The opinion of the court was delivered by: William Q. Hayes United States District Judge
ORDER: (1) DENYING MOTION FOR AN EVIDENTIARY HEARING; (2) DENYING FIRST AMENDED PETITION FOR A WRIT OF HABEAS CORPUS; AND (3) ISSUING A CERTIFICATE OF APPEALABILITY
Charles Andrew Williams (hereinafter "Petitioner"), is a California prisoner proceeding by and through counsel with a First Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 69.) Petitioner was fifteen years old on March 5, 2001, when he brought a handgun to the school he attended, Santana High School in Santee, California, and shot fifteen people, killing two and wounding thirteen. He challenges here his San Diego County Superior Court convictions of two counts of premeditated murder and thirteen counts of attempted premeditated murder, entered as a result of a guilty plea, and his sentence of 50 years-to-life in state prison. (First Amended Petition ["FAP"] at 1-2.) He claims that his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution were violated because his sentence amounts to cruel and unusual punishment, and because he was denied the effective assistance of counsel at the pre-trial plea stage, at sentencing, and on appeal. (Id. at 6-9.) Petitioner has also filed a Motion for an Evidentiary Hearing which includes a request to conduct discovery, and which is accompanied by Petitioner's declaration setting forth details regarding the advice he received from counsel in connection to his guilty plea which were not presented to the state court. (Doc. No. 95.)
Warden Stuart J. Ryan (hereinafter "Respondent"), has filed an Answer to the First Amended Petition, accompanied by a Memorandum of Points and Authorities in support thereof, and has lodged portions of the state court record. (Doc. Nos. 16, 58, 74, 78.) Respondent contends habeas relief is unavailable because the adjudication of Petitioner's claims by the state court was neither contrary to, nor involved an unreasonable application of, clearly established federal law. (Memorandum of Points and Authorities in Support of Answer ["Ans. Mem."] at 1, 11-46.) Respondent opposes Petitioner's evidentiary hearing motion, arguing that this Court is precluded from holding a hearing because Petitioner failed to develop the facts supporting his claims in state court, and because he has not stated a colorable claim. (Doc. No. 98.) Petitioner has filed a Traverse which contains allegations not presented in the First Amended Petition. (Doc. No. 87.)
In a 28-count Information filed in the San Diego County Superior Court on March 7, 2001, Petitioner was charged with two counts of murder in violation of Cal. Penal Code sections 187(a) and 189; thirteen counts of attempted premeditated murder in violation of Cal. Penal Code sections 187(a), 189 and 664; and thirteen counts of assault with a firearm in violation of Cal. Penal Code section 245(a)(2). (Lodgment No. 1, Clerk's Tr. ["CT"] at 1-23.) Special circumstance allegations of lying in wait pursuant to Cal. Penal Code section 190.2(a)(15) and multiple murders pursuant to Cal. Penal Code section 190.2(a)(3) were included. (CT 6-7.) Another special circumstance allegation (referred to hereinafter as the "Prop 21 allegation"), alleged that Petitioner was 14 years of age or older at the time of the crimes and personally killed the victims within the meaning of Cal. Welfare and Institutions Code section 602(b).*fn1 (Id.)
The Information contained sentence enhancement allegations that Petitioner personally used a handgun, personally discharged a handgun, and personally inflicted great bodily injury during the commission of all twenty-eight counts, in violation of Cal. Penal Code sections 12022.5(a)(1), 12022.7(a) and 12022.53(c-d). (CT 6-22.) With respect to the thirteen attempted murder counts, the Information alleged that at the time of the crimes Petitioner was 14 years of age or older within the meaning of Cal. Welfare and Institutions Code section 707(d)(2), which allows for discretionary filing of those charges in adult court. (CT 7-16.)
Petitioner's appointed trial counsel filed a demurrer contending that the Prop 21 allegation violated the single subject rule and separation of powers doctrine contained in the state constitution, as well as the prohibition on cruel and unusual punishment contained in the state and federal constitutions. (CT 89-111.) The trial court overruled the demurrer in an order filed on April 27, 2001. (CT 434-50.) On November 28, 2001, a panel of the state appellate court, over the dissent of one justice, denied an interlocutory petition for a writ of prohibition challenging the denial of the demurrer. (CT 477-511.) The appellate court's decision became final when a remitttitur issued on May 23, 2002, following the decision of the California Supreme Court in Manduley v. Superior Court, 27 Cal.4th 537 (Feb. 28, 2002), which upheld the constitutionality of Proposition 21. (CT 476.)
A readiness conference was held on June 20, 2002, at which the parties informed the court that the information was to be amended and that Petitioner intended to enter a guilty plea to the murder counts (one and two) and the attempted murder counts (three through fifteen), without a plea agreement but with the understanding that the assault counts (sixteen through twenty eight) would necessarily be dismissed as lesser included offenses of the attempted murder counts. (Lodgment No. 2, Reporter's Tr. ["RT"] at 1-3.) The Information was amended to add allegations that the murders were willful, premeditated and deliberate, and to strike the lying in wait special circumstance allegation. (CT 1, 6-7; RT 1-2) The court informed Petitioner that the maximum sentence he faced was 425 years-to-life in state prison and the minimum sentence was 50 years-to-life in state prison. (RT 4-6.) The trial judge indicated that based on the Manduley decision, commitment to the youth authority was not an option, although Petitioner would not be housed with adults prior to his eighteenth birthday. (RT 4-6.) Petitioner's counsel represented that Petitioner intended to plead guilty in order to avoid causing "any further pain to the victims, their families, or his own family." (RT 6.) Petitioner was placed under oath, was advised of and waived his constitutional rights, and signed and initialed a change of plea form acknowledging the waiver of those rights. (RT 7-12; CT 512-14.) He entered an unconditional plea of guilty to the first fifteen counts, admitted the special circumstance and sentence enhancement allegations with respect to those counts, and stipulated that the police reports would provide a factual basis for the plea along with his statement that: "At age fifteen, I brought a gun to school and intentionally shot fifteen people, killing two, and causing great bodily injury to thirteen others. I did so, willfully, deliberately and with premeditation." (RT 13-18.) The remaining thirteen counts of assault with a firearm, along with the associated sentence enhancement allegations, were dismissed as lesser included offenses. (RT 19-20.)
Petitioner's counsel filed a sentencing memorandum on August 9, 2002, requesting dismissal or striking of the Prop 21 allegation in order to have Petitioner remanded to the juvenile court for sentencing, or in the alternative, the imposition of a sentence of 35 years-to-life in order to provide for a realistic chance of release on parole. (CT 518-40.) The sentencing memorandum also requested a judicial determination that a 50 years-to-life sentence would violate the state and federal prohibitions against cruel and unusual punishment because Petitioner would not be eligible for parole prior to turning 66 years old, and it would in effect amount to a sentence of life without parole. (Id.)
A lengthy sentencing hearing was held on August 15, 2002. (RT 22-128.) The trial judge declined to strike the Prop 21 allegation, noting that remanding Petitioner to juvenile court would result in his being released from custody by the age of 25, which the judge found to be an insufficient period of incarceration given the nature of the crimes. (RT 118-21.) With respect to the murder counts, Petitioner was sentenced to two concurrent state prison terms of 25 years-to-life, consecutive to two concurrent 25 years-to-life terms for the firearm use enhancements, for a total of 50 years-to-life. (RT 127; CT 1311.) He received 13 concurrent indeterminate life sentences for the attempted murder counts, and 13 concurrent 25 years-to-life terms for the firearm use enhancements as to those counts. (CT 1311-14, 1319-22.) An additional 39-year term arising from the great bodily injury enhancements was stayed. (CT 1321-22.)
Petitioner appealed his conviction and sentence, arguing that: (1) the trial judge violated state law by deciding not to remand the case to the juvenile court without ordering a fitness study to be prepared; (2) the Prop 21 allegation was required to have been stricken as a matter of state law; (3) the trial judge abused his discretion in refusing to strike the Prop 21 allegation; and (4) the sentence violated state and federal constitutional prohibitions against cruel and unusual punishment. (Lodgment No. 3.) The appellate court affirmed in all respects in an unpublished opinion. (Lodgment No. 5, People v. Williams, No. D040917 (Cal.Ct.App. Jan. 30, 2004).) A petition for rehearing was summarily denied by the appellate court. (Lodgment Nos. 6-7.) Petitioner filed a petition for review in the state supreme court presenting only the second claim raised in the appellate court, based solely on state law. (Lodgment No. 8.) That petition was denied by an order which stated in full: "Petition for review DENIED." (Lodgment No. 9, People v. Williams, No. S123169 (Cal. April 14, 2004).)
On February 16, 2005, more than two and one-half years after entering his plea, Petitioner filed a pro se motion to vacate his sentence in the trial court, raising some but not all of the claims presented in the First Amended Petition here. (Lodgment No. 10.) He claimed that his plea was not knowing and intelligent due to his age and immaturity, that he would have pled not guilty by reason of insanity if not for the ineffective assistance of his appointed counsel and the lack of diligence by the trial judge and prosecutor, and that those issues were not raised on appeal due to the deficiencies of his appointed appellate counsel. (Id. at 1-4.) The trial court denied the motion as untimely without reaching the merits of the claims. (Lodgment No. 11, People v. Williams, No. SCE211823 (Cal.Sup.Ct. Mar. 14, 2005).)
Petitioner filed a pro se petition for a writ of coram vobis in the state appellate court on March 22, 2005, raising the same claims. (Lodgment No. 12.) Petitioner added an argument that the recent Supreme Court opinion in Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth and Fourteenth Amendments forbid imposition of the death penalty for offenders who were under the age of 18 when their crimes were committed), supported his claims because an amicus curiae brief filed in that case contained expert findings that "intellectual maturity, the age of reason, does not arrive until age 25."*fn2 (Lodgment No. 12 at 1-2.) That petition was summarily denied without a statement of reasoning or citation of authority. (Lodgment No. 13.) A petition for review filed in the state supreme court was summarily denied on June 22, 2005, without a statement of reasoning or citation of authority. (Lodgment Nos. 14-15.)
While the state supreme court petition for review was pending, Petitioner initiated this action by filing a pro se federal Petition on April 11, 2005. (Doc. No. 1.) On May 16, 2007, after Petitioner retained counsel, the Court issued a stay to allow exhaustion of available state court remedies. (Doc. No. 44.) On August 31, 2007, Petitioner's counsel filed a habeas petition in the California Supreme Court. (Lodgment No. 16.) That petition was denied with an order which stated: "The petition for writ of habeas corpus is denied. [¶] Moreno, J., was absent and did not participate." (Lodgment No. 17, In re Williams, No. S156005 (Cal. Mar. 12, 2008).) Counsel thereafter filed the First Amended Petition in this Court. (Doc. No. 69.)
The following statement of facts is taken from the appellate court opinion affirming Petitioner's convictions on direct review. This Court gives deference to state court findings of fact and presumes them to be correct. See Sumner v. Mata, 449 U.S. 539, 545-47 (1981).
In early March 2001, appellant, a 15-year-old student at Santana High School in Santee, began thinking about taking a gun to school and shooting people. On March 5, 2001, he went to school armed with a .22 caliber revolver and 40 rounds of ammunition. At approximately 9:20 a.m. he entered a restroom stall and loaded the gun. He emerged and shot two students and a teacher who were in the restroom. He walked out of the restroom and began shooting randomly at school staff and students. He re-entered the restroom four times to reload. Before he was confronted by police officers and surrendered, he had shot 15 persons. Two of them died. When questioned, appellant stated he shot the people because he was "mad at everything." Appellant stated: "I didn't want anybody to die, but if they did, then oh well."
(Lodgment No. 5, People v. Williams, No. D040917, slip op. at 2.)
(1) Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his appointed appellate counsel failed to: (a) speak to or communicate with Petitioner prior to preparing and filing the appellate brief; (b) raise the issue of ineffective assistance of trial counsel or file a state habeas petition; (c) raise the issue of Petitioner's mental state; and (d) raise the issue of trial counsel's failure to have Petitioner plead not guilty by reason of insanity. (FAP at 6.)
(2) Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his appointed trial counsel: (a) permitted entry of a guilty plea prior to a psychiatric examination; (b) failed to file a motion to suppress statements made during a police interrogation conducted without the presence of counsel or Petitioner's parents; (c) failed to have an MRI examined by experts to determine if Petitioner had diminished brain capacity and development; and (d) allowed the entry of a guilty plea from a person who could not have entered into a binding contract due to his age and immaturity. (FAP at 7.)
(3) Petitioner was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his appointed trial counsel failed "to explore and present Petitioner with all options regarding defenses, including diminished capacity, insanity and others prior to inducing Petitioner to enter a guilty plea," in that: (a) Petitioner had an underdeveloped mental capacity; (b) trial counsel failed to thoroughly investigate his mental maturity and the limitations on his ability to exercise reasoned judgment and control his impulses due to his youth, including how that may have provided defenses based on insanity, diminished capacity and/or lack of intent; and (c) trial counsel improperly advised him to plead guilty despite his lack of understanding of the consequences of the plea and the waiver of constitutional rights due to his youth and physical immaturity. (FAP at 8.)
(4) Petitioner's sentence violates the Eighth Amendment's prohibition on cruel and unusual punishment because Petitioner's culpability was mitigated by his age and immaturity, and was imposed as a result of counsel's failure to consider expert evidence. (FAP at 9.)
For the following reasons the Court finds that habeas relief is not available with respect to the claims which were adjudicated on the merits by the state court because an independent review of the record reveals that the adjudication was neither contrary to, nor involved an unreasonable application of, clearly established federal law. With respect to the remaining claims, which were denied by the state court on procedural grounds without reaching the merits, Petitioner is not entitled to relief because, based on a de novo review, he has not established constitutionally ineffective assistance of counsel. The Court also denies Petitioner's Motion for an evidentiary hearing and his related request for discovery because the Court is precluded from conducting an evidentiary hearing or allowing discovery due to Petitioner's failure to develop facts supporting his claims in the state court, and, alternately, because neither discovery nor an evidentiary hearing is needed to resolve any of the claims presented.
Title 28, United States Code, § 2254(a), sets forth the following scope of review:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C.A. § 2254(a) (West 2006) (emphasis added).
As discussed in detail below, there are two categories of claims presented in the First Amended Petition. These include claims which were adjudicated on the merits by the state court and claims which the state court declined to consider on the merits because they were untimely.
With respect to the claims which were adjudicated on their merits, Title 28, United States Code, § 2254(a), as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, provides that:
(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 in the State court proceeding.
28 U.S.C.A. § 2254(d) (West 2006).
A state court's decision may be "contrary to" clearly established Supreme Court precedent: (1) "if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases" or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision may involve an "unreasonable application" of clearly established federal law, "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407. An unreasonable application may also be found, "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. . . . Rather, that application must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (internal quotation marks and citations omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions." Taylor, 529 U.S. at 412. Habeas relief is also available if the state court's adjudication of a claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court." 28 U.S.C.A. § 2254(d)(2) (West 2006). In order to satisfy this provision, Petitioner must demonstrate that the factual findings upon which the state court's adjudication of his claims rest, assuming it rests on a factual determination, are objectively unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
The second category of claims presented here are those that were not addressed on the merits by the state court because they were rejected on procedural grounds as untimely. Because these claims were not adjudicated on the merits in the state court, AEDPA deference does not apply and the Court must conduct a de novo review of those claims.*fn3 Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002). Although AEDPA deference does not apply to these claims, the Court must remain mindful that "judgments of conviction and sentence carry a presumption of finality and legality and may be set aside only when a state prisoner carries his burden of proving that [his] detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution." Hayes v. Brown, 399 F.3d 972, 978 (9th Cir. 2005) (en banc).
The Court will begin its analysis with the allegations of ineffective assistance of trial counsel presented in claims two and three, as these claims inform the disposition of the claims of ineffective assistance of appellate counsel presented in claim one. Petitioner contends in claim two that he was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments because his appointed trial counsel: (1) permitted entry of a guilty plea prior to a psychiatric examination; (2) failed to file a motion to suppress statements made by Petitioner during a police interrogation conducted outside the presence of counsel or his parents; (3) failed to have an MRI examined by experts to determine if Petitioner had diminished brain capacity and development; and (4) allowed the entry of a guilty plea from a person who could not have entered into a binding contract due to his age and immaturity. (FAP at 7.)
Respondent replies that claim two should be denied as vague and speculative in that Petitioner has failed to provide any supporting facts for this claim, including whether and to what extent he was advised by counsel in connection to his plea, whether and to what extent his parents were contacted prior to the interrogation or made any attempt to participate, and where, when or by whom the MRI was performed, whether it was available to counsel and what it revealed about his brain development. (Ans. Mem. at 22-32.) Respondent contends that this claim relies on speculation that the guilty plea was based on advice of counsel or somehow induced by counsel, when in fact the record discloses that Petitioner pled guilty without a plea agreement in order to take responsibility for his actions and to bring closure to the events. (Id. at 32.) Respondent also argues that even to the extent the claim should be addressed on its merits, the adjudication of the claim by the state court was neither contrary to, nor involved an unreasonable application of, clearly established federal law, because Petitioner is unable to demonstrate that the performance of counsel was deficient or that he was prejudiced by the alleged mistakes of counsel as required by controlling federal authority. (Id. at 23-34.) As discussed in detail below, Petitioner replies to Respondent's contention regarding the lack of supporting facts by submitting his own declaration in support of the Motion for an Evidentiary Hearing, in which he sets forth, at least in part, the advice he received from counsel regarding the plea. (Evid. Hr'g Mot., Ex. A, Pet.'s Decl. at ¶ 4.)
Petitioner presented the second and third aspects of claim two, absent his declaration, to the state supreme court in a habeas petition. (Lodgment No. 16 at 19, 23.) The state supreme court denied the petition without citation of authority or a statement of reasoning. (Lodgment No. 17.) Such a silent denial is ordinarily considered to be a decision on the merits of the claims.
Hunter v. Aispuro, 982 F.2d 344, 347-48 (9th Cir. 1992). There is an overriding presumption, however, that a silent denial adopts the reasoning of the last reasoned state court decision, even if the last state court decision relied on or imposed a procedural bar. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("[W]here, as here, the last reasoned opinion on the claim explicitly imposes a procedural default, we will ...