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KELLY v. LAMARQUE

United States District Court, Northern District of California


May 19, 2003

RICHARD W. KELLY, PETITIONER, V A.A. LAMARQUE, WARDEN, RESPONDENT

The opinion of the court was delivered by: Susan Illston, United States District Judge

JUDGMENT

The petition for writ of habeas corpus is denied on the merits.

IT IS SO ORDERED AND ADJUDGED.

ORDER DENYING PETITON FOR WRIT OF HABEAS CORPUS

INTRODUCTION

This matter is now before the court for consideration of the merits of the pro se petition for writ of habeas corpus filed by Richard W. Kelly. For the reasons discussed below, the court will deny the petition on the merits. The court also will deny Kelly's motion for appointment of counsel.

BACKGROUND

Richard W. Kelly got into an argument with his live-in girlfriend and shot her in the face. As a result of the shooting, the victim suffers continuing vision and hearing impairment.

Kelly was charged with attempted murder, assault with a firearm, infliction of injury on a cohabitant while having suffered a prior conviction under Cal. Penal Code § 273.5 within seven years, being a felon in possession of a firearm, and being a convicted misdemeanant in possession of a firearm. The information also alleged sentence enhancements for personal and intentional discharge of a firearm causing great bodily injury, infliction of great bodily injury, infliction of great bodily injury under circumstances involving domestic violence, personal use of a firearm, and having suffered a prior felony conviction subject to California's Three Strikes law. During the jury selection process for his trial in the San Mateo County Superior Court, Kelly entered a change of plea. Kelly pleaded no contest to infliction of injury on a cohabitant by one having a prior specified conviction, see Cal. Penal Code § 273.5(a) & (e). He also admitted the truth of the special allegations of infliction of great bodily injury, infliction of great bodily injury under circumstances of domestic violence, personal use of a firearm, and that he had suffered a prior conviction.

Kelly was sentenced to 25 years in state prison. This total sentence consisted of a 5-year sentence for the infliction of corporal injury on a cohabitant charge, doubled to 10 years due to the prior strike conviction, plus an enhancement of 10 years for the personal use of a firearm enhancement, plus an enhancement of 5 years for the infliction of great bodily injury under circumstances of domestic violence.

Kelly's counsel filed a Wende brief in the California Court of Appeal.*fn1 Kelly filed a supplemental opening brief in propria persona. The California Court of Appeal affirmed the judgment of conviction. Kelly filed an unsuccessful petition for review in the California Supreme Court.

Kelly then filed this action for a writ of habeas corpus. He alleged a state law error claim, which was promptly dismissed. He also alleged a claim of ineffective assistance of counsel, which the court found cognizable and ordered the parties to brief. The parties have now briefed the merits of the claim, and the matter is ready for decision.

JURISDICTION AND VENUE

This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the challenged conviction occurred in San Mateo County, California, within this judicial district. 28 U.S.C. § 84,2241(d).

EXHAUSTION

Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254 (b), (c). The parties do not dispute that state court remedies were exhausted for the claim asserted by Kelly.

STANDARD OF REVIEW

This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's 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).

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.

DISCUSSION

A. The Petition

Kelly alleges that he received ineffective assistance from his counsel in that counsel failed to object and tell Kelly that a sentencing enhancement allegation he was admitting was improper. He argues that the sentence enhancement under California Penal Code § 12022.7(d) for infliction of great bodily injury in a domestic violence setting was redundant of the injury element of the crime of infliction of injury on a cohabitant under California Penal Code § 273.5(a).*fn2

The California Court of Appeal found that the sentence enhancement under § 12022.7(d) was proper: "We have considered defendant's brief on appeal filed in propria persona. We find his argument that the trial court's imposition of the enhancement pursuant to section 12022.7, subdivision (d) was error because great bodily injury is an element of section 273.5, subdivision (a) to be without merit." Resp. Exh. 6 at Exh. 1, Cal. Ct. App. Opinion, p. 2 n. 3.

The Sixth Amendment to the U.S. Constitution guarantees not only assistance, but effective assistance, of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). The purpose of the right is to ensure a fair trial, and the benchmark for judging any claim of ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." See id. To prevail on an ineffective assistance of counsel claim, a habeas petitioner must show that (1) counsel's performance was "deficient," i.e., his "representation fell below an objective standard of reasonableness" under prevailing professional norms, id. at 687-8 8, and (2) prejudice flowed from counsel's performance, i.e., that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different, see id. at 691-94. The relevant inquiry under Strickland is not what defense counsel could have done, but rather whether his choices were reasonable. See Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998), cert. denied, 525 U.S. 1159 (1999).

A defendant who enters a guilty plea on the advice of counsel may generally only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases. See Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Tollett v. Henderson, 411 U.S. 258, 267 (1973). A defendant must satisfy Strickland's two-part standard, i.e. that counsel's performance was deficient and that the deficient performance prejudiced his defense, and establish the prejudice requirement by showing that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. See Hill, 474 U.S. at 57-59.

Analyzing Kelly's claim of ineffective assistance claim requires reference to the relevant statutes that counsel allegedly misunderstood. As will be seen below, it was Kelly (not his counsel) who misunderstood the statutes.

Kelly was convicted under Penal Code § 273.5, which provided:

(a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.
(c) As used in this section, "traumatic condition" means a condition of the body, such as a wound or external or internal injury, whether of a minor or serious nature, caused by a physical force.
(e) Any person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a), or subdivision (d) of Section 243, or Section 243.4, 244, 244.5, or 245, shall be punished by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years, or by both imprisonment and a fine of up to ten thousand dollars ($10,000).
Subdivision (e) stiffened the penalty for the crime of infliction of corporal injury on a cohabitant for those criminals who had been convicted within the last seven years of one of several listed violent felonies.

California Penal Code § 12022.7(d) stiffened the penalty for those criminals who inflict great bodily injury during a domestic violence incident. It provided, in relevant part:

(d) A person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five ears. As used in this subdivision, `domestic violence' has the meaning provide in subdivision (b) of Section 13700.
(e) As used in this section, "great bodily injury" means a significant or substantial injury.
(f) Subdivisions (a), (b), (c) and (d) shall not apply if infliction of great bodily injury is an element of the offense.
Cal. Penal Code § 12022.7.*fn3

Kelly misread the statutes. "Great bodily injury" was not required for a conviction under § 273.5(a); rather, that section referred to "corporal injury resulting in a traumatic condition." The phrase "traumatic condition" was defined in § 273.5(c) in a way that did not mean the same thing as "great bodily injury." The traumatic condition could be "of a minor or serious nature," which was clearly different from the definition of "great bodily injury" in the sentencing enhancement statute. For the sentence enhancement to apply, there had to be an infliction of "great bodily injury" which was defined to mean "a significant or substantial injury." Cal. Penal Code § 12022.7(e). Because great bodily injury was not an element of the crime of inflicting corporal injury on a cohabitant, there was no factual basis for Kelly's ineffectiveness claim.

Counsel did not engage in deficient performance by failing to tell Kelly that the sentence enhancement was redundant of an element of the crime because it was not redundant. Kelly had no right to avoid the sentence enhancement, so there was no deficient performance when counsel did not object to it. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997) (failure to take futile action can never be deficient performance). And no prejudice resulted from the failure to make the objection because any objection to the proper sentence enhancement would have been futile. (Indeed, the case for an ineffective assistance of counsel would be a stronger one if counsel had done as Kelly now claims he should have, i.e., misadvised him about a proper sentence enhancement and objected to a proper sentence enhancement.) The California Court of Appeal's rejection of Kelly's ineffective assistance of counsel claim was not contrary to or an unreasonable application of clearly established federal law. Kelly is not entitled to the writ.

B. Kelly's Motion For Appointment of Counsel

Months after filing his traverse, Kelly moved for appointment of counsel to represent him in this action. A district court may appoint counsel to represent a habeas petitioner whenever "the court determines that the interests of justice so require and such person is financially unable to obtain representation." 18 U.S.C. § 3006A(a)(2)(B). The decision to appoint counsel is within the discretion of the district court. See Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987). Appointment is mandatory only when the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations. See id. Based on the materials in the court file, it does not appear that appointment of counsel is required in this action to prevent a due process violation. The lack of merit in Kelly's claim cannot be remedied by having an attorney aid Kelly in presenting it. The motion is denied.

CONCLUSION

The petition for writ of habeas corpus is denied on the merits. The motion for appointment of counsel is DENIED. (Docket #14.) The clerk shall close the file.

IT IS SO ORDERED.


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