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Lakota v. Wardell

March 25, 2009


The opinion of the court was delivered by: Robert H. Whaley United States District Judge


Before the Court is the Petitioner's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Ct. Rec. 1). Petitioner is proceeding pro se.

On September 2, 2004, Petitioner was convicted after a bench trial of four counts of misdemeanor attempted petty theft, one count of receiving stolen property, and two counts of attempting to obtain money by falsely representing himself as a public officer. His conviction was affirmed on January 30, 2007, by the California Third District Court of Appeals in an unpublished opinion. Certiorari was denied by the California Supreme Court. In the state court appeals, Petitioner raised a number of issues including the same claims that he raises before this Court.

In his Petition, Petitioner presents two Sixth Amendment claims: (1) ineffective assistance of counsel; and (2) failure to appoint counsel.


Petitioner's Petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, habeas relief may be granted only upon a finding that the last reasoned state court decision rejecting Petitioner's claims "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding." 28 U.S.C. § 2254(d).


Petitioner is not making a claim based on the sufficiency of the evidence or challenging his conviction on substantive grounds. Therefore, it is not necessary to present the underlying conduct that is the basis for Petitioner's conviction. Rather, Petitioner is challenging the legality of the proceedings. Specifically, Petitioner asserts that the underlying proceedings were defective because he was denied his Sixth Amendment rights.

The Factual Background for these claims was set forth in the California Court of Appeals decision:

On October 14, 2003, the date of the pretrial readiness and settlement conference, defendant, defense counsel, and the prosecutor met and discussed a plea bargain to two counts of attempted petty theft without any additional jail time. Defendant had three concerns. He wanted to know (1) whether the offer included an agreement by the Sutter County District Attorney's office to forego prosecution for similar behavior in their jurisdiction, (2) whether he could appeal the legal issue of his alleged right to issue, administer, and collect fines for his notices of parking violations directly to the Court of Appeals and (3) he wanted his own copy of all discovery so he could personally review it and make a determination whether to accept the offer. As to the first and second concerns, the prosecutor agreed to contact the Sutter County District Attorney's office and allow defendant to retain his right to appeal the legal issue. However, the prosecutor and defense counsel both erroneously advised defendant that if the case was disposed of as a misdemeanor, any appeal would be heard by the Butte County Superior Court. Defendant voiced his concern about appealing to the Butte County Superior Court rather than the Court of Appeals, but did not accept or reject the proffered plea at that time. The case was continued to November 3, 2003, to further investigate matters, regarding the proffered plea bargain.

On November 3, 2003, the trial date was vacated so defendant would have time to review the discovery. When the court raised the question of the plea offer, defense counsel responded "[s]till hopeful, but." Later on in the hearing, defendant advised the court he had not yet rejected the prosecution's offer but was requesting that the matter be set for Marsden*fn1 and Faretta*fn2 hearings.

On December 1, 2003, the prosecutor produced a letter from the Sutter County District Attorney's office agreeing not to prosecute defendant if he entered the proposed disposition in Butte County.

On December 12, 2003, the trial court granted defendant's Faretta motion to represent himself.

On January 26, 2004, the trial court offered to meet with the prosecutor and defendant to assist in settlement discussions and defendant agreed to ...

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