SHEILA K. OBERTO, Magistrate Judge.
Petitioner, Frank Gonzales, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
16-year-old A.U. was working with his father in the kitchen of a family restaurant when Petitioner walked into the restaurant. A.U. walked to the front counter and asked Petitioner if he could help him. Petitioner gave A.U. a note that read, "This is a robbery. Stay quiet and give me all the money in the cash register and your personal cell phone. I got a gun; so do as I ask." A.U. asked Petitioner if he was serious, to which Petitioner replied, "Oh, yeah."
A.U. did not see a gun, but was afraid. He opened the cash register and gathered the money. Becoming impatient, Petitioner grabbed the money from A.U.'s hand and more money from the cash register. Before leaving the restaurant, Petitioner told A.U. to wait 20 minutes before calling the police or he would come back and shoot A.U. in the head.
A.U.'s father, J.U., was working in the kitchen at the time of the robbery. He noticed a man, Petitioner, enter the restaurant and then leave. Once Petitioner left, A.U. went back into the kitchen and told J.U. that Petitioner had just robbed the restaurant. J.U. called the police to report the crime, then went outside to try to locate Petitioner. He eventually saw him in front of another restaurant and followed him at a distance.
When police officers arrived, J.U. pointed out Petitioner, and later identified a photograph of Petitioner as the perpetrator. A.U. also identified Petitioner as the person who robbed the restaurant. Police officers found the money Petitioner had stolen on him and returned it to J.U. after arresting Petitioner.
At trial, a phone call Petitioner made to his mother after his arrest was played for the jury. Petitioner told his mom he had tried to rob someone and he "got busted for robbery."
The prosecutor argued the evidence overwhelmingly proved that Petitioner had robbed the restaurant and had threatened A.U. Defense counsel admitted Petitioner was at the restaurant and took the money, but claimed the prosecution had not met its burden of proof of establishing robbery or a criminal threat, because the prosecutor had failed to establish that A.U. was in "actual fear" during the robbery.
A jury found Petitioner guilty of second-degree robbery (Cal. Penal Code § 212.5(c)); making a criminal threat (Cal. Penal Code § 422); and second-degree burglary (Cal. Penal Code § 460(b)). The court found the following enhancements true: (1) a prior conviction that constituted a strike within the meaning of § 667 (b)-(i); (2) a prior serious felony conviction within the meaning of § 667(a); and (3) three convictions resulting in a prior prison term within the meaning of § 667.5(b). Prior to the trial on the robbery and burglary charges, Petitioner pled no contest to misdemeanor possession of drug paraphernalia (Cal. Health & Saf. Code §11364.1).
Petitioner was sentenced to an aggregated term of five years for the robbery, doubled because of the prior strike, plus five years because Petitioner had a prior serious felony conviction, and two years for the two prior prison term enhancements, for a total term of 17 years. The sentences on the remaining felony counts were stayed pursuant to California Penal Code § 654, and the misdemeanor sentence was imposed consecutively.
On March 7, 2016, the California Court of Appeal ("Court of Appeal") affirmed Petitioner's conviction. The California Supreme Court summarily denied Petitioner's petition for review on May 11, 2016, and summarily denied Petitioner's state petition for writ of habeas corpus on August 10, 2016.
Petitioner filed his petition for writ of habeas corpus with this Court on October 6, 2016. Respondent filed a response on December 20, 2016, and Petitioner filed a reply on January 19, 2017.
A person in custody as a result of the judgment of a state court may secure relief through a petition for habeas corpus if the custody violates the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. 362, 375 (2000). On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed thereafter. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Under the statutory terms, the petition in this case is governed by AEDPA's provisions because it was filed after April 24, 1996.
Habeas corpus is neither a substitute for a direct appeal nor a device for federal review of the merits of a guilty verdict in state court. Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring). Habeas corpus relief is intended to address only "extreme malfunctions" in state criminal justice proceedings. Id. Under AEDPA, a petitioner can obtain habeas corpus relief only if he can show that the state court's adjudication of his claim:
28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.
"By its terms, § 2254(d) bars relitigation of any claim `adjudicated on the merits' in state court, subject only to the exceptions set forth in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011).
As a threshold matter, a federal court must first determine what constitutes "clearly established Federal law, as determined by the Supreme Court of the United States." Lockyer, 538 U.S. at 71. In doing so, the Court must look to the holdings, as opposed to the dicta, of the Supreme Court's decisions at the time of the relevant state-court decision. Id. The court must then consider whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law." Id. at 72. The state court need not have cited clearly established Supreme Court precedent; it is sufficient that neither the reasoning nor the result of the state court contradicts it. Early v. Packer, 537 U.S. 3, 8 (2002). The federal court must apply the presumption that state courts know and follow the law. Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Petitioner has the burden of establishing that the decision of the state court is contrary to, or involved an unreasonable application of, United States Supreme Court precedent. Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).
"A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, 538 U.S. at 75-76. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, the AEDPA standard is difficult to satisfy since even a strong case for relief does not demonstrate that the state court's determination was unreasonable. Harrington, 562 U.S. at 102.
In his first ground for habeas relief, Petitioner alleges both his trial and appellate counsel were ineffective. Specifically, Petitioner contends appellate counsel was ineffective for failing to (1) raise the claim that trial counsel's closing argument constituted ineffective assistance of counsel, and (2) challenge the trial court's Romero ruling. (Doc. 1 at 5, 9-13.) Further, Petitioner maintains trial counsel rendered ineffective assistance during closing arguments. Id. at 5, 17-20. Respondent counters that the rejection of Petitioner's ineffective assistance of counsel claims by the Court of Appeal was reasonable.
The purpose of the Sixth Amendment right to counsel is to ensure that the defendant receives a fair trial. Strickland v. Washington, 466 U.S. 668, 686 (1984). "[T]he right to counsel is the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686.
To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate that his trial counsel's performance "fell below an objective standard of reasonableness" at the time of trial and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 688, 694. The Strickland test requires Petitioner to establish two elements: (1) his attorney's representation was deficient; and (2) prejudice as a result of such deficient performance. Both elements are mixed questions of law and fact. Id. at 698.
These elements need not be considered in order. Id. at 697. "The object of an ineffectiveness claim is not to grade counsel's performance." Id. If a court can resolve an ineffectiveness claim by finding a lack of prejudice, it need not consider whether counsel's performance was deficient. Id.
Establishing a state court's application of Strickland was unreasonable under § 2254 is difficult because the standards under Strickland and § 2254 are both "highly deferential." Harrington v. Richter, 562 U.S. 86, 106 (2011) (quoting Strickland, 466 U.S. at 689). "[W]hen the two apply in tandem, review is `doubly' so." Id. (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). In the habeas context, under § 2254, "the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
Appellate counsel did not raise any claims before the California Court of Appeal. Instead, counsel filed an opening brief that summarized the facts of the case, raised no issues, and requested the appellate court review the record independently pursuant to People v. Wende, 25 Cal.3d 436 (1979).
Petitioner filed his own brief. He first raised his ineffective assistance of appellate counsel claims in a petition for writ of habeas corpus filed in the California Supreme Court. Because that habeas petition was denied without a written opinion, there is no reasoned state court opinion for the Court to review. This Court must "perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable." Haney, 641 F.3d at 1171 (internal citations omitted).
Petitioner must show that "there was no reasonable basis" for the California Supreme Court's ruling. Id. (quoting Cullen, 563 U.S. at 188 (internal quotation marks omitted)). The Court must then decide "what arguments or theories could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of the Supreme Court." Id. (internal quotation marks omitted).
Petitioner contends appellate counsel was ineffective because he failed to raise the claim that trial counsel's closing argument constituted ineffective assistance of counsel. (Doc. 1 at 5, 9-13.) Specifically, Petitioner argues appellate counsel should have claimed trial counsel was ineffective when he admitted Petitioner stole the money from the restaurant and only disputed the fear element of the robbery and the criminal threats charges. Id. at 10.
Pursuant to California Penal Code § 211, "[r]obbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (emphasis added). California Penal Code § 422(a) defines a criminal threat as:
(emphasis added).
During closing argument, Petitioner's counsel conceded Petitioner took the money from A.U., but argued Petitioner was not guilty of robbery, because the robbery was not accomplished "by means of . . . fear":
(Lodged Doc. 6 at 408.)
Counsel argued "the evidence did not show in this case beyond a reasonable doubt that the fear was used[,]" based on A.U.'s demeanor while testifying. Id. at 408-21. Counsel urged the jury to acquit Petitioner on the robbery and criminal threats charges and convict him of burglary and grand theft from a person, which is a lesser included offense to robbery. Id. at 420-21.
The evidence in the case overwhelmingly showed that Petitioner was at the restaurant, and demanded and took money from A.U. Both A.U. and J.U. identified Petitioner as the perpetrator; Petitioner was arrested a short distance from the restaurant with a "wad of cash" in his pockets; and Petitioner admitted to his mother that he had been arrested for trying to rob someone. Given the evidence, it was reasonable for trial counsel to focus on the fear elements of robbery and criminal threats.
Trial counsel made a strategic decision to admit Petitioner was at the restaurant and took the money and to, instead, challenge the fear elements of robbery and criminal threats. This Court does not second guess counsel's strategic choice. United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981) (difference in opinion as to trial tactics, generally does not constitute denial of effective assistance); Bashor v. Risely, 730 F.2d 1228, 1241 (9th Cir. 1984) (tactical decisions do not amount to ineffective assistance simply because in retrospect better tactics are known to have been available).
Based on this evidence, appellate counsel determined it was not appropriate to challenge trial counsel's decision to concede that Petitioner was at the scene of the crime and took the money. Given the record and the difficulty of proving ineffective assistance of counsel based on strategic decisions, it was reasonable for appellate counsel not to raise the claim that trial counsel was ineffective.
Even if Petitioner could show appellate counsel's representation was deficient, he cannot establish the prejudice element of the Strickland test. Petitioner raised the claim that his trial counsel was ineffective in his state court appeal, which the Court of Appeal considered and rejected:
(Lodged Doc. 11 at 5.)
Because Petitioner would not have prevailed on this claim even if appellate counsel had raised the claim, Petitioner cannot show that he was prejudiced by appellate counsel's decision not to raise the claim. Accordingly, the Court will deny Petitioner's claim.
Petitioner alleges appellate counsel was ineffective for failing to challenge the trial court's Romero ruling. (Doc. 1 at 16.) In a Romero motion, a criminal defendant seeks to have a prior conviction dismissed or stricken so that it cannot be considered for purposes of imposing a sentence under California's Three Strikes law. Romero, 13 Cal. 4th at 497.With a Romero motion, the trial court
People v. Williams, 17 Cal.4th 148, 161 (1998).
The trial court found Petitioner's prior felony allegations true; thereafter, defense counsel moved the court to exercise its discretion to dismiss the prior strike allegation in a Romero motion. At the sentencing hearing, the trial court gave a tentative decision to deny the Romero motion:
(Lodged Doc. 7 at 474-75.) Later, the trial court affirmed its tentative ruling denying the Romero motion.
In California, a trial court's decision not to dismiss a prior strike is reviewed for abuse of discretion. People v. Carmony, 33 Cal.4th 367, 377-78 (2004). A court that denies a Romero motion is "presumed to have acted to achieve the legitimate sentencing objectives," and abuses its discretion only in "extraordinary" circumstances. Id. at 377 (internal citations and quotation marks omitted.) Based on Petitioner's criminal history and refusal to accept responsibility for the crime, Petitioner cannot show that it was unreasonable for appellate counsel not to raise this claim on appeal, given the unlikelihood of success.
Even if he could show appellate counsel acted unreasonably, Petitioner cannot prove prejudice. Petitioner raised the claim that his trial counsel was ineffective, which the Court of Appeal rejected:
(Lodged Doc. 11 at 10-11.)
The Court of Appeal considered the claim that Petitioner's counsel was ineffective and rejected it. Because Petitioner would not have prevailed on this claim even if appellate counsel had raised the claim, Petitioner cannot show that he was prejudiced by appellate counsel's decision not to raise the claim. Accordingly, the Court will deny Petitioner's claim.
Petitioner alleges trial counsel was ineffective by conceding during closing argument that Petitioner was at the scene of the crime and took the money from A.U. (Doc. 1 at 5, 17-20.)
The Court of Appeal rejected Petitioner's ineffective assistance of trial counsel claim:
(Lodged Doc. 11 at 5.)
Trial counsel made a strategic decision to admit Petitioner took the money from A.U., and, instead, challenge the fear element of robbery and criminal threats. The Court "recognize[s] that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. The Court of Appeal's determination that counsel made a strategic decision was not an unreasonable application of the standard set forth in Strickland. Guam v. Santos, 741 F.2d 1167, 1169 (9th Cir. 1983) ("A tactical decision by counsel with which the defendant disagrees cannot form the basis of a claim of ineffective assistance of counsel.") (citing Strickland, 741 F.2d at 690).
Counsel made a strategic decision to admit Petitioner was the perpetrator—based on overwhelming evidence. This Court will not second guess counsel's strategic choice at this point. United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981) (difference in opinion as to trial tactics, generally does not constitute denial of effective assistance); Bashor v. Risely, 730 F.2d 1228, 1241 (9th Cir. 1984) (tactical decisions do not amount to ineffective assistance simply because in retrospect better tactics are known to have been available). Accordingly, the Court of Appeal's decision rejecting Petitioner's claim was not an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d)(1).
In his second ground for habeas relief, Petitioner alleges the trial court abused its discretion in denying his Romero motion. (Doc. 1 at 5, 14-16.) Respondent counters that this claim is a matter of state sentencing law that is beyond the scope of federal habeas relief. (Doc. 10 at 20.)
Petitioners seeking federal habeas relief must allege that they are in custody "pursuant to the judgment of a State court . . . in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). "[F]ederal habeas corpus relief does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 67 (1991) (citations omitted). "[E]rrors of state law do not concern us unless they rise to the level of a constitutional violation." Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989).
Here, Petitioner does not allege a violation of his Constitutional rights, but instead alleges an error in state law. Claims alleging a misapplication of state sentencing laws involve questions of state law that are not cognizable on federal habeas review. Lewis v. Jeffers, 497 U.S. 764, 780 (1990). The Court notes that in his reply to Respondent's response, Petitioner "agrees that a [Romero] motion is not cognizable in the federal courts." (Doc. 13 at 9.) For these reasons, the Court will deny relief on this claim.
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides:
If a court denies a habeas petition, the court may only issue a certificate of appealability "if 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; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the petitioner is not required to prove the merits of his case, he must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his. . . part." Miller-El, 537 U.S. at 338.
Reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Accordingly, the Court declines to issue a certificate of appealability.
Based on the foregoing, the Court hereby DENIES with prejudice the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and declines to issue a certificate of appealability. The Clerk of the Court is directed to enter judgment for the Respondent.
Id. In Wende, the California Supreme Court held "whenever appointed counsel submits a brief which raises no specific issues," the appellate court must review the entire record.
