The opinion of the court was delivered by: CHARLES BREYER, District Judge
ORDER DENYING PETITION FOR A
WRIT OF HABEAS CORPUS
(Doc. # 53)
Petitioner seeks a federal writ of habeas corpus under
28 U.S.C. § 2254, challenging the validity of his guilty plea in the Marin
County Superior Court of the State of California. He claims that his plea
was coerced and that he received ineffective assistance of counsel. The
court dismissed petitioner's initial habeas corpus petition finding that
although the claims therein were cognizable under § 2254, the
petition contained unexhausted as well as exhausted claims. After
petitioner fully exhausted his state court remedies, the court reinstated
the petition but dismissed those claims that challenged petitioner's
prior felony conviction. Respondent filed an answer and petitioner filed
a traverse in response. STATEMENT OF THE FACTS
On June 21, 1995, at approximately 1:05 a.m., a highway patrol officer
stopped petitioner's vehicle based on his observations that the vehicle
was weaving and speeding and lacked a license plate light in violation of
the California Vehicle Code. When the detaining officer spoke to
petitioner, who was driving the vehicle, he noticed that petitioner's
eyes were bloodshot and watery, his breath smelled of alcohol, and his
speech was slow and slurred. The officer then contacted a second highway
patrol officer to investigate a possible driving under the influence
violation. About seven to ten minutes later, the second highway patrol
officer arrived on the scene and questioned petitioner. Petitioner
admitted he had been drinking beer before he attempted to drive himself
home. The officer conducted a series of field sobriety tests, all of
which petitioner failed. Petitioner was given a breath test that showed
petitioner's blood alcohol content ("BAG") level was. 216. Petitioner was
arrested based on probable cause that he had been driving under the
influence of alcohol. Petitioner submitted to a blood test, which
resulted in a finding that his BAC was. 23. A subsequent search of
petitioner's vehicle revealed a half-empty 40-ounce bottle of beer.
On June 29, 1995, the Marin County District Attorney charged petitioner
in a five-count complaint. See Respondent's Exhibits in Support
of Amended Answer ("Resp. Ex."), Ex. 1, pp. 1-5. Counts one and two
charged petitioner with two felonies: driving under the influence of an
alcoholic beverage within seven years of three other such convictions
and, driving under the influence of alcohol with a blood alcohol level
of. 08% or above within seven years of three other driving under the
influence convictions (Cal. Veh. Code § 23152(a)/§ 23175 and
§ 23152(b)/§ 23175).*fn1 A strike enhancement was charged as to
counts one and two pursuant to California Penal Code §§ 1170.12(a),
(b), and (c) based on petitioner's prior felony burglary conviction in
November 1982 (Cal. Pen. Code § 459). Counts three through five
charged petitioner with three misdemeanor counts of driving with a revoked or suspended license (Cal. Veh. Code §§ 14601.2(a),
14601.5(a), 14601.l(a)). The complaint also included an allegation that
petitioner had been convicted of prior felonies within the meaning of
California Penal Code § 1203(e)(4) relating to ineligibility of
probation, including three counts of possessing fraudulent checks (Cal.
Pen. Code § 475); burglary (Cal. Pen. Code § 459); exhibiting a
firearm in the presence of a police officer (Cal. Pen. Code §
417(b)); and grand theft (Cal. Pen. Code § 487.1).
As part of a plea agreement on January 22, 1996, petitioner pleaded
guilty to count 1, the charge of driving under the influence of alcohol
within seven years of three other driving under the influence
convictions, and he admitted he suffered a prior conviction of burglary
of an inhabited dwelling house. See Resp. Ex. 2, Reporter's
Transcript ("RT") 01/22/96, pp. 10-11. In exchange for the plea, the
prosecutor dismissed counts 2-5, and the § 1203(e)(4) allegation
relating to probation ineligibility. Petitioner waived appeal except for
sentencing error. See id. at pp. 8-9.
On March 4, 1996, Marin County Superior Court Judge John Sutro, Jr.,
sentenced petitioner to the upper term of three years in state prison,
which was doubled to six years based on the prior serious felony strike
enhancement under Penal Code § 1170.12(a), (b), and (c).
See Resp. Ex. 2, RT 03/04/96, p. 32.
The Marin County Superior Court denied petitioner's application for a
certificate of probable cause to appeal after a plea of guilty.
See Resp. Ex. 2, RT 05/02/96, pp. 45-47.
In January 1997, the Court of Appeal denied his petitions for mandate
and writ of habeas corpus. See Resp. Ex. 4, 5 (Cal. Ct. App.,
Nos. A076978, A076977, Jan. 28, 1997).
Petitioner then filed a petition for writ of mandate in the California
Supreme Court, which transferred it to the Court of Appeal with
directions to deny the petition if it was substantially identical to a
prior petition. See Resp. Ex. 6 (Cal. Supr. Crt., No. S059202,
Feb. 24, 1997). The Court of Appeal summarily denied the petition on
March 4, 1997. See id. (Cal. Ct. App., No. A077400, Mar. 4,
On March 25, 1997, the Court of Appeal affirmed the judgment of the
Marin County Superior Court. See Resp. Ex. 7 (Cal. Ct. App.,
No. A074247, Mar. 25, 1997) (unpub. op.). On April 30, 1997, the California Supreme Court denied petitioner a
writ of habeas corpus based on the merits. See Resp. Ex. 9,
(Cal. Supr. Crt., No. S059200, Apr. 30, 1997).
Over four-and-a-half years later, on January 18, 2002, petitioner filed
another writ for habeas corpus in the California Supreme Court raising
additional grounds for relief. The Court denied the petition citing
In re Clark, 5 Cal.4th 750 (1993); In re Robbins,
18 Cal.4th 770, 780 (1998); and In re Wessley W.,
125 Cal.App.3d 240, 246 (1981). See Resp. Ex. 12, (Cal. Supr. Crt., No.
S103721, Jul. 17, 2002) (en banc).
On March 13, 1998, petitioner filed a petition for a federal writ of
habeas corpus under 28 U.S.C. § 2254. Petitioner challenged the
validity of his guilty pleas in his 1996 conviction for felony driving
under the influence and in his 1982 conviction for burglary that was used
to enhance his 1996 sentence. The court found that, when liberally
construed, the claims therein were cognizable under § 2254, but
because the petition contained both exhausted and unexhausted claims, the
court dismissed the petition with leave for petitioner to inform the
court whether he would either proceed with the sole exhausted claim (his
claim that his 1996 plea was invalid because he was not fully advised of
his parole eligibility), or voluntarily dismiss the petition so he may
exhaust state remedies as to his unexhausted claims. See Apr.
26, 1999, Order, pp. 2-4 (citing Rose v. Lundy, 455 U.S. 509,
When petitioner failed to elect an option after three orders from the
district court directing petitioner to choose between the two available
options, the court dismissed his petition without prejudice.*fn2 See
Dec. 03, 1999, Order, p. 1. The Ninth Circuit affirmed. See
Baldocchi v. Terhune, No. 00-16638, (9th Cir. Nov. 5, 2001)
But two years later, the Ninth Circuit remanded the case to this court
for reconsideration in light of two developments subsequent to the
district court's decision: (1) petitioner had now exhausted his state
remedies, and (2) the Ninth Circuit decided several cases that were
potentially relevant to the issues at hand. Baldocchi v.
Terhune, No. 00-16638, slip op., p. 2 (9th Cir. Mar. 3, 2003) (mem.) (citing Kelly v.
Small 315 F.3d 1063 (9th Cir. 2003); Ford v. Hubbard
305 F.3d 875 (9th Cir. 2002), opinion amended and superceded on denial of
rehearing, 330 F.3d 1086 (2003), and cert. granted sub.
nom., Pliler v. Ford, 124 S.Ct. 981 (2004) (mem.); and
James v. Pliler, 269 F.3d 1124 (9th Cir. 2001)).
Following remand, the court reinstated petitioner's now-fully exhausted
petition, but dismissed his claims challenging the validity of his 1982
felony burglary conviction used to enhance his 1996 sentence based on the
Supreme Court's decision in Lackawanna County Dist. Attorney v.
Coss, 532 U.S. 394, 403-04 (2001) (state prisoner may not attack in
federal habeas proceedings the constitutionality of a prior conviction
used to enhance a later sentence). See May 21, 2003, Order, pp.
4-5. The district court denied petitioner's motion for reconsideration.
See July 16, 2003, Order, p. 2 (citing Harper v. Virginia
Dep't. of Taxation, 509 U.S. 86, 94-99 (1993)).
Now before the court are petitioner's claims challenging the
constitutionality of his guilty plea and sentence in his 1996 felony
conviction for driving under the influence of alcohol within seven years
of three other such convictions. Petitioner requests that his conviction
be vacated, or in the alternative, that he be allowed to withdraw his
A federal writ of habeas corpus 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 claims: "(0 resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding." 28 U.S.C § 2254(d).
"Under the "contrary to` clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by [the Supreme] Court on a question of law or if the state court decides
a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor,
529 U.S. 363, 412-13 (2000). "Under the `unreasonable application'
clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from [the Supreme]
Court's decisions but unreasonably applies that principle to the facts of
the prisoner's case." Id. at 413.
"[A] federal habeas court may not issue the writ simply because that
court concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or
incorrectly." Id. at 411. Rather, that application must
be "objectively unreasonable." Id. at 409.
The only definitive source of clearly established federal law under
28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the
Supreme Court as of the time of the relevant state-court decision.
Id. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th
Cir. 2003). "While circuit law may be persuasive authority for purposes
of determining whether a state court decision is an unreasonable
application of Supreme Court law, only the Supreme Court's holdings are
binding on the state courts and only those holdings need be reasonably
applied." Id. (internal citation omitted).
The only challenges left open in federal habeas corpus after a guilty
plea are the voluntary and intelligent character of the plea and the
nature of the advice of counsel to plead Hill v. Lockhart,
474 U.S. 52, 56-57 (1985); Tollett v. Henderson, 411 U.S. 258, 267
(1973). A defendant who pleads guilty upon the advice of counsel may
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. Id; United
States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988); Hudson v.
Moran, 760 F.2d 1027, 1030 (9th Cir. 1985).
Petitioner claims that the district court "opened the door" to
reviewing the legality of his prior conviction in 1982 by its June 29,
1998, Order to Show Cause. According to petitioner, the Order was "a
prima facie showing that the 1982 and 1996 pleas were unconstitutional,"
which this court has not ruled on to date. Petitioner asserts that Lackawanna provides jurisdiction for the court to rule on
the validity of the 1982 conviction, and he requests that the court do so
at this time.
Petitioner's request (Doc. #53) is DENIED. The district court's Order
to Show Cause does not provide a jurisdictional basis for the court to
review petitioner's 1982 conviction. The Supreme Court's ruling in
Lackawanna clearly precludes petitioner's federal habeas attack
on his 1982 conviction used to enhance his 1996 sentence. See
July 16, 2003, Order, p. 1; May 21, 2003, Order, pp. 4-5 (citing
Lackawanna, 532 U.S. at 403-04). And because petitioner was
represented by counsel pursuant to his Sixth Amendment rights, the
exception to the Lackawanna rule does not apply. See
II. CLAIMS DENIED ON THE MERITS
In petitioner's initial petition for a writ of habeas corpus, which the
California Supreme Court denied on the merits in 1997, he claims that his
plea was invalid because it was made without his knowledge of the
consequences of a prior felony strike conviction, and that his defense
counsel rendered ineffective assistance of counsel when he failed to
advise petitioner of the direct consequences of his guilty plea.
Petitioner specifically claims that he should be allowed to withdraw
his guilty plea because he was not aware at the time he made the plea
that the prior felony strike conviction required him to serve a minimum
of 80% of his sentence before he became eligible for parole. He claims
that because neither the court nor his counsel notified him of the 80%
service rule, his plea was made in violation of his due process rights.
"A plea of guilty is voluntary only if it is entered by one fully aware
of the direct consequences of his plea." Torrey v.
Estelle, 842 F.2d 234, 235 (9th Cir. 1988) (internal citations
omitted) (emphasis in original). This requires that a defendant be
advised of the range of allowable punishment that will result from his
plea. See id. However, a court need not advise a defendant of
"all the possible collateral consequences." Id. "The
distinction between a direct and collateral consequence of a plea turns
on whether the result represents a definite, immediate and largely
automatic effect on the range of the defendant's punishment."
Id. at 236 (internal citations omitted). Here, petitioner was advised that by pleading guilty he faced a maximum
sentence of up to three years in state prison, which could be doubled to
up to six years because of the strike allegation. He was also advised
that upon release from prison he faced a mandatory period of parole.
These "direct" consequences constituted part of the "range of allowable
punishment" and were definite to result from his plea.
On the contrary, the date a defendant becomes eligible for parole
relates to the time at which the sentence imposed may be reduced
and is not definite to occur. See Carter v. McCarthy,
806 F.2d 1373, 1375 (9th Cir. 1986). "Early release is purely discretionary
and provides a benefit to the prisoner a reduction in the period of
confinement." Id. See also Torrey, 842 F.2d at 236 (time of
potential parole eligibility is not a certain result of a guilty plea,
but rather, depends upon the defendant's conduct and is purely
discretionary). Events that are not certain to occur, such as the date
one may be released on parole, are collateral consequences of a
Petitioner's claim fails because there is no violation of due process
where, as here, a defendant is not informed of a collateral consequence
of his plea. See Torrey, 842 F.2d at 236.
Petitioner's claim of ineffective assistance of counsel also fails
because he cannot prove that his trial counsel's alleged failure to
advise him of the 80% service rule constituted deficient performance and
that the deficient performance prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). To demonstrate deficient
performance, petitioner must show that his counsel's representation "fell
below an objective standard of reasonableness." Id. at 688. He
cannot do so because "[f]ailure to advise [defendant] of a collateral
penalty cannot be held to be below an objective standard of
reasonableness." Torrey, 842 F.2d at 237.
In addition, petitioner has not shown that he was prejudiced. To
demonstrate prejudice, petitioner must show that, but for his counsel's
alleged error in not advising petitioner of the 80% service rule, he
would not have pleaded guilty and would have insisted on going to trial.
See Hill, 474 U.S. at 59. The record does not indicate that
petitioner placed any particular emphasis on the date he would become eligible for
parole in deciding whether to plead guilty. See id. at 60.
The record shows that the state courts' rejection of these claims was
not "contrary to, or involved an unreasonable application of, clearly
established [Supreme Court precedent]," or was based on an "unreasonable
determination of the facts in light of the evidence presented."
28 U.S.C. § 2254(d). Petitioner is not entitled to a writ of habeas corpus
based on these claims.
III. CLAIMS DENIED ON PROCEDURAL GROUNDS
Petitioner raised additional claims in his subsequent habeas corpus
petition which the California Supreme Court denied, but not on the
merits. These claims include: (1) petitioner's sentence was
unconstitutional, (2) his trial counsel, Mr. Frank Cox, provided
ineffective assistance of counsel, (3) his appellate counsel, Ms. Sandra
Uribe, provided ineffective assistance of counsel, and (4) his plea was
Respondent argues that these remaining claims were procedurally
defaulted because when the California Supreme Court denied petitioner a
writ of habeas corpus, it signaled that the petition was untimely and
that the Court lacked state custody jurisdiction. See Resp. Ex.
12, (Cal. Supr. Crt., No. S103721, Jul. 17, 2002) (en banc)
(citing In re Clark, 5 Cal.4th 750 (1993); In re
Robbing, 18 Cal.4th 770, 780 (1998); and In re Wessley
W., 125 Cal.App.3d 240, 246 (1981)). Respondent contends that
because the California Supreme Court's order provided "adequate and
independent" state procedural grounds for denying relief, all remaining
federal claims were procedurally defaulted.
The procedural default rule applies when there is "an adequate and
independent state law basis on which the state court can deny relief."
Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003),
amended on denial of rehearing en bane, (internal citation
omitted). A state procedural rule is "independent" when it is not interwoven with
federal law. Id. at 581. "To be deemed adequate, the state law
ground for decision must be well-established and consistently applied."
Id. at 583. Respondent has the ultimate burden of proving the
adequacy of the California state procedural bar and must demonstrate that
its courts have "regularly and consistently" applied the procedural bar.
Id. at 585-86.
Respondent has not met his burden. Nonetheless, petitioner is not
entitled to federal habeas corpus relief for the reasons discussed below.
A. Unconstitutional Sentence
Petitioner claims that his sentence was unconstitutional because a
strike enhancement was improperly used to double his sentence, and thus
his now-completed sentence was too long. Specifically, petitioner alleges
that the enhancement was charged only to count two, not to count one, and
that it was dismissed along with counts two through five pursuant to the
plea agreement. He also contends that his prior burglary conviction was
of the second degree and therefore, it was not one of the enumerated
statutory crimes that can be used as a strike enhancement.
Petitioner's claims challenge the length of his now fully-completed
sentence. Once a petitioner's sentence has expired, "some concrete and
continuing injury other than the now-ended incarceration or parole
some `collateral consequence' of the conviction must
exist if the suit is to be maintained." Spencer v. Kemna,
523 U.S. 1, 7 (1998). To the extent petitioner's claims affect only the
length of his expired sentence, they are moot. United States v.
Palomba, 182 F.3d 1121, 1123 & n.3 (9th Cir. 1999) (petitioner
has no standing to challenge an improper but completed sentence when only
the length of the sentencing is disputed).
To the extent petitioner has sufficiently alleged a "collateral
consequence" of the conviction to give him standing to challenge the
sentence, his claims fail for the following reasons. 1. Enhancement Applied to A Dismissed Charge
Petitioner relies on the Marin County Superior Court clerk's minute
records to support his contention that the strike enhancement was charged
only to count two. He points to the preliminary hearing minute report,
which lists, in part, the charges and allegations in the following
1. VC 23152(A)/23175:F1
2. VC 23152(B)/23175:F1 w/PC 1170.12(A): Fl w/PC
1203(E)(4): F4*fn4 . . .
COURT FINDS ALLEGATION NUMBER 1 IN COUNT 2 TO BE
COURT FINDS ALLEGATION NUMBER 2 IN COUNT 2 TO BE
See Resp. Ex. 1, Marin CJIS 10/30/95, pp. 40-41. The
arraignment minute report lists charges one and two in an identical
manner. See Resp. Ex. 1, Marin CJIS 11/20/95, p. 134.
As evidence to support his contention that the enhancement was
dismissed along with count two, petitioner offers the minute report
following his plea hearing, which states: "DEFENDANT ENTERED A PLEA OF
GUILTY TO COUNT 1. PRIOR CONVICTION(S) ADMITTED." . . . "ENHANCEMENT
STRICKEN" and a minute report from a subsequent pretrial hearing that
states: "ENHANCEMENT PREVIOUSLY STRICKEN, BUT NOT DELETED ...