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Theodore Loren Clark v. Michael Evans

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 4, 2011

THEODORE LOREN CLARK, PETITIONER,
v.
MICHAEL EVANS, ET AL., RESPONDENTS.

ORDER DISMISSING PETITION

I. INTRODUCTION

Petitioner, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. The parties have consented to jurisdiction by a United States Magistrate Judge.

II. BACKGROUND

Petitioner was previously married to the mother of C.U. and later, to the mother of D.S. When petitioner was married to D.S.'s mother, they lived together for a period of time as a family unit with C.U., D.S., and two other children. Between June 24, 1996 and June 23, 1998, when C.U. was seven to eight years old, petitioner touched her vagina with his hand and/or penis on more than one occasion, and also orally copulated her. Between June 11, 1996 and June 10, 1999, petitioner sodomized or attempted to sodomize D.S., who was six to eight years old.

Contacted by law enforcement in 2005, petitioner expressed remorse and admitted the crimes.

On July 11, 2006, petitioner pleaded no contest to seven counts of lewd conduct with a child (Cal. Penal Code § 288(a)) involving two different victims, and admitted an allegation of substantial sexual conduct (Cal. Penal Code § 1203.066(a)(8)) in exchange for a stipulated term of twenty years imprisonment. Petitioner was sentenced accordingly on September 22, 2006. During this time, petitioner was represented by counsel, Mr. Keene.

Petitioner's appellate attorney, Ms. Shors, filed a brief pursuant to People v. Wende, 25 Cal. 3d 436 (1979), declining to raise any specific claims on appeal. Accordingly, the California Court of Appeal, Third District, affirmed the judgment and sentence. Petitioner attempted to file a pro se petition for rehearing. The petition was denied because he was represented by counsel.

Petitioner filed a pro se habeas corpus petition in the Sacramento County Superior Court, alleging that the statute of limitations for his offenses had expired, that pre-indictment delay deprived him of rights guaranteed by the due process clause, and that Attorney Keene and Attorney Shors both rendered ineffective assistance of counsel. The superior court denied the petition in a written decision dated August 17, 2007. A subsequent petition to the California Supreme Court, was likewise denied, but without written explanation.

III. CLAIMS

The pending federal petition presents three grounds for relief. For purposes of this opinion, petitioner's claims will be addressed as follows:

(A) Petitioner contends that the statute of limitations expired before prosecution commenced. Petitioner claims that plea counsel, Mr. Keene, rendered ineffective assistance in failing to raise this issue prior to entry of plea, and appellate counsel, Ms. Shors, rendered ineffective assistance in failing to raise the issue on appeal. (See Petition, grounds one and three.)

(B) Petitioner contends that the delay between the time law enforcement was first contacted and the time prosecution was commenced violated his right to due process. Petitioner additionally claims that plea counsel, Mr. Keene, erred in failing to preserve this issue for appeal or by incorrectly advising petitioner that this issue would be preserved for appeal. (See petition, ground two.)

IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also 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)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in state court proceedings unless the state court's 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. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003).

V. DISCUSSION

A. Ineffective Assistance of Counsel based on the Statute of Limitations Petitioner contends that the statute of limitations expired before prosecution commenced, and, consequently, that the Ex Post Facto Clause prohibited his subsequent convictions. In the pending petition, petitioner does not appear to bring a claim under the Ex Post Facto Clause; rather, he claims that both plea counsel and appellate counsel rendered ineffective assistance in failing to raise this issue prior to entry of the plea, and on appeal, respectively.

The Sixth Amendment guarantees a criminal defendant the effective assistance of counsel. A showing of ineffective assistance has two components. First, a petitioner must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). There is a strong presumption "that counsel's performance falls within the 'wide range of professional assistance,'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689), and that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689).

The second factor required for a showing of ineffective assistance of counsel is actual prejudice caused by the deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id.; see also Williams, 529 U.S. at 391-92; Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000).

The two part Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985) ("[A] defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [ineffective].") (internal quotations omitted). In this context, a petitioner is denied effective assistance of counsel when counsel's plea advice resulted in an involuntary plea. See Tollet v. Henderson, 411 U.S. at 267-68.

The Strickland standards apply equally to appellate counsel. Smith v. Murray, 477 U.S. 527, 535-36 (1986); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989). Nevertheless, an indigent defendant "does not have a constitutional right to compel appointed counsel to press non-frivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points." Jones v. Barnes, 463 U.S. 745, 751 (1983). There is no obligation to raise meritless or weak arguments on a client's behalf. Miller, 882 F.2d at 1434; see also Strickland, 466 U.S. at 687-88 (requiring a showing of deficient performance as well as prejudice).

As to petitioner's claims that both plea counsel and appellate counsel failed to raise a statute of limitations issue at the appropriate time, the Sacramento County Superior Court held, in the last reasoned stated court decision:

A statute may extend the statute of limitations on a crime whose statute of limitations has not yet expired; this does not violate the prohibition against ex post facto laws. (People v. Vasquez (2004) 118 Cal.App.4th 501.) Effective January 1, 2001, the statute of limitations for offenses described in Penal Code section 290(a) (2)(A), where the 6-year limitations period had not expired as of January 1, 2001, was extended to 10 years from the commission of the offense. (Former Pen. Code, § 803(h)(1).) In 2001, Penal Code section 290(a)(2)(A) included violations of Penal Code section 288. To show constitutionally inadequate ineffective assistance of counsel, a defendant must show that counsel's representation fell below an objective standard and that counsels' failure was prejudicial to the defendant. (In re Alvarnaz (1992) 2 Cal.4th 924, 937.)

Petitioner was convicted of multiple counts of lewd conduct with a minor. Petitioner claims that the face of the complaint/ information showed that the statue of limitations had expired by the time the prosecution commenced. Petitioner also claims that trial and appellate counsel were ineffective for failing to raise the issue either at trial or on appeal. First, he claims that the prosecution commenced on January 31, 2006, when the information was filed. However, the file in the underlying case shows that an arrest warrant was issued on September 14, 2005, commencing the prosecution. (See Pen. Code, § 804(d).) Second, Petitioner was charged with violations of Penal Code section 288(a), for acts occurring between June 11, 1996 and June 10, 1999 for Count 7. The statute of limitations for those violations was originally six years. Therefore, the limitations period would have ended in 2002. Since the limitations period had not expired before January 1, 2001, the period was extended in 2001 to 10 years from the commission of the offense. Therefore, the limitations period expired in June 2006 as to all counts. Since the prosecution commenced in September 2005, the statute of limitations had not expired. Since the limitations period had not expired, neither trial counsel nor appellate counsel was ineffective for failing to raise the issue.

In re Clark, No. 07F07340, slip op. at 1-2 (Sup. Ct. of CA, August 17, 2007).

The state court's rejection of petitioner's allegations of ineffective assistance of counsel based on the statute of limitations is neither contrary to, nor an unreasonable application of clearly established Supreme Court precedent. Rather, the decision is a reasonable application of the Strickland standard, as petitioner's fails to demonstrate deficient performance on the part of either attorney.

Petitioner was charged in Counts 1 through 6 of the information with violating California Penal Code section 288(a) between June 1996 and June 1999; Count 7 charged him with violating the same section between June 1996 and June 1999. (Clerk's Transcript (hereinafter "CT") at 41.1-41.5.) In 1996, a six-year statute of limitations period applied to violations of section 288(a). See former Cal. Penal Code §800 (West 1996); see also In re White, 163 Cal. App.4th 1576, 1579-80 (2008). Thus, as the state court found, the six-year statute of limitations for petitioner's underlying offenses was set to expire in June 2002 by the terms of section 800.

Effective January 1, 2001, however, a chaptered statute added a new subdivision

(h)(1) to former section 803, extending from six years to 10 years the statute of limitations applicable to the crimes of which petitioner was convicted:

Notwithstanding the limitation of time described in Section 800, the limitations period for commencing prosecution for a felony offense described in subparagraph (A) of paragraph (2) of subdivision (a) of [former] Section 290, where the limitations period set forth in Section 800 has not expired as of January 1, 2001, or the offense is committed on or after January 1, 2001, shall be 10 years from the commission of the offense..."

See former Cal. Penal Code §803(h)(1) (West 2001); In re White, 163 Cal. App. 4th at 1580.

In Stogner v. California, 539 U.S. 607, 616-17 (2003), the United States Supreme Court struck down this new provision in former California Penal Code section 803(g), as a violation of the Ex Post Facto Clause, to the extent that it revived previously time-barred prosecutions for sexual offenses. The Court nevertheless observed that its holding did not affect extensions of unexpired statutes of limitations, which have been consistently upheld against ex post facto challenges. Id. at 618. Importantly, in 2001, at the time of the statutory change, the previously applicable six year statute of limitations period had not expired with respect to petitioner's offenses. Accordingly, the extension in section 803, as applied to petitioner, did not violate the Ex Post Facto Clause. Following the extension, the prosecution had until June 2006 to commence prosecution.

On January 1, 2005, section 803(h)(1) was repealed and its substance simultaneously reenacted as California Penal Code section 801.1. Under the new section 801.1, just like former section 803(h)(1), a 10 year statute of limitations applied for violations of section 288(a). This simultaneous repeal and reenactment of the 10 year limitations period merely "changed the statutory home of the 10-year statute of limitations, without substantive textual change, to a new statute." In re White, 163 Cal. App. 4th 1576, 1580-81 (2008) (internal citations omitted). Because section 801.1 was enacted in substantially the same terms as the simultaneously repealed former section 803(g)(1), the unchanged provisions are construed "as being continuously in force." Id. at 1581-82. Thus, the ten-year statute of limitations "was continuously in effect" from its initial enactment in former section 803(h)(1) through its relocation to section 801.1. See Id. at 1583.

Indeed, the United States Supreme Court has long held that, where a new statute repeals an existing statute, "they both legislate upon the same subject, and in many cases the provisions of the two statutes are similar, and almost identical," and "there has never been a moment of time since the passage of the [existing statute] when these similar provisions have not been in force," "the new act should be construed as a continuation of the old with the modification contained in the new act." Bear Lake & River Waterworks & Irrigation Co. V. Garland, 164 U.S. 1, 11-12 (1896). In Bear Lake,the Supreme Court explained that "the new [statute] might more properly be said to be substituted in place of the old one, and to continue in force, with modifications, the provisions of the old act, instead of abrogating or annulling them, and re-enacting the same as a new and original act." Id. at 12 (citing Pacific Mail SS Co v. Joliffe, 69 U.S. 450 (1986)).

As the state court found, under the new 10 year statute of limitations contained in section 803, the prosecution had until June 2006 to commence prosecution. Under California law at all times relevant, prosecution is commenced by filing an indictment or information, or obtaining a warrant for arrest, among other possibilities. Cal. Penal Code § 804(a); see also former Cal. Penal Code § 804(a) (West 2001-2006). Petitioner was charged with the offenses of conviction in a complaint filed September 14, 2005; this complaint was deemed to be an information on January 31, 2006. (CT at 23, 41.1-41.6, 46.) Additionally, an arrest warrant was issued on September 14, 2005. (CT at 1.) Regardless of whether it was the complaint, information, or arrest warrant that commenced prosecution, no ex post facto violation occurred.

Petitioner nevertheless appears to argue that the applicable statute of limitations period for his offenses is still six years. In support of this proposition, petitioner cites subsection

(a) of section 803: "Except as provided in this section, a limitation of time prescribed in this chapter is not tolled or extended for any reason." Cal. Penal Code § 803(a). Petitioner states that "[section] 801.1 clearly is not within [section] 803." Thus, petitioner appears to argue that section 801.1 improperly extended the statute of limitations formerly contained in section 803. Petitioner misunderstands the applicable current and former statutes and his argument is without merit. The ten-year statute of limitations was initially enacted within former section 803(h)(1), effective January 1, 2001 (changing the statute of limitations from six to 10 years). As discussed, on January 1, 2005, section 803(h)(1) was repealed and its ten-year statute of limitations simultaneously reenacted as California Penal Code section 801.1. From that point on, the relevant statute of limitations for petitioner's offenses was always contained in section 801.1, and not in section 803. At no time was the statute of limitations for petitioner's offenses extended or tolled in violation of section 803(a).

In sum, the extension of the unexpired statute of limitations applicable to petitioner's offenses from six years to 10 years was constitutionally permissible, and his criminal prosecution was initiated before that 10 year period expired. Accordingly, petitioner fails to demonstrate deficient performance on the part of either attorney. Neither plea counsel nor appellate counsel rendered ineffective assistance in failing to raise a statute of limitations issue.

B. Pre-indictment Delay

Petitioner also contends that his due process rights were violated because of unexplained preaccusation delay, also known as pre-indictment delay, between the time that an initial report was made to law enforcement in 2001, and the subsequent filing of the criminal complaint in 2005. In the alternative, petitioner contends that plea counsel rendered ineffective assistance by failing to preserve the issue for appeal or by inaccurately advising petitioner that the issue would be preserved for appeal. In this regard, petitioner contends he "specifically told counsel he would accept the [plea] offer -- to avoid a potential life sentence -- but only if the preaccusation delay issue could be raised on appeal."

Although petitioner presented this claim on state habeas corpus, it was not specifically resolved on the merits in a reasoned decision. Accordingly, the claim will be reviewed de novo. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th cir. 2002) ("[W]hen it is clear that a state court has not reachedthe merits of a properly raised issue, we must review it de novo.")

As an initial matter, when he entered his plea of no contest, petitioner waived his right to assert in the future a claim that pre-indictment delay violated his right to due process. See generally Gomez v. Berge, 434 F.3d 940, 943 (7th Cir. 2006) (holding that most antecedent constitutional claims are waived by the entry of a no contest plea, but that a double jeopardy claim is not waived), cert denied, 547 U.S. 1168 (2006). A plea of no contest "is an admission of guilt for the purposes of the case." Hudson v. Unites States, 272 U.S. 451, 455 (1926). When a criminal defendant has solemnly admitted in open court that he is guilty of a charged offense he may not thereafter raise independent claims relating to deprivation of constitutional rights that occurred prior to entry of the plea, but may only attack the voluntary and intelligent character of the plea. Tollett v. Henderson, 411 U.S. 258, 267 (1973); see also Hill, 474 U.S. at 56-57 ("[A] defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [ineffective].") (internal quotations omitted).

Accordingly, petitioner's entry of a no contest plea bars a subsequent attack on his conviction based on allegations of pre-indictment delay. Petitioner is still entitled to attack the voluntary and intelligent nature of his plea by asserting that plea counsel rendered ineffective assistance in this regard, however, this claim fails. Petitioner's cannot show deficient performance by plea counsel in relation to alleged pre-indictment delay, nor can he show that he suffered prejudice from the alleged error.

In United States v. Marion, the United States Supreme Court held that a lengthy pre-indictment delay does not violate the Speedy Trial Clause of the Sixth Amendment. 404 U.S. 307 (1971). This is because only "a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge... engage the particular protections of that provision." Id. at 320.

The Supreme Court further noted that statutes of limitations provide the primary guarantee against prosecutorial delay and the bringing of stale charges. Marion, 404 U.S. at 322 (quoting United States v. Ewell, 383 U.S. 116, 122 (1966).) Nevertheless, a statute of limitations does not define the full scope of a defendant's right to have charges promptly brought. Rather, "the Due Process Clause has a limited role to play in protecting against oppressive delay."

United States v. Lovasco, 431 U.S. 783, 789 (1977).

In describing the limited role of the Due Process Clause with respect to pre-indictment delay, the United States Supreme Court indicated that "proof of prejudice is generally a necessary but not sufficient element of a due process claim." Lovasco, 431 U.S. at 790. A "due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." Id.

"[T]he Due Process Clause does not permit courts to abort criminal prosecutions simply because they disagree with a prosecutor's judgment as to when to seek an indictment." Lovasco, 431 U.S. at 790. Likewise, "[j]udges are not free, in defining "due process," to impose on law enforcement officials our "personal and private notions" of fairness and to "disregard the limits that bind judges in their judicial function." Id. (quoting Rochin v. California, 342 U.S. 165, 170 (1952)). Rather, the Supreme Court has explained

Our task is more circumscribed. We are to determine only whether the action complained of... violates those "fundamental conceptions of justice which lie at the base of our civil and political institutions," Mooney v. Holohan, 294 U.S. 103, 112, 55

S.Ct. 340, 342, 79 L.Ed. 791 (1935), and which define "the community's sense of fair play and decency," Rochin v. California, supra, 342 U.S. at 173, 72 S.Ct. at 210.

Lovasco, 431 U.S. at 790.

In Lovasco, the Supreme Court thoroughly examined the policy reasons for not requiring, as a constitutional mandate, that a prosecutor bring charges as soon as probable cause has been established. The Lovasco Court further rejected the argument that the government is constitutionally required to file prompt charges once it has assembled sufficient evidence to prove guilt beyond a reasonable doubt. Id. at 791-92. Several reasons were identified by the Court for allowing considerable latitude in the timing of commencement of prosecution:

First, compelling a prosecutor to file public charges as soon as the requisite proof has been developed against one participant on one charge would cause numerous problems in those cases in which a criminal transaction involves more than one person or more than one illegal act. In some instances, an immediate arrest or indictment would impair the prosecutor's ability to continue his investigation, thereby preventing society from bringing lawbreakers to justice. In other cases, the prosecutor would be able to obtain additional indictments despite an early prosecution, but the necessary result would be multiple trials involving a single set of facts. Such trials place needless burdens on defendants, law enforcement officials, and courts.

Second, insisting on immediate prosecution once sufficient evidence is developed to obtain a conviction would pressure prosecutors into resolving doubtful cases in favor of early and possibly unwarranted prosecutions. The determination of when the evidence available to the prosecution is sufficient to obtain a conviction is seldom clear-cut, and reasonable persons often will reach conflicting conclusions... Even if a prosecutor concluded that the case was weak and further investigation appropriate, he would have no assurance that a reviewing court would agree. To avoid the risk that a subsequent indictment would be dismissed for preindictment delay, the prosecutor might feel constrained to file premature charges, with all the disadvantages that would entail. Finally, requiring the Government to make charging decisions immediately upon assembling evidence sufficient to establish guilt would preclude the Government from giving full consideration to the desirability of not prosecuting in particular cases. The decision to file criminal charges, with the awesome consequences it entails, requires consideration of a wide range of factors in addition to the strength of the Government's case, in order to determine whether prosecution would be in the public interest. Prosecutors often need more information than proof of a suspect's guilt, therefore, before deciding whether to seek an indictment... Requiring prosecution once the evidence of guilt is clear [ ] could prevent a prosecutor from awaiting the information necessary for such a decision.

Lovasco, 431 U.S. at 793-95. Based on these reasons, the Supreme Court concluded:

We would be most reluctant to adopt a rule which would have these consequences absent a clear constitutional command to do so. We can find no such command in the Due Process Clause of the Fifth Amendment. In our view, investigative delay is fundamentally unlike delay undertaken by the Government solely "to gain tactical advantage over the accused," United States v. Marion, 404 U.S., at 324, 92 S.Ct., at 465, precisely because investigative delay is not so one-sided. Rather than deviating from elementary standards of "fair play and decency," a prosecutor abides by them if he refuses to seek indictments until he is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt. Penalizing prosecutors who defer action for these reasons would subordinate the goal of "orderly expedition" to that of "mere speed," Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041 (1959). This the Due Process Clause does not require.

Lovasco, 431 U.S. at 795-96.

Thus, in Lovasco, the Supreme Court held that "to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time." 431 U.S. at 796. Under this standard, it is not enough to show that the prosecution could have proceeded more rapidly or that there was some period of delay in which no additional investigation was taking place. See United States v. Walker, 601 F.2d 1051, 1056 (9th Cir. 1979). The prosecution may not, however, intentionally delay in commencing prosecution for the purpose of obtaining a tactical advantage, to the prejudice of the accused." Id. "Also, it may not delay prosecution 'in reckless disregard of circumstances known to the prosecution, suggesting that there existed an appreciable risk that delay would impair the ability to mount an effective defense.'" Id. (citing Lovasco, 431 U.S. at 795, n.17.) Thus, in general, "[p]re-indictment delay is permissible unless it violates 'fundamental conceptions of justice which lie at the base of our civil and political institutions'." Id. (quoting Arnold v. McCarthy, 566 F.2d 1377 (9th Cir. 1978).

In this case, petitioner first raised the issue of pre-indictment delay in a motion to dismiss during proceedings before the Sacramento County Superior Court, prior to entry of his no contest plea. The motion to dismiss was denied following oral argument on the pleadings. (CT at 123-149; Reporter's Transcript (hereinafter "RT") (6/16/06) at 5-18). The record of these proceedings reveals that no delay offending the community's sense of fair play and decency occurred in this case.

In February 2001, petitioner's 12 year old stepdaughter, S., who is not one of the victims of the offenses of conviction in this case, disclosed to police that petitioner had engaged in inappropriate conduct with her and also with C.U. At that time, S. did not allege that any touching had occurred, nor did she allege that any of the conduct underlying the offenses of conviction had occurred. Accordingly, the superior court judge denied petitioner's motion to dismiss the indictment, finding no delay, because "the facts which are the basis for the seven counts with which you are accused now were not learned until 2005..." (RT (6/16/06) at 16.)

Indeed, it appears from the record that no law enforcement agency was made aware of the conduct underlying the offenses of conviction until 2005, when further investigation was initiated after C.U.'s mother contacted Washington State police. Petitioner proffers no evidence that either the prosecution or law enforcement intentionally delayed in commencing prosecution for the purpose of prejudice to the defense, or in spite of a known risk of prejudice to the defense. Even if petitioner experienced some pre-indictment delay, therefore, it did not violate fundamental conceptions of justice. See Lovasco, 431 U.S. at 796 ("to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time").

Because petitioner's underlying claim of pre-indictment delay is without merit, it necessarily follows that plea counsel did not perform deficiently in failing to preserve this issue for appeal. Moreover, no prejudice could have resulted from the alleged inaccurate advice that the issue could be raised on appeal following petitioner's no-contest plea. Accordingly, petitioner is not entitled to relief for any of his allegations regarding pre-indictment delay, including those his plea was involuntary because of plea counsel's advice or performance in this regard.

VI. CONCLUSION

For the foregoing reasons, the petition for writ of habeas corpus is hereby DENIED.

IT IS SO ORDERED.

20110204

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