SHEILA K. OBERTO, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the petition, which was filed on September 27, 2012. Respondent filed an answer on January 29, 2013.
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding.
The challenged judgment was rendered by the Superior Court of the State of California, County of Fresno (FCSC), which is located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d). Petitioner claims that in the course of the proceedings resulting in his conviction, he suffered violations of his constitutional rights.
Accordingly, the Court concludes that it has subject matter jurisdiction over the action pursuant to 28 U.S.C. §§ 2254(a) and 2241(c)(3), which authorize a district court to entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States.
An answer was filed on behalf of Respondent Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation (CDCR), who was named by Petitioner and who had custody of Petitioner at his institution of confinement. Petitioner thus has named as a respondent a person who had custody of Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules).
However, in view of the fact that the Secretary of the CDCR is now Jeffrey A. Beard, it is ORDERED that Jeffrey A. Beard, Secretary of the CDCR, is SUBSTITUTED as Respondent pursuant to Fed. R. Civ. P. 25.
Petitioner alleges he is serving a seven-year sentence imposed in November 2011 in the FCSC for what Petitioner describes as "DUI-second strike." (Petn., doc. 1, 1.) Petitioner appends to the petition documents chronicling his unsuccessful attempt to appeal his conviction after the trial court denied his request for a certificate of probable cause, a document that was required for Petitioner to proceed with an appeal following a guilty plea. Attached to his petition is a copy of a petition for writ of habeas corpus that petitioner filed in the California Supreme Court (CSC). The petition was denied summarily on June 27, 2012.
Petitioner alleges he suffered the ineffective assistance of counsel (IAC) in violation of his rights under the Sixth and Fourteenth Amendments because his appointed trial counsel was ineffective in coercing Petitioner to enter a guilty plea pursuant to a bargain for a seven-year sentence. Although counsel advised Petitioner to take the offer to avoid a possible life sentence for a third strike, Petitioner alleges counsel only showed him one strike "on my court papers," but "I told him I only signed one in 2007." (
Petitioner states in an unverified document that if he had not been advised to take the deal, the maximum sentence he would have faced was the seven years he received; he would have insisted on a
Title 28 U.S.C. § 2254 provides in pertinent part:
Clearly established federal law refers to the holdings, as opposed to the dicta, of the decisions of the Supreme Court as of the time of the relevant state court decision.
A state court's decision contravenes clearly established Supreme Court precedent if it reaches a legal conclusion opposite to, or substantially different from, the Supreme Court's or concludes differently on a materially indistinguishable set of facts.
A state court's determination that a claim lacks merit precludes federal habeas relief as long as fairminded jurists could disagree on the correctness of the state court's decision.
In assessing under section 2254(d)(1) whether the state court's legal conclusion was contrary to or an unreasonable application of federal law, "review. . . is limited to the record that was before the state court that adjudicated the claim on the merits."
The law governing claims concerning ineffective assistance of counsel is clearly established for the purposes of the AEDPA deference standard set forth in 28 U.S.C. § 2254(d).
In determining whether counsel's conduct was deficient, a court should consider the overall performance of counsel from the perspective of counsel at the time of the representation.
Establishing that a state court's application of the Strickland standard was unreasonable under § 2254(d) is all the more difficult. The standards created by
Here, with respect to a challenge to a guilty plea, if a prisoner pleads guilty on the advice of counsel, the prisoner must demonstrate that the advice was not within the range of competence demanded of attorneys in criminal cases.
To demonstrate ineffective assistance of counsel in the context of a challenge to a guilty plea, a habeas petitioner must show both that counsel's advice fell below an objective standard of reasonableness as well as a "reasonable probability" that, but for counsel's errors, the petitioner would not have pleaded guilty and would have insisted on going to trial.
Petitioner does not allege he was ignorant of either his constitutional rights or the substantive law relating to his commitment offense; he readily admits that he is guilty of the substantive offense and that he deserves prison time for his prior conviction. (Doc. 14, 5.) Petitioner's sole challenge is to the advice received regarding the sentence imposed pursuant to the bargain.
Petitioner alleges in a conclusional fashion that he had only one prior strike, he only signed one, and counsel did not show him any paper work that proved that he had sustained two prior strikes. (Petn., doc. 1, 6; doc. 14, 4 [unsworn statement in the traverse].) He alleges that both the prosecutor and defense counsel stated that he had two prior convictions (doc. 1, petn. filed in CSC at 3); however, he does not set forth the nature of any prior conviction or any other factual detail regarding his criminal history. Likewise, if he is contending that there was a basis for striking a prior conviction to reduce his overall sentence, he has failed to specify any facts warranting a motion to strike a prior conviction or even suggesting that such a motion would have been successful.
Petitioner alleges that counsel only spoke to him two or three minutes before each court appearance and did nothing to obtain a lower sentence for Petitioner. (Doc. 1, petn. filed in CSC at 4.) Defense counsel has a duty to make a reasonable investigation or to make a reasonable decision that makes a particular investigation unnecessary.
Here, Petitioner has not detailed the charges filed against him, the conduct that was the basis of the charges, his criminal history, facts indicating the legal sufficiency of any of his prior convictions or other adjudications to warrant the sentence actually imposed or a different sentence, or the precise terms of the plea bargain which Petitioner apparently accepted. These are all matters that are within Petitioner's personal knowledge.
The record indicates at best that there was a disagreement or misunderstanding between Petitioner and the other participants in the criminal proceedings as to the nature or legal effect of prior adjudications, but not that counsel gave incorrect advice. Although Petitioner asserts in an unsworn document that he would have gone to trial had he received correct advice, he has not set forth any basis for concluding that the advice to take the plea was, under all the circumstances, objectively unreasonable and without the range of reasonable competence. Petitioner has not shown that he could have avoided conviction or a seven-year sentence. Indeed, he has admitted his guilt and that he deserves to serve time for his prior conviction. The state court could have reasonably concluded that Petitioner had not shown substandard advice or any basis for an inference of prejudice.
Accordingly, it will be recommended that Petitioner's IAC claim be denied.
Petitioner alleges that his sentence of seven years, consisting of the upper term of three years doubled to six because of a "prior strike" with an additional year for a "prison prior," was excessive because he was coerced to agree to it when it was not certain that Petitioner even had two prior "strike" convictions, and because the restitution ordered was excessive. (Pet., doc. 1, 8.) He alleges that at his first court appearance, he was offered thirty-two months and a second strike, and three months later he was looking at seven years and a third strike when they were not even sure he had two strikes. (
With respect to restitution, Petitioner alleges only that he was ordered to pay $3,000 because he was on parole, whereas others were charged only $200.00. (
With respect to the component of the sentence relating to Petitioner's time in custody, he does not appear to argue that his sentence exceeded the time to which he was properly exposed under state law. Such a claim would not warrant relief in this proceeding. A claim alleging misapplication of state sentencing law involves a question of state law which is not cognizable in a proceeding pursuant to 28 U.S.C. § 2254.
To the extent that Petitioner may be challenging his seven-year sentence as disproportionate and excessive, Petitioner has not alleged facts that would entitle him to relief. A criminal sentence that is "grossly disproportionate" to the crime for which a defendant is convicted may violate the Eighth Amendment.
The Eighth Amendment does not disturb the authority of a state to protect the public by adopting a sentencing scheme that imposes longer sentences on recidivists who have suffered a serious prior felony conviction.
Here, Petitioner has not set forth any facts regarding the substance and circumstances of his commitment offense, the social harm resulting from his criminal conduct, and Petitioner's criminal history. In view of not only the limited legal basis for a challenge to the sentence, but also the absence of any pertinent factual detail, there is no basis for the Court to conclude that Petitioner's seven-year sentence was disproportionate or excessive.
To the extent Petitioner raises a claim concerning his restitution, he appears to be arguing about the application or interpretation of state law made by the state court. Federal habeas relief is not available to retry a state issue that does not rise to the level of a federal constitutional violation.
Petitioner has also failed to state any factual basis for a finding that the amount of restitution he was ordered to pay violated any constitutional right because unspecified others had been ordered to pay less. A petitioner may establish an equal protection claim by showing that he was intentionally discriminated against based on his membership in a protected class.
Here, Petitioner has not alleged facts showing that he was the object of any intentional discrimination or that he was similarly situated with the others who allegedly were ordered to pay less restitution. Petitioner has not shown any basis for relief with respect to the amount of restitution ordered. Accordingly, it will be recommended that the Court deny Petitioner's claim that his sentence was excessive.
Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the Court of Appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A);
A certificate of appealability may issue only if the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.
In determining this issue, a court conducts an overview of the claims in the habeas petition, generally assesses their merits, and determines whether the resolution was debatable among jurists of reason or wrong.
Here, it does not appear that reasonable jurists could debate whether the petition should have been resolved in a different manner. Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, it will be recommended that the Court decline to issue a certificate of appealability.
Based on the foregoing, it is RECOMMENDED that:
These findings and recommendations are submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 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. Within thirty (30) days after being served with a copy, 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." Replies to the objections shall be served and filed within fourteen (14) days (plus three (3) days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal.
IT IS SO ORDERED.
The Court takes judicial notice of the identity of the secretary from the official website of the California Department of Corrections and Rehabilitation (CDCR),