The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DENYING PETITION FOR WRIT OF
HABEAS CORPUS, DIRECTING CLERK OF
COURT TO ENTER JUDGMENT IN FAVOR OF RESPONDENT,
AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the United States Magistrate Judge. Local Rule 305(b).
In the Stanislaus County Superior Court, Petitioner pled no contest to numerous drug, firearm and theft charges in exchange for sentencing concessions. Petitioner was sentenced to nine years in state prison.
On January 14, 2010, the California Court of Appeal, Fifth Appellate District affirmed the judgment. On May 5, 2010, Deputy Clerk, Robert R. Toy, of the California Supreme Court issued a letter stating, "Our records indicate the Court of Appeal filed its decision on January 14, 2010. The last day we could have entertained any pleading was March 15, 2010. (Cal. Rules ofCourt, rule 8.264.) (Traverse, at p. 12.)*fn1
Petitioner filed the instant federal petition for writ of habeas corpus on August 5, 2010. Respondent filed an answer to the petition on December 15, 2010, and Petitioner filed a traverse on January 21, 2011. Respondent filed a reply to the traverse on January 24, 2011. Pursuant to this Court's request, Respondent submitted further briefing on January 28, 2011. On February 11, 2011, Petitioner filed a motion to amend his traverse to demonstrate excuse for the alleged procedural default.
On October 6, 2006, an 11-count information was filed charging Petitioner and his wife, Theresa Aquirre, with transporting methamphetamine and marijuana, possessing methamphetamine and marijuana for purpose of sale, unlawful possession of a firearm and ammunition, receipt of a stolen vehicle, and vehicle taking or driving. A prior strike, a prison prior and two prior controlled substance convictions were specifically alleged with respect to [Petitioner] only. [citations] [Petitioner] and Aquirre both entered not guilty pleas and [Petitioner] denied the special allegations. [N.1]
[N.1] A separate information was filed on the same date charging [Petitioner] with receiving a stolen vehicle while released on bail. This information was dismissed.
[Petitioner] and Aquirre each filed a separate motion to suppress evidence. [Petitioner] joined in Aquirre's motion. After hearing, both motions were denied. [Petitioner] and Aquirre accepted negotiated plea offers.
On December 10, 2008, a change of plea hearing was held. In exchange for [Petitioner's] no contest plea to all of the charges and admission of the prior strike, the prison prior and one of the prior drug conviction allegations, he would be sentenced to a term of nine years and the remaining special allegation would be dismissed. In exchange for Aquirre's no contest plea to one count of being an accessory to the crime of transporting methamphetamine (a lesser related offense to count I), she would be granted probation for a period of three years and the remaining charges would be dismissed. Aquirre was required to waive her appellate rights as a condition of the plea agreement but [Petitioner] was not. He was advised that his obligations under the plea agreement did not include surrender of his right to appeal from the denial of the suppression motion. (See Pen. Code, § 1538.5, subd. (m).)
The court asked [Petitioner], "Are you pleading no contest because after talking with your attorney you're satisfied that if you went to trial there's a substantial probability you would be convicted? [Petitioner] answered, "Yes." The court continued, "That, plus the promises made to you with regard to the sentence the reason you're doing this?" [Petitioner] said, "Yes." [Petitioner] alsoresponded affirmatively to the court's query whether he had enough time to discuss the matter with his attorney and whether he told the attorney all the facts and circumstances of the case. [Petitioner's] counsel affirmed that he had enough time to review the matter and discuss it with [Petitioner]. [Petitioner] replied negatively to the court's query whether anyone had threatened him or anyone close to him to obtain the plea. Aquirre was asked the same questions and replied in the same manner as did [Petitioner]. [Petitioner's] counsel stated that there was a factual basis to the entry of the plea and it was set forth by the prosecutor. [N.2] [Petitioner] confirmed that he understood a no contest plea is the legal equivalent of a guilty plea. The court found [Petitioner] had waived his rights and entered the plea voluntarily and intelligently.
[N.2] The prosecutor proffered the following factual basis for [Petitioner's] plea: The charges originated from a traffic stop involving [Petitioner] and Aquirre. On or about January 16, 2005, [Petitioner] knowingly transported an item containing over 80 grams of methamphetamine and another item over four grams of methamphetamine. On the same date, over six grams of methamphetamine, at least one handgun, one shotgun and some ammunition were found at his residence, as was a Honda that had been reported stolen. Scales, totes and cash were found on the persons of [Petitioner] and Aquirre. On the same date, a bag [Petitioner] was carrying when he left on foot after the traffic stop was found abandoned. It contained eight bags of marijuana packaged for sale. [Petitioner] has a prior conviction for vehicular manslaughter with gross negligence, as well as "the listed convictions in the prior set forth in [Penal Code section] 667.5(b)."
[Petitioner] sentencing hearing was conducted on February 23, 2009. At the outset, [Petitioner's] counsel stated: "Your honor, I do, however, I want to inform the Court that Mr. Perez is wanting to withdraw his plea. He feels that he was unduly forced to make this plea because of leniency that was promised to the co-defendant, which is his wife." The court replied, "The motion to withdraw the plea is denied."
Thereafter, the court imposed the agree upon nine-year sentence. [Petitioner] interrupted and the following colloquy occurred: "[PETITIONER]: Excuse me, your Honor. Excuse me, your Honor. I don't know what he's doing. I really don't. But we need to sit here - - and I need to sit here and wait to see what is going on with my wife. He is sitting here talking about he's trying to save my appeal. I've already sat here and told him something else. I don't know what he's trying to do.
"THE COURT: I don't know what you're talking about. "MR. RUCK [defense counsel]: Well, that is something I wanted to make sure, because I just spoke with the district attorney outside, he perhaps misremembered, but he has an appeal right on the 1538.
The court confirmed that [Petitioner] had a right to appeal from the ruling on the suppression motion and stated that it would issue a certificate of probable cause. [Petitioner] said, "I'm not guilty." The court replied, "Well, you know what, Mr. Perez. You changed your plea and you pled guilty, so that's the way it is. Okay."
[Petitioner] asked the court to wait for "Percy" and Aquirre "to be here so we can do this. I feel more comfortable like that." The court stated that it did not see the purpose of waiting because Aquirre's "agreement is settled" and she will receive the agreed upon sentence. The prosecutor stated that he spoke with Aquirre's counsel before this matter was called and he is 25 minutes away from the courthouse. Defense counsel and he are anxious for this ...