United States District Court, N.D. California
September 30, 2005.
CHARLES T. BENNETT, Petitioner,
D.I. RUNNELS, Warden, Respondent.
The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
This is a habeas corpus case filed by a state prisoner pursuant
to 28 U.S.C. § 2254. The court ordered respondent to show cause
why the writ should not be granted. Respondent has filed an
answer and a memorandum of points and authorities in support of
it, and has lodged exhibits with the court. Petitioner has
responded with a traverse. The matter is submitted.
Petitioner, pursuant to a negotiated disposition, pled guilty
to first degree burglary and admitted a prior conviction. He was
sentenced to prison for seventeen years: six years for burglary,
which was doubled as a second strike, see Cal. Pen. Code § 667,
and a consecutive term of five years for a prior conviction. As
grounds for habeas relief he asserts that: (1) He received
ineffective counsel as to his second guilty plea, because the
trial court refused to appoint new counsel when the relationship
between petitioner and counsel had broken down after counsel's
erroneous advice led to the withdrawal of an earlier plea; and
(2) because petitioner did not personally withdraw the earlier
plea, it remains valid and must be enforced.
Petitioner does not dispute the following facts, which are
taken from the opinion of the California Court of Appeal.
In an information filed on October 16, 1998,
appellant was charged with first degree burglary
(Pen. Code, § 459), along with two prior felony
strike convictions (§ 667, subds. (d) and (e),
1170.12. subds. (b) and (c)), two prior serious
felony convictions (§§ 667, subd. (a), 1192.7), and
five prior prison terms served (§ 667.5, subd. (b)).
After denial of his motion to dismiss the charges for
violation of his rights to a speedy trial and due
process, on January 11, 1999, appellant entered a
negotiated plea of guilty to burglary and admitted
two prior convictions, in exchange for dismissal of
other specified prior convictions and a proposed
disposition of a total term of 13 years in state
prison. He was subsequently denied an application for
a certificate of probable cause to appeal the denial
of his speedy trial motion.
Appellant than moved to withdraw his guilty plea (§
1018) on the basis of mistaken advice given to him by
defense counsel that he had the right to appeal the
denial of his speedy trial motion following entry of
the plea. The motion was granted on July 9, 1999, and
a new trial date was set.
On August 23, 1999, appellant and his counsel
concurrently moved for withdrawal and substitution of
counsel under People v. Marsden (1970)
2 Cal.3d 118. In his supporting declaration, counsel mentioned
the erroneous advice he had given to appellant that
"the denial of the motion to dismiss on speedy trial
grounds could be appealed." After withdrawal of the
plea, counsel advised appellant to submit the case on
the preliminary hearing transcript "if the court or
the state will strike one of the priors," or "advance
a mental state defense based on his addiction to base
cocaine" as his "best and perhaps only chance at
trial" given the strength of the prosecution's case.
The declaration further stated that appellant
rejected counsel's advice or analysis of the case,
lacked confidence in him, and insisted on his
removal. Counsel joined with appellant "in his
At the hearing on the Marsden motion, counsel
reiterated that he had "incorrectly advised"
appellant of his right to appeal the denial of the
speedy trial motion, which resulted in withdrawal of
the guilty plea. Appellant expressed that he and
counsel were "just having a lot of conflict" and
"arguments," particularly after the denial of the
speedy trial motion and withdrawal of the plea.
Appellant "didn't trust" counsel and did not want to
"go to trial with him." He disagreed with counsel's
"tactics" and assessment that he had no effective
defense to the burglary charge. Counsel offered his
estimation that the prosecution's case against
appellant was "devastating," with "two fingerprints,"
multiple eyewitness identifications, and "no alibi
witness" for the defense. Counsel's proposal to
present the "only plausible" "mental state defense"
was rejected by appellant. In response to the trial
court's queries, however, both counsel and appellant
professed to be ready to proceed to trial. Appellant
stated that he was amenable to listening to his
attorney and discussing the case. At the conclusion
of the hearing, the court found no breakdown of the
attorney-client relationship that would affect the
representation afforded to appellant, and denied the
On August 25, 1999, pursuant to a negotiated
disposition, appellant entered his second guilty plea
to burglary and a prior conviction. The remaining
charged prior convictions were stricken. . . . In
accordance with the plea bargain, appellant was
sentenced to a total prison term of 17 years. Ex. G at 1-3 (Court of Appeal opinion) (footnote omitted)
A. Standard of Review
A district court may not grant a petition challenging a state
conviction or sentence on the basis of a claim that was reviewed
on the merits in state court unless the state court's
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 the State court proceeding."
28 U.S.C. § 2254(d). The first prong applies both to questions of law and to
mixed questions of law and fact, Williams (Terry) v. Taylor,
529 U.S. 362
, 407-09 (2001), while the second prong applies to
decisions based on factual determinations, Miller-El v.
Cockrell, 123 S.Ct. 1029
, 1041 (2003).
A state court decision is "contrary to" Supreme Court
authority, that is, falls under the first clause of § 2254(d)(1),
only 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
(Terry), 529 U.S. at 412-13. A state court decision is an
"unreasonable application of" Supreme Court authority, falls
under the second clause of § 2254(d)(1), if it correctly
identifies the 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. The federal court on
habeas review 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, the
application must be "objectively unreasonable" to support
granting the writ. See id. at 409. "Factual determinations by state courts are presumed correct
absent clear and convincing evidence to the contrary."
Miller-El, 123 S.Ct. at 1041. This presumption is not altered
by the fact that the finding was made by a state court of
appeals, rather than by a state trial court. Sumner v. Mata,
449 U.S. 539, 546-47 (1981); Bragg v. Galaza, 242 F.3d 1082,
1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). A
petitioner must present clear and convincing evidence to overcome
§ 2254(e)(1)'s presumption of correctness; conclusory assertions
will not do. Id.
Under 28 U.S.C. § 2254(d)(2), a state court decision "based on
a factual determination will not be overturned on factual grounds
unless objectively unreasonable in light of the evidence
presented in the state-court proceeding." Miller-El,
123 S.Ct. at 1041; see also Torres v. Prunty, 223 F.3d 1103, 1107
(9th Cir. 2000).
When there is no reasoned opinion from the highest state court
to consider the petitioner's claims, the court looks to the last
reasoned opinion, in this case that of the California Court of
Appeal. See Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991);
Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th Cir.
B. Issues Presented
1. Ineffective Assistance of Counsel
Petitioner contends that his Sixth Amendment right to effective
assistance of counsel was violated because the trial court
refused to grant his motion to substitute counsel even though his
counsel had given him erroneous advice which led to his
withdrawal of an earlier plea and because his counsel had a
conflict of interest. Petitioner moved to substitute counsel on
the ground that the erroneous advice led to conflict between them
and a breakdown of their client-attorney relationship.*fn1 A criminal defendant who cannot afford to retain counsel has no
right to counsel of his own choosing. Wheat v. United States,
486 U.S. 153, 159 (1988). Nor is he entitled to an attorney who
likes and feels comfortable with him. United States v. Schaff,
948 F.2d 501, 505 (9th Cir. 1991). The Sixth Amendment guarantees
effective assistance of counsel, not a "meaningful relationship"
between an accused and his counsel. Morris v. Slappy,
461 U.S. 1, 14 (1983). Nonetheless, to compel a criminal defendant to
undergo a trial with the assistance of an attorney with whom he
has become embroiled in irreconcilable conflict is to deprive the
defendant of any counsel whatsoever. United States v. Moore,
159 F.3d 1154, 1159-60 (9th Cir. 1998) (testimony by defendant
and counsel evidenced irreconcilable conflict amounting to
breakdown of attorney-client relationship); Brown v. Craven,
424 F.2d 1166, 1170 (9th Cir. 1970) (sufficient evidence of
irreconcilable conflict found where defendant was forced to trial
with assistance of lawyer with whom he was dissatisfied, would
not cooperate, and would not, in any manner whatsoever,
communicate). The denial of an indigent criminal defendant's
motion for substitution of counsel therefore may violate his
Sixth Amendment right to counsel. See, e.g., Moore,
159 F.3d at 1160 (where irreconcilable conflict existed between defendant
and counsel, trial court's failure to appoint substitute counsel
was reversible error). Such a Sixth Amendment claim may, of
course, be raised in a federal habeas petition. Bland v.
California Dep't of Corrections, 20 F.3d 1469, 1475 (9th Cir.
1994), overruled on other grounds by Schell v. Witek,
218 F.3d 1017 (9th Cir. 2000).
The habeas court must determine whether the trial court's
denial of the motion for new counsel "actually violated
[petitioner's] constitutional rights in that the conflict between
[petitioner] and his attorney had become so great that it
resulted in a total lack of communication or other significant impediment that resulted in
turn in an attorney-client relationship that fell short of that
required by the Sixth Amendment." Id. at 1026.*fn2
a. New counsel
Petitioner claims that his relationship with his counsel had
broken down after his counsel gave him the erroneous advice. At
his Marsden hearing, petitioner testified: "I've been with Mr.
Shikman [petitioner's counsel] for about 14 months, and for the
last eight months, we just don't agree on you know, we're just
having a lot of conflict." Exhibit B, RT (8/23/99) at 4.
Petitioner also claims that after his counsel's mistake, "I just
didn't trust him at all, and I don't want to go to no trial I
don't want to be put in no position to go to trial with him, you
know." Id. at 7.
During the Marsden hearing, petitioner's counsel admitted he
had incorrectly advised petitioner that "the denial of the motion
to dismiss on speedy trial grounds could be appealed." Ex. G at
2. However, after an extensive inquiry, the superior court
rejected petitioner's claim that his counsel's flawed advice
required substitution of counsel, and remarked: "He made a
mistake. . . . You're not the first defendant whose attorney has
made a mistake in the representation. Judges make mistakes
even. . . . He's doing a serious and professional job in
representing you." Ex. B, RT (8/23/99) at 11. Although counsel
had made the error, he also had negotiated a favorable plea, as
events were to show when petitioner eventually accepted a plea
agreement calling for a sentence that was four years longer than
the first plea agreement called for. As counsel noted, there was
strong evidence favoring the prosecution: "Two fingerprints, two
I.D.'s, on several different occasions, prelims, photo I.D.'s,
two different people. [Petitioner] can't testify. . . .
[Petitioner] [has] no alibi witness." Id. at 12. Despite this,
counsel had managed to negotiate a thirteen-year sentence. If petitioner had
gone to trial, he could have faced a sentence of "life with a
minimum" of thirty-three years. Ex. G at 3.
The trial court did not find a complete breakdown in the
attorney-client relationship between petitioner and his counsel.
The trial court ruled: "I've heard everything, and the court
believes that based upon all that it's heard, that there was no
breakdown such that it would affect the ability of Mr. Shikman to
represent Mr. Bennett, that the Marsden motion is denied." Ex.
B, RT (8/23/99) at 12. Significantly, when the court asked
petitioner whether he was prepared to listen to his attorney and
discuss matters further. Petitioner replied: "Yeah, I always been
ready for that." Id. at 13.
The court of appeal held that denial of the Marsden motion
was not an abuse of discretion. Ex. G at 9. When petitioner was
considering the first plea offer, counsel advised him that he
could still appeal the superior court's denial of his speedy
trial motion even if he pled guilty. This was concededly
incorrect, and was the basis for the withdrawal of the plea. The
court of appeal concluded, however, that the first plea bargain,
which provided for a thirteen-year sentence, was "extremely
beneficial" to petitioner, especially given subsequent
developments he got seventeen years in the second plea. And
counsel was able to present the speedy trial issue by way of a
petition for mandamus. On balance, the court concluded that
although the advice regarding appealing the speedy trial motion
had been flawed, counsel's representation was adequate. Ex. G at
6. This, combined with the lack of specificity in petitioner's
complaints about counsel and the court's conclusion that counsel
was correct in his advice about tactics, led the court to
conclude that denial of the motion for new counsel was correct.
Id. at 6-7.
Disagreement and friction alone do not entitle a defendant to
new counsel. George, 85 F.3d 1433, 1439. Only if the
disagreement reaches the point of "total lack of communication or
other significant impediment that result[s] in turn in an
attorney-client relationship that [falls] short of that required by the Sixth
Amendment," does a constitutional violation occur. Schell,
218 F.3d at 1026.
In this case, petitioner said he was prepared to listen to his
attorney and discuss matters further. Ex. B, RT (8/23/99) at 12.
Thus it is perfectly clear that although counsel's erroneous
advice at the time of the first plea had strained their
relationship, communication between petitioner and counsel had
not totally broken down.
As to whether there was any other "significant impediment,"
Schell, 218 F.3d at 1026, petitioner's rather vague contention
that they disagreed as to "tactics," ex. B, RT (8/23/99) at 8,
does not qualify it is proper for an attorney to insist on his
or her own tactical decisions, even over the client's
disagreement, id. at 1026 & n. 8. And because counsel's
representation in negotiating the first plea had been more than
adequate, aside from the error as to the appealability of the
speedy trial ruling, the quality of counsel's representation did
not amount to an impediment sufficient to require new counsel.
b. Conflict of Interest
In his traverse, petitioner contends that he received
ineffective assistance of counsel at the time of his second plea
because a conflict of interest existed between him and his
counsel. He may not raise new issues in a traverse, see
Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994), for
reasons that are apparent here: The respondent has not had an
opportunity to answer this issue, because it was not raised in
the petition. Because this claim was raised for the first time in
the traverse, relief will be denied on this issue. However, the
court also will alternatively consider the merits.
Petitioner appears to be trying to raise the claim he raised in
the direct appeal, that counsel had a conflict of interest
because he might be sued by petitioner for malpractice. In Wood
v. Georgia, 450 U.S. 261, 271 (1981), the United States Supreme Court held that the Sixth Amendment's right to effective
assistance of counsel also guarantees a "correlative right to
representation that is free from conflicts of interest." Id. at
1103. To prevail when the problem was not brought to the
attention of the trial court, as here, a petitioner must show
that an actual conflict of interest adversely affected counsel's
performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
Mickens v. Taylor, 535 U.S. 162, 174 (2002).
There nothing in the trial court record reflecting petitioner
even mentioned malpractice. Counsel also did not mention
malpractice or express any concern about the possibility of such
Petitioner has completely failed to show that there was an
actual conflict or that the asserted conflict affected counsel's
performance. Therefore, the alleged conflict of interest did not
render counsel's assistance ineffective. The state appellate
courts' rejection of this claim was not contrary to, nor an
unreasonable application of, clearly established Supreme Court
2. Withdrawal of Guilty Plea
Petitioner contends that he did not personally withdraw his
first guilty plea, as required by section 1018 of the California
Penal Code, so the original sentence, associated with the first
guilty plea, should be reinstated. California courts have held
that section 1018 "requires that a defendant make some expression
in open court which authorizes or adopts a motion made on his
behalf to withdraw his plea." Ex. G at 3-4.
First, this is a state law claim which cannot be the basis for
federal habeas relief. See Estelle v. McGuire, 502 U.S. 62
(1991) (stating that a habeas corpus writ is unavailable for
violations of state law or for alleged error in the application
or interpretation of state law.)
Secondly, the record indicates that petitioner did personally
withdraw his plea. At the hearing to set aside the guilty plea, the judge warned
petitioner of all the potential consequences if the plea were set
aside, and commented: "[A]s I view the evidence, it's extremely
strong and [petitioner]'ll be looking at a sentence of around
life with a minimum of 35 years." Exhibit B, RT (7/9/99) at 4.
When the judge asked petitioner whether he was still willing to
withdraw the plea, petitioner answered yes. Id. at 5.
Petitioner is not entitled to federal habeas relief on this
For the foregoing reasons, the petition for a writ of habeas
corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.
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