JENNIFER L. THURSTON, Magistrate Judge.
In 2012, Petitioner pled no contest in the Kern County Superior Court to possession of PCP and admitted a prior 1996 felony conviction. He was sentenced to a determine state prison term of six years. In this action, Petitioner claims his defense counsel was ineffective in failing to conduct a reasonable pretrial investigation. He claims the conviction should be set aside. The Court disagrees and recommends the petition be
Petitioner is in custody of the California Department of Corrections and Rehabilitation serving a determinate six-year sentence pursuant to a judgment of the Superior Court of California, County of Kern, following his 2012 conviction for possession of PCP. (Lodged Doc. No. 1.) He also admitted one prior strike offense within the meaning of Cal. Penal Code § 667. (Lodged Doc. Nos. 1-4.)
Petitioner did not appeal his conviction. However, he filed habeas petitions in the Kern County Superior Court, California Court of Appeal, and California Supreme Court. The petitions were denied on the merits.
On January 16, 2015, Petitioner filed a Petition for Writ of Habeas Corpus in this Court. (Doc. No. 1). Respondent filed an answer on August 27, 2015. (Doc. No. 24). Petitioner filed a Traverse on November 25, 2015. (Doc. No. 32.)
The Court adopts the summary of facts in the Kern County Superior Court's denial of Petitioner's habeas petition
(Lodged Doc. No. 6.)
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3);
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 after its enactment.
A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner can show that the state court's adjudication of his 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);
A state court decision is "contrary to" clearly established federal law "if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or "if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result."
In
The second prong pertains to state court decisions based on factual findings.
To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision.
The prejudicial impact of any constitutional error is assessed by asking whether the error had "a substantial and injurious effect or influence in determining the jury's verdict."
Petitioner claims his defense counsel was ineffective in failing to conduct a reasonable pretrial investigation. He alleges he requested defense counsel to contact the security guard assigned to the area to verify that his garage door had been forced open. He requested pictures be taken of his broken garage door. He further requested defense counsel to obtain copies of medical prescriptions which were posted in the front window by the front door. Petitioner claims defense counsel did none of these things. Later, Petitioner requested defense counsel to obtain alleged surveillance reports, the statement of the confidential informant, and all toxicology reports. Petitioner contends that defense counsel did not do any of the investigation Petitioner had requested.
Respondent contends Petitioner's ineffective assistance of counsel claim is barred under
In
Petitioner's only claim concerns defense counsel's actions prior to the entry of plea. Petitioner does not challenge the voluntary and intelligent character of his plea. Even if he did, he does not show how defense counsel's pretrial investigation was so deficient that it rendered his plea involuntary. Therefore, Petitioner is barred from raising this claim. Even if the Court were to consider the claim, it would fail on the merits.
Effective assistance of counsel is guaranteed by the Due Process Clause of the Fourteenth Amendment.
Here, Petitioner fails to demonstrate that counsel's performance was deficient. Petitioner faults counsel for failing to conduct certain pretrial investigations, but he does not state what favorable evidence would have been discovered. Moreover, without a showing of what additional evidence would have been discovered, Petitioner cannot demonstrate any probability that he would have insisted on going to trial rather than plead guilty. Petitioner received a six-year determinate term, but he faced a possible thirty-one year term had he gone to trial. (Lodged Doc. No. 9 at 2.) As Respondent correctly notes, Petitioner was charged with seven counts involving firearm and gang activity. Because he accepted the plea agreement and pled to one count of possession of PCP, he was able to avoid six other counts and a lengthy prison term.
In his Traverse, Petitioner attempts to change the nature of his claim. Instead of alleging that defense counsel failed to conduct pretrial investigations, Petitioner claims that defense counsel failed to move to suppress evidence based on an illegal search. This constitutes a new claim of ineffective assistance, one that was not presented to the California Supreme Court. (Lodged Doc. No. 9 at p. 2.) Therefore, it is unexhausted. In any case, the claim is without merit since additional pretrial investigations would not have changed anything as it relates to a suppression motion. The Kern County Superior Court found that the search warrant was validly obtained, that the inculpatory evidence was strong, and that there was no reasonable basis for suppression of the evidence. (Lodged Doc. No. 6 at p. 2.) Therefore, any suppression motion would have been denied. Petitioner thus fails to demonstrate any prejudice as a result of counsel's alleged deficient performance in failing to move for suppression of the evidence.
In summary, Petitioner is barred from raising this claim in light of his guilty plea. Even if the claim were considered, Petitioner fails to demonstrate that defense counsel's performance was deficient, or that he would have insisted on going to trial had counsel performed as Petitioner wished. The claim must be DENIED.
A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances.
If a court denied a petitioner's petition, the court may only issue a certificate of appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'"
In the present case, the Court finds that Petitioner has not made the required substantial showing of the denial of a constitutional right to justify the issuance of a certificate of appealability. 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. Thus, the Court DECLINES to issue a certificate of appealability.
Based on the foregoing, the Court
