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ALVERNAZ v. RATELLE

September 9, 1993

JOHN P. ALVERNAZ, Plaintiff,
v.
J.M. RATELLE, WARDEN OF CALIFORNIA STATE PRISON AT DONOVAN, Defendant.



The opinion of the court was delivered by: JOHN S. RHOADES, SR.

 Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. Section 2254 alleging ineffective assistance of counsel at a pre-trial stage of his state court criminal proceeding.

 For the reasons stated herein, the petition for writ of habeas corpus is GRANTED.

 I. Background

 The facts of the underlying case are laid out in the California Supreme Court's opinion and will not be restated in this Order. See In Re Alvernaz, 2 Cal. 4th 924, 929-33, 830 P.2d 747 (hereafter "Supreme Court Opinion").

 Plaintiff alleges that his attorney, Mr. William Milloy, understated the possible sentence consequences of proceeding to trial, and thereby was constitutionally ineffective in advising Petitioner regarding a proposed plea offer from the state. Petitioner received a trial and was found guilty of the underlying offenses. If he had been aware of the true consequences, Petitioner argues, he would have accepted the plea offer and not proceeded to trial.

 Petitioner brought a state habeas petition in the Superior Court, in the District Court of Appeals, and in the California Supreme Court. All three courts denied Petitioner's petition with at least one judge dissenting or expressing reservations at each level of the state habeas proceeding. After the California Supreme Court denied Petitioner's state habeas petition, Petitioner filed the instant action.

 II. Evidentiary Hearing Conducted

 In his Petition, Petitioner requested an evidentiary hearing. In an Order filed May 26, 1993, this Court made the following conclusions of law:

 
1) Petitioner's attorney's performance was, under all the circumstances, unreasonable under prevailing professional norms because of counsel's failure to advise Petitioner of the correct consequences of going to trial.
 
2) Petitioner did not receive an evidentiary hearing on the issue of whether or not the trial court would have accepted the plea. Petitioner is entitled to an evidentiary hearing [on] this issue.
 
3) Petitioner did not receive an evidentiary hearing on the issue of whether or not he would have accepted the plea. Petitioner is entitled to an evidentiary hearing in this Court.

 Order of May 26, 1993 at 2.

 Without deciding the constitutionality of the California Supreme Court's holding, this Court applied the federal Habeas Corpus standards to the case and determined that an evidentiary hearing was mandatory. Order of May 26, 1993, at 7-19 (citing Keeney v. Tamayo-Reyes, 118 L. Ed. 2d 318, 112 S. Ct. 1715 (1992); Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963)).

 In granting the hearing, this Court agreed with Justice Mosk's dissenting opinion in Alvernaz that Petitioner was entitled to a hearing:

 Supreme Court Opinion at 958 (Mosk, J., dissenting).

 An evidentiary hearing was held in this Court July 27-28, 1993. This Court heard testimony from Petitioner's attorneys--Mr. Milloy and Mr. Haughen--from Petitioner, and from Petitioner's family members. This Court also received several declarations from both Petitioner and Respondent. See Petitioner's and Respondent's Supplemental Declarations, filed June 21, 1993. *fn2"

 After holding the evidentiary hearing and receiving all the available evidence, this Court can now determine (1) whether Petitioner was prejudiced, (2) whether he would have accepted the plea, and (3) whether he is now entitled to relief.

 He was; he would have; he is.

 III. Petitioner has satisfied Strickland

 A defendant has a Sixth Amendment right not just to counsel, but to "reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). To obtain relief for a violation of this right, a defendant must show that (1) his or her attorney's performance was, under all the circumstances, unreasonable under prevailing professional norms, and (2) that there is a "reasonable probability that, but for counsel's unprofessional errors, the result . . . would have been different." Strickland, 466 U.S. at 687-694.

 A. Petitioner's attorney's performance was, under all the circumstances, unreasonable under prevailing professional norms because of counsel's failure to advise Petitioner of the correct consequences of going to trial.

 There is no doubt that the error alleged constitutes a violation under the first Strickland prong. As the California Supreme Court noted,

 
We conclude, as have all federal and state courts presented with this issue, that . . . where counsel's ineffective representation results in a defendant's rejection of an offered plea bargain, and in the defendant's decision to proceed to trial . . . [a claim of ineffective assistance of counsel is raised].

 Supreme Court Opinion at 934. See also Hill v. Lockhart, 474 U.S. 52, 57, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985) ("Although our decision in Strickland. dealt with a claim of ineffective assistance of counsel in a capital sentencing proceeding, . . . the same two-part standard seems to us applicable to ineffective assistance claims arising out of the plea process."); cases cited in 8 A.L.R.4th 660.

 In the May 26, 1993, Order, this Court found that the first Strickland prong was satisfied under the facts of the instant case. Order of May 26 at 4 (citing United States v. Day, 969 F.2d 39, 43-45 (3rd Cir. 1992)).

 B. Petitioner was prejudiced by his counsel's ineffective advice by demonstrating a reasonable probability that, but for counsel's errors, the result would have been different.

 To satisfy the second Strickland factor, a petitioner must demonstrate prejudice. Prejudice is demonstrated when Petitioner proves a "reasonable probability that, but for counsel's unprofessional errors, the result . . . would have been different." Strickland, 466 U.S. at 687-694. To prove prejudice here, Petitioner was required to show that (1) Petitioner would have accepted the plea with the advise of competent counsel, and (2) the trial court would have accepted the plea. Petitioner has proved both.

 
1. Petitioner has proved that there is a reasonable probability that he would have accepted the plea.

 Petitioner has proved by a preponderance of evidence that there is a reasonable probability that, had he known the true sentencing ramifications of losing at trial, he would have accepted the plea offer.

 (a) Petitioner has met the requirement of objective evidence

 In denying Petitioner's writ of habeas corpus, the California Supreme Court announced a standard by which prejudice in claims for pre-plea ineffective ...


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