Opinion
No. CV 18-2084-JAK (AGR)
02-17-2021
ALFONSO LOAIZA, Petitioner, v. SCOTT KERNAN, et al., Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
The Court submits this Report and Recommendation to the Honorable John Kronstadt, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the United States District Court for the Central District of California. For the reasons set forth below, the court recommends that the Petition for Writ of Habeas Corpus be denied.
I.
SUMMARY OF PROCEEDINGS
On May 23, 2014, a Los Angeles County Superior Court jury found Petitioner guilty of four counts of perjury. (Lodged Document ("LD") 1 at 35-38.) Petitioner was sentenced to thirteen years in state prison. (LD 1 at 80.)
The California Court of Appeal reduced the fines and otherwise affirmed the judgment on February 16, 2016. (LD 7.) The California Supreme Court denied the petition for review on May 11, 2016. (LD 9.)
On November 18, 2016, the Superior Court denied a state habeas petition. (LD 11.) On January 11, 2017, the California Court of Appeal summarily denied a state habeas petition. (LD 14.) On March 15, 2017, the California Supreme Court summarily denied the petition for review. (LD 19.)
On March 13, 2018, Petitioner, who is represented by counsel, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) Respondent filed an answer. (Dkt. No. 11.) Petitioner filed a reply. (Dkt. No. 13.)
II.
STATEMENT OF FACTS
A. Underlying Offenses
The California Court of Appeal set forth the following facts in its decision on direct appeal. To the extent an evaluation of Petitioner's claim for relief depends on an examination of the record, this Court has made an independent evaluation of the record specific to Petitioner's claim for relief.
[Petitioner] was charged with falsely declaring under penalty of perjury on four separate applications to the Department of Motor Vehicles (DMV), submitted between July 19, 2005 and October 11, 2006, that he had not applied for a driver's license or identification card in California or any other state or country using a different name within the past 10 years. In fact, on January 7, 1997, February 23,
1998, June 16, 1998, March 16, 2000 and September 12, 2000 [Petitioner] had applied for either a California driver's license or identification card using aliases. In addition, prior to the 10-year period—in September 1993, July 1994 and July 1995—[Petitioner] had filed additional applications with the DMV using false names and addresses. The People presented DMV manager Anna Recalde, in part as an expert witness, who explained the procedures used by the DMV to process license and identification card applications and established through [Recalde's] testimony, exhibits (authenticated copies of the various applications) and stipulation that [Petitioner] had actually submitted the applications at issue in the four counts of perjury, signed under penalty of perjury, as well as the earlier applications using false names.
[Petitioner] testified on his own behalf. He admitted he had submitted applications to the DMV using aliases in the past. However, when he signed the 2005 and 2006 applications, which used his own name and social security number and stated under penalty of perjury that he had not used a different name on a DMV application within 10 years, he thought the statement was true because he believed the earlier applications had been made more than 10 years earlier.
During his testimony [Petitioner] admitted he had pleaded guilty to assault with a deadly weapon in 2000 as part of a negotiated agreement that included dismissal of charges of perjury regarding several of his earlier DMV applications. He also acknowledged he had been convicted of possession of marijuana for sale in 2000. He was released from prison in 2005, shortly before the first of the DMV applications at issue in the current trial. [Petitioner] also admitted he had pleaded no contest to a charge of burglary in 2007 and had failed to appear at a pretrial hearing in this case while released on bail and had been a fugitive for three and one-half years before being apprehended. He explained he had appeared in court while on bail a number of times (13 according to a stipulation entered after his testimony), but did not
appear at the pretrial hearing because he did not want to go back to prison for something he did not do.(LD 7 at 2-3.)
B. Plea Discussions at Pretrial Hearing
At the pretrial hearing, counsel described plea discussions on the record. Mr. Markey was defense counsel and Ms. Lebowitz was the prosecutor.
THE COURT: I ALSO UNDERSTAND THAT THIS CASE HAS SORT OF RUN ITS SETTLEMENT COURSE.
MR. MARKEY: YES.
MS. LEBOWITZ: THERE NEVER WAS A COURSE, YOUR HONOR.
MR. MARKEY: IT WAS A VERY SHORT COURSE, ANYWAY.
MS. LEBOWITZ: WE WERE VERY FAR APART.
THE COURT: OKAY. LET ME JUST SAY A COUPLE WORDS ABOUT THIS, AND THEN WE'LL MOVE ON. BY THE TIME IT GETS TO MY COURT, IT HAD TO GO THROUGH CERTAIN HOOPS, YOU KNOW. THE JUDGE IN ITS ORIGINAL TRIAL COURT, JUDGE LYONS, HOPEFULLY WOULD HAVE HAD SOME DISCUSSIONS OR AT LEAST ACKNOWLEDGED THAT THE PARTIES WERE DISCUSSING SETTLEMENT, THOUGH THOSE COURTS CAN GET BUSY. AND JUDGE NASH IS ALWAYS AVAILABLE TO TRY TO SEE IF A CASE CAN BE SETTLED PRIOR TO TRIAL, BECAUSE FOR MR. LOAIZA TO KNOW THAT IF HE'S LOOKING AT 15 OR 16 YEARS IN PRISON AND WHATEVER HE IS OFFERED IS HALF OF THAT OR LESS, IT'S ALWAYS SOMETHING TO SERIOUSLY CONSIDER, UNLESS, OF COURSE, THERE ARE SOME CLEAR TRIABLE ISSUES THAT REASONABLE LAWYERS WOULD KNOW MIGHT HAVE AN IMPACT ON THE TRIAL, IN WHICH CASE WE JUST HAVE THE TRIAL. BUT SO MANY CASES SETTLE THAT COME TO ME IN THAT FORM THAT I OFTEN WONDER, BECAUSE JURORS ARE GOING TO LISTEN TO THIS EVIDENCE AND MAKE A DECISION AND HE'S GOT A STRIKE, HE'S GOT STATE PRISON PRIORS. THOSE PRIORS AGGRAVATE ANY KIND OF SENTENCE SHOULD HE BE CONVICTED OF EVEN ONE OF THE FOUR COUNTS. AND I DON'T KNOW WHAT YOUR EXPERIENCE LEVEL IS, AND I DO A LOT OF GUESSWORK. AND I TRUST THE LAWYERS KNOW WHAT THEY'RE DOING AND A DEFENDANT WHO UNDERSTANDS THE RAMIFICATIONS OF GOING TO TRIAL SHOULD HE LOSE AND KNOWS CLEARLY WHAT THE OFFER WAS AND HAS REJECTED IT AND THERE'S NOTHING CLOSE TO THE OFFER TO DISCUSS, THEN MY JOB WOULD HAVE BEEN DONE THERE BECAUSE ALL OF THOSE ASPECTS OF THE SETTLEMENT DISCUSSIONS WOULD HAVE BEEN KNOWN TO YOUR CLIENT. SO WITH THAT IN MIND, HAS THERE BEEN A CLEAR UNDERSTANDING OF WHAT THE PEOPLE'S OFFER WAS?
MR. MARKEY: I BELIEVE SO. WE'VE DISCUSSED THE
OFFER. WE'VE DISCUSSED DEFENSES. AND AT THIS POINT THERE IS NOTHING CLOSE TO 8 YEARS THAT WE'D BE WILLING TO ACCEPT. THE OFFER WE MADE WAS ONE YEAR COUNTY JAIL. AND WE THINK THERE ARE ISSUES, SERIOUS ISSUES, WITH THE PEOPLE'S CASE AND SO WE'RE READY TO GO.
THE COURT: OKAY. IS ALL OF THAT CORRECT, MR. LOAIZA?
THE DEFENDANT: YEAH.
THE COURT: BECAUSE, AS MUCH AS YOUR ATTORNEY SAYS THIS, WHICH IS FINE, THIS HAS TO BE YOUR DECISION. AND IF YOU WANT TO GO TO TRIAL, THAT'S FINE. BUT IF YOU HAVE ANY DESIRE TO SETTLE YOUR CASE, AND COUNTY JAIL IS SO FAR FROM THE OFFER THAT NO REASONABLE PROSECUTOR IS GOING TO ACCEPT THAT COUNTER-OFFER, BUT IF THERE IS SOME MIDDLE GROUND THAT THE TWO SIDES CAN AGREE ON, THEN THIS IS THE TIME TO DO IT, IF NOT TOO LATE. SO IF YOU'VE ALREADY THOUGHT ABOUT THIS AND ONE YEAR IS YOUR COUNTER-OFFER AND YOU KNOW THAT THEY'VE OFFERED 8 YEARS AND YOU'VE REJECTED THAT AND YOU'VE HAD ENOUGH TIME TO DISCUSS THAT WITH YOUR ATTORNEY AND YOU KNOW THAT YOU COULD DO 15 OR 16 YEARS IF YOU DO GET CONVICTED, DO YOU UNDERSTAND ALL OF THAT?
THE DEFENDANT: YES.
THE COURT: YES?
THE DEFENDANT: YEAH.
THE COURT: OKAY. DID YOU DECIDE ON YOUR OWN TO REJECT THE PEOPLE'S OFFER?
THE DEFENDANT: YES.
THE COURT: DO YOU HAVE ANY OTHER KIND OF COUNTER-OFFER THAT YOU WANT TO OFFER BEFORE WE START TRIAL THAT'S DIFFERENT THAN THE ONE YEAR THAT YOUR ATTORNEY MENTIONED HAS BEEN THE COUNTER-OFFER?
THE DEFENDANT: NO. I THINK A YEAR IS FINE.
(DISCUSSION BETWEEN MR. MARKEY AND THE DEFENDANT, SOTTO VOCE.)
MR. MARKEY: WE'VE HAD A CHANCE TO DISCUSS IT, YOUR HONOR.
THE COURT: OKAY. IS THERE ANY KIND OF COUNTER-OFFER THAT YOU WANT TO MAKE BEFORE WE DECIDE TO MOVE THE CASE FORWARD TO TRIAL?
THE DEFENDANT: NO, I GUESS NOT.
THE COURT: PARDON ME?
THE DEFENDANT: I THINK A YEAR IS A LOT, TOO, BUT I'LL TAKE A YEAR.(2RT (Reporter's Transcript) at A7-A11, LD 3.)
THE COURT: OKAY. ALL RIGHT. SO YOU UNDERSTAND WHAT THEIR OFFER WAS, WHICH WAS A LOT HIGHER THAN THAT?
THE DEFENDANT: YEAH.
THE COURT: AND YOU'VE REJECTED THAT OFFER?
THE DEFENDANT: YES.
THE COURT: OKAY. ALL RIGHT. AND THE PEOPLE HAVE REJECTED THE ONE-YEAR COUNTER-OFFER?
MS. LEBOWITZ: YES, YOUR HONOR.
THE COURT: ALL RIGHT. THEN WE WILL START TRIAL AT 10:30 TOMORROW.
C. State Court Proceedings on Petitioner's Claim of Ineffective Assistance of Counsel During Plea Negotiations
Petitioner filed a state habeas petition in the Superior Court and argued ineffective assistance of counsel during pretrial plea negotiations. (LD 11.)
Petitioner submitted a handwritten letter that he had initially submitted for sentencing. Petitioner wrote, "I admit my guilt and I am truly sorry for what I've done. I know I must pay for my wrongs. The reason I took the case to trial was because I felt that the prosecutions offer was too high for a non-violent offense. I took a chance that you would be more fair in the sentencing." (LD 2 at 17; Dkt. No. 12-15 at 50 (clearer copy.)
Petitioner submitted a declaration stating that defense counsel informed him "there was very little to worry about because I had simply made a mistake when I said that I had not applied under a different name within the last ten years." (LD 13, Dkt. No. 12-15 at 7 ¶ 3.) Defense counsel advised that "as long as I believe what I said on the applications was true, which I did, I could not be convicted of perjury. [Defense counsel] said that the prosecution's case was weak, and that even if I was convicted I would only be sentenced to 12-18 months." (Id.) At the hearing, Petitioner was confused because it was the first time he recalled hearing that he could face a sentence of sixteen years if convicted. (Id. at 7-8 ¶ 4.) Defense counsel assured him that "the prosecution's case was weak, and that realistically even if convicted the sentence would be 12-18 months on a non-violent offense like perjury, and I refused to raise my offer beyond the one year in county jail." (Id. at 8 ¶ 4.) Had Petitioner "known that the prosecution's case was actually quite strong, and that there was a very good chance that I would be convicted on all four counts and be facing a sentence of fifteen years, I would have raised my offer and agreed to more time in an effort to negotiate with the prosecution. Ultimately, if the prosecution refused to make a better offer, I would have agreed to the eight year plea bargain being offered by the prosecution." (Id. ¶ 5.)
Petitioner submitted a declaration from Mia Yamamoto, a criminal defense attorney. (LD 13, Exh. B, Dkt. No. 12-15 at 11-13.) Yamamoto opined that counsel's representation was inadequate for the following reasons: (1) counsel stated to the court that there were serious issues with the People's case but failed to show what those issues were; (2) counsel failed to investigate or prepare for the case because "the only pretrial defense document cited in the record is a list identifying six character witnesses, but when the prosecutor [called] for witness statements, [defense counsel] stated there were no witnesses;" (3) counsel failed during critical stages of the trial by stipulating to most of the prosecution's evidence, failing to establish that Petitioner was a changed man, and asking the jury to apply the adage, "To err is human, and forgiveness is divine" during closing arguments;" and (4) there was no evidence that meaningful plea negotiations, which "would include a comprehensive conversation between defense and prosecution, ever having taken place in this case." (Id. at 12-13 ¶¶ 8-14.)
On November 18, 2016, the Superior Court denied Petitioner's claim of ineffective assistance of counsel during plea negotiations. (LD 11.) The Court concluded that Petitioner "[failed] to show the existence of an issue with a reasonable potential for success in support of his claim of ineffective assistance of counsel." (Id. at 5.)
A review of Petitioner's entire proffer, including attached exhibits, undermines any claim of ineffective assistance of counsel or any prejudice claimed to have been caused thereby. Advice by counsel regarding the strength of the prosecution's case, Petitioner's prospects for acquittal, or his potential sentence if convicted will not, without more give rise to such claim. Moreover, any alleged misstatement about the plea offer and potential sentencing exposure were effectively cured by the trial court's comprehensive explanation and Petitioner's acknowledged understanding of his options and the potential consequences of his choices. The declaration of Mia Yamamoto contains no specifics about what trial counsel failed to investigate before advising Petitioner in pretrial negotiations. Her conclusion that there is 'no evidence of any meaningful plea negotiations, which would involve a comprehensive conversation between defense and prosecution, ever having taken place in this case' is speculative. Finally, any claims are further undermined by Petitioner's own written statement to the court, submitted after the jury's verdicts, explaining why he rejected the pretrial offer - that he believed the prosecution's offer was simply too high and that he hoped the sentencing court would give him a lower sentence if convicted for what he believed were non-violent felonies."
(LD 11 at 5-6.) The California Court of Appeal summarily denied a state habeas petition. (LD 14.) The California Supreme Court denied review. (LD 19.)
III.
STANDARD OF REVIEW
A federal court may not grant a petition for writ of habeas corpus by a person in state custody with respect to any claim that was adjudicated on the merits in state court unless it (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); Harrington v. Richter, 562 U.S. 86, 98 (2011).
"'[C]learly established Federal law' . . . is the governing legal principle or principles set forth by the Supreme Court at the time the state court rendered its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003); see Greene v. Fisher, 565 U.S. 34, 40 (2011) (examining Supreme Court precedent as of the date of the last state court decision on the merits of the claim). Clearly established federal law includes only the holdings, as opposed to the dicta, of Supreme Court decisions. White v. Woodall, 572 U.S. 415, 419 (2014).
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. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (citation omitted). A state court's decision cannot be contrary to clearly established Federal law if there is a lack of holdings from the Supreme Court on a particular issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).
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." Andrade, 538 U.S. at 76; see also Rompilla v. Beard, 545 U.S. 374, 380 (2005) ("An 'unreasonable application' occurs when a state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of petitioner's case.") (citation and some quotation marks omitted).
"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). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted).
"Under § 2254(d), a habeas court must determine what arguments or theories supported or, [in the case of an unexplained denial on the merits], 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 [Supreme] Court." Richter, 562 U.S. at 102. "[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.
"Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2)." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
In applying these standards, this court looks to the last reasoned state court decision. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see also Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). If no such reasoned opinion exists, as when a state court rejects a claim without explanation, this court must conduct an independent review to determine whether the decisions were contrary to, or involved an unreasonable application of, "clearly established" Supreme Court precedent. Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013). If the state court declined to decide a federal constitutional claim on the merits, this court must consider that claim under a de novo standard of review rather than the more deferential "independent review" of unexplained decisions on the merits. Cone v. Bell, 556 U.S. 449, 472 (2009); see also Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004).
IV.
INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner alleges a single ground of relief. Petitioner contends that Mr. Markey failed to properly advise him during plea negotiations. Had he been properly advised, he would have tried to negotiate a better plea deal and, if he could not do better, would have accepted the plea deal rather than go to trial. (Petition at 3.)
The court refers to Mr. Markey by name because Petitioner was represented by two lawyers at trial. The other attorney was Mr. Osborne, who made the opening statement, called Petitioner as a witness, and made the closing argument. (2RT at 1-2, 312, 607-08, 657.) There is no record of what Mr. Osborne advised, if anything, about plea discussions. Compare Clark v. Chappell, 936 F.3d 944, 969 (9th Cir. 2019), as amended, 948 F.3d 1172 (2020).
A. Legal Standards
To succeed on a claim of ineffective assistance of counsel, Petitioner must demonstrate that his attorney's performance was deficient and that the deficiency prejudiced the defense. Wiggins, 539 U.S. at 521; Strickland v. Washington, 466 U.S. 668, 687 (1984). Petitioner bears the burden of establishing both components. Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Smith v. Robbins, 528 U.S. 259, 285-86, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
The Sixth Amendment right to counsel extends to the plea bargaining process. Lafler v. Cooper, 566 U.S. 156, 162 (2012). "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Id. at 168. The Supreme Court has declined to define further the defense counsel's duties in the plea bargain process. Missouri v. Frye, 566 U.S. 134, 145 (2012); Lafler, 566 U.S. at 163, 166 (assuming deficient advice based on parties' agreement).
A court must apply a "'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance." Strickland, 466 U.S. at 689 (citation omitted). "Plea bargains are the result of complex negotiations suffused with uncertainty, and defense attorneys must make careful strategic choices in balancing opportunities and risks." Premo v. Moore, 562 U.S. 115, 124 (2011). "[A]n erroneous strategic prediction about the outcome of a trial is not necessarily deficient performance." Lafler, 566 U.S. at 174. Strict adherence to Strickland is "essential when reviewing the choices an attorney made at the plea bargain stage." Premo, 562 U.S. at 125.
To establish prejudice, a petitioner must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. According to the Supreme Court, "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. Instead, Strickland asks whether it is 'reasonably likely' the result would have been different." Richter, 562 U.S. at 111. (citation and some quotation marks omitted). "The likelihood of a different result must be substantial, not just conceivable." Id. at 112.
When, as here, the petitioner claims that deficient advice led him to reject a plea offer, the petitioner "must show the outcome of the plea process would have been different with competent advice." Lafler, 566 U.S. at 163. The petitioner "must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." Id. at 164.
A court need not address both deficiency and prejudice if a petitioner makes an insufficient showing on one. Strickland, 466 U.S. at 697. "The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 131 S. Ct. at 788.
B. Analysis
The Court will look through the summary denials and consider the last reasoned decision from the Superior Court. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
Petitioner contends that the state court's decision was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1). Petitioner alleges that the Superior Court erred in relying on the California Supreme Court's decision in In re Alvernaz, 2 Cal. 4th 924 (1992). In Alvernaz, the California Supreme Court applied Strickland and noted "the ease with which a defendant, after trial, may claim that he or she received inaccurate information from counsel concerning the consequences of rejecting an offered plea bargain." Id. at 938. Petitioner challenges the following sentence: "In this context, a defendant's self-serving statement - after trial, conviction, and sentence - that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant's burden of proof as to prejudice, and must be corroborated independently by objective evidence." Id. The Court stated that a "contrary holding would lead to an unchecked flow of easily fabricated claims." Id. The Court cited the reasoning in a Sixth Circuit decision. Id. at 939 (citing Turner v. State of Tenn., 858 F.2d 1201, 1206-07 (6th Cir. 1988)).
Petitioner has not shown that the state court's decision was contrary to Supreme Court precedent. The Superior Court correctly stated the legal standard as requiring Petitioner to show "a reasonable probability that, with effective representation, he or she would have accepted the proffered plea bargain." (LD 11 at 4.) The Supreme Court has not addressed the question of whether a self-serving declaration alone can establish the requisite prejudice. A state court's decision cannot be contrary to clearly established federal law when there is a lack of holdings from the Supreme Court on an issue. Carey, 549 U.S. at 77; see Nunes v. Mueller, 350 F.3d 1045, 1053 (9th Cir. 2003) (rejecting argument that state court decision relying on Alvernaz was contrary to Supreme Court precedent); see also Perez v. Rosario, 459 F.3d 943, 947 n.2, 952-53 (9th Cir. 2012) (leaving open Alvernaz question; evaluating petitioner's implausible declarations); Turner v. Calderon, 281 F.3d 851, 881 (9th Cir. 2002) ("If the rule were otherwise, every rejection of a plea offer, viewed perhaps with more clarity in the light of an unfavorable verdict, could be relitigated upon the defendant's later claim that had his counsel better advised him, he would have accepted the plea offer."); see also Lafler, 566 U.S. at 172 ("prosecution and trial courts may adopt some measures to help ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction").
The declarations submitted by Petitioner and Mr. Markey conflict as to what counsel advised. This court assumes deficient advice and examines the issue of prejudice.
Petitioner alternatively contends that the state court's decision was an unreasonable application of Supreme Court precedent. The state court found no reasonable probability that, with effective representation, Petitioner would have accepted the proffered plea bargain. The court reasoned that any alleged misstatements by defense counsel about the plea offer and potential sentencing exposure "were effectively cured by the trial court's comprehensive explanation and Petitioner's acknowledged understanding of his options and the potential consequences of his choices." (LD 11 at 5.) Petitioner's claim was "undermined by Petitioner's own written statement to the court, submitted after the jury's verdicts, explaining why he rejected the pretrial offer - that he believed the prosecution's offer was simply too high and that he hoped the sentencing court would give him a lower sentence if convicted for what he believed were non-violent felonies." (Id. at 6.) The court found that Ms. Yamamoto's opinion that there was no evidence of meaningful plea negotiation was speculative. (Id. at 5-6.)
The state court's decision was not an unreasonable application of Supreme Court precedent. "Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977). At the pretrial hearing on May 19, 2014, the trial judge ensured on the record that Petitioner understood his maximum sentence exposure and the prosecution's offer, and that the decision whether to accept, reject or make a counteroffer was his decision. The trial judge told Petitioner that "he's looking at 15 or 16 years in prison" and that the prosecution's offer "is half that or less," which is "always something to consider, unless, of course, there are some clear triable issues that reasonable lawyers would know might have an impact on the trial." (2RT at A-7:17-23.) The trial judge asked, "has there been a clear understanding of what the People's offer was?" (Id. at A-8:10-11.) Mr. Markey responded that they had discussed the offer and defenses. "[A]t this point there is nothing close to 8 years that we'd be willing to accept" and the "offer we made was one year county jail." Defense counsel added that "we think there are issues, serious issues, with the People's case." (Id. at A-8:12-17.) The trial judge asked Petitioner, "is all of that correct, Mr. Loaiza?" Petitioner responded, "Yeah." (Id. at A-8:18-20.) The trial judge told Petitioner that "this has to be your decision" and "if there is some middle ground that the two sides can agree on, then this is the time to do it, if not too late." (Id. at A-8:22-28.) The trial judge again confirmed that Petitioner understood his counteroffer was one year, he had rejected the prosecution's offer of 8 years, and "you know that you could do 15 or 16 years if you do get convicted, do you understand all of that?" Petitioner responded, "Yes." The trial judged asked again, "Yes?" Petitioner responded again, "Yeah." (Id. at A-9:1-9.) The trial judged confirmed that Petitioner decided on his own to reject the prosecution's offer. (Id. at A-9:10-12.)
At that point Mr. Markey had represented Petitioner as private counsel for two months. (2RT A-13; LD 1 at 21.) The prior history of Petitioner's case is discussed below.
The trial judge specifically asked: "Do you have any other kind of counter-offer that you want to offer before we start trial that's different than the one year that your attorney mentioned has been the counter-offer?" Petitioner answered "No. I think a year is fine." (Id. at A-9:13-17.) Petitioner and Mr. Markey then conferred off the record. Mr. Markey stated that they had a chance to discuss the issue. Petitioner said: "I think a year is a lot, too, but I'll take a year." (Id. at A-9:19 to A-10:2.) The trial judge confirmed again that Petitioner rejected the prosecution's offer, and the prosecution rejected the one year counteroffer. The trial judge announced that trial would start the next day. (Id. at A-10:3-12.) As the Superior Court noted, Petitioner's letter to the court dated July 14, 2014 after the verdict and before sentencing stated: "The reason I took the case to trial was because I felt that the prosecution[']s offer was too high for a non-violent offense. I took a chance that you would be more fair in the sentencing." (Dkt. No. 12-15 at 50.)
Petitioner argues that he later submitted a declaration dated April 5, 2016 that stated: "If I had known that the prosecution's case was actually quite strong, and that there was a very good chance that I would be convicted on all four counts and [would] be facing a sentence of fifteen years, I would have raised my offer and agreed to more time in an effort to negotiate with the prosecution. Ultimately, if the prosecution refused to make a better offer, I would have agreed to the eight year plea bargain being offered by the prosecution." (Dkt. No. 12-15 at 8 ¶ 5.) Petitioner's declaration acknowledges that the court stated he faced a sentence of 15 or 16 years if convicted, but says that "I was confused because this was the first time I recall hearing that I could possibly be facing a sentence anywhere near that long." (Id. at 7-8 ¶ 4.)
The Supreme Court stated that "an erroneous strategic prediction about the outcome of a trial is not necessarily deficient performance." Lafler, 566 U.S. at 174. According to Petitioner, Mr. Markey told him "there was very little to worry about because I had simply made a mistake when I said that I had not applied under a different name within the last ten years. According to Markey, as long as I believe what I said on the applications was true, which I did, I could not be convicted of perjury. Markey said that the prosecution's case was weak . . . ." (Dkt. No. 12-15 at 7 ¶ 3.) Mr. Markey's advice paraphrased the jury instruction on perjury that states, in pertinent part: "If the defendant actually believed that the statement was true, the defendant is not guilty of this crime even if the defendant's belief was mistaken." (3RT 681.) The oldest driver's license application that formed the basis of a perjury count was submitted on July 19, 2005. (2RT 407.) Petitioner testified at trial that he believed his answer to the question at issue was true because he thought that his earlier applications had been submitted in the early 1990s. He was mistaken. (3RT 611-13, 627.) The prosecution did not dispute that his first three applications were in fact submitted in 1993-1995, more than 10 years before July 19, 2005. (2RT 420-22.) Applications were also submitted in 1998 and 2000, which were within the 10-year period. (2RT 402-05.) Petitioner's declaration does not show that defense counsel gave him an incorrect statement of the law or a defense that had no factual basis. See McMann v. Richardson, 397 U.S. 759, 771 (1970) (noting, in context of intelligent plea, that issue depends "not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases"); Turner, 281 F.3d at 881 ("That counsel and [Petitioner] chose to proceed to trial based on counsel's defense strategy and presumably sincere prediction that the jury would not award a sentence of death, does not demonstrate that [Petitioner] was not fully advised of his options. Trial counsel was not constitutionally defective because he lacked a crystal ball.").
The jury instruction on witness credibility also states: "People sometimes honestly forget things or make mistakes about what they remember." (3RT 674.)
With respect to the sentence Petitioner faced if he were convicted, the reporter's transcript of the hearing makes clear that Petitioner confirmed three times that he understood he faced a sentence of 15 or 16 years if convicted before rejecting the prosecution's offer and declining to raise his counteroffer. Petitioner's April 5, 2016 declaration does not dispute this fact and confirms that he was charged with four counts of perjury with a prior strike conviction and two prison priors. (Dkt. No. 12-15 at 6-7 ¶ 2.) The declaration claims that Mr. Markey advised that "even if I was convicted I would only be sentenced to 12-18 months." (Dkt. No. 12-15 at 7 ¶ 3.) The state court reasonably concluded that any misstatements by counsel as to Petitioner's sentencing exposure was cured by the trial court. Not only did Petitioner face four counts of perjury, but the reporter's transcript of the hearing on May 19, 2014 indicates the trial judge referenced that "he's got a strike, he's got prison priors. Those priors aggravate any kind of sentence should he be convicted of even one of the four counts." (2RT A-7 to A-8.) The trial judge twice told Petitioner that he faced 15 or 16 years in prison if convicted. (2RT at A-7:17-23, A-9:1-9.) At no point did Mr. Markey or Petitioner disagree, or express confusion, on the record with the judge's calculation. The very next day, before jury selection, Petitioner admitted the prior strike and two prison priors, and acknowledged that the prior strike would double any sentence imposed and the prison priors would add one year on top of any sentence imposed. (2RT 5-6; 2RT 4-10.) The state court reasonably concluded that Petitioner made his decision to reject the prosecution's offer and to decline to make a counteroffer of more than one year with knowledge of his maximum exposure.
Mr. Markey disputes that he gave such advice. The term of imprisonment for conviction on one count of perjury is 2, 3 or 4 years, before taking into account any strike priors or prison priors. Cal. Penal Code § 126. --------
Petitioner argues that the state court's conclusion is an unreasonable determination of the facts because Mr. Markey falsely reassured Petitioner during the hearing that Petitioner's sentence would be 12-18 months. This argument is without merit. Petitioner does not deny knowing his maximum sentence exposure and does not state that he somehow disbelieved the trial judge, who would be the person imposing sentence if he were convicted. See Sanchez v. Pfeiffer, 745 Fed. Appx. 703, 706 (9th Cir. 2018) ("It is undisputed that [Petitioner] knew his potential exposure was a life sentence. His self-serving statement that his trial counsel advised him otherwise does not create a constitutional infirmity.").
Petitioner further argues that the Superior Court unreasonably discounted Ms. Yamamoto's declaration. Ms. Yamamoto stated, in pertinent part, that "[t]here is no evidence of any meaningful plea negotiations, which would involve a comprehensive conversation between defense and prosecution, ever having taken place in this case." (Dkt. No. 12-15 at 13 ¶ 13.) Petitioner made his first appearance on February 1, 2010. (LD 1 at 1.) The case was set for trial on May 5, 2010 and continued several times to June 29, 2010. (Id. at 11, 14.) Mr. Blatt was private counsel for Petitioner. (2RT 627.) On June 29, 2010, the court granted the defense motion to continue the trial "for possible disposition" and stated no further continuances would be granted. (LD 1 at 14.) Nevertheless, on July 12, 2020, the court granted a defense motion to continue the trial "to enable defense counsel to have further discussion with head deputy district attorney regarding possible disposition." (Id. at 15.) On July 16, 2010, the court again granted a defense motion to continue "for possible disposition." (Id. at 16.) On July 22, 2010, Petitioner failed to appear at trial and a bench warrant was issued. (Id. at 17.) Petitioner apparently fled to Washington and was not located until February 2014. (2RT 626; 3RT 1510-11.) At trial, Petitioner testified that he "took off" because he did not want to go back to prison for something he did not do. (2RT 627-28.) Mr. Markey appeared as private counsel for Petitioner for the first time on March 14, 2014. (LD 1 at 21.) The plea negotiations that occurred after that point are discussed above to the extent they are disclosed on the record in May 2014. The state court reasonably concluded that Ms. Yamamoto's opinion was speculative. In any event, Ms. Yamamoto's declaration does not go to the question of prejudice.
Finally, Petitioner contends that the state court's decision "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)(2). Petitioner must show that the state court's decision was premised on a finding of fact that was objectively unreasonable. Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). "A state court's decision not to hold an evidentiary hearing does not render its fact-finding process unreasonable so long as the state court could have reasonably concluded that the evidence already adduced was sufficient to resolve the factual question." Id. at 1147; Perez, 459 F.3d at 950 (evidentiary hearings "are unnecessary where the allegations are said to be incredible in light of the record, or, which is much the same thing, when the record already before the court is said to establish a fact conclusively").
Although not sufficient, a federal habeas court may begin by analyzing whether it would be required to hold an evidentiary hearing. On federal habeas review, no evidentiary hearing is required when "the record refutes the applicant's factual allegations or otherwise precludes habeas relief." Schriro v. Landrigan, 550 U.S. at 474. For the reasons discussed above, the record demonstrates that, at the time Petitioner made a decision about whether to accept the prosecution's plea offer or increase his own counteroffer, Petitioner was aware of his maximum sentencing exposure. Even assuming Mr. Markey predicted that Petitioner would not be convicted for being mistaken and/or advised that the prosecution's case was weak, federal habeas relief is not available.
For these reasons, Petitioner has not shown a reasonable probability that the "outcome of the plea process would have been different with competent advice." Lafler, 566 U.S. at 163. The state court's decision was not an unreasonable application of Supreme Court precedent and was not an unreasonable determination of the facts.
V.
RECOMMENDATION
For the reasons discussed above, it is recommended that the district court issue an order (1) accepting this Report's findings and recommendation, and (2) directing that judgment be entered denying the Petition and dismissing the action with prejudice. DATED: February 17, 2021
/s/_________
ALICIA G. ROSENBERG
United States Magistrate Judge