Opinion
No. C 00-04075 WHA
February 1, 2002
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
Manuel Barajas, a state prisoner, has filed a petition for writ of habeas corpus. He contends that a limitation on worktime credits was applied to him ex post facto. This order concludes that petitioner would prevail on the merits of his claim but for the fact that he waived any constitutional error by pleading nolo contendere (a plea he does not now wish to withdraw) pursuant to a plea agreement in which he specifically understood and acknowledged the point complained of in his petition. Rather than try to withdraw his plea, petitioner wants to keep it but sweeten it in his favor. His petition is therefore DENIED. The clerk shall close the file.
STATEMENT
In October 1997, petitioner beat and then raped his 17-year-old girlfriend. The girlfriend then went to the police. In their investigation, the police discovered that in January 1994 petitioner had beat and raped another girlfriend. The 1994 incident had not been brought to the authorities' attention, and petitioner had not been previously charged for it.
On December 3, 1997, an information arising out of the two incidents was filed against petitioner in California state court. As amended, the information charged petitioner with unlawful sexual intercourse by means of force and violence (Cal. Pen. Code 261(a)(2)); battery (Cal. Pen. Code 243(b)(1)); false imprisonment (Cal. Pen. Code 236); forcible oral copulation (Cal. Pen. Code 288(a)(c)); assault with a deadly weapon (Cal. Pen. Code 245(a)(1)); and making a terrorist threat (Cal. Pen. Code 422). Ultimately, the indictment came to include 27 separate counts.
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In 1994, in between the two rapes, the California legislature enacted California Penal Code 2933.1, which capped "worktime credits" at 15 percent of the sentence for certain enumerated felonies. The Section provided, in pertinent part, as follows:
(a) Notwithstanding any other law, any person who is convicted of a felony offense listed in Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933.
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(c) Notwithstanding Section 4019 or any other provision of law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail . . . following arrest and prior to placement in the custody of the Director of Corrections, shall not exceed 15 percent of the actual period of confinement specified in subdivision (a).
(d) This section shall only apply to offenses listed in subdivision (a) that are committed on or after the date on which this section becomes operative.
Forcible rape is one of the crimes enumerated in Section 667.5. Section 2933.1 became effective on September 21, 1994.
More than three and a half years later, on June 11, 1998, petitioner pleaded nolo contendere to two counts in the amended information, in exchange for dismissal of all other counts and the prosecutor's agreement to seek an aggregate sentence of no more than 16 years. No written plea agreement is in the record, yet all parties concur that an agreement was reached between petitioner and the prosecutor prior to the plea hearing. Each of the two counts to which petitioner pled nolo contendere charged him with unlawful sexual intercourse by means of force and violence. One of the counts (Count Four) concerned the January 1994 rape; the other (Count One) involved the October 1997 rape.
Before it accepted petitioner's pleas, the trial court engaged in a thorough colloquy with him. The parties agree that this colloquy accurately stated the terms of the plea agreement. The court asked petitioner if he understood that he would be waiving several of his constitutional rights by entering his pleas. The court also asked petitioner whether he knew that the 15 percent worktime credit limitation applied to both the sentence that would issue for the 1994 crime and the sentence for the 1997 crime. At all times, petitioner said that he was aware of the consequences of his pleas. The trial court accepted petitioner's pleas, having found that petitioner knowingly and intelligently waived his rights. Petitioner's attorney also expressly joined in the waiver and the pleas. No reservations of a right to appeal the 15 percent credit limit were placed on the record.
Two months later, on August 31, 1998, the trial court sentenced petitioner to eight years on Count Four (rape one) and a consecutive term of six years on Count One (rape two), for a total term of 14 years. Eight years was the maximum term for either count. Cal. Penal Code § 264(a). The issue of worktime credits was not discussed by the judge at that time. At the conclusion of the hearing, the trial court was informed that petitioner would appeal his sentence. The precise grounds for appeal was not made clear at that time.
When petitioner did in fact appeal his sentence, he argued, inter alia, that the 15 percent worktime-credit limitation should not apply to the sentence imposed for his 1994 crime. The Court of Appeal addressed this claim on the merits, disagreeing with petitioner's position. In an unpublished opinion affirming petitioner's sentence, the court turned back his claim that application of Section 2933.1's worktime-credit limitation to the 1994 crime violated the Ex Post Facto Clause. It agreed with the state that "the matter that precipitates the reduction in credits is the commission of a violent felony offense after the effective date of the statute." It likened Section 2933.1 to a recidivist enhancement that increased the punishment for a crime committed after the effective date of a statute because of a prior conviction, holding:
Here, the reduction in appellant's opportunity to earn conduct credit against his sentence for section 667.5 violent felony offenses occurring before the enactment of section 2933.1 occurs only because appellant committed another such felony offense after the statute's enactment; in fact, the purpose of subdivision (d) of section 2933.1 is to ensure that section 2933.1 is not retrospective and therefore does not violate the state and federal ex post facto clauses.
Quoting an assemblyman's letter in the statute's legislative history, the, Court of Appeal added that in its view appellant had "fair warning that if he committed certain offenses after September 21, 1994, he would be subject to reduced presentence and postsentence work and conduct credit for his "entire term of imprisonment, so long as [he] has been convicted of at least one violent felony, as specified in subdivision (c) of Section 667.5.'" After the Court of Appeal's decision, petitioner filed a petition for review with the California Supreme Court, which declined to hear his case. He then brought the instant petition for writ of habeas corpus. The only claim in his petition is that application of the 15 percent credit limitation to the sentence imposed for the 1994 crime violates the federal Ex Post Facto Clause.
ANALYSIS
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to petitioner's case. Under AEDPA, an application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a state court shall not be granted with respect to any claim already adjudicated on the merits in state court proceedings unless the adjudication of that claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court; 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 proceedings. 28 U.S.C. § 2254(d).
1. Application of Section 2933.1.
Before assessing AEDPA's effect on this petition, the threshold question is whether application of Section 2933.1 to the sentence imposed for petitioner's 1994 crime violates the Ex Post Facto Clause. See Van Tran v. Lindsey, 212 F.3d 1143, 1155 (9th Cir. 2000). Article I, § 10 of the U.S. Constitution provides: "No State shall . . . pass any . . . ex post facto law." The Ex Post Facto Clause prohibits the states from enacting any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Weaver v. Graham, 450 U.S. 24, 28 (1981), quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26 (1866). "[T]he focus of the ex post facto inquiry is not on whether a legislative change produces some sort of `disadvantage,' . . . but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable." California Dep't of Corrections v. Morales, 514 U.S. 499, 506 n. 3 (1995).
Respondents cannot dispute that Section 2933.1 increases the penalty to which petitioner was exposed for committing the 1994 crime. Had Section 2933.1 not been enacted, petitioner would have been eligible for more worktime credits. Cf Weaver v. Graham, 450 U.S. 24, 32 (1981) (holding that the "critical question" is "whether the new provision imposes greater punishment after the commission of the offense, not merely whether it increases a criminal sentence"); Lindsey v. Washington, 310 U.S. 397, 401-02 (1937). The real question, rather, is whether Section 2933.1 is being applied retroactively, i.e., whether as applied here Section 2933.1 is constitutionally acceptable as a "recidivist" statute, or not.
Two Supreme Court decisions guide this order's analysis, as they must under AEDPA. First is Weaver. In Weaver, like this a habeas case, a petitioner committed a crime and then pled guilty to it in Florida state court. At both times, a Florida statute set forth a certain formula for good-conduct credits. After the petitioner pled guilty, however, the statute was repealed and a new formula, less beneficial to petitioner, was instituted. The new "formula was made applicable to all prisoners, including petitioner, whose offenses occurred prior to the enactment date. Petitioner sought a writ of habeas corpus, arguing that the amendment violated the Ex Post Facto Clause as applied to him. The Supreme Court agreed. It first rejected the state's argument that good-time credits were not subject to the clause because they were granted as a matter of grace:
Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.
Id. at 31-32. Weaver also rejected the state's contention that the amendment was not retrospective because, on its face, it applied only after its effective date. "This argument," Weaver held, "fails to acknowledge that it is the effect, not the form, of the law that determines whether or not it is ex post facto." Id. at 31. The effect of the new law, the Court held, was to increase the punishment imposed upon crimes committed before the statute's effective date. Finally, Weaver dismissed the state's assertion that the amendment was not retrospective because eligibility for credits was not part of a prisoner's sentence, and thus not part of the "punishment" affixed to a previously-committed crime. Citing a number of earlier decisions, Weaver noted that credits, and one's eligibility for credits, could both affect the length of a sentence and a defendant's willingness to enter a guilty plea. Detrimental post hoc restrictions on such credits, therefore, were deemed sufficiently punitive and retrospective as to run afoul of the Ex Post Facto Clause. Id. at 31-32.
In reaching its holding, Weaver relied on the second apposite decision, Greenfield v. Scafati, 277 F. Supp. 644 (D. Mass.), aff'd, 390 U.S. 713 (1967). In Greenfield, a state prisoner had been sentenced to a five-to-seven-year term, with a deduction for estimated good-conduct credits. At the time the prisoner was sentenced, these credits could be forfeited for misbehavior while confined, but not for violation of parole. Subsequently, the Massachusetts legislature amended the statute so that good-conduct credits could no longer be earned for the six-month period following a parole violation. This amendment applied to persons already under sentence. The prisoner violated his parole, the amended statute was invoked, and his release was delayed. Citing United States Supreme Court ex post facto decisions, a three-judge district court panel held that the amendment had an impermissibly retroactive and detrimental effect on the prisoner because it prevented him from accruing good-conduct credits under the statute in effect at the time he committed the underlying crime. Greenfield, 277 F. Supp. at 645-46. See also United States v. Paskow, 11 F.3d 873, 878 (9th Cir. 1993) (discussing Greenfield). The Supreme Court summarily affirmed.
Although the Supreme Court's affirmance was without comment or discussion, it constitutes a holding of the Court, as opposed to dicta. "Although the Supreme Court affirmed Greenfield in a memorandum opinion . . . its decision is controlling authority." Paskow, 11 F.3d at 878.
Weaver and Greenfield control the present case. Eligibility for good-time credits was part of the sentence for petitioner's 1994 offense. The terms and conditions attached to those credits were fixed at the moment the underlying offense was complete. To change them after the fact violated the Ex Post Facto Clause. The state's attempt to liken application of Section 2933.1 to a recidivist statute is not persuasive. Unlike a constitutional recidivist statute — in which the existence of prior crimes merely stiffens a penalty that is imposed for commission of a later crime — here Section 2933.1 is being applied directly to a crime committed before the statute was enacted, with the effect of making the sentence imposed on that crime longer than it would otherwise be. Paskow, a decision that applied Greenfield to like facts, picked up on this distinction when it first agreed with the government that an "enhancement statute may escape the strictures of the ex post facto clause if it imposes a "stiffened penalty for the latest crime, considered to be an aggravated offense' because the defendant has committed prior crimes." Id. at 880, n. 8, quoting Gryger v. Burke, 334 U.S. 728, 732 (1948), then held that the situation before it was different because defendant was being denied parole for a crime committed before the statutory revision came into effect. Similarly in this case, the trial judge candidly applied the 15 percent credit cap to petitioner's sentence on each count.
Similarly unconvincing is the state's assertion that Section 2933.1 is not being applied retroactively because petitioner was "on notice" by statute and state caselaw as of September 1994 that the commission of additional "bad acts" would bring all of his crimes under Section 2933.1's purview. This argument has been uniformly rejected in cases applying Weaver and Greenfield. See, e.g., Paskow, 11 F.3d at 879. Fender v. Thompson, 883 F.2d 303, 306-07 (4th Cir. 1989), a decision based on Greenfield and Weaver, is instructive. There, a prisoner was sentenced in 1973 to life imprisonment by a Virginia state court. At that time, the Virginia Code provided he would become eligible for parole after serving 15 years of the sentence. In 1985, the Virginia General Assembly amended the state's parole-eligibility statute to provide that any person sentenced to life imprisonment who escaped from a correctional facility would not thereafter be eligible for parole. In 1987, the prisoner did escape from custody, only to be recaptured. He pled guilty to one count of escape, and was sentenced to an additional three years of imprisonment. The state corrections department then issued an order finding him ineligible for parole.
After exhausting his state remedies, the prisoner filed a habeas petition challenging the amendment to the parole-eligibility statute. He asserted that, as applied to him, the amendment had an impermissibly retroactive effect. The Fourth Circuit agreed. Recalling a similar decision, Schwartz v. Muncy, 834 F.2d 396 (4th Cir. 1987), Fender held that:
"The `recidivist' statute at issue there also could be said merely to have fixed the consequences of a later crime. It did so in violation of the ex post facto clause, however, precisely because the `consequences' took the form of a post hoc alteration of the punishment for an earlier offense. The petitioner in Schwartz was, moreover, no doubt "on notice" in the same sense that, as the respondent now claims, Fender was aware of the possible consequences of his escape. That fact did not affect our analysis, however, for the simple reason that there — as here — the challenged statute nevertheless accomplished an impermissible enhancement of the punishment for an earlier, unrelated crime.
Fender, 883 F.2d at 307.
This order therefore holds that the Court of Appeal erred when it rejected petitioner's ex post facto claim. Had petitioner's 1994 crime been used to enhance (within Eighth Amendment bounds) the penalty affixed to the 1997 crime, that would have passed constitutional muster. Here, however, the penalty was forthrightly applied to the sentence imposed upon the earlier crime. Though perhaps only a matter of form, where the Ex Post Facto Clause is involved, form matters.
The conclusion that the state court erred does not end matters, however. It is also necessary to determine whether the Court of Appeal's decision was "contrary to" or "an unreasonable application of" Supreme Court caselaw. As used in AEDPA, "contrary to" and "involve an unreasonable application of" have somewhat distinct meanings, though they may also overlap. A state court's decision can be contrary to federal law if it fails to apply the correct controlling authority or if it applies the controlling authority incorrectly to a case involving facts "materially indistinguishable" from those in the controlling case. A state court's decision can involve an unreasonable application of federal law if it correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or if it extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Williams v. Taylor, 529 U.S. 362, 405-12 (2000); Van Tran, 212 F.3d at 1150. "Unreasonable" is not the same as "incorrect." It is instead comparable to the "clear error" standard — i.e., reversal is allowable only where the reviewing court is left with a definite and firm conviction that error has been committed. Van Tran, 212 F.3d at 1150.
This order concludes that the Court of Appeal's decision was both contrary to and involved an unreasonable application of federal law. First, the Court of Appeal failed to take note of Greenfield, which addressed the Court of Appeal's assertions regarding "fair warning." Furthermore, even if Greenfield were not deemed controlling, Weaver — and decisions going all the way back to Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798) — make the Court of Appeal's holding objectively unreasonable. As applied to petitioner, Section 2933.1 did not operate as a recidivist statute. It stiffened not only the sentence he received for the 1997 crime, but also that applicable to a crime committed before the Section's enactment. As such, it "change[d] the punishment, and inflict[ed] a greater punishment, than the law annexed to the crime, when committed," and in doing so violated the prohibition on ex post facto laws. Id. at 390.
All this said, there is an important difference between petitioner's case and the gist of the Weaver-Greenfield line of precedent. Those decisions were animated in large part by a concern that a defendant might be induced to plead guilty to a crime based on a certain assessment of his or her anticipated parole or worktime-credit terms, only to have those terms changed after the plea was accepted. The post-plea change deprived them of the benefit of the bargain. Here, petitioner was fully apprised of the sentence he would receive, and the limitation on worktime credits he now attacks in his petition. This foreknowledge does not remove this case from Weaver-Greenfield's ambit. It does, however, contribute to the conclusion below that petitioner has waived his claim of constitutional error.
2. Waiver.
Respondent argues that even if petitioner is correct on the merits, he nevertheless waived his claim of error by pleading nolo contendere pursuant to a plea agreement in which all but two counts against him were dropped. This order agrees.
Habeas is an equitable remedy; a petitioner's conduct in relation to their petition may cause them to forfeit the right to relief. See Sanders v. United States, 373 U.S. 1, 17 (1963). A related, though not identical doctrine applies to guilty pleas:
A guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea.
Tollett v. Henderson, 411 U.S. 258, 267 (1973). See also Mitchell v. Superior Court of Santa Clara County, 632 F.2d 767, 769 (9th Cir. 1980). Thus, a guilty plea waives all non-jurisdictional antecedent claims of constitutional error. This applies both to known errors and undiscovered ones. United States v. Broce, 488 U.S. 563, 572 (1989). A petitioner may only attack the knowing and intelligent nature of his plea, generally by bringing an ineffective assistance of counsel claim. Hudson v. Moran, 760 F.2d 1025, 1030 (9th Cir. 1985).
Petitioner's claim, which goes to the length of his sentence, is not "jurisdictional." See United States v. Cortez, 973 F.2d 764, 767 (9th Cir. 1992).
Involved in this case is not just a guilty plea, but a plea agreement in which the government made substantial concessions in exchange for petitioner's pleas of guilty to two of the counts against him. Twenty-five counts were dismissed and the government agreed not to seek a sentence of more than 16 years. Petitioner does not contest the obvious fact that had he gone to trial and been convicted on all counts, or even some of the counts, he would have faced a sentence far greater than the one he now attacks (with or without the credit cap). This is no doubt why he is not challenging the plea at all, asking that it be withdrawn entirely as not knowingly and voluntarily entered into. Instead, he is asking that the plea be rewritten such that he gets an additional benefit while the government is robbed of its bargain. Petitioner cannot have it both ways.
This is not a case of post-plea error. Had the trial court issued a sentence beyond the bounds of what he discussed with petitioner at the plea colloquy, Tollett would not apply. The record, however, clearly demonstrates that petitioner understood the 15 percent cap to be part of the deal. At the outset of petitioner's plea hearing, his lawyer informed the court that his client "understands what his exposure is. The matter will be submitted to probation for a report" (Resp. Exh. B at 1). The trial court then walked petitioner through the rights he was waiving by entering his nolo contendere pleas. The court brought the issue of worktime credits to petitioner's attention as follows (id. at 3-4) (emphasis added):
The Court: You understand that these charges are felonies? They carry with it a potential term of sixteen years in state prison. At this point, there's been no indication, no discussion, about how much time you are, in fact, going to do, but you understand that is the maximum that you're looking at?
Petitioner: Yes, your honor.
The Court: You understand also that these are strikes? It means that when you get out of state prison, that you are looking at any felony, after today's date, putting you in state prison for life. Do you understand that?
Petitioner: Yes, your honor.
The Court: You also need to understand that you have the ability to earn good time and work time, but these are charges that limit the amount of good time and work time to fifteen percent. If you are in state prison, you have the ability to earn fifteen percent off of the sentence that I impose. If you do that and you are released early, you understand that you'll be placed on what's called parole?
Petitioner: Yes, your honor.
Although the trial court's final question to petitioner was not a model of precision, it effectively informed petitioner that by accepting the plea agreement, he was agreeing to a 15 percent cap on all worktime credits for his entire term. Such compound questions are normal in plea colloquys. Had petitioner objected to any part of the question, he could and should have done so. Furthermore, the trial court, after concluding its summation of the rights petitioner had decided to waive, asked him, "Knowing all these things, it's still your desire to give up these rights and enter these pleas?" To this, petitioner responded, "Yes, your honor" (id. at 7). Once again, had petitioner any objection to anything he had heard up to that point, he had an ample and fair opportunity to say so. But he did not. Only after petitioner's overarching waiver did the trial court find that petitioner had knowingly and intelligently waived his rights. Petitioner's lawyer then joined in the waivers and pleas (ibid). No reservations were made. No habeas relief can result.
Petitioner contends that although he expressly agreed to the worktime-credit cap, relief is nevertheless justified because he did not know when he entered his plea that the Ex Post Facto Clause barred application of the cap to part of his sentence. Therefore, he asserts, he did not "knowingly" or "intelligently" waive his ex post facto claim. Petitioner argues that as a result his constitutional claim should be reviewed under the "plain error" standard (as set forth at Rule 52 of the Federal Rules of Criminal Procedure) for "forfeited" but not "waived" rights. Petitioner's "knowing" and "voluntary" argument would be better-taken were he seeking to have his plea withdrawn outright, or claiming ineffective assistance of counsel. See Boykin v. Alabama, 395 U.S. 238, 243 (1989); Hudson, 760 F.2d at 1030. But he is not making a facial attack on his plea or his counsel's help. Petitioner is instead attacking only one aspect of the plea, one of his concessions. He expressly does not want the plea withdrawn.
In no way does this order suggest that counsel was ineffective. For the reasons stated in the text, the alternative to the deal was to risk trial and a much longer sentence.
Furthermore, there is a fundamental conflict between the rule he proposes and the standards applicable to guilty pleas in the context of habeas petitions. There is no requirement that a court, in conducting a plea colloquy, bring to a defendant's attention every last right that is being waived. Rodriguez v. Ricketts, 798 F.2d 1250, 1254 (9th Cir. 1986); Fontaine v. United States, 526 F.2d 514, 516 (6th Cir. 1975). This is a practical and sensible rule; the trial court cannot anticipate every constitutional claim a defendant might eventually raise. Yet if petitioner's exception were accepted, it would swallow the Tollett rule that pre-plea claims of constitutional error cannot be brought in habeas proceedings. To the contrary, petitioner's framework would allow all sorts of post-plea constitutional claims in through the habeas door solely because the trial court failed to anticipate a constitutional defense in the plea colloquy. Cf. Broce, 488 U.S. at 572.
The writ simply cannot be granted in the present circumstances. To hold otherwise would hurt not only the government in this case, but also accuseds in many others. The reason why was discussed in a recent decision, United States v. Behrman, 235 F.3d 1049, 1051 (7th Cir. 2000):
[Defendant] does not contend that his plea is invalid and does not want a trial; he seeks to retain the prosecutor's concessions while having an appeal too. Yet each side's concessions are linked to the other's; while the agreement is in force, a defendant must keep all the promises he made. To create a general "constitutional-argument exception" to waivers in plea agreements would be to reduce the concessions defendants could obtain for their promises, for it would reduce the number of (enforceable) promises defendants could make.
CONCLUSION
The petition is DENIED. Judgment will be entered for respondent. The clerk shall close the file.IT IS SO ORDERED.