Opinion
No. 2:13-cv-2407 JAM DAD P
04-13-2015
TERA LEE NICHOLSON, Petitioner, v. D. K. JOHNSON, Respondent.
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against her on May 31, 2012, in the Sacramento County Superior Court pursuant to a plea agreement under the terms of which she entered a no contest plea. As a result of her plea, petitioner was convicted of causing bodily injury to another person while driving under the influence of alcohol, in violation of California Vehicle Code § 23153(b), with sentencing enhancements for causing bodily injury to more than one victim and causing great bodily injury to one victim, pursuant to California Vehicle Code § 23558 and California Penal Code § 12022.7(a). Petitioner seeks federal habeas relief on the following grounds: (1) the trial court abused its discretion in denying her motion to withdraw her no contest plea in light of the evidence presented in support of that motion, thereby violating her rights under the 6th and 14th Amendment rights; (2) she received ineffective assistance in connection with the entry of her no contest plea due to her counsel's failure to conduct an investigation, thereby violating her rights under the 6th and 14th Amendment rights; and (3) she is actually innocent of the crimes of which she was convicted. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
I. Background
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
Defendant Tera Lee Nicholson pled no contest to unlawfully driving under the influence of alcohol and the enhancements of causing bodily injury to more than one victim and causing great bodily injury to one victim. Before sentencing, defendant moved to withdraw her plea. The court denied her motion and sentenced her to seven years four months in prison. On appeal, defendant contends the court abused its discretion by denying her motion to withdraw her plea because her prior counsel was constitutionally ineffective. Disagreeing, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2012, emergency personnel responded to a car crash at Folsom Lake Bowl. When they arrived, they found a severely damaged car inside the patio area. The police found defendant next to the driver's door and noticed a "strong odor of an alcoholic beverage." Defendant told the officers she was driving and admitted she had been drinking.
Defendant was charged with driving under the influence of alcohol. It was further alleged that she caused bodily injury to more than one victim and that she caused great bodily injury to one victim. Following two public defenders, John Casey (hereafter prior counsel) was substituted in as defense counsel. With prior counsel's assistance, defendant accepted a no contest plea agreement and the matter was referred to the Sacramento County Probation Department. Defendant admitted to the probation officer she was driving the car the night of the accident.
On the day of her sentencing hearing, defendant - represented by new counsel Donald Masuda - moved to withdraw her plea. Defendant contended that prior counsel was constitutionally ineffective for failing to adequately investigate her case. She argued that further investigation was warranted because: (1) "[i]mmediately after the incident, officers were unable to locate any witness who saw [defendant] operating the Mustang"; (2) the one victim who identified defendant as the driver was purportedly a drug user and did not make an identification until a month after the incident; (3) defendant owned a Droid X cell phone at the time of
the accident, not a Nokia phone, which is what was found in the center console of the vehicle; (4) the driver's seat air bag deployed fine white powder and there was no report of any white powder on defendant or her personal belongings; and (5) she did not sustain injuries consistent with what would be expected in an air bag deployment. Defendant filed her own personal declaration and declarations of others to support these claims.People v. Nicholson, No. C071918, 2013 WL 3209465, at **1-2 (Cal. App. 3 Dist. June 25, 2013).
Defendant's declarations also included the following assertions: she had asked prior counsel to conduct an investigation, he initially assured her he would investigate the possibility that someone else was driving her car that night, and after the plea she found out no investigation had been made. Defendant "told [prior counsel] specifically that the phone found in the [car] was not [hers]" and that, prior to entering her plea, prior counsel told her the results of the investigation "did not point to someone else driving that night," which was why she decided to take the plea agreement. Prior counsel advised her to tell the probation officer she was driving the car to demonstrate remorse.
In opposition, the People submitted declarations of prior counsel. He declared that defendant was upset by the length of her prison term but never gave a substantive reason for why. Before he was retained, he advised defendant it was unlikely that he would be able to secure a better offer. After he was retained, the prosecutor emailed him that if defendant did not take the current plea, the prosecutor would add further enhancement allegations. He met with defendant and explained the best choice for her was to pursue mitigation material. Later that month, he unsuccessfully asked the court and prosecutor for a lower sentence. Defendant was emotional when he was telling her this, and he "reminded her . . . she did not have to accept the offer if she didn't want to." Defendant never told him she doubted she was the driver or that the cell phone was not hers. He never told defendant he would investigate whether someone else was driving the car or that an investigation had actually occurred. He did not instruct defendant to tell the probation officer she was driving.
The court denied defendant's motion to withdraw her plea, finding that "[t]o the extent disputes or conflicting statements exist between the declarations of the defendant and those of [prior counsel], I credit [prior counsel]'s statements."
After the California Court of Appeal affirmed her judgment of conviction, petitioner filed a petition for review in the California Supreme Court. (Resp't's Lod. Doc. 5.) The California Supreme Court summarily denied that petition by order dated August 28, 2013. (Resp't's Lod. Doc. 6.)
II. Analysis
A. Standards of Review Applicable to Habeas Corpus Claims
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Greene v. Fisher, ___ U.S. ___, 132 S. Ct. 38, 44 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent "may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, ___ U.S. ___, 133 S. Ct. 1446, 1450 (2013) (citing Parker v. Matthews, ___ U.S. ___, 132 S. Ct. 2148, 2155 (2012)). Nor may it be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said that there is "clearly established Federal law" governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). 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." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s 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." Richter, 562 U.S. at 103.
Under § 2254(d)(2), a state court decision based on a factual determination is not to be overturned on factual grounds unless it is "objectively unreasonable in light of the evidence presented in the state court proceeding." Stanley, 633 F.3d at 859 (quoting Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004)).
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 562 U.S. at 99. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___, 133 S. Ct. 1088, 1091 (2013).
Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98.
A summary denial is presumed to be a denial on the merits of the petitioner's claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze just what the state court did when it issued a summary denial, the federal court must review the state court record to determine whether there was any "reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98. This 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 [the Supreme] Court." 562 U.S. at 102. The petitioner bears "the burden to demonstrate that 'there was no reasonable basis for the state court to deny relief.'" Walker v. Mattel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98).
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
B. Petitioner's Claims
1. Denial of Petitioner's Motion to Withdraw Her No Contest Plea Based upon the Alleged Ineffective Assistance of Counsel
As noted above, in her first and second grounds for federal habeas relief petitioner claims that the state trial court abused its discretion in denying her motion to withdraw her plea and erred in rejecting her contention that because her prior counsel conducted no defense investigation she received ineffective assistance in connection with her decision to enter her no contest plea. However, federal habeas relief is not available for alleged error in the application of state law, and habeas corpus cannot be utilized in federal court to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972); see also Wilson, 562 U.S. at 16; Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) ("[W]e have repeatedly held that 'it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.'"); Wood v. Ryan, 693 F.3d 1104, 1115 (9th Cir. 2012). Accordingly, questions of whether the trial court abused its discretion under state law in denying petitioner motion to withdraw her plea are not properly presented in this federal habeas proceeding. Moreover, a habeas petitioner may not "transform a state-law issue into a federal one" merely by asserting a violation of the federal constitution. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997). Rather, petitioner must show that the decision of the state courts somehow "violated the Constitution, laws, or treaties of the United States." Little v. Crawford, 449 F.3d 1075, 1083 (9th Cir. 2006) (quoting Estelle, 502 U.S. at 68). In this case, petitioner's cognizable claim is whether her constitutional right to effective assistance of counsel was violated by the state court's denial of her motion to withdraw her plea. Her claims one and two will be so construed.
Petitioner claims that the trial court violated her rights under the Sixth and Fourteenth Amendments when it denied her motion to set aside her no contest plea based on the ineffective assistance provided by her counsel. (ECF No. 1 at 4.) In support of this claim petitioner argues that she had a "credible defense to the charges brought against her," and that "forensic evidence" should have prompted her trial counsel to conduct further investigation to determine whether someone else was driving the vehicle at the time of the accident. (Id. at 4, 17.) Petitioner also argues that in denying her motion to withdraw her plea the trial judge gave "undue credence" to the declaration filed by her retained trial counsel in which he refuted her contentions. (Id. at 17, 31-32.)
Page number citations such as this one are to the page numbers reflected on the court's CM/ECF system and not to page numbers assigned by the parties.
In the petition before this court, petitioner essentially repeats the arguments she made in the state courts. Petitioner again contends that evidence taken from a "review of the law enforcement investigative reports" reflects that: (1) immediately after the accident law enforcement officers were unable to locate any witness who saw her driving the vehicle that crashed into the patio area of the Folsom Lake Bowl; (2) the victim who identified petitioner as the driver gave her statement doing so a month after the accident, was a drug user, and had overstated the extent of the injuries she suffered on the night in question; (3) officers located a cell phone in the center console of petitioner's vehicle which they mistakenly identified as belonging to petitioner when it in fact belonged to someone else; and (4) although the air bag had deployed, leaving a white powder on the driver's seat, there was no white powder found on petitioner or her clothing. (Id. at 27.) The record underlying these arguments is somewhat lengthy and will be addressed in more detail below.
In petitioner's July 7, 2012 declaration filed in support of her motion to withdraw her no contest plea in the state trial court, she had declared that: (1) she never admitted driving the vehicle when it crashed; (2) the cell phone found in the center console of her vehicle was not hers; (3) she suffered no injuries in the crash consistent with an air bag deployment; (4) she asked her prior counsel to investigate the circumstances of the crash because she was "uncertain" as to whether she was the driver; (5) she told her prior counsel that the cell phone found in the center console of the vehicle did not belong to her; and (6) although her prior counsel told her "a thorough investigation would be done on her case," she later discovered that no defense investigation whatsoever had been conducted. (Id. at 27-30; see also Clerk's Transcript on Appeal (CT) at 37-39.) In that declaration petitioner also stated that
recently, an associate, Scott Muchow, texted me about [a] statement made on the morning of January 10, 2012, by the boyfriend of Ms. Brandi Bridges. I[n] response to a query, the boyfriend related to Mr. Muchow that that [sic] I was not driving that night.(Id. at 79.) Scott Muchow, referred to in petitioner's first declaration, also filed a declaration in support of petitioner's motion to withdraw her no contest plea, in which he declared that minutes after the accident he asked a bystander if petitioner was driving and the bystander responded "no, a man was driving and hit his girlfriend." (Id. at 94.) In addition, one of the victims of the accident also filed a declaration in which he stated that another person told him that he saw a man he knew climbing out of the vehicle through the driver's door immediately after the crash occurred. (Id. at 89.) In yet another declaration submitted by petitioner below, a different bystander declared that after the crash he looked up and saw a female in the passenger seat and a male on the driver's side of the vehicle involved in the crash. (Id. at 91-92.)
In the state trial court proceedings the prosecution's opposition to petitioner's motion relied in part on the declaration of petitioner's prior retained counsel. In that declaration counsel stated that: (1) petitioner specifically admitted to him that she was the driver of the vehicle at the time of the crash and at no time during his representation of her did she ever deny that she had been driving; (2) petitioner never brought prospective witness Scott Muchow or any information Muchow had about the accident to counsel's attention; (3) petitioner never denied she owned the cell phone found by police in the vehicle even though she had the police reports for months; (4) although there was discussion between he and his client "about investigation in a very general sense," petitioner did not make any "specific substantive investigation requests" and counsel informed her that he "saw no investigation that would refute" the evidence against her so as to improve the plea offer; and (5) although petitioner did not like the plea offer, her decision to settle the case was based solely on her desire to avoid a more lengthy prison sentence if she declined the offer and not on any lack of pretrial defense investigation. (CT at 57-64.)
Petitioner replied to her prior counsel's representations. In a second declaration filed in the trial court in support of her motion to withdraw her plea, petitioner stated that: (1) her trial counsel assured her he would conduct an investigation to determine whether someone else was driving when the accident occurred; (2) about a week before she entered her change of plea, her counsel sent her a text message stating that "the investigation was being done and would be complete in a week;" (3) before she changed her plea, trial counsel told her that "he had had the investigation done but the results did not point to someone else driving that night;" and she subsequently entered her plea based on that information provided by her counsel; (4) she later found out from her former counsel's staff that no defense investigation had been conducted in her case; and (5) after she entered her change of plea she "did as [her former counsel] said and I told the probation officer that I was driving that night." (CT at 86-87.) In support of these assertions, petitioner filed as an exhibit to her second declaration a screen shot of the actual text message she received from her prior counsel, in which he wrote to petitioner as follows:
I don't intend to speak with keith [another attorney with whom petitioner was consulting], I have given you my assesments [sic]. Your case is very straight forward. Speaking to keith is a waste of time, no disrepsect [sic] to him. The 'investigation' will be complete by the due date I assigned to my investigator which isn't until next week and you should have ZERO expectation it will make any difference just like I explained to you in my office. The only reason I am doing it is for your piece [sic] of mind not because I believ [sic].(Id. at 89.) In addition, attached to her second declaration was a copy of a subsequent email from her prior lawyer's assistant advising petitioner, in response to her inquiry, that "[t]here is no investigation regarding your case." (CT at 88.)
Petitioner's prior counsel responded to these additional assertions with a second declaration which was submitted by the prosecution in opposition to the motion to withdraw plea. In that second declaration petitioner's prior counsel again declared that she "never indicated to me that there was ever any ambiguity in her mind as to whether or not she was in fact driving." (Id. at 105.) Rather, "[petitioner] asserted the opposite to me on more than one occasion." (Id.) Petitioner's prior counsel also declared that: (1) he did not tell petitioner had would "do any investigation relative to whether or not someone else was driving her vehicle on the night in question;" (2) based on the evidence and petitioner's statements to him, he did not "believe that it was necessary to investigate [the identity of the driver];" (3) he only told petitioner he would "review all of the police reports and records contained within the discovery to ascertain whether or not any investigation would be feasible;" (4) petitioner never suggested to him that the cell phone found in the vehicle did not belong to her; (5) the text message from him described in petitioner's July 24, 2012 declaration and attached thereto was "presented grossly out of context," because in that message counsel was referring only to his promise to review petitioner's case file, including the police reports, to ascertain "IF there was anything worth looking into;" (6) he did not have a "pre-ordained investigative strategy that her and I [sic] had agreed upon;" (7) he did not tell petitioner that "the investigation did not point to someone else driving that night" or that an investigation had been conducted to determine the identity of the driver; and (8) he did not tell petitioner to admit to the probation officer that she had been driving the vehicle and, in fact, it is his "practice that my clients never disclose the facts and circumstances of their cases to the probation officer during a pre-sentence probation interview." (Id. at 105-112.)
Petitioner argues that the text message from her prior attorney supports her assertion that she requested that he conduct an investigation as to identity the driver of the vehicle involved in the crash. She contends, however, that "the seminal question was not whether or not [petitioner] asked [trial counsel] to conduct an investigation, it was why such request had to be made at all." (ECF No. 1 at 31.) Petitioner notes that her motion to withdraw her plea was also supported by several declarations suggesting that the driver of the vehicle may have been a male, with a female in the passenger seat at the time of the crash. (Id. at 27-28.) She concedes that under California law a motion to withdraw a guilty plea will generally be denied where the plea was made on the advice of counsel. (Id. at 20.) See People v. O'Neal, 204 Cal.App.2d 707, 709 (1962) ("A plea of guilty entered on advice of counsel, in the absence of fraud, etc., will not be vacated."). However, petitioner argues that she should have been allowed to withdraw her plea because her prior counsel advised her to accept the plea offer "without fully investigating the law or facts of the case." (Id.) Petitioner argues that because her prior lawyer failed to conduct an adequate defense investigation, "a meritorious defense was omitted, and the result was 'fundamentally unfair' depriving [petitioner] of her due process rights." (Id. at 33.)
a. State Court Decision
Petitioner raised this same issue on direct appeal and in her petition for review filed in the California Supreme Court. The California Court of Appeal rejected petitioner's arguments, reasoning as follows:
Defendant contends the trial court abused its discretion in refusing to let her withdraw her plea because her prior counsel was ineffective. She attempts to prove her contention by reasserting the contents of her declarations and argues that because "a real defense existed, supported both by forensic evidence as well as witness testimony," prior counsel was ineffective for failing to investigate. Defendant's argument is without merit.Nicholson, 2013 WL 3209465, at *2.
"'Withdrawal of a . . . plea is left to the sound discretion of the trial court. A denial of the motion will not be disturbed on appeal absent a showing the court has abused its discretion.'" (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208; see Pen. Code, § 1018.) "'The power to judge credibility of witnesses, resolve conflicts in testimony, [and] weigh evidence . . . is vested in the trial court. On appeal all presumptions favor proper exercise of that power.'" (People v. James (1977) 19 Cal.3d 99, 107.) Here, the trial court made an explicit credibility determination in favor of prior counsel's declarations; therefore, we accept as true the statements made by prior counsel in his declarations and disregard conflicting statements of defendant.
With the above principles in mind, we examine whether prior counsel was ineffective to determine whether the court abused its discretion. "'"[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof."'" (People v. Mitchell (2008) 164 Cal.App.4th 442, 466-467.)
Prior counsel declared that defendant never told him she thought someone else was driving, that the phone in the car was not hers, or that she wanted a secondary investigation. To the contrary, defendant told him on more than one occasion that she was the driver. Based on these facts, prior counsel would have had no reason to think that an additional investigation was necessary. Therefore, his representation of defendant did not fall below an objective standard of reasonableness. Based on these facts, which the trial court credited, it was well within its discretion to deny defendant's motion to withdraw her plea.
b. Legal Standards Governing Ineffective Assistance of Counsel Claims
The clearly established federal law governing ineffective assistance of counsel claims is that set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a Strickland claim, a defendant must show both that (1) his or her counsel's performance was deficient and that (2) the "deficient performance prejudiced the defense." Id. at 687. Counsel is constitutionally deficient if his or her representation "fell below an objective standard of reasonableness" such that it was outside "the range of competence demanded of attorneys in criminal cases." Id. at 687-88 (internal quotation marks omitted). "Counsel's errors must be 'so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 687).
A reviewing court is required to make every effort "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 669. See also Richter, 562 U.S. at 107 (same). Reviewing courts must therefore "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. There is in addition a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689). This presumption of reasonableness means that the reviewing court must "give the attorneys the benefit of the doubt," and must also "affirmatively entertain the range of possible reasons [defense] counsel may have had for proceeding as they did." Cullen v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1407 (2011) (internal quotation marks and alterations omitted).
The Strickland test for demonstrating ineffective assistance of counsel is "applicable to ineffective-assistance claims arising out of the plea process." Hill v. Lockhart, 474 U.S. 52, 57 (1985). In this context, prejudice "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hedlund v. Ryan, 750 F.3d 793, 809 (9th Cir. 2014) (quoting Hill, 474 U.S. at 59). "[I]n order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 809 (footnote omitted). See also Lafler v. Cooper, ___U.S.___, 132 S. Ct. 1376, 1384-85 (2012). With regard to claims of ineffective assistance during the plea process involving defense counsel's alleged failure to investigate, the Supreme Court has explained:
In many guilty plea cases, the "prejudice" inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.Hill, 474 U.S. at 59. See also Smith v. Mahoney, 611 F.3d 978, 989 (9th Cir. 2010)
"The standards created by Strickland and § 2254(d) are both "highly deferential," and when the two apply in tandem, review is 'doubly' so." Richter, 562 U.S. at 105 (citations omitted). Thus, in federal habeas proceedings involving "claims of ineffective assistance of counsel, . . . AEDPA review must be "'"doubly deferential"'" in order to afford "both the state court and the defense attorney the benefit of the doubt." Woods v. Daniel, ___U.S.___, 135 S. Ct. 1372, 1376 (2015) (quoting Burt v. Titlow, 571 U.S. ___, ___, 134 S. Ct. 10, 13 (2013)). As the Ninth Circuit has recently acknowledged:
"The question," therefore, "is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington v. Richter, 131 S. Ct. 770, 788 (2011). Even where this court believes the state court decision was "wrong," that result must be upheld if "fairminded jurists could disagree on [its] correctness." Id. at 786.Camp v. Nevins, ___F.3d___, ___, 2015 WL 1347350, at * 4 (9th Cir. Mar. 26, 2015).
c. Analysis
As noted above, whether the state trial court abused its discretion under state law in denying petitioner's motion withdraw her no contest plea is not cognizable in this federal habeas corpus proceeding. Wilson, 562 U.S. at 5 ("But it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts."); Estelle, 502 U.S. at 67. Rather, petitioner must demonstrate that the trial court's denial of her motion to withdraw her no contest plea violated her federal constitutional rights in order to be entitled to federal habeas relief. 28 U.S.C. § 2254(a). The essence of petitioner's arguments before this court is that the state trial court should have allowed her to withdraw her plea because it was entered due to the ineffective assistance provided by her counsel which in turn prevented her from presenting a meritorious defense to the charges brought against her.
As explained above, in order to prevail on this argument, petitioner must establish both that: (1) her trial counsel rendered constitutionally ineffective assistance in failing to investigate the possibility that she was not the driver of the vehicle that crashed; and (2) she was actually prejudiced by her counsel's deficient performance. Strickland, 466 U.S. at 687. A court evaluating an ineffective assistance of counsel claim does not need to address both components of the test if a petitioner cannot sufficiently prove one of them. Strickland, 466 U.S. at 697; see also Lopez v. Ryan, 630 F.3d 1198, 1206 (9th Cir. 2011) ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . ., that course should be followed."); Thomas v. Borg, 159 F.3d 1147, 1152 (9th Cir. 1998).
The undersigned concludes that petitioner has failed to make a showing of prejudice that is required in order to support the granting of federal habeas relief on an ineffective assistance of counsel claim. In this regard, there is simply no evidence before this court that petitioner's former counsel would have advised her to reject the prosecution's plea offer and proceed to trial even if he had conducted a defense investigation and/or obtained the information set forth in the declarations filed in support of petitioner's motion to withdraw her no contest plea. Those declarations consisted largely of somewhat vague hearsay (and sometimes double hearsay) statements and surmise. Moreover, although much time has passed since she first moved to withdraw her plea in state court, petitioner has failed to further amplify those declarations by gathering and presenting specific admissible evidence demonstrating that she was not the driver of the vehicle at the time of the crash. In sum, there is no substantial evidence before this federal habeas court that defense counsel's discovery of the information contained in the declarations upon which petitioner relies, or any other defense investigation, "would have led counsel to change his recommendation as to the plea," or would have supported an affirmative defense that "likely would have succeeded at trial." Hill, 474 U.S. at 59. See also Weaver v. Palmateer, 455 F.3d 958, 9712 (9th Cir. 2004) ("Here the record provides no indication that further testing of the fingerprints would have yielded a different result, thereby inducing Chaivoe to alter his advice or shaking Weaver's decision to plead guilty); Lambert v. Blodgett, 393 F.3d 943, 982 (9th Cir. 2004) ("Courts have generally rejected claims of ineffective assistance premised on a failure to investigate where the record demonstrates that the defendant would have pled guilty despite the additional evidence and where the additional evidence was unlikely to change the outcome at trial.")
Given petitioner's failure to demonstrate prejudice, the deficient performance prong need not be addressed in detail. However, the undersigned will briefly explain why that could be a closer question. Faced with a direct conflict in the evidence presented by the dueling declarations of petitioner and her prior counsel, the state trial court nonetheless denied petitioner's motion to withdraw her plea without taking live testimony. Instead, the court rejected petitioner's declarations as incredible and found those of her former counsel credible in part because, as an officer of the court, counsel had a "duty of candor and honesty" with the court. (ECF No. at 54-58.) The state appellate court deferred to what it described as the trial court's determination of the credibility of witnesses even though no testimony was taken. The Supreme Court has stated that "[w]hen the issue is one of credibility, resolution on the basis of affidavits can rarely be conclusive." Blackledge v. Allison, 431 U.S. 63, 82 n. 25 (1977). See also Huff v. United States, 734 F.3d 600, 607-08 (6th Cir. 2013); Raysor v. United States, 647 F.3d 491, 494-97 (2d Cir. 2011). It has been recognized that "[i]n rare instances, credibility may be determined without an evidentiary hearing where it is possible to 'conclusively' decide the credibility question based on 'documentary testimony and evidence in the record." Earp v. Ornoski, 431 F.3d 1158, 1169-70 (9th Cir. 2005). See also Strong v. Johnson, 495 F.3d 134, 139 (4th Cir. 2007) (in the habeas context a court may make a credibility determination based solely on conflicting affidavits where the petitioner's affidavit is "cryptic" and the respondent's affidavit is factually detailed);United States v. McAtee, 481 F.3d 1099, 1103 (8th Cir. 2007) (inclusion of specific details in an affidavit may serve as an indicator of the affiant's credibility); United States v. Perez, 393 F.3d 457, 464 (4th Cir. 2004) (a court may properly discount an affidavit's "unsupported, conclusory statements"). It appears questionable whether this was one of the rare instances in which a credibility determination was appropriately made without the taking of live testimony. There was nothing inherently incredible about petitioner's two declarations on the relevant question - whether her prior attorney had been asked to conduct a defense investigation and whether he said he was doing so. In fact, many of the representations made in petitioner's declarations were supported by attached documents. Those two declarations were not cryptic, lacking in detail, unsupported or conclusory. The trial court did: note some arguable inconsistencies between petitioner's two declarations; point to evidence which may have refuted her contentions; and question the timing of her motion to withdraw her plea. However, those matters would appear to pale in comparison to the questions raised by her prior counsel's declarations. Counsel initially stated the evidence against his client was overwhelming, there was nothing for the defense to investigate and that petitioner had not contested the charges but merely thought the plea offer was too harsh. When confronted by petitioner with his text message to her in which he told her that his investigator would be completing the investigation the following week but that she should not expect anything helpful to be developed, counsel responded only by contending that the text was somehow being presented "grossly out of context and in an incredibly dishonest way." (CT at 106.) Counsel's lengthy explanation for his text boiled down to this - he claimed that in referring to the due date for his investigator's investigation all he really meant was that he and his investigator would review the police reports again. (CT 106-09.) That explanation is difficult to reconcile with the words of his text. The weakness of that explanation would seem to have called for the taking of testimony so that its credibility could be tested. This in turn could present a question as to whether the state court's fact-finding process was so fundamentally flawed that it resulted in an unreasonable determination of the facts to which no deference would be owed by the federal habeas court. Hurles v. Ryan, 752 F.3d 768, 790 (9th Cir. 2014); see also Camp v. Neven, ___F.3d___, ___, 2105 WL 1347350, at *3 (9th Cir. Mar. 26, 2015). However, because petitioner has failed to demonstrate prejudice, these potentially difficult issues need not be resolved.
--------
Petitioner's contention is that investigation by her former counsel may have resulted in the discovery of concrete, admissible evidence that would have supported a potential defense that someone else was driving her car when the accident occurred. This argument, unsupported by evidence of what a defense investigation would have actually yielded, is insufficient to establish prejudice. See Villafuerte v. Stewart, 111 F.3d 616, 632 (9th Cir. 1997) (petitioner's ineffective assistance claim rejected where he presented no evidence concerning what counsel would have found had he investigated further, or what more exhaustive defense preparation would have accomplished); see also Bible v. Ryan, 571 F.3d 860, 871 (9th Cir. 2009) (merely pointing to the potential for development of evidence is insufficient to establish prejudice justifying the granting of habeas relief).
Petitioner has merely pointed to circumstances suggesting a reason as to why defense investigation into who was driving was appropriate. That is a far cry from establishing that if that investigation had been conducted it would have uncovered admissible evidence that would have in turn caused petitioner not to plead guilty and to instead proceed to trial and that if she's done so, she likely would have prevailed. All of the evidence and circumstances on the other side of the scale, much of it relied upon by the trial court in concluding that no defense investigation was necessary, was still present and would have been taken into account by petitioner and her counsel. Specifically, a bouncer had walked petitioner outside the bowling alley and went back in to call her a cab just before the crash occurred, it was petitioner's car that crashed into the patio area, police arrived at the scene to find an intoxicated petitioner standing next to the driver's side door of that vehicle, she in fact admitted to those officers that she had been drinking and was driving ("I backed out of the parking lot and then it was like I was in a movie") and one of the victims of the crash identified petitioner as the driver of the car who had hit her. Faced with that substantial and damaging evidence and the likelihood that a rejection of the plea offer would increase her prison sentence exposure, the mere possibility of a theory of defense is insufficient to establish that petitioner would have rejected the offer and proceeded to trial had a defense investigation been conducted. As the Supreme Court has recognized:
Deference to the state court's prejudice determination is all the more significant in light of the uncertainty inherent in plea negotiations described above: The stakes for defendants are high, and many elect to limit risk by forgoing the right to assert their innocence. A defendant who accepts a plea bargain on counsel's advice does not necessarily suffer prejudice when his counsel fails to seek suppression of evidence, even if it would be reversible error for the court to admit that evidence.
* * *
Hindsight and second guesses are also inappropriate, and often more so, where a plea has been entered without a full trial or, as in this case, even before the prosecution decided on the charges. The added uncertainty that results when there is no extended, formal record and no actual history to show how the charges have played out at trial works against the party alleging inadequate assistance. Counsel, too, faced that uncertainty. There is a most substantial burden on the claimant to show ineffective assistance. The plea process brings to the criminal justice system a stability and a certainty that must not be undermined by the prospect of collateral challenges in cases not only where witnesses and evidence have disappeared, but also in cases where witnesses and evidence were not presented in the first place. The substantial burden to show
ineffective assistance of counsel, the burden the claimant must meet to avoid the plea, has not been met in this case.Premo v. Moore, 562 U.S. 115, 129, 132 (2011). See also Smith, 611 F.3d at 991 ("We have previously held that prejudice does not generally exist when a defendant chooses to plead guilty.") (citing Lambert, 399 F.3d at 980).
For all of these reasons, the undersigned concludes that petitioner has failed to show that her trial counsel's failure to conduct an investigation into whether she was driving at the time of the crash affected the outcome of the plea process. Accordingly, petitioner is not entitled to federal habeas relief with respect to her claim that the trial court violated her constitutional right to effective assistance of counsel in denying her motion to withdraw her no contest plea.
2. Actual Innocence
In her third and final claim for federal habeas relief, petitioner argues that the allegations contained in her motion to set aside her plea of nolo contendere supported "a defense to her charges" and demonstrated that she was in fact innocent. (ECF No. 1 at 5.) The undersigned will assume that this claim is distinguishable from petitioner's other claim for relief and liberally construe it as a "freestanding" claim of actual innocence - i.e., that, despite the lack of any constitutional error during her criminal proceedings in state court, her incarceration is unconstitutional due to her actual innocence of the charges upon which she was convicted.
The United States Supreme Court has, on several occasions, assumed, without expressly deciding, that a "freestanding" claim of actual innocence is cognizable on federal habeas review. See House v. Bell, 547 U.S. 518, 554-55 (2006); Herrera v. Collins, 506 U.S. 390, 417 (1993). The Ninth Circuit has also assumed that freestanding actual innocence claims are cognizable on collateral attack. See e.g., United States v. Berry, 624 F.3d 1031, 1038 n. 5 (9th Cir. 2010) ("This circuit recognizes a claim of actual innocence that is cognizable under § 2255."); Carriger v. Stewart, 132 F.3d 463, 476-77 (9th Cir.1997) (en banc). However, the standard for establishing that one is entitled to relief on such a freestanding actual innocence claim is "'extraordinarily high.'" Carriger, 132 F.3d at 476 (quoting Herrera, 506 U.S. at 417). In order to prevail, a petitioner "must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent." Id. See also Cooper v. Brown, 510 F.3d 870, 923 (9th Cir. 2007) ("Under these standards, a petitioner must affirmatively prove that he is probably innocent."); Boyde v. Brown, 404 F.3d 1159, 1168 (9th Cir. 2005) (same).
Keeping in mind the demanding showing required for relief on such a claim, the undersigned finds that petitioner has failed to show that she is probably innocent of the crime of which she was convicted. Petitioner's arguments fail to meet the high standards to prevail on such a claim. As discussed above, petitioner's assertion that she might not have been the driver of the vehicle clearly does not affirmatively prove that she is probably innocent of the charge to which she entered her no contest plea. Accordingly, she is not entitled to federal habeas relief on his claim.
C. Evidentiary Hearing Request
Finally, petitioner requests an evidentiary hearing on the claims set forth in her petition. (ECF No. 1 at 1.) Pursuant to 28 U.S.C. § 2254(e)(2), an evidentiary hearing is appropriate under the following circumstances:
(e)(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-
(A) the claim relies on-
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense[.]
Under this statutory scheme, a district court presented with a request for an evidentiary hearing must first determine whether a factual basis exists in the record to support a petitioner's claims and, if not, whether an evidentiary hearing "might be appropriate." Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999). See also Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005); Insyxiengmay v. Morgan, 403 F.3d 657, 669-70 (9th Cir. 2005). A petitioner requesting an evidentiary hearing must also demonstrate that she has presented a "colorable claim for relief." Earp, 431 F.3d at 1167 (citing Insyxiengmay, 403 F.3d at 670, Stankewitz v. Woodford, 365 F.3d 706, 708 (9th Cir. 2004) and Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001)). To show that a claim is "colorable," a petitioner is "required to allege specific facts which, if true, would entitle him to relief." Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998) (internal quotation marks and citation omitted). Finally, the Supreme Court has held that federal habeas review under 28 U.S.C. § 2254(d)(1) "is limited to the record that was before the state court that adjudicated the claim on the merits" and "that evidence introduced in federal court has no bearing on" such review. Pinholster, 131 S. Ct. at 1398, 1400. See also Ryan v. Gonzalez, ___U.S.___, 133 S. Ct. 696, 705 (2013); Woods v. Sinclair, 764 F.3d 1109, 1121 (9th Cir. 2014).
The undersigned concludes that no additional factual supplementation is necessary in this case and that an evidentiary hearing is not appropriate with respect to the claims raised in the instant petition. Petitioner's speculation that, in light of certain circumstances, it is conceivable that she might not have been the driver of the vehicle involved in the accident is insufficient to warrant an evidentiary hearing. Petitioner's allegations and the evidence proffered in support thereof do not give rise to a concrete and material factual conflict in the evidence that would require this federal habeas court to hold an evidentiary hearing in order to resolve. Therefore, petitioner's request for an evidentiary hearing will be denied.
III. Conclusion
Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus and her request for an evidentiary hearing be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant). Dated: April 13, 2015
/s/_________
DALE A. DROZD
UNITED STATES MAGISTRATE JUDGE
DAD:8:
Nicholson2407b.hc