Opinion
SA CV 20-0045-ODW(E)
02-25-2021
TIMOTHY BERTRAM, Petitioner, v. WARDEN JOHNSON (A), Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable Otis D. Wright II, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On January 9, 2020, Petitioner filed a “Petition for Writ of Error Coram Nobis, etc.” This Petition sought to challenge a 1988 Superior Court criminal proceeding (No. C-67205) (Doc. 1, p. 2).In No. C-67205, Petitioner pled guilty to the felony of receiving stolen property (former California Penal Code section 496.1) and also pled guilty to the misdemeanor of annoying or molesting a child (former California Penal Code section 647a). Id. These pleas occurred on February 19, 1988. Id.
The Court references the document and page numbers appearing on the ECF docket.
On February 4, 2020, Respondent filed a “Motion to Dismiss Petition for Writ of Error Coram Nobis.” Following briefing, the Court issued an “Order Dismissing Petition with Leave to Amend” on April 7, 2020. In this Order, the Court explained that coram nobis relief is not available in federal court to attack a state court conviction (Doc. 18, p. 2). The Court further explained that a habeas corpus challenge to the 1988 proceeding would appear to fail because Petitioner's sentence for the 1988 convictions evidently had fully expired long ago (id., p. 2-3). The Court observed, however, that “[u]nder very narrow circumstances, a petitioner sometimes may challenge a prior expired conviction through a habeas corpus petition attacking a current sentence as allegedly enhanced by the prior conviction. See Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001) (‘Coss'); Dubrin v. People, 720 F.3d 1095 (9th Cir. 2013) (‘Dubrin')” (id., p. 3).
On April 23, 2020, Petitioner filed a “First Amended Petition for Writ of Habeas Corpus by a Person in State Custody.” The First Amended Petition sought to challenge Petitioner's 2016 Superior Court sentence as allegedly enhanced by certain 1988 Superior Court criminal proceedings (Nos. C-67205 and C-67882) (Doc. 23, p. 5).
On June 10, 2020, Respondent filed a “Motion to Dismiss First Amended Petition, etc.” On June 25, 2020, Petitioner filed a reply to this motion in which he sought leave to file a proposed Second Amended Petition, as well as a stay to permit him to exhaust the claims contained in the proposed Second Amended Petition. The proposed Second Amended Petition alleged two claims: (1) the 2016 state sentencing court allegedly violated the federal Constitution by assertedly imposing a one-year sentence enhancement by reason of the 1988 criminal proceedings (“Claim 1”); and (2) at the 2016 sentencing, Petitioner's counsel rendered ineffective assistance by failing to object to this asserted enhancement (“Claim 2”) (Doc. 34, pp. 17-18).
By Order filed July 30, 2020, the Court granted Petitioner's request for leave to amend, denied Respondent's motion to dismiss as moot and granted Petitioner's request for a stay. The Court directed Petitioner to file in the California Supreme Court a petition for writ of habeas corpus containing Petitioner's unexhausted claims (Doc. 37, p. 16).
On July 30, 2020, Petitioner filed the Second Amended Petition, which contains the previously described Claim 1 and Claim 2. On August 27, 2020, Petitioner filed “Petitioner['s] Notice, ” which attached a “Petition for Writ of Habeas Corpus, ” reportedly filed by Petitioner in the California Supreme Court. This state court petition contains Claim 1 and Claim 2 (Doc. 43, pp. 6-8). T California Supreme Court summarily denied the state court petition on October 14, 2020 (see California Supreme Court docket in No. S264037, available at www.courtsca.gov; see also Porter v. Ollison, 620 F.3d 952, 954-55 n.1 (9th Cir. 2000) (federal court may take judicial notice of state court docket).
Following the lifting of the stay, Respondent filed an “Answer to the Second Amended Petition, etc.” on December 15, 2020. Petitioner filed a “Petitioner[']s Traverse, etc.” on February 1, 2021. Attached to the Traverse is a proposed “Third Amended” habeas petition. The proposed “Third Amended” petition contains the same two claims alleged in the Second Amended Petition, but adds to Claim 1 the assertion that the one-year enhancement violated Petitioner's constitutional rights “because I am actually innocent of the (crimes) conviction used to enhance” (Doc. 53, p. 38).
BACKGROUND
As previously indicated, on February 19, 1988, Petitioner pled guilty in No. C-67205 to the felony of receiving stolen property, as well as to the misdemeanor of molesting or annoying a child (Doc. 1, p. 2; Doc. 1-2, pp. 131, 133-35; Doc. 1-1, pp. 243-44, 384, 386-87, 389-391, 395-401). In a form signed by Petitioner at that time, Petitioner offered “the following facts as the basis for my plea of guilty to a felony: On Dec. 10, 1987 in Orange County I knowingly possessed stolen property. I admit I annoyed a child under the age of 18” (Doc. 1-1, p. 390). Petitioner received a sentence involving three years of probation (Doc. 1, p. 2; Doc. 1-2, p. 135).
A “Petition for Arraignment on Probation Violation, ” filed in the Superior Court on April 1, 1988, alleged that Petitioner violated his probation by committing a residential burglary on March 16, 1988 (Doc. 23, p. 56). On June 22, 1988, Petitioner admitted the probation violation by reason of the residential burglary (Doc. 23, p. 59).
In 2016, Petitioner pled no contest to six counts of second degree burglary and one count of receiving stolen property (Doc. 23, pp. 24-28; Doc. 50-5, pp. 1-11). At the same time, Petitioner admitted having suffered six prior prison terms qualifying for one-year sentence enhancements under former California Penal Code section 667.5(b) (id.). One of the six prior terms which Petitioner admitted qualified for a one-year enhancement was the term served in No. C-67882 “for violation of Penal Code section 459 . . . first degree residential burglary on June 22, 1988” (Doc. 23, p. 25; Doc. 50-5, pp. 7-8).
Prior to 2020, section 667.5(b) “provided for a one-year enhancement for each prior separate prison term. . . .” Peole v. Gastelum, 45 Cal.App. 5th 757, 772, 259 Cal.Rptr.3d 44, 56 (2020). Beginning in 2020, section 667.5(b) provided for a one-year enhancement only if the prior prison term was “for a sexually violent offense as defined in Welfare & Institutions Code section 6600, subd. (b).” Id.
Over the prosecution's objection, the sentencing court accepted the plea and struck a strike allegation “pursuant to Romero” (Doc. 23, pp. 26-27; Doc. 50-5, pp. 8-9). The sentencing court also struck one of the six prior prison term enhancements, without identifying which prior prison term enhancement was being stricken (id.). Petitioner received a total aggregate prison term of 12 years (id.).
See People v. Superior Court (Romero), 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996).
PETITIONER'S CLAIMS
As previously indicated, the Second Amended Petition, as well as the proposed Third Amended Petition, alleges two claims:
1. The sentencing court's asserted imposition of a one-year enhancement for No. C-67882 violated Petitioner's constitutional rights because Petitioner allegedly was actually innocent of the crimes of which he had been convicted in No. C-67205 (Claim 1); and
2. Petitioner's counsel was ineffective for failing to challenge at the 2016 sentencing the validity of the Petitioner's conviction in No. C-67205 (Claim 2).
STANDARD OF REVIEW
Under the “Antiterrorism and Effective Death Penalty Act of 1996” (“AEDPA”), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody 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 proceeding.” 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
“Clearly established Federal law” refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is “contrary to” clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it “confronts a set of facts . . . materially indistinguishable” from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the “unreasonable application” prong of section 2254(d)(1), a federal court may grant habeas relief “based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision “involves an unreasonable application” of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).
“In order for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable,' the state court's decision must have been more than incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). “The state court's application must have been ‘objectively unreasonable.'” Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). “Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. 86, 101 (2011). This is “the only question that matters under § 2254(d)(1).” Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless “there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents.” Id. “As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
In applying these standards, the Court ordinarily looks to the last reasoned state court decision. See Wilson v. Sellers, 138 S.Ct. 1188, 1193-97 (2018) (endorsing presumption that unexplained decision of state higher court adopted the reasoning of the last reasoned state court decision); see Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, “[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.” Harrington v. Richter, 562 U.S. at 102; see also Cullen v. Pinholster, 563 U.S. 170, 188 (2011).
Additionally, federal habeas corpus relief may be granted “only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
DISCUSSION
I. Petitioner is not Entitled to Federal Habeas Relief on Claim 1.
Under Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 403-04 (2001) (“Coss”), a state habeas petitioner generally may not challenge a prior expired conviction used to enhance a criminal sentence on the ground that the prior conviction was obtained unconstitutionally, unless there was a failure to appoint counsel in violation of the Sixth Amendment. In dicta, the plurality in Coss suggested the possibility that a habeas petitioner also could challenge a prior conviction used to enhance the petitioner's current sentence where the petitioner could not be faulted for failing to obtain a timely review of a constitutional claim, either because a state court without justification had refused to rule on a constitutional claim properly presented to it, or because the petitioner had uncovered “compelling evidence” of his innocence after the time for review had expired that could not have been timely discovered. Id. at 403-05. The Ninth Circuit has held that habeas review is available in the circumstances described by the Coss plurality. Dubrin v. People of the State of California, 720 F.3d 1095, 1098 (9th Cir. 2013).
There was no failure to appoint counsel in Petitioner's 1988 criminal proceedings. The record reflects that Petitioner was represented by counsel throughout these proceedings (Doc. 1-2, pp. 131, 133-35; Doc. 1-1, pp. 386-87, 389-91, 395-401; Doc. 23, pp. 57-60). Nor is there any indication in the record that the state court ever refused without justification to rule on a properly presented challenge to the 1988 proceedings.
Although Petitioner asserts “actual innocence, ” Petitioner has failed to submit any new “compelling evidence” of his asserted innocence. See Schlup v. Delo, 513 U.S. 298, 324 (1995) (In order to make a credible claim of actual innocence, a petitioner must “support his allegations of constitutional error with new reliable evidence -whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial”); Dirden v. Sherman, 2016 WL 3660850, at *6-7 (C.D. Cal. Feb. 4, 2016), adopted, 2016 WL 3660844 (C.D. Cal. July 6, 2016) (applying Schlup standard to Coss actual innocence exception). Petitioner's conclusory allegations of actual innocence are insufficient. See Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013) (speculative evidence insufficient to show actual innocence); Solomon v. Diaz, 2013 WL 6512938, at *10 (C.D. Cal. Dec. 11, 2013) (“Petitioner's conclusory allegations are insufficient to meet the exacting Schlup actual innocence standard.”). Petitioner's unsupported references to alleged recantations by the victims and/or witnesses fall far short of the requisite “compelling” proof of actual innocence, particularly in light of Petitioner's 1988 admissions of guilt. See id.; see also People v. Maultsby, 53 Cal.4th 296, 302, 134 Cal.Rptr.3d 542, 165 P.3d 1038 (2012) (“A guilty plea admits every element of the offense charged and is a conclusive admission of guilt.”) (citations omitted); People v. Batista, 201 Cal.App.3d 1288, 1292, 248 Cal.Rptr. 46 (1988) (guilty plea admitted sufficiency of evidence to support conviction).
II. Petitioner is not Entitled to Federal Habeas Relief on Claim 2.
To establish ineffective assistance of counsel, Petitioner must prove: (1) counsel's representation fell below an objective standard of reasonableness; and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 697 (1984) (“Strickland”). A reasonable probability of a different result “is a probability sufficient to undermine confidence in the outcome.” Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) (“Failure to satisfy either prong of the Strickland test obviates the need to consider the other.”) (citation omitted).
Review of counsel's performance is “highly deferential” and there is a “strong presumption” that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct “on the facts of the particular case, viewed as of the time of counsel's conduct.” Strickland, 466 U.S. at 690. The court may “neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. . . .” Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (“The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.”) (citations omitted). Petitioner bears the burden to show that “counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. at 104 (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy”) (citation and quotations omitted); see also Morris v. California, 966 F.2d 448, 456-57 (9th Cir.), cert. denied, 506 U.S. 831 (1992) (if the reviewing court can conceive of a reasonable explanation for counsel's challenged action or inaction, the court need not determine the actual explanation before denying relief). “In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently.” Harrington v. Richter, 562 U.S. at 111 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is “‘reasonably likely'” that the result would have been different. Id. (quoting Strickland, 466 U.S. at 696). “The likelihood of a different result must be substantial, not just conceivable.” Id. at 112.
“When the claim at issue is one for ineffective assistance of counsel, moreover, AEDPA review is ‘doubly deferential,' [citation], because counsel is ‘strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'” Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (citations and internal quotations omitted). “In such circumstances, federal courts are to afford ‘both the state court and the defense attorney the benefit of the doubt.'” Id. (citation omitted). “[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” Sexton v. Beaudreaux, 138 S.Ct. 2555, 2560 (2018) (citation and internal quotations omitted).
In the present case, Petitioner has failed to demonstrate that counsel's decision to decline to challenge the 1988 priors during the 2016 sentencing hearing was objectively unreasonable. Then, as now, Petitioner lacked compelling evidence demonstrating his actual innocence of the 1988 crimes, particularly given the guilty pleas and factual admissions Petitioner had made in 1988. Counsel reasonably could have decided that the sentencing court would have rejected any such challenge. Counsel also reasonably could have decided that, even if not rejected, such a challenge would prove inconsequential to Petitioner's 2016 sentence. The sentencing judge announced that the judge would impose one-year enhancements on only five of the six qualifying prior prison term convictions to which Petitioner had admitted. Thus, a finding of the invalidity of one of those prior prison term convictions would not have affected the sentence imposed at that time. Therefore, for at least these two independently sufficient reasons, counsel's failure to argue Petitioner's alleged innocence of the 1988 crimes at the 2016 sentencing was not objectively unreasonable.
For essentially the same reasons, Petitioner has failed to demonstrate any resulting prejudice. There would have been no reasonable probability of a different outcome at the 2016 sentencing if Petitioner's counsel then had argued Petitioner's alleged innocence of the crimes to which Petitioner pled guilty in 1988. The failure to make a futile argument is not prejudicial and therefore cannot constitute ineffective assistance of counsel. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997); Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.), cert. denied, 493 U.S. 869 (1989); see also Garcia v. Superior Court, 14 Cal.4th 953, 59 Cal.Rptr. 858, 928 P.2d 572 (1997) (defendant whose sentence for a noncapital offense is subject to enhancement because of a prior conviction may not challenge the validity of the prior conviction based on alleged ineffectiveness of counsel during the prior proceeding).
III. Petitioner is not Entitled to Federal Habeas Relief on his Unpleaded and Possibly Unexhausted Claim Regarding the Misdemeanor Nature of one of his 1988 Convictions.
In his Traverse, Petitioner appears to argue the unpleaded and possibly unexhausted claim that the enhancement of his 2016 sentence was infirm because one of the two crimes in No. C-67205 (the crime of molesting or annoying a child) was a misdemeanor. This claim is properly denied as not “colorable.” See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006) (federal habeas court may deny on the merits unexhausted claims that are not “colorable”). The crime of receiving stolen property to which Petitioner also pled guilty in No. C-67205 was a felony (as was the residential burglary in No. C-67882 which violated Petitioner's probation). Any mischaracterization in the state court record of the molesting/ annoying crime in No. C-67205 was inconsequential to the sentence Petitioner received in 2016.
IV. Petitioner is not Entitled to an Evidentiary Hearing.
Where a state court adjudicated a habeas petitioner's claims on the merits, “evidence introduced in federal court has no bearing on § 2254(d)(1) review.” See Cullen v. Pinholster, 563 U.S. 170, 185 (2011); see also Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013), cert. denied, 573 U.S. 981 (2014) (Pinholster's preclusion of a federal evidentiary hearing applies to section 2254(d)(2) claims as well as section 2254(d)(1) claims). In the present case, the California Supreme Court adjudicated Claim 1 and Claim 2 on the merits. See Harrington v. Richter, 562 U.S. 86, 99 (2011) (California Supreme Court's summary denial of habeas petition is presumed to have been on the merits). Moreover, Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to any of Petitioner's claims. Therefore, Petitioner is not entitled to an evidentiary hearing.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) denying federal habeas relief; and (3) dismissing this action with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No. notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.