ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the petition before this court petitioner challenges a six-year prison sentence imposed pursuant to a judgment of conviction entered on January 8, 2008, in the Solano County Superior Court. Petitioner claims that his sentence violated his November 6, 2006, plea agreement pursuant to which he pled no contest to second degree burglary and admitted four prior prison terms. In addition, petitioner contends that while his sentence reflected a waiver on his part of certain time credits acquired in 2007, he did not actually waive these time credits in his plea agreement. Finally, petitioner claims that his defense counsel rendered ineffective assistance by failing to assure that the sentencing judge who accepted the plea agreement was present at petitioner's re-sentencing in January 2008.
Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
I. Plea Agreement and Sentence
Petitioner was apparently charged with multiple criminal counts in connection with the August 2006 burglary of a Safeway. (Notice of Lodged Exhibits filed Jan. 13, 2010 (Doc. No. 14), Exs. A, B, E at 4.)*fn1 On November 6, 2006, petitioner pled no contest in Solano County Superior Court to second degree commercial burglary in violation of California Penal Code § 459.*fn2 He also admitted to having served four prior prison terms within the meaning of § 667.5, subd. (b). (Resp't's Lod. Exs. A, B.) In exchange for petitioner's no contest plea, the prosecutor dismissed one count of robbery and one count of petty theft with a prior conviction. (Resp't's Lod. Ex. E at 6.)
In his waiver of rights in support of the no contest plea, petitioner initialed a statement reading: "The maximum punishment which the court may impose based upon this plea is 3 yrs. SP [state prison] 4 yrs. = [defendant] admits 4 prison priors = 7 yrs." (Resp't's Lod. Ex. B at 2.) The waiver also provided that, if petitioner was found eligible for a residential drug treatment program, he would be placed on probation and the seven-year sentence suspended. (Id.) If the defendant were not found eligible for residential drug treatment, the waiver of rights form provided that he would receive a sentence of four years in state prison. (Id.)
A change of plea hearing was held on November 6, 2006 in the Solano County Superior Court before the Hon. Robert Bowers. (Resp't's Lod. Ex. E.) In the course of reviewing the terms of the plea agreement, Judge Bowers stated:
We'll refer it to probation to assess you for residential treatment. If you are found eligible, you'll be placed on probation with seven years hanging over your head, which is the seven-year max we talked about. If you are not eligible for probation, for some unknown reason that I'm not aware of, then you would receive the four-year sentence at half time.
(Id. at 6.) Petitioner replied that he understood, and Judge Bowers subsequently accepted the plea agreement. (Id.)
On January 23, 2007, the parties again appeared before Solano County Superior Court Judge Robert Bowers for a sentencing hearing. (Resp't's Lod. Ex. F.) The court noted at that time that the probation department had found petitioner eligible for a residential drug treatment program called Genesis House. (Id. at 4-5.) However, the court also noted that in light of petitioner's criminal history and four disciplinary write-ups he had received while in county jail, the probation department was recommending that he be sentenced to "serve s seven years in the Department of Corrections." (Id. at 8.) After hearing from counsel regarding sentencing, Judge Bowers engaged in the following exchange with defense counsel:
THE COURT: [T]hese are not good factors, but who's to say that Mr. Collier won't get out of a program and succeed?... [I]n light of what's there, if he waives all of his credits, I'll send him to a [residential drug treatment] program."
[PETITIONER'S ATTORNEY]: [Confers with petitioner.] Your Honor, Mr. Collier wants the Court to know that he is very, very much serious about treatment, and he is willing to waive his credits.
THE COURT: Okay. Waive all his credits. (Id. at 8-9.)
The court then sentenced petitioner to a three year term of formal probation with the condition that he serve one year in the county jail, with credit for time served of, effectively, 279 days. (Id. at 13. See also Resp't's Lod. Ex. C.) At the time of sentencing the court stated that petitioner would be released to the residential treatment program as a condition of his probation upon completion of his county jail sentence. (Resp't's Lod. Ex. F at 11, 13.) The court further stated that petitioner was to remain in the residential treatment program "till [sic] released by the director upon satisfactory completion." (Id. at 11.)
In light of petitioner's lengthy criminal record, the superior court deemed his a "zero tolerance" case with respect to any violation of probation, such that if petitioner failed to comply with the terms and conditions of his probation, he would be sentenced to state prison. (Id. at 10; see Resp't's Ex. G at 4.) At the sentencing hearing, petitioner's prior criminal record was described as follows:
[PROSECUTOR]: In a lot of counties, he would have been a three-striker. He had a 211 out of L.A., which he did 15 years for. His record is atrocious.... It should be a zero tolerance case right now.
THE COURT: It will be....[A]nd yes, this was... charged as a robbery, and had he gone to trial on the 211 with a strike, I think, prison prior, what did you all charge?
[PROSECUTOR]: Serious on serious.
THE COURT: Serious on serious, one, two, three, five year serious on serious, consecutive priors, so if he had gone to trial and it had not gone his way, he'd be looking at being in prison for the rest of his life. But we reached an agreement. It's a seven-year maximum, which is good. He has a chance to do probation; that's good. You are going to get a chance. (Id. at 10.)
As to waiver of time credits, at sentencing the court ordered that petitioner would be entitled to those credits previously earned during his 153 days in custody at the county jail between August 2006 and January 2007. (Id. at 11.) Regarding future time credits, the court stated: "He'll remain in custody till [sic] placed in the program.... He'll waive all of his credits, pre-sentence time in the program, good-time, work-time credits." (Id. at 11.) At the conclusion of the sentencing hearing, petitioner's counsel inquired of the court as follows: "So he'll be waiving a year once his year is complete?" The superior court replied: "All; [sic] he's waiving all of his credits, and only in the event of a probation violation. Obviously, if he goes to the program, does well, completes his probation, not an issue, right?" (Id. at 14.)
II. Sentencing Hearing on Probation Violation
After being placed on three years formal probation on January 23, 2007, and following his admission into the residential drug treatment program as a condition thereof, petitioner was found to have violated the terms and conditions of his probation. (Resp't's Ex. G at 5.)*fn3 On January 8, 2008, a sentencing hearing on the probation violation was held in the Solano County Superior Court before the Hon. Richard Bennett. At that time the prosecutor advised the court that petitioner had "failed out" of the residential treatment program imposed as a condition of his probation. Specifically, the deputy district attorney advised the court that petitioner had "absconded" from the treatment program, didn't turn himself in for "four or five months," and was eventually "picked up on a warrant" and returned to the Solano County Jail. (Resp't's Ex. G at 4, 8-9.) Noting petitioner's "long history of violent crimes" and that the fact that Judge Bowers had labeled his a zero ...