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Bjorstrom v. Gonzalez

May 4, 2009

GARY LEE BJORSTROM, PETITIONER,
v.
F. GONZALEZ, WRIT OF HABEAS CORPUS RESPONDENT.



The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION; AND ORDER DENYING PETITION FOR

Petitioner filed his petition for writ of habeas corpus, which he then amended. Pursuant to 28 U.S.C. § 636 and Civil Local Rule 72.1(d), this matter was referred to Magistrate Judge Ruben Brooks for report and recommendation. After receiving Respondent's answer and Petitioner's traverse, Judge Brooks issued his report and recommendation (the "R&R"), recommending denial of the petition.

I. Legal Standards

A district judge "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b)(3); see 28 U.S.C. § 636(b)(1). A party objecting to the recommended disposition of the matter may "serve and file specific written objections to the proposed findings and recommendations," and "a party may respond to another party's objections." Rule 72(b). "[T]he court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). That statutory provision does not require that the district court conduct some lesser review when no objections are filed. Thomas v. Arn, 474 U.S. 140, 149--50 (1985); but see Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007) (holding the magistrate's conclusions of law are reviewed de novo, regardless of whether any party has filed objections thereto).

II. Discussion

The basis for the recommended denial was the finding that Petitioner had procedurally defaulted, barring this Court's review. The R&R correctly notes the independent and adequate state ground doctrine "bar[s] federal habeas when a state court decline[s] to address a prisoner's federal claims because the prisoner [has] failed to meet a state procedural requirement." Coleman v. Thompson, 501 U.S. 722, 729--30 (1991). The R&R looked to the last reasoned state court decision, see Ylst v. Nunnemaker, 501 U.S. 797, 801--06 (1991), which was issued by the California Court of Appeal. That decision held that Petitioner had not complied with the procedural requirement that he first obtain a certificate of probable cause as required under Cal. Penal Code § 1237.5, and therefore could not challenge the voluntariness of his guilty plea. California courts strictly require full and timely compliance with § 1237.5. People v. Mendez, 19 Cal.4th 1084, 1099 (1999). Assuming the R&R's analysis is correct, Petitioner's procedural default in state court bars this Court from granting habeas relief.

Petitioner filed objections to the R&R, in which he says he told his counsel he wished to prosecute an appeal but his counsel failed to obtain the required certificate of probable cause. (Obj. to R&R, 1:23--3:6.) He therefore cites People v. Pinon, 96 Cal.App.3d 904, 908 n.4 (Cal. App. 2. Dist., 1979) (citing People v. Ribero, 4 Cal.3d 55, 65 (1971)) for the principle that he is entitled to relief from the default. He claims he repeatedly brought this issue up to state courts.

The Court has reviewed the record and finds that while Petitioner argued to state courts that his attorney was at fault for failing to obtain a certificate of probable cause, he never sought relief from the default by attempting to obtain one even after he knew of the requirement. Although he filed his own brief in the state court of appeal and supreme court, no statement that might satisfy the requirements of § 1237.5 appears in the record.*fn1

While will likely be of little comfort to Petitioner, it appears unlikely a certificate would have bee granted had he sought relief from the default. Where counsel has failed to obtain a certificate of probable cause, California courts first ask whether counsel's representation fell below an objective standard of reasonableness and, if so, whether there is a reasonable probability the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); People v. Berryman, 6 Cal.4th 1048, 1081 (1993), overruled on other grounds in People v. Hill, 17 Cal.4th 800, 823 n.1 (1998). A reasonable probability is a probability "sufficient to undermine confidence in the outcome." People v. Adkins, 103 Cal.App.4th 942, 950 (2002).

Petitioner's counsel's failure to obtain a certificate of probable cause did not fall below an objective standard of care and, even if it had, there is no reasonable probability the outcome would have been different. Even if Petitioner had properly submitted a statement under penalty of perjury contending he was coerced into pleading guilty, the trial court would likely have rejected it as having an inadequate factual basis.

Petitioner's claim is based on his perception that the trial judge coerced him into pleading guilty to two counts rather than going to trial on five. The pertinent discussion between the trial judge and Petitioner's trial counsel, Mr. Gilham, was as follows:

The Court: Are you ready to go on this [trial]? Before we do, let me just say Mr. Gilham, that, for the record, we met informally in chambers and there was some discussion between counsel about [a] potential plea in this matter, in which case I would send it back to Department 31.

And I take it the defendant wants to go forward. And I take it, based on that, that you've advised him that things could get worse if he's convicted in ...


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