise or guarantee of probation, as the letter is clear that any opportunity for probation was contingent on petitioner's admission to a rehabilitation program "acceptable to the court."
Letter from La Dell Dangerfield, III, Deputy Public Defender, Marin County Hall of Justice, to Roland Pittman, Petitioner, Marin County Jail (June 11, 2002).
Petitioner also points to statements made by counsel at the Change of Plea hearing, which referred to the possibility of Petitioner entering a rehabilitation program. At the Change of Plea hearing, in requesting a preferred date for the sentencing hearing, Petitioner's counsel stated: "I would request the last possible day on which the Court would be willing to set the matter only because Mr. Pittman is awaiting admission to C.U.R.A. [a rehabilitation program]. So, I think if that happens before, we can address his release at that point." Resp't P. A., Ex. B at 16. The trial court allowed time for Petitioner to learn whether he had been accepted into a program before sentencing, but did not make any promises based upon a potential admission. Petitioner claims that these remarks by counsel clearly indicate "an agreement by all parties" that Petitioner would get probation. Counsel's statement, and the court's subsequently allowing time for him to be admitted to a program, do not constitute any kind of agreement, much less a guarantee or promise of probation. Rather, the remarks are clear that probation was merely a possibility contingent upon entering a rehabilitation program.
Moreover, the terms of the plea agreement filed in the Marin County Superior Court, on May 28, 2002, clearly indicate that Petitioner voluntarily and intelligently entered the plea agreement, fully aware that his plea did not assure him of probation. The Petitioner signed an agreement indicating that he understood the guilty plea may result in the sentence of "32 mos., 4 years, 6 years state prison or if the court grants probation at sentencing, up to one year county jail." Resp't P. A., Ex. A at 111. In the plea agreement, moreover, the Petitioner also understood that the "only promises and representations made to me are . . . the Court will not sentence me to more than 4 years state prison." Resp't P. A., Ex. A at 112. Furthermore, the record from the Reporter's Transcript of Proceedings of the May 28, 2002 Change of Plea hearing ("Change of Plea hearing") shows that the Petitioner declared his understanding that the maximum penalty for the remaining felony count (§ 422.7) would be "32 months, four years or six years in state prison." Change of Plea, 8. The record show that Petitioner repeatedly received information detailing that he could receive a prison sentence instead of probation, and he nevertheless entered the plea agreement. Since Petitioner was fully aware of the of the fact that he might not get probation, and counsel did not promise him otherwise, counsel's performance did not fall below Strickland "objective standard of reasonableness" in advising Petitioner to plead guilty. Strickland, 466 U.S. at 687-88.
Petitioner also argues that counsel failed to advise him to withdraw his guilty plea before the sentencing hearing when it was clear that no rehabilitation program would grant him admission. A defendant, however, cannot withdraw his guilty plea before sentencing when he realizes that the sentence will be higher than he expected if he was advised of the range of possible sentences for him when he pled guilty. See United States v. Nostratis, 321 F.3d 1206, 1211-12 (9th Cir. 2003). The range of possible sentences in the plea agreement, which varied from thirty-two months to six years in state prison accurately included the four year state prison penalty that Petitioner received. Since Petitioner would not have been able to withdraw his guilty plea solely based upon his incorrect expectation of probation, counsel's failure to advise Petitioner to withdraw the plea agreement does not constitute an action falling below the "objective standard of reasonableness" under prevailing professional norms amounting to ineffective assistance of counsel. Strickland, 466 U.S. at 687-88.
Counsel's performance was not only sufficient, it also did not cause prejudice. A defendant generally cannot establish prejudice if he received significant benefits from his plea agreement.See Hill, 474 U.S. at 52. Counsel may commit serious errors, but as long as counsel succeeds in substantially reducing the sentence defendant would have likely received had he gone to trial, there is no prejudice. See United States v. Baramdyka, 95 F.3d 840, 845-47 (9th Cir. 1996). Petitioner's trial counsel was able to successfully dismiss two of the Petitioner's three prior strikes, and lowered one of his felony counts (§ 422) to a misdemeanor. By successfully dismissing these strikes, Petitioner's counsel prevented Petitioner from facing a potential life sentence under the Three Strikes Law. In addition, under the plea agreement Petitioner avoided the possible maximum penalty of six years in state prison for the felony count and one year in county jail for each misdemeanor count. When Petitioner's sentence of two years for one felony count was doubled to four years, this was because of his prior strike, and it was not caused by any action or omission by his counsel in reaching the plea agreement. As Petitioner significantly benefitted from the plea agreement, he was not prejudiced by trial counsel's advice that he plead guilty to the felony charge and misdemeanor charge of battery.
In sum, counsel's performance was not deficient, and thus did not cause Petitioner's guilty plea to be involuntary or unintelligent. Petitioner was also not prejudiced by counsel's advice to plead guilty. Therefore, Petitioner's claim for habeas relief based on ineffective assistance of counsel is DENIED.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED, as explained above. All pending motions are terminated and the clerk shall close the file.
IT IS SO ORDERED.