Searching over 5,500,000 cases.

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.


United States District Court, N.D. California

September 30, 2005.

D.I. RUNNELS, Warden, Respondent.

The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge


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 Marsden motion."
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 Marsden motion.
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. 2000).

  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 a suit.

  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 authority.

  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 claim.


  For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The clerk shall close the file.



© 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.