REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Otis D. Wright, II, 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, proceeding in propria persona, filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on October 2, 2012. The case then was assigned to former United States District Judge Alicemarie H. Stotler and former United States Magistrate Judge Carla Woehrle. On November 14, 2012, Magistrate Judge Woehrle appointed counsel to represent Petitioner.
On March 13, 2013, Respondent filed a motion to dismiss the Petition, arguing that the Petition was moot. Petitioner filed an opposition on May 28, 2013. On June 26, 2013, Magistrate Judge Woehrle denied the motion to dismiss without prejudice and granted Petitioner leave to file an amended Petition.
On July 22, 2013, Petitioner filed a First Amended Petition, the operative Petition ("FAP"). The First Amended Petition pleads four grounds for relief:
1. Petitioner's pretrial confinement assertedly exceeded the maximum allowable period under California law, allegedly in violation of Petitioner's rights to due process and equal protection (Ground One);
2. Petitioner's conviction and sentence allegedly were obtained in violation of his constitutional right to a speedy trial (Ground Two);
3. Petitioner's trial counsel allegedly rendered ineffective assistance by failing to move to dismiss the case on the ground that the length of Petitioner's pretrial confinement assertedly violated Petitioner's statutory, state and federal constitutional rights (Ground Three); and
4. Petitioner's trial counsel allegedly rendered ineffective assistance by failing to file a notice of appeal after sentencing (Ground Four).
On July 24, 2013, Petitioner filed a motion for a stay to exhaust state remedies. On July 26, 2013, Respondent filed an opposition to the motion for a stay. On August 26, 2013, Petitioner filed a Reply.
On September 11, 2013, Magistrate Judge Woehrle issued a Minute Order, directing Petitioner's counsel to file a report concerning the status of any state court proceedings. Petitioner's counsel filed a status report on March 10, 2014, indicating Petitioner's habeas petition remained pending in the San Bernardino Superior Court.
On June 10, 2014, the case was reassigned to United States District Judge Otis D. Wright, II.
As Petitioner's state petitions progressed through the state courts, Petitioner's counsel filed further status reports on August 18, 2014, October 9, 2014, January 8, 2015, March 30, 2015, and June 29, 2015.
On September 10, 2015, Respondent filed a "corrected" opposition to Petitioner's motion for a stay. On September 30, 2015, Petitioner's counsel filed a further status report. On December 28, 2015, Petitioner's counsel filed a status report indicating that, on November 24, 2015, the California Supreme Court had denied Petitioner's habeas petition filed in that court.
On February 3, 2016, Magistrate Judge Woehrle issued a Minute Order denying Petitioner's motion for a stay as moot and ordering a response to the First Amended Petition.
On April 14, 2016, the case was transferred to the undersigned Magistrate Judge.
On June 2, 2016, Respondent filed an Answer. On August 22, 2016, Petitioner filed a Reply.
BACKGROUND
The following indented procedural summary is taken from the opinion of the California Court of Appeal in People v. Moffitt, case number E050406 (Cal. App. Oct. 25, 2011).
Defendant was arrested on November 3, 1995. In an information filed August 19, 1996, defendant was charged with possession of a controlled substance, to wit, cocaine (Health & Saf. Code, § 11350, subd. (a)); resisting an executive officer, to wit, a probation officer (§ 69); and possession of a deadly weapon, to wit, a billy club (§ 12020, subd. (a)). The information further alleged that defendant had suffered five prior serious or violent felony strike convictions (§§ 667, subd. (b)-(i), 1170.12, subd. (a)).
According to the district attorney's trial briefs, court minute orders indicate that on November 20, 1995, after defendant was arraigned, the proceedings were suspended under section 1368.1 On March 22, 1996, defendant was deemed competent to stand trial, and criminal proceedings were resumed. "For the next few years, various motions were considered and continuances granted. At all times in which criminal proceedings were reinstated, the Defendant waived his right to a speedy trial."
On February 24, 1999, the proceedings were suspended again under section 1368. On April 7, 2000, defendant was deemed competent to stand trial, and the proceedings were once again resumed.
On June 15, 2001, the proceedings were again suspended under section 1368. On November 9, 2001, defendant was again deemed competent to stand trial, and the proceedings were resumed.
On April 28, 2003, the proceedings were again suspended under section 1368, and psychiatrists were appointed.
On August 1, 2003, the trial court determined defendant to be incompetent to stand trial, and he was committed to Patton. However, on October 1, 2003, the matter came back to the court, because defendant had not yet been transported to Patton. On October 3, 2003, the court again committed defendant to Patton.
On February 19, 2004, a status conference was held because defendant still had not been transferred to Patton due to there being a waiting list.
On March 4, 2004, the trial court again found defendant incompetent to stand trial and referred him to the county Mental Health Director for a placement recommendation.
On March 26, 2004, the trial court again committed defendant to Patton. However, on June 22, 2004, Patton certified that defendant's mental competency was restored. Defense counsel disagreed with this assessment, and a restoration-of-competency hearing was held on October 7 and 28, 2005. On October 28, 2005, the court found defendant to be incompetent to stand trial and again committed him to Patton.
On May 5, 2006, Patton certified that defendant was competent. Defense counsel and the People stipulated that defendant was competent, and criminal proceedings resumed. Defendant thereafter pled not guilty by reason of insanity, and the trial court ordered psychological reports pursuant to section 1026.
On December 7, 2006, defense counsel again declared a doubt as to defendant's mental competency to stand trial, and the proceedings were once again suspended under section 1368. A doctor subsequently concluded that defendant was mentally incompetent. On January 16, 2007, the trial court found defendant to be incompetent to stand trial and remanded him to Patton.
Some time later, Patton certified defendant as mentally competent, and a hearing was held on January 18, 2008. Defense counsel did not stipulate to the competency finding, and the matter was continued several times with the trial court continuing to find the proceedings suspended.
On January 6, 2009, the parties stipulated that defendant was competent, and the proceedings were reinstated. However, after questioning Dr. Nitin Kulkarni from the Department of Mental Health, the trial court ordered defendant to "be returned to the treating facility for whatever treatment is necessary to maintain the defendant's competence pending his trial" under section 1372, subdivision (e). Defendant was therefore ordered transported back to Patton.
On February 20, 2009, defense counsel again declared a doubt as to defendant's mental competency, and the proceedings were again suspended pursuant to section 1368.
A hearing to determine defendant's competency was held on December 4, 2009. At that time, the prosecutor informed the trial court that he had spoken with Dr. Kulkarni and that Dr. Kulkarni noted that "defendant very well may be incompetent based on a recent evaluation he did on him." The prosecutor therefore submitted on the two existing reports from Dr. Wilkinson and Dr. Munoz. The court found defendant mentally incompetent to stand trial and referred him to the Department of Behavioral Health for placement.
On December 14, 2009, defendant filed a propria persona petition for writ of habeas corpus alleging that he has been unlawfully detained without good cause.
On January 15, 2010, the trial court ordered defendant committed to Patton. The court also noted defendant's actual custody credits to be 5,183 and maximum sentence to be 75 years to life.
In a letter dated February 26, 2010, Christina Garcia, a correctional case records supervisor employed by the Department of Mental Health, informed the trial court that "[a]fter the application of the Court[`]s 5183 days custody credit, [defendant's] 3-year term limit pursuant to PC 1370(c)(1) has expired. [¶][2] Therefore based on the Court's discretion and interpretation of the PC 1370(c)(1) statu[t]e, we respectfully request that the Court consider the following options with regard to [defendant's] custody status: [¶] 1) The Court may issue a commitment order to STAY [defendant's] actual pre-commitment custody credits until sentencing, and award actual custody credit for time served in Patton State Hospital, only, of 456 days (three previous admissions were 4-13-04 to 07-02-04, 01-20-06 to 05-05-06 and 04-19-07 to 01-15-08). Please reference Appellate decision (In re Polk, CA 1st No., A084596, May 4, 1999). [¶] 2) If appropriate, the Court also has the option to seek a conservatorship pursuant to Welfare and Institutions Code [section] 5358 or [section] 5008(h)(1)(B). [¶] Therefore, we have deferred admission at this time." (Boldface and underscoring omitted.)
On March 9, 2010, defendant filed a letter to [sic] the Appeals Division of the San Bernardino County Superior Court, stating among other things that he had been unlawfully held for 14 years. The Appeals Division treated that letter as a notice of appeal.
On March 26, 2010, this court deemed defendant's letter to be a notice of appeal from the orders entered on January 15, 2010.
On April 8, 2010, the trial court amended defendant's actual custody credits to be 456 days "towards commitment time in Patton State Hospital." (Capitalization omitted.)
(Respondent's Lodgment 3, pp. 2-7; see People v. Moffitt, 2011 WL 5059198, at *1-3 (Cal. App. Oct. 25, 2011) (footnote 1 in original).
On September 20, 2011, the Superior Court referred Petitioner to the department of Behavioral Health Conservatorship Unit pursuant to California Welfare and Institutions Code section 5008(h)(1)(B) (Respondent's Lodgment 18, p. 10).
On October 25, 2011, the California Court of Appeal issued an opinion ruling that Petitioner had been held "much longer" than the three-year period specified in Penal Code section 1370(c)(1) (Respondent's Lodgment 3; see People v. Moffitt, 2011 WL 5059198 (Cal. App. Oct. 25, 2011). The Court of Appeal reversed the commitment order and remanded the case to the Superior Court "for further proceedings in accordance with this opinion pursuant to Penal Code section 1370, subdivision (c)(1), (2) et seq. and Welfare and Institutions Code section 5008, subdivision (h)(1)(B)" (Respondent's Lodgment 3, p. 20; see People v. Moffitt, 2011 WL 5059198, at *9).
On September 20, 2011, the Superior Court considered a progress report from Patton State Hospital and made findings that Petitioner presented a substantial danger of physical harm to others, had a history of violent offenses and was not an appropriate candidate for release into the community (Respondent's Lodgment 16, Ex. 3, pp. 121-22). The court ordered Petitioner referred to the Behavior Health Conservatorship Unit pursuant to California Welfare and Institutions Code section 5008(h)(1)(b) and California Penal Code section 1370(c)(2) (id.).
On October 12, 2011, the Superior Court ordered Petitioner returned from Patton State Hospital pursuant to Welfare and Institutions Code section 1370(c)(1) (Respondent's Lodgment 16, Ex. 3, p. 120). On October 17, 2011, the Superior Court made a finding that Petitioner was a danger to others and granted the prosecution's motion for a trial on Petitioner's competency (Respondent's Lodgment 13, Ex. 3, p. 119).
The Court of Appeal issued the remittitur on December 30, 2011 (Respondent's Lodgment 16, Ex. 8, p. 245).
A jury trial on the issue of Petitioner's competence commenced on May 16, 2012 (Respondent's Lodgment 16, Ex. 3, pp. 99-102). On May 24, 2012, the jury found Petitioner competent (id., pp. 92-93).
On July 16, 2012, pursuant to a plea agreement, Petitioner pled guilty to Count 1 (possession of cocaine) and admitted two prior "strike" allegations (id., pp. 88-89; Respondent's Lodgment 9). The written change of plea form provided, inter alia, that Petitioner waived his right to appeal from any motion Petitioner may have or could have brought and from the judgment and conviction (Respondent's Lodgment 10, third page; Respondent's Lodgment 16, Ex. 5, p. 227). Petitioner and his attorney signed the form and Petitioner initialed the box next to the appeal waiver (id.). At the change of plea hearing, in response to the court's questions, Petitioner confirmed that his attorney had read the change of plea form to Petitioner and discussed it with Petitioner (Reporter's Transcript of Plea of Guilty and Admissions, at 2). Petitioner also confirmed that he understood what was written on the form and understood the constitutional rights he would be waiving (id.). Petitioner confirmed that he understood that by pleading guilty to possession of cocaine and admitting two strike allegations Petitioner would receive a sentence of 25 years to life, less approximately 24 years of credits (id., at 3). The court found that Petitioner understood the change of plea form and that the plea was voluntary (id., at 6).
On July 23, 2012, the Superior Court sentenced Petitioner to a term of twenty-five years to life (Reporter's Transcript of Sentencing, Respondent's Lodgment 11). Prior to imposing sentence, the court stated that Petitioner's counsel had told the court off the record that Petitioner "had given some indication of wanting to represent himself" (id. at 1-2). Petitioner told the court that, after sentencing, Petitioner wanted to represent himself and to "write some petitions that are past the three-year term or maximum term [sic]" (id., p. 2).
In California, the time period for filing a notice of appeal (and, where the defendant pleads guilty, a request for issuance of a certificate of probable cause) is sixty days from the date of the judgment. See Cal. Ct. R. 8-308(a); Cal. Penal Code § 1237.5 (criminal defendant may not appeal from judgment based on a guilty plea without seeking and obtaining a certificate of probable cause from the trial court). Here, the sixty-day period expired on September 23, 2012. Neither Petitioner nor his counsel filed a timely notice of appeal.
As indicated above, Petitioner filed the original federal Petition in the present case on October 2, 2012. The original Petition did not contain any claim that counsel purportedly rendered ineffective assistance by failing to file a notice of appeal.
On November 9, 2012, Petitioner filed a pro per notice of appeal (Respondent's Lodgment 6). Petitioner alleged among other things, that he had been held beyond the statutory three-year maximum period set forth in Penal Code section 1370(c)(1) (id.). The California Court of Appeal dismissed the appeal as untimely on January 22, 2013 (Respondent's Lodgment 16, Ex. 11, p. 248).
On July 26, 2013, the federal public defender filed a habeas petition in the Superior Court on behalf of Petitioner, in case number WHC1300313 (Respondent's Lodgment 12). In this petition, Petitioner alleged the claims raised in the present federal habeas proceeding (id.). On December 2, 2013, the court ordered the State to file an informal response on the issue whether, if the maximum period of confinement permitted by section 1370 were exceeded, the trial court lacked jurisdiction over the criminal case (Respondent's Lodgment 13, pp. 1-3). The State submitted an informal response on January 22, 2014 (Respondent's Lodgment 13). On May 12, 2014, the court requested further briefing on the ability of the court to grant a trial as to competence after referring the case under Welfare and Institutions Code section 5008(h) (Respondent's Lodgment 15, p. 1). Following further briefing, the court issued a written order on December 16, 2014, ruling inter alia that: (1) the appeal did not deprive the trial court of jurisdiction to order conservatorship proceedings; (2) the competency trial did not contravene the Court of Appeal's decision; (3) Petitioner's rights to a speedy trial were not violated; and (4) Petitioner's trial counsel was not ineffective (Respondent's Lodgment 18).
On January 29, 2015, Petitioner, represented by counsel, filed a habeas corpus petition in the California Court of Appeal containing the claims raised in the present federal proceeding, which the court denied in a summary order on February 4, 2015 (Respondent's Lodgment 20).
On March 2, 2015, Petitioner, represented by counsel, filed a habeas corpus petition in the California Supreme Court containing the claims raised in the present federal proceeding (Respondent's Lodgment 21). On November 24, 2015, the California Supreme Court denied the petition summarily (Respondent's Lodgment 22).
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the 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); 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).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).
"In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been `objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or 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 this Court." Harrington v. Richter, 562 U.S. 86, 101 (2011). This is "the only question that matters under § 2254(d)(1)." Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.
In applying these standards to Petitioner's exhausted claims, the Court looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine 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 this Court." Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (citation, quotations and brackets omitted).
Additionally, 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). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
DISCUSSION
I. Petitioner's Guilty Plea Forecloses Review of the Claims Alleged in Grounds One, Two and Three of the First Amended Petition.
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea. . . .
Tollett v. Henderson, 411 U.S. 258, 267 (1973); see also United States v. Broce, 488 U.S. 563, 569, 572-74 (1989) (absent a claim that defense counsel's plea advice constituted ineffective assistance of counsel, defendant cannot challenge subsequent plea; "A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative, then the conviction and the plea, as a general rule, foreclose the collateral attack."); Lefkowitz v. Newsome, 420 U.S. constitutional challenges to the pretrial proceedings"); Ortberg v. Moody, 961 F.2d 135, 137-38 (9th Cir.), cert. denied, 506 U.S. 878 (1992) ("Petitioner's nolo contendere plea precludes him from challenging alleged constitutional violations that occurred prior to the entry of that plea"). Thus, "[i]f a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not `within the range of competence demanded of attorneys in criminal cases.'" Tollett v. Henderson, 411 U.S. at 266 (citation omitted).
Petitioner's pleaded claims do not include any claim (or evidence) that counsel's plea advice constituted ineffective assistance of counsel or any claim (or evidence) that might otherwise impugn the voluntariness of the plea. Accordingly, Petitioner's guilty plea forecloses review of the claims alleged in Grounds One, Two and Three of the First Amended Petition, all of which concern matters predating the plea. See Nigro v. Evans, 399 Fed. App'x 279, 280 (9th Cir. 2010), cert. denied, 562 U.S. 1203 (2011) (nolo contendere plea foreclosed constitutional claim alleging speedy trial violations occurring prior to plea, as well as claim of pre-plea ineffectiveness of counsel); Moran v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994), cert. denied, 516 U.S. 976 (1995) (guilty plea foreclosed claim of pre-plea ineffective assistance of counsel); United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (guilty plea waived speedy trial claim); see also United States v. Jackson, 697 F.3d 1141, 1144 (9th Cir. 2012) (guilty plea waived claim under federal Speedy Trial Act); Thomas v. Lizarraga, 2015 WL 10079774, at *11 (C.D. Cal. July 28, 2015), adopted, 2016 WL 593425 (C.D. Cal. Feb. 1, 2016) ("petitioner's no contest plea waived his pre-plea speedy trial claim") (citations omitted).
Moreover, in light of Petitioner's guilty plea and the above discussed legal principles, the state court's rejection of the claims alleged in Grounds One, Two and Three of the First Amended Petition cannot be deemed contrary to, or an unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See Tollett v. Henderson, 411 U.S. at 266; Reyes v. Cash, 2014 WL 3734550, at *5 (C.D. Cal. July 28, 2014) (petitioner's plea barred claim that counsel ineffectively failed to enforce petitioner's state statutory right to a speedy trial); Johnson v. Mendoza-Powers, 2008 WL 5245991, at *7 (C.D. Cal. Dec. 12, 2008) (petitioner's plea barred claim that counsel failed to seek dismissal on ground of delay in arraignment); see also Vasquez v. Parrott, 397 F.Supp.2d 452, 463-64 (S.D.N.Y. 2005) (petitioner's plea barred claim that counsel ineffectively failed to support petitioner's pro per speedy trial motion); Kim v. Klem, 2003 WL 22204549, at *8 (E.D. Pa. July 31, 2003) (petitioner's plea barred claim that counsel ineffectively failed to raise speedy trial claim).
For these reasons, Petitioner is not entitled to federal habeas relief on Grounds One, Two or Three of the First Amended Petition.
II. Petitioner's Claim That Counsel Ineffectively Failed to File a Notice of Appeal Does Not Merit Federal Habeas Relief.
Petitioner contends that he "reasonably demonstrated to counsel that he was interested in filing an appeal," but counsel did not pursue an appeal (FAP, p. 13). For the reasons discussed below, this claim does not entitle Petitioner to federal habeas relief.
To establish ineffective assistance of counsel, a habeas petitioner generally must prove: (1) counsel's representation fell below an objective standard of reasonableness ("unreasonableness prong"); and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different ("prejudice prong"). Strickland v. Washington, 466 U.S. 668, 688, 694, 697 (1984) ("Strickland").
In Roe v. Flores-Ortega, 528 U.S. 470 (2000) ("Flores-Ortega"), the petitioner pled guilty and the court informed the petitioner that he could appeal. Id. at 473. Although the petitioner's counsel noted in her file "bring appeal papers," no timely appeal was filed. Id. The petitioner attempted to file a belated notice of appeal, which was rejected as untimely. Id.. In federal habeas proceedings, the petitioner contended that his counsel ineffectively failed to file a promised notice of appeal. Id. A magistrate judge found, following a hearing, that the petitioner had not carried his burden to show that the petitioner's attorney had promised to file a notice of appeal. Id. at 475.
The United States Supreme Court in Flores-Ortega rejected a per se rule that counsel must file a notice of appeal unless the client specifically directs otherwise. Id. at 478. Rather, the Court held that a modified version of the Strickland standard applies to a claim that counsel failed to file a notice of appeal. Id. at 477-78. Under Flores-Ortega, the unreasonableness prong of Strickland is satisfied where an attorney either: (1) "disregards specific instructions from the defendant to file a notice of appeal"; or (2) unreasonably fails to consult with the defendant regarding appeal. Id. A failure to consult with the defendant regarding appeal is not per se ineffective. Id. at 479. A duty to consult exists "when there is reason to think either (1) that a rational defendant would want to appeal . . ., or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Id. at 480. To show prejudice from counsel's failure to file a notice of appeal, a petitioner "must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Id. at 484.
Petitioner does not allege, and the record does not show, that Petitioner expressly instructed his attorney to file a notice of appeal. Rather, Petitioner contends counsel had a duty to consult with Petitioner regarding an appeal (FAP, pp. 12-13). Despite Petitioner's express waiver of his right to appeal at the time of his guilty plea, Petitioner asserts that he "at all times had indicated his desire to challenge the legality of his conviction and commitment" (FAP, p. 5). Petitioner states that he "maintained an ongoing interest in pursuing every legal avenue to challenge his continuing confinement," as allegedly shown by: (1) a March 9, 2010 pro per letter to the Court of Appeal (sent years prior to Petitioner's guilty plea and appeal waiver); and (2) Petitioner's untimely post-conviction pro per notice of appeal (filed more than three months after sentencing) (FAP Mem., p. 13). Petitioner does not otherwise indicate to whom he allegedly expressed his claimed interest in appealing, and does not specifically allege that he expressed to his attorney before the expiration of the time for appeal Petitioner's alleged desire to appeal. Petitioner simply states that "[h]e wanted to appeal" and argues that "[t]hat is the only showing that is required" (id.).
Petitioner's subjective intent is not determinative, however. The issue is whether counsel reasonably should have understood either that a rational defendant would want to appeal or that Petitioner "reasonably demonstrated to counsel that he was interested in appealing." Flores-Ortega, 528 U.S. at 480 (emphasis added); see Rogers v. United States, 2006 WL 448914, at *3 (W.D. Wash. Feb. 22, 2006) ("although Petitioner notes that there is evidence in the record suggesting Petitioner subjectively wished to appeal, the ultimate inquiry under Flores-Ortega is whether Petitioner reasonably demonstrated a desire to file an appeal").
In determining whether counsel had a duty to consult about an appeal, "courts must take into account all the information counsel knew or should have known." Flores-Ortega, 528 U.S. at 480 (citation omitted).
Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights. Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal.
Id.
Unlike the present case, Flores-Ortega did not involve a defendant who had waived appeal as part of a plea bargain. See Flores-Ortega, 528 U.S. at 488 n.1 ("there is no claim here that Flores-Ortega waived his right to appeal as part of his plea agreement") (Souter, J., concurring in part and dissenting in part). Although, as set forth above, the Flores-Ortega Court indicated that an appeal waiver is one factor a court should consider in determining whether a duty to consult existed, there presently exists a split in the circuits concerning the applicability of Flores-Ortega to a case involving an appeal waiver. The majority view, shared by the Ninth Circuit, is that Flores-Ortega does apply in such a circumstance. See United States v. Sandoval-Lopez, 409 F.3d 1193, 1197 (9th Cir. 2005); accord Campusano v. United States, 442 F.3d 770, 777 (2d Cir. 2006); United States v. Poindexter, 492 F.3d 263, 273 (4th Cir. 2007); United States v. Tapp, 491 F.3d 263, 266 (5th Cir. 2007); Campbell v. United States, 686 F.3d 353, 359 (6th Cir. 2012); Witthar v. United States, 1262, 1266-67 (10th Cir. 2005); Gomez-Diaz v. United States, 433 F.3d 788, 790 (11th Cir. 2005). However, the Third Circuit and the Seventh Circuit, as well as lower courts in the First Circuit, have held that Flores-Ortega does not apply in a case involving an appeal waiver. See Nunez v. United States, 546 F.3d 450, 452-56 (7th Cir. 2008) ("Nunez") (Flores-Ortega's rationale "presumes that the defendant has contested the charges; when a defendant not only pleads guilty but also waives the right to appeal, it is hard to classify the absence of appeal as the lawyer taking a vacation"); United States v. Mabry, 536 F.3d 231, 239-42 (3rd Cir. 2008), cert. denied, 557 U.S. 903 (2009) (refusing to apply Flores-Ortega's presumed prejudice rule where defendant, who waived appeal and collateral challenge rights as part of his plea, alleged counsel ineffectively failed to obey defendant's request to file an appeal; Flores-Ortega inapplicable because Flores-Ortega did not involve a waiver and did not address its application in the case of a waiver; noting that there is "some confusion in this area"); Miles v. United States, 2014 WL 1404561, at *7 (D. Me. Apr. 10, 2014); United States v. Falcon, 2011 WL 777852, at *6 (D.R.I. Feb. 28, 2011). Recently the Seventh Circuit, acknowledging the circuit split, confirmed its adherence to Nunez. Solano v. United States, 812 F.3d 573, 577-78 (7th Cir. 2016), pet. for cert. filed, May 10, 2016 (No. 15-9249). The United States Supreme Court has not addressed the issue. See Gringeri v. United States, 2015 WL 9272874, at *2 (D.N.H. Dec. 18, 2015) (acknowledging circuit split; following Nunez); Miles v. United States, 2014 WL 1404561, at *7 (United States Supreme Court "has not yet decided whether an attorney's failure to file a requested appeal, notwithstanding a valid waiver of appeal, constitutes deficient performance and gives rise to a presumption of prejudice") (citation, internal quotations and brackets omitted).
Given the split in the circuits and the lack of any guidance from the Supreme Court, this Court cannot deem unreasonable the state court's rejection of Petitioner's ineffective assistance of counsel claim. See Carey v. Musladin, 549 U.S. 70, 76-77 (2006) (lower courts' wide divergence in treatment of spectator misconduct claims reflected "lack of guidance" from Supreme Court, and thus "it cannot be said that the state court unreasonably applied clearly established Federal law"); Ponce v. Felker, 606 F.3d 596, 605-06 (9th Cir.), cert. denied, 562 U.S. 1009 (2010) (state court's determination not contrary to or an unreasonable application of clearly established Supreme Court law where courts disagreed concerning scope of forfeiture exception to right of confrontation and no Supreme Court decision addressed the issue); Clark v. Murphy, 331 F.3d 1062, 1071 (9th Cir. 2003), abrogated on other grounds, Lockyer v. Andrade, 538 U.S. 63, 71 (2003) ("The very fact that circuit courts have reached differing results on similar facts leads inevitably to the conclusion that the [state] court's rejection of [petitioner's] claim was not objectively unreasonable."); Salem v. Runnels, 2009 WL 1520023, at *7 (C.D. Cal. May 28, 2009) (state court's rejection of claim that counsel ineffectively failed to file an appeal despite petitioner's waiver of appeal as part of plea bargain not unreasonable in light of circuit split); see also Evenstad v. Carlson, 470 F.3d 777, 783 (8th Cir. 2006) ("When the federal circuits disagree as to a point of law, the law cannot be considered `clearly established' under 28 U.S.C. § 2254(d)(1).").
Indeed, in seeking to extend Flores-Ortega to a case involving an express waiver of appeal, Petitioner essentially asks this Court to rule that the state court erred in failing to extend the principle of Flores-Ortega "to a new context where it should apply." In White v. Woodall, 134 S.Ct. 1697, 1705-07 (2014), the United States Supreme Court forbade federal courts from granting habeas relief for a state court's failure to extend a principle "to a new context where it should apply."
Section 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies this Court's precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error. . . . The critical point is that relief is available under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no "fairminded disagreement" on the question."
White v. Woodall, 134 S. Ct. at 1706-07 (citations omitted). Accordingly, Petitioner is not entitled to federal habeas relief on Ground Four of the First Amended Petition.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the First Amended 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.
