Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

McCLOUD v. GIURBINO

United States District Court, S.D. California


September 16, 2005.

CHARLES LAWRENCE McCLOUD, Petitioner,
v.
G.J. GIURBINO, Warden, Respondent.

The opinion of the court was delivered by: LOUISA PORTER, Magistrate Judge

REPORT AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS
Charles Lawrence McCloud, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, raising four grounds for relief. The Court has considered the Petition, Respondent's Answer and Memorandum of Points and Authorities, Petitioner's Traverse and Memorandum of Points and Authorities, and all supporting documents submitted by the parties. Based upon the documents and evidence presented in this case, and for the reasons set forth below, the Court recommends that the Petition be DENIED and the case be dismissed with prejudice.

I. Factual Background

  This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Parke v. Baley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness). Petitioner has not attempted to rebut the factual findings made by the state court. Therefore, the following facts are taken from the California Court of Appeal opinion in People v. McCloud, No. D035776, slip op. (Cal.Ct.App. June 18, 2002):

In the early morning of November 25, 1999, San Diego Police Officer Benjamin MacBeth was on patrol near Texas Street and El Cajon Boulevard. MacBeth at that time observed McCloud, in a vehicle, run a red light. MacBeth activated his emergency lights and pursued McCloud until McCloud halted. While MacBeth was calling in the license plate numbers, McCloud sped off.
As MacBeth again pursued McCloud, he observed McCloud run through one stop sign and then past a second stop sign and crash into a telephone pole. McCloud tried to get his car moving, and when he failed, he ran off on foot. Ignoring MacBeth's commands to stop, McCloud ran to the front yard of a house, where he threw something away. McCloud then fell into some bushes and was arrested.
A witness had seen McCloud throw away a small chrome semiautomatic handgun. The witness directed police officers to the location, where the police recovered a chrome-plated semiautomatic handgun with two bullets in the clip and one in the chamber. Later tests demonstrated the gun was operable.
McCloud had three prior robbery convictions which were "strikes."
(Lodgment No. 10.)

  II. Procedural Background

  On December 23, 1999, the San Diego county district attorney's office filed an amended information charging Petitioner with: 1) evading police with reckless driving in violation of Cal. Vehicle Code § 2800.2(a) (Count One); 2) possession of a firearm by a felon in violation of Cal. Penal Code § 12021(a)(1) (Count Two); 3) carrying a concealed firearm in violation of Cal. Penal Code § 12021.1(a) (Count Three); and 4) resisting an officer in violation of Cal. Penal Code § 148(a)(1) (Count Four). (Lodgment No. 1, Clerk's Transcript, at 4-6.) The information further alleged that Petitioner had served a prior prison term and had three prior strikes. (Id.)

  On April 18, 2000, Petitioner pleaded guilty to Counts One and Two and admitted the three prior strike convictions. (Id. at 9-11.) In return, the remaining counts and allegations were dismissed. (Id.) On May 26, 2000, the trial court denied Petitioner's motion to dismiss the prior strike allegations and sentenced Petitioner to two concurrent terms of 25 years to life for the two charges to which he pleaded guilty. (Id. at 20-21; Lodgment No. 2, Reporter's Transcript, at 53-55.) On May 26, 2000, Petitioner filed a notice of appeal challenging the validity of his guilty plea. (Lodgment No. 1 at 22-23.) On June 6, 2000, in pro per, and on August 8, 2000, through counsel, Petitioner moved to withdraw his guilty plea by reason of his having received ineffective assistance of counsel. (Id. at 25-30, 41-51.) After hearing arguments and witnesses, the trial court, on January 26, 2001, denied Petitioner's motion and executed a certificate of probable cause, which permitted an appeal of the guilty plea. (Id. at 86, 106; Lodgment No. 2 at 223-25.)

  On November 15, 2000, Petitioner filed a petition for writ of habeas corpus in the trial court, alleging ineffective assistance of counsel in his 1986 robbery plea and arguing that the prior conviction should be invalidated. (Lodgment No. 3.) The petition was denied on January 22, 2001. (Lodgment No. 4.) On February 1, 2001, Petitioner filed a "Motion to Exclude Prior Convictions `Strikes,'" which the trial court construed as a second petition for writ of habeas corpus.*fn1 That petition was also denied on March 26, 2001. (Lodgment No. 6.)

  On August 23, 2001, Petitioner filed an appeal in the California Court of Appeal, Fourth Appellate District, Division One. (Lodgments Nos. 7-9.) Petitioner argued: 1) it was error to deny his motion to withdraw his guilty plea; 2) it was error to deny his motion to recuse the trial judge; and 3) it was error to deny his motion to strike the prior "strike" convictions. (Lodgment No. 7, Appellant's Opening Brief.) In an unpublished opinion, on June 18, 2002, the state appellate court rejected all of Petitioner's arguments and affirmed the trial court's judgment. (Lodgment No. 13.) Petitioner's petition for review of the state appellate decision was denied by the California Supreme Court on September 25, 2002. (Lodgments Nos. 17-18.)

  On June 11, 2002, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal. (Lodgment No. 10.) Petitioner argued: 1) the waiver of his appeal rights made upon entry of a guilty plea was invalid; 2) the sentence he received due to application of the Three Strikes law constituted cruel and unusual punishment; and 3) it was abuse of discretion for the trial court to refuse to dismiss any of his prior strikes. (Id.) The petition was denied on September 25, 2002. (Lodgment No. 19.) The state appellate court found that the first and third claims were denied on appeal and would not be reconsidered on habeas corpus. (Id.) In addition, the court found the second claim, that Petitioner's sentence amounted to cruel and unusual punishment, was never raised in the trial court and was, therefore, waived. (Id.)

  On June 24, 2003, Petitioner filed a third petition for writ of habeas corpus with the trial court. (Lodgment No. 21.) Petitioner argued that: 1) his sentence of 25 years to life violated the Eighth Amendment; 2) application of the Three Strikes law, when he pleaded guilty to having three prior strikes, violated due process and his plea bargain in the strike case; and 3) he received ineffective assistance of counsel in connection with his guilty plea. (Id.) On July 21, 2003, the trial court denied the petition, finding that Petitioner had previously raised the issues and could not raise them again. (Lodgment No. 22.)

  Petitioner then presented these same three issues to the state appellate court in a petition for writ of habeas corpus filed on August 6, 2003. (Lodgment No. 23.) On September 10, 2003, the state appellate court denied the petition. (Lodgment No. 24.) The court found that claims one and two were procedurally barred, because Petitioner did not raise them on appeal. (Id.) In addition, the court found that all of Petitioner's claims failed on the merits. (Id.) On September 23, 2003, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court and raised these same three issues. (Lodgment No. 25.) The petition was denied on June 23, 2004.*fn2

  On August 2, 2004, Petitioner filed the current Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1.) Respondent filed an Answer, Memorandum of Points and Authorities in Support of Answer and Lodgments on December 23, 2004. (Docket Nos. 9-11.) Petitioner filed a Traverse to Matters Raised in Answer and Memorandum of Points and Authorities in Support of Traverse on February 7, 2005. (Docket Nos. 18-19.)

  III. Discussion

  A. Scope of Review

  Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in 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) (1994) (emphasis added).

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to habeas corpus petitions filed after 1996. Lindh v. Murphy, 521 U.S. 320 (1997). As amended, 28 U.S.C. § 2254(d) reads:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) 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 State court proceeding.
28 U.S.C.A. § 2254(d) (West Supp. 2004).

  To obtain federal habeas relief, Petitioner must satisfy either § 2254(d)(1) or § 2254(d)(2). Williams v. Taylor, 529 U.S. 362, 403 (2000). The Supreme Court interprets § 2254(d)(1) as follows:

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 this Court on a question of law or if the state court decided a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Williams, 529 U.S. at 412-13; see Lockyer v. Andrade, 538 U.S. 63, 73-74 (2003).

  Where there is no reasoned decision from the state's highest court, this Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record "to determine whether the state court clearly erred in its application of controlling federal law." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Lockyer, 538 U.S. at 75-76). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. Early v. Packer, 537 U.S. 3, 8 (2002). As long as neither the reasoning nor the result of the state-court decision contradicts Supreme Court precedent, the state court decision will not be "contrary to" clearly established federal law. Id.

  B. Analysis

  Petitioner raises four claims in this federal petition: 1) violation of the Fifth Amendment, because his prior robbery convictions were used as "elements" of the current felon in possession offense and to enhance his sentence as a "recidivist"; 2) violation of the Eighth Amendment, because his sentence of 25 years to life is disproportionate to his current offenses of felon in possession and evading an officer; 3) ineffective assistance of counsel when he pleaded guilty to the current offenses; and 4) violation of the Fourteenth Amendment, because he would not have pleaded guilty to four counts of robbery in 1986 if he knew that the plea would later result in a sentence of 25 years to life due to the 1994 Three Strikes law.*fn3 (Pet. at 6-9.)

  1. Petitioner's first, second and fourth claims

  Respondent contends that claims one, two and four are procedurally defaulted, because the state appellate court denied the claims, finding that Petitioner's arguments could have been raised on appeal but were not. Respondent argues that these procedural bars are independent of federal law and are adequate to bar federal review, because they are firmly established and regularly applied in California.

  A state procedural default arises from the "adequate and independent state law doctrine," which provides that the United States Supreme Court lacks jurisdiction to review a judgment of a state court which "rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). On direct review of a state court judgment, the resolution of a federal claim would not affect a judgment which rests on a state ground independent of the federal claim. Id. The Supreme Court would, in effect, be issuing an advisory opinion on the federal claim, something the Court lacks jurisdiction to do. Id. The adequate and independent doctrine has been extended to federal habeas actions. Although a federal habeas court does not review a judgment of a state court, it decides whether a state prisoner is in custody in violation of the Constitution or laws of the United States. Id. at 729-30. When the "adequate and independent ground" for a state court's rejection of a federal claim involves a violation of state procedural requirements, a habeas petitioner has procedurally defaulted his claim, and this Court cannot reach the merits of the federal claim. Id. To do so would allow a habeas petitioner to avoid the limitation on direct review by the Supreme Court, avoid the habeas exhaustion requirement, and undercut "the States' interest in correcting their own mistakes." Id. at 730-32.

  However, "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case "`clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985), quoting Michigan v. Long, 463 U.S. 1032, 1041 (1983).). Additionally, the Court may still reach the merits of a procedurally defaulted claim if the petitioner can demonstrate (1) cause for the procedural default and actual prejudice from the claimed violation, or (2) that the failure to review the claim would result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750.

  Among the claims presented in Petitioner's September 23, 2003, petition for writ of habeas corpus to the California Supreme Court, Petitioner argued application of the Three Strikes Law violated his due process rights and his sentence of 25 years to life violated his Eighth Amendment rights. (Lodgment No. 25 at 3-4.) Although the California Supreme Court denied Petitioner's petition without citation, this Court will "look through" the summary denial to the last reasoned state court decision on the issue. Nunnebaker, 501 U.S. at 801. The last reasoned decision on the case was in the state appellate court. (Lodgment No. 24.) That court held that Petitioner's arguments could have been raised on appeal but were not, and habeas corpus cannot serve as a substitute for appeal. (Id.) Citing In re Clark, 5 Cal. 4th 750, 765 (1993), the court stated, "Issues that could have been, but were not, raised on appeal are not cognizable in habeas corpus absent special circumstances warranting departure from the rule." (Id.) The court found that there were no special circumstances to warrant departure from the rule in this case. (Id.)

  Because procedural default is an affirmative defense, the state must initially plead procedural default. Bennett v. Mueller, 322 F.3d 573, 585 (9th Cir. 2003). Once the state has asserted the existence of an adequate and independent state procedural ground as an affirmative defense, the burden shifts to the petitioner who must place this defense at issue by "asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule." Id. at 586. If the petitioner meets his burden to place the defense at issue, the ultimate burden to demonstrate the adequacy of a state procedural bar is on the State. Id.

  Here, Petitioner has not argued that the state procedural bar is inadequate or that it is inconsistently applied. Petitioner has cited no authority and no factual allegations to rebut Respondent's procedural default defense. Therefore, Petitioner has not met his burden under Bennett. As a result, claims one, two and four are procedurally defaulted. The Court may still reach the merits of the claims if Petitioner can establish cause and prejudice or if a miscarriage of justice will occur by this Court's failure to reach the merits of the claim. Park v. California, 202 F.3d 1146, 1150 (2000).

  a. Cause

  The cause prong can be satisfied if Petitioner demonstrates some "objective factor" that precluded him from raising his claims in state court, such as interference by state officials or constitutionally ineffective counsel. McCleskey v. Zant, 499 U.S. 467, 493-94 (1991). Although the Supreme Court has "not identified with precision exactly what constitutes `cause' to excuse a procedural default, [it has] acknowledged that in certain circumstances counsel's ineffectiveness in failing properly to preserve the claim for review in state court will suffice." Edwards v. Carpenter, 529 U.S. 446 (2000) (citing Murray v. Carrier, 477 U.S. 478, 488-89 (1986)). The claim that ineffective assistance of counsel cause the procedural default must be presented to the state court as an independent claim before it can be used to establish cause. Edwards, 529 U.S. at 451-52. While Petitioner does assert an ineffective assistance of counsel claim, which is not procedurally barred, he has not argued that ineffective assistance of counsel caused the procedural default of claims one, two and four. Here, Petitioner's ineffective assistance of counsel claim relates to his guilty plea in the trial court. Therefore, the ineffective assistance of counsel claim cannot serve as "cause" to excuse claims one, two and four from procedural default. Petitioner has not demonstrated cause based on his trial or appellate attorney's performance.

  b. Prejudice

  To establish the prejudice necessary to overcome a procedural default, Petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." See United States v. Frady, 456 U.S. 152, 170 (1982) (discussing prejudice where defendant failed to object to jury instructions in proceeding under § 2255). "Prejudice [to excuse claims procedurally barred in a habeas case] is actual harm resulting from the alleged error." Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998). The Court will consider potential prejudice as to each claim found to be procedurally defaulted.

  Petitioner's claims one and four allege a due process violation based on application of the Three Strikes Law to his case, and claim two alleges an Eighth Amendment violation based upon his sentence of 25 years to life. Petitioner is unable to demonstrate prejudice resulting from the imposition of the procedural bar by the state court with respect to claims one, two and four, because Petitioner's arguments, in fact, stand contrary to established Supreme Court law.

  The Supreme Court has rejected double jeopardy, or due process challenges, to state recidivism statutes, because the enhanced punishment imposed for the later offense is "a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one." United States v. Witte, 515 U.S. 389, 399 (1995) (internal quotes and citations omitted). As for Petitioner's argument that his sentence is cruel and unusual in violation of the Eighth Amendment, the Supreme Court has determined that recidivism is a legitimate basis for increased punishment. Ewing v. California, 538 U.S. 11 (2003) (finding California's three strikes sentence of 25 years to life not unconstitutionally disproportionate to conviction for shoplifting $399.00 worth of merchandise, where defendant had three prior burglary convictions and one prior robbery conviction).

  Accordingly, the Court finds no prejudice has been shown by the failure of this Court to reach the merits of claims one, two and four.

  c. Fundamental miscarriage of justice exception

  The Court may also reach the merits of claims one, two and four if Petitioner can demonstrate that the failure to do so would result in a fundamental miscarriage of justice. The Supreme Court has limited the "miscarriage of justice" exception to habeas petitioners who can show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995). "Actual innocence" means factual innocence, not merely legal insufficiency; a mere showing of reasonable doubt is not enough. See Wood v. Hall, 130 F.3d 373, 379 (9th Cir. 1997). To show actual innocence, Petitioner must show that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Id.

  Here, Petitioner has failed to carry this burden. Petitioner pleaded guilty to evading police with reckless driving and felon in possession of a firearm, and he admitted three prior strike convictions. In light of the record, including his statements in open court, Petitioner has failed to demonstrate factual innocence.

  Therefore, this Court recommends that the petition be DENIED as to grounds one, two and four, because those claims are procedurally barred on independent and adequate state law grounds and none of the exceptions are applicable to the instant Petition.

  2. Ineffective assistance of counsel

  Petitioner's third ground for relief is ineffective assistance of counsel. (Pet. at 8.) Specifically, he argues that his attorney at the trial level, George Hunt, would not allow him to withdraw his guilty plea. Petitioner asserts that Mr. Hunt told him he had to plead guilty. In the Points and Authorities in Support of the Traverse, Petitioner further argues that he was not aware that he was pleading to three prior strike convictions. Mr. Hunt wrote in the three prior strikes without his knowledge. Therefore, Plaintiff argues, his guilty plea was not knowing and intelligent. The last reasoned state court opinion that addresses this claim is the state appellate court decision of September 10, 2003. (Lodgment No. 24.) That court found that Petitioner failed to demonstrate that either of his attorneys at the trial level failed to act in a manner expected of a reasonably competent attorney acting as a diligent advocate and that the attorney's acts or omissions resulted in the withdrawal of a potentially meritorious defense. (Id. at 2.) As discussed below, the state appellate court's reasoning was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the United States Supreme Court.

  The United States Supreme Court has recognized that the Sixth Amendment right to counsel exists in order to protect the fundamental right to a fair trial. Gideon v. Wainwright, 372 U.S. 335 (1963); Johnson v. Zerbst, 304 U.S. 458 (1938); Powell v. Alabama, 287 U.S. 45, 53 (1932). In addition, the Supreme Court has held that "the right to counsel is the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970). To demonstrate ineffective assistance of counsel, a defendant must show: (1) that his counsel's performance was deficient; and (2) that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Prejudice is established if there is a reasonable probability that a more favorable outcome would have resulted but for the deficient performance by counsel. Id. at 694. Because Petitioner must prove both Strickland elements, the court may reject his claim upon finding either that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697. The Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel claims. Hill v. Lockhart, 474 U.S. 52, 106 (1985).

  A plea of guilty is constitutionally valid only to the extent it is "voluntary" and "intelligent." Brady v. United States, 397 U.S. 742, 748 (1970). In determining whether a plea was knowingly, voluntarily and intelligently made, a reviewing court must accord a strong presumption of verity to the declarations made by a defendant in open court. Blackledge v. Allison, 431 U.S. 63, 74 (1977). "[R]epresentations [made by] the defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings." Id. at 73-74. Furthermore, Petitioner's allegations of a coerced plea must be specific and point to a real possibility of a constitutional violation. Id. The Court will not accept conclusory allegations unsupported by specifics or contentions that are wholly incredible in light of the record as a whole. Id. at 74.

  Here, the trial court devoted considerable time to taking Petitioner's guilty plea. During Petitioner's plea hearing, Mr. Hunt and the trial court mentioned several times that Petitioner was admitting to the prior strikes. The trial court discussed the fact that Mr. Hunt would bring a motion to strike the prior strikes, but the court emphasized repeatedly that he had not made any decision about whether to strike any of the priors. (Lodgment 2 at 2-7, 13, 25.) The trial court also made clear to Petitioner that he was admitting to alleged "strike priors which are three different counts of robbery all arising out of the same case in the year 1986. . . ." (Id. at 12.) The trial court repeated again, "I guess it was one case with what, three counts of robbery, apparently." (Id.)

  The trial court later informed Petitioner that because of the prior strikes, he could be sentenced to 25 years to life, a fact Petitioner indicated he understood. (Id. at 18.) The court repeated that the effect of the prior strikes would be 25 years to life. (Id. at 25.) The court asked Petitioner, "Is it true as alleged that on or about October 6th, 1986, here in San Diego Superior Court, in CR-82196, you were convicted of three separate counts of robbery, in violation of penal code section 211?" (Id. at 26.) Petitioner stated, "Yes." (Id.) The court asked Petitioner if he understood everything the court told him, and he indicated, "Yes." (Id. at 27.) Finally, Petitioner signed the change of plea form, which listed out the three prior strikes, and Petitioner initialed the form throughout. (Lodgment 1 at 9-11.) Petitioner's argument that he did not know he was pleading to three prior strikes is completely contrary to declarations he made in open court.

  The trial court also devoted considerable time hearing evidence on the motions to withdraw the plea, which were predicated on the same arguments relating to ineffective assistance of counsel as presented in this Petition. The hearing focused on whether Mr. Hunt had coerced Petitioner into pleading guilty and made false promises that the prior strikes would be stricken and Petitioner would get probation. The hearing spanned several days, and the court heard testimony from four different witnesses, including Petitioner. (Lodgment 2 at 58-226.) During his testimony, Petitioner admitted that Mr. Hunt never guaranteed that his prior strikes would be stricken. (Id. at 177.) At the conclusion of the hearing, the trial court found that Mr. Hunt did not doctor the change of plea form and never badgered Petitioner into pleading guilty. (Id. at 219-20.) The state appellate court found no reason to disagree with the trial court's factual findings. (Lodgment 13 at 8.)

  Factual findings of the state court are presumed correct unless Petitioner rebuts them with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Petitioner has not attempted to rebut the factual findings of the state court. He has only attempted to argue the same things he argued before the trial court. Therefore, Petitioner has not offered clear and convincing evidence to rebut the state court's factual findings that Mr. Hunt neither doctored the change of plea form nor badgered Petitioner into pleading guilty.

  "The court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. The fact that defense counsel may have urged or encouraged Petitioner to take the plea does not establish that the plea was coerced. There must be some evidence that Petitioner's will was overcome. Brady, 379 U.S. at 749. In this case, the Court finds no such evidence.

  Petitioner has failed to show that Mr. Hunt's performance fell "outside of the wide range of professional competence." Strickland, 466 U.S. at 687. Nor has Petitioner shown that there was a reasonable probability that a more favorable outcome would have resulted if Mr. Hunt had done what Petitioner wished. Id. at 694. The appellate court upheld the trial court's determination that Petitioner had been competently represented. (Lodgment No. 13 at 9.) This Court finds such a determination was neither contrary to established federal law nor unreasonable in light of the facts of the case. Accordingly, this Court recommends that the Petition be DENIED as to claim three.

  IV. Conclusion

  After thorough review of the record in this matter and based on the foregoing analysis, this Court recommends that the Petition for Writ of Habeas Corpus be DENIED and this action be DISMISSED WITH PREJUDICE.

  This Report and Recommendation of the undersigned Magistrate Judge is submitted to the District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). On or before October 19, 2005, any party may file and serve written objections with the Court and serve a copy on all parties. The document shall be entitled "Objections to Report and Recommendation." Any reply to the objections shall be filed and served no later than ten days after being served with the objections. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20050916

© 1992-2005 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.