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ARMSTEAD v. HERNANDEZ

United States District Court, S.D. California


October 11, 2005.

DARYL ARMSTEAD, Petitioner,
v.
R.J. HERNANDEZ, Warden, et al., Respondents.

The opinion of the court was delivered by: NITA STORMES, Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
Daryl Armstead ("Petitioner"), a California prisoner, pled guilty to nine counts of armed robbery and was sentenced to 15 years in prison. He has filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254, arguing that he received ineffective assistance of counsel in entering his guilty plea and also that his guilty plea was involuntary. Both claims stem from Petitioner's misconception, at the time he entered the plea, regarding the date he would be eligible for parole. This Court has reviewed the Petition, Respondents' Answer, the Traverse, and all supporting documents. After a thorough review, the Court finds that Petitioner is not entitled to the relief requested and RECOMMENDS that the Petition be DENIED.

Background

  Between November 1998 and March 1999, Petitioner and an acquaintance, Agustin Delgado ("Delgado"), committed armed robberies at several establishments in San Diego County. In May 1999, the two men were charged with nine counts of armed robbery. [Lodgment 1 at 1-6.] Delgado pled guilty and at trial testified against Petitioner regarding his involvement in the crimes. [Lodgment 2 at 414-79.] The prosecution also presented other evidence linking Petitioner to the crimes, including testimony of several of the victims identifying him as the robber and physical evidence found at his residence, such as a drivers license, social security cards, and other personal items belonging to the victims. [Lodgment 2.] A jury convicted Petitioner of Counts 4, 5, and 9 of the information but was unable to reach a verdict on the remaining counts; the trial judge declared a mistrial as to those counts. [Lodgment 2 at 648-51.] Shortly before he was to be retried on the remaining six counts, Petitioner entered a guilty plea as to those counts. [Lodgment 2 at 822-30.] Pursuant to a plea agreement, he was sentenced to a total term of 16 years in of prison. [Lodgment 2 at 858-61.]

  Petitioner thereafter appealed his convictions on Counts 4, 5 and 9, contending that the trial court had erred in several respects, including giving jurors an erroneous response to their request for clarification of one of the jury instructions. [Lodgments 4, 6.] The California appellate court agreed that the trial judge had committed prejudicial error with respect to the jury instruction and reversed Petitioner's convictions on Counts 4, 5, and 9. [Lodgment 7.] The appellate court also directed that in the interest of justice, Petitioner should be permitted to withdraw his guilty pleas as to the other six counts. [Lodgment 7 at 23-24.] After the case was remanded to the trial court, in February 2003, Petitioner pled guilty to nine counts of armed robbery. [Lodgment 16.] Pursuant to a plea agreement, he was sentenced to a term of 15 years in prison. [Lodgment 19.]

  In August 2003, Petitioner filed a petition for writ of habeas corpus with the state superior court, claiming that he had received ineffective assistance of counsel in entering his guilty plea. [Lodgment 21.] Specifically, he contended that counsel failed to properly investigate the issue of his eligibility for post-conviction sentence credits, which would have revealed an error made by the California Department of Corrections ("CDC") in calculating his parole eligibility date. He further argued that his guilty plea was involuntary because at the time he entered the plea, he mistakenly believed he would be eligible for parole in 2006, when in fact he will not be eligible for parole until 2011. [Lodgment 21 at 3-4.] The superior court denied the petition, concluding that Petitioner's plea agreement did not include any consideration of his minimum eligible parole date or his post-conviction sentence credits, and that computation of such credits was a matter to be determined by the CDC. [Lodgment 23 at 2-3.] Petitioner then filed a habeas petition with the California appellate court, raising the same claims. [Lodgment 24.] The appellate court denied the petition. [Lodgment 25.] Petitioner filed a habeas petition with the California Supreme Court raising the same claims. [Lodgment 26.] The court denied the petition without comment. [Lodgment 27.]

  In May 2005, Petitioner filed this Petition raising two claims: (1) that he received ineffective assistance of counsel under the Sixth Amendment at the plea bargain stage; and (2) that his guilty plea is invalid under the Due Process Clause of the Fourteenth Amendment because it was based in part on his mistaken belief about his parole eligibility. [Petition, Grounds for Relief ("Grounds"), at 1-8; Traverse in Support of Petition for Writ of Habeas Corpus ("Trav.") at 4-7.] Respondents have filed an Answer to the Petition, arguing that both of Petitioner's claims should be rejected because Petitioner has failed to show that he was misadvised about the conditions and consequences of his guilty plea. [Respondents' Answer to Petition for Writ of Habeas Corpus ("Ans.") at 4-9.]

  Analysis

  This Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the merits by the state court unless that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). A federal habeas court may grant relief under the "contrary to" clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the "unreasonable application" clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. Additionally, the state court's factual determinations are presumed correct, and the petitioner carries the burden of rebutting this presumption with "clear and convincing evidence." 28 U.S.C.A. § 2254(e)(1). Petitioner's first claim is that he was denied his Sixth Amendment right to effective assistance of counsel at the plea bargain stage. [Petition, Grounds, at 1-6; Trav. at 4-6.] A defendant is denied his Sixth Amendment right to counsel when a defense attorney's performance falls below an objective standard of reasonableness, thereby prejudicing the defense. Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's errors must be so serious that the result of the proceeding was fundamentally unfair or unreliable. Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993). In the context of a guilty plea, the petitioner must show that there is a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). In assessing counsel's performance, the court employs a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment. Yarborough, 540 U.S. at 4; Strickland, 466 U.S. at 690. The court's review of counsel's performance is "doubly deferential when it is conducted through the lens of federal habeas." Yarborough, 540 U.S. at 6.

  Here, Petitioner alleges that counsel was ineffective because he failed to "fully investigate or retrieve petitioner's post term credits accrued." [Petition, Grounds, at 2.] To understand Petitioner's argument, some background is necessary regarding California's procedure for awarding sentencing credits. Criminal defendants in California are entitled to credit against their prison terms for all actual days of presentence and postsentence custody. Cal. Penal Code § 2900(c); People v. Cooper, 27 Cal.4th 38, 40 (Cal. 2002). They can also earn "good time" and "work time" credits to reduce the amount of time they must serve; good time credits are earned for good behavior, while work time credits are earned for performing work or participating in an educational program. Cal. Penal Code §§ 2930, 2931, 2933; Cooper, 27 Cal.4th at 40. Defendants may be eligible to earn good time and work time credits (referred to collectively as "conduct credits") to reduce their actual time in custody by up to 50 percent. Cal. Penal Code §§ 2933, 4019; Cooper, 27 Cal.4th at 40. However, defendants convicted of violent felonies are prohibited from accruing credits that equal more than 15 percent of their actual time in custody; in other words, these defendants must serve at least 85 percent of their prison sentences. Cal. Penal Code § 2933.1(c); Cooper, 27 Cal.4th at 40. Defendants like Petitioner who are convicted of robbery are subject to this limitation. See Cal. Penal Code §§ 2933.1, 667.5(c)(9). When Petitioner was committed to the custody of CDC following his original conviction, the CDC miscalculated his minimum eligible parole date due to an error in the abstract of judgment. Although it is not entirely clear from the documents before the Court, the error appears to have arisen from the manner in which Petitioner's convictions were recorded on the abstract of judgment, which caused the CDC to overlook the fact that Petitioner was subject to a limitation on earning conduct credits. [See Petition, Grounds, at 1 & Ex. A-C.] Based on this error, the CDC initially calculated Petitioner's minimum eligible parole date as December 2007. [Petition, Ex. A.] A CDC records analyst examining the abstract of judgment in Petitioner's case subsequently discovered the error, and Petitioner's parole date was recalculated. [See Petition, Ex. C.] Under the correct calculation, Petitioner will be eligible for parole in 2011. [Petition, Ex. B.] Petitioner complains that he entered a guilty plea with the 2007 date in mind, believing he would "receive a new term lowering his duration, not increasing it by four years." [Petition, Grounds, at 6] In other words, he thought he would be out of prison earlier than 2007 by accepting a 15-year sentence, since the sentence was one year less than his original sentence of 16 years. [Petition at 7.] He argues that counsel was ineffective in failing to research the issue of his conduct credits, which would have revealed the error in the CDC's original release date. [Petition at 6; Trav. at 5-6.]

  The last reasoned state court decision addressing Petitioner's ineffective-assistance claim is the superior court's order denying his state habeas petition.*fn1 [Lodgment 23.] The court rejected Petitioner's claim, concluding that he failed to establish he was misadvised at the plea bargain stage about his parole eligibility date or his conduct credits. [Lodgment 23 at 3.] A review of the record supports the state court's conclusion. At the change-of-plea hearing, the trial court advised Petitioner that he would receive a 15-year prison sentence in exchange for his guilty plea. [Lodgment 16 at 4.] The court also advised him that he was required by law to serve at least 85 percent of his sentence before he would be eligible for parole. [Lodgment 16 at 4.] Petitioner responded that he understood those conditions. [Lodgment 16 at 4.] The court stated:

So, the bottom line is you're going to plead to all of these charges. You're going to get fifteen years in state prison.
Now, other than what I just told you, has any other threat or promise been made to get you to enter into this agreement?
[Lodgment 16 at 4.] Petitioner responded, "No, it has not." [Lodgment 16 at 4.] Upon questioning by the court, Petitioner testified under oath that he had discussed the terms of the plea agreement with his counsel, that he understood the terms, and that he had no questions about any aspect of the agreement. [Lodgment 16 at 2-5.] He also signed a change-of-plea form which set forth these same provisions. [Lodgment 17.] The change-of-plea form specifically stated that one consequence of the plea was a reduced eligibility for conduct credits; Petitioner initialed directly next to this provision. [Lodgment 17 at 2.] At the bottom of the form, Petitioner signed his name, declaring under penalty of perjury that he read and understood all of the items on the form. [Lodgment 17 at 3.] The form was also signed by Petitioner's counsel, who declared under penalty of perjury that he had explained all the terms to Petitioner and personally witnessed Petitioner initialing and signing the form. [Lodgment 17 at 3.] In sum, the record supports the state court's conclusion that Petitioner was properly advised about the amount of time he would be required to serve under the plea agreement. [See Lodgment 23.] To the extent Petitioner had in mind an earlier minimum eligible parole date, this was not based on any promise made to him as part of the plea agreement.*fn2 Further, contrary to Petitioner's suggestion, counsel cannot be faulted for failing to "retrieve" his conduct credits, since these credits were limited by law based on his offenses. See Cal. Penal Code §§ 2933.1(a), 667(c).

  Even assuming counsel's performance was somehow deficient, Petitioner must also satisfy the prejudice prong of the Strickland test. In Hill, the leading Supreme Court case on effective assistance of counsel at the plea bargain stage, the Court concluded that the petitioner failed to establish prejudice when he claimed that his attorney misadvised him about his parole eligibility. Hill, 474 U.S. at 59-60. Based on his attorney's advice, the petitioner believed he would be eligible for parole after serving one-third of his prison sentence, when in fact he was required by law to serve one-half of his sentence before he could be paroled. Id. at 54-55. As the Supreme Court observed, the petitioner failed to show that he was prejudiced by this advice, since his mistaken belief about parole eligibility would have affected "not only his calculation of the time he likely would serve if sentenced pursuant to the proposed plea agreement, but also his calculation of the time he likely would serve if he went to trial and were convicted." Id. at 60. Similarly, here, it is difficult to perceive how Petitioner was prejudiced, since his mistaken belief about his conduct credits would have caused him to miscalculate both the time he would spend in prison pursuant to the plea agreement and the time he would spend in prison if he proceeded to trial and was convicted. Petitioner argues that he thought by pleading guilty he would receive "a lesser time than his previous sentence term." [Petition, Grounds, at 6.] The record shows, however, that his guilty plea did in fact result in a lesser term than his previous sentence: he originally received a 16-year sentence, and after his convictions were overturned, he pled guilty and received a 15-year sentence. In short, the record demonstrates that Petitioner bargained for and received a 15-year sentence, of which the law requires him to serve at least 85 percent before he will be eligible for parole.

  In denying Petitioner's state habeas petition, the state superior court relied on Hill and concluded that Petitioner failed to establish that he received ineffective assistance of counsel at the plea bargain stage. [Lodgment 23 at 3-4.] This Court is not called to decide whether it agrees with the state court's decision or whether it would have reached the same conclusion; rather, the Court inquires only whether the state court's decision was objectively unreasonable. Yarborough, 540 U.S. at 4. Based on the record, the Court finds Petitioner has failed to show that the state court's determination was objectively unreasonable. Accordingly, the Court RECOMMENDS that this claim be DENIED.

  Petitioner raises a related claim that his guilty plea was invalid under the Due Process Clause of the Fourteenth Amendment because it was based in part on "extrinsically fraudulent coercive information," namely, his mistaken belief about the date he would be eligible for parole. [Petition, Grounds, at 7; Trav. at 7.] To be valid under the Due Process Clause, a guilty plea must be voluntary and intelligent. Mabry v. Johnson, 467 U.S. 504, 509 (1984); Brady v. United States, 397 U.S. 742, 747 (1970). A guilty plea is considered voluntary and intelligent only if the defendant is fully aware of the direct consequences of his plea. Brady, 397 U.S. at 755. While this requires a general understanding of the likely consequences and circumstances of the plea, including the maximum penalties, the mere fact that the defendant may have been operating under a mistaken belief about certain aspects of his case does not mean that the plea must be set aside. United States v. Ruiz, 536 U.S. 622, 630 (2002). In other words, the Constitution does not require "complete knowledge of all relevant circumstances," and a guilty plea may therefore be upheld "despite various forms of misapprehension under which a defendant might labor." Id. (collecting cases). With respect to parole issues, the Supreme Court has itself recognized that it "never held that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant's plea of guilty to be voluntary." Hill, 474 U.S. at 56; see also Lambert v. Blodgett, 393 F.3d 943, 981 n. 26 (9th Cir. 2004) (recognizing that the Supreme Court does not require defendant to be given information about parole eligibility for guilty plea to be deemed voluntary).

  Here, the record demonstrates that Petitioner was fully advised about the relevant conditions and consequences of his plea, and at no point during the plea hearing was he misled about his conduct credits or his minimum eligible parole date. As discussed above, Petitioner was correctly informed that he was facing up to 46 years in prison for his offenses; that in exchange for his guilty plea he would receive a 15-year sentence; that he would be required by law to serve at least 85 percent of his sentence before he would be eligible for parole; and that his eligibility for conduct credits would be limited due to the nature of his offenses. [Lodgment 16, 17.] Petitioner testified that he understood these terms; that no one had made him any additional promises in exchange for his guilty plea; that he understood the rights he was giving up; and that he wished to plead guilty. [Lodgment 16 at 4-5.] His declarations at the plea hearing "carry a strong presumption of verity" and are a "formidable barrier" to showing that his guilty plea was involuntary. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).

  In a similar case out of the Fifth Circuit, the defendant misunderstood the state's practice of indeterminate sentencing and mistakenly believed he would be eligible for parole within five years, when in fact he would not be eligible for parole until he served twenty years in prison. Spinelli v. Collins, 992 F.2d 559, 561 (5th Cir. 1993). A few years after pleading guilty he learned the truth about his parole eligibility and sought to have his guilty plea set aside as involuntary. Id. at 561-62. The Fifth Circuit concluded that the petitioner's misconception did not make his guilty plea invalid since the mistake was not based on any promise made to him by the defense attorney, the prosecutor or the court. Id. at 561-62. Because Supreme Court case law does not require the defendant to be furnished with information about his parole eligibility, the Fifth Circuit found no basis for setting aside the plea. Id. at 562. This Court finds the Fifth Circuit's reasoning persuasive. Here, as in Spinelli, Petitioner's mistaken belief about his parole eligibility was not attributable to his attorney, the prosecutor or the court, and is thus an insufficient basis for setting aside his guilty plea.

  Moreover, a guilty plea has long been considered valid if it "represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Hill, 474 U.S. at 56. The record demonstrates that this test is satisfied here. Petitioner was originally convicted after a jury trial of three counts of robbery, and although the jury could not reach a verdict on the remaining six counts, the jury foreperson reported that the vote had been 10-2 in favor of guilty on those counts. [Lodgment 2 at 653.] Petitioner's convictions were overturned on appeal due to an error in the jury instructions, but the state nonetheless had strong evidence on which to retry him, including eyewitness identification of him by several of the victims and physical evidence found at his residence linking him to the crimes. [Lodgment 2.] Based on the charges, Petitioner was facing up to 46 years in prison. [Lodgment 17 at 2.] Pleading guilty in exchange for a 15-year sentence — one year less than the sentence he originally received — would reasonably be viewed as a "voluntary and intelligent" choice among the courses of action available to Petitioner at that time.

  In denying Petitioner's state habeas petition, the superior court relied on Hill and determined that Petitioner failed to establish that his guilty plea was involuntary. [Lodgment 23.] Again, this Court is not deciding whether it agrees with the state court's decision, only whether that decision was "objectively unreasonable." Yarborough, 540 U.S. at 4. Based on the record, the Court finds Petitioner has failed to demonstrate that the state court's determination was objectively unreasonable. Accordingly, the Court RECOMMENDS that Petitioner's claim be DENIED.

  Finally, in his Traverse, Petitioner makes a cursory request for the Court to conduct an evidentiary hearing on his claims. [Trav. at 2.] He does not explain what evidence he would present at such a hearing or offer any argument as to why a hearing is necessary to resolve his claims. Regardless, the Ninth Circuit has held that an evidentiary hearing is required only when the petitioner has alleged facts that, if proven, would entitle him to habeas relief. Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004). As is discussed above, the Court finds that Petitioner has failed to allege facts that, if proven, would entitle him to habeas relief on either of his claims. Accordingly, the Court RECOMMENDS that Petitioner's request for an evidentiary hearing be DENIED.

  Conclusion

  Accordingly, the undersigned Magistrate Judge RECOMMENDS that the Petition for Writ of Habeas Corpus be DENIED.

  IT IS ORDERED that no later than November 4, 2005, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

  IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than November 18, 2005. 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).

  IT IS SO ORDERED.

20051011

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