The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2006 guilty plea to dissuading a witness, attempting to dissuade a witness and evading a police officer. He admitted two prior strike convictions and was sentenced to a term of 25 years to life. This action is proceeding on the original petition filed August 6, 2009, raising the following claims: 1) the trial court erred in denying petitioner's motion to substitute counsel, framed in state court as a Marsden*fn1 motion; 2) counsel for the plea was ineffective for not obtaining a change of venue; 3) counsel for the plea was ineffective for failing to attack a prior conviction; 4) counsel for the plea was ineffective for failing to obtain the medical records of the victim; and 5) petitioner's substitute counsel was ineffective for failing to move to withdraw the guilty plea.*fn2 Petition at 5-11.
After carefully considering the record, the court recommends that the petition be denied.
II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)
The Anti-Terrorism and Effective Death Penalty Act (AEDPA) "worked substantial changes to the law of habeas corpus," establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).
In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (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 1519. "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. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). 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." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (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, 123 S.Ct. 357 (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, 125, 128 S.Ct. 743, 746 (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, 127 S.Ct. 649, 653-54 (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, 123 S.Ct. 362 (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, 123 S.Ct. 1166, 1175 (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, 123 S.Ct. at 366.
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).
The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record, the court finds this summary to be accurate and adopts it below.
On July 4, 2004, [petitioner] got into an argument with his wife, D., after she consoled their young son, whom [petitioner] had accidentally hit while closing a sliding glass door. As they argued, [petitioner] placed his hands on D.'s shoulder and face and shoved her to the couch with both hands. Their son witnessed the fight.
The next day, D. heard her son crying. She went to investigate and saw him stumble in his bedroom. D. asked [petitioner] what happened and he told her it was none of her business. D. responded by saying perhaps this was for children's protective services. [Petitioner] responded that if D. called the authorities he would kill her before they arrived. [Petitioner] grabbed D. by the arms and pushed her from the bedroom to the kitchen, where she struck the stove and counter. As a result of [petitioner's] assault, D. sustained bruises to her hip, lower back, and arm. D. subsequently secured an emergency protective order, which was served on [petitioner]. Amador County Sheriff's Sergeant Gary Redman had been told that [petitioner] had been at D.'s place of employment in violation of the protective order. On July 7, 2004, around 11:50 a.m., Redman activated his lights and siren after seeing [petitioner] in his truck. [Petitioner] first slowed down to pull over and then rapidly accelerated to between 45 and 55 miles per hour. During the chase [petitioner] reached speeds of 85 to 90 miles per hour, forced numerous vehicles off the road, and collided with a car. [Petitioner] was eventually stopped and arrested.
Between July 7, 2004, and April 20, 2005, [petitioner] made a series of telephone calls to his wife, his brother, his mother, and other people in an attempt to prevent his wife, son, and others from testifying against him. The calls were recorded and transcribed.
People v. Jones, 2008 WL 510558 at *1.
Standards for an Evidentiary Hearing
The ordinary standards under federal law for an evidentiary hearing, which are well known and well established in the Ninth Circuit, are as follows. "To obtain an evidentiary hearing on an ineffective assistance of counsel claim, a habeas petitioner must establish that (1) his allegations, if proven, would constitute a colorable claim, thereby entitling him to relief and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts." Correll v Stewart, 137 F.3d 1404, 1413 (9th Cir. 1998). Nevertheless, the court does not have to hold an evidentiary hearing when the record clearly refutes the collateral factual allegations raised by petitioner. Schiro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1940 (2007). Moreover, Schriro also announced that in determining whether to grant an evidentiary hearing the federal court must apply the AEDPA deferential standards to legal and factual questions necessarily reached by the state courts. Id. Thus, for example, if the reasons for counsel actions were at issue, but under deferential standards, the court could not find prejudice, no evidentiary hearing would be necessary.
In addition, the undersigned emphasizes that in order to obtain an evidentiary hearing, the claim, when viewed in light of the allegations, must be colorable. "It is well settled that '[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.'" Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). This includes the recitation of critical facts supporting the alleged violation, including any requirement of prejudice. The necessity for the statement of a colorable claim is important for the resolution of several claims herein without holding an evidentiary hearing.
For the reasons set forth below, petitioner has not set forth colorable claims that would require an evidentiary hearing regarding any of the claims in the petition.
Claim 1- Substitute Counsel Denied (Related to Marsden Motion)
Petitioner first argues that his "motion for substitute counsel was improperly denied in violation of 6th Amendment right to effective assistance of counsel." Respondent considers this simply an assertion that petitioner's Marsden motion was improperly denied, and thus, simply an assertion of state law violation. However, respondent cannot restate petitioner's expressly stated claim simply to fit an argument respondent would like to make. While the federal claim, as discussed below, has much similarity with the state claim, it is still a federal claim.*fn3
A defendant has a Sixth Amendment right to conflict-free representation. United States v. Moore, 159 F.3d 1154, 1157 (9th Cir. 1998). Not every conflict between a defendant and counsel, however, implicates the Sixth Amendment. See Schell v. Witek, 218 F.3d 1017, 1027 (9th Cir. 2000). As the Supreme Court has explained, the right to counsel does not guarantee "a right to counsel with whom the accused has a 'meaningful attorney-client relationship.'" Morris v. Slappy, 461 U.S. 1, 3-4, 103 S.Ct. 1610 (1983). Nevertheless, where a court "compel[s] one charged with [a] grievous crime to undergo a trial with the assistance of an attorney with whom he has become embroiled in [an] irreconcilable conflict[it] deprive[s] him of the effective assistance of any counsel whatsoever." Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970). Thus, a reviewing court must assess the nature and extent of the conflict and whether that conflict deprived the defendant of representation guaranteed by the Sixth Amendment. Schell, 218 F.3d at 1027.
Daniels v. Woodford, 428 F.3d 1181, 1196-97 (9th Cir. 2005)*fn4
Although the Court of Appeal discussed this issue in the context of a Marsden motion, its reasoning is instructive to the federal issue:
Four months after pleading guilty and admitting prior convictions, [petitioner] made a Marsden motion. In support of his motion, he told the court that his counsel had never filed a change of venue motion that [petitioner] had requested. He also complained about counsel's failure to obtain the transcripts from the preliminary hearing for his prior robbery conviction and counsel's failure to obtain [petitioner's] medical records.
Counsel replied by telling the court he had been unable to find someone to do the polling to support a change of venue motion, but had told the prosecutor that he would file the motion if the prosecutor continued to make statements about the case to the press. The prosecutor agreed to stop making comments ...