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O'KEEFE v. WOODFORD

United States District Court, S.D. California


September 29, 2005.

TIMOTHY O'KEEFE, Petitioner,
v.
JEANNE WOODFORD, Director of the California Department of Corrections, Respondent.

The opinion of the court was delivered by: JAMES STIVEN, Magistrate Judge

REPORT AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS
Timothy O'Keefe, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, raising three grounds for relief. The Court has considered the Petition, Respondent's Answer and Memorandum of Points and Authorities, Petitioner's Traverse and Supplemental Traverse, 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

  At about 11:00 p.m. on December 26, 2000, a student at the University of California, San Diego, saw Petitioner break into an adjacent student apartment through a window, and the student called the campus police. (Lodgment No. 1, Reporter's Transcript, Arraignment, at 4-8.) Officers Michael Kizzee and Karen Scofield responded to the call. (Id. at 46, 50.) Kizzee saw Petitioner inside the apartment, identified himself as a police officer, and called for Petitioner to come outside. (Id. at 51-53.) Petitioner said, "I'm not going back." (Id. at 54.) Later, Petitioner repeated, "I'm not going back to prison." (Id. at 56.) Kizzee continued to direct Petitioner outside, "so we could take care of this." (Id.) Petitioner continued to make comments like, "You're going to have to kill me. You're going to have to shoot me. I'm not going back to prison." (Id. at 57.)

  After continued attempts by the officers to get Petitioner to come out, Petitioner appeared at the window of the apartment with two large knives, one in each hand. (Id.) Petitioner climbed out the window, and the officers directed Petitioner to drop the knives, but he did not. Petitioner made several more advances and warned that he would have to be shot to be stopped. He approached the officers until he was within 10 feet of them, and each of the officers fired at him. (Id. at 60-65.) Petitioner was struck in the chest and in the hand. (Lodgment 2, Clerk's Transcript, at 32.)

  II. Procedural Background

  On December 26, 2000, the San Diego county district attorney's office filed an information charging Petitioner with: 1) assault with a deadly weapon on a peace officer in violation of Cal. Penal Code § 245(c) (count one); 2) assault with a deadly weapon on a second peace officer in violation of Cal. Penal Code § 245(c) (count two); and 3) residential burglary in violation of Cal. Penal Code §§ 459 and 460 (count three). (Id. at 8-9.) The information further alleged that Petitioner had been previously convicted of five serious felonies (residential burglaries) within the meaning of California's Three Strikes Law. (Id.)

  On May 1, 2001, Petitioner pleaded guilty to count one and admitted to four prior strike convictions. (Id. at 27; Lodgment 3, Reporter's Transcript, Change of Plea, at 2.) In return, the district attorney agreed to recommend a sentence of 25 years to life, that the balance of the charges would be dismissed, and that it would recommend sexual offender treatment at Atascadero State Mental Institution ("Atascadero") or California Men's Colony East ("CMC East"). (Lodgment 2 at 27-28; Lodgment 3 at 2-3.) On May 30, 2001, the trial court sentenced Petitioner to 25 years to life and recommended that he serve his sentence at Atascadero and/or CMC East. (Lodgement 4, Reporter's Transcript, Sentencing, at 3-4.)

  On July 3, 2001, Petitioner filed a Notice of Appeal and a Request for a Certificate of Probable Cause, in which he asserted: 1) ineffective assistance of counsel, because he did not end up going to Atascadero or CMC East; and 2) he felt pressured by the trial court and the district attorney to enter into his guilty plea. (Lodgment 1 at 60-61.) Petitioner's appointed appellate counsel filed an opening brief on appeal but raised no specific issues. (Lodgment 5.) Instead, the brief pointed to five possible issues to assist the state appellate court in conducting its own independent review of the case: 1) whether Petitioner received effective assistance of counsel; 2) whether the pleas were constitutionally valid; 3) whether the trial court abused its discretion in denying Petitioner's request for a certificate of probable cause; 4) whether Petitioner's waiver of appeal rights was valid; and 5) whether the trial court abused its discretion in imposing a $5,000 restitution fine. (Id. at 8-9.) The California Court of Appeal, Fourth Appellate District, Division One, concluded that a review of the record disclosed no reasonably arguable appellate issue. (Lodgment No. 6.) The court affirmed the judgment of the trial court. (Id.)

  While direct appeal was pending, Petitioner filed his first petition for writ of habeas corpus in the state superior court on October 19, 2001. (Lodgment 8 at 2.) He asserted that his guilty plea was illegally entered, because: 1) he received ineffective assistance of counsel; and 2) he was pressured into accepting his plea. (Id.) That petition was denied because the direct appeal was still pending. (Id.) Petitioner filed his second habeas petition on January 29, 2002, asserting that the Department of Corrections failed to take steps to ensure his safety. (Id.) The petition was denied, because Petitioner failed to exhaust administrative remedies and because he failed to state a prima facie case for relief. (Id.) Petitioner filed his third habeas petition on April 8, 2002, raising the same issues set out in his first petition. (Id.) The petition was denied on May 7, 2002, because the state appellate court had not yet issued a remittitur. (Id.)

  On June 20, 2002, Petitioner filed a fourth habeas petition asserting the same grounds raised in the first and third petitions. (Id.) By that time, the state appellate court had issued a remittitur, so the superior court had jurisdiction to consider the petition, and the court denied the petition on June 21, 2002. (Id.) The court determined that the matters were procedurally barred, because they had been raised on direct appeal and could not be reviewed on a habeas petition absent special circumstances. (Id. at 2.) The court then determined that the petition also failed on the merits. (Id. at 3.) On September 17, 2003, Petitioner filed a petition for writ of habeas corpus in the state appellate court, asserting ineffective assistance of counsel and that he was impaired when he entered into his plea. (Lodgment 9.) The state appellate court denied that petition on October 15, 2003. (Lodgment 10.) On December 1, 2003, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court and raised the same two issues in addition to a third one: his negotiated plea violated Cal. Penal Code § 1170.12, which precludes bargaining over prior strike offenses. (Lodgment 11.) The petition was denied by the state supreme court on September 15, 2004. (Lodgment 12.)

  On October 19, 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 January 11, 2005. (Docket Nos. 18-20.) Petitioner filed a Traverse*fn1 on April 19, 2005 and a Supplemental Traverse*fn2 on July 12, 2005.

  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 three claims in this federal petition: 1) he was not mentally competent when he entered into the guilty plea and therefore, did not make the plea voluntarily, knowingly and intelligently; 2) ineffective assistance of counsel; and 3) his guilty plea was illegal under Cal. Penal Code § 1170.12(g). (Pet. at 6-8.) 1. Voluntarily, knowingly and intelligently made guilty plea

  Petitioner contends in claim one that his guilty plea was not made voluntarily, knowingly or intelligently, because he was taking psychiatric medication at the time, even though he initialed the box that said, "I am sober and my judgment is not impaired. I have not consumed any drug, alcohol or narcotic within the past 24 hours." (Pet. at 6; Lodgment 2 at 27-28.) In addition, Petitioner asserts that Dr. Kris Mohandie's report further attests to the fact that he was not capable of entering into a guilty plea at that time. (Pet. at 6.)

  A criminal defendant may not be tried, waive his right to counsel, or plead guilty unless he is competent at the time. See Godinez v. Moran, 509 U.S. 389, 396 (1993). The conviction of a defendant while legally incompetent violates due process. See Cacoperdo v. Demosthenes, 37 F.3d 504, 510 (9th Cir. 1994). The test for competency to plead guilty is whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and "whether he has a rational as well as factual understanding of the proceedings against him." Boag v. Raines, 769 F.2d 1341, 1343 (9th Cir. 1985) (citing Dusky v. United States, 362 U.S. 402, 402 (1960)).

 

Requiring that a criminal defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand the proceedings and to assist counsel. While psychiatrists and scholars may find it useful to classify the various kinds and degrees of competence, and while States are free to adopt competency standards that are more elaborate than the Dusky formulation, the Due Process Clause does not impose these additional requirements.
Moran, 509 U.S. at 402.

  Petitioner has failed to demonstrate that he was incompetent during his plea hearing. At the request of Petitioner's defense attorney, Petitioner was examined by Dr. Mark Kalish on March 12, 2001, 48 days before the plea hearing. (Unnumbered Exhibits to Lodgment 11, Pet. for Writ of Habeas Corpus in the Cal. Supreme Ct.) Dr. Kalish believed that Petitioner did not suffer from any cognitive impairment. He found that, "Mr. O'Keefe is oriented to person, place and time. Memory is intact for immediate, recent and remote events. General fund of information is adequate. General intellectual functioning appears to be within the normal range." Dr. Kalish did not believe Petitioner fit the "legal criteria for either insanity or diminished actuality." According to Petitioner, Dr. Kalish did not spend enough time interviewing him, so he requested a second evaluation. (Pet. at 6.B.) Dr. Kris Mohandie conducted the second evaluation of Petitioner and interviewed him on March 22, 2001, April 10, 2001 and April 11, 2001. (Pet., Exhibit E.) Dr. Mohandie observed that Petitioner "appears not to be thinking rationally and tends to feel mistreated and picked upon by others." (Id. at 14.) In addition, Dr. Mohandie believed Petitioner's "proneness to experience anxiety and depression might make it difficult for him to think clearly or function effectively." (Id.) While Dr. Mohandie did not offer a specific diagnosis or an opinion on Petitioner's ability to understand the proceedings and to assist his attorney, the doctor did conclude that Petitioner was sane on the night of the incident and that Petitioner had a significant capacity for remorse. (Id. at 20, 22.)

  Neither of the doctors' reports supports a determination that Petitioner did not understand the proceedings against him or could not consult with or reasonably assist his attorney. Both doctors' reports indicate that Petitioner was fully aware of what occurred the night he allegedly burglarized the apartment at UCSD and that he knew why he was arrested. In addition, the fact that Petitioner requested that his attorney arrange a second psychological evaluation suggests that he was able to meaningfully consult with his attorney about his case.

  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 time to taking Petitioner's guilty plea. The court first asked Petitioner if he had taken any drugs or alcohol in the last 24 hours that would prevent him from understanding what was going on in court that day. (Lodgment 3 at 1.) Petitioner responded that he had not. (Id.) The court asked Petitioner if he had read and understood everything on the change of plea form and whether he had enough time to talk with his attorney about the case. Petitioner responded yes to both questions. (Id. at 2.) The court then laid out the terms of the plea agreement and asked Petitioner if that was also his understanding of the terms. Petitioner responded that it was. (Id. at 2-3.) The court also informed Petitioner that the maximum sentence was 25 years to life in prison. (Id. at 3.) Finally, the court indicated that it would make a recommendation that Petitioner serve his sentence at Atascadero or CMC East, but it was only a recommendation and not binding on the Department of Corrections. (Id. at 6.)

  In addition to Petitioner's declarations made in open court, the trial court made a factual finding that "defendant understands and voluntarily and intelligently waives [his] constitutional rights; the defendant's plea and admissions are freely and voluntarily made; the defendant understands the nature of the charges and the consequences of the plea and admissions . . ." (Lodgment 2 at 29.) 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 offered sufficient evidence to overcome the declarations he made in open court and the factual findings of the trial court. Petitioner contends that he was on psychiatric medication at the time he entered into the guilty plea. However, Petitioner does not provide any evidence to corroborate this claim. He has not indicated what the names of the medication were or what doctor prescribed the medication. As discussed above, the reports of Drs. Kalish and Mohandie do not support Petitioner's contention that he was incompetent to plead guilty.

  The last reasoned state court decision on this issue was the state appellate court's denial of Petitioner's habeas petition dated October 15, 2003. (Lodgment 10.) That court found that Petitioner had not shown his plea was other than knowing and voluntary. (Id. at 2.) The state court's decision was not contrary to, or an unreasonable application of, clearly established federal law. Therefore, this Court recommends the Petitioner be DENIED as to claim one. 2. Ineffective assistance of counsel

  Petitioner's second ground for relief is ineffective assistance of counsel. (Pet. at 7.) Specifically, he argues that his attorney at the trial level advised him to plead guilty knowing that he was having psychological problems and told him to lie about being on any drug or medication. Petitioner also argues that his trial attorney led him to believe that he would receive psychological treatment to overcome his problems, but he has received very little treatment in prison. Finally, Petitioner contends that his trial attorney did not submit the psychological evaluation from Dr. Mohandie to the trial court, and if the trial court had read it, "he might not have allowed Petitioner to plead guilty." (Id.)

  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).

  In this case, Petitioner had been charged with three felony counts and faced a prison term of 75 years to life. Cal. Penal Code § 1170.12. Several witnesses to the incident testified against Petitioner at the preliminary examination. (Lodgment 1.) In light of the evidence against him, his attorney negotiated a deal, by which, if he pleaded guilty to one of the felony counts and four prior strikes, the district attorney would drop the remaining two felony counts and one prior strike. In addition, the district attorney would recommend that Petitioner serve out his sentence in a treatment facility. (Id. at 2-3.) Instead of 75 years to life that he could have faced, Petitioner was sentenced to 25 years to life. (Lodgment 4 at 3.) In addition, along with the district attorney, the trial court recommended that Petitioner serve his sentence at a treatment facility. Before Petitioner entered into the guilty plea, his attorney also had him evaluated to make sure he was mentally competent. As discussed above, neither of the two doctors concluded that Petitioner was not competent to enter into his guilty plea. It appears Petitioner's attorney took reasonable steps to ensure the best possible outcome for Petitioner given his circumstances.

  Petitioner contends that his attorney told him to lie about not being on any drugs when he entered into the guilty plea. As discussed above, Petitioner has provided no evidence that he was under the influence of psychiatric medication when he entered into his guilty plea. Further, Petitioner has provided no evidence that his attorney knew he was taking medication and told him to lie and say that he had not taken any medication. "[C]ounsel 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 further argues that his attorney promised, if he pleaded guilty, he would receive the treatment he needed, but that did not happen. As had been agreed, the district attorney recommended that Petitioner's sentence be served at a treatment facility. The trial court recommended that Petitioner serve his sentence at Atascadero or CMC East, but Petitioner was not assigned by the Department of Corrections to either of these facilities. This appears to be the reason for Petitioner's direct appeal to the state appellate court. (Lodgment 1 at 60-61.) However, the trial court made clear to Petitioner that the recommendation regarding the treatment facilities was only a recommendation and that the Department of Corrections would make the ultimate decision. (Lodgment 3 at 6.) It does not appear from the record that Petitioner's attorney acted deficiently or made any false promises with regard to the trial court and district attorney's recommendations.*fn3

  Finally, Petitioner argues that his attorney did not give the trial court the report from Dr. Mohandie, and if counsel had done so, the trial court may not have allowed Petitioner to plead guilty. As discussed above, however, the report from Dr. Mohandie did not indicate that Petitioner was incompetent to stand trial or enter into a guilty plea. Therefore, Petitioner has failed to show a reasonable probability that a more favorable outcome would have resulted if counsel had done what Petitioner wished. Strickland, 466 U.S. at 694.

  The last reasoned state court decision on this issue is the state appellate court decision on March 21, 2002, affirming the trial court's judgment. (Lodgment 6.) That court found that Petitioner had been competently represented. 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 two.

  3. Violation of Cal. Penal Code § 1170.12(g)

  In his third claim for relief, Petitioner argues that the plea bargaining of his prior strikes violated Cal. Penal Code § 1170.12(g). The last reasoned state court decision on this issue is the California Supreme Court's summary denial of Petitioner's habeas petition. (Lodgment 12.) 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, 336 F.3d at 853 (emphasis added). Petitioner is arguing that the trial court erred in an interpretation of state law, and federal habeas relief is not available for an alleged error in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Therefore, this Court recommends that the Petitioner 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 24, 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).

20050929

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