United States District Court, N.D. California
April 15, 2004.
STEPHEN EYRE BALDOCCHI, Petitioner,
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)
Petitioner seeks a federal writ of habeas corpus under
28 U.S.C. § 2254, challenging the validity of his guilty plea in the Marin
County Superior Court of the State of California. He claims that his plea
was coerced and that he received ineffective assistance of counsel. The
court dismissed petitioner's initial habeas corpus petition finding that
although the claims therein were cognizable under § 2254, the
petition contained unexhausted as well as exhausted claims. After
petitioner fully exhausted his state court remedies, the court reinstated
the petition but dismissed those claims that challenged petitioner's
prior felony conviction. Respondent filed an answer and petitioner filed
a traverse in response. STATEMENT OF THE FACTS
On June 21, 1995, at approximately 1:05 a.m., a highway patrol officer
stopped petitioner's vehicle based on his observations that the vehicle
was weaving and speeding and lacked a license plate light in violation of
the California Vehicle Code. When the detaining officer spoke to
petitioner, who was driving the vehicle, he noticed that petitioner's
eyes were bloodshot and watery, his breath smelled of alcohol, and his
speech was slow and slurred. The officer then contacted a second highway
patrol officer to investigate a possible driving under the influence
violation. About seven to ten minutes later, the second highway patrol
officer arrived on the scene and questioned petitioner. Petitioner
admitted he had been drinking beer before he attempted to drive himself
home. The officer conducted a series of field sobriety tests, all of
which petitioner failed. Petitioner was given a breath test that showed
petitioner's blood alcohol content ("BAG") level was. 216. Petitioner was
arrested based on probable cause that he had been driving under the
influence of alcohol. Petitioner submitted to a blood test, which
resulted in a finding that his BAC was. 23. A subsequent search of
petitioner's vehicle revealed a half-empty 40-ounce bottle of beer.
On June 29, 1995, the Marin County District Attorney charged petitioner
in a five-count complaint. See Respondent's Exhibits in Support
of Amended Answer ("Resp. Ex."), Ex. 1, pp. 1-5. Counts one and two
charged petitioner with two felonies: driving under the influence of an
alcoholic beverage within seven years of three other such convictions
and, driving under the influence of alcohol with a blood alcohol level
of. 08% or above within seven years of three other driving under the
influence convictions (Cal. Veh. Code § 23152(a)/§ 23175 and
§ 23152(b)/§ 23175).*fn1 A strike enhancement was charged as to
counts one and two pursuant to California Penal Code §§ 1170.12(a),
(b), and (c) based on petitioner's prior felony burglary conviction in
November 1982 (Cal. Pen. Code § 459). Counts three through five
charged petitioner with three misdemeanor counts of driving with a revoked or suspended license (Cal. Veh. Code §§ 14601.2(a),
14601.5(a), 14601.l(a)). The complaint also included an allegation that
petitioner had been convicted of prior felonies within the meaning of
California Penal Code § 1203(e)(4) relating to ineligibility of
probation, including three counts of possessing fraudulent checks (Cal.
Pen. Code § 475); burglary (Cal. Pen. Code § 459); exhibiting a
firearm in the presence of a police officer (Cal. Pen. Code §
417(b)); and grand theft (Cal. Pen. Code § 487.1).
As part of a plea agreement on January 22, 1996, petitioner pleaded
guilty to count 1, the charge of driving under the influence of alcohol
within seven years of three other driving under the influence
convictions, and he admitted he suffered a prior conviction of burglary
of an inhabited dwelling house. See Resp. Ex. 2, Reporter's
Transcript ("RT") 01/22/96, pp. 10-11. In exchange for the plea, the
prosecutor dismissed counts 2-5, and the § 1203(e)(4) allegation
relating to probation ineligibility. Petitioner waived appeal except for
sentencing error. See id. at pp. 8-9.
On March 4, 1996, Marin County Superior Court Judge John Sutro, Jr.,
sentenced petitioner to the upper term of three years in state prison,
which was doubled to six years based on the prior serious felony strike
enhancement under Penal Code § 1170.12(a), (b), and (c).
See Resp. Ex. 2, RT 03/04/96, p. 32.
The Marin County Superior Court denied petitioner's application for a
certificate of probable cause to appeal after a plea of guilty.
See Resp. Ex. 2, RT 05/02/96, pp. 45-47.
In January 1997, the Court of Appeal denied his petitions for mandate
and writ of habeas corpus. See Resp. Ex. 4, 5 (Cal. Ct. App.,
Nos. A076978, A076977, Jan. 28, 1997).
Petitioner then filed a petition for writ of mandate in the California
Supreme Court, which transferred it to the Court of Appeal with
directions to deny the petition if it was substantially identical to a
prior petition. See Resp. Ex. 6 (Cal. Supr. Crt., No. S059202,
Feb. 24, 1997). The Court of Appeal summarily denied the petition on
March 4, 1997. See id. (Cal. Ct. App., No. A077400, Mar. 4,
On March 25, 1997, the Court of Appeal affirmed the judgment of the
Marin County Superior Court. See Resp. Ex. 7 (Cal. Ct. App.,
No. A074247, Mar. 25, 1997) (unpub. op.). On April 30, 1997, the California Supreme Court denied petitioner a
writ of habeas corpus based on the merits. See Resp. Ex. 9,
(Cal. Supr. Crt., No. S059200, Apr. 30, 1997).
Over four-and-a-half years later, on January 18, 2002, petitioner filed
another writ for habeas corpus in the California Supreme Court raising
additional grounds for relief. The Court denied the petition citing
In re Clark, 5 Cal.4th 750 (1993); In re Robbins,
18 Cal.4th 770, 780 (1998); and In re Wessley W.,
125 Cal.App.3d 240, 246 (1981). See Resp. Ex. 12, (Cal. Supr. Crt., No.
S103721, Jul. 17, 2002) (en banc).
On March 13, 1998, petitioner filed a petition for a federal writ of
habeas corpus under 28 U.S.C. § 2254. Petitioner challenged the
validity of his guilty pleas in his 1996 conviction for felony driving
under the influence and in his 1982 conviction for burglary that was used
to enhance his 1996 sentence. The court found that, when liberally
construed, the claims therein were cognizable under § 2254, but
because the petition contained both exhausted and unexhausted claims, the
court dismissed the petition with leave for petitioner to inform the
court whether he would either proceed with the sole exhausted claim (his
claim that his 1996 plea was invalid because he was not fully advised of
his parole eligibility), or voluntarily dismiss the petition so he may
exhaust state remedies as to his unexhausted claims. See Apr.
26, 1999, Order, pp. 2-4 (citing Rose v. Lundy, 455 U.S. 509,
When petitioner failed to elect an option after three orders from the
district court directing petitioner to choose between the two available
options, the court dismissed his petition without prejudice.*fn2 See
Dec. 03, 1999, Order, p. 1. The Ninth Circuit affirmed. See
Baldocchi v. Terhune, No. 00-16638, (9th Cir. Nov. 5, 2001)
But two years later, the Ninth Circuit remanded the case to this court
for reconsideration in light of two developments subsequent to the
district court's decision: (1) petitioner had now exhausted his state
remedies, and (2) the Ninth Circuit decided several cases that were
potentially relevant to the issues at hand. Baldocchi v.
Terhune, No. 00-16638, slip op., p. 2 (9th Cir. Mar. 3, 2003) (mem.) (citing Kelly v.
Small 315 F.3d 1063 (9th Cir. 2003); Ford v. Hubbard
305 F.3d 875 (9th Cir. 2002), opinion amended and superceded on denial of
rehearing, 330 F.3d 1086 (2003), and cert. granted sub.
nom., Pliler v. Ford, 124 S.Ct. 981 (2004) (mem.); and
James v. Pliler, 269 F.3d 1124 (9th Cir. 2001)).
Following remand, the court reinstated petitioner's now-fully exhausted
petition, but dismissed his claims challenging the validity of his 1982
felony burglary conviction used to enhance his 1996 sentence based on the
Supreme Court's decision in Lackawanna County Dist. Attorney v.
Coss, 532 U.S. 394, 403-04 (2001) (state prisoner may not attack in
federal habeas proceedings the constitutionality of a prior conviction
used to enhance a later sentence). See May 21, 2003, Order, pp.
4-5. The district court denied petitioner's motion for reconsideration.
See July 16, 2003, Order, p. 2 (citing Harper v. Virginia
Dep't. of Taxation, 509 U.S. 86, 94-99 (1993)).
Now before the court are petitioner's claims challenging the
constitutionality of his guilty plea and sentence in his 1996 felony
conviction for driving under the influence of alcohol within seven years
of three other such convictions. Petitioner requests that his conviction
be vacated, or in the alternative, that he be allowed to withdraw his
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
II. CLAIMS DENIED ON THE MERITS
In petitioner's initial petition for a writ of habeas corpus, which the
California Supreme Court denied on the merits in 1997, he claims that his
plea was invalid because it was made without his knowledge of the
consequences of a prior felony strike conviction, and that his defense
counsel rendered ineffective assistance of counsel when he failed to
advise petitioner of the direct consequences of his guilty plea.
Petitioner specifically claims that he should be allowed to withdraw
his guilty plea because he was not aware at the time he made the plea
that the prior felony strike conviction required him to serve a minimum
of 80% of his sentence before he became eligible for parole. He claims
that because neither the court nor his counsel notified him of the 80%
service rule, his plea was made in violation of his due process rights.
"A plea of guilty is voluntary only if it is entered by one fully aware
of the direct consequences of his plea." Torrey v.
Estelle, 842 F.2d 234, 235 (9th Cir. 1988) (internal citations
omitted) (emphasis in original). This requires that a defendant be
advised of the range of allowable punishment that will result from his
plea. See id. However, a court need not advise a defendant of
"all the possible collateral consequences." Id. "The
distinction between a direct and collateral consequence of a plea turns
on whether the result represents a definite, immediate and largely
automatic effect on the range of the defendant's punishment."
Id. at 236 (internal citations omitted). Here, petitioner was advised that by pleading guilty he faced a maximum
sentence of up to three years in state prison, which could be doubled to
up to six years because of the strike allegation. He was also advised
that upon release from prison he faced a mandatory period of parole.
These "direct" consequences constituted part of the "range of allowable
punishment" and were definite to result from his plea.
On the contrary, the date a defendant becomes eligible for parole
relates to the time at which the sentence imposed may be reduced
and is not definite to occur. See Carter v. McCarthy,
806 F.2d 1373, 1375 (9th Cir. 1986). "Early release is purely discretionary
and provides a benefit to the prisoner a reduction in the period of
confinement." Id. See also Torrey, 842 F.2d at 236 (time of
potential parole eligibility is not a certain result of a guilty plea,
but rather, depends upon the defendant's conduct and is purely
discretionary). Events that are not certain to occur, such as the date
one may be released on parole, are collateral consequences of a
Petitioner's claim fails because there is no violation of due process
where, as here, a defendant is not informed of a collateral consequence
of his plea. See Torrey, 842 F.2d at 236.
Petitioner's claim of ineffective assistance of counsel also fails
because he cannot prove that his trial counsel's alleged failure to
advise him of the 80% service rule constituted deficient performance and
that the deficient performance prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). To demonstrate deficient
performance, petitioner must show that his counsel's representation "fell
below an objective standard of reasonableness." Id. at 688. He
cannot do so because "[f]ailure to advise [defendant] of a collateral
penalty cannot be held to be below an objective standard of
reasonableness." Torrey, 842 F.2d at 237.
In addition, petitioner has not shown that he was prejudiced. To
demonstrate prejudice, petitioner must show that, but for his counsel's
alleged error in not advising petitioner of the 80% service rule, he
would not have pleaded guilty and would have insisted on going to trial.
See Hill, 474 U.S. at 59. The record does not indicate that
petitioner placed any particular emphasis on the date he would become eligible for
parole in deciding whether to plead guilty. See id. at 60.
The record shows that the state courts' rejection of these claims was
not "contrary to, or involved an unreasonable application of, clearly
established [Supreme Court precedent]," or was based on an "unreasonable
determination of the facts in light of the evidence presented."
28 U.S.C. § 2254(d). Petitioner is not entitled to a writ of habeas corpus
based on these claims.
III. CLAIMS DENIED ON PROCEDURAL GROUNDS
Petitioner raised additional claims in his subsequent habeas corpus
petition which the California Supreme Court denied, but not on the
merits. These claims include: (1) petitioner's sentence was
unconstitutional, (2) his trial counsel, Mr. Frank Cox, provided
ineffective assistance of counsel, (3) his appellate counsel, Ms. Sandra
Uribe, provided ineffective assistance of counsel, and (4) his plea was
Respondent argues that these remaining claims were procedurally
defaulted because when the California Supreme Court denied petitioner a
writ of habeas corpus, it signaled that the petition was untimely and
that the Court lacked state custody jurisdiction. See Resp. Ex.
12, (Cal. Supr. Crt., No. S103721, Jul. 17, 2002) (en banc)
(citing In re Clark, 5 Cal.4th 750 (1993); In re
Robbing, 18 Cal.4th 770, 780 (1998); and In re Wessley
W., 125 Cal.App.3d 240, 246 (1981)). Respondent contends that
because the California Supreme Court's order provided "adequate and
independent" state procedural grounds for denying relief, all remaining
federal claims were procedurally defaulted.
The procedural default rule applies when there is "an adequate and
independent state law basis on which the state court can deny relief."
Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003),
amended on denial of rehearing en bane, (internal citation
omitted). A state procedural rule is "independent" when it is not interwoven with
federal law. Id. at 581. "To be deemed adequate, the state law
ground for decision must be well-established and consistently applied."
Id. at 583. Respondent has the ultimate burden of proving the
adequacy of the California state procedural bar and must demonstrate that
its courts have "regularly and consistently" applied the procedural bar.
Id. at 585-86.
Respondent has not met his burden. Nonetheless, petitioner is not
entitled to federal habeas corpus relief for the reasons discussed below.
A. Unconstitutional Sentence
Petitioner claims that his sentence was unconstitutional because a
strike enhancement was improperly used to double his sentence, and thus
his now-completed sentence was too long. Specifically, petitioner alleges
that the enhancement was charged only to count two, not to count one, and
that it was dismissed along with counts two through five pursuant to the
plea agreement. He also contends that his prior burglary conviction was
of the second degree and therefore, it was not one of the enumerated
statutory crimes that can be used as a strike enhancement.
Petitioner's claims challenge the length of his now fully-completed
sentence. Once a petitioner's sentence has expired, "some concrete and
continuing injury other than the now-ended incarceration or parole
some `collateral consequence' of the conviction must
exist if the suit is to be maintained." Spencer v. Kemna,
523 U.S. 1, 7 (1998). To the extent petitioner's claims affect only the
length of his expired sentence, they are moot. United States v.
Palomba, 182 F.3d 1121, 1123 & n.3 (9th Cir. 1999) (petitioner
has no standing to challenge an improper but completed sentence when only
the length of the sentencing is disputed).
To the extent petitioner has sufficiently alleged a "collateral
consequence" of the conviction to give him standing to challenge the
sentence, his claims fail for the following reasons. 1. Enhancement Applied to A Dismissed Charge
Petitioner relies on the Marin County Superior Court clerk's minute
records to support his contention that the strike enhancement was charged
only to count two. He points to the preliminary hearing minute report,
which lists, in part, the charges and allegations in the following
1. VC 23152(A)/23175:F1
2. VC 23152(B)/23175:F1 w/PC 1170.12(A): Fl w/PC
1203(E)(4): F4*fn4 . . .
COURT FINDS ALLEGATION NUMBER 1 IN COUNT 2 TO BE
COURT FINDS ALLEGATION NUMBER 2 IN COUNT 2 TO BE
See Resp. Ex. 1, Marin CJIS 10/30/95, pp. 40-41. The
arraignment minute report lists charges one and two in an identical
manner. See Resp. Ex. 1, Marin CJIS 11/20/95, p. 134.
As evidence to support his contention that the enhancement was
dismissed along with count two, petitioner offers the minute report
following his plea hearing, which states: "DEFENDANT ENTERED A PLEA OF
GUILTY TO COUNT 1. PRIOR CONVICTION(S) ADMITTED." . . . "ENHANCEMENT
STRICKEN" and a minute report from a subsequent pretrial hearing that
states: "ENHANCEMENT PREVIOUSLY STRICKEN, BUT NOT DELETED 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:
Count two alleges probation ineligibility
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
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
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
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
Court: Do you understand that, Mr. Baldocchi?
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
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
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.(a)(b)(c), Mr.
Baldocchi is sentenced to six years in state
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
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
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
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
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
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
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
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
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
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
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
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 §
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
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
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
To the extent that petitioner's claim is not barred under
Lackawanna, he failed to meet his burden under
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
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
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
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.
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?
Court: Do you understand them all?
Pet.: I do.
Court: Have you discussed these forms
and the consequences of your
signing them with your
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 its 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.
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
(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
IT IS SO ORDERED AND ADJUDGED that judgment be entered in
favor of respondent.