Opinion
No. CIV S-03-0609 LKK DAD P.
July 21, 2006
FINDINGS RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the judgment of conviction entered against him in the Solano County Superior Court on charges of second degree robbery with use of a firearm. He seeks relief on the grounds that his guilty plea was involuntary, having been coerced by the prosecutor and his own attorney and that his trial attorney rendered ineffective assistance by coercing petitioner to sign the plea agreement. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
BACKGROUND
On January 3, 2001, a felony complaint was filed in the Solano County Superior Court charging petitioner with three counts of second degree robbery with personal use of a handgun and a knife; two counts of assault with a semiautomatic firearm; one count of making terrorist threats with personal use of a handgun and a knife; two counts of cutting a utility line; one count of assault with a deadly weapon (a knife) by means likely to produce great bodily injury; one count of possession of a firearm by a felon; and one count of being a felon in possession of a concealed firearm in his vehicle. (Answer, Ex. A at 1-6.) It was also alleged that petitioner had served a prior prison term. (Id. at 5.) The allegations against petitioner arose from a robbery of a restaurant in Solano County. (Answer, Ex. D.)
On May 31, 2001, pursuant to a plea agreement, petitioner pled no contest in Solano County Superior Court to one count of second degree robbery with personal use of a firearm. (Answer, Ex. A at 7-9.) Pursuant to the plea agreement, petitioner was sentenced to twelve years in state prison. (Id. at 10-13.)
Petitioner filed a petition for writ of habeas corpus in the Solano County Superior Court. (Answer, Ex. C at consecutive p. 7.) Therein, he claimed that he received ineffective assistance of counsel and that he entered into the plea agreement under duress. (Id.) On February 22, 2002, that petition was denied on the merits. (Id. at 9-10.) The Superior Court explained its reasoning as follows:
Petitioner has neither pled sufficient facts to call the legality of his plea into question, nor has he pled sufficient facts concerning the filing of an appeal on his behalf by his public defender that would entitle him to extraordinary relief. (People v. Duvall, (1995) 9 Cal.4th 464, 474). Petitioner has also not shown that his public defender's performance was deficient and that he suffered prejudice because of it. Accordingly, Petitioner has not made a prima facie showing of ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 688; Hill v. Lockhart (1985) 47 U.S. 52).
(Id. at 10.)
Petitioner subsequently filed a petition for a writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Answer, Ex. C at consecutive p. 6.) That petition was denied on March 7, 2002. (Id.) On April 9, 2002, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Id. at consecutive pgs. 2-7.) Therein, he claimed that his plea of nolo contendere was coerced and made under duress and that his trial counsel rendered ineffective assistance when he coerced petitioner to sign the plea agreement. (Id.) That petition was denied by order dated July 24, 2002, with citation to In re Swain, 34 Cal. 2d 300 (1949) and In re Duvall, 9 Cal. 4th 464, 474 (1995). (Id. at consecutive p. 1.) Petitioner filed his federal petition for writ of habeas corpus in this court on September 27, 2002.
ANALYSIS
I. Standards of Review Applicable to Habeas Corpus Claims
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting 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.28 U.S.C. § 2254(d). See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000);Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 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 section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003);Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
II. Petitioner's Claims
A. Exhaustion of State Remedies
Respondent contends that petitioner did not exhaust state remedies with respect to any of his claims. Specifically, respondent argues that the California Supreme Court's citation toIn re Swain precludes a finding of exhaustion as to the claims raised in petitioner's petition for writ of habeas corpus filed in the Supreme Court. Respondent also contends that petitioner did not raise in any state court his current claim that the prosecutor coerced him to accept the plea agreement. Alternatively, respondent urges that petitioner's claims be denied on the merits pursuant to 28 U.S.C. § 2254(b)(2).
The exhaustion of available state remedies is a prerequisite to a federal court's consideration of claims sought to be presented in habeas corpus proceedings. See Rose v. Lundy, 455 U.S. 509 (1982); Carothers v. Rhay, 594 F.2d 225 (9th Cir. 1979); 28 U.S.C. § 2254(b). However, "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). A federal court considering a habeas petition may deny an unexhausted claim on the merits when it is perfectly clear that the claim is not "colorable." Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). Notwithstanding petitioner's alleged failure to exhaust in state court the claims raised in the instant petition, this court will recommend that habeas relief be denied on the merits of those claims for the reasons explained below. Petitioner's claims are not "colorable" and he is therefore not entitled to habeas relief.
B. Coerced Guilty Plea
Petitioner claims that his trial attorney and the prosecutor forced him to plead guilty by threatening that petitioner "would lose [his] only child" and receive more than "75 years — life" if he did not "sign their 12 yr. guilty plea." (Pet. at 8.) Petitioner states that there was "no evidence" against him and that he would have proceeded to trial if he had not been threatened. (Id.)
Although petitioner claims that he entered a guilty plea, he actually pled nolo contendere, or "no contest." (Answer, Ex. A at 7.) Under California law, a plea of nolo contendere has the same effect as a plea of guilty in the context of the criminal proceedings. See, e.g., People v. West, 3 Cal. 3d 595 (1970). Accordingly, federal constitutional principles governing guilty pleas apply to petitioner's claims in the instant case.Miller v. McCarthy, 607 F.2d 854, 856 (1979).
A guilty plea must be knowing, intelligent and voluntary.Brady v. United States, 397 U.S. 742, 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242 (1969). "The voluntariness of [a petitioner's] guilty plea can be determined only by considering all of the relevant circumstances surrounding it." Brady, 397 F.2d at 749. In Blackledge v. Allison, 431 U.S. 63 (1977), the Supreme Court addressed the presumption of verity to be given the record of plea proceeding when the plea is subsequently subject to a collateral challenge. While noting that the defendant's representations at the time of his guilty plea are not "invariably insurmountable" when challenging the voluntariness of his plea, the Supreme Court stated that, nonetheless, the defendant's representations, as well as any findings made by the judge accepting the plea, "constitute a formidable barrier in any subsequent collateral proceedings" and that "[s]olemn declarations in open court carry a strong presumption of verity."Id. at 74. See also Marshall v. Lonberger, 459 U.S. 422, 437 (1983) (plea presumed valid in habeas proceeding when pleading defendant was represented by counsel); Little v. Crawford, 449 F.3d 1075, 1081 (9th Cir. 2006); Chizen v. Hunter, 809 F.2d 560, 561 (9th Cir. 1986).
In Boykin, the United States Supreme Court held that the record must affirmatively show that a criminal defendant's guilty plea is intelligent and voluntary. 395 U.S. at 242-43. In that case, the judge taking the plea had asked no questions of petitioner concerning his guilty plea and petitioner did not address the court. The Supreme Court concluded the record must reflect that a criminal defendant pleading guilty understands, and is voluntarily waiving, his rights to the privilege against compulsory self-incrimination, to trial by jury and to confront one's accusers and that the court would not presume such a waiver from a silent record. Id. In Brady the court, citingBoykin, upheld a guilty plea as voluntary and intelligent even though the defendant had not been specifically advised of the three rights discussed in Boykin. The court in Brady clarified the holding of Boykin by stating, "the new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily." 397 U.S. at 747-48 n. 4. Thus, specific articulation of the Boykin rights "is not the sine qua non of a valid guilty plea." Wilkins v. Erickson, 505 F.2d 761, 763 (9th Cir. 1974). Rather, if the record demonstrates that a guilty plea is knowing and voluntary, "no particular ritual or showing on the record is required."United States v. McWilliams, 730 F.2d 1218, 1223 (9th Cir. 1984). Finally, the Due Process Clause does not impose on a state court the duty to establish a factual basis for a guilty plea absent special circumstances, such as "a specific protestation of innocence." Rodriguez v. Ricketts, 777 F.2d 527, 528 (9th Cir. 1985).
After a review of the record in this case, the undersigned concludes that petitioner's plea of nolo contendere was voluntarily made, with knowledge of the consequences thereof. There was a full and complete colloquy between the court and petitioner at the time he entered his plea. (Answer, Ex. B at 2-6.) Petitioner answered in the affirmative when asked by the trial court whether he had read the plea agreement form and discussed it with his counsel. (Id. at 2.) That form, which petitioner signed and initialed, advised petitioner of his right to a preliminary hearing and a speedy and public trial, the right to confront the witnesses against him, the right to obtain witnesses for his defense, the right against self-incrimination and the right of appeal. (Answer, Ex. A at 7-8.) Petitioner specifically gave up those rights by initialing the form. (Id.) The form also advised petitioner regarding the particulars of his sentence and the ramifications of his plea. (Id. at 8.) Petitioner acknowledged on the form that he understood these matters. (Id.) Petitioner also acknowledged on the form that other than a promise to dismiss numerous counts against him and a promise of a twelve-year sentence, "no promises have been made to me or my family to induce me to enter this plea." (Id.) Moreover, petitioner also specifically acknowledged on the form that "no threats have been made against me or any member of my family or close friends in order to induce me to make this plea." (Id.) Respondent has filed the declarations of petitioner's trial attorney and the prosecutor at his trial. (Answer, Exs. E, F.) Both counsel have declared under penalty of perjury that petitioner was not threatened or coerced in any way to enter into a plea agreement. (Id.) Specifically, both attorneys state that they neither told petitioner that he faced a sentence of seventy-five years to life in state prison nor that his child would be taken away from him if he did not accept the offered plea bargain. (Id.)
On the plea agreement form, petitioner's attorney declared that he had read the form and explained it to petitioner and that he was satisfied that petitioner's plea was freely and voluntarily made and with knowledge of the consequences of the plea. (Answer, Ex. A at 9.) At the change of plea hearing, petitioner stated that he understood his no contest plea would be treated as a guilty plea for purposes of sentencing, that he had the right to a preliminary hearing and jury trial, and that he understood the nature of the sentence and the maximum penalty. (Answer, Ex. B at 2.) The sentencing judge signed the plea form, finding that petitioner had been fully informed of his constitutional rights and the consequences of his plea and that he knowingly, intelligently, and voluntarily waived his rights. (Answer, Ex. A at 9.) The sentencing court found that there was a factual basis for petitioner's plea. Indeed, petitioner confessed to the charged crimes during a tape recorded interview with the police. (Answer, Ex. D at 30-31.)
The record reflects that petitioner made a voluntary and intelligent choice to plead nolo contendere to the reduced charges against him. He voluntarily waived his rights to a jury trial, to confront his accusers and his right against self-incrimination. See Boykin, 395 U.S. at 243. Further, petitioner had notice of the nature of the charges against him.See Lonberger, 459 U.S. at 436 (in order for a plea to be voluntary, an accused must receive notice of the nature of the charge against him, "the first and most universally recognized requirement of due process") (quoting Smith v. O'Grady, 312 U.S. 329, 334 (1941)). This is sufficient for purposes of federal review. Lonberger, 459 U.S. at 436. Aside from petitioner's unsupported allegations, there is no evidence that petitioner was threatened in any way in order to induce him to enter into the plea agreement. See Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)) ("`[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief'"). Petitioner has failed to demonstrate any special circumstances, such as a protestation of innocence at the plea hearing, that would allow for habeas relief under section 2254. See Rodriguez, 777 F.2d at 528. Accordingly, for all of the foregoing reasons, petitioner is not entitled to relief on his claim that his plea of nolo contendere was coerced or involuntary.
B. Ineffective Assistance of Counsel
Petitioner contends that his trial attorney rendered ineffective assistance when he forced petitioner to enter into the plea agreement by threatening him with the loss of his child and a sentence of seventy-five years to life in prison if he did not do so.
The Sixth Amendment guarantees the effective assistance of counsel. The United States Supreme Court set forth the test for demonstrating ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To support a claim of ineffective assistance of counsel, a petitioner must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88. After a petitioner identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment, the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). Second, a petitioner must establish that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome."Id. See also Williams, 529 U.S. at 391-92; Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). A reviewing 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. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed."Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (quotingStrickland, 466 U.S. at 697).
In assessing an ineffective assistance of counsel claim "[t]here is a strong presumption that counsel's performance falls within the `wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting 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). However, that deference "is predicated on counsel's performance of sufficient investigation and preparation to make reasonably informed, reasonably sound judgments." Mayfield v. Woodford, 270 F.3d 915, 927 (9th Cir. 2001) (en banc).
Petitioner has failed to establish either deficient performance or prejudice with respect to this claim. Petitioner's unsupported allegations that his trial counsel threatened him with the loss of his child and an onerous prison sentence if he failed to enter the nolo plea are too conclusory to warrant the granting of habeas relief. See Jones v. Gomez, 66 F.3d at 204; James v. Borg, 24 F.3d at 26. Further, petitioner's statements are in direct conflict with the declarations of both his trial attorney and the prosecutor, who have declared under penalty of perjury that no threats of any kind were made to induce petitioner to enter into a plea agreement. Indeed, both counsel state that the subject of petitioner's child did not come up in any conversation either between counsel or between defense counsel and petitioner. (Answer, Exs. E, F.)
Petitioner has also failed to establish prejudice. As described above, petitioner was charged with numerous serious crimes but was allowed to plead guilty to just one charge of second degree burglary and one gun enhancement. Under these circumstances, and in light of his confession, petitioner's plea was clearly in his best interest. Petitioner's unsupported allegation that there was "no evidence" against him is belied by the record. His claim that he would have proceeded to trial in the absence of the alleged threats is insufficient to establish entitlement to federal habeas relief.
Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus 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 twenty 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 ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).