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Mapes v. McDonald

October 31, 2010

WALTER IVAN MAPES, PETITIONER,
v.
M.C. MCDONALD, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the Shasta County Superior Court's decision in 2006 to revoke his previously granted probation. Petitioner seeks federal habeas relief on the ground that the trial court improperly denied his motion to relieve his counsel pursuant to the decision in People v. Marsden, 2 Cal.3d 118 (1970).

Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.

PROCEDURAL BACKGROUND

On December 1, 2006, petitioner was sentenced by the Shasta County Superior Court to a state prison term of six years and eight months after his probation was revoked for violating the terms and conditions of his probation. (Notice of Lodging Documents on September 4, 2009 (Doc. No. 12), Clerk's Transcript on Appeal ("CT") at 151-56, 161-64.) That same day timely notices of appeal were filed. (Resp't's Lod. Doc. 1 at 3.)

Before his appeal had been decided petitioner filed a petition for writ of habeas corpus in the Shasta County Superior Court on August 4, 2006. (Resp't's Lod. Doc. 6.) That petition was denied on August 22, 2006. (Resp't's Lod. Doc. 7.) Petitioner then filed a second habeas petition in the Shasta County Superior Court on March 29, 2007. (Resp't's Lod. Doc. 8.) That petition was denied on April 20, 2007.*fn1 (Resp't's Lod. Doc. 9.)

On December 24, 2007, the judgment and conviction was affirmed by the California Court of Appeal for the Third Appellate District in a reasoned opinion. (Resp't's Lod. Doc. 4.) Petitioner then filed a petition for review with the California Supreme Court. (Resp't's Lod. Doc. 5.) On March 12, 2008, the California Supreme Court denied that petition. (Id.) Petitioner thereafter filed a petition for writ of habeas corpus with the California Court of Appeal for theThird Appellate District. (Resp't's Lod. Doc. 11.) That petition was denied on October 9, 2008. (Resp't's Lod. Doc. 12.) Petitioner thereafter filed a petition for writ of habeas corpus with the California Supreme Court. (Resp't's Lod. Doc. 13.) That petition was denied on May 13, 2009. (Id.)

On June 15, 2009, petitioner filed the federal habeas petition now before this court. (Doc. No. 1- "Pet.") Respondent filed an answer on September 2, 2009. (Doc. No. 11-"Answer.") Petitioner then filed a traverse on September 18, 2009. (Doc. No. 13.)

FACTUAL BACKGROUND

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:

On October 13, 2005, defendant Walter Ivan Mapes pled guilty to one count of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and admitted one prior conviction pursuant to Health and Safety Code section 11370.2, subdivision (a) (case No. 05F6320). Consistent with his plea, defendant was granted Proposition 36 probation. One week later, the probation department filed a petition to revoke defendant's probation, alleging several violations of the terms and conditions of his probation. Less than two weeks later, a second felony complaint was filed charging defendant with possession of methamphetamine, resisting a peace officer, trespassing, and possession of 28.5 grams or less of marijuana (case No. 05F8185). In April 2006, defendant admitted the probation violation in case No. 05F6320 and pled no contest to possession of methamphetamine in case No. 05F8185. In exchange for his admission and plea, the court reinstated defendant's probation in case No. 05F6320 and granted him probation in case No. 05F8185. In May and June 2006, the probation department filed three more petitions to revoke defendant's probation in both cases. On July 5, 2006, represented by appointed counsel Ted Loos, defendant admitted to violating his probation. Before sentencing, however, defendant sought to withdraw his admission along with his pleas to the underlying offenses.

The court appointed new defense counsel, Mr. Farrell, to determine whether filing a motion to withdraw defendant's admission and/or defendant's prior pleas was warranted. Mr. Farrell ultimately determined such a motion was not appropriate and the court reappointed Mr. Loos to represent defendant for sentencing. Defendant then requested a Marsden hearing.

On October 31, 2006, the court conducted a Marsden hearing, and denied defendant's motion. (Resp't's Lod. Doc. 4. ("Opinion") at 1-3.)

ANALYSIS

I. Standards of Review Applicable to Habeas Corpus Claims

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Title 28 U.S.C. § 2254(d) sets forth the following standards for granting habeas corpus relief:

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.

See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision.

Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

II. Petitioner's Claim

A. Procedural Default

The Shasta County Superior Court denied petitioner's second state habeas petition on April 20, 2007, noting that "a petition for writ of habeas corpus is not a substitute for appeal" and citing the decision in In re Dixon, 41 Cal. 2d 756, 759 (1953). (Resp't's Lod. Doc. 9.) Similarly, on October 9, 2008, the California Court of Appeal cited the decision in In re Clark, 5 Cal. 4th 750, 782-83, 797 (1993) in denying as "untimely" petitioner's application for writ of habeas corpus filed with that court. (Resp't's Lod. Doc. 12.) Finally, on May 13, 2009, the California Supreme Court denied petitioner's petition for writ of habeas corpus filed with that court, citing the decision in In re Swain, 34 Cal. 2d 300, 304 (1949). (Resp't's Lod. Doc. 13.) Respondent argues that these rulings by the state courts constitute a procedural bar precluding this court from addressing the merits of petitioner's federal habeas claim. (Answer at 14-16.)

State courts may decline to review a claim based on a procedural default. Wainwright v. Sykes, 433 U.S. 72, 81-82 (1977). As a general rule, a federal habeas court "'will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'" Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The state rule for these purposes is only "adequate" if it is "firmly established and regularly followed." Id. (quoting Ford v. Georgia, 498 U.S. 411, 424 (1991)). See also Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003) ("[t]o be deemed adequate, the state law ground for decision must be well-established and consistently applied.") The state rule must also be "independent" in that it is not "interwoven with the federal law." Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). Even if the state rule is independent and adequate, the claims may be subject to habeas review by the federal court if the petitioner can show: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50.

However, in this case petitioner raised the claim he raises here on direct appeal to the California Court of Appeal. While that appeal was pending, petitioner filed a petition for writ of habeas corpus in the Shasta County Superior Court on August 4, 2006. (Resp't's Lod. Doc. 6.) That petition was denied on August 22, 2006. (Resp't's Lod. Doc. 7.) Petitioner then filed a second habeas petition in the Shasta County Superior Court on March 29, 2007. (Resp't's Lod. Doc. 8.) The Shasta County Superior Court denied that petition on April 20, 2007, stating that petitioner's "appeal is pending" and noting that he had raised some grounds "not raised" in his prior habeas petition filed with that court. (Resp't's Lod. Doc. 9.) Thus, the Superior Court's citation to In re Dixon and observation that a petition for writ of habeas corpus is not a substitute for an appeal, did not apply to the Marsden claim that he raised on direct appeal and which he presents to this court, but instead was directed only to the other grounds petitioner had not raised in his prior state habeas petition.

On December 26, 2007, after the Shasta County Superior Court had denied petitioner's second habeas petition on April 20, 2007, the California Court of Appeal affirmed petitioner's judgment of conviction on appeal addressing on the merits the Marsden claim he raises in his pending federal habeas petition. (Resp't's Lod. Doc. 4.) On March 12, 2008, the California Supreme Court summarily denied petitioner's petition for review of that decision. (Resp't's Lod. Doc. 5.) Therefore, the California Supreme Court denied that petition for review on the merits. See Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir. 2010); Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) (where more than one state court has adjudicated petitioner's claims, a federal habeas court analyzes the last reasoned decision; later unexplained orders, upholding a judgment or rejecting the same claim, rests upon the same ground as the prior order), cert. denied ___U.S.___, 126 S.Ct. 2041 (2006); see also Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

On October 2, 2008, after the California Supreme Court summarily denied the petition for review, petitioner filed yet another petition for writ of habeas corpus, this time in the California Court of Appeal. (Resp't's Lod. Doc. 11, 12.) In the state appellate court's October 9, 2008 order denying that petition the court admonished petitioner for waiting seventeen months after the Shasta County Superior Court denied his habeas petition before filing his petition with the California Court of Appeal. (Resp't's Lod. Doc. 12.) There was no mention of petitioner's appeal or the California Supreme Court's denial of the petition for review on the merits.

Thereafter, on January 20, 2009, petitioner filed another petition for writ of habeas corpus, this time in the California Supreme Court. The May 13, 2009 order denying that petition merely stated "petition for writ of habeas corpus is denied," and provided a citation to the decision in In re Swain. (Resp't's Lod. Doc. 13.) Again, the California Supreme Court made no mention of petitioner's direct appeal or the California Supreme Court's earlier summary denial of his petition for review on the merits.

It would appear, therefore, that federal habeas review of petitioner's Marsden claim is not procedurally barred. Petitioner timely raised this claim on direct appeal from his judgment of conviction. The claim was rejected on the merits and no procedural grounds were cited by the state court in rejecting petitioner's arguments with respect to this claim. Even if this were not the case, a reviewing habeas court need not invariably resolve the question of procedural default prior to ruling on the merits of a claim where the default issue turns on difficult questions of state law. Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997); see also Busby v. Dretke, 359 ...


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