ERICA P. GROSJEAN, Magistrate Judge.
Petitioner Jaime I. Estrada is a state prisoner, represented by appointed counsel, proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his sole remaining claim in the petition for writ of habeas corpus, Petitioner asserts ineffective assistance of trial counsel for failure to convey a nineteen-year offer to plead to voluntary manslaughter and one count of carjacking.
For the reasons discussed herein, the undersigned recommends that Petitioner's claim of ineffective assistance of counsel be denied and that the petition for writ of habeas corpus be denied.
On June 19, 1995, Petitioner was charged with one count of murder and two counts of carjacking in the Stanislaus County Superior Court. (1 CT
Petitioner filed six state petitions for writ of habeas corpus, which were all denied. (LDs
In a subsequent state habeas petition filed in the Stanislaus County Superior Court, Petitioner raised an ineffective assistance claim with respect to trial counsel's failure to communicate the alleged nineteen-year offer. (LD 13). The superior court denied this claim in a reasoned decision. (LD 14). Petitioner also raised this claim in a state habeas petition filed in the California Supreme Court, which summarily denied the petition. (LDs 15, 16).
On April 17, 2014,
On May 5, 2017, the undersigned held an evidentiary hearing on Petitioner's claim that he received ineffective assistance of counsel based on defense counsel's failure to convey a nineteen-year offer to plead to voluntary manslaughter and one count of carjacking. Counsel Carolyn D. Phillips appeared on behalf of Petitioner. Counsel Tami M. Krenzin appeared on behalf of Respondent. Sandra Bishop, Charles McKenna, and Petitioner testified. The parties have filed post-hearing briefs. (ECF Nos. 86-89).
Sandra Bishop testified that she has been a deputy district attorney with the Stanislaus County District Attorney's Office since 1988, and that she was assigned as lead counsel in Petitioner's criminal case. (Tr. 7, 10-11). The charges Petitioner faced in the Stanislaus County case included one count of murder with a gun-use enhancement and two counts of carjacking with gun-use enhancements. (Tr. 14-15). Ms. Bishop testified that she believes Jim Brazelton was her supervisor at the time of Petitioner's criminal case, and Donald Stahl was the elected District Attorney. (Tr. 11, 13).
On January 24, 1995, Ms. Bishop prepared a memorandum advising Mr. Brazelton that she had received an offer from attorney Robert Wildman, who was initially appointed to represent Petitioner. (Ex. PX-101; Tr. 16). The memorandum stated that Petitioner was pending preliminary hearing on the Stanislaus County charges while serving a fourteen-year prison sentence for carjackings that occurred in Merced County. Mr. Wildman offered to plead Petitioner to manslaughter and two carjackings for a total term of eighteen to twenty years (including Petitioner's Merced time). The memorandum described the murder charge as "problematical from the start," and indicated that both Mark Smith and Ed McNeff
Ms. Bishop testified that Mr. Wildman ceased representing Petitioner on April 28, 1995, and subsequently Petitioner was represented by Richard Palmer.
A memorandum, dated August 16, 1995, from Mr. Brazelton to District Attorney Stahl ("D.A. Stahl"), indicated that Ms. Bishop called Mr. Brazelton regarding settling Petitioner's case. (Tr. 49). At the time, Ms. Bishop would have needed permission from D.A. Stahl to settle a murder case for voluntary manslaughter. (Tr. 51-52). Based on the handwritten notations on the memorandum, D.A. Stahl authorized settling Petitioner's case for voluntary manslaughter, but indicated that litigation was required to determine whether Petitioner's Merced conviction would qualify as a second strike for sentencing enhancement purposes. (Tr. 52-53).
A pretrial conference was held on August 17, 1995. Ms. Bishop did not appear at the hearing. (Tr. 57-58). She later learned that Charles McKenna stood in for her. (Tr. 61). It was general practice that once D.A. Stahl approved settling a homicide case, the attorney standing in for the lead attorney would receive that information. (Tr. 63). Ms. Bishop testified that in light of D.A. Stahl's permission to settle Petitioner's case, Mr. McKenna was in a position and had the authority to make a plea offer. (Tr. 73).
On cross-examination, Ms. Bishop testified that she did not recall making any plea offers in Petitioner's case, and that she was positive the prosecution never conveyed an eight-year offer to Mr. Wildman. (Tr. 81). Ms. Bishop further testified that it was the policy of the District Attorney's Office that all plea offers in murder cases had to be put on the record in court and in the presence of the defendant. This occurred regardless of whether a settlement was reached or not. (Tr. 90-92).
Charles McKenna testified that he worked for the Stanislaus County District Attorney's Office from 1985 to 2000. (Tr. 93-94). Although Mr. McKenna could not independently recall making an appearance at Petitioner's pretrial conference on August 17, 1995, Mr. McKenna identified the handwriting on the August 17, 1995 turnaround
Mr. McKenna explained that the first line of shorthand writing on the August 17th turnaround stood for: lesser included offense, count I, voluntary manslaughter, with a triad
Mr. McKenna testified that it was possible he made a plea offer consistent with the terms outlined on the August 17th turnaround. (Tr. 101-02). However, his specific notations on the turnaround gave him pause. For example, Mr. McKenna testified that if he had written "P-A-C-F-T-R, plea as charged, free to recommend," or "plead LI192, stipulate 19 years," that would mean he was making an offer. (Tr. 102). He further testified that the way he has written the notes, "I'm thinking in my mind there's an offer and this is what the result of it will be when the judge asks me, if the person pleads to it." (Tr. 102) (emphasis added). Mr. McKenna could not recall when he wrote the comments. He testified, "Probably before the pretrial, but I really don't know since I don't remember the event at all." (Tr. 99).
Mr. McKenna testified that the handwriting on the memorandum, dated August 17, 1995, was his. (Tr. 108). It concluded that Petitioner's Merced carjacking conviction could not be used as a prior strike. (Tr. 109). There is no indication whether the memorandum was drafted before or after the pretrial conference, but Mr. McKenna testified that "in the normal sequence of events this is something I would create after[]" the pretrial conference. (Tr. 108-10).
The minutes from the April 17, 1995 pretrial conference
Mr. McKenna testified that it was possible that the final offer, as memorialized by the court minutes, may have been to plead to murder and carjacking and dismissal of the third count. (Tr. 118). However, Mr. McKenna also testified, "I mean I can't imagine I said one thing to Mr. Palmer and then got in front of the court and said something else, said you know, voluntary manslaughter to Mr. Palmer; got in front of the court, with the court hearing me, murder. That doesn't make sense to me." (Tr. 117).
On cross-examination, Mr. McKenna testified that it was his practice to convey plea offers in open court. (Tr. 120). Judge Girolami
Petitioner testified that he is currently serving an indeterminate life term for a conviction in Stanislaus County for a 1995 murder. Petitioner was also charged with two carjackings and each count included gun-use enhancements. (Tr. 138). At the time of the Stanislaus County charges, Petitioner was serving time for Merced County convictions. Additionally, while Petitioner was awaiting trial on the Stanislaus County charges, he was also charged with two counts of assault. (Tr. 138-39).
Petitioner testified that of all the charges he was facing at the time, he was most troubled by the murder charge because that carried a potential term of life imprisonment. Petitioner believed he was advised of the possible life term by his first attorney, Mr. Wildman. (Tr. 139). Petitioner conferred with Mr. Wildman about his self-defense claim, and Mr. Wildman told him that it was a winning case. Mr. Wildman withdrew from representation due to a conflict. (Tr. 140).
Mr. Palmer was Petitioner's third appointed attorney. (Tr. 140). Petitioner discussed his self-defense claim with Mr. Palmer, who was unsure of the claim due to concerns regarding witnesses. Petitioner began to doubt Mr. Palmer's representation and at the time was not aware of any plea offers Mr. Palmer made on Petitioner's behalf. (Tr. 141). Petitioner testified that Mr. Palmer's statement in the July 31, 1995 offer letter that Petitioner has incentive to accept a plea offer for a sentence between twenty-nine to fifty-eight years was true. Petitioner testified that he discussed with Mr. Palmer his eagerness not to have a life sentence hanging over his head. Petitioner thinks he would have taken a twenty-nine year offer. (Tr. 142).
Petitioner testified that he was never advised of a determinate sentence offer from the prosecution and that he would have accepted a voluntary manslaughter offer with a nineteen-year term. (Tr. 144). Petitioner would have accepted such an offer because he did not want to be exposed to an indeterminate life term. (Tr. 144-45).
On cross-examination, Petitioner testified that Mr. Wildman had conveyed to him an eight-year plea offer, but told Petitioner to reject the offer because he had a winning case. (Tr. 145). Petitioner also testified that he informed Mr. Palmer that he was willing to settle for anything that was not a life term. (Tr. 149). Although Petitioner remembered appearing at the August 17, 1995 pretrial conference, he did not have any independent recollection of a plea offer made that day or what occurred in court. (Tr. 148, 150). Petitioner did not recall any discussions with his attorney on August 17, 1995, but he testified that if Mr. Palmer had conveyed a nineteen-year offer, Petitioner would have remembered it. (Tr. 150-51).
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3);
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment.
Under AEDPA, relitigation of any claim adjudicated on the merits in state court is barred unless a petitioner can show that the state court's adjudication of his claim:
28 U.S.C. § 2254(d);
Here, the Court previously found that AEDPA deference does not apply because the state court's adjudication of Petitioner's ineffective assistance of counsel claim was based on an unreasonable determination of fact. (ECF No. 48 at 10-11). This determination was adopted by the District Judge. (ECF No. 53). Accordingly, the Court reviews Petitioner's ineffective assistance of counsel claim de novo.
The critical question at issue at the evidentiary hearing was whether the government extended a plea offer to Petitioner's counsel outside the presence of Petitioner, which Petitioner would have accepted. In his sole remaining claim for relief, Petitioner asserts that counsel was ineffective for failing to communicate a nineteen-year offer to plead to voluntary manslaughter and one count of carjacking. (ECF No. 1 at 5, 10-11, 17-20). Petitioner contends that it is reasonable to conclude that the pretrial conference minute order memorialized an offer to plead to murder, not voluntary manslaughter. Petitioner argues that the record establishes a voluntary manslaughter plea was offered to defense counsel prior to trial, either leading up to the pretrial conference or even after the pretrial conference. (ECF No. 89 at 4). Petitioner asserts that the record establishes by a preponderance of the evidence that defense counsel received a voluntary manslaughter offer that he did not communicate to Petitioner, who was "extremely motivated to avoid the potential life term" and was "ready, willing, and able to accept a plea to voluntary manslaughter." (
Respondent asserts that given the passage of over two decades since the events at issue, there is insufficient evidence to support Petitioner's ineffective assistance of counsel claim. (ECF No. 87 at 1). Respondent argues that the evidence does not support Petitioner's two-deal theory that an offer to plead to murder was made at the pretrial conference and a manslaughter offer was made outside the presence of the court and never communicated to Petitioner. Respondent contends that the logical conclusion in light of the record is that the prosecution extended one offer at the pretrial conference in the presence of Petitioner. That offer was most likely for manslaughter, but regardless, Petitioner rejected said offer. (ECF No. 87 at 2).
The clearly established federal law governing ineffective assistance of counsel claims is
The Supreme Court has applied the Strickland analysis to ineffective assistance claims arising from the plea process.
Ultimately, the undersigned finds that Petitioner has not met his burden of establishing by a preponderance of the evidence that: a nineteen-year offer to plead to voluntary manslaughter and one carjacking was made to defense counsel, said offer was made outside of Petitioner's presence or was not otherwise conveyed to Petitioner, and that Petitioner would have accepted said offer.
The record establishes that the prosecution seriously considered and received approval to make an offer for Petitioner to plead to the lesser-included offense of voluntary manslaughter. (Ex. PX-103; Tr. 52, 98-99). Internal memoranda establish that the prosecution had concerns about Petitioner's self-defense claim and believed that a plea to voluntary manslaughter would be a good outcome. (Ex. PX-101, PX-103). However, there were outstanding questions leading up to the pretrial conference regarding the effect of Petitioner's prior Merced convictions, as well as how to deal with Petitioner's assault charges.
The critical date in question is August 17, 1995, the day of the pretrial conference. The only witnesses to the pretrial conference who testified at the evidentiary hearing were Petitioner and Mr. McKenna. Both testified that they did not personally recall the pretrial conference, including what, if any, plea offers were extended at this conference. Given the passage of time, this is possible. However, Petitioner's lack of any memory, in light of the reference to a plea offer being made in court as discussed below, is more suspect. The Court would expect Petitioner to have some memory of a plea offer he rejected in court in a case that he later lost at trial. His inability to remember any details of such an offer suggests that what he does remember does not help his case. Rather than testify regarding any specific memory of the conference, both Petitioner and Mr. McKenna offered hypotheses regarding what likely happened based on the documents in the record and speculation regarding what they likely would have done in certain circumstances.
A turnaround document, dated August 17, 1995, contained Mr. McKenna's handwritten notations that were consistent with the terms set forth in Mr. Brazelton's August 16, 1995 settlement memorandum, which D.A. Stahl had approved. Specifically, the turnaround contained triads for voluntary manslaughter, carjacking, and gun-use enhancements, and indicated dismissal of count III for insufficient evidence. (Ex. PX-104). A memorandum, dated August 17, 1995, written by Mr. McKenna opined that Petitioner's Merced carjacking conviction would not count as a prior strike—an issue that D.A. Stahl explicitly noted would have to be litigated. However, there are no clear indications that a plea offer was made or accepted in these documents. Mr. McKenna testified that he suspects that he himself did not extend a nineteen-year offer to Mr. Palmer. (Tr. 131-32). Rather, based on the documents, Mr. McKenna testified, "I'm looking at the way this is written up, not as an offer so much as—I think there may be an offer and there may be a plea. I think there may be a plea to this offer isn't the same as I made the offer or I'm obligated to make the offer." (Tr. 133).
The most critical document is the superior court's minutes of the pretrial conference. The minutes specified that the following indicated disposition was put on the record: "plea ct I, II and dism ct III." (Ex. PX-105). Petitioner contends that count I refers to murder and cannot refer to a voluntary manslaughter offer. Respondent claims that this could have included a voluntary manslaughter plea because voluntary manslaughter is a lesser-included offense of murder. Mr. McKenna's notes also reflect voluntary manslaughter as a lesser-included offense. It is also clear that whatever offer was made at the pretrial conference, Petitioner was present. This was the practice of the court, Petitioner remembered attending such a conference, and his attendance was noted in the minutes. Thus, it appears that some offer was made at the pretrial conference in the presence of Petitioner and was rejected. It is not clear what exactly the offer was.
The next question is whether some different offer was extended to Petitioner's counsel outside the presence of Petitioner. Petitioner must establish that some different offer was extended and not communicated to him, that he would have accepted such offer, and that such offer would have resulted in a more favorable result, in order to prevail. The Court finds that Petitioner has not met his burden to establish this by preponderance of the evidence. Mr. McKenna's practice was to memorialize plea offers in open court. There was no testimony or other evidence that Mr. McKenna would extend a lower plea immediately before the pretrial conference and then memorialize a higher plea at the conference.
Ms. Bishop also testified that the prosecution's practice was to put formal offers on the record. Thus, any offer extended would have been confirmed on the record pursuant to the prosecution's routine practice. During a discussion regarding jury instructions at trial, the judge briefly referenced the parties discussing voluntary manslaughter earlier in the case. (2 RT 347). Petitioner's reliance on the trial judge's brief reference to establish that a voluntary manslaughter offer was made after the pretrial conference (but prior to trial) is unpersuasive. There was no testimony or other evidence that would establish such an offer was extended after the pretrial conference. Moreover, the trial judge's brief mention of voluntary manslaughter discussions likewise could have been a reference to a voluntary manslaughter offer at the pretrial conference.
Petitioner's testimony was not elucidating. Petitioner testified that he did not remember what occurred at the pretrial conference, but based on the minutes believes that a plea offer for murder (not voluntary manslaughter) was made and rejected. This was speculation. Petitioner testified that he received and rejected an eight-year offer at some point in time. He also testified that he believed his self-defense claim was strong, although he began to doubt Mr. Palmer's representation and the whole process. Petitioner denied knowledge of any invitations for an offer of fifty-eight years. Petitioner's testimony that he would have accepted any determinate sentence appeared self-serving and unconvincing. In light of the record, Petitioner has not met his burden of showing by a preponderance of the evidence that a nineteen-year offer to plead to voluntary manslaughter and one count of carjacking was extended but not communicated to him and that he would have accepted such an offer.
Given the Court's conclusion that Petitioner has not shown that a plea offer was extended to defense counsel outside of his presence, the Court need not go further in deciding what exactly did happen in court that day, but it is worth noting what events seem most likely. It appears the most likely scenario was that an offer was extended on the record that included a voluntary manslaughter plea, because that offer was authorized by D.A. Stahl and it was the prosecution's routine practice to put plea offers on the record. Petitioner turned it down, and that was the only offer made. This does not mean the Court doubts Petitioner when he says he never remembered a plea for nineteen years. The testimony suggests that the plea offer was likely not so straightforward. There were considerations about prior strikes and other offenses, and the calculations were complicated and subject to debate. It appears most likely to this Court that whatever offer was made came in a form that included voluntary manslaughter, but did not guarantee a global settlement of nineteen years in light of the existing Merced sentence, uncertainty regarding whether the Merced carjacking constituted a strike, and Petitioner's pending assault charges. The Court is sympathetic to Petitioner's subjective belief that he did not hear such an offer, but that is not the proper inquiry.
Petitioner has not met his burden on the pertinent issues—that a nineteen-year offer to plead to voluntary manslaughter and one count of carjacking was made outside Petitioner's presence or otherwise was not communicated to him, and that Petitioner would have accepted said offer. As Petitioner has not established ineffective assistance of counsel for failure to communicate a plea offer, the Court finds that he is not entitled to habeas relief on his first claim.
Accordingly, the Court HEREBY RECOMMENDS that Petitioner's ineffective assistance of counsel claim be DENIED and that the petition for writ of habeas corpus be DENIED.
This Findings and Recommendation is submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within
The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
IT IS SO ORDERED.
