Opinion
No. CV-06-3084-PHX-JWS (LOA).
November 5, 2007
REPORT AND RECOMMENDATION
This matter is before the Court on Petitioner's Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. (docket # 7) Respondents have filed an Answer (docket # 17) to which Petitioner has not replied despite having been granted two extensions of time in which to do so.
I. Factual and Procedural Background
On March 31, 2004, the State of Arizona charged Petitioner with two counts of aggravated driving under the influence of intoxicating liquor or drugs on a driver's license that had been suspended, canceled, or revoked, a class 4 felony. (Respondents' Exh. A) The State further alleged that Petitioner had eight historical prior felony convictions and that he committed the current offenses while on parole for the most recent prior felony conviction. (Respondents' Exhs. B-C)
On July 8, 2004, Petitioner and the State reached a plea agreement. (Respondents' Exh. D) In exchange for Petitioner pleading guilty to an amended count 1 of aggravated driving under the influence, a class four felony, with one prior felony conviction, the State dismissed the second count of aggravated driving under the influence, the allegations of seven additional prior felony convictions, and the allegation that the offense was committed while Petitioner was on "Community Supervision" or parole. (Respondents' Exh. D at 1-2) The plea agreement also stipulated that " Defendant shall be sentenced to the Department of Corrections for 7.5 years and pay $250 DUI abatement fee ." (Respondents' Exh. D at 1, ¶ 2) (emphasis in original). The plea agreement further provided that Petitioner "consents to judicial fact-finding by preponderance of the evidence as to any aspect or enhancement of sentence," and that Petitioner waived "a trial by jury, to determine guilt and to determine any fact used to impose a sentence within the range stated above in paragraph one [which provides that a 7.5 year sentence may be imposed if the trial court finds exceptional circumstances]." (Respondents' Exh. D at 2-3, ¶¶ 7, 10) (emphasis added).
On July 8, 2004, the trial court held a change-of-plea hearing. (Respondents' Exh. E) Petitioner affirmed that he had read the plea agreement, discussed it with counsel, and understood the agreement. (Respondents' Exh. E at 6) Petitioner advised the court that he understood the sentencing range, the stipulated sentence of 7.5 years' imprisonment, and the waiver of his right to have "any aggravating factors proven by a jury." (Respondents' Exh. E at 4-5, 8) The court accepted the plea and entered judgment accordingly. (Respondents' Exh. E at 13, Exh. F)
The Honorable David O. Cunanan, Commissioner of the Superior Court, presided.
On September 15, 2004, the trial court conducted a sentencing hearing during which it inquired about aggravating and mitigating factors. (Respondents' Exh. G at 4) The prosecutor noted that Petitioner "has a total [of] 8 prior felony convictions. He pled with one prior which you cannot, obviously, not use to aggravate him but the other 7 prior felony convictions are to substantiate, at least substantiating factors do outweigh mitigating factors and 7.5 years would be appropriate." (Respondents' Exh. G at 4) Petitioner's counsel stressed that although Petitioner was on parole when he committed the current offense, the parole was never revoked and Petitioner successfully completed parole. (Respondents' Exh. G at 4-5)
Contrary to the prosecutor's statement, there is no State or federal prohibition on using the same prior conviction to enhance and aggravate a sentence. Neither Arizona nor federal law prohibit a court from using a prior conviction to first enhance the sentencing range, and then to aggravate the sentence within that enhanced range. Compare, A.R.S. § 13-702(C)(1) (2) (forbidding this sort of double counting only when what triggered the enhanced sentence stemmed from the threatened or actual infliction of serious physical injury or the possession, use, or threatened use of a deadly weapon or dangerous instrument during the commission of a crime;" and State v. Gomez, 211 Ariz. 494, 502 n. 9, 123 P. 3d 1131, 1139 (2005) (same); United States v. Narte, 197 F.3d 959, 964-65 (9th Cir. 1999).
The trial court opined that "something less than 7.5-years might be appropriate unless [an] aggravated term is appropriate," and recognized that "there is not a lot really you can do because your other option is you go to trial and if you lose, you get a lot more time." (Respondents' Exh. G at 5) The trial court concluded that the aggravating circumstances — including the number of prior felony convictions and the fact that Petitioner committed the offense while on parole — substantially outweighed the mitigating circumstances of Petitioner's successful completion of parole. The court concluded that:
Based upon the totality of the circumstances, the Court does find that the number of prior felony convictions, the fact he was on parole when this offense was committed as well as the facts of this offense substantially outweigh the mitigating factors in this particular case and I do find that as a mitigating factor the strides you made while you were on parole. Nonetheless, these aggravating factors outweigh the mitigating factors. I do find those other ones substantially outweigh; therefore, a term in the Department of Corrections is warranted and an aggravated term of 7.5 years is appropriate.
(Respondents' Exh. G at 6)
Rule 32 Of-right Proceedings
By pleading guilty, Petitioner waived his right to a direct appeal. A.R.S. § 13-4033(B); Ariz.R.Crim.P. 17.1(d). Thus, the only available avenue of review was an "of-right proceeding" under Arizona Rule of Criminal Procedure 32. Ariz.R.Crim.P. 17.1(d). Accordingly, on December 6, 2004, Petitioner filed a notice of post-conviction relief under Ariz.R.Crim.P. 32. (Respondents' Exh. I) The court appointed counsel who advised the court that he was "unable to find any claims for relief to raise in post-conviction relief proceedings." (Respondents' Exh. J) Thereafter, on June 1, 2005, Petitioner filed a pro se petition for post-conviction relief raising the following claims:
1. Trial counsel rendered ineffective assistance by failing to explain the significance of waiving Petitioner's rights under Blakely v. Washington, 542 U.S. 296 (2004);
2. Petitioner's waiver of his Blakely rights was "illegitimate" and amounted to "out and out coer[c]ion reprisal;" and
3. Counsel was ineffective because he permitted Petitioner to enter the guilty plea "oblivious to its gravity and ramifications."
(Respondents' Exh. L at 1-2)
On September 1, 2005, the trial court denied post-conviction relief finding that Petitioner "failed to show a colorable claim for relief." (Respondents' Exh. N)
Appeal of Rule 32 of-Right Proceeding
On September 27, 2005, Petitioner petitioned the Arizona Court of Appeals for review of the trial court's denial of his Rule 32 petition. (Respondents' Exh. O) Petitioner raised the same claims that he had presented to the trial court regarding ineffective assistance of counsel and the legitimacy of his Blakely waiver. He also added a claim that his actual sentence violated Blakely. (Respondents' Exh. O) On July 28, 2006, the appellate court denied review. (Respondents' Exh. P) Petitioner sought review in the Arizona Supreme Court which was denied on November 21, 2006. (Respondents' Exhs. Q-T)
Petition for Writ of Habeas Corpus
Thereafter, Petitioner filed a timely Petition for Writ of Habeas Corpus raising three claims:
Ground One:
(a) Counsel was ineffective assistance because he failed to advise Petitioner of his right to have a jury find aggravating factors and never "illuminated" the significance of paragraph 7 of the plea agreement which waive Petitioner's Blakely rights, therefore, Petitioner's plea, including the Blakely waiver, was not knowingly and voluntarily made;
(b) Petitioner's Blakely waiver is unconstitutional; and
(c) Counsel failed to explain why Petitioner could not receive the benefit of the "reasonable doubt" standard.
Ground Two: The trial court violated Petitioner's Fifth, Fourteenth, and Sixth Amendment rights by "double-counting" — using Petitioner's prior convictions first to enhance and then to aggravate Petitioner's sentence.
Ground Three: The sentencing judge violated Blakely v. Washington, 542 U.S. 296 (2004) by relying on his "release status," an aggravating fact that was not determined by a jury.
(docket # 7 at 5-7)
II. Exhaustion and Procedural Default
Respondents assert that Petitioner failed to fairly present Grounds 2 and 3 to the state courts, resulting in a procedural default of those claims which prevents this Court from reaching the merits of those claims. Petitioner has not filed a response.
A. Relevant Law
The Supreme Court has repeatedly held that state courts should be given the first opportunity to consider a state prisoner's assertion that his state conviction and/or sentence violates federal law. Williams v. Taylor, 529 U.S. 420, 436-37 (2000); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Accordingly, before a federal court may grant a state prisoner habeas corpus relief, the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); Williams, 529 U.S. at 436-37; O'Sullivan, 526 U.S. at 842. The requirement that state prisoners first present their claims in federal court, or exhaust their state court remedies, is intended "to prevent `unnecessary conflict' between courts equally bound to guard and protect the rights secured by the Constitution." Picard v. Connor, 404 U.S. 270, 275-276 (1971). In view of the exhaustion requirement, the federal court will not entertain a petition for writ of habeas corpus unless the state prisoner has exhausted his federal claims in state court. Pliler v. Ford, 542 U.S. 225, 230 (2004); Rose v. Lundy, 455 U.S. 509, 521-22 (1982).
To properly exhaust a claim in the state courts, a petitioner must have afforded the state courts the opportunity to rule upon the merits of his federal claims by "fairly presenting" them to the state's "highest" court in a procedurally appropriate manner. Castille v. Peoples, 489 U.S. 346, 349 (1989); Baldwin v. Reese, 541 U.S. 27, 29 (2004) (stating that "[t]o provide the State with the necessary `opportunity,' the prisoner must `fairly present' her claim in each appropriate state court . . . thereby alerting the court to the federal nature of the claim."). The Ninth Circuit Court of Appeals has concluded that, in Arizona, in the context of a petitioner who has not been sentenced to death, the "highest court" requirement is satisfied if the petitioner has presented the claim to the Arizona Court of Appeals either on direct appeal or in post-conviction proceedings. Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Beyart v. Schriro, 2006 WL 1305275, * 3 n. 2 (D.Ariz. 2006) ("Arizona law no longer requires that a life sentence case be appealed to the Arizona Supreme Court.")
To fairly present his claims, a petitioner must describe both the operative facts and the federal legal theory. Reese, 541 U.S. at 28. It is not enough that all of the facts necessary to support the federal claim were before the state court or that a "somewhat similar" state law claim was raised." Reese, 541 U.S. at 28 (stating that a reference to ineffective assistance of counsel does not alert the court to federal nature of the claim). Rather, the habeas petitioner must cite in state court to the specific constitutional guarantee upon which he bases his claim in federal court. Tamalini v. Stewart, 249 F.3d 895, 898 (9th Cir. 2001). Similarly, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish fair presentation of a federal constitutional claim. Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 2000), amended on other grounds, 247 F.3d 904 (9th Cir. 2001); Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (insufficient for prisoner to have made "a general appeal to a constitutional guarantee," such as a naked reference to "due process," or to a "constitutional error" or a "fair trial"). Similarly, a mere reference to the "Constitution of the United States" does not preserve a federal claim. Gray v. Netherland, 518 U.S. 152, 162-63 (1996). Even if the basis of a federal claim is "self-evident" or if the claim would be decided "on the same considerations" under state or federal law, the petitioner must make the federal nature of the claim "explicit either by citing federal law or the decision of the federal courts. . . ." Lyons, 232 F.3d at 668. A state prisoner does not fairly present a claim to the state court if the court must read beyond the pleading filed in that court to discover the federal claim. Reese, 541 U.S. at 27.
Where a habeas petitioner has failed to "fairly present" his federal claims to the state's highest available court in a procedurally appropriate manner, state court remedies may, nonetheless, be "exhausted." This type of exhaustion is often referred to as "procedural default" or "procedural bar." Ylst v. Nunnemaker, 501 U.S. 797, 802-05 (1991); Coleman, 501 U.S. at 731-32. There are two categories of procedural default.
First, a state court may have applied a procedural bar, such as waiver or preclusion, when the prisoner attempted to raise the claim in state court. Nunnemaker, 501 U.S. at 802-05. Thus, a state prisoner may be barred from raising federal claims that he did not preserve in state court by making a contemporaneous objection at trial, on direct appeal, or when seeking post-conviction relief. Bonin v. Calderon, 59 F.3d 815, 842 (9th Cir. 1995) (stating that failure to raise contemporaneous objection to alleged violation of federal rights during state trial constitutes a procedural default of that issue.); Thomas v. Lewis, 945 F.2d 1119, 1121 (9th Cir. 1991) (finding claim procedurally defaulted where the Arizona Court of Appeals held that habeas petitioner had waived claims by failing to raise them on direct appeal or in first petition for post-conviction relief.) If the state court also addressed the merits of the underlying federal claim, the "alternative" ruling does not vitiate the independent state procedural bar. Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989); Carringer v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (state supreme court found ineffective assistance of counsel claims "barred under state law," but also discussed and rejected the claims on the merits, en banc court held that the "on-the-merits" discussion was an "alternative ruling" and the claims were procedurally defaulted and barred from federal review). A higher court's subsequent summary denial of review affirms the lower court's application of a procedural bar. Nunnemaker, 501 U.S. at 803.
In the second procedural default scenario, where a state prisoner failed to present his federal claims in state court returning to state court would be "futile" because the state courts' procedural rules, such as waiver or preclusion, would bar consideration of the previously unraised claims. Teague v. Lane, 489 U.S. 288, 297-99 (1989); Ariz. R. Crim. P. 32.1, 32.2(a) (b); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002); State v. Mata, 185 Ariz. 319, 322-27, 916 P.2d 1035, 1048-53 (1996); Ariz. R. Crim. P. 32.1(a)(3) (relief is precluded for claims waived at trial, on appeal, or in any previous collateral proceeding); 32.4(a); Ariz. R. Crim. P. 32.9 (stating that petition for review must be filed within thirty days of trial court's decision). A state post-conviction action is futile where it is time-barred. Beaty, 303 F.3d at 987; Moreno v. Gonzalez, 116 F.3d 409, 410 (9th Cir. 1997) (recognizing untimeliness under Ariz. R. Crim. P. 32.4(a) as a basis for dismissal of an Arizona petition for post-conviction relief, distinct from preclusion under Rule 32.2(a)). Arizona courts have consistently applied their procedural default rules. Stewart v. Smith, 536 U.S. 856, 860 (2002) (holding that Arizona Rule of Criminal Procedure 32.2(a) is an adequate and independent procedural bar); Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (rejecting the argument that Arizona courts have not "strictly or regularly followed" Rule 32); Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (rejecting the assertion that Arizona courts' application of procedural default rules had been "unpredictable and irregular.").
In either case of procedural default, federal review of the claim is barred absent a showing of "cause and prejudice" or a "fundamental miscarriage of justice." Dretke v. Haley, 541 U.S. 386, 393-94, (2004); Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish "cause," a petitioner must establish that some objective factor external to the defense impeded his efforts to comply with the state's procedural rules. Id. The following objective factors may constitute cause: (1) interference by state officials, (2) a showing that the factual or legal basis for a claim was not reasonably available, or (3) constitutionally ineffective assistance of counsel. Id. Ordinarily, the ineffective assistance of counsel in collateral proceedings does not constitute cause because "the right to counsel does not extend to state collateral proceedings or federal habeas proceedings." Martinez-Villareal v. Lewis, 80 F.3d 1301, 1306 (9th Cir. 1996). To establish prejudice, a prisoner must demonstrate that the alleged constitutional violation "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimension." United States v. Frady, 456 U.S. 152, 170 (1982); Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1996). Where petitioner fails to establish cause, the court need not reach the prejudice prong.
A federal habeas court may also review the merits of a procedurally defaulted claim if the petitioner demonstrates that failure to consider the merits of his claim will result in a "fundamental miscarriage of justice." Schlup v. Delo, 513 U.S. 298, 327 (1995). A "fundamental miscarriage of justice" occurs when a constitutional violation has probably resulted in the conviction of one who is actually innocent. Id. To satisfy the "fundamental miscarriage of justice" standard, petitioner must establish that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt in light of new evidence. Schlup, 513 U.S. at 327; 28 U.S.C. § 2254(c)(2)(B). Even if petitioner asserts a claim of actual innocence to excuse his procedural default of a federal claim, federal habeas relief may not be granted absent a finding of an independent constitutional violation occurring in the state criminal proceedings. Dretke, 541 U.S. at 393-94.
B. Application of Law to Petitioner's Claims
Respondents assert that because Petitioner did not fairly present Grounds 2 and 3 to Arizona courts, those claims are procedurally defaulted and barred from federal review. Specifically, Respondents claim that Petitioner never presented the following claims to the state courts: (1) Ground 2: the trial court violated Petitioner's Fifth, Sixth, and Fourteenth Amendment rights by "double counting" his prior convictions first to enhance his sentence, and then to aggravate his sentence; and (2) Ground 3: Petitioner was denied his Sixth Amendment right to have a jury determine the aggravating factor regarding whether he committed the offense while released on parole. (docket # 7 at 6-7)
Neither Petitioner's petition for post-conviction relief pursuant to Rule 32, nor his petition for review by the Arizona Court of Appeals include the "double-counting" claim raised in Ground 2 or the aggravating-factor claim raised in Ground 3. (Respondents' Exhs. L, O) The state courts should be afforded the first opportunity to consider a state prisoner's claim that his conviction and/or sentence violates his federal rights. Williams, 529 U.S. at 436-37. Petitioner's failure to fairly present Grounds 2 and 3 to the Arizona courts renders those claims technically exhausted, but procedurally defaulted because he is unable to return to state court to fairly present those claims. First, the deadlines for seeking post-conviction relief have "long passed." Ariz.R.Crim.P. 32.4 (providing that a Rule 32 notice of post-conviction relief "must be filed within ninety days after entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is the later."); White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989) (affirming the dismissal of a habeas petition, in part, because the Arizona petitioner lacked a "currently available state remedy at the time of the federal petition."); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (holding that Arizona habeas petitioner's unexhausted claims would be procedurally defaulted "because he is now time-barred under Arizona law from going back to state court.") Additionally, Arizona law would preclude Petitioner from raising grounds 2 and 3 in a subsequent post-conviction petition because the arguments he raises in grounds 2 and 3 should have been raised in his first petition for post-conviction relief. Ariz.R.Crim.P. 32.2(a)(3) (precluding any claim that has been "waived at trial, on appeal, or in any previous collateral proceedings.")
The Arizona procedural rules that bar Petitioner from returning to state court to present grounds 2 and 3 to the Arizona courts are "independent" of federal law and are "adequate" in terms of their consistent enforcement. See Stewart v. Smith, 536 U.S. 856, 859-61 (2002) (holding that Arizona's "Rule 32.2(a)(3) does not require courts to evaluate the merits of a particular claim, but only to categorize the claim," and "Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits," and thus the trial court decision not to reach the merits of petitioner's ineffective-assistance claim because petitioner "failed to raise it in prior petitions for post-conviction relief," constituted a decision that was "independent of federal law."); Poland v. Stewart, 169 F.3d 573, 585 (9th Cir. 1999) (noting that "Arizona's procedural rules are consistently and regularly followed and are adequate to bar federal review."); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1306 (9th Cir. 1006) (finding "no merit" to petitioner's "contention that the Arizona Supreme Court has not regularly and consistently denied relief on procedural default" and noting that petitioner "has not pointed to any Arizona decisions after our Carriger [ v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992)] opinion which show that Arizona has since become inconsistent and irregular in its reliance on procedural default.").
C. "Cause and Prejudice" or "Fundamental Miscarriage of Justice"
In view of Petitioner's procedural default of Grounds 2 and 3, in order to obtain federal review of those claims, Petitioner must establish either "cause and prejudice" or a "fundamental miscarriage of justice." As discussed below, Petitioner does not establish a basis to overcome the procedural default of Grounds 2 and 3.
Under the "cause and prejudice" test, Petitioner bears the burden of establishing that some "objective factor external to the defense impeded" his compliance with Arizona's procedural rules. House v. Bell, ___ U.S. ___, 126 S.Ct. 2064, 2076, 77 (2006); Moorman v. Schriro, 426 F.3d 1-44, 1058 (9th Cir. 2005). Petitioner does not offer any explanation for his failure to properly exhaust Grounds 2 and 3. Petitioner's pro se status and ignorance of the law do not satisfy the cause standard. Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 908 (9th Cir. 1986). Where petitioner fails to establish cause for his procedural default, the court need not consider whether petitioner has shown actual prejudice resulting from the alleged constitutional violations. Smith v. Murray, 477 U.S. 527, 533 (1986). Therefore, Petitioner has failed to carry his burden of proof regarding cause and prejudice.
Petitioner also fails to establish that failure to consider the claims raised in Grounds 2 and 3 would result in a fundamental miscarriage of justice. Schlup, 513 U.S. at 327. Accordingly, Petitioner's Grounds 2 and 3 are procedurally defaulted and barred from federal habeas corpus review.
III. Analysis
After discussing the standard of review, the Court will consider the merits of Petitioner's properly exhausted claims raised in Ground 1.
A. Standard of Review
In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA") which "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas `retrials' and to ensure that state-court convictions are given effect to the extent possible under the law." Bell v. Cone, 535 U.S. 685, 693 (2002).
Under the AEDPA, a state prisoner "whose claim was adjudicated on the merits in state court is not entitled to relief in federal court unless he meets the requirements of 28 U.S.C. § 2254(d)." Price v. Vincent, 538 U.S. 634, 638 (2003). Thus, a state prisoner is not entitled to relief unless he demonstrates that the state court's adjudication of his claims "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 "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)(1), (2); Carey v. Musladin, ___ U.S. ___, 127 S.Ct. 649, 653 (2006); Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003); Mancebo v. Adams, 435 F.3d 977, 978 (9th Cir. 2006). To determine whether a state court ruling was "contrary to" or involved an "unreasonable application" of federal law, courts must look exclusively to the holdings of the Supreme Court which existed at the time of the relevant state-court decision. Mitchell v. Esparza, 540 U.S. 12, 15-15 (2003); Yarborough v. Gentry, 540 U.S. 1, 5 (2003).
Accordingly, the Ninth Circuit has acknowledged that it cannot reverse a state court decision merely because it conflicts with Ninth Circuit precedent on a federal constitutional issue. Brewer v. Hall, 378 F.3d 952, 957 (9th Cir. 2004); Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). Additionally, even if the state court neither explained its ruling nor cites United States Supreme Court authority, the reviewing federal court must nevertheless examine Supreme Court precedent to determine whether the state court reasonably applied federal law. Early v. Packer, 537 U.S. 3, 8 (2003). The United States Supreme Court has expressly held that citation to federal law is not required and that compliance with the habeas statute "does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Id.
A state court's decision is "contrary to" federal law if it applies a rule of law "that contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent." Mitchell v. Esparza, 540 U.S 12, 14 (2003) (citations omitted); Williams v. Taylor, 529 U.S. 362, 411 (2000).
A state court decision involves an "unreasonable application of" federal law if the court identifies the correct legal rule, but unreasonably applies the rule to the facts of a particular case. Williams, 529 U.S. at 405; Brown v. Payton, 544 U.S. 133, 141 (2005). An incorrect application of state law does not satisfy this standard. Yarborough v. Alvarado, 541 U.S. 652, 665-66 (2004) (stating that "[r]elief is available under § 2254(d)(1) only if the state court's decision is objectively unreasonable.") "It is not enough that a federal habeas court, in its independent review of the legal question," is left with the "firm conviction" that the state court ruling was "erroneous." Id.; Andrade, 538 U.S. at 75. Rather, the petitioner must establish that the state court decision is "objectively unreasonable." Middleton v. McNeil, 541 U.S. 433 (2004); Andrade, 538 U.S. at 76.
Where a state court decision is deemed "contrary to" or an "unreasonable application of" clearly established federal law, the reviewing court must next determine whether it resulted in constitutional error. Benn v. Lambert, 283 F.3d 1040, 1052 n. 6 (9th Cir. 2002). Habeas relief is warranted only if the constitutional error at issue had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 631 (1993). In § 2254 proceedings, the federal court must assess the prejudicial impact of a constitutional error in a state-court criminal proceeding under Brecht's more forgiving "substantial and injurious effect" standard, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the "harmless beyond a reasonable doubt" standard set forth in Chapman v. California, 386 U.S. 18, 24 (1967). Fry v. Pliler, ___ U.S. ___, 127 S.Ct. 2321, 2328 (2007). The Brecht harmless error analysis also applies to habeas review of a sentencing error. The test is whether such error had a "substantial and injurious effect" on the sentence. Calderon v. Coleman, 525 U.S. 141, 145-57 (1998) (holding that for habeas relief to be granted based on constitutional error in capital penalty phase, error must have had substantial and injurious effect on the jury's verdict in the penalty phase.); Hernandez v. LaMarque, 2006 WL 2411441 (N.D.Cal., Aug. 18, 2006) (finding that even if the evidence of three of petitioner's prior convictions was insufficient, petitioner was not prejudiced by the court's consideration of those convictions because the trial court found four other prior convictions which would have supported petitioner's sentence.) The Court will review Petitioner's claims under the applicable standard of review.
B. Ground One
Petitioner's first ground for relief includes several subparts which allege ineffective assistance of counsel and challenge the voluntariness of Petitioner's guilty plea, including his waiver of his Sixth Amendment right to have a jury determine aggravating factors beyond a reasonable doubt. (Respondents' Exh. 7 at 5)
1. Ground 1(a) — Ineffective Assistance of Counsel/Voluntariness of Plea
In Ground 1(a) Petitioner asserts that his guilty plea was not voluntary and intelligent because counsel rendered ineffective assistance in failing to explain the significance of waiving his rights under Blakely. (docket # 7 at 5) The State court rejected this claim on post-conviction review. Although the court did not explain its ruling, this Court must still consider Supreme Court precedent to determine whether the state court reasonably applied the applicable federal law. Early, 537 U.S. at 8.
To prevail on a claim of ineffective assistance of counsel, Petitioner must establish that (1) counsel's representation fell below an objective standard of reasonableness; and (2) he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 688-692 (1984). Courts engage a strong presumption that counsel's conduct falls within the wide range of professional assistance. Strickland, 466 U.S. at 689-90. The Strickland test also applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 59 (1985). A defendant who pleads guilty based on counsel's advice may attack the voluntary and intelligent character of the plea by showing that the advice he received from counsel fell below the level of competence expected of attorneys in criminal cases. Id. at 56. To establish prejudice in the context of a plea, petitioner must establish 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." Hill, 474 U.S. at 59. Where petitioner cannot establish prejudice, the court need not reach the performance prong. Strickland, 466 U.S. at 697; Williams v. Calderon, 52 F. 3d 1465, 1470 (9th Cir. 1995).
In this case, Petitioner does not make any showing that counsel's advice to waive his Blakey rights and enter the guilty plea fell below an objective standard of reasonableness. During plea negotiations, the government may properly demand that a defendant waive constitutional or statutory rights as part of the plea agreement as long as defendant is free to reject the government's demand. United States v. Navarro-Botello, 912 F.2d 318, 321-22 (9th Cir. 1990). In this case, in return for Petitioner's waiver of his Blakely rights as part of the plea agreement, the State agreed to drop a second count of aggravated driving under the influence, the allegations of seven additional prior felony convictions, and the allegation that Petitioner had committed the offense while on parole. Had Petitioner proceeded to trial with those additional allegations and was found guilty, he would have faced a much harsher sentence. (Respondents' Exh. G at 5) A defendant suffers no prejudice from entering into a plea agreement that requires him to waive a right where the agreement substantially reduces the sentence that he likely would have received had he been convicted by a jury. United States v. Baramydka, 95 F.3d 840, 846-47 (9th Cir. 1996). Thus, even assuming that counsel's performance was deficient in advising that Petitioner waive his Blakey rights, Petitioner cannot establish that he suffered prejudice and his claim of ineffective assistance fails. Strickland, 466 U.S. at 697.
Moreover, the record indicates that Petitioner knowingly and voluntarily entered his guilty plea. See, Boykin v. Alabama, 395 U.S. 238, 243 n. 5 (1969) (stating that for a guilty plea to be valid, it must be knowing and voluntary). During the change of plea proceedings, Petitioner advised the trial court that he understood the sentencing range, including the stipulated 7.5 year sentence, for the crime to which he was pleading guilty. (Respondents' Exh. E at 4) Specifically, the trial court explained, "What you must understand about this crime, it does carry a presumptive sentence of 4.5 years in the Department of Corrections, minimum sentence of 3 years, to be decreased down to 2.25 years, if exceptional circumstances findings are made. Maximum sentence is 6 years in the Department of Corrections, could be increased up to 7.5 years, if exceptional circumstances findings are made. Probation is not available." (Respondents' Exh. E at 4-5); (A.R.S. § 13-602, § 13-702, § 13-702.01) Petitioner affirmed that he understood the "sentencing possibilities." (Respondents' Exh. E at 5) Significantly, Petitioner affirmed that he was "stipulating to be sentenced to a term in the Department of Corrections for 7.5 years, [and to] pay a $250 alcohol abatement fee." (Respondents' Exh. E at 5) Petitioner further stated that he understood the waiver of his "case law right" under Blakely to have "any aggravating factors proven to a jury." (Respondents' Exh. E at 8) Specifically, the court advised Petitioner that, "You also have a case law right, sir, under United States v. Blakely to have any aggravating factors proven to a jury. Would you also like to give up that right as contained in Paragraph 7, sir?" (Respondents' Exh. E at 8) Petitioner responded, "Yes." ( Id.)
Petitioner now claims that he did not knowingly and intelligently enter the plea because counsel failed to explain the significance of Blakely. Under oath during the change of plea hearing, Petitioner advised the court that he had discussed the plea agreement with counsel and understood its terms, including the Blakey waiver. Petitioner's statements to the trial court that he understood the possible sentence he was facing and agreed to waive his right to have a jury determine aggravating circumstances, "carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977) (defendants' statements at plea hearing "carry a strong presumption of verity" and "constitute a formidable barrier" at later proceedings); Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir. 1986) (noting that statements made by a defendant at the time of entering a plea should be accorded great weight.) Federal appellate courts have upheld guilty pleas against challenges based on defendant's disavowal of statements made under oath in court regarding the voluntariness of the plea. See, Sanchez v. United States, 50 F.3d 1448, 1455 (9th Cir. 1995) (stating that "during the plea colloquy, [defendant] specifically denied that any threats and coercions had been used against him. Courts generally consider such responses to be strong indicators of the voluntariness of the defendant's plea."); United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir. 1987) (rejecting defendant's claim that he had been promised a lesser sentence in view of defendant's affirmation to the trial court that no sentencing-related promises had been made); Agtas v. Whitley, 836 F.2d 1233, 1235 (9th Cir. 1988) (rejecting defendant's post-conviction claim he was impaired, based upon avowal in court during the change of plea hearing that he had not taken any drugs before the hearing). Additionally, the trial court did not commit a federal constitutional error by accepting Petitioner's statements made under oath at the change-of-plea hearing. United States v. Cothran, 202 F.3d 279, 284 (5th Cir. 2002).
Absent any evidence in the record suggesting that the guilty plea was not voluntary and intelligent, Petitioner's claim to the contrary should be denied.
In their Answer, Respondents alternatively argue that to the extent that Petitioner's claim can be construed as an attack of his sentence in violation of Blakely, his claim fails. Because the Court finds that Petitioner's guilty plea and waiver of his Blakely rights was knowing and voluntary, it need not reach this alternative argument. Moreover, as discussed in Section II, supra, Petitioner has not exhausted such a claim.
2. Ground 1(b) — Blakely Waiver
In Ground 2(b), Petitioner asserts that his waiver of his Blakely rights violates the Sixth Amendment and that he had no choice other than to agree to the Blakely waiver. (docket # 7 at 5) In support of his claim, Petitioner cites a July 16, 2004 article that appeared on http://yumasun.com in which a defense attorney rejected a prosecutor's offer of a Blakely waiver. (docket # 7 at 5, Exh. A) Additionally, Petitioner cites a posting that appeared on Sentencing Law and Policy, http://sentencing.typepad.com/sentencing_law_and_policy, in which the chief federal public defender in Los Angeles opined that her office would reject Blakely waivers in most cases. (docket # 7 at 5, Exhibit B) Neither of these sources supports a finding that Blakely waivers are unconstitutional. Rather, they merely indicate that within the first few months after the Supreme Court decided Blakely, defense attorneys were reluctant to accept waivers of their clients' Sixth Amendment rights articulated in Blakely.
Additionally, contrary to Petitioner's assertion, a waiver of Apprendi/Blakely rights comports with the Constitution. In Blakely itself, the Supreme Court held that a defendant may waive the right to have a jury, as opposed to a trial judge, determine the existence of aggravating factors. Blakely, 542 U.S. at 310. Specifically, the Court stated that:
Justice Breyer argues that Apprendi works to the detriment of criminal defendants who plead guilty by depriving them of the opportunity to argue sentencing factors to a judge. But nothing prevents a defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free is seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. If appropriate waivers are secured, are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty.Blakely, 542 U.S. at 310 (citations omitted).
Finally, Petitioner's suggestion that he was forced to accept the Blakely waiver lacks merit. Petitioner argues that the State exploited the fact that he had eight prior felony convictions, to "intimidate the defense" and to make the plea agreement's Blakely waiver, "not so much an option; it was an option or else!" (Respondents' Exh. S at 6) Petitioner argues that had he not accepted the plea agreement, including the Blakely waiver, the State would have alleged all eight prior felony convictions. Even assuming this assertion is true, it does not amount to coercion. Petitioner, not the State, was responsible for his past felony convictions. The fact that Petitioner faced more severe consequences if he proceeded to trial, and lesser punishment if he accepted the plea agreement, does not render the plea process unconstitutional or coercive. Cothran, 302 F.3d at 284. Moreover, during the change of plea hearing, Petitioner affirmed that he was not forced or threatened "in any way" to plead guilty. (Respondents' Exh. E at 8). Petitioner's waiver of his Blakley rights comports with the Constitution and there is no evidence that Petitioner was coerced to waive those rights.
3. Ground 1(c) — Reasonable Doubt Standard
In the final subpart of his first ground for relief, Petitioner claims that counsel failed to explain why Petitioner could not receive the "full and just benefits of the reasonable doubt standard which is the cornerstone of an equal and fair proceeding." (docket # 7 at 5)
This claim is a bit confusing. Petitioner appears to recast Ground 1 and again asserts that counsel was ineffective in advising Petitioner to plead guilty and to waive his right to have a jury determine the aggravating factors beyond a reasonable doubt. This is essentially the same argument that Plaintiff raised in Ground 1(a) which the Court has previously rejected.
IV. Conclusion
Based on the foregoing, Petitioner's Petition for Writ of Habeas Corpus should be denied because Petitioner's claims are either procedurally barred or lack merit.
Accordingly,
IT IS HEREBY RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus (docket # 7) be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. The parties shall have ten days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(e), Federal Rules of Civil Procedure. Thereafter, the parties have ten days within which to file a response to the objections. Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See, Rule 72, Federal Rules of Civil Procedure.