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Cruz v. Veal

December 29, 2008

ALBERT CRUZ, PETITIONER,
v.
VEAL, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner's amended petition for a writ of habeas corpus (Doc. 9), respondents' answer (Doc. 26), and petitioner's reply (Doc. 31).

I. BACKGROUND

Pursuant to a plea agreement, petitioner pleaded no contest to first degree burglary and admitted two prior convictions. On July 21, 2005, petitioner was sentenced to a nine-year term in state prison. On direct appeal, the California Court of Appeal appointed counsel who filed a brief pursuant to People v. Wende, 25 Cal. 3d 436 (1979). After petitioner failed to file a pro se supplemental brief, the Court of Appeal affirmed the conviction and sentence on March 15, 2006. Petitioner did not seek review by the California Supreme Court.

Petitioner filed a post-conviction action in the Sacramento County Superior Court on January 4, 2006, which the court denied on April 17, 2006. The state court noted:

Petitioner . . . claims his attorney was ineffective in his criminal case . . . for failing to file a Romero motion seeking to have his prior conviction stricken in the interest of justice under Penal Code section 1385. He asks the court to consider that, at the time of his plea, his AIDS and a brain infection were "full blown," and that at the time of the plea he was on a high dose of "psych meds." This made it impossible for him to have a knowing plea of guilty. . . .

Petitioner's claims can be divided into three categories: claims that his counsel was ineffective in his criminal case; petitioner's claim that his plea was not valid; petitioner's claim that the conduct credits on the 5-year enhancement should not be limited to 20 percent . . .

Because petitioner does not raise any claims relating to limitation of conduct credits in the instant federal petitioner, the court will focus on the state court's analysis of the remaining claims. As to ineffective assistance of counsel, the state court held:

Petitioner's claims of ineffective assistance of counsel can be summarized as follows: 1) counsel failed to make a Romero motion; 2) counsel failed to challenge a line-up in the field; 3) counsel failed to present a psychological report that was prepared; 4) counsel told him, if he did not plead guilty, he would receive a life sentence.

Here, petitioner has not alleged any facts showing that his counsel was ineffective. Petitioner was held to answer on two counts of first degree burglary and one count of receiving stolen property. He had five prior "serious felony" convictions which, if found true, would have resulted in a life term under the "three strikes" sentence. Because of the plea agreement, he was only convicted of one of the burglaries and admitted one of the prior "serious felony" strikes and he was sentenced to the low term for the burglary. In other words, he received an advantageous deal by being sentenced to 9 years in state prison.

None of the grounds stated by petitioner show ineffective assistance of counsel. Based on petitioner's record, no judge would have considered granting a Romero motion to strike the one prior conviction that petitioner did admit. And, if counsel told him he faced a life sentence, she was correct.

Petitioner last claims that his counsel was ineffective for failing to "present" a psychological evaluation by Dr. Jeffrey E. Miller, Ph.D. Petitioner does not state what this evaluation that should have been presented would have shown. It states that petitioner suffers from AIDS/HIV and a brain infection and has shown symptoms of brain deterioration. It also states that petitioner has a history of chronic heroin abuse. Dr. Miller states that petitioner is functioning at a mildly retarded range of intelligence. The report does not evaluate or otherwise suggest that petitioner was insane at the time of the offenses or that he was not competent to stand trial or that his plea was not knowing and intelligent. Petitioner has failed to state how this report would have helped his case and how his counsel was ineffective for not "presenting" it.

As to petitioner's claim that his plea was not valid, the state court held:

Along with petitioner's request to have a Romero hearing, petitioner asks the court to consider that he has full blown AIDS and a brain infection. He also states:

"And at the time he plead (sic) guilty he was on a high dose of psych meds 1000 mg of seroquel. This med made it impossible for defendant to make a knowing plea of guilty."

Also attached to the petition is the letter from the CARES doctor dated 5 months before petitioner entered his plea. It states that, since his incarceration, ...


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