Opinion
No. C 02-4263 SI (pr)
November 6, 2003
JUDGMENT
The petition for writ of habeas corpus is denied on the merits.
IT IS SO ORDERED AND ADJUDGED.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS INTRODUCTION
This matter is now before the court for consideration of the merits of Antonio Cornelio's pro se petition for writ of habeas corpus concerning his 2001 conviction. For the reasons discussed below, the petition will be denied.BACKGROUND
Cornelio was convicted in San Mateo County Superior Court of assault with a deadly weapon and brandishing a weapon. He also was found to have personally used a deadly weapon during the assault and to have suffered prior serious felony convictions. Cornelio's conviction was by "slow plea" on January 16, 2001, at which time he waived his right to a jury trial on the offenses and sentence enhancement allegations, and submitted to a court trial based on the preliminary hearing transcripts and certified documents regarding the alleged prior convictions. In the process of taking the waiver of those rights, the trial court advised petitioner through an interpreter of the maximum penalty of eighteen years and of the deportation consequences of the "slow plea." RT 4-8. Petitioner also affirmed that he "express[ed] each of those waivers on the basis of a thorough discussion of the rights" being waived with his attorney. RT 5. The trial court found that Cornelio's waivers were knowing, intelligent, and voluntary. RT 7, 10.
Another hearing was held two days later on January 18, 2001, at the request of the prosecution, to clarify Cornelio's waiver of his rights. RT 15-16. Cornelio was advised that he was waiving his rights to present additional evidence outside of the preliminary hearing transcript and that the court would likely find him guilty of the charges. RT 16. Again, Cornelio, through an interpreter, waived his rights, and the court expressly found that the waiver was knowing, intelligent, and voluntary. RT 18.
Following submission, the trial court found Cornelio guilty of the charged offenses. In addition, it ruled that one prior conviction qualified as a strike under the "Three Strikes" law and two prior convictions qualified as serious felonies under California Penal Code § 667(a).
Cornelio was sentenced to a total term of fourteen years in prison on March 17, 2001. Cornelio appealed and was assigned appellate counsel, who filed a brief under People v. Wende, 25 Cal.3d 436 (1979). The California Court of Appeal did an independent review of the record and affirmed the judgment in a written opinion. Cornelio did not seek review in the California Supreme Court. Cornelio filed a petition for writ of habeas corpus in the California Supreme Court which was denied without comment. Cornelio then filed this action.
Under California's Wende brief procedure, see People v. Wende, 25 Cal.3d 436 (1979), counsel, upon concluding that an appeal would be frivolous, (1) files a brief with the appellate court that summarizes the procedural and factual history or the case, (2) attests that he has reviewed the record, explained his evaluation of the case to his client, provided the client with a copy of the brief, and informed the client of his right to file an in propria persona supplemental brief, and (3) requests that the appellate court independently examine the record for arguable issues. The appellate court, upon receiving a Wende brief, conducts a review of the entire record and affirms if it finds the appeal to be frivolous.
JURISDICTION AND VENUE
This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in San Mateo County, California, within this judicial district. 28 U.S.C. § 84, 2241(d).
EXHAUSTION
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c). The parties do not dispute that state court remedies were exhausted for the claims asserted in Cornelio's petition.STANDARD OF REVIEW
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated 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).
"Under the `contrary to' clause, a federal habeas court may grant the writ 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] Court has on a set of materially indistinguishable facts." Williams v. Taylor. 529 U.S. 362, 412-13 (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] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court 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. Rather, that application must also be unreasonable."Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
DISCUSSION
Cornelio seeks relief based on the following claims: (1) his plea was not voluntary and intelligent because he was not aware of the consequences of his plea or the proceedings because the court interpreter failed to translate accurately; and (2) both trial and appellate counsel were ineffective for failing to have an interpreter present during their meetings to inform petitioner "what was going on with the proceedings, both off and on the record." Petition, at 5.
A. Petitioner's Plea Was Voluntary and Knowing
Cornelio alleges that his "slow plea" was not voluntary and intelligent because his interpreter failed to translate correctly at the time he entered his plea, thereby making him unaware of what was happening. Cornelio does not elaborate on the claim in his federal petition, so the court looks to his state appellate brief, which provided the following information. Cornelio contended in state court that at no point did the interpreter inform him what the proceedings were and that most of the answers that were given to the court were not his but rather that it was the interpreter who was doing all the answering. Resp. Exh. D, Supplemental Brief to California Court of Appeal, at 1. Cornelio further alleged that the record demonstrated that he was not in his "right frame of mind," which he argues is supported by the testimony of clinical psychologist Alfred Fricke. Id. at 2.
Due process requires that a guilty plea be both knowing and voluntary.See Boykin v. Alabama. 395 U.S. 238, 242-43 (1969). A habeas petitioner bears the burden of establishing that his guilty plea was not knowing and voluntary. See Parke v. Raley, 506 U.S. 20, 31-34 (1992). Similarly, a conviction based on stipulated facts (a "slow plea") is valid only if the defendant knowingly and voluntarily agreed to the stipulation. Adams v. Peterson, 968 F.2d 835, 843 (9th Cir. 1992) (en banc); cf id. at 843 (defendant pleading not guilty with a stipulated fact trial not entitled to all the protections that attend a guilty plea). The defendant must enter into the stipulation with "sufficient awareness of the relevant circumstances and likely consequences."Id. at 844.
Here, the trial court found that Cornelio's trial waivers and agreement to the stipulation were knowing and voluntary. That determination was reasonable given the absence in the state record of any factual basis for concluding otherwise. However, the trial court's finding was made before Cornelio asserted his claim that he did not receive an adequate interpretation of the proceedings and does not bind this court's consideration of the bad-interpretation claim. Likewise, the California Court of Appeal's decision affirming the conviction did not pass on the bad-interpretation claim. Resp. Exh. E, California Court of Appeal opinion (hereinafter "Cal. Ct. App. Opinion"). The state appellate court declined to consider Cornelio's claim raised in his supplemental brief that there had been ineffective assistance of trial counsel and court interpreters: the claims "cannot be addressed on this appeal because they are based on matters outside this record." Id. at 3. In short, neither the trial court nor the appeals court passed on the bad-interpretation claim, and the state habeas court's rejection of it was without comment.
For the reasons described below, this court concludes that Cornelio has presented nothing to this court that proves or even reasonably suggests that Cornelio's stipulation was other than a "knowing, intelligent act done with sufficient awareness of the relevant circumstances and likely consequences." Adams. 968 F.2d at 844 (quoting Brady v. United States, 397 U.S. 742, 748 (1970)).
First, the court rejects Cornelio's apparent suggestion that he was completely unaware of what was going on, as though the entire criminal process was unfamiliar with him. Cornelio had considerable prior experience in the California criminal justice system. Before the 1999 proceedings, he had four felony convictions and three misdemeanor convictions. See CT 255. Some of those convictions were pursuant to guilty/nolo contendere pleas. In 1986, he pled nolo contendere to a burglary charge and signed a plea agreement form written in Spanish. See CT 110-111, 115-118. In 1987, he was convicted following a jury trial of possession of a controlled substance (cocaine).See CT 179-180. In 1988, he pled guilty to possession of a controlled substance (cocaine). See CT 184. In 1992, he pled nolo contendere to assault with a deadly weapon — again having Spanish-language documents for the plea. See CT 191-193; 203-212. Moreover, although Cornelio was born and raised in Mexico, he came to the United States in 1965 and apparently has lived here since then. See CT 122. In 1993 he wrote to the court that he was taking volunteer classes to learn English. See CT 222. And in 1992 he obtained his GED certificate. See Augmented CT 23. In light of this background, any notion that Cornelio was unfamiliar with the American justice system and criminal proceedings in general is contradicted by the record before this court. Although the current case was the first in which Cornelio drew a lengthy sentence, he was a veteran criminal defendant. And the use of interpreters and Spanish-language forms in the earlier proceedings undercuts the argument that Cornelio didn't understand those proceedings.
Second, the reporter's transcript of the proceedings dispels the notion that there was any interpretation or comprehension problem at Cornelio's slow plea. There were three different court dates on which Cornelio's plea was in consideration — his slow plea done on what was to be the first day of trial, a proceeding two days later to clarify the plea and for the court's decision on guilt, and a sentencing proceeding a couple of months later. Three different interpreters provided interpretation services for these proceedings: Certified interpreter Philip Escudero interpreted the original change of plea on January 16, 2001, Miriam Alvarez interpreted the clarification proceedings on January 18, 2001, and certified interpreter Ashley Nunez interpreted the March 16, 2001 sentencing proceedings. See RT 2, 3, 14, 23, 24. The reporter's transcript shows that Cornelio did not complain at any of the three proceedings about a lack of understanding or of any interpretation problem. Indeed, even in his federal petition he does not identify which of the interpreters allegedly provided an inadequate interpretation.
The clarification proceeding was not due to any confusion expressed by Cornelio. The prosecutor explained to the court that he and the defense counsel had discussed the waivers taken at the original proceedings two days earlier and felt that a couple of matters needed to be clarified. Specifically, the prosecutor and defense counsel wanted the court to additionally advise Cornelio that "if he does not reserve the right to present additional evidence and does not tell the Court he wishes to contest guilt, the Court must advise the defendant of the probability that he will be found guilty," and to obtain a waiver of his right to present additional evidence. RT 15-16. The court obtained the requested waivers from Cornelio. RT 16-17. And Cornelio affirmed that he was waiving his rights "after discussing this thoroughly and further with [his] attorney." RT 18. Once it obtained the waivers, the court rendered its decision on the matter submitted: guilty. RT 18-19.
Third, Cornelio's affirmative responses when the judge questioned him about waiving his rights actually were recorded by the reporter in several instances, See i.e., the transcript includes both Cornelio's utterance of "si" and the interpreter's utterance of "yes." RT 5. The court obtained the waivers of basic jury trial rights and explained what the procedure would be for a determination of his guilt by the court as well as the maximum sentence. See e.g., RT 5-6 ("Mr Cornelio, if I accept your waivers, it means that your case will be presented to me for decision as to your guilt or as to a finding of not guilty of the crimes of which you're accused. Do you understand that?"). The trial court found Cornelio's waivers knowing, intelligent and voluntary. See RT 18.
Fourth, Cornelio's assertion that an earlier head injury made him unable to intelligently comprehend the proceedings is not persuasive. Cornelio asserts that his position is supported by the testimony of clinical psychologist Alfred Fricke, who testified on behalf of the defense at the sentencing proceeding. Fricke believed that Cornelio had a "documented organic brain injury" caused by trauma to the head in about the mid-1980s, although the evaluation was clouded by Cornelio's alcoholism, i.e., Fricke could not be certain what part of the brain damage was attributable to alcoholism and what part was attributable to the trauma. Cornelio's problem was exacerbated by his alcohol consumption resulting from his alcoholism, according to Fricke. Defense counsel inquired into Cornelio's mental condition when he was not intoxicated. In response to the question "Do you see any suggestion of problems with Mr. Cornelio if there is not alcohol in his system?" Fricke responded: "Oh, he's — he's good when there's no alcohol in his system. The difficulty is that his judgment is poor, so that's why he needs to be in a — be in a facility that's supervised where he's got people around him, because he doesn't have good judgment. He doesn't actually realistically understand what's wrong with him, but other than that, he's not a danger; he's a very sweet, friendly, passive, you know, nice guy." RT 34. (Fricke agreed that some of Cornelio's crimes occurred before he had suffered the head injury, e.g., a 1978 incident in which he was driving drunk and had a loaded semi-automatic weapon. RT 44. Cornelio also acknowledged in his appellate brief that he had suffered a 1969 misdemeanor conviction for resisting arrest, and a 1981 misdemeanor DUI conviction. Resp. Exh. C, p. 13 n. 9.) Fricke testified that Cornelio had some memory deficits and "gets confused." RT 46. The gist of Fricke's testimony was that Cornelio, as a result of the head injuries, had developed an idiosyncratic reaction to alcohol consumption that made him behave particularly antisocially. In light of the fact that there was no suggestion that Cornelio had consumed alcohol on the day of his slow plea, most of what Fricke said was irrelevant to Cornelio's claim that he was not in the "right frame of mind." Traverse, p. 2. Fricke did not opine that Cornelio was unable to comprehend what had occurred in the criminal proceedings.
Cornelio has failed to show that his agreement to the stipulated facts trial was unknowing or involuntary. His conclusory allegations made after-the-fact that he did not understand what occurred at the hearing are nowhere near enough to obtain habeas relief. And he has not met the requirements for obtaining an evidentiary hearing to try to develop a factual record to support his claim at this late date. See 28 U.S.C. § 2254(e)(2); Williams (Michael) v. Taylor. 529 U.S. 420, 432, 437 (2000).
The California Supreme Court's summary rejection of Cornelio's bad-interpretation claim was neither contrary to nor an unreasonable application of United States Supreme Court precedent. See generally Fisher v. Roe, 263 F.3d 906, 914 (9th Cir. 2001) ("while we are not required to defer to a state court's decision when that court gives us nothing to defer to, we must still focus primarily on Supreme Court cases in deciding whether the state court's resolution of the case constituted an unreasonable application of clearly established federal law"). Cornelio is not entitled to the writ on this claim.
B. Ineffective Assistance of Trial and Appellate Counsel Claims
Cornelio alleges ineffective assistance of both trial and appellate counsel because during the attorney visits there was never anyone there who could translate for Cornelio, with the result that he was not aware of what was happening. Appellate Supplemental Brief at 3. He claims that neither counsel noted the unidentified "imperfections" with the trial.
A claim of ineffective assistance of counsel at the plea stage is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. See Strickland v. Washington. 466 U.S. 668.686 (1984). First, the defendant must show that counsel's performance was deficient. The defendant must show that the counsel's representation fell below an objective standard of reasonableness. See id. at 688. When a defendant and his counsel can communicate only through an intermediary, unprofessional conduct on the part of the intermediary can render counsel's assistance ineffective, even if counsel is acting in complete accordance with professional standards. Chacon v. Wood, 36 F.3d 1459, 1464. Judicial scrutiny of counsel's performance must be highly deferential, and a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.See id., at 689; Wildman v. Johnson. 261 F.3d 832, 838 (9th Cir. 2001). Second, the petitioner must establish prejudice. In the slow plea context, the prejudice prong requires the petitioner to show that there is a reasonable probability that, but for counsel's errors the petitioner would not have entered the plea and would have insisted on going to trial. Cf. Hill v. Lockhart 474 U.S. 52, 56, 57-59 (1985). (Although Hill concerned the prejudice requirement in a guilty plea case, both parties appear to apply that test to the slow plea situation present here.)
Similarly, the Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. Evitts v. Lucey. 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of appellate counsel are reviewed according to the standard set out in Strickland Miller v. Keeney. 882 F.2d 1428, 1433 (9th Cir. 1989); United States v. Birtle. 792 F.2d 846, 847 (9th Cir. 1986).
As with Cornelio's bad-interpretation claim, there is evidence in the record before the court that undermines his claim that he received ineffective assistance from either trial or appellate counsel First, Cornelio's claim lacks a common-sense appeal: it is difficult to believe that an attorney visited with him and had a conversation in which neither could understand the language the other was speaking. It is even more difficult to believe this happened with two different attorneys, although that is what Cornelio now claims.
Second, Cornelio does not actually assert that both the trial and appellate attorney did not speak Spanish. If the attorneys spoke Spanish and he could communicate with them, there would not be a constitutional concern. Alternatively, if he could speak enough English to communicate with his attorney — and he had taken classes to learn English and had obtained his GED — there would not be a constitutional concern. There is no per se requirement that an interpreter always be provided when an attorney and client communicate.
Third, Cornelio's appellate attorney indicated that she had communicated with Cornelio in correspondence and not by any personal visit, although Cornelio's claim is that there was no interpreter provided during the visits. Appellate counsel Lauretta Marie Oravitz-Komlos included a declaration with her Wende brief that explained that she had consulted with Cornelio "through correspondence and with members of his family by telephone," that she had advised them of her findings and views regarding the case, and that she had informed him of his right to file a supplemental brief. Resp. Exh. C at Declaration Of Counsel, p. 1. Cornelio did file a supplemental brief on the appeal. Resp. Exh. D. He also apparently wrote a letter requesting substitution of appellate counsel. See Resp. Exh. F at Nov. 26, 2001 letter from L. M. Oravitz-Komlos to Cornelio acknowledging receipt of his letter. This conduct indicates that Cornelio understood what was happening at the appellate stage.
Fourth, attorney Liberman, Cornelio's trial counsel, stated that he and Cornelio had discussed the immigration consequences of his plea and that Cornelio understood the consequences. RT 7-8. When the court asked "Is that true, Mr. Cornelio?" Cornelio responded "Si." RT 8. This suggests that trial counsel and Cornelio had found some way to communicate with each other.
The foregoing undermines Cornelio's claim that there was deficient performance by either appellate or trial counsel. And as to the prejudice prong, Cornelio does no better. He has not made anything but the conclusory allegation that he would have insisted on going to trial. But he does not suggest he had any defense. And he did receive a significant benefit from the slow plea choice: the district attorney agreed to strike an allegation of one of the prior serious felonies from the information, with the result that Cornelio's potential maximum sentence dropped from 35 years to life to a maximum penalty of 18 years. See Resp. Exh. C, p. 4 (Appellant's Opening Brief).
The state habeas court's denial of the claim of ineffective assistance of both trial and appellate counsel was not unreasonable. Notwithstanding his own conclusory statements, Cornelio makes no showing that he did not understand what either his trial or appellate attorneys were telling him and that he needed an interpreter. Cornelio does not adequately demonstrate that both counsels' representation fell below an objective standard of reasonableness. Without evidence of counsels' deficient performance, Cornelio fails to satisfy the first prong of theStrickland test. Cornelio also never demonstrates that, but for his trial counsels' errors, there was a reasonable probability he would not have agreed to the stipulated facts trial and would have insisted on going to a jury trial or that he would have received a better outcome on appeal. The state court's denial of Cornelio's ineffective assistance of counsel claim was not contrary to established United States Supreme Court law, or an unreasonable application of such law. Cornelio is not entitled to the writ on this claim.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.