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Lopez v. Jenkins

December 10, 2009

ERNESTO RIVAS LOPEZ, PLAINTIFF,
v.
MACK JENKINS, CHIEF PROBATION OFFICER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

I. Introduction

Ernesto Rivas Lopez filed a petition for writ of habeas corpus (the "Petition") in this Court on March 12, 2008. Pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(d), the Petition was referred to Magistrate Judge Anthony J. Battaglia for a report and recommendation (R&R). Mr. Lopez was not in custody when he filed the Petition. Rather, he was, and still is, on probation. His term of probation is scheduled to expire on June 20, 2010.

II. Factual Background

On May 13, 2005, a jury convicted Lopez of (1) possession of cocaine for sale, (2) possession of methamphetamine for sale, (3) possession of marijuana for sale, (4) possession of ketamine, (5) possession of paraphernalia used for narcotics, and (6) unauthorized possession of a hypodermic needle or syringe. He was sentenced to 365 days in county jail and five years on probation. His Petition raises two ineffective assistance of counsel claims, accusing his attorney, first, of not pursuing an "upward plea" that would have avoided the adverse immigration consequences of an aggravated felony conviction, and second, of failing to investigate possible defenses to the charges that Lopez possessed drugs with the intent to sell them.

III. Legal Standards

A district court has jurisdiction to review a Magistrate Judge's report and recommendation. Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district court may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3). In other words, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

IV. Discussion

Under 28 U.S.C. § 2254(d):

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --

(1) 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

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented.

28 U.S.C.A. 2254(d). With two ineffective assistance of counsel claims, this standard leaves the Court with four questions to ask of the California Court of Appeal's decision denying Lopez habeas relief. First and second, was the Court of Appeals' rejection of Lopez's ineffective assistance claim based on his trial counsel's failure to pursue an upward plea an unreasonable application of federal law, and was it an unreasonable determination of the facts in light of the evidence? Third and fourth, was the Court of Appeals' rejection of Lopez's ineffective assistance claim based on his trial counsel's failure to investigate possible defenses an unreasonable application of federal law, and was it an unreasonable determination of the facts in light of the evidence? The R&R gave a thorough treatment to each question, as did Lopez's objection to the R&R. The Court will take up each question in the same sequence as the R&R.

A. Ineffective Assistance - Failure to Pursue an Upward Plea

As the R&R explains, Lopez was granted asylum by the United States in 1999, and he stands to lose his asylum status and face deportation because of his conviction for possessing cocaine, methamphetamine, and marijuana for sale. Lopez maintains, however, that he was denied the effective assistance of trial counsel when his attorney failed to advise him of -- and failed to pursue -- "potential plea bargains that did not include felonies considered aggravated felonies under federal immigration law -- plea bargains that would have avoided the mandatory loss of Mr. Lopez's asylum." (Pet. 6.) These bargains are called "upward pleas" because they are pleas to more ...


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