LUCY H. KOH, District Judge.
Petitioner Vicente Buenrostro ("Petitioner") was convicted in Alameda County Superior Court of two counts of continuous sexual abuse, with special allegations that the offenses involved multiple victims; one count of oral copulation of a person under 14; and one count of sexual penetration of a person under 14 by a foreign object. ECF No. 3, Ex. F.
On July 14, 2014, Petitioner filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 ("Petition"). Petitioner contends he is entitled to habeas relief because Petitioner's counsel, as well as the prosecution and the Superior Court, all affirmatively misled him about his sentencing exposure by miscalculating Petitioner's maximum possible sentence. Petitioner contends that, had it not been for this miscalculation, Petitioner would have been able to secure a plea agreement that was more favorable than the 18-year sentence he received after trial. ECF No. 2 at 2-3. Accordingly, Petitioner contends in the Petition that his right to effective assistance of counsel under the Sixth and Fourteenth Amendments, and his right to due process under the Fifth and Fourteenth Amendments both were violated by the miscalculation of his sentencing exposure. Id. at 2.
Petitioner has presented each of these claims to the California Court of Appeal ("Court of Appeal"). The Court of Appeal denied his claims. Ex. F. Petitioner asserts that it was error for the Court of Appeal to deny his claims, and that moreover, the Court of Appeal erred in making that decision without first holding an evidentiary hearing. ECF No. 1.
On August 13, 2014, the Court issued an Order to Show Cause why the writ of Habeas Corpus should not be granted. ECF No. 8. Respondent filed an Answer and a Memorandum of Points and Authorities in Support of Answer on December 14, 2014. ECF Nos. 11, 11-1. On January 6, 2015, Petitioner filed a Traverse to Response and Reply ("Traverse"). ECF No. 12.
Petitioner was charged in the Alameda County Superior Court with two counts of continuous sexual abuse, with special allegations that the offenses involved multiple victims; one count of oral copulation of a person under 14; and one count of sexual penetration of a person under 14 by a foreign object. ECF No. 3, Ex. F. at 1.
The facts underlying these charges were found at trial as follows
S. Doe, 13 years old at the time of trial, testified Petitioner asked her to help him with something in the shed when she was in kindergarten. Once inside, he closed the door and put S. Doe on the table. Petitioner pulled down her pants and underwear and started touching her vaginal area with one hand, with the other hand in his pants. S. Doe testified that Petitioner took her into the shed more than five times while she was still in kindergarten. S. Doe further testified that when she was in the first grade, Petitioner took her into the shed by herself and touched her vagina "way more than" 12 times. On some of those occasions Petitioner would also touch his exposed penis or grab S. Doe's hand and rub it back and forth on his penis.
From the time S. Doe was in kindergarten through the second grade, Petitioner took both sisters into the shed together and touched each one in a manner similar to the one described above, about six or seven times. Petitioner continued to touch S. Doe in the shed until she was in the fourth grade. The last time Petitioner touched S. Doe he also put his finger inside her vagina and kept it there for three minutes and grabbed her cheeks and forced his penis into her mouth for a short time.
At trial, the prosecution also presented the testimony of the younger sister of the victims, M. Doe, who testified that defendant twice exposed himself to her before she started kindergarten, but that no touching was involved.
Petitioner was originally charged with multiple victim enhancements as to all four counts, pursuant to Cal. Penal Code §§ 667.6(d), 667.61(c), and 667.61 (e)(5). Section 667.6(d) mandates a full, separate, and consecutive term for enumerated crimes involving separate victims. Section 667.61(b) mandates an indeterminate sentence of 15 years to life for offenses that qualify under subdivisions (c) and (e). Subsequently the prosecutor amended the information to allege those enhancements only as to the two counts of continuous sexual abuse.
Prior to trial, the prosecutor, Susan Torrence ("Ms. Torrence"); defense counsel, Jamil Karwash ("Mr. Karwash"); and the trial court all operated under the assumption that the enhancements applied to the charges as alleged. With the enhancements, if Petitioner were to have been convicted of all counts he would have been subject to a mandatory sentence of at least 30 years to life and would have had to serve 40 years before he was eligible for parole. See Ex. A, Reporter's Transcript ("RT") 108-110. Petitioner was advised of these terms on the record by the trial court and the prosecutor, and Mr. Karwash made no objection to the advisement. Id.
Before the preliminary hearing, the prosecutor made a plea bargain offer to Petitioner of a determinate term of 24 years. See RT 110. Petitioner apparently did not accept or decline the offer at that time. According to the allegations in the Declaration of Mr. Karwash, after the amended information was filed, the trial court "encouraged plea negotiations and Ms. Torrence invited me to make a counteroffer." Ex. A to Ex. C
The prosecutor responded to Petitioner's counteroffer of 10 years by stating that she would confer with the victims' family. She subsequently told Mr. Karwash that after speaking to the complaining witnesses she would not reduce her offer of a 24-year determinate prison term. Id. Petitioner declined that offer and proceeded to trial. Id. at ¶ 5.
On May 31, 2011, an Alameda County jury convicted Petitioner on all counts. Ex. A, Clerk's Transcript ("CT") 358-363.
After the jury convicted Petitioner, Mr. Karwash realized for the first time that the multiple victim enhancements sought against his client were precluded by the ex post facto clause, because the sentencing enhancements took effect in 2006, but Petitioner's offenses had occurred between 1997 and 2005, before the enhancements took effect. CT 380-382; Ex. A to Ex. C, at ¶ 6. Counsel Karwash explained the error to the trial court (Judge Kurtz presiding) in his sentencing letter dated July 24, 2011. Id.
The prosecutor responded to the defense sentencing letter on July 29, 2011. In the response, the prosecutor took the position that even if the enhancements were barred, the court could and should still order consecutive sentences under the discretionary scheme of Penal Code 667.61(c). The prosecutor indicated in the sentencing filing that, were the court to choose a determinate sentencing scheme, the People would seek to have the court impose "high" level and consecutive terms for a total sentence of 42 years. The prosecutor also noted that "[a]s is always the case with child victims, the most vulnerable and most in need of protection and vindication in our society, the victims in this case, I know, will be requesting the imposition of the maximum allowable penalty at the sentencing hearing." CT 386-391.
At Petitioner's sentencing, the court also had before it the Probation Officer's Report and Recommendation. CT 401. The Probation Report was created after Petitioner was convicted. The Probation Officer's Report notes that in regard to plea negotiations, Petitioner told the Probation Officer that Petitioner "didn't accept an offer because [he was] not guilty." CT 405. The Probation Report also includes Petitioner's statement to the Probation Officer that: "If I am found guilty it is because a [sic] grand injustice. I will appeal this because this is not fair that this is happening to me ... They are all lying." 405. Petitioner reportedly also insisted at that time that "he never even had a relationship with the victims and that the most he ever said to them was hello." CT 409. The Probation Report found several aggravating factors to be considered in sentencing Petitioner, including that the crime involved "a high degree of cruelty, viciousness and callousness" given the repeated nature of the crime and the age of the victims, and also that Petitioner "takes no responsibility for his actions and has no remorse towards the victims." CT 408-09.
The issue of the possible ex post facto application of the enhancements was discussed at the sentencing hearing on July 28, 2011.
At sentencing, both parents of the victims, as well as one of the victims herself spoke. The prosecutor also read into the record a statement from the other victim. ST 1326:18-1329-20. The victims' mother stated that Petitioner "needs to stay in prison for the rest of his life." Id. at 1327:12-13. One of the victims, S. Doe stated at the sentencing hearing that "this filthy monster should get as many years as possible." Id. at 1327:24-25. The prosecutor also read into the record a letter from victim A. Doe. In the letter, A. Doe acknowledged that coming to court had been hard on them, but that she was glad to have closure. She also stated that "[a]s far as sentencing, I believe [Petitioner] should get the maximum time [he] can get." Id. at 1329:17-20.
Even acknowledging the unavailability of the enhancements because of the ex post facto clause, the prosecutor still argued that the trial court should impose the "high" level sentence for all four counts, and she requested that the court impose "an absolute minimum of 24 years." ST 1334-1335. The prosecutor stated that "anything less is not reflective of what these victims have gone through and does not give them the justice that they deserve." Id.
The trial court then turned to the sentencing calculation. The court started with the presumption that, absent extreme circumstances either mitigating or exacerbating the conduct, the majority of defendants should be sentenced using the midterm of the sentences available. The court noted that the particular criminal acts at issue occurred over a long period of time and with very vulnerable victims, and that there were aspects of the crime that were "despicable." Ultimately, however, the court found that neither the aggravating or mitigating factors were particularly persuasive. Therefore, on Count 1, the court sentenced Petitioner to the midterm of 12 years in state prison. The court found that Count 2 should run consecutively, for an additional 4 years. For Count 3, the court imposed an additional 2 years to be served consecutively. The court found that Count 4 was "part and parcel" of the events covered by Count 3, so while he ordered 2 years for Count 4, the court ordered those two years to be served concurrently with Count 3. The ultimate sentence imposed by the trial court was a term of 18 years in prison. ST 1338-1341
Petitioner appealed his conviction. He also filed a petition for a writ of habeas corpus in the state court. Exs. B, C. In his appeal, Petitioner argued that his counsel's erroneous advice on Petitioner's sentencing exposure violated Petitioner's right to effective assistance of counsel. Petitioner additionally argued on appeal that the State also had misinformed him of his sentencing exposure, and that he had therefore been deprived of due process. Ex. B. Petitioner's Habeas Petition raised the same arguments. Ex. C.
In support of his direct appeal, Petitioner submitted three declarations. Petitioner submitted a declaration from his trial counsel, Mr. Karwash, in which Mr. Karwash conceded that he had misunderstood his client's sentencing exposure during plea negotiations. Petitioner also submitted a declaration from attorney Michael Thorman ("Mr. Thorman"), a criminal defense attorney of 38 years' experience who practices in Alameda County. Mr. Thorman states that he has "represented many clients in the courtroom of . . . Judge Robert Kurtz." Mr. Thorman has "represented numerous defendants in connection with felony sex cases venued in the Alameda County Superior Court, Hayward Branch." In each case, he "conducted plea negotiations with the Alameda County District Attorney's Office," and he "believe[s] that experience gives [him] a strong understanding of the potential outcomes a defendant in such a case could expect from the plea bargaining process." Mr. Thorman "know[s]" Deputy District Attorney Torrence.
Mr. Thorman avers that he is familiar with the misunderstanding regarding the applicability of the enhancements. He calculated Petitioner's true maximum sentence exposure as 24 years, and concluded the 24-year plea-bargain offer from Ms. Torrence "makes no sense" given that 24 years is the maximum, and that "[t]he Alameda County District Attorney's Office traditionally has been willing to plea bargain in sex cases in an effort to save the victim from the stress and trauma created by having to appear as a witness at trial."
Mr. Thorman concludes: "[I]n my opinion, based on my experience as a criminal defender and trial attorney in Alameda County, if Ms. Torrence had understood . . . the true sentencing exposure [Petitioner] faced after trial, and the strong likelihood that fully consecutive sentences would not be imposed under the circumstances of this case, she would not have insisted on a plea bargain that would result in a 24-year prison term. Based upon my decades of experience negotiating felony cases—including sex cases—with the Alameda County District Attorney's Office, I believe that if Ms. Torrence had understood the true maximum penalty, she would likely have been willing to enter into a plea agreement that called for a prison sentence of less than 18 years and perhaps as low as 10 years." Mr. Thorman's declaration further states that "based upon [his] experience practicing before Judge Kurtz," he believed that had the parties "presented Judge Kurtz with a plea agreement that called for a prison sentence of between 10 and 18 years in length," the judge would have accepted the plea. Ex. B to Ex. C. at ¶ 10.
Finally, Petitioner submitted his own declaration in which he averred that he had rejected the prosecutor's plea offer of a 24 year prison term "[i]n part because of his age" but that he would have been willing to consider a negotiated disposition of the case.
On May 31, 2013, the Court of Appeal affirmed the judgment of conviction and denied the habeas corpus petition. Ex. F. On September 11, 2013, the California Supreme Court denied review of both proceedings. Ex. I.
The Court of Appeal addressed together the claims Petitioner raised on direct appeal and those Petitioner raised in his habeas corpus petition. The Court of Appeal concurred with the trial court that the multiple victim enhancements were precluded by the ex post facto clause. The Court of Appeal therefore found that counsel for Petitioner, as well as the prosecutor and the court, had all provided erroneous information to Petitioner that he faced a higher minimum sentence and a higher maximum sentence than he faced under the law applicable to his crimes when they were committed. Ex. F at p. 10. The Court of Appeal concluded that Mr. Karwash's performance with regard to the plea negotiations was deficient:
Ex. F at 11.
The Court of Appeal then considered whether Petitioner had established prejudice, stating:
Applying the legal standard above, the Court of Appeal held that "[i]n the procedural context of this case, defendant must show there is a reasonable probability he would have received a more favorable result—i.e., he would have been offered a plea bargain, accepted it, and had it accepted by the trial court, and under the terms of that plea offer he would have received a sentence less than the 18 years he received after trial." Id. at 12 (citations omitted).
The Court of Appeal analyzed Petitioner's prejudice argument that, absent the misunderstanding regarding the applicability of the enhancements, it is "likely" the prosecution "would have offered a substantially more favorable plea bargain—almost certainly" less than the 18 years he received after trial. In doing so, the Court of Appeal specifically reviewed the evidence in the record as well as the three declarations submitted by Petitioner. The Court of Appeal considered Petitioner's declaration, and that of Mr. Karwash, regarding Petitioner's "interest[] in reaching a negotiated disposition." The Court of Appeal also considered in detail the declaration of Mr. Thorman, quoted above.
As a result of that review, the Court of Appeal concluded that:
Ex. F at 11-14, footnote and emphasis in original.
The Court of Appeal then turned its attention to Petitioner's Due Process claim. The Court of Appeal first noted the conflict in the California courts as to who bears the burden of proof on the issue of prejudice when a court is assessing due process violations. See People v. Goodwillie, 147 Cal.Ap.4th 695, 735 (2007); but see People v. Miralrio, 167 Cal.App.4th 448 (2008). The Court of Appeal declined to address the conflict between those two cases, found that such a decision was unnecessary to the adjudication of the instant matter, and held that "the lack of prejudice to [Petitioner] is manifest. There is simply no basis to conclude that he would have received and accepted a court-approved plea offer of less than 18 years." Ex. F. at pp. 14-15.
This Court may entertain a petition for the writ of habeas corpus "on behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A district court may only grant a habeas writ petition under § 2254 if the state court's adjudication of the 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).
"The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007). This high standard is meant to be "difficult to meet," because "the purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction." Greene v. Fisher, 132 S.Ct. 38, 43-4 (2011), citations omitted.
The Court of Appeal held that the performance of Petitioner's counsel was deficient. However, the Court of Appeal also found that Petitioner had not established a prima facie case of prejudice stemming from the deficient performance, as required under the second prong of Strickland. Strickland v. Washington, 466 U.S. 668, 687-688 (1984). Therefore, the Court of Appeal denied Petitioner's direct appeal and Petitioner's request for a writ of habeas corpus, without issuing an order to show cause.
Respondent concedes that the only question before this Court on the ineffective assistance of counsel claim is whether the Court of Appeal's determination that Petitioner failed to establish prejudice under the second prong of Strickland was an objectively reasonable conclusion.
In an initial state appellate court challenge, a petitioner bears the burden of showing both that counsel's performance fell below an objective standard of reasonableness, and also that there was a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-688 (1984). However, in a federal habeas based on ineffective assistance of counsel, a petitioner "must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state court decision applied Strickland incorrectly." Instead, petitioner must show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner. Bell v. Cone, 535 U.S. 685, 698-699 (2002). Woodford v. Visciotti, 537 U.S. 19, 26-27 (2002)(deferring to state court's conclusion that defendant was not prejudiced by counsel's errors); see also Harrington v. Richter, 562 U.S. 86 (2011)(a state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself).
Exactly what level of deference is to be accorded to the Court of Appeal's factual and legal findings, where, as here, the Court of Appeal has not held an evidentiary hearing, is a matter of dispute between the parties. Respondent asserts that this Court in undertaking its federal habeas review must use "a `doubly deferential' standard of review that gives both the state court and the defense attorney the benefit of the doubt." Burt v. Titlow, 134 S.Ct. 10, 13 (2013); accord Bell v. Cone, 535 U.S. 685, 698-699 (2002).
The Petitioner makes several variants of the argument that this Court may, and should, ignore the Court of Appeal's decision. Petitioner first asserts that this Court owes no deference to any purported "factual findings" of the Court of Appeal because "the state court refused to grant an evidentiary hearing and instead purported to decide the case based on solely the Petitioner's prima facie allegations." Petitioner's Memorandum in Support at 22:16-22. Petitioner also argues that it was "especially unreasonable" for the Court of Appeal to have denied Petitioner's claim without granting Petitioner an evidentiary hearing. Id. at 24:1-3. Finally, Petitioner sums up his argument by saying "when a state court, in the guise of determining whether a habeas petitioner has made out a prima facie case sufficient to justify the issuance of an order to show cause, instead makes unfounded factual findings and draws inferences against the petitioner, the petitioner is entitled to relief in federal court." Id. at 24:12-16. (emphasis in original).
Petitioner argues that the "Ninth Circuit's jurisprudence teaches that when a petitioner's constitutional claims turn on such fundamental factual matters, the facts must be resolved in a reasonable manner — that is, by way of an evidentiary hearing." Traverse at 3:5-7. Petitioner primarily relies on Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003), as support for his position. This Court finds that Nunes does not legally or factually compel the result for which Petitioner argues. The holding of Nunes does not require a state appellate court to offer an evidentiary hearing in every case in order for the state court decision to be considered "reasonable." Nor does this Court find comparable the factual findings made by the state court in Nunes and the findings the Court of Appeal made in this case.
Nunes was charged with one count of murder and three counts of assault with a firearm for the shooting of a man he found sleeping in his estranged wife's bedroom. The first two of Nunes' trials ended in hung juries. The third trial ended with a conviction, which was reversed on appeal. Before Nunes' fourth trial, the prosecutor made a plea offer to Nunes' counsel. Nunes claims that his attorney told him incorrectly what he was being offered; that his counsel told the prosecutor that Nunes had rejected the plea bargain; and that by the time Nunes finally could reach his counsel to clarify the offer after the start of his trial, the offer had already expired. Nunes' fourth trial ended in a conviction. Nunes, 350 F.3d at 1049-50.
Nunes challenged his conviction on direct appeal and also by way of a state court petition for a writ of certiorari. Nunes claimed that his counsel had provided ineffective assistance by failing to inform Nunes fully of the terms of a plea offer. The Court of Appeal rejected Nunes' claim. The Court of Appeal found it unnecessary to hold an evidentiary hearing because Nunes had not established a prima facie case for prejudice—"that but for counsel's deficient performance, the defendant would have accepted the plea bargain." Id.
Nunes filed a Section 2254 petition in the federal district court in the Northern District of California. The magistrate judge assigned to the case held a two-day evidentiary hearing on Nunes' ineffective assistance claim, after which the magistrate judge recommended that Nunes' petition be granted, concluding that the state court ruling was (1) erroneous and (2) contrary to federal law as clearly established in Strickland v. Washington, 466 U.S. 668, 690-93 (1984). The district court adopted the recommendation, and the respondent appealed.
On appeal, the Ninth Circuit found that the state court of appeal had acted unreasonably by rejecting Nunes' habeas petition. The Ninth Circuit focused on the state court's findings that: (1) the materials Nunes had included in the record were "of dubious relevance" and (2) that the state court of appeal had rejected as "simply not credible" Nunes' claim that he could not reach his attorney to clarify the plea offer. The state court had also found on the record that Nunes failed to demonstrate that he would have accepted the state's plea offer had his attorney communicated it to him accurately. The Ninth Circuit took the state court to task for having "eschewed an evidentiary hearing on the basis that it was accepting Nunes' version of the facts" when the state court had clearly discredited Nunes' credibility and rejected his assertions. Id. at 1055 n. 7.
While the Ninth Circuit in Nunes found that the state court had acted unreasonably in not holding an evidentiary hearing, Nunes, and the subsequent Ninth Circuit case Lambert v. Blodgett, 393 F.3d 943, (9th Cir. 2004), make clear that holding an evidentiary hearing is not a per se requirement for a state court to reasonably determine that a petitioner's allegations are not credible or do not justify relief. Nunes, 350 F.3d at 1055; Lambert v. Blodgett, 393 F.3d at 969 (Ninth Circuit specifically "declines to accept Lambert's proposal to inject an `evidentiary hearing' requirement as a pre-requisite to AEDPA deference").
In Lambert, the Ninth Circuit reiterated that district courts must extend deference to state court decisions, and further explained the level of review for questions of fact, questions of law, and mixed questions of law and fact:
Lambert v. Blodgett, 393 F.3d 943, 978 (9th Cir. 2004).
In the instant case, the reasonableness of the Court of Appeal's decision then, is not as Petitioner has suggested, simply a question of whether or not the Court of Appeal held an evidentiary hearing. Rather, the issue is whether or not the Court of Appeal's view of the record absent an evidentiary hearing was objectively reasonable in its finding of no prejudice. Williams, 529 U.S. at 409-11. As the Court of Appeal noted, under Lafler, its duty was to assess whether Petitioner had met his burden of proof on prejudice by demonstrating that "but for the ineffective advice of counsel there is a reasonable probability that a plea offer less severe than the sentence imposed would have been offered by the prosecution; accepted by the Petitioner; and accepted by the court." Id. at 1385.
Here the Court of Appeal clearly reviewed the factual record before it, as well as the three declarations that Petitioner had submitted to augment the record. On three separate occasions the Court of Appeal reiterated in its decision that, for the purposes of the petition, it was accepting as true the information contained in the declarations. Ex. F at 5 n.4 ("we accept arguendo the referenced factual statements in the declarations in support of the habeas corpus petition"); id. at 8 ("we accept for the sake of argument the gist of Karwash's declaration involving the plea bargaining"); Id. at 11 (relying on declaration of defense counsel to find that he misunderstood the range of potential sentences); Id. at 12-13 (discussing without disputing "the declarations in support of the habeas petition").
In determining whether Petitioner had met his burden of establishing a prima facie case of prejudice, the Court of Appeal made specific findings as to each of the steps necessary to demonstrate prejudice: (1) that the prosecutor would have offered a plea bargain of less than 18 years; (2) that the Petitioner would have accepted such a plea bargain; and (3) that the trial court would have approved the plea bargain reached by the parties. Lafler v. Cooper, 132 S.Ct. 1376, 1385 (2012). This Court reviews these findings of the Court of Appeal only for objective reasonableness.
The first issue is whether, had the parties known Petitioner's true sentencing exposure, the prosecutor would have offered a plea of less than 18 years. To make a determination on this factor, the Court of Appeal reviewed Mr. Thorman's declaration and the record of the case. Based on its review, the Court of Appeal determined that the evidence overall before it supporting Petitioner's argument was too speculative.
Petitioner is adamant in his argument that the Court of Appeal's finding that the Thorman declaration was too speculative must have been unreasonable because "[a]s every lawyer who deals with the criminal justice system knows, `[t]he expected post-trial sentence is imposed in only a few percent of cases. It is like the sticker price for cars: only an ignorant, ill-advised consumer would view full price as the norm and anything less a bargain.'" Traverse at 6:6-9, citing Lafler, 132 S. Ct. at 1387 (in turn quoting Bibas, Stephanos, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection, 99 Cal. L. Rev. 1117, 1138 (2011)). Apparently to support the purported strength of the Thorman declaration, the Petitioner then offers what he believes to be the appropriate "discounted rate" for his crime.
Petitioner theorizes that since the district attorney made a pretrial offer to resolve the case with a sentence of 24 years' imprisonment, which he characterizes as a 40% "discount" on the minimum sentence as it was understood at the time, then under the properly-calculated sentencing scheme, a 40% discount, even from the maximum 24-year sentence, would have yielded a sentence of less than 15 years' imprisonment. Petitioner states that "logic compels" the conclusion that the parties, "would have been vastly more likely" to reach a deal if the prosecutor's starting position was that much closer to Petitioner's position.
This Court finds that in addition to being speculation, as the Court of Appeal reasonably held, this argument ignores the underlying facts of the crimes for which Petitioner was convicted here and devalues the impact of Petitioner's actions on these specific victims. Perhaps in other crimes, "logic would compel" a more mechanical approach to plea bargaining, but the Court finds that the evidence in the record here is quite to the contrary. The record, as noted by the Court of Appeal in its findings, is replete with references to the prosecutor's sensitivity to the desires of these victims, and also the clear position the victims took in uniformly requesting at each juncture that Petitioner receive the maximum sentence he could face.
As it related to the reasonable probability that the prosecutor would have offered Petitioner a plea for a sentence of less than 18 years, the Court of Appeal made the following findings: (1) that even knowing that indeterminate sentence enhancements were not available, the prosecutor still argued that Petitioner could, and should, be sentenced to 42 years;
The reasonableness of a state court's decision is assessed in light of the entire record that the state court had before it. See Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). As context to the specific findings made in the Court of Appeal decision are the additional facts of the case the Court of Appeal had before it in the appellate record. These facts include that during the final plea negotiations when Petitioner offered a sentence of 10 years, the prosecutor would not negotiate without first consulting the victims, and that once she had done so, she refused to lower her original plea offer of 24 years. Moreover, the record shows that the victims in this case and their parents all testified in person or in writing at Petitioner's sentencing asking the court to impose the maximum sentence possible.
In and of itself the lack of clear evidence that the prosecutor would have offered Petitioner a plea deal below 18 years dooms Petitioner's ability to carry his burden of proving prejudice and supports the Court of Appeal decision as reasonable. However, the Court of Appeal also made findings as to whether Petitioner had proven that he would have accepted such a deal.
The Court of Appeal found that Petitioner did not meet his burden to show that he would have accepted any offer below 18 years. Petitioner is correct that in evaluating whether Petitioner had proven that he would have accepted a plea, the Court of Appeal did make a credibility determination. While in many circumstances, such determination may have necessitated an evidentiary hearing, here the facts are such that an evidentiary hearing was not mandated. Of greatest importance, this Court notes that even Petitioner's own declaration does not state unequivocally that he would have accepted a sentence of below 18 years. His declaration states only that he was "unwilling to accept" a 24 year sentence and that he was "willing to
The Court of Appeal balanced Petitioner's statement in his declaration against the other evidence in the record that after trial Petitioner told the probation officer the victims were lying and, that he "didn't accept an offer because [he was] not guilty." The Court of Appeal found that Petitioner's continued claim of innocence detracted from his position on appeal that he would have accepted a plea bargain had the sentencing advice he received been different. This Court finds that the Court of Appeal acted reasonably in determining that Petitioner did not prove that he would have accepted an offer of more than 10 years, in light of the fact that Petitioner's declaration is ambiguous on this point and in light of Petitioner's insistence even after the guilty verdict that the victims were "lying" and that he was innocent. CT 405.
Finally, the Court of Appeal held that the record did not support a finding that, had a plea offer of less than 18 years been made and accepted, the trial court would have accepted it. In this regard the Court of Appeal noted the paucity of evidence, which amounted only to Mr. Thorman's declaration which "avers no facts about the judicial standards of Judge Kurtz regarding his approval of plea agreements in sex cases." Ex. F at 12. With or without an evidentiary hearing, this particular factor might be difficult to prove. However, as the other two prejudice factors have not been met, this Court holds that the Court of Appeal's finding in this regard, while reasonable, is unnecessary to upholding the Court of Appeal's overall finding that Petitioner had not demonstrated prejudice. Given the above findings of this Court, and that the Court does not make its own determination on the facts but must uphold the Court of Appeal decision as long as it is objectively reasonable, this Court finds that Petitioner's ineffective assistance of counsel claim does not warrant habeas relief.
Petitioner contends that the incorrect sentencing information given to him by the trial court and by the prosecutor prior to trial violated his right to due process. The Court of Appeal denied this claim. Similar to the ineffective assistance claim, the Court of Appeal found that while "the incorrect information given in this case . . . deprived defendant of due process of law," Petitioner ultimately was unable to prove "the ultimate question" of prejudice."
The Court of Appeal's opinion notes that there is a conflict in California state court jurisprudence as to whether the prosecution or the defendant bears the burden of proof with regard to prejudice in a due process violation context. In People v. Goodwillie, 147 Cal.App.4th 695, 736 (2007), the Fourth District Court of Appeal held that the standard for assessing prejudice is that stated in Chapman v. California, 386 U.S. 18, 24 (1967). Chapman places the burden on the government to prove beyond a reasonable doubt that the error was harmless. Goodwillie, 147 Cal.App. 4th at 736. In People v. Miralrio, however, the Third District Court of Appeal disagreed with Goodwillie, holding instead that the burden of showing that a defendant would have accepted the plea bargain was on the defendant. 167 Cal.App.4th 448, 462 (2008). In the case at bar, while the Court of Appeal noted the conflict, it held that it did not need to resolve the conflict as to the burden of proof because "[o]n this record, . . . the lack of prejudice to [Petitioner] is manifest. There is simply no basis to conclude he would have received and accepted a court-approved plea offer of less than 18 years. The allocation of the burden of proof is essentially academic." Ex. F at 15.
Petitioner contends the Court of Appeal's opinion was unreasonable "for three related reasons." Petitioner's Memo at 41:10-16. Petitioner argues that the Court of Appeal should have applied the Chapman standard. If the Court of Appeal had applied Chapman, Petitioner asserts that the burden would have shifted to the government to "come forth with evidence proving beyond a reasonable doubt that no such deal would have been reached." Id. at 44: 7-14. Alternatively, if the Court of Appeal did in fact apply the Chapman standard, then its application of that standard to the facts was incorrect. Petitioner finally argues that even had the Court of Appeal applied the standard of Miralrio, the Court of Appeal should have found that the instant Petitioner had established prejudice. Id.
Respondent counters that since the Court of Appeal found the error harmless regardless of who had the burden of proof, the Court of Appeal necessarily had implicitly considered the more rigorous standard of Chapman and found that Chapman had been satisfied.
On review, the standard this Court must use to ascertain the appropriateness of the Court of Appeal's finding on due process is "whether the error had a substantial or injurious effect on the outcome" of the case. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). See also, Fry v. Pliler, 551 U.S. 112 (2007). In Fry v. Pliler, the United States Supreme Court makes clear that in a § 2254 proceeding, a federal court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the "substantial and injurious effect" standard set forth in Brecht, whether or not the Court of Appeal reviewed the error for harmlessness under the "harmless beyond a reasonable doubt" standard set forth in Chapman. Fry, 551 U.S. at 121. The intent of utilizing this standard is consonant with the idea that federal habeas review is reserved for "extreme malfunctions" in the state court criminal justice system. Brecht, 507 U.S at 634.
On the record before it and given the speculative nature of Petitioner's prejudice allegations as discussed at length above, the Court cannot find that the "substantial and injurious effect" standard has been met. Therefore, there is no basis for granting habeas review of Petitioner's due process claim.
In sum, neither of Petitioner's grounds for requesting the issuance of a writ of habeas corpus warrants relief. Given the high level of deference to a state court decision required of this Court under AEDPA, this Court finds that Petitioner has failed to demonstrate that the Court of Appeal's decision denying him an evidentiary hearing was in error, or that the Court of Appeal's decision denying him relief was unreasonable. For the reasons stated above, Petitioner's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 is DENIED WITH PREJUDICE. No certificate of appealability shall issue, as Petitioner has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2). The Clerk of the Court shall enter judgment against the Petitioner and in favor of the Respondent. The Clerk shall close the case file.
