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BALDOCCHI v. ALAMEIDA

United States District Court, N.D. California


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 FROM CJIS. CLERK TO CORRECT." See Resp. Ex. 1, Marin CJIS 01/22/96, p. 136; Marin CJIS 02/26/96, p. 140.

  Petitioner also relies on a spreadsheet prepared and submitted along with the guilty plea forms by his attorney, Mr. Cox, to show that the enhancement was charged only to count two.*fn5 Mr. Cox's spreadsheet appears, in part, as follows: Cnt Date Offense Crime DUI Priors Strikes

 

1 6/21/95 drive u/i 23152(a)_23157 VC 1, 2, 3 2 6/21/95 b.a. .08% 23152(b)_23157 VC 1, 2, 3 R Burglary
Count two alleges Strike Priors per 1170.12 (A), 1170.12(8), 1170.12(C) One strike prior: double normal sentence 23175 VC Felony DU Wobbler 1 year county jail/$1,000 縩, 16/2/3 — double w/strike: 2.66/4/6
Count two alleges probation ineligibility 1203(e)(4) PC No probation unless unusual cases where df. has 2 or more prior felonies
See Resp. Ex. 1, p. 139 (italics in original).

  Petitioner's interpretation is plausible only if the clerk's abbreviated minute reports and his attorney's spreadsheet are considered in isolation of the entire record. Such a myopic review of the record is improper. When the record is properly viewed as a whole, court documents consistently show that the prior felony strike enhancement was charged to and applied to both counts one and two and that any inaccuracies in Mr. Cox's spreadsheet were corrected in open court.

  The complaint and the information are identical in their unambiguous description of the prior felony strike enhancement:

IT IS FURTHER ALLEGED AS TO COUNT(S) ONE AND TWO THAT PURSUANT TO PENAL CODE SECTIONS 1170.12(A), 1170.12(B), 1170.12(C), THAT THE DEFENDANT, STEPHEN EYRE BALDOCCHI, HAS SUFFERED THE FOLLOWING PRIOR CONVICTION OF A SERIOUS OR VIOLENT FELONY: PRIOR CONVICTION: BURGLARY OF AN INHABITED DWELLING HOUSE IN VIOLATION OF SECTION 459 OF THE PENAL CODE, ON NOVEMBER 22, 1982. . . .
See Resp. Ex. 1, Complaint, June 29, 1995, p. 3; Information, November 13, 1995, p. 131 (emphasis added).

  The transcript from the preliminary hearing reflects the prosecutor's intention not to dismiss the strike enhancement:

"And I think Mr. Baldocchi is an alcoholic and I think he is a danger to the public at this point. . . . That's the reason we're not going to move to strike the prior under 1170.12 which subjects him to the strike initiative. He does nave one prior strike which will put him in prison if the Court does not exercise discretion under 17(b) and it would expose him to a term of prison, which I think, at this point, tie's worked himself towards."
See Resp. Ex. 1, RT 10/30/95, p. 32 (emphasis added). Also at the preliminary hearing, Judge Sutro made the following comment:
All right. With respect to the allegations in Counts 1 and 2 of prior convictions for driving under the influence, the evidence establishes those allegations, that is of me three priors for which Mr. Baldocchi was convicted [on] March 6, 1992; that's established by Exhibit 1 and then the prior alleged, the burglary conviction, section 459 on November 22, 1982 as established by Exhibit 2 as are the other violations alleged . . . Those allegations are sustained by the evidence, or sufficient cause is indicated. Then with respect to the charges in Counts 3, 4, and 5 ___.*fn6
See id. at p. 36 (emphasis added).

  And notably, at the plea hearing, petitioner acknowledged that he was subject to the strike enhancement:

Court: All right. You understand that by pleading guilty to the charges in Count 1 of the complaint, that you could be sentenced to state prison for 16 months, two or three years?
Def Yes, your Honor.
Court: And that because of the strike allegation made, pursuant to Penal Code Sections 1170.12(a), (b) and (c), that the [sic] those terms could be doubled — will be doubled?
Def I do understand that.
Court: So that makes 32 months, four years or six years.
Def I understand, your Honor.
See Resp. Ex. 2, RT 01/22/96, p. 4 (emphasis added).

  Also at the plea hearing, the following colloquy took place:

Court: All right, Mr. [Deputy District Attorney] Courteau, is there anything that the District Attorney would wish to voir dire Mr. Baldocchi on further?
D.A. Yes. I would like to clarify that in Mr. Cox's filling out of the form, that the plea here also encompasses an admission of the allegation under 1170.12, which is addressed in the Information at the first paragraph on page three, which also relates to Count 1. In here, in the document that Mr. Cox has supplied to us, he talks about the allegations as to Count 2. And I just want to clear it up that we are talking about an admission to the enhancement pursuant to Section 1170.12 with respect to Count 1 and that this allegation does, in fact, apply to Counts 1 and 2 as reflected in that paragraph alleging the enhancement under 1170.12 at page 3, the first full paragraph.
Court: Do you understand that, Mr. Baldocchi?
Def Yes.
See id. at pp. 9-10 (emphasis added).

  Petitioner's claim that the strike enhancement was stricken is also disproved by the record. The reporter's transcripts confirm that it was the § 1203(e)(4) allegation that was stricken, not the § 1170.12 strike enhancement, as petitioner claims.

  At the plea hearing, the following exchange took place:

Court: Also, it's my understanding [Mr. Baldocchi] would be admitting the allegation with reference to me 1203(e)(4); is that correct?
D.A.: I don't believe that's necessary, your Honor. I'd be willing to strike those.
Court: All right. What that means, Mr. Baldocchi, is the District Attorney is going to strike the special allegation, the consequence of which, if admitted, would be to require a finding of unusual circumstances by the Court in order to put you on probation.
See id. at p. 10.

  At the February 26, 1996 hearing, where petitioner was present, his attorney, Mr. Cox raised the issue that the clerk's minute report did not properly show that the § 1203(e)(4) allegation was stricken. The district attorney agreed:

D.A.: I believe that Mr. Cox is correct concerning the 1203(e)(4) allegation. My file shows also that it was dismissed, so that he is correct on that, your Honor.
Court: Okay. So the record should reflect that. That leaves the 1170.12(a) enhancement only; correct?
D.A.: Yes.
See Petition for Writ of Habeas Corpus ("Pet."), Ex. B-4, RT 02/26/96, pp. 2-3.

  And at the sentencing hearing, the Court concluded:

As to Count One, a felony violation of Section 23152(a) of the Vehicle Code, . . . find the — that upper term. And, pursuant to the agreement of Section 1170.[12](a)(b)(c), Mr. Baldocchi is sentenced to six years in state prison.
See Resp. Ex. 2, RT 03/04/96, p. 32. Petitioner's sole explanation is that the documents were altered in a way "to extricate the state, judge, and defense counsel from a sham of an illegal conviction and sentencing." See Traverse at 14. Petitioner contends that after Judge Sutro sentenced him to the strike enhancement, someone notified the judge that the sentence was improper because he had already dismissed the strike enhancement. "Then someone `caused' the Reporter's Transcript to be changed." Pet., p. 80. Petitioner alleges that false testimony was added to the reporter's transcript to show that the strike enhancement applied to count one as well as to count two. He also alleges that the reporter's transcript had been altered to show that it was the § 1203(e)(4) "special allegation" that was stricken rather than the § 1170.12 strike enhancement. See id., p. 56.

  Petitioner points to the pre-sentence report as "proof that the documents had been altered. According to petitioner, Deputy Probation Officer Margaret Edward attempted to cover-up the judge's dismissal of the strike enhancement in her pre-sentence report by deliberately not listing the strike enhancement and by using it to double the upper limit prison term in her sentence recommendation. "This is concrete proof she knew the ` enhancement' had been stricken, that the D.A. and Defense had `tricked' the court, and where she became the one to `reinsert' the strike by inference." Pet., p. 90 (emphasis in original).

  Petitioner is referring to a table that appears in the "Analysis and Plan" portion of the probation report. See Resp. Ex. 1, Probation Officer's Report, March 4, 1996, p. 162. Under the heading "Base Term," the report lists 6 years, and under the heading, "Enhancement," the report states "None." Another table in the report titled, "Fixed Term Worksheet," leaves blank the space under the heading "Enhancements." See id. at p. 164.

  Petitioner's claim that the probation officer attempted to conceal the enhancement and lure the court to issue an improper sentence is unfounded. The most that can be said is that the probation officer did not accurately complete the tables in the report. Otherwise, throughout the text of her report, the § 1170.12 strike enhancement is clearly identified as charged and applicable to count one: [CHARGES FILED]

 

It is further alleged that as to Counts 1 and 2 the defendant comes within the meaning of Penal Code Sections 1170.12(a)(b)(c) in that he was convicted of a serious/violent felony, burglary, 1st degree,*fn7 on November 22, 1982 in Marin County Superior Court, Case No. 8364. . . .
[CURRENT CHARGES AND STATUS]
On January 22, 1996, in the Marin County Superior Court, the defendant pled guilty to Count 1, as charged. The defendant admitted the allegations pursuant to Penal Code Sections 1170.12(a)(b)(c) and Penal Code Section 1203(e)(4). Counts 2 through 5 were dismissed with Harvey waivers. . . .
[ANALYSIS & PLAN]
We have reviewed the facts in aggravation and mitigation and find this matter to be at the upper term. The defendant has been charged with and admitted the allegations pursuant to Penal Code Section 1170.12(a)(b)(c) resulting in twice the term otherwise provided as punishment for the current felony conviction.
. . . Therefore it is respectfully recommended:
As to Count 1, . . . that probation be denied as required by statute and that this Count be found at the upper term, and the defendant be sentenced to the State Prison for six years pursuant to Section 1170.12(a)(b)(c).
Id., pp. 152-53, 162-63.

  Petitioner's contention that the clerk's minute reports and his counsel's spreadsheet "prove" his claim disintegrates when the record is considered as a whole. To accept petitioner's claim, one would have to believe that nearly the entire court file has been falsified, including the complaint, the information, several portions of the preliminary hearing transcript and the plea hearing transcript, the text of the probation officer's report, a post-plea transcript, and the sentencing transcript. There is no evidence to support such wide-spread falsification of court documents.

  Petitioner is not entitled to habeas corpus relief on this claim.

  2. Second Degree Burglary Improperly Used to Enhance Sentence

  Petitioner claims that his 1996 sentence could not be enhanced by his 1982 burglary conviction because he had pleaded guilty to second degree burglary, which he contends, is not a felony that can be used as a prior strike to enhance a sentence. California Penal Code § 1192.17(c) lists serious felonies that can be used as sentence enhancements. First degree burglary, but not second degree burglary, is listed.

  Petitioner was charged in 1996 with having suffered a prior conviction of burglary of an inhabited dwelling house in violation of Penal Code § 459. Section 459 provides that every person who enters a house with the intent to commit larceny or any felony is guilty of burglary. California Penal Code § 460 distinguishes between first and second degree burglary by stating that burglary of an inhabited dwelling place is first degree and all other kinds of burglary are second degree. Until section 459 was amended in 1982, only burglary of an inhabited dwelling house in the nighttime constituted a first degree burglary. At the time petitioner was charged with burglary and up until the statute was amended, residential daytime and all non-residential burglaries were considered second degree burglary. Nonetheless, current California law allows petitioner's second degree burglary conviction to serve as a felony enhancement as long as there is evidence on the record of conviction that the crime involved burglary of a residence. See People v. Carr, 204 Cal.App.3d 774, 778-79 (1988) (affirming enhancement where record of conviction refers to entry of an inhabited dwelling).

  The undisputed evidence in the record, including court documents from the 1982 conviction, shows that the 1982 burglary occurred at the Smith residence, which is an inhabited dwelling house.*fn8 See Resp. Ex. 11, Probation Officer's Report and Recommendation, 09/22/82, pp. 1-4; Amended Information, 11/05/82, p. 1; Probation Officer's Supplemental Report and Recommendation, 11/17/82, p. 1.; RT of Preliminary Hearing, 08/24/82, pp. 5-7, 11-13, 39. At petitioner's 1996 plea hearing, he admitted to having suffered a prior conviction of burglary "of an inhabited dwelling house." See Resp. Ex. 2, RT 01/22/96, p. 11. And in his present petition, he admits that he pleaded this way because the incident did occur at a house. The fact that petitioner was convicted of 2nd degree burglary has no effect on the application of the strike enhancement where, as here, sufficient evidence in the record demonstrates that the burglary occurred in an inhabited dwelling place. See Carr, 204 Cal.App.3d at 778.

  Petitioner is not entitled to federal habeas corpus relief on this claim.

  B. Ineffective Assistance of Trial Counsel

  Petitioner claims that he received ineffective assistance of counsel because Mr. Cox: (1) improperly stipulated to a factual basis for his plea, (2) withheld a police report from petitioner, (3) failed to make use of a witness' perjury, and (4) failed to ascertain that petitioner was not legally subject to the strike enhancement.

  To prove ineffective assistance of counsel, petitioner must prove that Mr. Cox's performance was deficient and that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687-88. To demonstrate deficient performance, petitioner bears the burden of showing that his counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689; Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). The relevant inquiry is not whether another lawyer, with the benefit of hindsight, would have acted differently or whether defense counsel could have done differently, but rather, whether the choices made by defense counsel were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). Petitioner must also "affirmatively prove prejudice." Strickland, 466 U.S. at 693.

  In the context of guilty pleas, the Strickland test requires that petitioner show that the advice he received from counsel was not within the range of competence of attorneys in criminal cases and that there is a reasonable probability that, but for counsel's alleged errors, he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 58-59.

  1. Stipulation To A Factual Basis for The Plea

  Petitioner alleges that Mr. Cox provided ineffective assistance of counsel because he improperly stipulated to a factual basis for the plea. He maintains that there is insufficient evidence to support his conviction because the only evidence against him was testimony by Officer Planteric, whose entire testimony was impeached.

  Officer Edward Planteric was the sole witness at the preliminary hearing. According to Officer Planteric's testimony, he received a radio call summoning him to the location of a suspected drunk driver at approximately 1:05 a.m. and it took him seven to ten minutes to arrive. He asked petitioner a series of pre-field sobriety test questions at which time Officer Planteric "noticed a strong alcoholic beverage emanating from his breath," "his eyes were bloodshot, watery," and he had "a slur in his speech." Petitioner admitted that he had been drinking a couple of beers in Fairfax. As petitioner exited his vehicle, "he stumbled and had to use his vehicle to support himself." Office Planteric administered three field sobriety tests, all of which petitioner failed. His partner, Officer Carmen, gave petitioner a breath test, which showed that petitioner had a BAC of .216. As Officer Carmen administered the breath test, Officer Planteric propped petitioner up because he could not stand on his own. Petitioner was placed under arrest and was notified of his option to take a blood, breath or urine test to determine his blood alcohol level. Petitioner elected a blood test. The sample was drawn at 1:43 a.m. and a lab analysis later showed his BAC was. 23. In a search of petitioner's vehicle performed after his arrest, Officer Sherman found a half-empty, 40-ounce bottle of Mickey Big Mouth beer. See Resp. Ex. 1, RT 10/30/95, pp. 10-20.

  Petitioner alleges that Officer Planteric committed perjury by testifying that he administered the field sobriety tests when it was Officer Graham who administered the tests. Petitioner also denies that he ever submitted to a breath test. Petitioner contends that because the police report states that the breath test was given at 1:03 a.m., and Officer Planteric's testimony would place him and his partner at the scene at approximately 1:12-1:15 a.m., the officers would not have been present at the scene to administer a breath test. As additional "proof that a breath test was not given, petitioner points to the following preliminary hearing testimony:

Defense Counsel: What happened after the blood [was] drawn? Officer Planteric: He was taken upstairs to the County Jail because it was my belief that the sample was going to come back higher than .08.
According to petitioner, if a breath test had been given, Officer Planteric would have responded that the breath test was. 216 "as evidence of probable cause," and that his failure to specifically reference the breath test indicates that it was not given. See Pet. at 61-62.

  Petitioner also disputes the results of the blood test. He "admits he doesn't know what his BAC was on June 21, 1995, but knows it wasn't. 23." Pet., p. 78.

  Finally, he assigns specious motives to the fact that Office Planteric was promoted to the Justice Department, "the same government agency (Justice Department) that `tests' the blood sample." "Officer Planteric lied and got a job promotion for his efforts." Pet., pp. 64, 66-67.

  Petitioner relies extensively on the police report to support his contentions. The police report states that Office Planteric received the call at 12:45 a.m., arrived at the scene at 12:53 a.m., and that the sobriety breath test was administered at 1:03 a.m. See Pet. Ex. B — lb, at pp. 2-3. Petitioner claims that no reasonable juror could have convicted petitioner when Officer Planteric testified that he received the call at approximately 1:05 a.m. and arrived seven to ten minutes later, which would place him at the scene after the police report states the breath test and field sobriety tests took place. Petitioner offers other inaccuracies between Officer Planteric's testimony and the police report to prove that Officer Planteric committed perjury, such as: the police report indicates that during one of the field sobriety tests petitioner stood on one leg to a count often, then fell against his car, but Officer Planteric testified that petitioner stood to a count of six, then fell against his car; and the police report lists petitioner's demeanor as obnoxious, but Officer Planteric testified, "he wasn't really obnoxious or anything, he said he felt fine." Pet., p. 63; Traverse, p. 12.

  The record does not support petitioner's claims. Petitioner relies on the time difference between Officer Planteric's testimony as to when he received the call and arrived on the scene and the times recorded in the police report. The discrepancy is trivial. The "Driving Under the Influence Arrest Report" lists the time of arrest and the time of the "incident/occurrence" as 1:05 a.m. See Pet. Ex. B — lb, at p.1. Officer Planteric simply responded affirmatively to the district attorney's question whether "about 1:05 in the morning" he was summoned to the scene. It cannot be said that Officer Planteric's twenty-minute time discrepancy or the other small deviations from the police report would cause a reasonable fact-finder to conclude that his testimony was untruthful. There is insufficient evidence to support the allegations that Officer Planteric committed perjury.

  On the contrary, the evidence in the record provides ample factual support for petitioner' guilty plea of driving under the influence of alcohol. The police report, completed by Officer Planteric and Officer Graham, was generally consistent with Officer Planteric's testimony. Petitioner admitted drinking beer between 10:00 p.m. and 12:30 a.m. at Perry's in Fairfax. The two officers each observed that petitioner's eyes were red and watery, his breath smelled of alcohol, he stumbled exiting his vehicle, and his speech was slow and slurred. The report describes how petitioner failed three field sobriety tests and states that petitioner was unable to stand on his own without falling down. During the field sobriety tests, petitioner said, "I'm not going to pass these tests," and "It didn't matter because I'm going to get busted." The report states that a preliminary alcohol screening breath test at the scene resulted in a finding that petitioner's BAC was. 216 and that based on that result, petitioner was arrested and a blood test was taken and sent to the Department of Justice for analysis. See Pet. Ex. B — lb, pp. 2-4, 6.

  In view of the weight of the evidence supporting petitioner's guilty plea and the lack of evidence that Officer Planteric committed perjury, it cannot be said that Mr. Cox's stipulation to a factual basis for the plea was objectively unreasonable. Strickland, 466 U.S. at 688.

  In addition, petitioner does not affirmatively show he was prejudiced by counsel's stipulation. Id. at 693. During the plea hearing, Judge Sutro found sufficient factual basis for the plea and the admissions based not only on the stipulation but also based on the transcript of the preliminary hearing. See Resp. Ex. 2, RT 01/22/96, pp. 11-12. Petitioner has not met his burden under the Strickland/Hill test. He is not entitled to federal habeas corpus relief on this claim.

  2. Withholding Police Report

  Petitioner claims that Mr. Cox provided ineffective assistance of counsel by failing to provide him the police report, which he alleges, would have exposed Officer Planteric's perjury. He claims that if he received the police report before he entered his plea, he would not have pleaded guilty and would have insisted on going to trial.

  Petitioner's claim fails because he cannot meet either prong of the Strickland/Hill test.

  First, petitioner cannot demonstrate that Mr. Cox's decision not to show him the police report was objectively unreasonable. Strickland, 466 U.S. at 688. Petitioner again relies on the fact that the police report notes Officer Planteric arrived at the scene at 12:53 a.m., whereas Officer Planteric testified that he arrived 7-10 minutes after he received a summons to the scene at "about 1:05." As discussed in the previous section, petitioner has not demonstrated that the twenty-minute time difference impeached Officer Planteric's entire testimony. Because Officer Planteric's testimony was generally consistent with the police report, it would have been reasonable for Mr. Cox to believe that the report could not be used to impeach Officer Planteric's testimony. As such, there was no impeachment material in the police report for Mr. Cox to show to petitioner. Petitioner has not sufficiently demonstrated that Mr. Cox's performance was deficient for not showing him the police report.

  Second, petitioner has not affirmatively proved he was prejudiced. Strickland, 466 U.S. at 693. Even if Mr. Cox had given petitioner the police report, his advice to petitioner to accept the plea agreement would have been the same. The police report, which was completed by two officers, provides substantial evidence supporting petitioner's guilty plea: petitioner admitted drinking beer before driving home, both officers observed that petitioner had bloodshot, watery eyes, slurred speech, and smelled of alcohol, that petitioner stumbled against his vehicle and failed three field sobriety tests, and his breath test revealed a BAC of .216. There is no "hidden defense" contained in the police report. Petitioner has not demonstrated that there is a reasonable probability that he would not have pleaded guilty and instead would have insisted on going to trial if he had received the report prior to his plea. Hill, 474 U.S. at 59.

  Petitioner has not met his burden under the Strickland/Hill test. He is not entitled to federal habeas corpus relief on this claim.

  3. Failure to Use and Advise of Impeachment Evidence

  Petitioner claims that Mr. Cox provided ineffective assistance of counsel and deprived him of a defense by failing to impeach Officer Planteric and failing to advise petitioner that Officer Planteric committed perjury.*fn9

   To the extent petitioner claims that Mr. Cox failed to use the police report at the preliminary hearing to impeach Officer Planteric's testimony, his claim is not cognizable in a federal habeas proceeding because petitioner waived any pre-plea ineffective assistance of counsel claims when he entered his plea. "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charge, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973).

   To the extent petitioner claims that Mr. Cox's performance was deficient because he did not advise petitioner that Officer Planteric committed perjury, his claim fails because he cannot meet the Strickland/Hill test.

   To establish his ineffective assistance of counsel claim, petitioner must show that Mr. Cox's advice to accept the plea agreement was not within the range of competence of attorneys in criminal cases, and that there is a reasonable probability that, but for counsel's alleged withholding of impeachment evidence, he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 58-59. Based on the record, it cannot be said that Mr. Cox acted unreasonably. The evidence does not support a finding that Mr. Cox had any impeachment evidence to withhold. The police report and Officer Planteric's testimony were generally consistent and provided sufficient evidence of petitioner's guilt. As discussed in previous sections, there is insufficient evidence to support petitioner's contention that Office Planteric did, in fact, commit perjury.

   In addition, petitioner has not shown that Mr. Cox knew that Officer Planteric committed perjury at the preliminary hearing. As "proof that Mr. Cox knew that Officer Planteric did not administer any of the sobriety field tests and had committed perjury, petitioner offers the following preliminary hearing testimony:

Mr. Cox: If we were to subpeona into this courtroom those radio tapes, would they show that prior to your arrest, that Officer Graham had stopped the defendant for a suspected drunk driving?
Officer Planteric: I don't believe so.
   Petitioner alleges that this "threat" of subpeoning the radio tapes caught Officer Planteric in a lie about his involvement in the field sobriety tests. However, petitioner's evidence does not support either his contention that Officer Planteric actually committed perjury or that Mr. Cox knew that Officer Planteric's testimony was perjurious.

   Because the record does not support petitioner's contentions that Officer Planteric committed perjury and that Mr. Cox knew and withheld it, petitioner cannot demonstrate that Mr. Cox acted unreasonably by not advising petitioner that impeachment evidence existed and could be used in his defense. Strickland, 466 U.S. at 688.

   Under Strickland, to demonstrate prejudice from counsel's failure to advise him of a potential affirmative defense, petitioner must show that the affirmative defense likely would have succeeded at trial. See Hill, 474 U.S. at 59. Petitioner has not done so. Even if counsel had raised the defense that Officer Planteric's entire testimony was impeached, it likely would not have succeeded at trial because the evidence does not support the contention that Officer Planteric committed perjury. Based on the evidence in the record, petitioner cannot "affirmatively prove prejudice." Strickland, 466 U.S. at 693. Furthermore, petitioner has not demonstrated that there is a reasonable probability that, but for Mr. Cox's failure to advise him of impeachment evidence, he would not have pleaded guilty. Hill, 474 U.S. at 59. As stated in previous sections, Mr. Cox likely would have given petitioner the same advice to accept the guilty plea based on the evidence in the police report. Petitioner has not demonstrated that he would have disregarded such advice and insisted on going to trial.

   Because petitioner cannot meet the Strickland/Hill standard, he is not entitled to federal habeas corpus relief on this claim.

   4. Failure to Investigate the Validity of Prior Conviction

   Petitioner claims that Mr. Cox provided ineffective assistance of counsel for failing to investigate and ascertain the invalidity of the prior conviction. Petitioner asserts counsel should have discovered that the 1982 burglary conviction was invalid and should have advised him that the prior felony strike enhancement was unconstitutional.

   To the extent petitioner is challenging the constitutionality of his 1982 burglary conviction, his claim is barred under Lackawanna, 532 U.S. at 403-04 ("If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained.").

   To the extent that petitioner's claim is not barred under Lackawanna, he cannot meet his burden under the Strickland test.

   Petitioner has not demonstrated that Mr. Cox's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. The record shows that court documents relating to the 1982 conviction were entered into evidence at the preliminary hearing on the current conviction, and that at the 1996 plea hearing Mr. Cox and the district attorney stipulated to a factual basis for petitioner's admission to the 1982 conviction. This was routine because at the time of petitioner's present conviction in 1996, the 1982 conviction was no longer open to direct or collateral attack and could reasonably be regarded as conclusively valid. See Lackawanna, 532 U.S. at 403 (holding that "once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid."). See also Garcia v. Superior Court, 14 Cal.4th 953, 956 (1997) (in current prosecution, criminal defendant may only challenge a prior conviction on the basis of denial of counsel). Without more, it cannot be said that Mr. Cox's failure to investigate a "conclusively valid" conviction was unreasonable. See Strickland, 466 U.S. at 688-89 (court must indulge strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance). See also Ray v. Kernan, 1995 WL 733671, No. C-94-4019, p.2 (N.D. Cal. 1995) ("Furthermore, federal courts have attributed no constitutional significance to the failure of counsel, representing a defendant who entered a plea of guilty on the enhancement count of an indictment, to pursue an independent inquiry into the validity of the prior conviction.") (citing Moore v. Estelle, 526 F.2d 690, 697 (5th Cir.), cert. denied, 426 U.S. 953 (1976)).

   Furthermore, petitioner cannot demonstrate that he was prejudiced. Strickland, 466 U.S. at 693. Even if Mr. Cox had investigated the validity of his prior conviction, he likely would have found the charge valid and given petitioner the same advice to admit that he suffered the prior conviction of burglary under Penal Code § 459.*fn10

   Petitioner contends that Mr. Cox's performance was deficient because he should have known that petitioner could not be charged with having suffered a prior strike for "residential burglary," which is defined by statute as burglary in the first degree, because he pleaded guilty in 1982 to second degree burglary.

   Petitioner's claim is without merit. As previously discussed in the context of petitioner's claim that his sentence was unconstitutional, under California law, a second degree burglary conviction can be considered a prior strike and used to enhance a sentence where, as here, the record supports a finding that the burglary occurred in an inhabited dwelling place. See Carr, 204 Cal.App.3d at 778. There is ample evidence in the record, including court documents related to the 1982 burglary and petitioner's own admission in this matter, that demonstrates the 1982 burglary occurred in an inhabited dwelling house.

   In sum, even if Mr. Cox had investigated the prior strike conviction, he likely would have concluded that it was valid and would have advised petitioner to accept the plea agreement. Petitioner has failed to demonstrate that, but for counsel's alleged errors, he would have ignored Mr. Cox's advice to plead guilty and would have proceeded to trial, Hill, 474 U.S. at 59.

   Petitioner is not entitled to a federal habeas corpus relief on this claim.

   C. Ineffective Assistance of Appellate Counsel

   Petitioner claims that his appellate counsel, Ms. Sandra Uribe, provided ineffective assistance of counsel by failing to fully present all of petitioner's claims on appeal. Specifically, he alleges that she failed to challenge the prior conviction, failed to discover that the present conviction was not supported by the evidence, and failed to pursue the issue of the alleged improper sentence enhancement.

   The proper standard for evaluating petitioner's claim of ineffective assistance of appellate counsel is the Strickland standard See Smith v. Robbins, 528 U.S. 259, 285 (2000). Petitioner must show that Ms. Uribe's performance was objectively unreasonable and that he suffered prejudice as a result, i.e., that there is a reasonable probability that, but for Ms. Uribe's alleged errors, he would have prevailed on appeal. See id. Petitioner must overcome the strong presumption that Ms. Uribe's performance falls within the wide range of reasonable professional assistance and that, under the circumstances, her failure to challenge his prior and present conviction, as well as the validity of the sentencing enhancement was not sound strategy. See Strickland, U.S. 466 U.S. at 688-89; Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). 1. Failure to Challenge Prior and Present Convictions

   Petitioner complains that Ms. Uribe's performance was deficient because the only issues she raised on his appeal were that petitioner was not notified of the 80% service requirement before making his plea, and that the sentencing judge did not consider exercising his discretion under Penal Code § 1385.

   To the extent that petitioner is challenging the validity of his 1982 burglary conviction, his claim is barred under Lackawanna, 532 U.S. at 403-04 (on a federal habeas corpus petition, defendant generally may not challenge a conviction that is later used to enhance a criminal sentence).

   To the extent that petitioner's claim is not barred under Lackawanna, he failed to meet his burden under Strickland.

   Petitioner argues that Ms. Uribe's failure to raise issues challenging the validity of his past and present convictions constitutes ineffective assistance under Anders v. California, 386 U.S. 738 (1967). Anders requires counsel to support her client's appeal to the best of her ability. It does not, however, require counsel to pursue frivolous claims. See Anders, 386 U.S. at 744. Appellate counsel is ineffective if she unreasonably fails to discover non-frivolous issues and does not file a merits brief raising them. See Delgado v. Lewis, 223 F.3d 976, 980 (9th Cir. 2000). The proper standard for reviewing such a claim is that enunciated in Strickland, See Smith, 528 U.S. at 285. Petitioner must show that Ms. Uribe was objectively unreasonable in failing to raise non-frivolous issues in a merits brief on appeal and that there is a reasonable probability that, but for Ms. Uribe's unreasonable failure to file a merits brief, he would have prevailed on appeal. See id.

   Ms. Uribe raised only sentencing issues on appeal because petitioner waived his right to appeal, except as to sentencing error. See Resp. Ex. 2, RT, 01/22/96, pp. 8-9; Marin County Guilty Plea form, 01/22/96, p. 138. When the trial court denied petitioner's certificate of probable cause to appeal, it stated that the "only viable issue on appeal is sentencing error." See Resp. Ex. 2, at RT, 05/02/26, p. 45. Ms. Uribe could only argue sentencing error and was not permitted to raise issues challenging the validity of his prior or present conviction. Therefore, petitioner cannot show that Ms. Uribe's performance was deficient for omitting non-sentencing issues.

   Petitioner also cannot show he was prejudiced by Ms. Uribe's decision to omit challenging his past and present conviction. See Smith, 528 U.S. at 285. Because he waived his right to appeal on grounds other than sentencing error, an appeal raising non-sentencing issues would have failed under California law.

   Petitioner failed to meet his burden under Strickland; he is not entitled to federal habeas corpus relief on this claim.

   2. Failure to Challenge Strike Enhancement

   Petitioner claims that Ms. Uribe provided ineffective assistance of counsel by failing to raise the issue that petitioner was improperly sentenced to the strike enhancement.

   Petitioner bears the burden of demonstrating that, under the circumstances, Ms. Uribe's decision not to challenge the length of his sentence on this ground was objectively unreasonable, and that he was prejudiced as a result. See Strickland, U.S. 466 U.S. at 687-88.

   Petitioner was sentenced to the upper term of three years for pleading guilty to count one, which was doubled to six years based on his admission of a prior felony conviction. The record supports the court's decision to double petitioner's sentence based on the strike enhancement. As discussed in the previous section relating to proper use of the strike enhancement, substantial evidence in the record indicates that the strike enhancement pertained to counts one and two against petitioner, and that the enhancement was not dismissed as to count one. Other than petitioner' unfounded allegation that the court records were altered, nothing in the record indicates that the enhancement was improperly applied.

   Appellate counsel does not have a constitutional duty to raise every issue requested by the defendant and may weed out weak issues. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997). Ms. Uribe would have had an insufficient factual basis to support the claim that the enhancement was improper. Based on the evidence as a whole, it cannot be said that Ms. Uribe's decision not to challenge application of the strike enhancement fell outside the wide range of reasonable professional assistance. Strickland, U.S. 466 U.S. at 688-89.

   In addition, petitioner has not shown that he suffered any prejudice as a result. Strickland, U.S. 466 U.S. at 693. The record provides substantial evidence that the strike enhancement was properly applied to count one. Even if Ms. Uribe had raised the issue, the state courts likely would have rejected it. Petitioner has failed to demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, U.S. 466 at 694.

   Petitioner is not entitled to a federal habeas corpus relief on this claim.

   D. Plea Was Not Voluntary and Intelligent

   Petitioner claims that his guilty plea was not made voluntarily and intelligently because he was coerced by the use of his prior felony conviction and by statements made by his trial counsel.

   A guilty plea that is not made voluntarily and knowingly violates due process. See Boykin v. Alabama, 395 U.S. 238, 243, n.5 (1969). Agents of the state may not produce a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant. See Brady v. United States, 397 U.S. 742. 750 (1970). Nor is coercion by a defendant's own attorney or other third party acceptable. See Iaea v. Sunn, 800 F.2d 861, 866-67 (9th Cir. 1986). Voluntariness is determined by examining all of the relevant circumstances. Brady, 397 U.S. at 749. But of particular importance is that defendant enter a guilty plea with sufficient awareness of the relevant circumstances and likely consequences, see id. at 748, and that he understand the law in relation to the facts, see McCarthy v. United States, 394 U.S. 459, 466 (1969).

   1. Coercion By Use of Prior Felony Conviction & Withheld Evidence

   Petitioner alleges that the prosecutor and his defense counsel conspired to coerce him to plead guilty by "the content of the charges and the way they were charged" and "the improper advisement and deliberate withholding of factual evidence favorable to the defense." Pet, p. 67. Petitioner claims that the prosecutor and his defense counsel had collective knowledge that the allegation of a prior "residential burglary" was invalid, yet they used the invalid charge to coerce him to plead guilty to driving under the influence of alcohol. He also maintains that he was coerced by his counsel's withholding of impeachment evidence.

   Petitioner's claim fails for several reasons. First, there is no evidence that the prosecutor and defense attorney conspired to coerce petitioner. Second, the record does not support petitioner's contention that he could not be charged with having suffered a prior conviction for burglary of an inhabited dwelling place. As discussed in previous sections, petitioner admitted that the 1982 burglary occurred in an inhabited dwelling place and documents from his 1982 conviction support the charge. Third, petitioner's contention that counsel withheld evidence of perjury to the detriment of his defense is not substantiated by the record; there is insufficient evidence that Officer Planteric committed perjury. Fourth, nothing in the record impeaches petitioner's plea or suggests that his admissions in open court were anything but truthful and voluntary.

   Petitioner pleaded guilty to driving under the influence and admitted to the prior felony burglary charge in open court. See Resp. Ex. 2, RT 01/22/96, pp. 10-11. At the plea hearing, he was advised of his constitutional rights and as each right was read to him, he responded affirmatively that he understood and that it was his intent to give up each of those rights. See id., pp. 6-9. He was advised of the direct consequences of his plea, including the maximum sentence, parole, and restitution. See id., pp. 4-6.

   In addition, petitioner signed two guilty plea forms that indicate his decision to plead guilty and to admit to the prior conviction was made freely and voluntarily and that he knowingly and intelligently waived certain rights as to the present and prior convictions. See Resp. Ex. 1, 01/22/96 Marin County Guilty Plea Waiver Form, 01/22/96 Superior Court of Marin County Plea of Guilty/Nolo Contendere, pp. 137-138.1.

   At the plea hearing, petitioner stated in open court that he had read and understood the contents of the forms:

Court: All right. Mr. Baldocchi, I have here two guilty plea waiver forms: One, a long, pink form that's used in driving under the influence cases, and another felony plea form. Are these your initials in the right-hand margins on the front and the back and your signature on the back of each?
Pet.: Yes, they are, your Honor.
Court: Have you read each of those forms over completely?
Pet.: Yes.
Court: Do you understand them all?
Pet.: I do.
Court: Have you discussed these forms and the consequences of your signing them with your attorney?
Pet.: Yes, your Honor.
Court: Do you have any questions of the Court regarding either of these forms or the consequences of your signing them?
Pet.: No, your Honor.
See Resp. Ex. 2, RT 01/22/96, pp. 3-4. Judge John Sutro, Jr. signed the forms indicating that he accepted petitioner's plea and found it was made knowingly, intelligently, and voluntarily.

   Representations made at a plea hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceeding. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). "Solemn declarations in open court carry a strong presumption of verity." Id.

   Petitioner cannot overcome this presumption. Petitioner merely states that he felt "he really had no alternative. It was the cops word against his. He really couldn't take the chance of going to trial, and probably losing, due to the lack of evidence to present a defense." Pet., p. 79. In effect, petitioner's guilty plea was based on the weight of the evidence against him and was not "induced by promises or threats which deprive it of the nature of a voluntary act" that would deem the plea void. Iaea, 800 F.2d at 866 (quoting Machibroda v. United States, 368 U.S. 487, 493 (1962)). He was properly advised of his rights and the relevant consequences of his plea, and there is nothing in the record to overcome the presumption that he pleaded voluntarily and intelligently.

   Petitioner has not demonstrated that his plea was coerced; he is not entitled to federal habeas corpus relief on this claim.

   2. Coercion By Trial Counsel's Statements

   Petitioner alleges that his trial counsel, Mr. Cox, deprived him of his "free will" and intimidated him by allegedly stating:

Look, if you go to trial, you are going to lose. It's the cops word against yours. A jury will believe the cop. Don't `piss this judge off/ or you will get the six years. Look how defiant you are, standing so straight and stiff, you know you are a manic depressive, and one day you are going to commit suicide. Your only hope is to admit the prior and plead guilty to the D.U.I., check into that rehab, and I'll argue for Probation. The Judge won't send you to prison if you're in that rehab. I will try again to talk to Heubach [Marin County Court] (Commissioner) and wait for an offer from the D.A.
Pet., p. 76 (emphasis in original).

   The alleged statements are neither confirmed nor denied in the record. But even assuming that Mr. Cox made the statements, they do not amount to coercion. Although the alleged statements may be inappropriate, there is no evidence that Mr. Cox exerted mental coercion "overbearing the will of the defendant." Brady, 397 U.S. at 750. "Mere advice or strong urging by [counsel or] third parties to plead guilty based on the strength of the state's case does not constitute undue coercion." Iaea, 800 F.2d at 867.

   Petitioner is not entitled to federal habeas relief on this claim because he failed to present sufficient evidence that Mr. Cox made any threats, misrepresentations, or other improper promises to rebut the "strong presumption of verity" of his guilty plea. See Blackledge, 431 U.S. at 74.

   IV. EVIDENTIARY HEARING

   In the event the court does not vacate petitioner's conviction, he requests an evidentiary hearing "to review this case in it[]s full entirety." Pet., p. 108. Specifically, he contends that: (1) Karen Simpton of the Marin County Court Clerk's office will testify that her CJIS records properly show that it was the § 1170.12 enhancement, rather than the § 1203(e)(4) special allegation, that was dismissed on January 22, 1996; (2) Ms. Simpton, Brad Litchfield, and Joe Goff will testify that the probation officer made a statement at the sentencing hearing regarding petitioner's prior conviction for exhibiting a firearm that does not appear in the sentencing hearing transcript; and (3) Lynne Smith will testify as to the facts of the 1982 burglary of her residence.*fn11

   Under the AEDPA, a district court may not hold an evidentiary hearing on a claim for which the petitioner failed to develop a factual basis in state court unless the petitioner shows that: (1) the claim relies either on (a) a new rule of constitutional law that the Supreme Court has made retroactive to cases on collateral review, or (b) a factual predicate that could not have been previously discovered through the exercise of due diligence, and (2) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2).

   Tthe fact that an evidentiary hearing is permitted because a prisoner was able to meet the requirements of § 2254(e)(2) does not mean that a hearing is required, however. Downs v. Hoyt, 232 F.3d 1031, 1041 (9th Cir. 2000). The district court retains discretion whether to hold such an evidentiary hearing. See id. (noting that expansion of the record may obviate the need for a hearing). Thus, even if the evidentiary hearing is permitted under § 2254(e)(2), it is not required if the issues can be resolved by reference to the state court record. Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998).

   Such is the case here. The first "dispute" raised by petitioner can be resolved by reference to the record. When the record is reviewed as a whole, numerous court documents show that the § 1170.12 enhancement was not dismissed. Additional testimony by Ms. Simpton on what her CJIS records show is not necessary. As to the second issue, petitioner contends that three witnesses should be called to testify as to a statement made by the probation officer at the sentencing hearing that does not appear in the sentencing hearing transcript. Petitioner alleges the probation officer said:

Your honor, I would like to begin by pointing out that in 1982, the defendant was convicted of P.C. § 417(b), where he showed up at Marin General Hospital and exhibited a shotgun to his girlfriend in a rude and threatening manner.
Pet, p. 98.

   Petitioner has not demonstrated how his assertion, even if true, would affect the validity of his guilty plea or sentence. Even assuming the alleged factual dispute were resolved in petitioner's favor, petitioner would not be entitled to relief. Resolution of this alleged factual dispute is irrelevant to this petition for writ of habeas corpus. Testimony on this issue is not necessary.

   Finally, petitioner requests testimony from Lynne Smith regarding the facts of the 1982 burglary. Ms. Smith lived with her husband and daughter at the residence where the 1982 burglary took place. According to petitioner, she would testify that "she knew petitioner had a key to her home, she did not give permission for him to be there, and she didn't believe the police's story of how the back window was `pried-open.'" Pet., p. 110.

   Lackwanna bars petitioner's claim attacking the constitutionality of his 1982 conviction in this petition. But even if Lackawanna did not bar petitioner's claims relating to his 1982 conviction, he would not be entitled to an evidentiary hearing. Ms. Smith's proposed testimony is consistent with evidence in the record that petitioner's 1982 burglary took place in an inhabited dwelling house in violation of Penal Code § 459. Ms. Smith's testimony would be redundant and is not necessary.

   Petitioner has not alleged any facts that, if proven, would entitle him to relief. Petitioner's request for an evidentiary hearing is DENIED. CONCLUSION

   After a careful review of the record and pertinent law, the court is satisfied that the petition for writ of habeas corpus must be DENIED.

   The clerk shall enter judgment in favor of respondent, terminate all pending motions (see e.g., Doc. #53), and close the file.

  SO ORDERED.

   JUDGMENT IN A CIVIL CASE

   () Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

   (X) Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

   IT IS SO ORDERED AND ADJUDGED that judgment be entered in favor of respondent.


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