United States District Court, N.D. California
August 10, 2005.
CRAIG CLIFFORD BUSCH, Petitioner,
JEANNE S. WOODFORD, et al. Respondents.
The opinion of the court was delivered by: MARTIN JENKINS, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is Petitioner Craig Clifford Busch's
("Petitioner") petition for writ of habeas corpus ("Petition").
In May 2001, the Lake County Superior Court held a three-day
evidentiary hearing, at the conclusion of which the court
summarily denied the habeas petition. Having reviewed the moving
and responding papers including the supplemental materials
submitted by the parties, and for the following reasons set forth
herein, the petitioner's writ of habeas corpus is DENIED.
On the morning of February 2, 1997, Petitioner was angry with
George Steven Wilson ("victim") because the victim moved out of
Petitioner's ranch.*fn1 Petitioner told a number of people
that he had decided to kill the victim. On the night of February
2, 1997, the night of the victim's death, the victim was last seen in the company of Petitioner and
his companions. According to the companions, the victim's truck
got stuck in mud and the victim was forced to stay behind with
The victim was found dead near his truck, with three bullet
wounds in the back of his head. The location of the homicide was
a place Petitioner had previously declared a good spot to carry
out a murder. Petitioner was taken into custody. While
incarcerated, he told a jailhouse informant where he hid the
murder weapon, and a ballistics test later confirmed that the
weapon was used in the killing.
On May 12, 1997, the District Attorney of Lake County filed an
information against Petitioner, charging one count of first
degree murder, in violation of Cal. Penal Code § 187(a).
Petitioner was further charged with: (1) personally using a
firearm in the commission of the above offense, within the
meaning of Cal. Penal Code § 1203.06; (2) intentionally
inflicting great bodily injury on the victim, within the meaning
of Cal. Penal Code § 1203.075(a)(1); and (3) being armed in the
commission of the charged offense within the meaning of Cal.
Penal Code § 12022.5(a).
Petitioner entered a negotiated plea of guilty to a charge of
first degree murder. Pursuant to the plea agreement, the
enhancements were dismissed, and Petitioner's unrelated drug
charges and the pending perjury charges against his girlfriend
were not filed. Petitioner was subsequently sentenced to an
indeterminate prison term of 25 years-to-life.
STANDARD OF REVIEW
The Court may entertain a petition for a writ of habeas corpus
"on behalf of a person in custody pursuant to the judgment of a
State court only on the ground that he is in custody in violation
of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).
A petition for writ of habeas corpus is reviewed under the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
Williams v. Taylor, 529 U.S. 362, 399 (2000). The AEDPA
prohibits a federal district court from granting a petition
challenging a state conviction on the basis of a claim that was
reviewed on the merits in state court unless the ruling "was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States," or "was based on an
unreasonable determination of the facts in light of evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d).
Also, a district court must presume a state court's factual
findings are correct. 28 U.S.C. § 2254(e).
A district court may not grant the writ of habeas corpus simply
because the state court erroneously or incorrectly applied
clearly established federal law. Williams, 529 U.S. at 411.
Rather, the state court's "application must also be objectively
unreasonable." Id. Furthermore, a state court judgment arrived
at erroneously should only be overturned if the error had a
"substantial and injurious effect or influence in determining the
jury's verdict." Penry v. Johnson, 532 U.S. 782, 795 (2001).
Where the state court provides no rationale for its conclusion,
the state court decision does "not warrant the deference we might
usually apply," and the Court may independently review the claims
of the petition. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.
2000) (citing Delgado v. Lewis, 168 F.3d 1148, 1152-53 (9th
Cir. 1999)). The Court's review is not de novo, "but an
independent review of the record is required to determine whether
the state court clearly erred in its application of controlling
federal law. Only by that examination may we determine whether
the state court's decision was objectively reasonable."
Delgado, 223 F.3d at 982 (citation omitted).
I. Voluntariness of Guilty Plea
The test for determining the validity of a guilty plea is
"whether the plea represents a voluntary and intelligent choice
among the alternative courses of action open to the defendant."
Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citing North
Carolina v. Alford, 400 U.S. 25, 31 (1970)). A guilty plea is
unintelligent "if a defendant does not understand the charges
against him or the possible punishment he faces." Iaea v. Sunn,
800 F.2d 861, 866 (9th Cir. 1986). Furthermore, the plea is
deemed coercive and involuntary where a defendant is "induced by
promises or threats which deprive [the plea] of the nature of a
voluntary act." Id. (citation omitted).
A. Existing Mental Illness Did Not Invalidate Guilty Plea
Petitioner argues that his youthfulness, habitual drug use, and
traumatic head injuries made it extremely hard for him to make a
critical life decision in a "reasoned, intelligent manner"
regarding entry of his guilty plea. Respondent argues that Petitioner's
mental faculties were unimpaired when making his plea agreement.
The record reflects that two psychiatrists evaluated Petitioner
and found him sufficiently competent to stand trial. Dr. Rosoff
filed his psychiatric evaluation of Petitioner on March 26, 1997,
and found "no evidence of such clinical entities as mental
retardation, schizophrenia, mania, major depression, organic
brain damage or general anxiety." (Reporter Transcripts of State
Habeas Proceedings, attached to the Answer as Exhibit G ("RT
Ex. G") at 46; Dr. Rosoff's Psychiatric Evaluation of Craig
Busch, attached to the Answer as Exhibit J ("Ex. J") at 4.) On
that same day, Dr. Drury filed his psychiatric evaluation, which
concluded that Petitioner was "essentially free of major signs of
mental disorder, mental disease or psychiatric disease." (RT
Ex. G at 47; Dr. Rosoff's Psychiatric Evaluation of Craig Busch,
attached to the Answer as Exhibit K ("Ex. K") at 6.) He concurred
with Dr. Rosoff that there was "no evidence of clinical entities
such as mental retardation, organic brain damage, schizophrenia,
mania, major depression or impulsive control disorder." (RT Ex.
G at 48; Ex. K at 6.) Furthermore, Dr. Thompson, a forensic
psychiatrist retained by Petitioner for habeas corpus
proceedings, agreed with the findings of the first two
psychiatrists "that [Petitioner] did not show evidence of major
mental illness," and did not contend that Petitioner was
incapable of making a voluntary and intelligent plea. (RT Ex. G
at 31, 49.)
In Godinez v. Moran, the defendant was assessed by two
psychiatrists who concluded that he was competent to stand trial.
509 U.S. 389, 391 (1993). The trial court found that the
defendant understood the charges against him, was able to "assist
in his defense," and the plea was "freely and voluntarily" given.
Id. at 396. The Court rejected "the notion that competence to
plead guilty or to waive the right to counsel must be measured by
a standard that is higher than (or even different from) the
Dusky standard."*fn2 Id. at 398. The Court noted that a
trial court must satisfy itself that the plea was knowingly and
voluntarily made, but there is no higher standard of competence
required. Id. at 400. Therefore, the competency standard
required to plead guilty is no higher than that required to stand
trial. Miles v. Stainer, 108 F.3d 1109, 1112 (9th Cir. 1997)
(citing Godinez, 509 U.S. at 402 (1993)).
Given the factual similarity between Godinez and the present
case, the Court finds Petitioner was competent to plead guilty.
As in Godinez, the trial court reasonably relied on the
psychiatric evaluations in determining Petitioner was competent
to stand trial. Thus, as in Godinez, it was reasonable for the
trial court, in the habeas proceedings, to find that Petitioner's
competency to stand trial rendered him sufficiently competent to
Furthermore, Petitioner's allegations of habitual drug use are
insufficient to invalidate his plea. In Ybarra v. United
States, the court noted with approval an out-of-circuit
case*fn3 that concluded narcotics use by a defendant five
days before his guilty plea did not render the plea involuntary.
461 F.2d 1195, 1199 (9th Cir. 1972). The Ybarra court used this
reasoning to conclude that the defendant, although suffering from
withdrawal during arraignment, understood the nature of the
proceedings and "understood what he was doing when he pleaded
Here, Petitioner did not argue that he was under the influence
on the day he entered his plea or several days before; Petitioner
only claims that his history of drug use rendered him
incompetent. Therefore, like Ybarra and Edwards, it was
reasonable for the trial court, in the habeas proceeding, to find
that Petitioner's habitual drug use did not render his plea
Petitioner's claim that an existing mental illness rendered his
plea involuntary was not unreasonably denied by the trial court
in the habeas proceeding and the Court DENIES the writ of
habeas corpus on this ground.
B. Petitioner Did Not Have Sufficient Time to Consider Plea
Petitioner argues that the voluntariness of his plea was
undermined by an unreasonably short time frame for making a
decision of such magnitude. Specifically, Petitioner asserts that
he only had two hours to deliberate over the 25 years-to-life
plea agreement, which rendered his plea involuntary and unintelligent.*fn4 Petitioner also argues that his
subsequent affirmative responses in court are insufficient to
find that he understood the consequences of his plea or that he
had an opportunity to properly weigh his options. In support of
his argument, Petitioner contends that the court, "rather than
asking [Petitioner] exactly what he meant by that ambiguous
response," forced him to present an answer that did not express
Petitioner's current mental state. (Traverse ("Tra.") at 3.)
Specifically, Petitioner asserts that "[he] did not state
unambiguously that he had enough time to discuss his case with
counsel. His initial response to the court's question whether he
had enough time a tepid `I guess' showed [Petitioner's]
uncertainty whether he should enter that plea." (Id. at 2.)
Respondent states that Petitioner's argument is undermined by
Blackledge v. Allison, 431 U.S. 63, 74 (1977). In Blackledge,
the court held that findings made by the judge accepting the plea
"constitute a formidable barrier in any subsequent collateral
proceedings. Solemn declarations in open court carry a strong
presumption of verity." 431 U.S. at 74. The Court noted that
while a plea or sentencing proceeding record "is not invariably
insurmountable," it is an "imposing" barrier. Id.
In Petitioner's briefing to the Court, Petitioner failed to
cite, and the Court is unable to find, any case authority
supporting the novel argument that two hours is insufficient time
to deliberate over a plea. Under Blackledge, Petitioner's
declarations in open court*fn5 carried a strong presumption
of verity, and the trial court's finding that Petitioner fully
waived his constitutional rights, understood the nature and
consequences of his plea of guilty, and gave a free and voluntary
plea is reasonable. Petitioner's argument that his statements
were ambiguous and, therefore, not conclusive fails to surmount
the imposing barrier created when he entered a guilty plea under
oath.*fn6 However, even without considering Blackledge, Petitioner's
arguments are inherently flawed. It is well accepted that a
criminal defendant has "no constitutional right to [a] plea
bargain." Weatherford v. Bursey, 429 U.S. 545, 561 (1977).
Therefore, the prosecutor's time restraint was a legitimate
exercise of his power to "withdraw his consent to the bargain"
before the plea was accepted by the defendant or the court.
United States v. Savage, 978 F.2d 1136, 1138 (9th Cir. 1992).
In addition, it is noteworthy that Petitioner's confession
occurred prior to any plea negotiations, and under the assumption
that there would be no "benefit to his case in return for the
statement." (Pet. at 27.) Thus, Petitioner did not detrimentally
rely on a prosecutorial promise to plea bargain because he did
not provide the incriminating statement or any other information
to the government based on a promise to negotiate. Id.
Therefore, the trial court's finding that Petitioner's plea was
not coerced was reasonable.
In sum, Petitioner has failed to establish the two-hour time
frame he was given to accept the plea offer was constitutionally
deficient, and in any event, Petitioner has no constitutional
guarantee to a plea agreement. Accordingly, the Court DENIES
the habeas petition on this ground.
II. Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is cognizable
under the Sixth Amendment, which guarantees not only assistance
of counsel, but effective assistance of counsel. Strickland v.
Washington, 466 U.S. 686, 688 (1984). Due process requires a
judgment be overturned based on ineffective assistance of counsel
when "(1) trial counsel's performance fell below an objective
standard of reasonableness under prevailing professional norms
and (2) the defendant was prejudiced by the deficient
performance." Siripongs v. Calderon, 133 F.3d 732, 734 (9th
Cir. 1998) (citing Strickland, 466 U.S. at 691 (1984)).
Petitioner argues that his trial counsel was deficient for
following four reasons: (1) trial counsel's failure to
investigate the possibility of an existing mental defense; (2) an
economic conflict that created a conflict of interest; (3)
allowing Petitioner to give an incriminating statement; and (4)
general claim of ineffective assistance of counsel.
A. Failure to Investigate the Possibility of an Existing
Mental Illness Petitioner asserts that his trial counsel was deficient for
failing to investigate his potential mental defenses.*fn7
Respondent argues that Petitioner's trial counsel considered and
rejected "potential mental defenses in light of the overwhelming
evidence that [P]etitioner suffered from no disorder." (Ans. at
Petitioner's argument is without merit. Initially, Petitioner
relies upon Caro v. Woodford, where the court held that a
reasonably competent attorney is expected to investigate,
including applying for a court appointed expert, where evidence
suggests a client might have a mental problem. 280 F.3d 1247
(9th. Cir. 2002). In Caro, trial counsel failed to seek out an
expert to assess the extent of the defendant's brain damage.
Petitioner also relies upon Douglas v. Woodford, where the
court held that the duty to investigate "arises whenever some
evidence points to a potential mental defense, even though
counsel or the defendant may favor a conflicting defense, such as
an alibi." 316 F.3d 1079, 1085-86 (9th Cir. 2003)).
Neither Caro nor Douglas lend support to Petitioner. Here,
no sufficient evidence existed suggesting that Petitioner
suffered from any mental illness. To the contrary, all relevant
evidence two psychiatric evaluations and the personal
interaction between Petitioner and counsel led to the
conclusion that no mental defenses were applicable to
Petitioner's case. Moreover, an attorney has an obligation to
make reasonable investigations, but when an attorney decides not
to further investigate based on reasonable tactical evaluations,
his performance will not be constitutionally deficient.
Siripongs, 133 F.3d at 734. Petitioner's trial counsel relied
on Petitioner's claims of innocence and an alibi to establish
their strategy, and made a reasonable tactical decision not to
further investigate Petitioner's mental state because they
believed "it would have been inconsistent" with their theory of
the case. (Pet. at 11; RT Ex. G at 293.) Given these
considerations, the Court cannot find Petitioner's trial
counsel's performance fell below an objective standard of
B. An Economic Conflict of Interest
Petitioner alleges that his trial counsel was deficient for
allowing an economic conflict to develop and for notifying the
prosecution of counsel's intention to withdraw. Specifically, Petitioner asserts that the fee agreement with his attorney
created a economic conflict by pressuring him "into pleading in
order to spare his mother the added cost of trial." (Pet. at 25;
RT at Ex. G 166-67.) Respondent argues that a conflict of
interest neither existed nor adversely affected trial counsel's
The fee agreement required Petitioner's mother to sell her
property, with Petitioner's counsel taking a promissory note,
secured by a deed of trust against the property. Furthermore, the
fee agreement stated that Petitioner's mother would incur
pretrial fees of $40,000 and an additional $40,000 if the case
went to trial, with the understanding that no payments would be
required before trial.
The Court finds Petitioner's argument without merit. Petitioner
fails to cite any case law where a violation of the Sixth
Amendment resulted from an attorney properly asserting his
interest in payment for his services. Moreover, ineffective
assistance of counsel based on a conflict of interest must
establish "an actual conflict of interest that adversely
affected his lawyer's performance," rather than the mere
possibility of a conflict. Cuyler v. Sullivan, 446 U.S. 335,
348-50 (1980) (emphasis added).*fn8 "There is an actual,
relevant conflict of interest if, during the course of the
representation, the defendant's interests do diverge with respect
to a material factual or legal issue or to a course of action."
Id. at 356. Here, Petitioner's claim fails because his evidence
only "concluded that this fee agreement created a potential and
[not an actual] conflict of interest between Tulanian and his
client." (Pet. at 24; RT Ex. G 165.)
Petitioner also asserts that his trial counsel's attempt to
withdraw exposed the weakness of his case. In support of his
argument, Petitioner asserts that his trial counsel wrote a
motion documenting his belief that Petitioner's mother would not
pay his fees, and proceeded to serve a copy on the prosecutor. As
a result of counsel's actions, Petitioner's mother took steps to
fulfill the fee agreement and counsel never filed the motion in
Once again, Petitioner's argument is without merit. Petitioner,
once again, fails to cite any case law where a violation of the
Sixth Amendment resulted from an attorney's attempt to withdraw from a case. Even assuming, arguendo, that counsel was
objectively unreasonable for providing the prosecutor with notice
of his intent to withdraw, Petitioner has not established a
reasonable probability that such information would have led to a
different verdict (had the case gone to trial). See Strickland,
466 U.S. at 694.
Therefore, because Petitioner cannot show that the trial court
unreasonably denied relief on his ineffective assistance claim
based on conflict of interest or his counsel's attempt to
withdraw, the Court DENIES the writ of habeas on this ground.
C. Allowing Petitioner to Give an Incriminating Statement
Petitioner alleges that trial counsel was deficient for
permitting Petitioner to give a "self-incriminating statement
without some promise of benefit." (Pet. at 30.) Respondent argues
that Petitioner's trial counsel permitted Petitioner to make a
statement based on a reasonable strategic decision. Respondent
further alleges that Petitioner's trial counsel took "prudent
measures to limit any possible detriment resulting from
Petitioner's statement." (Ans. at 15.)
In a statement to the police, Petitioner admitted that he was
present during the murder, but denied that he killed the victim
or had any knowledge that the victim would be killed. Petitioner
further admitted moving the body after the fact and hiding the
murder weapon and gloves.
Petitioner's contention that "the statement weakened his
position at trial by locking him into a particular version of
events, by creating possible grounds for a felony-murder theory,
by subjecting his girlfriend to a perjury charge, and by
providing a motive for the killing" is without merit. (Ans. at
14.) In support of his argument, Petitioner relies upon Harris
By and Through Ramseyer v. Wood, where the court found counsel
deficient for allowing the defendant to give an incriminating
statement without any promise of benefit. 64 F.3d 1432 (9th Cir.
1995). In Harris, the court found that advising the defendant
to make a statement was part of the cumulative prejudicial
performance of counsel. Id. at 1438. The defendant admitted
shooting the victim, but no facts demonstrated that the
prosecution could establish a case without the incriminating
statement. Id. at 1435.
In the case at bar, in contrast to Harris, Respondent's
witnesses could establish Petitioner's participation in the murder prior to the statement.*fn9
Furthermore, the record demonstrates that his trial counsel had a
sound strategic reason for permitting Petitioner to make the
statement. Petitioner's trial counsel testified that "[t]he
bottom line is that without that statement that there would not
have been any need for further negotiations, that there would
have been no basis for dismissing any special allegation; and
there had to be some reason to consider that, and that was the
reason that this statement was offered." Moreover, the parties
agreed that the statement could not be used in the prosecutor's
case-in-chief, but could only be used in rebuttal if the
defendant offered testimony inconsistent with his
statement.*fn10 Therefore, unlike in Harris, the record
demonstrates that the prosecution could establish its case
without Petitioner's incriminating statement and trial counsel
had a sound strategic reason for permitting the statement.
Accordingly, the Court DENIES habeas relief on this ground.
D. General Ineffective Assistance of Counsel
Petitioner alleges that counsel was deficient in not
encouraging him to go to trial where he would have received a
better outcome. Petitioner relies, in large part, on the
statement given by Steve Wilson, Jr., who claimed that a
percipient witness, Dylan Bacon, had just identified Donovan as
the person who shot the victim. Petitioner asserts that this
evidence could have been used at trial to reduce his culpability
in the murder.
Despite Petitioner's assertion to the contrary, the Court finds
that Petitioner would likely not have gone to trial in light of
the overwhelming amount of evidence that pointed towards guilt,
including the government's witnesses and the murder weapon
itself. Given this evidence, it is unlikely that a reasonable
jury would have found Petitioner less culpable or returned a
verdict less stringent than first degree murder. For these
reasons, the trial court reasonably found that Petitioner's trial counsel was not ineffective, and the Court
DENIES habeas relief on this ground.
For the foregoing reasons, the petition for a writ of habeas
corpus is DENIED.
IT IS SO ORDERED.