The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the Report and Recommendation (Doc. # 39) of Magistrate Judge Jan M. Alder recommending that this Court deny the Petition for Writ of Habeas Corpus (Doc. # 1).
On November 14, 2006, Petitioner Gerald D. Keeler pleaded guilty in San Diego County Superior Court to two counts of possession of cocaine base stemming from two separate cases, and admitted an enhancement that he committed one crime while on bail. The trial court suspended imposition of sentence, placed Petitioner on three years' probation, and ordered him to drug treatment.
On February 15, 2007, the trial court found Petitioner violated his probation by testing positive for drugs. The court reinstated probation and ordered Petitioner to seek a referral from probation for residential drug treatment.
On May 18, 2007, the trial court found Petitioner violated probation for being arrested while he was under the influence, and reinstated probation and ordered Petitioner to continue drug treatment.
On July 2, 2007, the trial court conducted a hearing on an alleged third violation of Petitioner's probation based on positive drug tests. At the hearing, Petitioner's counsel, Deputy Public Defender Marsha Dugan, told the court, "[Petitioner] and I discussed, way back in May, his desire to go into a [Veterans Village of San Diego] program, but as the court can see ... he's got an ankle bracelet, which is a monitoring device for a Temecula misdemeanor for domestic violence. And he still lives with his wife, with permission of the court. The situation in Temecula is preventing him from qualifying for a residential treatment program." (Lodgment No. 2, Tr. at 15). Petitioner's counsel requested that the matter be set for an evidentiary hearing in three weeks. The trial court granted Petitioner's request and set the matter for an evidentiary hearing on July 30, 2007. The court stated: "[E]ven with the ankle bracelet, you're still testing positive. I understand addiction, but I'm concerned basically for you. I don't know what I can do at this time, other than to tell you that if you are in the V.A. [drug treatment] program, I really hope you work that program between now and the time I see you in about three to four weeks." Id. at 18.
On July 30, 2007, Petitioner, represented by Deputy Public Defender Cheryl Landi, appeared for the evidentiary hearing. Landi requested "that this case be continued so that Mr. Keeler can ... hire Mr. Quirk, who is handling his other cases, to handle this matter." Id. at 20. Landi told that trial court "that it appears that [Petitioner] may have picked up a new case, which is possession of a pipe." Id. at 20-21. Landi stated:
As to the evidentiary hearing for his discharge [from a drug treatment program], which is based on a positive test, I guess there is some issue as to the testing that was conducted. This is the first time I've been made aware of it, ... and ... we didn't subpoena anybody from there or any of the tests. So the only information we would have is from probation, ... and that is that he had three positive tests [on May 17, 2007, May 21, 2007, and June 7, 2007].
So I'm asking the court to strongly consider that in order for him to have a fair hearing, ... that the matter be put over and he either retain Mr. Quirk, or, our office will have to subpoena those records from the V.A. regarding the testing.
The prosecutor opposed the request for a continuance, stating that "Mr. Quirk has been [Petitioner's] counsel ... on both of these matters in the past," but the public defender was substituted in one case on December 14, 2006 and on the other case on February 15, 2007. Id. at 22. The prosecutor stated:
Defendant has had approximately a month from [July 2, 2007] to retain Mr. Quirk. He has not seen fit to do so. He has present, competent counsel who can proceed. ... He has a right to counsel of his own choice. We do not dispute that. But this appears, on the totality of the circumstances, to be nothing more than a delaying matter, and we would ask the court to continue with the evidentiary hearing today.