The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER (1) ADOPTING MAGISTRATE JUDGE'S REPORT DISMISSING PETITIONER'S 18 U.S.C. § 2254 PETITION WITH PREJUDICE AND (3) GRANTING CERTIFICATE OF APPEALABILITY AND RECOMMENDATION (2) [Doc. No. 1, 6, 17, 20, 21, 22]
Presently before the Court is Michael Loren Skoor's ("Petitioner") Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his sentence of 29 years in state prison imposed as a result of a 2002 conviction, following a guilty plea, of 20 counts of lewd acts on a child and 4 counts of attempted lewd acts on a child. Petitioner claims he received ineffective assistance of counsel in the plea process and at sentencing. Respondent James E. Tilton, the Secretary of the California Department of Corrections and Rehabilitation, proceeding by and through the Attorney General of the State of California ("Respondent"), has moved to dismiss the Petition on the grounds that it is untimely. Petitioner has moved to strike Respondent's motion to dismiss on the basis that the motion is itself untimely.
The matter was referred to United States Magistrate Judge Leo S. Papas, pursuant to 28 U.S.C. § 636(b)(1)(B). On June 13, 2007, Magistrate Judge Papas issued a Report and Recommendation ("Report"), concluding this Court should deny Petitioner's motion to strike, deny Respondent's motion to dismiss, and dismiss the Petition on the merits. On July 13, 2007, Petitioner filed objections to the Report. The Court has considered the Report and Petitioner's objections. This Court (1) adopts Magistrate Judge Papas's Report and (2) dismisses petitioner's § 2254 petition with prejudice.
A. State Procedural Background
In August 2002, the San Diego District Attorney by an amended information charged Petitioner with 42 counts of criminal acts relating to the sexual abuse of two minor brothers. Petitioner was charged with 30 felony counts of lewd acts upon a child in violation of California Penal Code section 288(a), 5 felony counts of sending harmful matter with the intent to seduce a minor in violation of California Penal Code section 288.2(a), 5 felony counts of residential burglary in violation of California Penal Code section 459, and 2 misdemeanor counts of indecent exposure. (Lodgment No. 13, Clerk's Tr. at 63-81.) At the time of the acts, Petitioner was a senior pastor at Calvary Lutheran Church in Solana Beach in San Diego County. The two victims were the sons of a parishioner. (Lodgment 4, at 2.)
Pursuant to a plea agreement, Petitioner pleaded guilty on August 12, 2002, to 20 counts of lewd acts with a child under Cal. Penal Code, § 288(a) and 4 counts of attempted lewd acts with a child under Cal. Penal Code 288(a) and 664. (Id. at 82.) He further admitted that substantial sexual conduct had been committed as to all counts except count 2. In return for his plea, the balance of the amended information was dismissed and the parties stipulated to a sentencing range of not less than 20 years in state prison, nor more than 30 years. On October 1, 2002, Petitioner was sentenced to 29 years in state prison.
Petitioner appealed his sentence to the California Court of Appeals, claiming the trial judge abused his discretion in choosing a sentence at the upper end of the stipulated sentencing range. (Lodgment No. 1.) The trial court's judgment was affirmed in all respects. (Lodgment No. 4.) Petitioner then filed a petition for review in the state supreme court presenting the same claim. (Lodgment No. 5.) That petition was denied without a statement of reasoning. (Lodgment No. 6, People v. Skoor, No. S123396 (Cal. Apr. 21, 2004).) Petitioner did not file a petition for writ of certiorari in the United States Supreme Court. His conviction became final for purposes of the one-year habeas statute of limitations on July 20, 2004, the last day he could have filed a petition for certiorari.
Petitioner waited nearly one year before next challenging his sentence, filing a habeas petition in the state superior court on July 13, 2005. (Lodgment No. 9.) He sought habeas relief in that court presenting a claim based on ineffective assistance of counsel. (Id. at14-20.) Petitioner's state petition was denied on the merits in a written order filed on September 7, 2005. (Lodgment No. 10.) Petitioner appealed over six months later, on or about March 17, 2006. (Lodgment No. 7 at 17-27.) The Court of Appeal denied the petition on the merits in a written opinion filed June 14, 2006. (Lodgment No. 8.) Petitioner next filed a petition for review in the state Supreme Court on June 26, 2006 which was denied by an order that stated in full: "Petition for review DENIED. George, C.J., was absent and did not participate." (Lodgment No. 12, In re Skoor No. S144680 (Cal. Aug. 2, 2006.))
B. Federal Procedural Background
On August 10, 2006, Petitioner, proceeding by and through counsel, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) As he did in state court, Petitioner claims he received ineffective assistance of counsel in the plea and process and at sentencing. The Court granted four requests filed by Respondent for extension of time to respond, the last of which set a deadline for an Answer to be filed on or before March 12, 2007. Rather than file an Answer, Respondent filed a Motion to Dismiss on March 12, 2007, contending the Petitioner's Petition was filed one day after the expiration of the one-year statute of limitations. (Doc. No. 13.) Petitioner filed an Opposition to the Motion to Dismiss arguing he timely filed the Petition. (Doc. No. 14.) Petitioner also filed a Motion to Strike the Motion to Dimiss as untimely, contending that the Court granted the fourth extension of time to file an Answer only, not a Motion to Dismiss, thereby implicitly denying Respondent's request for an extension of time to file a Motion to Dismiss. (Doc. No. 15.)
On April 9, 2007, the Court ordered Respondent to file an Answer on the merits of the claims presented in the Petition. (Doc. No. 16.) Respondent filed an Answer on April 19, 2007, contending that the Petition was filed one day after the expiration of the statute of limitations, and that Petitioner is not entitled to habeas relief on the merits of the claims. (Doc. No. 17.) Following an extension of time, Petitioner filed a Traverse. (Doc. No. 20.)
On June 13, 2007, Magistrate Judge Leo S. Papas issued a 25 page R&R recommending the Court deny Petitioner's Motion to Strike, deny Respondent's Motion to Dismiss, and deny the Petition on the merits. On July 13, 2007, Petitioner filed objections contesting only the third part of the Report, the conclusion that the Petition be denied on the merits. The Court reviews this finding de novo. 28 U.S.C. § 636(b)(1)(C) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.").
The Court may grant petitioner's section 2254 petition only if the Court determines that the California Court of Appeal*fn1 decided petitioner's petition in a manner that was either "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States," or "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); Williams v. Taylor, 529 U.S. 362, 403, 412-13 (2000).
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly . . . . Rather, that application must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks and citations omitted).
A. Ineffective Assistance of Counsel
Petitioner argues he received ineffective assistance of counsel in two respects. First he contends that, prior to entering into the plea agreement, his counsel's performance was deficient in connection to a pretrial defense motion to compel the production of records he contends would have shown discrimination by the prosecution against Petitioner on the basis of his status as a religious leader. (Doc. No. 6, Mem. ISO Pet. at 8.) Second, he contends counsel's deficient performance in failing to independently secure the public information sought in the discovery motion prevented him from presenting that information as mitigating evidence at the sentencing hearing. (Id.)
Respondent contends that the appellate court's denial of these claims, on the basis that Petitioner had failed to establish deficient performance or prejudice, was neither contrary to, nor involved an unreasonable application of, clearly established federal law, and was not based on an unreasonable determination of the facts in light of the state court proceedings. (Resp. Opp'n at 15-21.)
I. Ineffective Assistance During Discovery Motion
On the first claim, the discovery motion which gives rise to the Petitioner's claim has the following record. Trial counsel filed a motion to compel discovery, which stated in relevant part:
It is the defense position that the Defendant, MICHAEL SKOOR, is not being given an opportunity to plea bargain his case as other defendants who have faced charges similar to his. Deputy District Attorney Jill Schall has stated to Counsel for the Defendant that her office will settle provided Mr. Skoor agrees to a sentence in the "high double digits." Counsel for the Defendant believes that such an offer is far out of the norm for cases such as these, and seeks discovery to show that the District Attorney's Office is treating Mr. Skoor differently, probably due to his long history as a religious icon in his community.
On April 26 2002, an informal request for discovery was hand-delivered to Ms. Schall's office at 330 West Broadway, San Diego. This letter is attached hereto and incorporated herein by reference as Exhibit C. This letter requested the following:
The case information for all cases similar to the defendant's that your office has prosecuted in the past 5 years. Specifically, my request is for the court case numbers, DA case numbers, charging documents, plea agreements, and sentencing ...