JAMES K. SINGLETON, Jr., Senior District Judge
Louis Votino, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Votino is currently in the custody of the California Department of Corrections and Rehabilitation and is incarcerated at Mule Creek State Prison in Ione, California. Respondent has answered, and Votino has replied.
The California Court of Appeal recounted the underlying facts and procedure of this case as follows:
People v. Votino, No. C054522, 2009 WL 1900389, at *1-3 (Cal. Ct. App. July 1, 2009).
Through counsel, Votino directly appealed, arguing that: 1) the trial court erred in instructing the jury on the natural and probable consequences doctrine; 2) the evidence was insufficient to convict him as an aider and abettor under the natural and probable consequences theory of liability because the assaults were not reasonably foreseeable; 3) the court improperly restricted cross-examination of Hopkins; and 4) he was improperly convicted of both stealing and receiving the stolen truck. The Court of Appeal reversed Votino's conviction for receiving stolen property but otherwise affirmed in a reasoned, unpublished decision. Votino, 2009 WL 1900389, at *8.
Votino filed a counseled petition for review to the California Supreme Court, in which he argued that the court erred in instructing the jury on the natural and probable consequences doctrine and that his right to confrontation was violated when the court limited his cross-examination of Hopkins. The supreme court summarily denied review.
Votino filed a pro se petition for habeas relief with the superior court. Votino argued that the imposition of consecutive sentences for assault of the police officers with a deadly weapon and second-degree robbery was a violation of state law and the prohibition against double jeopardy and the court exceeded its jurisdiction in relying on an invalid prior offense to increase his sentence. The superior court denied relief in a brief, reasoned opinion.
Votino filed a second pro se petition for habeas relief with the superior court. This time, Votino argued that newly discovered evidence demonstrated that he was actually innocent of the robbery and that trial counsel was ineffective for failing to discover that evidence. Votino additionally requested an evidentiary hearing. The superior court denied Votino relief in a brief, reasoned opinion.
In his third pro se petition to the superior court for habeas relief, Votino raised the same claims he did in his unsuccessful second petition. Votino again requested an evidentiary hearing. The superior court summarily denied Votino relief.
Votino then filed a pro se petition for habeas relief with the Court of Appeal in which he again argued that newly discovered evidence established that he was innocent and that trial counsel was ineffective for failing to discover such evidence. Votino renewed his request for an evidentiary hearing. The Court of Appeal summarily denied relief.
Votino filed a pro se petition for habeas relief with the California Supreme Court, again arguing actual innocence and ineffective assistance of counsel and requesting an evidentiary hearing. The California Supreme Court summarily denied review.
Votino timely filed his Petition with this Court on July 7, 2010. After this Court granted Votino's motion to stay and abey proceedings pending exhaustion of his claims in state court, Votino filed an Amended Petition on March 26, 2012.
In his Amended Petition before this Court, Votino argues that: 1) the trial court erred in instructing the jury on the natural and probable consequences doctrine; 2) the evidence was insufficient to convict him as an aider and abettor under the natural and probable consequences theory of liability because the assaults were not reasonably foreseeable; 3) the court improperly restricted cross-examination of Hopkins; 4) newly discovered evidence proves that he is actually innocent of the robbery; 5) counsel was ineffective for failing to discover the evidence demonstrating his innocence; 6) the imposition of consecutive sentences for assault with a deadly weapon and second-degree robbery violated state law and the prohibition against double jeopardy; and 7) the court exceeded its jurisdiction in relying on an invalid prior strike to enhance his sentence. Votino additionally requests discovery and an evidentiary hearing "to further develop and obtain evidence sufficient to prove he is actually innocent of robb[ery]."
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). A state-court decision is "contrary" to federal law "if the state court applies a rule that contradicts the governing law set forth" in controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision," Williams, 529 U.S. at 412, and not circuit precedent, see Renico v. Lett, 559 U.S. 766, 778-79 (2010). The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds and not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.'" Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011); Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington v. Richter, 131 S.Ct. 770, 784 (2011).
The jury was instructed pursuant to CALJIC No. 3.00-3.02 that, in order to find Votino guilty of the 4 assault of an officer charges, it would have to find beyond a reasonable doubt that: 1) a robbery had been committed; 2) Votino aided and abetted the robbery; 3) a co-principal in the robbery committed the crimes of assault with a firearm on a peace officer; and 4) the crimes of assault with a firearm and assault with a firearm on a peace officer were the natural and probable consequence of the commission of the robbery. Votino asserts that the court erred in instructing the jury on the natural and probable consequences theory of liability because the robbery took place nine hours before the assault, the robbery was complete and not ongoing because no proceeds of the robbery were found in the truck at the time of the assaults, and because Woods was an occupant of the vehicle at the time of the assaults but did not take part in the robbery. Votino further argues that there was insufficient evidence to support his convictions for assault on a peace officer as an aider and abettor under the natural and probable consequences theory of liability because the perpetrator's conduct was not reasonably foreseeable.
The Court of Appeal denied Votino relief on this claims as follows:
Votino, 2009 WL 1900389, at *3-6.
Votino's claim that the court erred in instructing the jury on the natural and probable consequences theory of liability because the robbery was complete as a matter of law long before the assaults occurred is not reviewable by this Court. This Court is bound by the state court's determination that the natural and probable consequences doctrine is circumscribed not by whether the target offense was complete at the time of the charged offense, but by whether the charged offense was a reasonably foreseeable consequence of the commission of the target offense. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam). To the extent Votino's claim is reviewable based upon a potential denial of due process, it lacks merit as Votino has not shown that the trial court committed error under state law, much less an error of constitutional magnitude. See Spivey v. Rocha, 194 F.3d 971, 976-77 (9th Cir. 1999) (court's instruction on the natural and probable consequences theory of liability was consistent with California law and did not otherwise violate the defendant's right to due process and a fair trial); see also Windham v. Merkle, 163 F.3d 1092, 1104 (9th Cir. 1998) ("The jury was properly instructed that if it was persuaded beyond a reasonable doubt that [petitioner] was guilty as an aider and abettor of the contemplated felonious assaults that were committed against members of a rival gang, he would also be liable for the natural and probable consequences of those acts. The trial court did not err in reading CALJIC 3.02 to the jury.").
Votino additionally argues that there was insufficient evidence to convict him on the 4 counts of assault against a peace officer with a deadly weapon because the assaults took place 9 hours after the robbery, the robbery and assaults took place in different locations, the robbery was complete at the time of the assaults, and Woods was present in the vehicle at the time of the assaults but was not a participant in the robbery. As articulated by the Supreme Court in Jackson, the constitutional standard for sufficiency of the evidence is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the original); see also McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (reaffirming this standard). This Court must therefore determine whether the California court unreasonably applied Jackson. In making this determination, this Court may not usurp the role of the finder of fact by considering how it would have resolved any conflicts in the evidence, made the inferences, or considered the evidence at trial. Jackson, 443 U.S. at 318-19. Rather, when "faced with a record of historical facts that supports conflicting inferences," this Court "must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and defer to that resolution." Id. at 326.
It is a fundamental precept of dual federalism that the States possess primary authority for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982). Consequently, although the sufficiency of the evidence review by this Court is grounded in the Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set forth in state law. Jackson, 443 U.S. at 324 n.16. This Court must also be ever mindful of the deference owed to the trier of fact and the sharply limited nature of constitutional sufficiency review. Juan H. v. Allen, 408 F.3d 1262, 1275 (9th Cir. 2005). A fundamental principle of our federal system is "that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." Bradshaw, 546 U.S. at 76.
Determination of whether a crime is the natural and probable consequence of a target crime involves an objective, factual analysis. People v. Prettyman, 926 P.2d 1013, 1039 (Cal. 1996). Here, Balverde had already fired shots at Hopkins, who chased Balverde and Votino as they were fleeing the robbery in the stolen truck. A jury could have reasonably concluded that it was objectively foreseeable that the police would accost them since they continued to drive around town in the same stolen truck used in the robbery, and that where Balverde used his firearm to elude pursuit once, he would do it again. The Court of Appeal's determination that there was sufficient evidence to support Votino's assault convictions was not unreasonable or contrary to federal law. Votino is therefore not entitled to relief on this claim.
Votino next argues that that his Sixth Amendment right to confrontation was denied when the court improperly restricted his cross-examination of Hopkins.
The Court of Appeal denied Votino relief on this claim, concluding as follows:
Votino, 2009 WL 1900389, at *6-8 (internal citations omitted).
The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." U.S. CONST. amend. VI. It is well settled that, under the Sixth Amendment, an accused has the right to present witnesses, testimony and other evidence in his defense. See Washington v. Texas, 388 U.S. 14, 19 (1967). However, "[t]he accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 410 (1988). States have considerable latitude under the Constitution to establish rules excluding evidence from criminal trials. Holmes v. S. Carolina, 547 U.S. 319, 324 (2006). "Thus, a trial judge may exclude or limit evidence to prevent excessive consumption of time, undue prejudice, confusion of the issues, or misleading the jury. The trial judge enjoys broad latitude in this regard, so long as the rulings are not arbitrary or disproportionate." Menendez v. Terhune, 422 F.3d 1012, 1033 (9th Cir. 2005) (citations omitted); see Montana v. Egelhoff, 518 U.S. 37, 42-43 (1996) (holding that due process rights are not violated by the exclusion of relevant evidence where the probative value is outweighed by the danger of prejudice or confusion).
Federal Rule of Evidence 403, the federal counterpart to California Evidence Code section 352, permits the exclusion of evidence if its probative value is "substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." "A district court is accorded a wide discretion in determining the admissibility of evidence under the Federal Rules. Assessing the probative value of [the proffered evidence], and weighing any factors counseling against admissibility is a matter first for the district court's sound judgment under Rules 401 and 403 . . . ." United States v. Abel, 469 U.S. 45, 54 (1984); see Boyd v. City and Cnty. of San Francisco, 576 F.3d 938, 948 (9th Cir. 2009). California employs a similar rule. See People v. Harris, 118 P.3d 545, 565 (Cal. 2005) ("We review for abuse of discretion a trial court's rulings on the admissibility of evidence.").
Here, Votino had an opportunity to extensively cross-examine Hopkins about any potential biases, inconsistencies, or other infirmities—and did so. The court equally limited impeachment by both the prosecution and defense. The court acted well within its discretion and within the bounds of the Confrontation Clause in determining that introducing extrinsic evidence to contradict Hopkins's eyewitnesses identifications used in prior cases could confuse the issues and potentially devolve into a mini-trial on collateral matters. See United States v. Scheffer, 523 U.S. 303, 314 (1998) (noting that "collateral litigation prolongs criminal trials and threatens to distract the jury from its central function of determining guilt or innocence"); see also Fenenbock v. Dir. of Corr. for California, 692 F.3d 910, 921 (9th Cir. 2012) (petitioner not entitled to habeas relief where he cited to no Supreme Court authority recognizing a right to impeachment via extrinsic evidence relating to the truth of a collateral out-of-court statement). Defense counsel thoroughly cross-examined Hopkins about his credibility, memory and observations. As the Court of Appeal noted, defense counsel exposed inconsistencies in Hopkins's testimony, challenged his motivation for testifying, and asked penetrating questions about his testimony in other cases. The Court of Appeal's conclusion that Votino was not denied his right to confrontation was not unreasonable or contrary to federal law. Votino thus cannot prevail on this claim.
Votino next argues that newly discovered evidence demonstrates that he is actually innocent of the robbery. Specifically, Votino argues that a CD showing the truck outside the gas mart from 16 different camera angles, which was played for the jury at trial, should be analyzed by an expert to determine if a photo of the driver can be extracted. In a post-trial proceeding, Votino, who was proceeding as his own counsel at that point, claimed that he had contacted a Colorado company who stated that it was possible, although not guaranteed, that it could extract a photo of the driver, and that the extraction would cost $12,000. The court stated that whether it was possible to pull a photo of the driver from the video might be relevant to an ineffective assistance of counsel claim if counsel had at the time of trial the resources to hire expert analysis of the tapes. The court stated that it would not pay for expert analysis of the video, instead suggesting that Votino contact his investigator who could help him determine, either with Votino's personal funds or funds provided to the investigator by the state, if it were possible to pull a video from the driver without spending the entire $12,000 to actually complete the analysis. Votino never obtained any evidence that an extraction was possible. He also claims his trial counsel was ineffective for failing to hire an expert to extract a photo of the driver from the CD.
Votino also argues that in July of 2010, a fellow inmate named Alfredo Tafoya told him that while Tafoya was incarcerated in the San Joaquin County Jail, an inmate named Santos Real stated that "he and his homeboy" committed the robbery in question in the stolen truck. He further asserts that the forensic analyst who processed the truck six days after the robbery and after it had been towed found only palm prints on the truck, and they did not match Balverde, Woods, or Votino. Votino requests an evidentiary hearing and discovery so that he can "further develop and obtain evidence sufficient to prove he is actually innocent of [the] robb[ery]."
Votino raised these claims in his second pro se petition for habeas relief with the superior court. The superior court denied relief as follows:
While a federal habeas petitioner may assert a claim of actual innocence to overcome a procedural bar to review, Schlup v. Delo, 513 U.S. 298, 326 (1995), or to overcome AEDPA's one-year statute of limitations, McQuiggin v. Perkins, ___ U.S. ___, 133 S.Ct. 1924, 1928 (2013), the Supreme Court has not resolved whether a non-capital prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence, McQuiggin, 133 S. Ct. at 1931; see House v. Bell, 547 U.S. 518, 554-55 (2006); Dist. Attorney's Office v. Osborne, 557 U.S. 52, 71-72 (2009). The Supreme Court has instead declined to answer the question, noting that where "[p]etitioner has failed to make a persuasive showing of actual innocence[,] . . . the Court has no reason to pass on, and appropriately reserves, the question whether federal courts may entertain convincing claims of actual innocence." Herrera v. Collins, 506 U.S. 390, 427 (1993) (O'Connor, J., concurring).
Assuming, but not deciding, that a freestanding actual innocence claim is cognizable in a § 2254 proceeding, the Supreme Court has described the threshold showing of evidence as "extraordinarily high." Herrera, 506 U.S. at 417. The Ninth Circuit has held that "a habeas petitioner asserting a freestanding innocence claim must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent." Jackson v. Calderon, 211 F.3d 1148, 1165 (9th Cir. 2000) (quoting Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997)).
Measured against this standard, Votino has fallen short of establishing his actual innocence. Votino failed to provide evidence that it was even possible to pull a photo of the getaway driver from the videotape presented at trial. And although Tafoya declared that he would be prepared to testify that Real took responsibility for the robbery and assault, his testimony would be inadmissible hearsay and, while it might cast doubt on Votino's guilt, is insufficient to establish that Votino is probably innocent. See Jackson, 211 F. 3d at 1165. Consequently, he not entitled to relief on this ground.
Votino requests that this court appoint an investigator and order discovery and an evidentiary hearing so that he can follow these "leads" and prove that he is in fact innocent. Votino states that an investigator could locate Real to ask if he will admit to being the getaway driver, extract photos of the driver from the CD and compare it to his booking photo and to Real's booking photo, compare the palm prints taken from the white truck to Real's prints, and subpoena Tafoya, Real and Balverde to testify that Real was the real getaway driver.
"To obtain an evidentiary hearing in district court, a habeas petitioner must, in addition to showing diligence in state court, allege a colorable claim for relief." West v. Ryan, 608 F.3d 477, 485 (9th Cir. 2010) (citing Schriro v. Landrigan, 550 U.S. 465, 474-75 (2007); Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005)). To allege a colorable claim, he must allege facts that, if true, would entitle him to habeas relief. Landrigan, 550 U.S. at 474. Thus, "[i]n deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations," and whether those allegations, if true, would entitle him to relief. Id. "[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id. Furthermore, because the AEDPA's deferential standards "control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate." Id.; see also Earp, 431 F.3d at 1166-67.
Votino did not receive an evidentiary hearing in state court to find facts relevant to the allegedly newly-discovered evidence. Nevertheless, he is not entitled to an evidentiary hearing now because even if the newly-discovered evidence proves to be true, he would not have made out a valid freestanding claim of actual innocence by "affirmatively prov[ing] that he is probably innocent." Jackson, 211 F. 3d at 1165; see also Herrera, 506 U.S. at 417-19. Again, Votino failed to present any evidence at the trial level that extraction of a photo was even possible. And if truthful, the testimony of Real coupled with the finding of his fingerprints on the truck would at most cast doubt on Votino's guilt. It would not be sufficient to establish that Votino is probably innocent where an eyewitness identified him as a participant in the robbery and he was accosted shortly after the assaults near the scene of the crime with gunshot residue on his hands.
Lastly, he cannot establish that trial counsel was ineffective for failing to hire an expert to extract a photo of the driver from the videotape which defense counsel had been provided and which was shown to the jury at trial. To demonstrate ineffective assistance of counsel under Strickland v. Washington, a defendant must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. 466 U.S. 668, 687 (1984). Again, Votino failed to provide a statement that extraction of such a photo was even possible. Thus, he has failed to show that counsel's performance was deficient in this regard. See id. (courts may consider either prong of the test first and need not address both prongs if the defendant fails on one).
At his sentencing hearing, Votino argued that because aiding and abetting the robbery and the assaults on the officers constituted a "continuing course of conduct, a continuing conspiracy," he should be sentenced concurrently on those counts. Votino suggested that consecutive sentences would violate California Penal Code § 654, which precludes multiple punishments for a single act or omission or an indivisible course of conduct. CAL. PENAL CODE § 654(a); People v. Deloza, 957 P.2d 945, 948 (Cal. 1998). The court responded, "It's not a 654 issue." The court imposed the middle term of 6 years on Count 1, assault with a deadly weapon against a police officer. The court imposed six-year terms on Counts 2-4, the remaining convictions for assault with a deadly weapon against a peace officer, to run concurrently with Count 1. The court sentenced Votino to, inter alia, one year on Count 10, second-degree robbery, and concluded that because second-degree robbery was a "serious crime," state law mandated that the sentence be imposed consecutively. The court doubled all terms pursuant to California Penal Code § 1170.12(B).
Votino argues that the imposition of consecutive sentences on Counts 1 and 10 violates California Penal Code § 654 and the prohibition against double jeopardy because they constituted multiple punishments for the same offense. He claims that since he was convicted on a theory that the assaults were a natural and probable consequence of the robbery, the robbery and the assaults constituted a "single transaction" for sentencing purposes. Votino raised this claim in his first pro se petition for habeas relief filed with the superior court. The superior court concluded that Votino failed to state a claim for relief because he did not provide documentary evidence to support his claim, such as transcripts of the sentencing hearing.
Votino's claim that his sentence violated California Penal Code § 654 is not reviewable by this Court because it is purely a matter of state law. Watts v. Bonneville, 879 F.2d 685 (9th Cir. 1989). The Double Jeopardy Clause of the United States Constitution provides that no person shall "be subject for the same offen[s]e to be twice put in jeopardy of life or limb." U.S. CONST. amend. V. The clause is enforced against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 787 (1969). The Supreme Court has previously held that this clause protects against successive prosecutions for the same offense after acquittal or conviction and against multiple criminal punishments for the same offense. Monge v. California, 524 U.S. 721, 727-28 (1998) (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). The prohibition against multiple punishments "is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature." Ohio v. Johnson, 467 U.S. 493, 499 (1984). Whether punishments imposed in a single trial are "multiple" for purposes of double jeopardy is essentially an issue of legislative intent. See Missouri v. Hunter, 459 U.S. 359, 366-68 (1983). "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932).
Applying the Blockburger test, assault of a police officer with a deadly weapon and second-degree robbery are distinct and separate offenses under California law. Count 10, second degree robbery, requires proof of an element that Count 1 does not—the taking of the personal property of another. CAL. PENAL CODE § 211. Conversely, Count 1 requires proof of an element that Count 10 does not—assault against a peace officer. CAL. PENAL CODE § 245(d)(1). Accordingly, even if these crimes were committed with the same objective—to get away with a robbery—they do not constitute the same offenses for which the imposition of consecutive sentences would violate the prohibition against double jeopardy. Votino thus cannot prevail on this claim.
At his sentencing hearing, Votino argued that the court should strike one of his prior strikes because he committed the underlying offense when he was young and on drugs and because he wanted "another chance out there." The court denied the motion to strike. In his first pro se petition for habeas relief filed with the superior court, Votino argued that his 1993 conviction was invalid as a prior strike and could not be used to enhance his sentence because he did not voluntarily and intelligently waive his constitutional rights when he pled guilty in 1993. The superior court denied him relief as follows:
This Court may not grant Votino relief on his claim. The United States Supreme Court has held that if a prior conviction used to enhance a state sentence is no longer open to direct or collateral attack in its own right because the petitioner failed to or unsuccessfully pursued those remedies, the petitioner may not collaterally attack his prior conviction in a § 2254 petition for habeas relief. Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 402 (2001); Nunes v. Ramirez-Palmer, 485 F.3d 432, 443 (9th Cir. 2007). An exception to that rule is where there was a failure to appoint counsel in violation of the Sixth Amendment in that prior proceeding. Lackawanna, 531 U.S. at 404. That exception does not apply here because, as the superior court found, Votino was represented by counsel during his initial trial which resulted in a hung jury and his subsequent plea. Votino is therefore not entitled to relief on this claim.
Votino is not entitled to relief on any ground raised in his Amended Petition.
The Clerk of the Court is to enter judgment accordingly.
