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BALDOCCHI v. ALAMEIDA

April 15, 2004.

STEPHEN EYRE BALDOCCHI, Petitioner,
v.
EDWARD S. ALAMEIDA, JR., Director of California Department of Corrections, Respondent



The opinion of the court was delivered by: CHARLES BREYER, District Judge

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS (Doc. # 53)
INTRODUCTION
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.

  PROCEDURAL HISTORY

  STATE COURT

  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, 1997).

  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).

  FEDERAL COURT

  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, 510 (1982)).

  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) (unpub.).

  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 guilty plea.

  DISCUSSION

  I. STANDARD OF REVIEW

  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 id.

  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 plea.

  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 not voluntary.*fn3

  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 manner:
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 TRUE.
COURT FINDS ALLEGATION NUMBER 2 IN COUNT 2 TO BE TRUE.
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 ...


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