United States District Court, N.D. California
March 25, 2004.
DONALD CORSETTI a/k/a DONALD BRADY, Petitioner,
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.
IT IS SO ORDERED AND ADJUDGED.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
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 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.
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
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
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.
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 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
state judicial remedies were exhausted for the claims raised in the
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).
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
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
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
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).
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
plead guilty); Carter v. McCarthy, 806 F.2d 1373
(applying harmless error rule to guilty plea that allegedly was not
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
lung is reasonably within the conduct that can support an attempted
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
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?
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?
THE DEFENDANT: Yeah.
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
"[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.
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
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 DEFENDANT: Yeah.
THE COURT: You can only get conduct credits
maximum 15 percent of the sentence; you understand
THE DEFENDANT: Yeah.
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?
THE DEFENDANT: Yeah.
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
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
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
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
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
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.
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
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
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
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
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
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
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.
For the foregoing reasons, the petition for writ of habeas corpus is
DENIED. The clerk shall close the file.
IT IS SO ORDERED.