UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 26, 2008
MARK DARULIS, PETITIONER,
VINCENT J. IARIA, RESPONDENT.
The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER ADOPTING IN PART AND REMANDING IN PART THE REPORT AND RECOMMENDATION
Petitioner Mark Darulis, proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition"). The case was referred to United States Magistrate Judge Cathy Ann Bencivengo for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). Respondent filed a response and Petitioner filed a traverse. The Magistrate Judge issued a Report and Recommendation, recommending to deny the Petition. Petitioner timely objected. Respondent did not respond. For the reasons which follow, the Report and Recommendation is ADOPTED IN PART AND REMANDED IN PART.
Petitioner pled guilty to driving under the influence. He claims ineffective assistance of counsel in violation of the Sixth Amendment and violation of his due process rights in that his guilty plea was not knowing and voluntary. The Magistrate Judge recommended denying all of Petitioner's claims.
In reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc) (emphasis in original); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review).
The Magistrate Judge recommended to deny Petitioner's claims of ineffective assistance which allegedly took place before his guilty plea. (Report and Recommendation ("R&R") at 6-7.) "[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea . . .." Tollett v. Henderson, 411 U.S. 258, 267 (1973); see also Moran v. Godinez, 57 F.3d 690, 700 (9th Cir.1994) ("As a general rule, one who voluntarily pleads guilty to a criminal charge may not subsequently seek federal habeas relief on the basis of pre-plea constitutional violations"), overruled on other grounds in Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). Petitioner does not object to the recommendation to deny the ineffective assistance claims.
However, Petitioner objects to the Magistrate Judge's recommendation to deny his claim that his guilty plea was not voluntary. First, Petitioner claims he pleaded guilty under duress of having imminently to represent himself at trial.
Initially, a public defender was appointed to represent Petitioner. However, when he was not satisfied with his counsel's motion to suppress, Petitioner moved to act as co-counsel. This motion was denied, the public defender was released, and Petitioner was found competent to represent himself. Petitioner signed a waiver under People v. Lopez, 71 Cal. App. 3d 568 (1977), but interlineated "concerning the motion hearing PC 1538.5 only. Does not include trial." Petitioner then withdrew the public defender's motion and filed his own motion to suppress.
On April 5, 2004, Petitioner's motion for reappointment of counsel was granted, and the motion to suppress hearing and trial were set for April 21, 2004.
At the April 21 hearing, the new public defender indicated he would not pursue the motion to suppress. Petitioner then requested to represent himself. After a long discussion with Petitioner, the judge acceded to Petitioner's request to represent himself for purposes of the motion and trial. The judge told Petitioner that he would not appoint counsel for him for the third time, and told Petitioner that trial would begin next morning. Petitioner did not request a continuance.
The next day, Petitioner's motion to dismiss was denied and the trial was continued to April 23, 2004. On April 23, the case was reset for April 26 and assigned to a new judge where it was to trail another case.
Petitioner's case came on for hearing on April 28, 2004. The new judge heard and denied Petitioner's motion to suppress. After a hearing on additional motions, Petitioner told the new judge that he was representing himself and was not ready for trial. Petitioner's motion for a continuance was denied. After Petitioner's peremptory challenge was denied, he requested a continuance to allow him to obtain counsel. The judge reminded Petitioner that he had requested to represent himself, and presented him with the choice of proceeding with a jury or court trial, or pleading guilty. During motions in limine, Petitioner asked if he could plead guilty and reserve the right to vacate the plea, but was told that he could not. The jury was then summoned.
On April 29, 2004, Petitioner decided to plead guilty. He was sentenced to 5 years of probation and a fine. Petitioner's subsequent post-conviction motions and petitions to change or set aside his plea were denied. (For the foregoing procedural background, see Lodgment No.
In his Objections, Petitioner first argues that the trial judge violated California law when he denied his motion for a continuance on April 28, 2004. He claims that under People v. Maddox, 67 Cal.2d 647, 653 (1967), he had a right to at least five days to prepare for trial.
Federal courts reviewing a state habeas corpus petition are not permitted and lack jurisdiction under 28 U.S.C. § 2254 to review state court application of state law.*fn1 Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999). Accordingly, this court is without jurisdiction to review Petitioner's claims of state law violations.
Petitioner next argues that his guilty plea was not voluntary because just signing the plea form was not sufficient to establish his voluntariness. Petitioner relies on United States v. Medina-Silverio, 30 F.3d 1 (1st Cir. 1994) and McCarthy v. United States, 394 U.S. 459, 467 (1969). Both cases rely on Rule 11 of the Federal Rules of Criminal Procedure and are therefore not applicable to this proceeding.
Nevertheless, Petitioner contends that the trial court failed to conduct a colloquy to ensure a voluntary and knowing plea. (Objections at 3.) The acceptance of a plea of guilty must be based on a reliable determination on the voluntariness issue which satisfies the defendant's constitutional rights. Boykin v. Alabama, 395 U.S. 238, 242 (1969). A guilty plea "demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought." Id. at 243-44. The voluntariness of the plea cannot be inferred from an inadequate record; instead, due process requires an affirmative showing in the record to support that determination. Id. at 242. The Report and Recommendation points solely to Petitioner's change of plea form and does not mention a colloquy or discuss its absence. (See R&R at 8.)
In addition, Petitioner contends that the trial judge inserted the level of intoxication into the plea form after Petitioner had already signed and initialed it. Petitioner suggests that the factual basis he signed and initialed was insufficient to support a guilty plea. The Report and Recommendation is apparently based on the assumption that the alteration was made before Petitioner singed and initialed the form. (See id. at 8 n.5.)
Accordingly, the Report and Recommendation is ADOPTED with respect to Claims 1 and 2 for ineffective assistance of counsel. The Report and Recommendation is REMANDED with respect to Claim 3 that Petitioner's guilty plea was not knowing and voluntary. On remand, the court shall consider and, if necessary, develop the record regarding Petitioner's guilty plea and consider whether the alleged alteration of Petitioner's change of plea form necessitates an evidentiary hearing.
IT IS SO ORDERED.