Opinion
No. C 01-2854 MMC (PR).
July 14, 2003.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner is a California prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, by which he challenges his convictions for robbery and attempted carjacking. After an initial review, the Court ordered respondent to show cause why the petition should not be granted. Respondent has filed an answer, along with a memorandum and exhibits. Petitioner has filed a traverse.
BACKGROUND
At about 4:10 a.m. on August 29, 1994, Johnny Chu ("Chu"), a security guard, was sitting in his car in the parking lot of the Travelodge Motel in San Francisco. Chu testified that while he was sitting in his car, a black man opened the driver's door, put his arm around Chu's neck and demanded money. There was a short struggle, and the man grabbed the keys from the ignition and ran south on Valencia Street. As the man fled, Chu saw that he was wearing dark clothing, including a jacket. Chu chased after him, but lost sight of him for a moment. The man then returned and ran past Chu and into Chu's car. The man started the engine, but Chu opened the car door and struggled with the man for control of the car. The man struck Chu three or four times before Chu managed to turn off the ignition. The man then jumped out of the car and continued to strike Chu. Chu had a "good look" at the man because the parking lot was lit by floodlights.
Sharky Laguana, ("Laguana") the motel's night auditor, testified that he was at his desk inside the motel that night, and observed through the sliding glass doors that two people were fighting in the parking lot. He went outside, approached the two people and saw that Chu was fighting with another man. Laguana asked the man what he was doing and the man said that Chu was robbing him. When the man swung his fist at Chu, Laguana returned to the office and called 911. He described Chu's assailant as a stocky black man in dark clothing. The police arrived two to four minutes later, but the man had left.
Officers Chad Butler and Daniel Shiu testified that they arrived at the motel and spoke to Chu, who appeared upset. Officer Shiu drove Chu and Officer Butler around the vicinity of the motel looking for the assailant until they saw petitioner, a short black male, who was wearing a tee shirt and dark pants and carrying a black leather jacket. Officers Butler and Shiu detained petitioner, and saw that he was sweating even though it was a summer night. Chu got out of the car, approached petitioner, and said, "Yeah, that's him." Officers Butler and Shiu arrested petitioner. Petitioner and Chu rode in the back seat of the police car back to the motel. Chu testified that petitioner, like the man he had fought, smelled as if he had not bathed for a long time. When the officers returned with Chu and petitioner to the motel parking lot, Laguana told the police that he recognized petitioner as the person who had fought with Chu. At trial, Laguana testified that the jacket petitioner was carrying was a racing style jacket that looked like the jacket Chu's assailant had been wearing.
Officer Butler testified that at the police station he told petitioner that he would be charged, and petitioner responded, "Go ahead and book me on these bunk charges. He still has his keys and his wallet."
Officer Gary Frederick testified that he interviewed Chu later that afternoon and Chu told him that the assailant initially took the keys from the car's ignition and later returned to start the car. Frederick also saw a small abrasion on the outside of Chu's wrist. The next day, Frederick spoke to Laguana on the telephone and Laguana stated that he was "99.9 per cent sure" that the man he saw in the back of the police car was Chu's assailant.
Petitioner's defense was that he was misidentified. Petitioner presented the testimony of Deputy Sheriff Norman Bustos, who was in charge of inventorying prisoner clothes at the San Francisco County Jail. Bustos testified that the inventory card stated that at the time petitioner's clothing was removed, petitioner was wearing yellow shoes, a white tee shirt, black underwear, a pink jacket and green pants. The clothing was taken from petitioner two days after his arrest.
A jury in San Francisco Superior Court convicted petitioner of robbery and attempted carjacking. The trial court declared a mistrial during the penalty phase of the trial, in which the jury was to decide whether petitioner had suffered prior serious felony convictions. The jury was dismissed, and the penalty phase was tried before a new jury, which found the allegations of the two prior convictions to be true. The trial court sentenced petitioner to thirty years to life in state prison under California's "Three Strikes" laws. The California Court of Appeal affirmed and the Supreme Court of California denied petitioner's application for review, wherein he raised the same claims he raises in the instant petition.
DISCUSSION
A. Standard of Review
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Williams (Terry) v. Taylor, 529 U.S. 362, 402-04, 409 (2000).
Habeas relief is warranted only if the constitutional error at issue had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson, 121 S.Ct. 1910, 1920 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). A federal court must presume the correctness of the state court's factual findings. 28 U.S.C. § 2254(e)(1).
B. Legal Claims
1. Ineffective Assistance of Counsel
Petitioner claims that his trial counsel, Mary Caffese, provided ineffective assistance by advising him to reject a plea offer without understanding and advising petitioner of the gravity of the sentence he faced under California's Three Strikes law, specifically, an exposure of twenty-five years to life. Petitioner presented this claim in to the trial court in a motion for a new trial, and the trial court held an evidentiary hearing. The Court of Appeal summarized the facts pertinent to this claim as follows:
On or shortly after appellant's arraignment, Teresa Caffese, a seven-year associate public defender in the San Francisco Public Defender's office, was assigned to represent appellant. The people provided her with appellant's "rap" sheet which indicated a one-count November 13, 1985 first-degree burglary conviction, corresponding with the strike allegation in the complaint. Appellant confirmed to Caffese that he served a prison sentence for a November 1985 burglary conviction. Caffese could have but did not order the superior court records of the November 1985 burglary conviction, in which appellant was also represented by the San Francisco Public Defender's office.
A September 9, 1994 internal document of the District Attorney's office concerning appellant's case contains notations "Suggest: Robbery, two years plus five for seven years [;] [¶] Exposure: 11 years."
On or before the November 1, 1994 preliminary hearing, the People offered a disposition of a seven year prison term if appellant pled guilty to one of the complaint's charges . Given the rap sheet, her discussions with appellant, and what had been represented to her by the People during discovery, Caffese thought appellant had only one strike on his record and so did not think the seven year offer was a "great" offer. She therefore believed it more appropriate to proceed to trial and advised appellant not to accept the offer. He agreed with Caffese's recommendation, rejected the offer, and, following the preliminary hearing, was held to answer.
The November 15, 1994, information differed from the complaint by alleging two October 16, 1985 first degree burglary convictions as strikes. Prior to the January 1995 trial, Caffese attempted to have the People reinstate their seven year offer. They declined and offered instead a disposition of an 11-year term if appellant pled guilty.
In conveying the offer to appellant, Caffese explained that the increase to 11 years was due to a determination after his case transferred to superior court that he had two prior felony convictions, not one, and the seven year offer was no longer available. She discussed with appellant several times that the two strikes alleged in the information exposed him to a life sentence, and that she believed he would be convicted of the present charges. For these reasons she recommended that he accept the 11 year offer. Appellant indicated he would accept a seven year offer in the face of a possible 25-years-to-life sentence, but he rejected the 11 year offer because it was for a longer term than the first offer.
Appellant testified that when Caffese conveyed the seven year offer he was shocked at the length, and Caffese explained the length was due to his prior strike conviction for burglary. She then told him the offer was for "too much time, we're going to trial." Appellant thought a "strike" was a "five year prior" and that his going to prison for burglary in 1985 constituted a strike. During his discussions with Caffese about the seven year offer there was no mention of a 25-years-to-life sentence or the Three Strikes Law. He would have accepted the seven year offer had Caffese explained that he risked a 25 years-to-life sentence.
Appellant also testified that during Caffese's discussion and recommendation of the subsequent 11 year offer, she explained that he faced a 25-years-to-life exposure. He testified that he rejected the 11 year offer because (1) he was confused why Caffese would have advised against the seven year offer but recommended an 11 year offer, and (2) he did not understand how he fell under the Three Strikes Law.
Caffese testified that appellant's case was among the first Three Strikes cases she had tried and was among the first headed for trial in San Francisco after the Three Strikes Law took effect. At the time of the preliminary hearing, i.e., November 1, 1994, Caffese considered the issue of whether multiple residential burglary convictions pled and proven in a single proceeding were chargeable as multiple strikes to be an unsettled area of law. Had she known at the preliminary hearing that, contrary to the complaint, rap sheet and appellant's recollection, appellant had in fact been convicted of two prior burglaries in a single proceeding, she would have advised him to accept the seven year offer.
Caffese also testified that in November 1994 a disposition agreed to by the People and a defendant required approval by the superior court. She acknowledged that to approve the seven year offer, a superior court judge would necessarily not have applied the Three Strikes Law, insofar as the seven year s represented only a two year midterm for the robbery and a five year prior serious felony enhancement under section 667, subdivision (a). She also acknowledged that before approving a negotiated disposition judges would familiarize themselves with a defendant's criminal record. She did not know whether all the judges sitting in superior court in 1994 would have approved the seven year offer, but she thought it probable she could have convinced them to "go along with it."
No evidence was presented as to the maximum sentence Caffese thought possible based on the allegations in the initial complaint.
Paul Cummins, a 29 year prosecutor in the San Francisco District Attorney's office, testified that the "Exposure 11 years" notation on the internal September 9, 1994 District Attorney document was a calculation of the maximum exposure to which appellant was at risk, based on one strike. He further testified that nothing on this internal document suggested that the deputy district attorney who prepared it was aware that appellant had previously been convicted of two residential burglaries. Cummins was unable to opine whether any San Francisco superior court judge in 1994, presented with appellant's criminal record and a negotiated seven year term, would have approved the agreement.
Dayle Carlson, an expert in the use of rap sheets, testified that they usually but not always provide reliable information about a defendant's criminal history. For example, rap sheets do not always reflect multiple count convictions. A defendant's own recollection in conjunction with a rap sheet increases the accuracy of the defendant's history, but the two facts together are not definitive. Carlson opined that to obtain a thorough criminal history one needs to examine court dockets.
Psychologist John Shields examined appellant to assess his cognitive abilities. He opined that appellant had impaired cognitive ability and would have difficulty understanding complex concepts, such as the contradictory disposition offers. He further opined that an attorney would need a number of patient and careful discussions about the Three Strikes Law in order for appellant to understand its application to his predicament. Shields also opined that appellant would likely have accepted the seven year offer if the ramifications of not doing so were made "meticulously" clear to him. Shields believed it unlikely that appellant clearly understood the recommendation to accept an 11 year offer when he had previously been informed that a seven year offer was not a favorable offer.
V. Roy Lefcourt, a 25 year criminal defense attorney who appears frequently in the San Francisco Superior Court, opined that in 1994 the judges of the San Francisco Superior Court would have adopted the seven year disposition, even if the presentence report disclosed that appellant had two prior strikes instead of the one strike charged. In his experience courts approve an agreement negotiated by the People and the defendant unless some "dramatic" past event is discovered in the interim.People v. Jones, No. A086128, slip op. at 3-6 (Cal Ct. App. Oct. 23, 2000) (hereinafter "Slip op.") (attached as Respt. Exh. A). The Court of Appeal found Caffese's representation was not deficient, and that, in any event, petitioner was not prejudiced by her representation.
This summary is based on the declarations and testimony offered in connection with the new trial motion, and it is not disputed by the parties.
A violation of the Sixth Amendment right to counsel based on trial counsel's ineffectiveness requires a showing that counsel's performance was both deficient and prejudicial.Strickland v. Washington, 466 U.S. 668, 686-93 (1984). In assessing defense counsel's performance, the relevant inquiry is not what counsel could have done, but rather whether the choices made by counsel were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Prejudice exists if there is a reasonable probability, in other words a probability sufficient to undermine confidence in the trial's outcome, that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 689. A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. Id. at 697;Williams v. Calderon, 52 F.3d 1465, 1470 n. 3 (9th Cir. 1995) (approving refusal by district court to consider whether counsel's conduct was deficient after determining that petitioner could not establish prejudice).
Under federal law, to establish prejudice resulting from counsel's advice to reject a plea offer, the petitioner is required to show that, but for counsel's errors, he would have pleaded guilty and would not have insisted on going to trial.Turner v. Calderon, 281 F.3d 851, 879 (9th Cir. 2002). Here, at the hearing in the trial court, petitioner testified, and he reiterates here, that he would have accepted the seven-year offer if he had known that he faced a possible sentence of 25 years to life and counsel had not advised him to reject the offer. Petitioner's statement that he would have accepted the offer, however, is not, by itself, sufficient to establish prejudice; the record must also contain some objective evidence that petitioner would have accepted the seven-year offer if counsel had advised him that he faced a potential sentence of 25 years to life and had not advised him to reject the offer. See Paters v. United States, 159 F.3d 1043, 1047 (7th Cir. 1998);United States v. Gordan, 156 F.3d 376, 380 (2d Cir. 1998);see also Jones v. Wood, 114 F.3d 1002, 1012 (9th Cir. 1997) (finding no prejudice where objective evidence indicated petitioner would not have pleaded guilty even if counsel had not erred).
As noted, the California Court of Appeal found no prejudice. The California Court of Appeal's conclusion that petitioner was not prejudiced was not "contrary" to federal law within the meaning of § 2254(d)(1). A state court decision that correctly identifies the controlling Supreme Court framework and applies it to the facts of a prisoner's case does "not fit comfortably within § 2254(d)(1)'s `contrary to' clause." See Williams, 529 U.S. at 405-06 (holding state court's Strickland analysis, for example, generally does not fall within "contrary to" clause). The state court's decision need not cite federal cases, indeed, it need not even be aware of such authority, so long as neither the reasoning nor the result of the state court decision contradicts it. Early v. Packer, 123 S.Ct. 362, 365 (2002). In this case, the Court of Appeal applied the two-prongStrickland test. Slip Op. at 7. The Court of Appeal concluded that there was no prejudice under Strickland because there was not a reasonable likelihood that but for the deficient performance by counsel, petitioner would have accepted the seven-year offer and not insisted on going to trial. Id. at 9. In other words, the Court of Appeal applied the same standard as set forth in Turner and discussed above. Additionally, in reaching its conclusion, the Court of Appeal found, as is required by federal law, that for prejudice to be established, there must be objective evidence in addition to petitioner's own statements that he would have taken the offer. Id. In sum, because the California Court of Appeal, in evaluating the prejudice from counsel's performance, applied the same standards set forth under federal law, its decision was not contrary to federal law under § 2254(d)(1).
Nor was the California Court of Appeal's finding of no prejudice an "unreasonable application" of federal law under § 2254(d)(1). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 529 U.S. at 412-13; cf. Early v. Packer, 123 S.Ct. at 364 (holding failure to cite governing Supreme Court precedent not in itself grounds to grant writ). "[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 411.
Here, the record contains some evidence corroborating petitioner's statement that he would have accepted the seven-year offer had he known of his exposure to a sentence of 25 years to life. Specifically, Caffese testified at the trial court hearing that when petitioner rejected the offer of I 11 years, he also said that he would now accept an offer of seven years. On the other hand, there was substantial evidence indicating that petitioner would not have accepted the seven-year offer at the time it was made, even in the face of a sentence of 25 years to life. Petitioner did not accept the eleven-year offer when Caffese advised him to take it. Petitioner's rejection of an eleven-year offer, against his attorney's advice and with full knowledge that he faced the possibility of a much longer sentence of twenty-five years to life in prison, suggests that petitioner was determined to go to trial. A sentence of seven years, although more attractive than a sentence of eleven years, is not sufficiently shorter relative to a sentence of 25 years to life to suggest that petitioner would have been willing to give up his right to a jury trial before he even had been held to answer, particularly where petitioner claimed he was innocent and had been wrongfully identified as the perpetrator. Seven years in prison is a substantial amount of time for a person who asserts he is innocent to accept. See, e.g., Wood, 114 F.3d at 1012 (finding petitioner's claim of innocence made it less likely that he would have accepted plea or was prejudiced by counsel's error). If petitioner refused, against the advice of counsel, to accept an offer of eleven years when faced with a possible life sentence, there is not a reasonable probability that he would have accepted the offer of seven years.
Given the record before it, the California court reasonably could have concluded that there was not a reasonable probability that petitioner would have accepted the offer of seven years, even had Caffese advised him to accept it and of his exposure to a 25-years-to-life sentence. Accordingly, the state court's finding that petitioner was not prejudiced by Caffese's performance was a reasonable application of federal law, and petitioner is not entitled to habeas relief on this claim.
2. Jury
Petitioner claims that the dismissal of the first jury on the trial of his prior convictions violated his constitutional right to a jury trial. Shortly after the jury reached a verdict on the substantive offenses in this case, the trial court informed the jury that it would need to decide whether the allegations as to petitioner's prior convictions were true. Five of the jurors then stated they were opposed to the Three Strikes Law and would not apply it in the case before them. Since this left an insufficient number of jurors, the trial court declared a mistrial on the prior conviction allegations. There is no constitutional violation in removing jurors whose views or beliefs would prevent or substantially impair the performance of their duties as a juror in accordance with their instructions and their oath. See Wainwright v. Witt 469 U.S. 412, 424 (1985). Here, because five of the jurors had indicated they would not fulfill their duties to apply the Three Strikes law, their removal, and the consequent mistrial, did not violate petitioner's constitutional rights. Accordingly, petitioner is not entitled to habeas relief on this claim.
As noted, a second jury found those allegations to be true.
Petitioner also alludes to the fact that the jury that found his priors to be true was different than the jury that convicted him of the underlying charges. There is no Supreme Court authority requiring, as a matter of federal law, that petitioner's prior convictions be tried by the same jury that tried the underlying offenses.
Petitioner also claims that the trial of the priors by a second jury after the mistrial violated the Double Jeopardy Clause. There is no Supreme Court authority to support this position. The Double Jeopardy Clause protects against successive prosecutions for the same offense. The Double Jeopardy Clause is not applicable to retrials of prior conviction allegations because sentencing determinations in noncapital cases do not place a defendant in jeopardy for an "offense." See Monge v. California, 524 U.S. 721, 727-28 (1998) (holding retrial on sentence enhancement after reversal for lack of sufficient evidence as to prior convictions not barred by Double Jeopardy Clause). As a result, petitioner is not entitled to habeas relief on this claim.
CONCLUSION
In light of the foregoing, the petition for a writ of habeas corpus is DENIED. All pending motions are terminated and the Clerk shall close the file.
IT IS SO ORDERED.