JEREMY D. PETERSON, Magistrate Judge.
Petitioner Carlos Espinoza, Jr., a state prisoner without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. He raises one habeas claim, alleging that he has received ineffective assistance of counsel. We recommend that the court deny the petition.
Petitioner attacked several people, believing that his ex-girlfriend, Elisa Mejia, had had an affair with a man by the name of Steven Mendoza. Petitioner stabbed Mendoza, killing him, and turned a taser on several bystanders. The government charged petitioner with first-degree murder, attempted murder, and assault. Given the charges and his two prior strikes, petitioner faced life in prison without the possibility of parole.
This case arises from petitioner's plea negotiations with the government. The prosecutor offered petitioner a plea deal in which the government would recommend a sentence of fifty-five years to life in prison if petitioner would plead guilty to voluntary manslaughter and certain other offenses. Petitioner's trial attorney then went on medical leave and eventually retired. The public defender's office assigned petitioner a second attorney, who did not notice the reference in his predecessor's notes to the government's most recent offer, and who emailed the prosecutor rejecting a prior offer and proposing a resolution on different terms. The prosecutor construed the second attorney's offer as a rejection of the government's most recent offer. The public defender's office eventually replaced this second attorney with a third attorney, who took up the reins in plea negotiations. Ultimately, petitioner entered into a plea agreement, admitted his two prior strikes, and pleaded no contest to one count of second-degree murder and one count of assault with a deadly weapon. The government dismissed all other counts. The Tulare County Superior Court sentenced petitioner to fifty-five years to life. The parties agree that petitioner's conviction and sentence are the same as the terms of the plea offer rejected by petitioner's second attorney, except that petitioner pleaded guilty to second-degree murder instead of the less serious offense of voluntary manslaughter.
We set forth below the facts of the underlying offenses, as stated by the Court of Appeal. A presumption of correctness applies to these facts. See 28 U.S.C. § 2254(e)(1); Crittenden v. Chappell, 804 F.3d 998, 1010-11 (9th Cir. 2015).
People v. Espinoza, No. F072381, 2016 WL 6892244, at *1-4 (Cal. Ct. App. Nov. 23, 2016).
A federal court may grant habeas relief when a petitioner shows that his custody violates federal law. See 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75 (2000). Section 2254 of Title 28, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), governs a state prisoner's habeas petition. See § 2254; Harrington v. Richter, 562 U.S. 86, 97 (2011); Woodford v. Garceau, 538 U.S. 202, 206-08 (2003). To decide a Section 2254 petition, a federal court examines the decision of the last state court that issued a reasoned opinion on petitioner's habeas claims. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
When a state court has adjudicated a petitioner's claims on the merits, a federal court reviews the state court's decision under the deferential standard of Section 2254(d). Section 2254(d) precludes a federal court from granting habeas relief unless a state court's decision is (1) contrary to clearly established federal law, (2) a result of an unreasonable application of such law, or (3) based on an unreasonable determination of facts. See § 2254(d); Murray v. Schriro, 882 F.3d 778, 801 (9th Cir. 2018). A state court's decision is contrary to clearly established federal law if it reaches a conclusion "opposite to" a holding of the United States Supreme Court or a conclusion that differs from the Supreme Court's precedent on "materially indistinguishable facts." Soto v. Ryan, 760 F.3d 947, 957 (9th Cir. 2014) (citation omitted). The state court's decision unreasonably applies clearly established federal law when the decision has "no reasonable basis." Cullen v. Pinholster, 563 U.S. 170, 188 (2011). An unreasonable determination of facts occurs when a federal court is "convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record." Loher v. Thomas, 825 F.3d 1103, 1112 (9th Cir. 2016). A federal habeas court has an obligation to consider arguments or theories that "could have supported a state court's decision." See Sexton v. Beaudreaux, 138 S.Ct. 2555, 2557 (2018) (quoting Richter, 562 U.S. at 102). On all issues decided on the merits, the petitioner must show that the state court's decision is "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.
Even when a state court does not explicitly address a petitioner's claims on the merits, a Section 2254 petitioner must satisfy a demanding standard to obtain habeas relief. When a state court gives no reason for denying a petitioner's habeas claim, a rebuttable presumption arises that the state court adjudicated the claim on the merits under Section 2254(d). See Richter, 562 U.S. at 99. And a federal habeas court's obligation to consider arguments or theories that could support a state court's decision extends to state-court decisions that offer no reasoning at all. See Sexton, 138 S. Ct. at 2557.
If a state court denies a petitioner's habeas claim solely on a procedural ground, then Section 2254(d)'s deferential standard does not apply, see Visciotti v. Martel, 862 F.3d 749, 760 (9th Cir. 2016), but the petitioner faces another hurdle: if the state court's decision relies on a state procedural rule that is "firmly established and regularly followed," the petitioner has procedurally defaulted on his claim and cannot pursue habeas relief in federal court unless he shows that the federal court should excuse his procedural default. See Johnson v. Lee, 136 S.Ct. 1802, 1804 (2016); accord Runningeagle v. Ryan, 825 F.3d 970, 978-79 (9th Cir. 2016). If the petitioner has not pursued his habeas claim in state court at all, the claim is subject to dismissal for failure to exhaust state-court remedies. See Murray, 882 F.3d at 807.
If obtaining habeas relief under Section 2254 is difficult, "that is because it was meant to be." Richter, 562 U.S. at 102. As the Supreme Court has put it, federal habeas review "disturbs the State's significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority." Id. at 103 (citation omitted). Our habeas review authority serves as a "guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Id. at 102-03 (emphasis added).
Here, petitioner raises only one habeas claim: that he received ineffective assistance of counsel. He contends that his trial attorneys were unconstitutionally deficient when they mistakenly rejected a plea deal in which he would plead guilty to voluntary manslaughter as opposed to second-degree murder. The Court of Appeal rejected petitioner's claim on the merits. The California Supreme Court summarily denied review.
A "doubly" deferential standard governs a federal habeas petitioner's claim of ineffective assistance of counsel. See Richter, 562 U.S. at 105. On direct appeal, the two-step inquiry from Strickland v. Washington guides the analysis for an ineffective-assistance-of-counsel claim. See 466 U.S. 668, 687 (1984). First, a criminal defendant must show some deficient performance by counsel that is "so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Id. Second, the defendant must show that the deficient performance caused him prejudice, which requires "showing that counsel's errors were so serious as to deprive [the petitioner] of a fair trial." Id. On habeas review, coupled with the fairminded jurist standard of Section 2254(d), the Strickland requirements become even more deferential: the question is "whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Richter, 562 U.S. at 105 (emphasis added). That is, if there is even one reasonable argument that counsel did not violate the Strickland standard—even if the state court has not identified such argument—the petitioner cannot obtain habeas relief. See id. at 106.
The Supreme Court has explicitly declined to provide a list of the duties expected of trial counsel during plea negotiations, see Missouri v. Frye, 566 U.S. 134, 145 (2012), but the Court has recognized unconstitutionally deficient performance by counsel in egregious cases. For example, advising a criminal defendant to reject a plea offer on the basis that the government cannot show intent to kill—even though the defendant had shot a gun at a victim's head—can show Strickland deficiency. See Lafler v. Cooper, 566 U.S. 156, 160-61 (2012). Likewise, failure to inform a criminal defendant about deportation risk resulting from a guilty plea can satisfy the deficiency prong under Strickland. See Lee v. United States, 137 S.Ct. 1958, 1967 (2017). And failing to inform a criminal defendant about the existence of a plea offer, thereby depriving the defendant an opportunity to consider the offer, can constitute unconstitutionally deficient performance. See Frye, 566 U.S. at 145. Because no bright line rule exists to evaluate counsel's performance during a plea negotiation, the standard that applies here is a general one: criminal defendants are entitled to effective assistance of counsel during plea negotiations. See id. at 144 ("[C]riminal defendants require effective counsel during plea negotiations. `Anything less . . . might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him.'") (quoting Massiah v. United States, 377 U.S. 201, 204 (1964)). "When applying such general rules, [state] courts have `more leeway . . . in reaching outcomes in case-by-case determinations.'" Atwood v. Ryan, 870 F.3d 1033, 1049 (9th Cir. 2017) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
As for the prejudice inquiry in plea-bargain cases, the Supreme Court has given the lower courts a three-part test. To show Strickland prejudice in this context, a criminal defendant must show: (1) a reasonable probability he would have accepted the earlier plea offer had he been afforded effective assistance of counsel; (2) a reasonable probability that the plea agreement would have been entered without being withdrawn by the prosecution; and (3) a reasonable probability that the trial court would have accepted the parties' plea agreement. See Frye, 566 U.S. at 147. The ultimate form of Strickland prejudice in the plea-bargain context can be either a more serious charge or a greater sentence. Id.
We begin with the chronology of events, which is particularly important in this case. The prosecutor initially offered a plea deal in which petitioner would plead guilty to second-degree murder; petitioner, with the help of his first attorney, Neal Pedowitz, rejected that offer. RT 3:206.
Attorney Prekoski reviewed petitioner's paper-format case file, but missed some pertinent notes that Pedowitz had saved electronically. CT 1:227. The parties agree that the public defender's office where attorneys Pedowitz and Prekoski had worked ordinarily stored client files in paper form and that it was unusual for an attorney to keep separate notes on a computer. CT 1:226-28. Attorney Prekoski did not see the notes on the computer about the pending voluntary-manslaughter offer, and mistakenly believed that he was responding to an earlier second-degree-murder offer when he sent an email to the prosecutor. Id. The record does not contain the email, but here is how petitioner's third attorney, Ben Smukler, described its content:
CT 1:231 (emphasis added). The parties agree that attorney Prekoski was unaware of the pending voluntary-manslaughter offer when he sent this email. Although the record does not show that the email explicitly rejected the offer, the prosecutor understood the email as a rejection of the pending voluntary-manslaughter offer. Id.
Petitioner then got a third attorney assigned to his case, attorney Ben Smukler, who resumed plea negotiations. The parties again discussed a plea deal in which petitioner would plead guilty to voluntary manslaughter, but the prosecutor said he needed to know whether petitioner would accept such a plea. CT 1:232. Attorney Smukler met with petitioner, informing him about a potential, new voluntary-manslaughter plea. Id. Petitioner responded that he would need to talk his father before accepting the offer; he did not tell attorney Smukler that he accepted the offer, even though he "expressed his interest" in doing so. Id. Attorney Smukler informed the prosecutor that petitioner was interested in a voluntary-manslaughter plea, but the prosecutor then said his superiors would not agree to it; petitioner, it seems, had missed his chance. Id. Petitioner ultimately pleaded guilty to second-degree murder and other offenses, for a total term of fifty-five years in prison. CT 1:280-81, 289-90.
Petitioner alleges that he was denied his constitutional right to counsel because the attorneys from the public defender's office mistakenly rejected the plea deal in which he would plead guilty to voluntary manslaughter rather than second-degree murder. ECF No. 1 at 23. Petitioner does not allege any deficiency other than the rejection of the voluntary-manslaughter plea offer, and he does not explain how each of his three trial attorneys took part in rejecting the offer. The only attorney who arguably rejected the plea offer was his second trial attorney, Prekoski. The Court of Appeal focused on attorney Prekoski's conduct and found no constitutional deficiency or prejudice. We reject petitioner's claim of ineffective assistance of counsel for his failure to show prejudice.
Petitioner contends that he would have accepted the manslaughter plea offer but for attorney Prekoski's mistaken rejection of the offer. Petitioner alleges that he called the public defender's office to accept the offer before the mistaken rejection, but attorney Pedowitz was not available. He does not deny that he would have received the same sentence—fifty-five years to life in prison—if he had accepted the manslaughter plea-offer, but he argues that he would have a greater chance of obtaining early parole.
After the rejection of the manslaughter plea-offer, the attorneys on both sides revisited the possibility of a plea deal with the same or very similar terms. CT 1:232. Petitioner again told his trial attorney that he would need more time to discuss with his father before accepting the offer. Id. Petitioner does not explain why he needed to consult his father again if he had already called the public defender's office to accept an equivalent offer. Petitioner also appeared in court with his third trial attorney—within one month of his purported decision to accept the manslaughter plea-offer—to continue the trial date. CT 1:203. If petitioner had attempted to accept the manslaughter plea-offer before that court appearance, he might be expected to have informed counsel before or at the hearing—in which case it would not have been necessary to seek a continuance.
In sum, a reasonable jurist could conclude that petitioner had not shown the requisite deficiency or prejudice under Strickland. The court should deny the petition in its entirety.
A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district court's denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases requires a district court to issue or deny a certificate of appealability when entering a final order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard requires the petitioner to show that "jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; accord Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Here, petitioner has not made a substantial showing of the denial of a constitutional right. Thus, the court should decline to issue a certificate of appealability.
We recommend that the court deny the petition and decline to issue a certificate of appealability. Under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California, we submit the findings and recommendations to the U.S. District Court Judge presiding over the case. Within fourteen days of the service of the findings and recommendations, any party may file written objections to the findings and recommendations. That document must be captioned "Objections to Magistrate Judge's Findings and Recommendations." The presiding District Judge will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C).
