ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

CONSUELO B. MARSHALL, District Judge.

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Consuelo B. Marshall, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner, a state prisoner, filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on August 11, 2015 ("Petition"). The Petition challenges Petitioner's 1996 conviction in Los Angeles Superior Court case number YA026516. The Petition was referred to United States Magistrate Judge Jay C. Gandhi.

Petitioner previously challenged his conviction in case number YA026516 in a prior habeas action filed in this Court, Fierros v. Larson, CV 99-2535-CBM(JWJ) ("the prior habeas action"). On June 19, 2001, United States Magistrate Judge Jeffrey W. Johnson issued a Report and Recommendation in the prior habeas action recommending denial and dismissal of the petition on the merits with prejudice. On July 20, 2001, the District Judge adopted the Report and Recommendation. Judgment was entered in the prior habeas action on July 20, 2001.

On December 16, 2013, Petitioner filed in the Los Angeles County Superior Court a motion for correction of presentence custody credits in connection with Petitioner's 1996 sentencing (see Petition, Ex. F, first document; see also People v. Fierros, 2014 WL 4249772 (Cal. App. Aug. 28, 2014)). The Superior Court denied the motion (id.). On appeal, the California Court of Appeal appointed counsel for Petitioner (id.). Appointed counsel filed another motion to correct the credits in the Superior Court, which that court granted on March 18, 2014 (id.). The Superior Court entered an amended abstract of judgment on April 9, 2014. The California Court of Appeal dismissed Petitioner's subsequent appeal as moot in light of the correction of Petitioner's sentence (id.). The California Supreme Court denied Petitioner's petition for review summarily (Petition, Ex. F, second document).

In the present federal habeas action, on August 19, 2015, Magistrate Judge Gandhi filed an "Order Summarily Dismissing Action Without Prejudice and Denying Certificate of Appealability." Magistrate Judge Gandhi thereby dismissed the Petition on the ground that the Petition was "second or successive" within the meaning of 28 U.S.C. section 2244(b). Judgment was entered on August 19, 2015.

On December 21, 2015, Petitioner filed a "Motion to Re-instate Petition, etc." On January 5, 2016, Magistrate Judge Gandhi issued an Order construing the motion as a motion for reconsideration and denying reconsideration. On January 19, 2016, Petitioner filed a "Motion, etc." which Magistrate Judge Gandhi construed as a motion to reopen time to file an appeal. Magistrate Judge Gandhi denied the motion on January 22, 2016. The United States Court of Appeals for the Ninth Circuit denied Petitioner's request for a certificate of appealability on March 10, 2016.

Over two years later, on June 11, 2018, Petitioner filed in this Court a "Motion to Recall Mandate." Therein, Petitioner contends that the present Petition is not "second or successive" because the Superior Court's April 9, 2014 amended judgment constituted a "new judgment intervening between the two habeas petitions" under Magwood v. Patterson, 561 U.S. 320 (2007). For this proposition, Petitioner relies on Gonzalez v. Sherman, 873 F.3d 763 (9th Cir. 2017) ("Gonzalez"). In Gonzalez, the Ninth Circuit held that a California sentencing court's recalculation and alteration of credits awarded to a petitioner constitutes a new judgment within the meaning of Magwood v. Patterson.

On October 2, 2018, because of Magistrate Judge Gandhi's previous departure from the Court, this case was reassigned to Magistrate Judge Charles F. Eick "for all proceedings in accordance with General Order 05-07."

This Court then sua sponte perceived a jurisdictional defect in the Court's August 19, 2015 judgment. As more fully explained in the Court's "Order Vacating Judgment and Directing Further Proceedings," filed October 10, 2018, the judgment was void because Magistrate Judge Gandhi had entered the judgment without the consent of the Respondent. See Williams v. King, 875 F.3d 500 (9th Cir. 2017). The Court's October 10, 2018 Order required Respondent to file a response to the Petition. The Order also denied without prejudice as moot Petitioner's "Motion to Recall Mandate."

On December 17, 2018, Respondent filed an Answer to the Petition. Respondent's Answer argues, inter alia: (1) the Petition is "second or successive" under 28 U.S.C. section 2244(b); (2) the claims in the Petition are procedurally defaulted; and (3) the claims in the Petition fail on the merits. On January 9, 2019, Petitioner filed a Reply to the Answer.

SUMMARY OF RELEVANT STATE COURT PROCEEDINGS

On November 17, 1995, a criminal complaint charged Petitioner with seven counts (Lodged Document 14 at p. 151). On the same day, Petitioner was arraigned in the Inglewood Municipal Court. Id. At that time, the Municipal Court appointed a public defender to represent Petitioner. Id. However, the public defender, who evidently was present, declared a "conflict of interest." Id. The Municipal Court then "appointed counsel pursuant to 987.2 P.C. Shirley Henderson. . . ." Id. The Municipal Court's minutes state: "Defendant is present in court, and not represented by counsel. . . ." Id. The minutes reflect that, at this arraignment, Defendant pleaded not guilty to all seven counts. Id. At the conclusion of the arraignment, the Municipal Court set a December 5, 1995 preliminary hearing.

When the Municipal Court again called the case on December 5, 1995, Petitioner and his appointed counsel, Shirley Henderson, were present. Id. When the Municipal Court next called the case on January 9, 1996, Petitioner, his appointed counsel Shirley Henderson and attorney Stephen Kahn were present. Id. at p. 16. At that time, Shirley Henderson was relieved from representing Petitioner and Stephen Kahn was substituted in as Petitioner's counsel of record. Id.

The Municipal Court called the case on February 7, 1996 for a preliminary hearing. Id. At that time, Petitioner, present with counsel Stephen Kahn, had an opportunity for another arraignment, but waived that opportunity. Id. The preliminary hearing then resulted in Petitioner being held to answer each of the seven counts. Id. Thereupon, the Municipal Court scheduled the case for proceedings in Los Angeles Superior Court to begin on February 22, 1996. Id.

On February 22, 1996, a superseding Information containing nine counts was filed in Los Angeles Superior Court. Id. at p. 17. On November 1, 1996, a Los Angeles County Superior Court jury found Petitioner guilty on all nine counts. See "Report and Recommendation of United States Magistrate Judge," filed in the prior habeas action on June 19, 2001, at p. 2.

PETITIONER'S CLAIMS

Petitioner claims that he is entitled to federal habeas relief because appointed counsel Shirley Henderson was not present at the initial arraignment in Inglewood Municipal Court and because Petitioner's appellate counsel failed to raise this alleged error on direct appeal. Petitioner does not assert that any specific prejudice resulted from Shirley Henderson's absence from the initial arraignment. Rather, Petitioner argues that the law requires the federal court conclusively to presume prejudice and to grant habeas relief without any analysis of the harmfulness or harmlessness of the error.

STANDARD OF REVIEW

Federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Further, federal habeas corpus relief may not be granted on a claim that was adjudicated on the merits in state court proceedings unless the adjudication: (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); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000). In conducting habeas review, the federal court may determine the issue of whether the Petition satisfies section 2254(a) prior to, or in lieu of, determining whether the Petition satisfies section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

DISCUSSION

I. The Petition is not "Second or Successive" Within the Meaning of 28 U.S.C. Section 2244(b).

The Ninth Circuit has held that the amendment of a California state court judgment to correct a calculation of sentencing credits renders a subsequent federal habeas petition not "second or successive," despite the previous denial of a federal habeas petition challenging the original judgment. Gonzalez, 873 F.3d at 769; see Wentzell v. Neven, 674 F.3d 1124, 1127-28 (9th Cir. 2012), cert. denied, 596 U.S. 989 (2013) ("Wentzell") (petition challenging amended judgment is not "second or successive" even if the petition only challenges components of the judgment unaltered by the amendment); see also Turner v. Baker, 2019 WL 190004, at *3-4 (9th Cir. Jan. 15, 2019) (reaching same result as in Gonzalez in a habeas action challenging a Nevada state court amended judgment). Because the present case is legally indistinguishable from Gonzalez and Wentzell, this Court must conclude that the present Petition is not "second or successive" within the meaning of 28 U.S.C. section 2244(b). See Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001) (district judge may not "disagree with his learned colleagues on his own court of appeals who have ruled on a controlling legal issue"); Zuniga v. United Can Co., 812 F.2d 443, 450 (9th Cir. 1987) ("District courts are, of course, bound by the law of their own circuit.").2

II. The Alleged Denial of Counsel at Petitioner's Initial Arraignment Does not Merit Federal Habeas Relief3

Petitioner argues that he is entitled to federal habeas relief regardless of the lack of prejudice resulting from the absence of Petitioner's second appointed counsel during the initial arraignment in Municipal Court.4 Petitioner argues that prejudice must be conclusively presumed, and relief must issue, whenever a defendant's counsel is absent from an arraignment.

Long established Ninth Circuit law requires the rejection of Petitioner's argument. In Riley v. Wilson, 430 F.2d 1134, 1136 (9th Cir. 1970), the Ninth Circuit held that the petitioner was not entitled to habeas relief where the petitioner had been denied counsel during the petitioner's initial arraignment in Los Angeles Municipal Court. The Ninth Circuit did so because the petitioner had failed to allege how he supposedly had been prejudiced. Id. The Ninth Circuit also observed that the petitioner had been represented by counsel at the later preliminary hearing. Id. Similarly, in Austin v. United States, 408 F.2d 808, 809-10 (9th Cir. 1969), the Ninth Circuit affirmed the denial of a section 2255 motion where the federal defendant had been deprived of representation by counsel during the initial arraignment before a United States Commissioner. The Ninth Circuit reasoned that "No events transpired before the commissioner which would have prejudiced [defendant] had he gone to trial. No admissions were made. No prejudice was shown." Id. at 810. The United States District Court for the Central District of California previously has followed the above authorities by denying habeas relief in circumstances substantively identical to those in the present case. Sapp v. Paramo, 2014 WL 3955736, at *4 (C.D. Cal. June 5, 2014), adopted, 2014 WL 3962479 (C.D. Cal. Aug. 11, 2014) ("Even assuming that Petitioner was entitled to have appointed counsel when entering his not guilty plea at his initial appearance and that that right was violated, Petitioner does not explain how he was prejudiced. Under these circumstances, any violation was harmless [citing, inter alia, Riley v. Wilson].").

California state law is in accord. Absent a showing of prejudice, California state courts refuse relief for the denial of counsel during an initial arraignment. See, e.g. People v. Williams, 45 Cal.3d 1268, 1305-06, 248 Cal.Rptr. 834, 756 P.2d 221 (1988), cert. denied, 488 U.S. 1050 (1989), abrogated on other grounds, People v. Diaz, 60 Cal.4th 176, 185 Cal.Rptr.3d 431, 345 P.3d 62 (2015); People v. Cox, 193 Cal.App.3d 1434, 1440, 239 Cal.Rptr. 40 (1987); People v. Carlon, 161 Cal.App.3d 1193, 208 Cal.Rptr. 18 (1984).5

Federal courts in other jurisdictions also agree that the denial of counsel at an initial arraignment usually is subject to harmless error analysis. See, e.g., United States ex rel DeBerry v. Follete, 395 F.2d 686, 687-88 (2d Cir. 1968); Stires v. Smeal, 2015 WL 1515168, at *11-12 (E.D. Pa. April 1, 2015); Singleton v. Lee, 2013 WL 3187106, at *4 (W.D.N.Y. June 20, 2013); Brooks v. United States, 2012 WL 3075129, at *2 (N.D. Ohio July 28, 2012); Bradley v. LaClair, 599 F.Supp.2d 395, 407-08 (W.D.N.Y. Feb. 25, 2009); Doyle v. Scutt, 347 F.Supp.2d 474, 480-81 (E.D. Mich. 2004); Sisson v. Page, 279 F.Supp. 614, 617 (W.D. Okla. 1968); cf. Van v. Jones, 475 F.3d 292, 297-316 (6th Cir.), cert. denied, 552 U.S. 1064 (2007) (after extensive analysis of Supreme Court case law, Sixth Circuit concluded that denial of counsel at a hearing is structural error only if the defendant would have no opportunity after the denial to recover or exercise privileges potentially lost during the denial).

In arguing that prejudice should be conclusively presumed from counsel's absence at the initial arraignment, Petitioner appears to rely principally on Hamilton v. Alabama, 368 U.S. 52 (1961), United States v. Cronic, 466 U.S. 648 (1984) ("Cronic"), United States v. Hamilton, 391 F.3d 1066 (9th Cir. 2004), and Rothgery v. Gillespie County, 554 U.S. 191 (2008). Petitioner's apparent reliance is misplaced. The cited decisions are readily distinguishable from the present case.

In Hamilton v. Alabama, the United States Supreme Court presumed prejudice from counsel's absence during an arraignment in an Alabama state court capital case. However, as the Supreme Court later recognized in Satterwhite v. Texas, 486 U.S. 249, 256-57 (1988), the Hamilton v. Alabama Court did so only because, under Alabama state law, defenses not asserted at an arraignment are "irretrievably lost" and so the deprivation of the right to counsel at the Alabama state court arraignment "affected — and contaminated — the entire criminal proceeding."6 Of course, the nature of an initial arraignment in California state court is dramatically different. As California state court precedent confirms, substantive defenses not asserted at an initial arraignment in California may be asserted later in the criminal proceeding. See, e.g., People v. Williams, 45 Cal.3d at 1305-06 (denial of independent counsel at Municipal Court arraignment did not require reversal if only because the case subsequently went to trial on a not guilty plea; citing with approval People v. Grigsby, 275 Cal.App.2d 767, 772, 80 Cal.Rptr. 294 (1969) (even where there was no arraignment, when a case is tried as if a "not guilty" plea had been entered, "no miscarriage of justice results from the procedural error")).

In Cronic, the Supreme Court granted relief because the defendant's counsel entirely failed at trial "to subject the prosecution case to meaningful adversarial testing." Cronic, 466 U.S. at 659. In the present case, the initial arraignment provided scant opportunity for testing the prosecution's case and, in any event, Petitioner had the opportunity for another arraignment (represented by counsel) prior to the preliminary hearing in Municipal Court. Furthermore, Petitioner's counsel had ample opportunity meaningfully to test the prosecution's case at the preliminary hearing and at the trial. No evidence of record suggests that counsel failed to do so.7

In United States v. Hamilton, counsel's absence occurred not during a formalistic initial arraignment but during the hearing of a suppression motion where witnesses testified and were subject to cross-examination. In Rothgery v. Gillespie County, a civil case, the plaintiff brought a claim under 42 U.S.C. section 1983 relating to the denial of counsel in a criminal case. The Supreme Court declined to decide whether the plaintiff had been prejudiced by the denial and also declined to decide by what standard the lower court should evaluate the issue of prejudice. Id. at 213.

In sum, under controlling authority, Petitioner's failure to demonstrate prejudice and his misplaced reliance on a nonexistent presumption of prejudice require the denial of this claim. Petitioner has failed to demonstrate a material constitutional error. See 28 U.S.C. § 2254(a).

III. Petitioner's Claim of Ineffective Assistance of Appellate Counsel Does not Merit Federal Habeas Relief.

To establish ineffective assistance of counsel, a federal habeas petitioner ordinarily must show that: (1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 697 (1984) ("Strickland"). A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694. The court may reject the claim upon finding either that counsel's performance was reasonable or the claimed error was not prejudicial. Id. at 697; Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("Failure to satisfy either prong of the Strickland test obviates the need to consider the other.") (citation omitted).

Review of counsel's performance is "highly deferential" and there is a "strong presumption" that counsel rendered adequate assistance and exercised reasonable professional judgment. Williams v. Woodford, 384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005) (quoting Strickland, 466 U.S. at 689). The court must judge the reasonableness of counsel's conduct "on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690. The court may "neither second-guess counsel's decisions, nor apply the fabled twenty-twenty vision of hindsight. . . ." Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert. denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") (citations omitted). Petitioner bears the burden to show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 562 U.S. 86, 104 (2011) (citation and internal quotations omitted); see Strickland, 466 U.S. at 689 (petitioner bears burden to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy") (citation and quotations omitted).

"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently." Harrington v. Richter, 562 U.S. at 111 (citations omitted). Rather, the issue is whether, in the absence of counsel's alleged error, it is "`reasonably likely'" that the result would have been different. Id. (quoting Strickland, 466 U.S. at 696). "The likelihood of a different result must be substantial, not just conceivable." Id. at 112.

The above standards govern claims of ineffective assistance of appellate counsel as well as claims of ineffective assistance of trial counsel. See Smith v. Robbins, 528 U.S. 259, 285-86 (2000); Bailey v. >Newland, 263 F.3d 1022, 1028 (9th Cir. 2001), cert. denied, 535 U.S. 995 (2002); see also Daire v. Lattimore, 818 F.3d 454, 461 (9th Cir. 2016) (en banc) (clearly established Supreme Court law holds that Strickland applies to claim of ineffective assistance of counsel in noncapital sentencing proceedings).

In the present case, no prejudice resulted from the failure of Petitioner's appellate counsel to raise the claim of the denial of counsel during the initial arraignment. As demonstrated in section II above, no such claim would have succeeded under California state law or under federal constitutional law. Accordingly, Petitioner's claim of ineffective assistance of appellate counsel must be denied. See Featherstone v. Estelle, 948 F.2d 1497, 1507 (9th Cir. 1991) (claim of ineffective assistance of appellate counsel must be denied where the would-be appellate issue(s) "had no merit").

CONCLUSION AND RECOMMENDATION

The Petition should be denied because Petitioner is not "in custody in violation of the Constitution or laws or treaties of the United States," within the meaning of section 2254(a) of Title 28 U.S.C.8

Therefore, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.