The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus, all of the records herein, the Report and Recommendation of United States Magistrate Judge ("Report"), and Respondent's Objections. The Court has conduced a de novo review of those matters to which objections have been stated in writing.
As respects Respondent's position that the ineffective assistance claim based on counsel's failure properly to advise petitioner respecting the pretrial plea offer is unexhausted, the court agrees with Judge Nagle that the "shift[ ] [in] the focus" of petitioner's claim at the evidentiary hearing did not "'fundamentally alter the legal claim already considered by the state courts.'" Chacon v. Wood, 36 F.3d 1459, 1468 (9th Cir. 1994). As in Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999), the factual basis for petitioner's claim has at all times been the advice, or lack thereof, that trial counsel provided with respect to the state's pretrial plea offer. See id. at 364-65 (concluding that a claim based a "bailiff's contact with the jury after it sent out its note" was not unexhausted because the factual predicate for the claim changed from an allegation that the bailiff instructed the jury to keep deliberating, to an allegation that he instructed jurors that a verdict was required on all counts). Moreover, as Judge Nagle noted, petitioner submitted a declaration to the state courts that specifically raised the fact that he did not understand "the difference between a parole eligible life sentence and a life sentence without possibility of parole." The court thus concludes that the claim was "fairly presented" to the state courts.
The court also agrees with Judge Nagle that counsel's advice to petitioner that there was no functional difference between a sentence of life without the possibility of parole and a parole-eligible life sentence was grossly erroneous. As the Ninth Circuit noted in Villegas v. Yearwood, 131 Fed. Appx. 93 (9th Cir. Apr. 22, 2005) (Unpub. Disp.), there is a "significant difference between a possible sentence of life without parole, and a mandatory sentence of life without parole." Id. at 95 ("Even had the state court applied the correct law, its decision was based on an unreasonable determination of the facts when it failed to take account of the undisputed fact that Villegas did not know that he was facing a mandatory life without parole sentence. The court concluded that Villegas was not prejudiced because he 'knew ... life without the possibility of parole to be a possibility' ; it did not independently consider that Villegas did not know that if he was convicted life without parole was the only possibility").
Finally, the court agrees with Judge Nagle that petitioner was prejudiced by the erroneous advice. The standard governing prejudice is whether there is a "reasonable probability" that petitioner would have accepted the plea offer if he had been properly advised. Respondent argues that "it is highly unlikely that Petitioner would have been motivated to accept an offer that would have required him to spend at least twenty years of his life in prison with an expectation that he might never get released." To the contrary, the court finds it reasonably probable that, weighed against the prospect that he would never get released, this offer would have been attractive to petitioner. Indeed, he so testified at the evidentiary hearing. Respondent argues that petitioner has proclaimed his innocence, and that this cuts against any finding that he would have entered a guilty plea had he been properly advised. Respondent refers to petitioner's statement at the sentencing hearing that "[h]opefully some day the truth will come out." As Judge Nagle noted in her order, however, petitioner testified at the evidentiary hearing that he was referring to the fact that Robert Martinez hid the murder weapon in their shared bedroom, not him. Petitioner's statement, therefore, was not necessarily a proclamation of actual innocence; rather, it was a statement -- appropriate for sentencing -- that addressed his overall level of culpability vis-á-vis others. Similarly, petitioner's statement in his declaration that he "didn't know what [Lopez] was going to do" is consistent with petitioner's assertion that he knew Lopez intended to rob the Denny's but did not know that he intended to shoot anyone.
The court notes that Respondent has raised once again an assertion that the Petition is untimely and that reconsideration of an earlier ruling that petitioner was entitled to equitable tolling is warranted based on "recently uncovered evidence." Judge Nagle denied the motion for reconsideration on November 5, 2008, because Respondent could have discovered the evidence it now presents at the time the motion to dismiss was originally heard more than three years ago. The court concurs.
Having completed its review, the Court accepts and adopts the Magistrate Judge's Report and the findings of fact, conclusions of law, and recommendations therein.
IT IS ORDERED that: (1) the Petition is DENIED with respect to Ground Two; (2) the Petition is GRANTED based on Ground One and a conditional writ of habeas corpus shall issue as follows: Respondent shall discharge Petitioner from custody and all adverse consequences of his conviction in Los Angeles Superior Court Case No. LA023268, unless the State of California reinstates its former plea offer, namely, a sentence of 25 years to life, within ninety (90) days of the date the Judgment herein becomes final, plus any additional delay authorized under state law; and (3) Judgment shall be entered dismissing this action with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on counsel for Petitioner and counsel for Respondent.
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