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United States District Court, N.D. California

March 25, 2004.

JOE McGRATH, warden, Respondent

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge


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




  This matter is now before the court for consideration of the merits of Donald Corsetti's pro se petition for writ of habeas corpus concerning his 2000 conviction from the Alameda County Superior Court. For the reasons discussed below, the petition will be denied on the merits.


  The conviction challenged in this case was entered following a no-contest plea by Donald Corsetti. The evidence regarding the crimes and the particular charges filed against Corsetti are recounted because they are relevant to the evaluation of Corsetti's challenges to his plea and to his attorney's performance. Page 2

 A. The Crime

  The victim, William Taylor, described the crime at the preliminary hearing on January 5, 2000. See Resp. Exh. H (transcript of preliminary examination). On June 15, 1999, Taylor was in the trailer in which he lived in an industrial area of Oakland when he was visited by a prostitute he knew named Leann and her friend, Donald Corsetti. They conversed in an amiable way for about ten minutes and then Leann and Corsetti left to go to a gas station down the street. Corsetti returned in an agitated state and, while in the trailer, picked up a knife from a nearby table and said angrily, "It's all about respect" and stabbed Taylor using a folding knife with a 4-5 inch blade. Taylor was stabbed in the left side of his torso and suffered a punctured lung that required him to remain in the hospital for 4-5 days. Taylor was sitting on a couch when he was stabbed by Corsetti. No one else was present. Corsetti grabbed a leather jacket Taylor had been working on and left the trailer. Taylor saw Corsetti run to a truck waiting outside and drive off with Leann and another person.

  On cross-examination at the preliminary hearing, Taylor testified that Corsetti and Leann were interested in obtaining drugs. Taylor did not provide Leann with drugs and did not suggest that he would trade drugs for sex with Leann if she got rid of Corsetti. Taylor stated he did not understand what Corsetti meant when he said it was "all about respect" and he had not been disrespectful to Corsetti. Taylor also testified that he had nothing in his hands when Corsetti stabbed him and they had not struggled before the stabbing.

 B. Case History

  The Information filed on January 18, 2000 charged Corsetti with assault with a deadly weapon with enhancements for use of a deadly/dangerous weapon and infliction of great bodily injury (count one), attempted premeditated murder with enhancements for use of a deadly/dangerous weapon, infliction of great bodily injury and for an attempted murder that was willful, deliberate and premeditated (count two), robbery with enhancements for use of a deadly/dangerous weapon and infliction of great bodily injury (count three). Petitioner's Exh P. The Information also alleged that Corsetti had suffered six prior convictions (i.e., a 1992 felony Page 3 conviction for assault with a deadly weapon on a peace officer, a 1985 felony conviction for petty theft with a prior theft conviction, a 1996 felony conviction for being a felon in possession of a firearm, a 1990 felony conviction for possession of dangerous drugs for sale, a 1982 felony conviction for pimping, and a 1989 felony conviction for escape from prison) as well as several prison terms in connection therewith.

  Pursuant to a plea bargain, Corsetti pled no contest to charges of assault with a deadly weapon with enhancements for infliction of great bodily injury and being armed with a deadly weapon. He also admitted having a prior serious felony conviction and having served a prior prison term. On February 23, 2000, he was sentenced to a twelve-year prison term.

  Corsetti appealed. His appeal to the California Court of Appeal was dismissed for procedural reasons. He also filed unsuccessful petitions for writ of habeas corpus in state court.

  Corsetti then filed this action seeking a writ of habeas corpus, claiming that his guilty plea was improper and that he received ineffective assistance of counsel. The court issued an order to show cause. Respondent filed an answer to the petition in which he asserted that the petition was meritless. Corsetti filed a traverse. The matter is now ready for the court's consideration.


  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 Alameda County, California, within this judicial district. 28 U.S.C. § 84, 2241(d).


  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 Page 4 state judicial remedies were exhausted for the claims raised in the petition.


  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).


 A. The No-Contest Plea*fn1

  Due process requires that a guilty plea be both knowing and voluntary because it constitutes the waiver of three constitutional rights: the right to a jury trial, the right to confront one's accusers, and the privilege against self-incrimination. See Boykin v. Alabama, 395 U.S. 238, 242-43 (1969). A plea is not voluntary unless it is "entered by one fully aware of the direct Page 5 consequences" of the plea. Brady v. United States, 397 U.S. 742, 755 (1970). Although a defendant is entitled to be informed of the direct consequences of the plea, the court need not advise him of all possible collateral consequences. Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir. 1988). "The distinction between a direct and collateral consequence of a plea "`turns on whether the result presents a definite, immediate and largely automatic effect on the range of the defendant's punishment.'" . . . Under this standard, direct consequences include a mandatory special parole term, United States v. Harris, 534 F.2d 141 (9th Cir. 1976); ineligibility for parole, . . . and the maximum punishment provided by law." Id. (citations omitted); see also Carter v. McCarthy, 806 F.2d 1373, 1376 (9th Cir. 1986), cert. denied, 484 U.S. 870 (1987) (defendant must be advised of mandatory parole term). Failure to inform a defendant of the direct consequence of a guilty plea such as a mandatory parole term may therefore render a plea involuntary.*fn2 With this law in mind, the court considers Corsetti's several challenges to his guilty plea, i.e., that he was not informed of the mandatory parole term at the end of any prison sentence, that he was not allowed time to get married, that the court would not calculate the exact amount of time he would do on a 12-year term, and that he was incompetent to enter the plea.

  1. Failure To Inform Corsetti Of Mandatory Parole Term

  a. An Error Occurred

  Corsetti was not informed of the mandatory three-year parole term that follows any incarceration under California law. See Cal. Penal Code § 3000. The mandatory parole term was a direct consequence of which Corsetti had to be notified in order for his plea to comport Page 6 with the requirements of due process.

  Respondent makes several arguments against a finding of error, all of which are rejected. First, respondent argues that 28 U.S.C. § 2254(d) precludes habeas relief because the U.S. Supreme Court has never held that a criminal defendant must be advised of the existence of a mandatory parole term. Respondent construes the habeas statute too narrowly. Habeas relief is conditioned on a finding that the state court ruling was contrary to or an unreasonable application of "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A state court decision is contrary to clearly established Supreme Court precedent if it "`applies a rule that contradicts the governing law set forth in [Supreme Court] cases'" Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). The fact that Supreme Court law sets forth a fact-intensive inquiry to determine whether a constitutional right was violated "obviates neither the clarity of the rule nor the extent to which the rule must be seen as `established'" by the Supreme Court. Williams (Terry) v. Taylor, 529 U.S. 362, 391 (2000) (referring to case-by-case analysis applicable to ineffective assistance of counsel claims). Corsetti's case appears to fit within the "contrary to" category of cases. Although the Supreme Court has not specifically held that a guilty plea is involuntary unless the criminal defendant is advised of the existence of a mandatory parole term, the Court has articulated the rule that a guilty plea is involuntary unless the defendant is "fully aware of the direct consequences" of the plea, Brady, 397 U.S. at 755, and circuit-level cases have held that a mandatory parole term is a direct consequence of which a defendant must be advised, see, e.g., Carter, 806 F.2d at 1376. The state court's presumed rejection of Corsetti's claim that his plea was involuntary because he was not informed of the mandatory parole term that would automatically result from his plea was contrary to the Supreme Court's holding that a criminal defendant must be informed of all direct consequences of a guilty plea. If the state court had refused to find that a mandatory parole term was a direct consequence of which Corsetti had to be informed, it would have been applying a rule that contradicted Brady, Habeas relief on the failure-to-advise claim is not barred by § 2254(d). Page 7

  Second, respondent argues that Corsetti must have been aware of the parole consequences because he was on parole from another conviction at the time of the guilty plea and was well-acquainted with the criminal justice system. Although Corsetti had a lengthy history in the criminal justice system, no evidence before this court (e.g., transcripts from other proceedings) shows that he understood that parole was mandatory. It does not necessarily follow from the fact that he was on parole that he understood that parole always followed a conviction. He may have thought parole was something open for negotiation during a plea bargaining process or thought that parole was discretionary following a jury's verdict of guilty. In short, the court does not agree with respondent's assertion that the veteran criminal defendant must have known that a parole term was inevitable.

  Third, respondent argues that the record's silence does not support Corsetti in light of Corsetti's discussion of other points at the change-of-plea and sentencing hearings at which Corsetti did not mention that parole was not under consideration. This argument is rejected for similar reasons as the preceding argument. No evidence before this court shows that this seasoned criminal defendant knew that parole should have been discussed or that it was mandatory.

  The state court record is silent on the parole issue. Silence does not mean consent to an unstated term. Corsetti affirmatively states that he did not understand that the plea bargain he entered into included a parole term at the end of his incarceration. Under the totality of the circumstances, this court finds that Corsetti's plea was involuntary/unintelligent because he was not fully aware of the direct consequence of a mandatory 3-year parole term at the end of his incarceration. This brings the court to the question of prejudice.

  b. The Error Was Non-Prejudicial

  To show prejudice from a failure to fully inform the defendant of a consequence of pleading guilty, the defendant must demonstrate that there is a reasonable probability that, had he been informed of the fact, he would not have entered the plea and instead would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985) (challenge to counsel's advice to Page 8 plead guilty); Carter v. McCarthy, 806 F.2d 1373 (applying harmless error rule to guilty plea that allegedly was not voluntary).

  Corsetti does not show prejudice. Corsetti faced a much longer prison term if he went to trial and was convicted on all counts. He was charged with assault with a deadly weapon, attempted murder and robbery, with enhancements for use of a deadly/dangerous weapon and infliction of great bodily injury for each count. He was alleged to have suffered five prior felony convictions and suffered several prior prison terms. These charges exposed him to a prison sentence of at least 25-years-to-life, far longer than the determinate 12-year sentence he received in the plea agreement.

  Corsetti argues that his mental illness would have provided a defense to the specific intent crime of attempted murder. Even assuming arguendo that his mental illness would have provided a defense to the attempted murder charge, the assault with a deadly weapon charge remained and was not a specific intent crime. Under California law, mental illness shy of insanity does not provide a defense to a general intent crime, even if such mental illness might negate the mental state required in a specific intent crime. See Cal. Penal Code § 28; CALJIC 3.32. Corsetti does not argue (and comes nowhere close to showing) that he was insane at the time of the crime; his lesser mental illness would not have enabled him to avoid conviction of assault with a deadly weapon. There were sentence enhancement allegations (i.e., that he had used a deadly/dangerous weapon, that he had inflicted great bodily injury and (most importantly) that he had suffered numerous prior convictions and prison terms) that, if found true, meant that conviction of assault with a deadly weapon following trial would bring with it at least a 25-to-life sentence.

  The evidence against Corsetti was strong. Identity would not have been much of an issue at trial: the victim had identified Corsetti by name, in a photo lineup, in a live lineup, and at the preliminary hearing. And that a crime had in fact occurred would not have been much of an issue at a trial in light of the fact that the victim had suffered a stab wound to the torso and a punctured lung. Although Corsetti suggests the facts wouldn't support an attempted murder charge, stabbing someone in the torso with a knife with enough penetration to cause a punctured Page 9 lung is reasonably within the conduct that can support an attempted murder conviction.

  Corsetti also has not shown that, had he gone to trial, he would have had a viable defense to the charges. If Corsetti had put forth the defense that he was defending the honor of his girlfriend who had been insulted by the victim, he would have shown motive but would not have established any legally recognized defense. And if Corsetti had put forth the self-defense story he recites in his traverse, it would be extremely unlikely that any reasonable jury would have accepted his defense.*fn3

  Finally, that the prior convictions would be accepted as strikes for purposes of California's Three Strikes Law was certain to occur. Corsetti had a lengthy criminal history, as shown by his 12-page rap sheet and a criminal history that stretched back to 1977 when he committed crimes as a juvenile offender. See Respondent's Exh. K, p. 3, and Exh. M. Corsetti committed the current offense within a few weeks of being released from prison. See Petitioner's Exh. M. With this background and with a current felony that was violent, it is Page 10 wholly unreasonable to expect that Corsetti would have received lenient treatment from the prosecutor or court.

  In sum, conviction of at least the assault with a deadly weapon charge and a lengthy sentence were virtually certain for Corsetti if he went to trial. Corsetti received a prison term less than half as long as he likely would have received had he gone to trial. With or without a trial, Corsetti would receive a mandatory three-year parole term at the end of his prison term. Parole was inevitable unless he was acquitted. He has not made a persuasive showing that he would not have pled guilty and that he would have insisted on going to trial had he known of the mandatory parole term that would follow the 12-year prison term. Corsetti is not entitled to the writ on this claim.

  2. "Failure" To Allow Him Time To Get Married

  At the change-of-plea hearing, Corsetti said he agreed to the plea bargain but said he wanted to get married and asked the court if he could get married before he was sentenced. Resp. Exh. I, RT 8. Defense counsel stated that he had explained to Corsetti that he was willing to process the paperwork for the court to consider Corsetti getting married, that he had explained that the bride-to-be had to contact defense counsel and he would tell her to go to the sheriffs department to obtain the forms for an in-custody marriage and to the clerk for marriages. Id. at 9. The attorney agreed to submit the forms to the court for the court's approval. Counsel clearly stated that the woman "has to do the moving work at this point." Id. Upon inquiry by Corsetti the judge stated that he did not perform weddings but that if another judge could be found who did perform weddings, this judge didn't mind and arrangements could be made. The following exchange then occurred:

MR. CIRAOLO [Defense counsel]: My understanding is if the paperwork comes through, the lady selects the minister or a judge, but it takes three people: Mr. Brady [a/k/a Corsetti], the lady and the judge.
THE COURT: In other words, what he's saying is nothing is going to happen until he [sic] comes in, contacts him and says help us do this paperwork, and she's got to sign a bunch of it.
  THE DEFENDANT: Can we put off sentencing until I could get that done? Page 11


THE COURT: I'll put off sentencing. . . . I'm not going to promise you that I'm just going to keep delaying, delaying, delaying it until that's done. I'll put oft sentencing to allow enough time for that to happen, agreed?
Id. at 9-10. The court set the case for sentencing on February 23, 2000, more than a month after the plea was entered. The court also denied a couple of requests by Corsetti for special treatment in jail (i.e., for a visit with his fiancee and for telephone calls), explaining that the court was "not in a position to . . . tell the sheriff what to do out in the jail" and would not interfere with decisions regarding Corsetti's discipline or status at the jail. Id. at 15. At the sentencing hearing, neither Corsetti nor his counsel stated that additional time was needed or that there was legal cause why the court could not pronounce the sentence, so Corsetti was sentenced.

  "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262 (1971).

  Assuming arguendo that the Santobello rule applies when the court agrees to a term of the plea and that there was actually a promise made by the court that time would be allowed for Corsetti to marry, Corsetti's claim fails because there was no breach of the agreement. The court allowed him time to get married: the sentencing hearing was held 34 days after the plea was entered and Corsetti had asked for time to get married. Corsetti had over a month to get his bride-to-be — who, oddly, he has never identified by name — to take the steps necessary to get the paperwork to defense counsel to forward to the court for processing. That Corsetti failed to accomplish this is not the court's or defense counsel's fault. Corsetti suggests that the court breached the agreement by not setting the sentencing date for a later date than it otherwise would have had Corsetti not requested time to get married. But that argument is irrelevant because time was allowed for Corsetti to get married between the entry of the plea and the imposition of the sentence; the fact that the time period may also have been a normal delay that would have occurred in any procedure did not matter. Finally, as respondent notes, Corsetti has not offered proof that anyone was actually ready and willing to marry him. There was no breach of the plea agreement. This claim has no merit and does not warrant the issuance of the writ. Page 12

  3. Sentence Calculation

  Corsetti next asserts that the court failed to calculate the actual amount of time he would serve when he asked about sentence credits. Corsetti states that he has a less than 6th grade education*fn4 and the court should have done the math for him, i.e., tell him how much time he actually would have to serve on his 12-year term. This exchange occurred at the change-of-plea hearing:

THE DEFENDANT: How much time am I going to do on 12 years?
THE COURT: I can't do the math. I don't know. But I will tell you this, and it's something that's important for you to know. It's going to be — you're going to have to do at least 85 percent of that; you know that, right?
THE COURT: You can only get conduct credits maximum 15 percent of the sentence; you understand that, right?
THE COURT: Okay. Beyond that, I wasn't very good at math, so I can't tell you. [¶] All right. Are you entering this plea because you decided this is what you're going to do?
Id. at 12. Corsetti then entered his no contest plea. At the sentencing hearing, the court again noted that Corsetti was "only going to get 15 percent custody credits." Resp. Exh. J (transcript of Feb. 23, 2000 sentencing proceedings), RT 3.

  No due process violation occurred as a result of the court's failure to do the math and identify the specific number of years, months and days that Corsetti would have to serve after receiving time credits. Sentence time credit issues are a collateral consequence of a conviction of which the court need not advise a defendant who pleads guilty. See Johnson v. Dees, 581 F.2d 1166, 1167 (5th Cir. 1978) (failure to advise pleading defendant that he could be denied good time credits did not invalidate the plea because it was a collateral consequence); Hutchinson v. United States, 450 F.2d 930, 931 (10th Cir. 1971) (no error under Federal Rules Page 13 of Criminal Procedure in failure to advise that good time credit had been forfeited). Corsetti was advised of the maximum prison term he faced and that was all that was constitutionally required with regard to the length of his prison sentence. See Torrey v. Estelle, 842 F.2d at 235 (defendant must be advised of the range of allowable punishment). The court was not constitutionally required to even tell the pleading defendant about time credits for which he might be eligible, and was not constitutionally required to convert the percentage figure to an actual number so that Corsetti would know the exact minimum number of days, months and years he would have to spend in prison on the sentence. Even when the court explicitly told Corsetti it would not do the math, Corsetti went ahead and entered his plea. Had the exact number of days, months and years to be served been critical to Corsetti, and had he been actually unable to make the calculation, surely he could have had someone do it for him in the intervening 34 days and complain at the sentencing hearing if it was wholly unacceptable to him.

  There was no constitutional violation with regard to the information not provided about the time credit issue. The state court's rejection of this claim was not contrary to or an unreasonable application of clearly established federal law as set for by the U.S. Supreme Court. The writ will not issue on this claim.

  4. Competence To Enter Guilty Plea

  A criminal defendant may not plead guilty unless he does so competently and intelligently. Godinez v. Moran, 509 U.S. 389. 396 (1993), The standard for competence to plead guilty is whether the defendant has "`sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has `a rational as well as factual understanding of the proceedings against him.'" Id. (quoting Dusky v. United States, 362 U.S. 402 (1960)); see id. at 398-99 (rejecting argument that test for competence to plead guilty is more rigorous than test for competence to stand trial).

  Corsetti contends that his guilty plea must be set aside because he was not competent to enter the plea. In support of his argument, he presents a hefty pile of medical records showing that he has received psychiatric treatment for years while in prison. Among the medical records Page 14 is a document showing his psychiatric diagnosis in July 1998. Under the section labelled "psychiatric diagnosis," the psychiatrist wrote that Corsetti had an intermittent explosive disorder and borderline personality disorder. The psychiatrist also wrote "R/O Hallucinosis, Paranoia Secondary to Medical Condition;" the note appears to mean that hallucinosis and paranoia secondary to a medical condition had not been diagnosed but instead that those conditions had to be ruled out.*fn5

  The court rejects Corsetti's argument that he was not competent to plead guilty. First, mental illness does not necessarily equal incompetence under the standard for incompetence articulated in Godinez. The July 1998 psychiatric diagnosis to which Corsetti points as supportive of his position does not demonstrate that he was incompetent. He has not shown that either an intermittent explosive disorder or a borderline personality disorder were diseases of a sort that actually precluded him from consulting with his lawyer with a reasonable degree of rational understanding or that caused him not to have a rational as well as factual understanding of the proceedings against him. And he has not presented any documents that he actually was ever diagnosed with hallucinosis — the psychiatrist had merely written that hallucinosis had to be ruled out, and did not write that Corsetti actually had it. Corsetti's medical records show that he had a lengthy history of ingesting foreign objects (most notably, razor blades) and that he had been treated for this behavior sometimes by surgical removal of the razor blades and sometimes by a wait-and-see monitoring during which the razor blades were excreted without having caused injury. Some notes in the file indicate that some people thought this to be manipulative behavior by Corsetti, e.g., done to obtain drugs, to obtain a change of scenery, and to enhance escape opportunities. While Corsetti was in the county jail during the pendency of his criminal case, he apparently reported swallowing another razor blade about a month before the change of plea and was given a medical examination.

  Second, Corsetti has not shown that at the time he entered the plea he was actually taking Page 15 any particular psychotropic medication. His records are mostly from prison and not from the county jail in which he was housed. Even assuming he was taking Ativan and Thorazine at the time of his plea as he reports, he has not established that these drugs made him incompetent under the standard described in Godinez, supra. See Burket v. Angelone, 208 F.3d 172, 192 (4th Cir.), cert. denied, 530 U.S. 1283 (2000) ("the fact that the petitioner has been treated with anti-psychotic drugs does not per se render him incompetent to stand trial"). His citation to a book describing what taking certain drugs might feel like does not prove that was the effect he experienced on any drug he was taking at the relevant time. It is questionable whether Ativan, an anti-seizure medication, affects one's thought processes. And assuming Thorazine is an anti-psychotic drug, it does not inevitably make the recipient incompetent; to the contrary, anti-psychotics in some cases are used to bring a prisoner to competency. Cf. Sell v. United States, 123 S. Ct 2174 (2003) (defendant may be involuntarily medicated with anti-psychotic drugs to make him competent to stand trial).

  Third, Corsetti was an active participant in the change-of-plea colloquy. He affirmatively stated that he understood the terms of the plea, that he understood the consequences of the plea (e.g., 3-strikes and immigration consequences), that he had discussed with his attorney the plea waiver form he had signed, and that he understood the rights he was giving up. Resp. Exh. I, RT 2-6; 10-12. Corsetti also inquired about getting married before sentencing and clarified his request for a visit with his fiancee when he felt his attorney didn't make the request clearly enough. Id. at 15. And Corsetti denied that he had attempted to make a motion challenging his own competency when he was representing himself. Id. at 8. He also complained that his attorney and investigator had not interviewed necessary witnesses. Id. at 7. The transcript of the plea colloquy contains nothing indicating that Corsetti was incompetent. He did become angry when he disagreed with counsel, but there is no indication that it was more than just an obnoxious comment. Id. at 8. The transcript has no suggestion of bizarre behavior, of a detached defendant, or of a defendant who didn't know exactly what was going on. The judge who presided at the change-of-plea hearing had the best chance to observe Corsetti's demeanor; he specifically found that Corsetti "has been fully informed of the consequences of his plea and Page 16 that he understands them; that he's knowingly, intelligently and voluntarily waived his constitutional rights and entered his plea." Id. at 14.

  Fourth, even at times other than at the plea hearing, Corsetti was a very active participant in the criminal case. He had represented himself earlier in the action and had an investigator to help him. Corsetti decided to ask for counsel to represent him after the investigator suggested he get an attorney so the attorney could move for a competence investigation under California Penal Code § 1368. (When Corsetti proposed a § 1368 proceeding to the attorney, the attorney declined to seek it because he did not think Corsetti was incompetent.) Corsetti tried to file an appeal shortly after he was sentenced. Corsetti filed a pro per notice of appeal and application for certificate of probable cause on April 26, 2000. He also wrote to the First District Appellate Project seeking assistance with his appeal; that entity rejected his request in a letter dated July 18, 2000. Corsetti also filed various state court habeas petitions trying to have his conviction set aside. Corsetti indicated that he realized shortly after his sentence that he had not received the deal he thought he had arranged when he learned of the mandatory parole term, and promptly tried to challenge it. His clarity about the problems in his plea suggests he had a rational understanding of what was going on when he pled.

  Fifth, there is no evidence that Corsetti does not still have whatever mental illness he had when he pled guilty and when he was sentenced, yet he does not argue that he is now incompetent. His filings in this action, his attempt to appeal in 2000, his state court habeas petitions in 2001 and 2002, and his filings in Corsetti v. CDC Case No. C 00-1616 SI (an unrelated civil rights action pending in this court in 2000-2001), are not suggestive of an incompetent litigant. There is no indication that Corsetti's filings have been prepared by a jailhouse lawyer; to the contrary, the writing is the same on documents filed by Corsetti from different prisons suggesting that he (rather than another inmate) has authored the various filings the court has received from him. His is a vigorous and articulate litigant.

  Sixth, Corsetti's main arguments in this federal habeas action are inconsistent with a claim of incompetency. His primary argument is that he did not receive the plea deal to which he agreed (i.e., a 12-year term with no parole); he is emphatic that he was not informed of the Page 17 mandatory parole term by anyone until after his sentencing. The underlying premise of his argument is that he was aware of and paid particularly close attention to the terms of the plea agreement (after having rejected another plea several weeks earlier) and wants the parties to be bound by the terms to which they agreed. And another major argument in his petition is that his attorney was ineffective for not following his explicit instructions to interview particular witnesses. These claims demonstrate a very involved litigant uses his mental illness as a sword when it best suits him. The claim that the parole term breached the plea agreement and the claim that counsel was ineffective are just not consistent with Corsetti's claim that he was incompetent.

  Corsetti had a sufficient ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him. He was not incompetent at the time he entered his no contest plea. The state courts' rejection of this claim was not contrary to or an unreasonable application of clearly established law. Corsetti is not entitled to the writ on this claim.

 B. Ineffective Assistance Of Counsel Claims

  A claim of ineffective assistance of counsel is cognizable as a claim of denial of the Sixth Amendment right to counsel, which guarantees not only assistance, but effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). 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. at 56; Tollett v. Henderson. 411 U.S. 258.267 (1973). A defendant must satisfy the two-part standard of Strickland v. Washington. 466 U.S. 668, 687 (1984), 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; laea v. Sunn, 800 F.2d 861, 864-65 (9th Cir. 1986). Page 18

  Where the alleged error is a failure to investigate or discover potentially exculpatory evidence, the determination of whether the error "prejudiced" the defendant will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment will depend in large part on a prediction of whether the evidence likely would have changed the outcome of the trial. Similarly, where the error is a failure to advise of a potential affirmative defense, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. See Hill, 474 U.S. at 59.

  1. Failure To Investigate Mental Defenses

  Corsetti claims that counsel was ineffective for failing to investigate his mental competence and the defenses that might be available to him based on his mental illness. His claim fails. Corsetti does not explain what defenses counsel would have located had he investigated Corsetti's mental illness.

  Corsetti has not presented evidence that he was actually insane at the time of the crime, such that he might have been able to present a not-guilty-by-reason-of-insanity defense. In California, a defendant who pleads not guilty by reason of insanity bears the burden of proving, by a preponderance of the evidence, that he was insane when he committed the charged act. Cal. Penal Code § 25(b). He must prove that "he or she was incapable of knowing or understanding the nature and quality of his or her act [or] of distinguishing right from wrong at the time of the commission of the offense." Id. Mental illness and mental abnormality, in whatever form either may appear, are not necessarily the same as legal insanity. A person may be mentally ill or mentally abnormal and yet not be legally insane. People v. Kelley, 1 Cal.4th 495, 535 (Cal.) cert. denied, 506 U.S. 881 (1992). A person is legally insane only "when by reason of mental disease or mental defect he was incapable of knowing or understanding the nature and quality of his act or incapable of distinguishing right from wrong at the time of the commission of the offense." Id. (citation omitted). Corsetti has not shown that he was legally insane at the time he stabbed the victim. Page 19

  Corsetti has not shown that counsel failed to investigate the possibility of having his competency examined before trial under California Penal Code § 1368. To the contrary, Corsetti indicates that counsel affirmatively refused to request a competency examination because he did not think Corsetti was incompetent. Corsetti denied at the change-of-plea hearing that he had tried to obtain a competency determination earlier when he represented himself pro per, suggesting that even he didn't actually think himself incompetent. See Resp. Exh. I, RT 8. Additionally, a motion under § 1368 would not have avoided criminal liability. If the motion was successful, it would simply have put the criminal trial on hold while Corsetti was sent off for evaluation and treatment. See Cal. Penal Code § 1367. l(b) ("[i]f counsel informs the court that he or she believes the defendant is or may be mentally disordered, the court shall order that the defendant be referred for evaluation and treatment"); § 1367.1(d) (when evaluation and treatment has concluded "the defendant shall be returned to court. If it appears to the judge that the defendant is competent to stand trial, the criminal process shall resume, the trial on the offense or offenses charged shall proceed, and judgment may be pronounced"). If the defendant is found mentally incompetent after evaluation and treatment, he is sent to a mental hospital until he regains competency. See Cal. Penal Code § 1370.01(a). Counsel's decision not to pursue a mental competency inquiry or an insanity defense was not deficient performance and did not result in any prejudice. As discussed earlier in this order, Corsetti was not incompetent. The failure to pursue a fufile position was not deficient performance.

  Corsetti's claim that counsel failed to consider other mental defenses that might be available in light of Corsetti's mental illness also fails for lack of prejudice. As explained earlier in this order, a mental illness would not have provided a defense to the general intent crime of assault with a deadly weapon. See Cal. Penal Code § 28; CALJIC 3.32. If Corsetti was convicted of assault with a deadly weapon, his numerous prior convictions would result in a 3-strikes conviction with an attendant sentence of at least 25-to-life. Even assuming counsel had not investigated the mental illness related defenses, if he had done so he would not have found anything helpful because one of the crimes charged was a general intent crime. A lengthy sentence faced Corsetti if he was convicted of any of the felony charges because of his many Page 20 prior convictions. There is no reasonable probability that, had counsel fully investigated the defenses available due to Corsetti's mental health problems and informed Corsetti of the results of that investigation, Corsetti would not have pleaded guilty and would have insisted on going to trial.

  2. Investigating The Witnesses

  Corsetti claims that his attorney was ineffective in that he did not interview Steve Wright and Kirk Blake. Steve Wright allegedly witnessed the stabbing. Kirk Blake allegedly knew about the victim's violent character and had 14 other people lined up who also could speak about the victim's violent character. By the time of the change-of-plea hearing, Steve Wright had died and Kirk Blake had been incarcerated.

  A defense attorney has a general duty to make reasonable investigations or make a reasonable decision that makes particular investigations unnecessary. See Strickland, 466 U.S. at 691. "A particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. Where the record shows that counsel was well-informed, and the defendant fails to state what additional information would be gained by the discovery he now claims was necessary, an ineffective assistance of counsel claim fails. Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986).

  Corsetti has not shown deficient performance by counsel with regard to the alleged failure to interview Steve Wright. As a threshold matter, the court questions whether Steve Wright was even alive when counsel was appointed to represent Corsetti. Corsetti appeared pro per until counsel was appointed to represent him on November 15, 1999. At the change of plea hearing two months later, on January 25, 2000, counsel stated that Steve Wright had died before the investigator could interview him. Resp. Exh. I, RT 7. Corsetti did not provide a date of death of the witness and counsel's comments at the change of plea hearing suggest the witness died before counsel was appointed to represent Corsetti. Counsel is not responsible for Corsetti's failure to have an investigator interview this witness during the several months Corsetti Page 21 represented himself. Corsetti was arrested within days of the crime's occurrence in June 1999, and apparently represented himself until counsel was appointed on November 15, 1999 to represent him. Corsetti does not explain why he did not have his investigator interview the witness in the months before counsel was appointed in light of the fact that Corsetti knew the witness was dying.

  Even if Wright was alive after counsel was appointed to represent Corsetti, counsel's failure to interview Wright was not deficient performance. Counsel's declaration shows that he understood that there were no eyewitnesses to the stabbing and that Steve Wright and Leann Smith were outside the trailer when Corsetti stabbed the victim. Corsetti does not deny that this was the version of the facts that he presented to defense counsel. If counsel had been told by his client that Wright was outside the trailer at the time of the stabbing, it was quite reasonable not to bother to interview him. Also, Leann Smith's statements to the investigator and to the police indicated that she and Wright were outside the trailer at the time of the stabbing. See footnote 3, supra, and Traverse, Exh. O. Finally, merely interviewing Wright would not have been of any particular value at trial if Wright's testimony had not been preserved for use at a possible trial.

  Counsel also did not engage in deficient performance by failing to interview Kirk Blake and other people who could testify about the victim's violent nature. When Corsetti complained at the change of plea proceeding that counsel had not interviewed Kirk Blake, who allegedly had 14 other people who could testify to the victim's violent nature, counsel stated that those witnesses were not witnesses to the assault and that Kirk Blake was in custody. Counsel also stated that the witnesses were "character witnesses as to the assaultive nature of the alleged victim on this offense. Character evidence of the victim's behavior is speculative." Resp. Exh. I, RT 7. Counsel's choice not to pursue the character witnesses further was reasonable. The proposed witnesses could provide, at most, character evidence that might show behavior in conformity with the victim's violent character, see Cal. Evid. Code § 1103(a), which would open the door to the prosecution presenting evidence of Corsetti's violent character, as to which there probably was a lot in light of his criminal history, see Cal. Evid. Code § 1103(b). Corsetti has not shown that there was anything to be gained relevant to his defense by interviewing these Page 22 witnesses. It was not deficient performance to not interview these witnesses about the victim's character.

  An attorney who urges a client to plead guilty when the attorney has not adequately investigated the relevant legal and factual issues in a case may deprive the client of his Sixth Amendment right to counsel. But that is not to say that an attorney may not recommend a guilty plea until the attorney is completely trial-ready. Rather, counsel must do his homework and inform himself of the legal and factual issues so that he may intelligently evaluate the relative costs and benefits of a trial and a guilty plea. See Tollett v. Henderson, 411 U.S. at 267-68.

  Defense counsel here did not urge his client to plead guilty without having evaluated the strengths and weaknesses of Corsetti's case. Corsetti has not shown that his counsel's advice to plead guilty would have changed had counsel thought more about putting Corsetti's mental illness to use for Corsetti's defense or had counsel interviewed the witnesses Corsetti identified. Just as there is nothing suggesting counsel's advice to plead guilty for a 12-year sentence would have changed, there also is no showing of a reasonable probability that, but for counsel's alleged failure to investigate mental illness related defenses and to interview the identified witnesses, Corsetti would not have pled guilty and would have insisted on going to trial.

  Finally, and not to minimize the difficulties that any incarceration brings with it, Corsetti received a very significant benefit by pleading guilty. The most serious charges were dropped and he is now about halfway through his sentence. Had he gone to trial and lost, he would today be in only the very beginning part of his sentence, and be unable to anticipate release for at least another two decades. This extremely advantageous sentence undercuts any claim of prejudice to Corsetti. Corsetti is not entitled to the writ on his ineffective assistance of counsel claim. Page 23


  For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The clerk shall close the file.


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