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Bobbit v. Kramer

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 21, 2009

TERRANCE BOBBIT, PETITIONER,
v.
K. C. KRAMER, ET AL., RESPONDENTS.

The opinion of the court was delivered by: James P. Hutton United States Magistrate Judge

REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS

BEFORE THE COURT is an amended Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a person in state custody (Ct. Rec. 20) and Respondent's Answer (Ct. Rec. 25). Petitioner appears pro se. Respondent is represented by Deputy Attorney General Wanda Hill Rouzan. This matter was heard without oral argument. After careful review and consideration of the pleadings submitted, it is recommended that the Petition for Writ of Habeas Corpus be denied.

At the time his petition was filed, Petitioner was in custody in Old Folsom State Prison in Folsom, California, pursuant to his 2005 Sacramento County conviction for selling cocaine and offering to sell cocaine, with an admission that he had suffered a prior serious felony conviction. (Lodged Doc. 1 at 1-2.) Petitioner, represented by counsel, pleaded no contest to these two counts and admitted the prior serious conviction in exchange for dismissal of three counts involving controlled substances and additional associated enhancements. Defendant entered his plea on the basis of a negotiated sentence with a maximum of twelve years and eight months. (Lodged Doc. 19 at 11-14, 17-18.) He faced a sentence of 25-years-to-life, or more, if convicted after trial on all five original counts and enhancements. On February 2, 2005, defendant entered his plea. On March 5, 2005, the court accepted the parties' plea agreement and imposed a sentence consistent with the agreement. (Lodged Doc. 19 at 20-23.) Petitioner raises claims of vindictive prosecution, ineffectiveness of trial and appellate counsel, and Blakely*fn1 -based sentencing error. (Ct. Rec. 20.)

I. BACKGROUND

A. Factual History

The prosecutor provided the factual basis for Mr. Bobbit's pleas:

PROSECUTOR: As to Count 1, on August 15th, 2003, in the County of Sacramento, the defendant sold a usable quantity of cocaine to a confidential informant who was working under the supervision of the United States Drug Enforcement Administration.

As to Count 2, between the dates of August 15th, 2003, and September 26th, 2003, the defendant engaged in a series of negotiations with an undercover investigator from the Sacramento County DA's office in which he offered to sell a quantity of cocaine. The bulk of those negotiations took place in Sacramento County.

And then as to prior conviction number 1, on or about June 14th, 1989, in Yolo County, he was convicted of the crime of residential burglary in violation of Penal Code Section 459. (Lodged Doc. 19 at 15.)

At the preliminary hearing, the trial court found probable cause to believe defendant had committed the crimes. (Lodged Doc. 18 at 134.)

B. Procedural History

As noted, on February 2, 2005, petitioner withdrew his not guilty plea and entered a counseled plea of no contest to one count of selling cocaine*fn2 and one count of offering to sell cocaine*fn3 and admitted that he had suffered a prior serious felony conviction. (Lodged Docs. 2,19 at 17.) At the conclusion of the hearing Mr. Bobbit was found guilty of the charges and the enhancement was found true. (Lodged Document 19 at 17-18.) Sentence was imposed on March 2, 2005. (Lodged Document 19 at 20-23.)

Prior to accepting the change of plea, the trial court advised Mr. Bobbit that if the court followed the plea agreement, he could be sentenced to a maximum period of twelve years plus eight months. (Lodged Doc. 19 at 13.) In its May 11, 2007, opinion denying Mr. Bobbit's state habeas petition, the superior court stated: petitioner was charged with five substantive offenses involving controlled substances, five Penal Code § 667.5(b) prior-prison-term enhancements, and three "strike priors" based on what may have been three different residential burglaries that were brought and tried together in one proceeding in Yolo County Superior Court. As such, petitioner faced a potential 25-years-to-life sentence, or greater.

To avoid the life sentence, petitioner entered a change of plea on February 2, 2005, in which he pleased no contest to two of the substantive charges and admitted one "strike prior" conviction and Penal Code § 667.5(b) enhancement, in exchange for a promised lid of 12 years 8 months and a dismissal of the remaining charges. In accepting the plea, the court first advised petitioner of his "right to a jury trial," which petitioner then waived.

On March 5, 2005, the trial court imposed the upper term of five years on the first count, doubled it to 10 years pursuant to the one "strike prior" that was admitted, and imposed a consecutive one-third-themidterm term of 2 years 8 months for the second count, for an aggregate term of 12 years 8 months, the stipulated lid. (Lodged Doc. 13 at 1.)

This procedural history followed:

1. Mr. Bobbit filed a brief in the Third Appellate District on October 21, 2005, in support of his appeal. (Lodged Doc. 1.)

2. The Third Appellate District dismissed Mr. Bobbit's first appeal in a published opinion issued April 7, 2006. (Lodged Doc. 2, People v. Bobbit, 138 Cal. App. 4th 445 (2006.)

3. Mr. Bobbit filed a petition for review in the California Supreme Court on May 16, 2006. (Lodged Doc. 3.)

4. The California Supreme Court summarily denied review on June 21, 2006. (Lodged Doc 4.)

5. Mr. Bobbit filed a petition for writ of habeas corpus in superior court on October 4, 2006. (Lodged Doc. 5.)

6. The superior court denied the petition in a reasoned decision issued November 27, 2006. (Lodged Doc. 6.)

7. Mr. Bobbit filed a petition for a writ in the Third Appellate District on December 18, 2006. (Lodged Doc. 7.)

8. Petitioner filed a motion for an evidentiary hearing on December 18, 2006. (Lodged Doc. 8.)

9. The Third Appellate District denied the petition without comment on January 18, 2007. (Lodged Doc. 9.)

10. Mr. Bobbit filed a petition for a writ in the California Supreme Court on February 21, 2007. (Lodged Doc. 10.)

11. The state supreme court summarily denied the petition on July 18, 2007. (Lodged Doc. 11.)

12. Mr. Bobbit filed a petition for a writ in superior court on March 14, 2007. (Lodged Doc. 12.)

13. The superior court denied the petition on May 11, 2007, in a reasoned decision. (Lodged Doc. 13.)

14. Petitioner filed a petition for a writ in the Third Appellate District on May 30, 2007. (Lodged Doc. 14.)

15. On June 7, 2007, the Third Appellate District denied the petition without comment. (Lodged Doc. 15.)

16. Mr. Bobbit filed a petition in the state supreme court on June 21, 2007, for which no disposition is available. (Lodged Docs. 16, 17.)

On August 17, 2007, Mr. Bobbit filed a second amended (current) petition for writ of habeas corpus with this Court. (Ct. Recs. 1, 20.) C. Federal and state claims

In his federal habeas petition, Mr. Bobbit raises the following claims: Federal habeas claim one: Mr. Bobbit's rights to due process under the Fifth and Fourteenth Amendments to the United States Const. were violated by vindictive prosecution when the prosecutor increased the agreed sentence from six years to twelve years eight months based on Mr. Bobbit's motion for compassionate release. (Ct. Rec. 20 at 5.)

Federal habeas claim two: Mr. Bobbit's Sixth Amendment rights were violated trail counsel's ineffective assistance when counsel failed to advise Mr. Bobbit of the consequences of his motion for compassionate release. (Ct. Rec. 20 at p. 5.)

Federal habeas claim three: Mr. Bobbit's trial counsel was ineffective because he did not "object to the prosecution's increase in the negotiated punishment." (Ct. Rec. 20 at 6.) Federal habeas claim four: Mr. Bobbit's rights under the Sixth and Fourteenth Amendments were violated by the court's imposition of an upper term sentence in violation of Blakely. (Ct. Rec. 20 at 6.)

Federal habeas claim five: Mr. Bobbit did not "waive or forfeit his right to a jury trial on aggravated circumstances" because it is a right which is not forfeited by failing to object. (Ct. Rec. 20 at 7.)

Federal habeas claim six: Mr. Bobbit's trial counsel was ineffective (in violation of the Sixth Amendment) because he made no demand for a jury trial on aggravating circumstances or because he failed to object to a judicial determination of aggravating circumstance. (Ct. Rec. 20 at 7.)

In the state's highest court, Mr. Bobbit raised the following issues, renumbered here for comparability to federal claims:

State court claim 1: Vindictive prosecution occurred when the prosecutor changed his sentencing recommendation. This issue was not raised on direct appeal in the state's highest court. (See Lodged Doc. 3). Mr. Bobbit later raised the issue in his habeas petition to the state's highest court invoking the same claim based on the same facts as in federal court and he invoked federal protections. (Lodged Doc. 10.)

State court claim 2. Trial counsel was ineffective when he failed to advise Mr. Bobbit of the consequences of moving for temporary release (federal habeas claim two). This claim was not raised on direct appeal. (See Lodged Doc. 3.) Mr. Bobbit included this claim in state court in his habeas petition to the California Supreme Court, based on the same facts as in federal court, and he invoked federal law. (Lodged Doc. 10 at 3.)

State court claim 3: Trial counsel was ineffective for failing to object to the prosecutor's negotiated increased sentencing recommendation (federal claim three). This claim was also not raised on direct appeal but raised it in the state habeas petition filed in the state's highest court; the state claim was based on the same facts as in the federal petition, and invoked federal law. (Cf. Lodged Doc. 3 with Lodged Doc. 10.)

State court claim 4: Mr. Bobbit's sentence was imposed in violation of Blakely (federal habeas claim four), because the court rather than a jury determined the aggravating circumstances. Mr. Bobbit raised this claim on direct appeal (Lodged Doc. 3 at 7-8, numbered therein as claim 2; renumbered here for readability) based on the same facts and invoking federal law.

State court claim 5: Mr. Bobbit did not waive or forfeit his right to a jury trial on aggravated circumstances because it is a right that cannot be waived or forfeited (federal habeas claim five). This claim was raised on direct appeal based on the same facts and invoking federal law. (Lodged Doc. 3 at 9-10.)

State court claim 6: If Mr. Bobbit's right to a jury determination of aggravating circumstances was waived, it was due to ineffective assistance of trial counsel. (Lodged Doc. 3 at 11-13.) Mr. Bobbit raised this claim based on the same facts and federal law in both his federal habeas petition (Ct. Rec. 20 at 7) and in the state's highest court on direct review (Lodged Doc. 3 at 11-13.)

Mr. Bobbit argued in his first petition for review in the California Supreme Court that he was not required to obtain a certificate of probable cause (Lodged Doc. 3 at 4-6). He does not raise this issue in his federal habeas petition. (Ct. Rec. 20.)

Thus, Mr. Bobbit's federal habeas petition raises some of the issues presented to the state's highest court on direct appeal (claims 4-6), while others were not presented to the California Supreme Court until collateral state habeas review (claims 1-3).

II. EXHAUSTION OF STATE REMEDIES

As a preliminary issue, Petitioner must have exhausted his state remedies before seeking habeas review. The federal courts are not to grant a writ of habeas corpus brought by a person in state custody pursuant to a state court judgment unless "the applicant has exhausted the remedies available in the courts of the State." Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008), citing 28 U.S.C. §2254(b)(1)(A). "This exhaustion requirement is 'grounded in principles of comity' as it gives states 'the first opportunity to address and correct alleged violations of state prisoner's federal rights.'" Id., citing Coleman v. Thompson, 501 U.S. 722, 731 (1991).

In order to exhaust state remedies, a petitioner must have raised the claim in state court as a federal claim, not merely as a state law equivalent of that claim. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995). The state's highest court must be alerted to and given the opportunity to correct specific alleged violations of its prisoners' federal rights. Wooten, 540 F.3d at 1023, citing Picard v. Connor, 404 U.S. 270, 275 (1971). To properly exhaust a federal claim, the petitioner is required to have presented the claim to the state's highest court based on the same federal legal theory and the same factual basis as is subsequently asserted in federal court. Hudson v. Rushen, 686 F. 2d 826, 829-30 (9th Cir. 1982), cert. denied, 461 U. S. 916 (1983).

Respondent may waive the exhaustion requirement. See 28 U.S.C. § 2254 (b)(3) ("A state shall not be deemed to have waived the exhaustion requirement or be estopped from reliance on the requirement unless the state, through counsel, expressly waives the requirement.") Respondent's answer to the petition affirmatively alleges "Petitioner has exhausted his state remedies, as required by § 2254(b), based on his having procedurally defaulted those claims in state court." (Ct. Rec. 25 at 2.) This clearly constitutes an express waiver by counsel of the exhaustion requirement of all claims. See Dorsey v. Chapman, 262 F. 3d 1181, 1187 at n. 8 (11th Cir. 2001). Generally, a habeas court may, in its discretion reach the merits of a habeas claim or may insist on exhaustion of state remedies despite a State's waiver of the defense. See Boyd v. Thompson, 147 F. 3d 1124, 1127 (9th Cir. 1998). The court's discretion should be exercised to further the interests of comity, federalism, and judicial efficiency. See id. It appears to advance the interests of the parties and judicial efficiency (without unduly offending the interests of either comity or federalism) for the Court to decide petitioner's claim is exhausted and may, unless otherwise barred, be considered on the merits.

Respondent concedes Petitioner has exhausted his state remedies, based on procedural default, and asks this court to dismiss the petition as procedurally barred. Alternatively, Respondent asks that the petition be denied on the merits. (Ct. Rec. 25 at 2, 5.) The court will assume for purposes of habeas review that Mr. Bobbit's claims have been exhausted in the state's highest court. However, even if the reviewing court disagrees, the claims are barred by procedural default, as noted below.

III. PROCEDURAL DEFAULT

Petitioner has arguably exhausted his federal habeas claims; however, they are barred by procedural default. With respect to Mr. Bobbit's federal habeas claims, the "procedural default doctrine 'bar[s] federal habeas [review] when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.'"

Calderon v. United States District Court, 96 F. 3d 1126, 1129 (9th Cir. 1996)(quoting Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). This doctrine applies when: (1) a state court has been presented with a federal claim, but declined to reach the issue pursuant to an independent and adequate state procedural rule, or when (2) it is clear that the state court would hold the claim procedurally barred. Harris v. Reed, 489 U.S. 255, 260-263 (1989). This Court may not reach the merits of procedurally defaulted claims, that is, claims "in which the petitioner failed to follow applicable state procedural rules in raising the claims"[.] Sawyer v. Whitley, 505 U.S. 333, 338 (1992), citing Murray v. Carrier, 477 U.S. 478 (1986).

Mr. Bobbit's federal claims 4, 5 and 6 are procedurally defaulted because he failed to obtain a certificate of probable cause as required by California state law. (Lodged Doc. 2 at 2-5.) As the Third Appellate District noted in its published opinion on direct appeal:

The court sentenced defendant to the maximum term permitted under the pleas agreement. Defendant thereafter filed a notice of appeal in which he appeals "from all pre-trial rulings, all rulings made at the time of defendant's plea and the Court's sentence." Defendant did not seek, nor was he granted, a certificate of probable cause. (Pen. Code § 1237.5)*fn4

The ultimate issue raised on appeal relates to the trial court's authority to impose an upper term sentence in light of Blakely v. Washington (2004) 542 U.S. 296. This argument is not cognizable on appeal because defendant did not obtain a certificate of probable cause. "'[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself' and thus requires a certificate of probable cause. [Citation.]" (People v. Shelton (2006) 37 Cal.4th 759, 766 (Shelton), quoting People v. Panizzon (1996) 13 Cal.4th 68, 79.) "[T]he specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court supra might lawfully impose an even longer term." ( , Shelton, at p. 768) "[A] provision recognizing the defendant's right to 'argue for a lesser term' is generally understood to mean only that the defendant may urge the trial court to exercise its sentencing discretion in favor of imposing a punishment that is less severe than the maximum punishment authorized by law." (Ibid.) "Of course, a prosecutor and a defendant may enter into a negotiated disposition that expressly recognizes a dispute or uncertainty about the trial court's authority to impose a specified maximum sentence---because of Penal Code section's 654's multiple punishment prohibition or for some other reason--- and preserves the defendant's right to raise that issue at sentencing and on appeal." (Shelton, supra, at p. 769, italics added & omitted.) To the extent some ambiguity exists regarding the meaning of the parties' agreement, a court should "begin with the language of the plea agreement concerning sentencing, as the trial court recited it on the record" (id. at p. 767), since "[a] negotiated plea agreement is a form of contract, and it is interpreted according to general contract principles. [Citations.]" (Ibid.)

The parties did not execute a written plea agreement.

In reciting the terms of the agreement at the change of plea hearing, the court stated that, "defendant's sentencing exposure will be 12 years, 8 months at the reduced credit rate pursuant to the three strikes law." During colloquy with defendant, the court reiterated, "Further agreement is that you would be pleading for a top sentence of 12 years, 8 months, that would be a lid. You could receive something less than that 12 year, 8 month sentence but you could also receive that 12 year, 8 month sentence. [¶] Do you understand that?" Defendant responded, "Yes, Your Honor." At the sentencing hearing, defense counsel asked the court to impose a midterm sentence rather than the upper term the probation department recommended for count one. Defense counsel did not, however, argue that the court did not have the authority to impose an upper term sentence absent jury findings that one of more aggravating factors existed. Blakely v. Washington, supra, 542 U.S. 296 was decided on June 24, 2004.

The negotiated disposition was placed on the record on February 2, 2005, and sentencing took place on March 2, 2005, both of which occurred well after the highly publicized decision, which dispels any doubt that the issue was not preserved through the oversight of defense counsel.

On this record, we concluded as a matter of law that the plea agreement did not preserve, either at sentencing or on appeal, the issue that the court did not have the authority to impose an upper term sentence in the absence of a jury finding of one or more aggravating circumstance(s).*fn5 Without a certificate of probable cause, the appeal must be dismissed. (Lodged Doc. 2 at 2-5, People v. Bobbit, 138 Cal.App.4th 445 (2006.)

Mr. Bobbit's federal habeas claims 4, 5 and 6 (Blakely claims) are clearly procedurally defaulted because he failed to obtain a certificate of probable cause as required by California state law. The reviewing court should dismiss federal habeas claims 4,5 and 6 because they are procedurally barred from habeas consideration.

Similarly, Mr. Bobbit's federal habeas claims 1,2 and 3 (vindictive prosecution claims) should be dismissed as procedurally barred, due to Mr. Bobbit's failure to comply with California's state procedural rules. The superior court set out the relevant facts related to these issues when it denied Mr. Bobbit's state habeas petition:

Petitioner challenges the judgment. . . Specifically, he claims that the prosecutor engaged in vindictive prosecution, in changing the offer of 6 years in state prison to instead be that of 12 years, 8 months, after petitioner had filed a motion to be allowed to attend his father's funeral. He claims that his appellate counsel was ineffective in failing to raise the claim on appeal, and that his trial counsel was ineffective in failing to advise him that the plea offer would be withdrawn if he moved for release to attend his father's funeral.

There is no presumption of vindictiveness in this case, from the prosecutor's increase in the punishment term of the plea bargain offered to petitioner, as this the change in the plea bargain offer occurred at a pretrial stage (People v. Edwards [citation omitted][no presumption of vindictiveness when jeopardy has not yet attached]. . . . Nor is this claim cognizable on habeas corpus, in any event. Petitioner does not claim that his trial counsel was ineffective in failing to file a vindictive prosecution claim. As such, because the claim was not raised in the trial court, and is not now couched in ineffective assistance re Seaton of counsel terms, it is barred from habeas corpus review (In (2004) 34 Cal.4th 193).

For all of these reason, the petition is denied. (Lodged Doc. 6 at 1, 3)(original emphasis).

The undersigned agrees that plaintiff's claims one through three are barred by procedural default and should be dismissed.

III. AEDPA

The current federal petition was filed December 18, 2006, and amended twice. (Ct. Recs. 1, 10, 20.) Its disposition is therefore governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), effective April 24, 1996.

In the event the court finds petitioner's claims are not barred by procedural default, the merits of his claims are discussed.

IV. MERITS

A. Standard of Review

Under AEDPA, a federal court may grant habeas relief if a state court adjudication resulted in a decision that 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 upon an unreasonable determination of the facts in light of the evidence.

28 U.S.C. § 2254 (d). "AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1) - whether a state court decision is contrary to, or involved an unreasonable application of, clearly established federal law." Lockyer v. Andrade, 538 U.S. 63, 71 (2003), referring to Weeks v. Angelone, 528 U.S. 225 at 237 (2000). Where no decision of the Supreme Court "squarely addresses" an issue or provides a "categorical answer" to the question before the state court, § 2254(d)(1) bars relief. Moses v. Payne, 543 F. 3d 1090, 1098 (9th Cir. 2008), relying on Wright v. Van Patten, __ U.S. __, 128 S.Ct. 743, 746 (2008); Carey v. Musladin, 549 U.S. 70 (2006).

Federal courts apply the Brecht standard to determine whether a constitutional error was harmless. Fry v. Pliler, 551 U.S. 112 (2000); Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). Habeas relief is warranted only if the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637 ((citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)); Bains v. Cambra, 204 F. 3d 964, 977-78 (9th Cir.) cert. denied, 531 U.S. 1037 (2000)). That is, the Petitioner is entitled to habeas relief only if he can show that any constitutional violation "resulted in actual prejudice." Brecht, 507 U.S. at 638 (internal citation omitted).

B. Federal Habeas Claim One: Vindictive Prosecution; Claims Two and Three: Ineffectiveness Related to Vindictive Prosecution

Petitioner's first federal habeas claim is that the state courts erred by denying his claim of vindictive prosecution. (Ct. Rec. 20 at 5.) Respondent answers that the issue was waived by Mr. Bobbit's failure to raise it in a pre-trial motion to dismiss as required by People v. Edwards, 54 Cal.3d 787, 827-828 (1991); see Lodged Doc. 6 at 1. (Ct. Rec. 25 at 13.) Respondent notes that this is the basis on which the superior court found the claim barred from habeas review under In re Seaton, 34 Cal.4th 193 (2004); Lodged Doc. 6 at 3. (Ct. Rec. 25 at 13.)

In federal claims two and three, Mr. Bobbit alleges ineffective assistance related to his claim of vindictive prosecution. In its review of Mr. Bobbit's state habeas petition, the superior court further analyzed these claims:

Nor does petitioner show that the offer was in fact changed specifically because he filed the particular motion. He claims that his trial counsel had received a threat of withdrawal of the plea offer if he filed the motion for release, but does not attach reasonably available documentary evidence that specifically shows that the threat was thereafter immediately carried out. Rather, he attaches to the petition only a memorandum from an investigator summarizing petitioner's own statements, that the prosecutor did not change the offer until October 11, 2004, and a letter from trial counsel stating that the prosecutor had been willing to agree to petitioner's release if petitioner entered a plea first but that if petitioner did not plead first and moved for release, the six-year deal would be off the table. That, however, does not show that the six-year deal was taken off the table at that time. Indeed, all petitioner shows is that the plea offer did not change until several months later, on October 11, 2004.

Petitioner filed the motion [for temporary release] on February 24, 2004, and a hearing was held on the motion two days later, at which time the court noted that petitioner had been offered a plea bargain for a six-year term and had not accepted it. Petitioner had opportunity right at that moment to state, in open court, that he wished to accept the plea bargain, but did not do so. The court denied the motion, and petitioner remained in custody and did not attend his father's funeral. Petitioner's attorney filed a petition for writ of habeas corpus in the Third District Court of Appeal on February 27, 2004, which was summarily denied that same day; his attorney did not seek further relief from the California Supreme Court on the matter. [website address omitted] The case then proceeded to preliminary hearing, at which petitioner was held to answer. Trial date was set but continued numerous times over a period of months and after numerous other motions, including ones to dismiss under Penal Code § 995 and for discovery, had been heard and decided. As noted above, it was not until October 11, 2004, that petitioner shows that the plea bargain was changed to instead be an offer of 12 years 8 months. Thereafter, petitioner's attorney was relieved and another appointed, and months after that, on February 2, 2005, petitioner chose to enter into the 12-years-8-months plea bargain.

Petitioner fails to show that the prosecutor was motivated to ultimately change the plea bargain months after his motion for release had been denied, specifically because he had filed that motion. Rather, the prosecutor waited until months after the preliminary hearing and other motions had been made, at which time the evidence against petitioner could be assessed, to decide to withdraw the unaccepted offer and increase the punishment offered in the bargain. During the time before the offer of six years was withdrawn, petitioner could have moved to accept the offer, but did not do so. That the ultimate withdrawal of the six-year offer and replacement of it with an offer for twice the length of that offer had any connection to petitioner's filing a motion for release to attend his father's funeral, which had long been denied and was not an issue in the case at all, is simply not shown.

Nor was appellate counsel ineffective in failing to raise this claim on appeal, as no vindictive prosecution claim was ever raised at the trial court level, rendering the matter waived on appeal (Edwards, supra).

Nor does petitioner show that his trial counsel failed to advise him that the plea offer would be withdrawn if he moved for release to attend his father's funeral. Indeed, to the contrary, petitioner attaches trial counsel's letter, stating that trial counsel told petitioner that if he went forward with the motion for release that the six-year deal would be off the table, and petitioner stated he understood that and demanded that the motion be filed. Regardless, there was no prejudice, because at the hearing on the motion for release, the six-year bargain was noted and petitioner had an opportunity to accept the bargain in open court; petitioner did not do so then or at any time thereafter in the ensuing months before the bargain was changed.

Nor is this claim cognizable on habeas corpus, in any event. Petitioner does not claim that his trial counsel was ineffective in failing to file a vindictive prosecution claim. As such, because the claim was not raised in the trial court, it is barred from habeas corpus review (In re Seaton, 34 Cal.4th 193 (2004)). [underscoring original.]

(Lodged Doc. 6 at 1-3.)

The undersigned agrees with the Respondent that the first federal habeas claim, prosecutorial vindictiveness, even if it was not procedurally barred, should be denied on the merits because the record simply does not support Mr. Bobbit's claim. The undersigned agrees with the superior court that Mr. Bobbit fails to show the required link between the prosecutor's changed plea offer and Mr. Bobbit's motion for temporary release. Pursuant to 28 U.S.C. § 2254(e)(1), if a habeas petitioner is in state custody pursuant to a state court judgment, the determination of a factual issue made by a state court shall be presumed to be correct. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003), citing 28 U.S.C. § 2254(e)(1). The facts do not support finding vindictive prosecution.

Mr. Bobbit's second federal habeas claim, that trial counsel was ineffective for failing to raise this claim, is similarly without merit. Strickland v. Washington, 466 U.S. 668 (1984) ordinarily applies to claims of ineffective assistance of counsel at the plea hearing stage. Wright v. Van Patten, __ U.S. __, 128 S.Ct. 743, 746 (2008); see Hill v. Lockhart, 474 U.S. 52, 58 (1985)("[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel").

Strickland's two-pronged test requires a showing of deficient performance and prejudice to the defendant. Strickland, 466 U.S. at 688-689. To satisfy the first prong, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. (Id., at 688.) This requires identifying the acts or omissions that are alleged to not have been the result of reasonable professional judgment. (Id., at 690.) The federal court then determines whether, in light of all the circumstances, the acts or omissions were outside the wide range of professional competent assistance. (Id.) In making this determination, there is a strong presumption "that counsel's conduct was within the wide range of reasonable assistance, and that he exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F. 2d 695 (9th Cir. 1999), citing Strickland, 466 U.S. at 689.

Second, a petitioner must prove prejudice. See Strickland, 466 U.S. at 693. Prejudice is established when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Id. at 694.) A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.

. . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F. 3d 949, 955 (9th Cir. 2002), quoting Strickland, 466 U.S. at 697.

Mr. Bobbit fails to establish ineffectiveness by his trial counsel because he does not show he suffered any prejudice. As the superior court pointed out following habeas review, at the hearing on the motion for temporary release, Mr. Bobbit had the opportunity to accept the prosecutor's offer of a six-year term in open court, but did not do so, either then "or at any time thereafter in the ensuing months before the bargain was changed." (Lodged Doc. 6 at 3.) Mr. Bobbit does not establish the merits of a vindictive prosecution claim, nor does he show any prejudice resulting from trial counsel's representation as required by Strickland. Federal habeas claim two should be dismissed on the merits.

Mr. Bobbit's third habeas claim, that appellate counsel was ineffective for failing to argue vindictive prosecution, also fails. As the superior court pointed out, Mr. Bobbit waived his claim of ineffective assistance by appellate counsel based on prosecutorial vindictiveness by failing to raise the issue vindictive prosecution in the trial court. The superior court cites People v. Edwards, 54 Cal.3d 787, 827-828 (1991) as support. (Lodged Doc. 6 at 2.)

The superior court is correct. In Edwards, supra, the court stated:

"[B]ecause a claim of discriminatory prosecution generally rests upon evidence completely extraneous to the specific facts of the charged offense, we believe this issue should not be resolved upon evidence submitted at trial, but instead should be raised . . . through a pretrial motion to dismiss." Murgia v. Municipal Court, 15 Cal.3d 286, 293-294, fn. 4 (1975). This rationale applies to claims of vindictive prosecution. (See also People v. Toro, 47 Cal.3d 966, 976 (1989)[defendant must object to amendment of information at trial to preserve a lack-of-notice-objection]; People v. Sperl, 54 Cal. App. 3d 640, 656-657 (1976). . . .

In In re Bower , supra, 38 Cal.3d at pages 874-877, and , 34 Cal.3d at pages 369-374, we found a presumption of vindictiveness when charges were increased after the assertion of constitutional rights and after jeopardy had attached. As stated in Bower, supra, "The timing of the prosecutor's action is important because '[a] prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct [Fn. omitted.]'.

People v. Edwards, 54 Cal.3d at 827-828.

Twiggs v. Superior Court, supra

Mr. Bobbit cannot establish prosecutorial vindictiveness in violation of due process; accordingly, he cannot establish trial or appellate counsel ineffectively represented him on this basis. Nor does he establish prejudice from his representation as required by Strickland. Mr. Bobbit's federal claims two and three should be dismissed because they are without merit.

C. Federal Claims Four, Five and Six - Blakely Error

Mr. Bobbit argues in claim four that the trial court violated his rights under the Sixth and Fourteenth Amendments by imposing an upper term sentence in violation of Blakely, supra, i.e., based on the court's, rather the jury's, determination of aggravated circumstances. (Ct. Rec. 20 at 6.) As the Third Appellate District noted on direct appeal, in the last reasoned decision on this issue:

. . . At the sentencing hearing, defense counsel asked the court to impose a midterm sentence rather than the upper term the probation department recommended for count one. Defense counsel did not, however, argue that the court did not have the authority to impose an upper term sentence absent jury findings that one or supra more aggravating factors existed. Blakely v. Washington, , 542 U.S. 296 was decided on June 24, 2004. The negotiated disposition was placed on the record on February 2, 2005, and sentencing took place on March 2, 2005, both of which occurred well after the highly publicized decision, which dispels any doubt that the issue was not preserved through the oversight of defense counsel.

On this record, we conclude as a matter of law that the plea agreement did not preserve, either at sentencing or on appeal, the issue that the court did not have the authority to impose an upper term sentence in the absence of a jury finding of one or more aggravating circumstance(s). [Fn. 2 omitted.] (Lodged Doc. 2 at 4-5.)

The court's omitted footnote [fn 2] indicates that, even if the court were to decide the matter on the merits, they would reject defendant's argument based on People v. Black, 35 Cal.4th 1238, 1244, 1254 (2005)(Black I.)

Interestingly, People v. Black, 41 Cal.4th 799 (Black II), issued in 2007, followed the decision in Cunningham v. California, 594 U.S. 270 (2007), where the United States Supreme Court disagreed with the California court's initial decision (Black I). However, for purposes of this habeas petition, Black II does not mandate a different result.

In Black II, the California Supreme Court noted: The Sixth Amendment question, the Court has said, is whether the law forbids unless a judge to increase defendant's sentence the judge finds facts that the jury did not find (and the offender did not concede)." (Rita v. United States (2007) 551 U.S. 338). For this reason, we agree with the Attorney General's contention that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant's right to jury trial.

People v. Black, 41 Cal.4th 799 (2007)(Black II).

Mr. Bobbit's fourth claim, that he was sentenced in violation of Blakely, is without merit. Mr. Bobbit gave up his right to a jury trial -- a jury's determination of any issue, on the record before he changed his plea. (Lodged Doc. 19 at 12.) Mr. Bobbit's counsel conceded at the sentencing hearing that the probation report listed under circumstances in aggravation "that my client's crimes are numerous. We do not deny that." (Lodged Doc. 19 at 21.) The sentencing judge stated: "the court does believe that, in light of the defendant's many priors, his multiple prior prison terms," the 12 year, 8 month term is appropriate. (Lodged Doc. 19 at 22.) Even if Blakely applied to changed pleas, the sentencing judge appropriately relied on Mr. Bobbit's conceded aggravating circumstances of multiple prior convictions and prison terms. These aggravating circumstances clearly rendered Mr. Bobbit eligible for the upper term the court imposed.

Mr. Bobbit is unable to establish any error with respect to the trial court's sentencing. Accordingly, federal habeas claim four should be dismissed.

Similarly, Mr. Bobbit's fifth federal claim, that he did not "waive or forfeit his right to a jury on aggravating circumstances" is plainly unsupported, as Mr. Bobbit waived his right to a jury trial in open court, as noted. (See Lodged Doc. 19 at 12.) Mr. Bobbit's fifth federal habeas claim should be dismissed because it is unsupported by the record.

Mr. Bobbit's sixth and final federal habeas claim is that trial counsel was ineffective when he failed to demand a jury trial on aggravating circumstances, or when he failed to object to a judicial determination of aggravating circumstances. These claims fail because: (1) Mr. Bobbit personally waived his right to jury trial in open court; (2) he agreed he has numerous prior convictions, and (3) Mr. Bobbit shows no prejudice resulting from trial counsel's representation as required by Strickland. As noted, Mr. Bobbit plead no contest to two of five original counts, and obtained an agreement to a recommended sentencing lid of 12 years, 8 months - even though he faced 25-years-to-life, or more, if convicted after trial. Because Mr. Bobbit does not establish prejudice, his sixth federal habeas claim should be dismissed.

Mr. Bobbit also does not show that any of the state court decisions were contrary to, or involved an unreasonable application of, clearly established federal law, or resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence, as required by habeas jurisprudence. See e.g., Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Moses v. Payne, 543 F. 3d 1090, 1097-1098(9th Cir. 2008). Accordingly, Mr. Bobbit's habeas allegations are without merit.

V. CONCLUSION

For the reasons stated above, IT IS RECOMMENDED the Petition for Writ of Habeas Corpus (Ct. Rec. 1, 20) be DENIED.

OBJECTIONS

Any party may object to the magistrate judge's proposed findings, recommendations or report within ten (10) days following service with a copy thereof. Such party shall file with the Clerk of the Court all written objections, specifically identifying the portions to which objection is being made, and the basis therefor. Attention is directed to Fed. R. Civ. P. 6(e), which adds another three (3) days from the date of mailing if service is by mail. A district judge will make a de novo determination of those portions to which objection ids made and may accept, reject, or modify the magistrate judge's determination. The district judge need not conduct a new hearing or hear arguments and may consider the magistrate judge's record and make an independent determination thereon. The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

See 28 U.S.C. § 636 (b) (1) (C) , Fed. R. Civ. P. 73, and LMR 4, Local Rules for the Eastern District of Washington. A magistrate judge's recommendation cannot be appealed to a court of appeals; only the district judge's order or judgment can be appealed.

The District Court Executive SHALL FILE this report and recommendation and serve copies of it on the referring judge and the parties.


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