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Crosby v. Schwartz

August 18, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


I. Introduction

Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2002 conviction for willfully failing to notify the sheriff of his change of address as a sex offender (Cal. Penal Code § 290(g)) and for failing to register as a sex offender within five days of his birthday (Cal. Penal Code § 290(a)(1)(C)). Petitioner is serving a sentence of 26 years to life pursuant to the Three Strikes Law.

This action is proceeding on the amended petition filed December 30, 2005. (Dkt. No. 40.) The petition raises the following claims: 1) invalid waiver of right to a jury trial (claims A and B); 2) trial court erred by failing to allow petitioner to withdraw his waiver of his right to a jury trial (claim C); 3) denial of right to jury trial on prior conviction used to enhance his sentence (claim D); 4) his conviction violates the Ex Post Facto clause, double jeopardy and due process (claim E); 5) his sentence violates the Eighth Amendment (claim F); 6) the trial judge abused discretion by failing to strike his prior convictions (claim G); 7) ineffective assistance of counsel (claims H, I, J); 8) ineffective assistance of appellate counsel (claim K); 9) insufficient evidence (claim J).

After carefully reviewing the record, the undersigned recommends that the petition be denied.

II. Anti-Terrorism and Effective Death Penalty Act ("AEDPA")

In Williams (Terry) v. Taylor, 529 U.S. 362 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 405. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law; or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.

"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Id. at 407-08. It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 410-11 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19 (2002).

"Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority, in arriving at their decision. Early v. Packer, 537 U.S. 3 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. at 9.

However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).

When reviewing a state court's summary denial of a claim, the court "looks through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000).

The California Court of Appeal was the last state court to issue a reasoned decision addressing petitioner's claims that he was denied his right to a jury trial because he did not expressly waive that right (claim B), the trial court erred in failing to allow him to withdraw his jury trial waiver (claim C), his claim that he did not waive his right to a jury trial as to his prior convictions (claim D), his claim alleging violation of the Ex Post Facto Clause (claim E), his claim alleging that his sentence violated the Eighth Amendment (claim F), and his claim alleging that the trial court abused its discretion in refusing to strike one of his prior convictions (claim G). The undersigned considers whether the denial of those claims by the California Court of Appeal was an unreasonable application of clearly established Supreme Court authority.

Although not referenced by respondent, petitioner filed a habeas corpus petition in the Sacramento County Superior Court. A copy of the order denying the petition is attached to petitioner's traverse. Dkt. No. 57, pp. 44-45 of 112. The Superior Court issued a reasoned decision addressing petitioner's claims that counsel was ineffective for failing to call Dr. Miller to testify (claim H) and for failing to call witnesses at the sentencing hearing (claim I). Accordingly, the undersigned considers whether the denial of those claims by the Superior Court was an unreasonable application of clearly established Supreme Court authority.

Petitioner's remaining claims were denied by the California Supreme Court in summary opinions. (Respondent's Exhibits H, J.) Accordingly, the undersigned independently reviews the record to determine whether the denial of the remaining claims by the California Supreme Court was an unreasonable application of clearly established Supreme Court authority.

III. Background

The opinion of the California Court of Appeal contains a factual and procedural summary. After independently reviewing the record, the undersigned finds this summary to be accurate and adopts it below.


The People filed an amended information charging defendant with willfully failing to register as a sex offender (Pen.Code*fn1 § 290, subd. (a)), willfully failing to notifying the sheriff of his change of address (§ 290, subds.(f), (g)(2)), and failing to register within five days of his birthday (§ 290, subds. [former] (a)(1)(c), (g)(2)).

The information also charged defendant with having three prior convictions that brought him within the three strikes law. (§§ 667, subds.(b)-(I), 1170.12.) Those prior convictions were for forcible rape, forcible oral copulation, and robbery. (§§ 261, subd. (a)(2), 288a, subd. (c), 211.) The information alleged the robbery count supported an additional one-year state prison enhancement under section 667, subdivision (b).

At trial, Sacramento Sheriff's Deputy Scott Hufford testified he responded to a disturbance call on July 5, 1999, at 1842 Ethan Way, apartment 22. There, he encountered defendant and two other people.

When asked to identify himself, defendant falsely told the deputy he was Sirleaf Flomo and provided Flomo's birthday. Deputy Hufford asked defendant for his identification. Defendant claimed to have none, but provided the deputy with a Social Security number. He told the deputy he had left his identification at his apartment around the corner.

Deputy Hufford ran a records check and found the Social Security number defendant gave him did not match Sirleaf Flomo's. When the deputy asked again for identification, defendant reached into his back pocket and provided a driver's license to which defendant had attached a passport photograph of himself. To the officer, the identification was obviously altered and not an official document. Defendant also gave the officer a Social Security card for Sirleaf Flomo. This card showed defendant had transposed two of the digits in the Social Security number he provided to the deputy.

One of the other men at the apartment informed the deputy of defendant's true identity. The deputy ran another records check and discovered defendant had a no-bail warrant for failing to register under section 290. The deputy arrested defendant.

In the search incident to defendant's arrest, the officer found a wallet that contained Kaiser Permanente medical cards and a Bel Air service plus card for Sirleaf Flomo. The wallet also contained a California identification card for Kirkland Abel that had defendant's picture on it. Defendant told deputy Hufford he was currently living at 2045 Wyda Way, apartment one.

Sacramento Sheriff's Detective David Anderson testified the most recent sex offender registration for defendant was July 1998, a year before he was arrested. On that registration, defendant reported his address as apartment 23 of the same Ethan Way apartment complex. Defendant also reported his date of birth as February 22, 1962. The form advised defendant of the lifetime nature of the registration requirement and the requirement that he register both annually (within five working days of his birthday) and within five working days of moving. Defendant initialed the blanks next to this information that he had read them. Between the date of his original registration in 1989 and July 1999,*fn2 defendant had submitted his annual registration three times and submitted nine change-of-address registrations.

Stephanie Shatto was the apartment manager for the Ethan Way apartments. She testified defendant and his mother lived in apartment 23 of that complex (next door to where he was found) in February 1999. Shatto assisted defendant's mother in moving property out of the apartment around February 13, 1999. The apartment was completely vacated by February 15.

Detective Anderson presented defendant's jail records that showed defendant had been released from the Sacramento County Jail on February 24, 1999.

April Lowe was a friend of the defendant. In March 1999, defendant told her he was living in West Sacramento, although she did not know how long he lived there.*fn3 Sometime between February 1999 and July 1999, defendant told Lowe he was homeless.

Sirleaf Flomo testified he lost his wallet in about March 1999, and identified the one taken from defendant as his. Flomo also identified the driver's license, Social Security card, Bel Air card and Kaiser medical cards as belonging to him. Kirkland Abel testified his wallet "came up missing" in 1999. Abel testified he left his wallet on a couch where he was staying and when he returned it was gone. Abel testified he was the owner of the identification card possessed by defendant. The defense rested without presenting evidence.

The trial court convicted defendant of failing to register when he moved and failing to register within five days of his birthday.*fn4 The court found all four of the prior conviction allegations to be true. The court sentenced defendant to 26 years to life.

(Respondent's Lodged Document D, Appendix, pp. 1-5.)

IV. Discussion

A. Procedural Default

Respondent argues that the claims designated A and K of the amended petition are procedurally defaulted. In claim A, petitioner argues that he did not voluntarily and intelligently waive his right to a jury trial. Claim K alleges ineffective assistance of appellate counsel. These claims were denied by the California Supreme Court by order dated November 16, 2005, citing In Re Clark, 5 Cal.4th 750 (1993). (Respondent's Lodged Documents I, J.)*fn5 Clark stands for the proposition that the petition was not timely brought.

Before denial of a claim on state procedural grounds will bar federal review, the rule on which the state court relied must constitute an "adequate and independent state ground" for denying petitioner's claims. Coleman v. Thompson, 501 U.S. 722, 729 (1991). In Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003), the Ninth Circuit held that California's timeliness rule was an "independent" state ground because it was "not interwoven with federal law." Id. at 581-82. The Ninth Circuit could not determine, however, whether the timeliness rule was "adequate" in the sense that it was consistently applied. Id. at 583. To provide guidance to the district court on remand, the Ninth Circuit held that the burden of proof on adequacy rests with the state because procedural default is an affirmative defense, id. at 585-86, and laid out a burden-shifting procedure to be used in litigating the issue. First, respondent must plead the existence of an adequate and independent state procedural ground as a defense; once he does, petitioner must "place the defense in issue." Id. at 586. Generally, petitioner's burden in this regard can be satisfied "by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule." Id. If petitioner satisfies this burden, the court held, "the ultimate burden [of proving that the state procedural bar is adequate and independent] is the state's." Id.

In King v. Lamarque, 464 F.3d 963 (9th Cir. 2006), the Ninth Circuit clarified its holding in Bennett. The court in King held that in cases where a state procedural rule has previously been found to be inadequate, a petitioner "may fulfill [his] burden under Bennett by simply challenging the adequacy of the procedure." Id. at 967. In such instances, "the burden then shifts back to the government to demonstrate that the law has subsequently become adequate." Id. Such a rule is necessary, the court stated, "to maintain the primary principle we announced in Bennett: the government bears the ultimate burden of establishing the adequacy of a rule." Id.

The state procedural rule at issue in King was the same timeliness rule at issue here. The court in King observed that the rule had previously been found to be inadequate in capital cases, citing Morales v. Calderon, 85 F.3d 1387 (9th Cir. 1996). King, 464 F.3d at 967. Because petitioner in King had challenged the adequacy of a state procedural rule previously found to be inadequate, the court stated that on remand "the government must demonstrate that California's 'substantial delay' rule has become sufficiently clear and consistently applied to justify barring federal review of [the petitioner's] claim." Id. at 968.

In this case, petitioner has sufficiently challenged California's timeliness rule, a rule that the Ninth Circuit has previously found to be inadequate. In the traverse, petitioner "denies that the alleged procedural default is independent... furthermore it was not adequate, the rule in question was not firmly established and regularly followed at the time petitioner allegedly defaulted herein...." (Dkt. No. 57, p. 2 of 112.) This suffices to satisfy petitioner's burden under King. See King, 464 F.3d at 967 (petitioner who claimed that "the California Supreme Court's dismissal of his case demonstrates that it inconsistently applies the timeliness rule because he properly justified his delay" met his burden); Dossman v. Newland, 216 Fed. Appx. 698, 698 (9th Cir. 2007) (Unpub.Disp.) (petitioner who claimed the timeliness rule was not "clear, consistently applied, and well-established at the time of [his] purported default" met his burden under King); Hernandez v. Woodford, No. C 06-3975 WHA (PR), 2008 WL 1809082, *3 (N.D.Cal. 2008) (petitioner satisfied his burden by contending that his claims were not procedurally defaulted).

The burden thus shifted to respondent to "present[ ] state authority showing that the timeliness rule was clear and certain, well-established, and consistently applied in non-capital cases as of 200[4]" when petitioner filed his state habeas petition. Townsend v. Knowles, 562 F.3d 1200, 1207 (9th Cir. 2009). Because respondent did not do so, he has not met his burden of proving the affirmative defense, and the court thus turns to the merits of claims A and K.*fn6

B. Claim A

Petitioner alleges that his waiver of his right to a jury trial was involuntary because he was coerced to make the waiver by trial counsel. In addition, petitioner argues that his waiver was involuntary because he suffered from mild mental retardation.

A waiver of a constitutional right must be voluntary, knowing and intelligent to be valid. Brady v. United States, 397 U.S. 742, 748 (1970); see also Boykin v. Alabama, 395 U.S. 238 (1969). When determining voluntariness, all of the relevant circumstances must be examined. Brady, 397 U.S. at 749. A waiver is voluntary if it "was the product of free and deliberate choice rather than intimidation, coercion, or deception." Colorado v. Spring, 479 U.S. 564, 573 (1987) (citations omitted). A defendant's representations on the record, as well as any findings made by the judge accepting the waiver, constitute a "formidable barrier in any subsequent collateral proceedings." Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); see also Sanchez v. United States, 50 F.3d 1448, 1455 (9th Cir. 1995) (when a defendant denies any threats or coercions during a plea colloquy, "[c]courts generally consider such responses to be strong indicators of the voluntariness of the defendant's guilty plea.").

The undersigned first considers petitioner's claim that his waiver of his right to a jury trial was involuntary because he suffered from mild mental retardation. In particular, petitioner alleges that due to his mental retardation, he did not understand the consequences of his waiver. In support of this claim, petitioner refers to the March 4, 2002 report by clinical psychologist Jeffrey E. Miller regarding his examination of petitioner. (See Dkt. 57, pp. 48-55 of 112.) In the report Dr. Miller states that petitioner suffers from mild mental retardation as well as schizophrenia, paranoid type, and a dependent personality disorder. (Id. at 48.) Dr. Miller states that following petitioner's incarceration for the pending charges, petitioner received psychiatric treatment and was not stabilized on psychotropic medication. (Id. at 50.) Dr. Miller stated that following his last examination of petitioner in November of 2000, petitioner's medications were changed and his mental state had greatly improved. (Id.)

Dr. Miller performed a variety of tests on petitioner and concluded that he "learns new skills and information [at] a very slow rate, and only after a great deal of individual instruction, practice and repetition. He had difficulties with understanding more abstract concepts and is fairly concrete in his thinking." (Id. at 52.) Petitioner's academic skills were at a third to fourth grade level. (Id.)

In his report Dr. Miller also states that he examined petitioner on November 8, 2000, at which time petitioner told him that at the time he failed to register, he had been told by a friend that there was a warrant issued for his arrest for failing to register. (Id. at 49.) Petitioner intended to use false identification to avoid being arrested. (Id.) Petitioner told Dr. Miller that he altered identification belonging to another person by placing his passport photo on the ID. (Id.)

Petitioner waived his right to a jury trial on February 7, 2002:

Court: Mr. Crosby, you do have on these matters the right to a speedy public jury trial. That is one of the rights that you have. The Court's perfectly willing to go down that road and have jury trials. That's what we do all the time. We've got plenty of seats out in the audience, plenty of places for the jurors here, and we're perfectly willing to proceed in that fashion.

Although you do have the right to waive a jury trial, that is to give up a jury trial, that is one of the rights that you have as long as the District Attorney's Office would consent to that. Mr. Higgins has already indicated to the Court that the D.A.'s office would consent to your waiver of a jury trial in the 290 case, the failure to register charge that's against you.

Mr. Crosby, have you discussed that with your counsel, and are you satisfied that you want to waive your right to a jury trial in that case?

Petitioner: Yes, sir.

Court: Mr. Walton, do you join in the waiver?

Mr. Walton: Join, Your Honor.

Court: The People join in that waiver?

Mr. Higgins: Yes. People join, Your Honor.

Court: Mr. Crosby, if you waive your right to a jury trial, then I as the judge in the matter would act as not just the judge but also the finder of fact as to whether or not those allegations against you were true or not true and whether you were guilty or not guilty of the three charges included in that Information. Do you understand that?

Petitioner: Yes, sir.

Court: It appears to me that you understand what is going on, Mr. Crosby. So the Court will accept your waiver of a jury trial, and it will proceed as a court trial on the 290 charge, that's case 03592. (RT at 12-13.)

On February 11, 2002, petitioner made a Marsden motion.*fn7 At the hearing on this motion, petitioner argued that trial counsel had improperly coerced him into waiving his right to a jury trial. (RT at 18-34.) Petitioner did not argue that he did not understand what he was doing when he made the waiver. (Id.)

The record does not support petitioner's claim that mild mental retardation caused him not to understand what he was doing when he waived his right to a jury trial. When asked by the court if he understood the nature of the waiver, petitioner responded "yes, sir." Petitioner did not tell the court at the time that he made the waiver that he did not understand what was going on. Blackledge v. Allison, 431 U.S. at 73-74 (a defendant's representations on the record, as well as any findings made by the judge accepting the waiver, constitute a "formidable barrier in any subsequent collateral proceedings.") In addition, petitioner had four prior convictions. His previous experience in criminal courts undermines his claim that he did not understand the nature of the proceedings. See Smith v. Mullin, 379 F.3d 919, 933-34 (10th Cir. 2004) (defendant with prior experience of criminal justice system made knowing and intelligent waiver notwithstanding his mild to borderline mental retardation). In addition, at the Marsden hearing held five days after petitioner waived his right to a jury trial, petitioner did not argue that the waiver was involuntary because he did not understand the nature of the proceedings. Petitioner's ability to make this Marsden motion where, as will be discussed below, he clearly articulated his problems with defense counsel, also belies his claim that his waiver of his right to a jury trial was involuntary due to his mild mental retardation.

The totality of the circumstances do not support petitioner's claim that his mild mental retardation rendered his waiver of his right to a jury trial involuntary. See Clark v. Mitchell, 425 F.3d 270, 283 (6th Cir. 2005)(a borderline retarded defendant had voluntarily confessed where the police read him his Miranda rights aloud, and where he affirmed his understanding of those rights after each paragraph, signed a waiver form, and was offered the chance to make corrections to his tape-recorded statements); United States v. Turner, 157 F.3d 552, 555 (8th Cir. 1998)) (holding that defendant's borderline IQ did not prevent knowing and intelligent waiver of rights); Correll v. Thompson, 63 F.3d 1279, 1288 (4th Cir. 1995) (determining that despite defendant's IQ of 78, he gave a valid waiver because he received warnings several times, both while in custody for the crime at issue and for prior crimes); Rice v. Cooper, 148 F.3d 747, 751 (7th Cir. 1998) (holding that mildly retarded defendant gave valid waiver because police had no reason to suspect that he did not understand the warnings). Accordingly, the undersigned finds this claim is without merit.

Petitioner next alleges that his waiver of his right to a jury trial was involuntary due to coercion by trial counsel. Petitioner alleges that during the conversation he had with counsel regarding whether he should waive this right, trial counsel falsely told him: 1) there was no defense to the charge; 2) he should admit his prior convictions; and 3) if petitioner was found guilty by a jury, the judge would sentence petitioner to thirty years to life. Petitioner alleges that he asked trial counsel to recuse the judge based on the information that he would sentence petitioner to thirty years to life if he was convicted by a jury. Trial counsel failed to file this motion.

Attached to the answer is a declaration by trial counsel, Laurence Walton. In this declaration, Mr. Walton states that he never told petitioner that there was no defense to the charges and that he never told petitioner that if he did not waive his right to a jury trial and was found guilty by a jury the judge would sentence him to thirty years.

Petitioner raised these issues at the February 11, 2002, Marsden hearing. (RT at 19.) The court offered its own opinion regarding why counsel had advised petitioner to waive his right to a jury trial:

Court: Would you share with the Court what you're talking about as far as what you believe your defense is to the failure to register?

Petitioner: Failure to register. I was unable at the time to go down and register because I was suffering from schizophrenia. Doctor of forensics medicines has--maybe you've seen it. I don't know. Maybe you read it. I don't know. He's already made his report.

Court: Let me stop you there and tell you that the Court has heard from Mr. Walton that that is the defense, and that he doesn't believe that you willfully failed to register and that's why he's, in my perspective as a judge, he hasn't said this much but that's why he's asking to have this as a court trial as opposed to a jury trial because he wants the Court to be able to reach that defense legal issue as to whether or not your failure to register was willful within the meaning of the statute. *** If Mr. Walton gives you his candid advice that he thinks you should admit the priors because he doesn't believe there's an ability to get around that, that would be his professional advice. I don't know how I would be able to say some other counsel would say something different to you.

(RT at 22-23.)

In response to petitioner's claims, counsel stated that he had advised petitioner on many occasions that one of the charges was a general intent crime and that it would be better to proceed with that case in a court trial because it was a general intent crime:

[T]hat is to say, failure to register and that, as the Court has commented, involves the word "willfully" and that's an act or failure to act, which is omission when someone fails to register. It is just as much a violation as saying to the authorities that I'm not going to register, an intentional act. So that is the situation Mr. Crosby is in. *** I advised Mr. Crosby that it would be better to proceed with a court trial on the issue of the failure to register, case ending 3592, and then just trail the receiving stolen property issue of that case until this case is resolved. (RT at 28-29.)

Regarding the sentence petitioner faced, counsel stated, "I never advised him that the Court was going to treat him as --in a certain fashion, but I have advised him it's a three strikes case and of the potential penalties involved." (RT at 28.)

Counsel went on to state that his defense of the failure to register charge was based on the doctor's opinion that petitioner was "on SSI and unable to care for himself, on the streets and that's what was causing his failure of memory at the time." (RT at 29.)

In denying the Marsden motion, the trial judge rejected petitioner's claim that counsel told him he would face 30 years to life if he did not waive a jury trial and that there was no defense:

Court: When the court looks at each of the substantive allegations, there's some here that cause me to have to say okay, you know, one of you is lying to me because you've come in here and told me hey, Mr. Walton came down there and told me that I, Judge Candee, was gong to sentence you to 30 years to life and I'm trying to figure out what's going on. Because if you're correct in your analysis of it, then you're relating to me this scenario that had Mr. Walton come down and tell you well, we've got this judge here who has already made up his mind -- even though that's inaccurate -- we've got a judge here that is going to sentence you to 30 years to life and I want you to waive a jury trial and go with Judge Candee and you trotted right in here and say well, I just did what Mr. Walton told me.

Petitioner: That's what I did.

Court: It doesn't make any sense when I then have to say, what do I find to be the facts? Seems to me it's much more consistent with what Mr. Walton has represented that hey, he's told you you're facing something like that at sentencing because that's what a three-strikes case is, a minimum of 25 years to life and he's obliged to tell you what you're facing. So if he tells you what you're facing and you somehow misread that as something that that's what you're going to get, from the Court's standpoint -- if I have to say okay, who do I believe, do I believe Mr. Crosby when he tells me judge, I'm being up with you -- now this guy comes to me and tells me I have judge for you that is going to sentence you to 30 years to life and I want you to waive a jury and go with that judge?

No. It seems to me much more believable what Mr. Walton has done probably on many occasions is reminded you of how serious this is and that you are facing that, but it does not appear to the Court that it is believable that Mr. Walton went and told you you're facing, and this judge has already made up hi mind that he's going to give you 25 to life, and now what I want you to do is go in there and tell that judge I want to be judge -- alone trial just to insure that I get 30 years to life -- that doesn't make any sense.

Petitioner: But I told you when he told me that I asked him the -- so we could change judge. He refused.

Court: See -- again, it doesn't appear to me to be anything that is believable that that could be the scenario of what happened. As far as defense being prepared for trial, it appear from Mr. Walton's representations that the matter is prepared. It is ready for trial.

(RT at 32-33.)

The trial court's finding that petitioner's claims that trial counsel told him he would be sentenced to 30 years if found guilty after a jury trial and that there was no defense to the charges were not credible are presumed to be correct unless petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Petitioner has not rebutted the trial court's findings of fact regarding his credibility. The record supports the trial court's findings that petitioner's claims were not credible. For that reason, the undersigned finds that petitioner's claims that trial counsel coerced him to waive his right to a jury trial by telling him that there was no defense and that he would be sentenced to 30 years if found guilty by a jury are unsupported by the record.

Petitioner also argues that his waiver of his right to a jury trial was invalid because trial counsel told him to admit his prior convictions. Petitioner did not admit his prior convictions. The prosecution was required to prove them at the court trial. Under these circumstances, the undersigned does not understand the grounds for this claim. Accordingly, this claim should be denied.

After independently reviewing the record, the undersigned finds that the denial of this claim by the California Supreme Court was not an unreasonable application of clearly established Supreme Court ...

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