JAMES K. SINGLETON, Jr., Senior District Judge.
Nicholas Baker, a state prisoner proceeding pro se, filed a Petition for Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Baker is in the custody of the California Department of Corrections and Rehabilitation and incarcerated at Kern Valley State Prison. Respondent has answered, and Baker has replied.
On direct appeal of Baker's conviction, the California Court of Appeal recounted the following facts underlying this case:
People v. Baker, No. C064731, 2011 WL 3107071, *1-3 (Cal. Ct. App. Jul. 26, 2011).
Through counsel, Baker appealed to the California Court of Appeal the trial court's denial on remand of his motion to withdraw the plea, arguing that the trial court failed to apply the correct legal standard in assessing whether Baker should be permitted to withdraw his plea due to the ineffective assistance of counsel. According to Baker, the trial court failed to apply the two-prong test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 688 (1984), because it "acknowledged there was evidence that trial counsel was incompetent but at the same time appeared to decide trial counsel performed competently merely because counsel met with witnesses." The appellate court rejected that claim in an unpublished, reasoned opinion, concluding that the trial court was not required to recite on record that it had applied the Strickland test and that it did not abuse its discretion in concluding that Baker failed to establish ineffective assistance and good cause to withdraw his plea. Baker, 2011 WL 3107071, at *5-6. Again proceeding through counsel, Baker sought review from the California Supreme Court, which was summarily denied on October 26, 2011.
Baker then filed a pro se for a writ of habeas corpus in the Superior Court, asserting a litany of complaints surrounding his counsel's performance. The Superior Court denied the petition on the ground that it asserted claims that had been raised and rejected on direct appeal. Baker then filed a pro se petition for a writ of habeas corpus in the California Court of Appeal, arguing that: 1) his counsel was ineffective for failing to conduct a reasonable pretrial investigation; 2) he was coerced into accepting the plea deal due to the ineffective assistance of his counsel; 3) his counsel had an actual conflict of interest because he "argued against [Baker] withdrawing his plea"; and 4) the trial judge was biased against him. The Court of Appeal summarily denied the petition. Baker raised the same claims to the California Supreme Court in another pro se petition for a writ of habeas corpus, which was denied without comment on January 30, 2013. Baker timely filed a Petition for a Writ of Habeas Corpus to this Court on June 3, 2013.
In his pro se Petition before this Court, Baker raises six largely-overlapping grounds for relief. First, Baker appears to raise the claim he brought on his initial direct appeal of his conviction—that the trial court erred in not allowing Davis, Baker's retained counsel, to withdraw from the case. Baker next contends that the trial court failed to apply the proper standard in determining whether Baker could withdraw his no contest plea based on the ineffective assistance of counsel. Baker similarly alleges in claim 3 that Davis was ineffective for failing to hire an investigator and to conduct an adequate pre-trial investigation. In claim 4, Baker asserts that Davis had a conflict of interest because he stated that he was not retained to handle a plea withdrawal and was reluctant to handle it. Baker likewise argues in claim 5 that his "guilty plea . . . was the product of ineffective counsel." Finally, Baker alleges that the "trial court's remarks during the multiple hearings in this matter reveal a preconcieved [sic] and demonstrated aversion to [his] motion to withdraw [his] plea."
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." Id. at 412. The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). 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).
To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
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).
Although not entirely clear, it appears that Baker's first ground for relief focuses on the trial court's failure to allow Baker to discharge Davis as his retained counsel. However, this Court is "without power to decide questions that cannot affect the rights of litigants before [it]." N. Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam) (citation omitted). Baker raised this claim on his initial appeal to the California Court of Appeal, and the appellate court set aside the judgment and mandated that, on remand, Baker would be "permitted to proceed from the point, after entering his no contest plea, at which the court should have granted his request to relieve attorney Davis." People v. Baker, No. C059266, 2009 WL 2437697, at *3 (Cal. Ct. App. Aug. 11, 2009). Because Baker has already been accorded relief on this claim, the issue is now moot, and this Court has no authority to grant relief on a moot claim. Rice, 404 U.S. at 246.
In his second, third, and fifth claims, Baker makes a number of assertions attacking his no contest plea and faulting Davis's representation in connection with its entry. Because Baker pleaded no contest,
The Supreme Court has held that the two-part test set forth in Strickland applies to challenges to pleas based upon ineffective assistance of counsel. Hill, 474 U.S. at 57-59. Under that test, a federal habeas petitioner must establish two things: (1) that counsel's performance was deficient because it fell below an "objective standard of reasonableness" under prevailing professional norms; and (2) that petitioner was prejudiced by counsel's deficient performance, that is, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687-88, 694; see also Hill, 474 U.S. at 59 (prejudice requirement in plea context focuses on whether ineffective assistance affected outcome of plea process). An ineffective assistance of counsel claim should be denied if the petitioner fails to make a sufficient showing under either of the Strickland prongs. See Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not address both prongs if the defendant fails on one).
"In the context of a guilty plea, the ineffectiveness inquiry probes whether the alleged ineffective assistance impinged on the defendant's ability to enter an intelligent, knowing and voluntary plea of guilty." Lambert, 393 F.3d at 979. Thus, where counsel misadvised a defendant about the law during a plea negotiation or improperly coerced a defendant to accept a plea bargain, counsel's performance may be found to have been deficient. Cf. Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012) (counsel's erroneous legal advice about possibility of conviction that led to rejection of plea offer constituted deficient performance). Because of the difficulty in evaluating counsel's performance, there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689; see also Harrington, 131 S. Ct. at 788 ("The question is whether an attorney's representation amounted to incompetence under `prevailing professional norms,' not whether it deviated from best practices or most common custom." (citing Strickland, 466 U.S. at 690)).
In this case, the California Court of Appeal rejected Baker's contention that the trial court failed to apply the Strickland test in concluding that Baker did not make the requisite showing of ineffective assistance of counsel, noting that there is no requirement that the trial court was required to recite on the record that it had applied the test when deciding his motion. Baker, 2011 WL 3107071, at *5. The appellate court further concluded that the trial court did not abuse its discretion in finding that Baker failed to establish by clear and convincing evidence ineffective assistance and good cause to withdraw his plea:
Id. at *6 (internal citations and quotation marks omitted).
In reviewing ineffective assistance of counsel claims in a federal habeas proceeding:
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v. Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
Based upon the record before it, this Court cannot say that the decision of the appellate court on habeas review that Davis conducted a constitutionally-adequate investigation was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "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). Because Baker fails to show defective performance as required by Strickland, he fails to establish ineffective assistance based on counsel's investigation that warranted withdrawal of his guilty plea.
Baker also alleges in his Petition that Davis refused to file two motions he requested: a motion to dismiss the information pursuant to California Penal Code § 995 and a Pitchess motion
Baker also alleges that "Davis has a past record of misconduct" and a "history of being disbarred." In support of this assertion, Baker attaches to his Petition a printout from the California State Bar website noting that Davis was twice suspended from the California State Bar and stipulated to misconduct in seven matters in 2003. The fact that the State Bar disciplined Davis for misconduct in other cases does not constitute per se ineffective assistance of counsel. See United States v. Ross, 338 F.3d 1054, 1056-57 (9th Cir. 2003) (per curiam) (attorney suspended from practice before start of defendant's trial is not per se ineffective); United States v. Mouzin, 785 F.2d 682, 696-97 (9th Cir. 1986) ( "[T]he fact that an attorney is suspended or disbarred does not, without more, rise to the constitutional significance of ineffective counsel under the Sixth Amendment."). Instead, Baker must show that Davis provided him with ineffective assistance of counsel during the plea proceedings, see Young v. Runnels, 435 F.3d 1038, 1042-43 (9th Cir. 2006) (Strickland applies where petitioner is represented by defense counsel who is later disbarred); Ross, 338 F.3d at 1056 ("To prove ineffective assistance, defendants [whose lawyers were suspended or disbarred] (like everyone else) had to identify `actual errors and omissions by counsel that a conscientious advocate would not have made,' and show that they suffered prejudice from those errors." (quoting Mouzin, 785 F.2d at 696)), which, for the reasons discussed above, Baker has not done.
Furthermore, any allegation that counsel coerced him to take the plea agreement is belied by the plea colloquy record.
Baker, 2011 WL 3107071, at *6 (internal citations omitted).
Accordingly, the state courts' conclusion that Baker's plea was voluntarily, intelligently, and knowingly made and not the product of ineffective counsel does not contravene or unreasonably apply federal law. Baker is therefore not entitled to relief on his claim that his counsel's deficient performance warranted withdrawal of his no contest plea.
Baker likewise asserts that Davis "had a conflict of interest which materially compr[o]mised the defense." Baker presented this claim in his petition for a writ of habeas corpus to the state superior court. That court relied on a procedural bar to reject the claim, citing California state law for the proposition that claims raised and resolved on appeal cannot be reconsidered by writ of habeas corpus. Although federal courts "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment," Coleman v. Thompson, 501 U.S. 722, 729 (1991), procedural default does not preclude federal habeas review here because the last state court rendering judgment in this case—the California Supreme Court on habeas review—summarily denied the claim and thus did not "clearly and expressly" state that its judgment rested on a state procedural bar, Teague v. Lane, 489 U.S. 288, 298-99 (1989) (quoting Harris v. Reed, 489 U.S. 255, 263 (1989)).
Although Baker's claim is not barred from federal review, it nonetheless is without without merit. It is well established that the Sixth Amendment right to effective assistance of counsel carries with it "a correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271 (1981). To establish a Sixth Amendment violation based on a conflict of interest, a petitioner must show: (1) that his trial counsel actively represented conflicting interests, and (2) that an actual conflict of interest adversely affected his performance. Mannhalt v. Reed, 847 F.2d 576, 579-80 (9th Cir. 1988) (citing Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)). "`[A]n actual conflict of interest' means precisely a conflict that affected counsel's performance —as opposed to a mere theoretical division of loyalties." Mickens v. Taylor, 535 U.S. 162, 171 (2002).
Baker contends that Davis had a conflict of interest because: 1) "Mr. Davis stated that he had a conflict of interest;" 2) "Mr. Davis said there are no grounds for [Baker] to withdraw his plea;" and 3) Mr. Davis stated that witness's [sic] were being intimidated and that he himself had become a witness to some extent should [Baker] withdraw his plea." But none of these complaints come close to establishing that "counsel actively represented conflicting interests." Mannhalt, 847 F.2d at 579-80. At most, they amount to disagreement over trial tactics. Furthermore, the statements attributed to Davis were all made before the Court of Appeal reversed the judgment and remanded to the trial court with instructions to permit Baker to discharge his attorney. Accordingly, Baker fails to establish that his Sixth Amendment right to conflict-free counsel was violated, and he is not entitled to relief on this claim.
Finally, Baker contends that judicial bias contributed to his conviction. The Due Process Clause guarantees a criminal defendant the right to a fair and impartial judge. See In re Murchison, 349 U.S. 133, 136 (1955). However, a petitioner claiming judicial bias must overcome a "presumption of honesty and integrity" on the part of the judge. See Withrow v. Larkin, 421 U.S. 35, 47 (1975). Moreover, a claim of judicial bias based on improper conduct by a state judge in the context of federal habeas review does not simply require that the federal court determine whether the state judge's conduct was improper; rather, the question is whether the state judge's conduct "rendered the trial so fundamentally unfair as to violate federal due process under the United States Constitution." Duckett v. Godinez, 67 F.3d 734, 740 (9th Cir. 1995) (citations omitted).
The thrust of Baker's claim is that the trial court's failure to allow him to discharge Davis and withdraw his no contest plea evinces bias against him. But as the Ninth Circuit has repeatedly recognized, adverse rulings alone are insufficient to demonstrate judicial bias. See Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008); Taylor v. Regents of the Univ. of Cal., 993 F.2d 710, 712-13 (9th Cir. 1993); Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir. 1981). This is true even where the rulings are erroneous. Hasbrouck v. Texaco, 842 F.2d 1034, 1046 (9th Cir. 1987); United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983). Thus, Baker's claim that the trial judge was biased as evidenced by his adverse rulings fails to set forth a violation of the due process clause. Liteky v. United States, 510 U.S. 540, 556 (1994) ("All of these grounds are inadequate under the principles we have described above: They consist of judicial rulings, routine trial administration efforts, and ordinary admonishments (whether or not legally supportable) to counsel and to witnesses. All occurred in the course of judicial proceedings, and neither (1) relied upon knowledge acquired outside such proceedings nor (2) displayed deep-seated and unequivocal antagonism that would render fair judgment impossible."). Because none of the conduct about which Baker complains comes even close to approaching the standards required to show that he was denied a fair trial, Baker's judicial bias claim must fail.
Baker is not entitled to relief on any ground raised in his Petition.
The Clerk of the Court is to enter judgment accordingly.
