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Brandy v. Lamarque

March 27, 2008


The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge



Petitioner Elliot V. Brandy ("Brandy" or "Petitioner") commenced these habeas corpus proceedings pursuant to 28 U.S.C. § 2254. After unsuccessfully challenging his conviction in the state courts, Brandy, through his attorney, has now filed a petition for a writ of habeas corpus ("Petition") under 28 U.S.C. § 2254. He challenges his twenty-five-years-to-life sentence for petty theft with a prior conviction on federal constitutional grounds. See 28 U.S.C. § 2254 ("[A] district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court . . . .").

Specifically, Brandy has two claims: (1) the trial court erred by denying his motion to appoint counsel to investigate his motion to withdraw his guilty plea and/or writ to set aside his guilty plea; (2) his sentence of twenty-five years to life for petty theft with a prior violates the Eighth Amendment's prohibition against cruel and unusual punishment. After the matter was fully briefed, it was referred to the Honorable Magistrate Judge Barbara L. Major for Report and Recommendation ("Report"). See 28 U.S.C. § 636(b). Judge Major issued a thoughtful and thorough Report, finding Brandy's claims lacked merit and recommending that the Petition be denied.

Brandy only objects in part to Judge Major's findings and does not object Judge Major's denial of his Eighth Amendment claim. Respondent Lamarque does not object to the findings in the Report. The Court has made a de novo review of the Report. See 28 U.S.C. § 636(b)(1). Having done so, the Court ADOPTS the Report in full. As Judge Major found, Brandy has failed to show that the state court's decision was contrary to, or involved an unreasonable application of clearly established federal law. Accordingly, Brandy is not entitled to habeas relief, and his Petition is DENIED.


The facts are detailed in Judge Major's Report. Brandy only objects in part to Judge Major's findings of fact. "The [C]court may . . . assume the correctness of that portion of the proposed findings of fact to which no objection has been made . . . ." Coleman v. Wilson, 912 F. Supp. 1282, 1297 (E.D. Cal. 1995); see also U.S. v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989) ("If neither party contests the magistrate's proposed findings of fact, the court may assume their correctness and decide the motion on the applicable law."). Moreover, in reciting the facts, Judge Major relied on the state appellate court's opinion. Absent clear and convincing contrary evidence, these factual determinations are presumed correct. See 28 U.S.C. § 2254(e)(1) ("[A] determination of a factual issue made by a State court shall be presumed to be correct."); see also Williams v. Rhoades, 354 F.3d 1101, 1106 (9th Cir. 2004) ("We presume that state courts' . . . factual findings are correct in the absence of clear and convincing evidence to the contrary."); Tinsley v. Borg, 895 F.2d 520, 524 -25 (9th Cir. 1990) ("[T]he state court's findings are entitled to a presumption of correctness on federal habeas corpus review. This rule applies to the factual findings of both state trial and appellate courts.").

Brandy argues that the Report contains six factual discrepancies. First, Brandy objects to the following statement in the Report: "Petitioner also fails to state a prima facie case by claiming in his declaration that he did not believe he would get a 'Three Strikes' sentence and that he 'felt deceived' by the sentence." See Doc. No. 35. Brandy suggests that "[t]his allegation . . . does not derive from 'Petitioner's declaration.'" However, the Court finds that the Report clearly and accurately relied on Brandy's declaration dated June 17, 2004, which was signed by Brandy himself. See Doc. No. 35. In this declaration, Petitioner does, in fact, state that he did not believe he would get a "three strikes" sentence, and that he "felt deceived." See id.

Second, Brandy challenges the Report's conclusion that his actions suggest that he "simply views withdrawing the plea as the next procedural step each time he receives an undesirable sentence." Brandy claims this conclusion is inaccurate because "at the time Mr. Brandy made the request he had not been sentenced on cocaine possession charge." Brandy's objection misses the mark, however. In his declaration, Brandy clearly acknowledged that, "after sentencing [he] contacted the court clerk to explain that [he] wanted to withdraw [his] plea." See Doc. No. 35. Furthermore, in making this statement, Judge Major apparently relied on the conclusion of the Court of Appeal's decision, which noted that Brandy's efforts to withdraw his guilty plea simply show that he was "unhappy with his sentence." See Report & Recommendation ("R&R") at 33 n.8. This Court must presume correct a "determination of a factual issue made by a State court." See 28 U.S.C. § 2254(e)(1).

Third, Brandy challenges the Report's conclusion that he "misrepresent[ed] the sequence of events" in his Second Supplemental Brief "by suggesting that he had the simultaneous choice between pleading guilty to petty theft with a prior and taking a nineteen year sentencing deal that involved pleading guilty to robbery." According to Brandy, he "made no such misrepresentation" because he did have this choice. To support this contention, Brandy relies on his former attorney's statement that there was a possibility the judge could consider reinstating the nineteen-year deal, if requested to do so. However, the Court's independent review of Petitioner's Second Supplemental Brief reveals that he did, in fact, attempt to represent to the Court that he had a simultaneous choice between these two deals. In reality, the government offered Brandy to plead guilty to petty theft at a later date -- after he had already rejected the prior offer. There is also no evidence in the record suggesting that Brandy requested that any previous offers be reopened.

Fourth, Brandy maintains that the Report's statement that he "had not shied away from addressing the court" is erroneous. R&R at 22 n.4. Nevertheless, the Court agrees with the Report's conclusion on this collateral issue based on the evidence that the trial court (1) was clearly aware of Brandy's intellectual abilities; (2) gave Brandy numerous opportunities to address the court; and (3) took adequate steps to ensure Brandy's understanding and active participation in the proceedings.

Fifth, Brandy challenges the Report's conclusion that he failed to establish that he sought new counsel due to a conflict with his attorney. See R&R at 25. After reviewing the record, however, the Court agrees with the Report's finding. Brandy failed to offer any evidence from the record to contravene this finding. Although he relies on his former attorney's statement to the trial court that the attorney's "objective handling of the case will be at issue," this statement does not support Brandy's contention. At best, it informed the court that Brandy was dissatisfied with his former attorney. It was insufficient, however, to put the trial court on notice regarding a conflict or to demonstrate that there was a conflict of interest.

Finally, Brandy claims that the Report erroneously concluded that "it does not appear from the face of the motion that Petitioner himself ever sought to replace counsel." To support his claim, Brandy relies on the following language in the motion presented to the trial court: "COMES NOW Defendant Elliot V. Brandy and respectfully requests that this court appoint counsel[.]" Brandy apparently perceives this standard language in the motion as inconsistent with the Report's conclusion that he himself sought to replace counsel. In fact, the Report unambiguously cites to the paragraph in the motion indicating that the motion was prepared at the initiative of Brandy's former attorney, after Brandy asked the attorney "to get this plea back." See R&R at 21, n.3.

In sum, Brandy offers no evidence, much less clear and convincing evidence, to rebut these factual findings in the Report. Accordingly, the Court adopts Judge Major's recitation of the facts in full and refers to them to the ...

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