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Steven Anthony Silvera v. Gary Swarthout

April 8, 2011

STEVEN ANTHONY SILVERA, PETITIONER,
v.
GARY SWARTHOUT, ET AL.,*FN1 RESPONDENTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

I. Introduction

Petitioner is a state prisoner proceeding without counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Both parties have consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Petitioner challenges his 2007 conviction. Petitioner pled no contest to second degree commercial burglary and admitted three prior prison terms in exchange for dismissal of a charge of petty theft with a prior. Petitioner was sentenced to a six-year suspended sentence, and placed on probation for three years. As a term of probation, petitioner was required to commit himself to the Delancey Street residential program and complete treatment to the satisfaction of the director. Petitioner subsequently violated his probation; his suspended six-year sentence was ordered to be executed. Petitioner raises three claims in the instant petition: (1) the trial court allegedly violated the terms of the plea agreement by sentencing petitioner to a six-year suspended sentence; (2) trial counsel was ineffective based on counsel's failure to seek to withdraw the plea; and (3) petitioner was coerced into waiving custody credits. After careful review of the record, this court concludes that the petition should be denied.

II. Facts and Procedural History

Petitioner was charged with stealing merchandise from a Home Depot Store.

(Respondents' Lodged Document Ex. (hereafter "Ex.") 1.) Petitioner entered a plea of no contest and was sentenced on February 4, 2008. (Ex. 7.)

On August 21, 2008, petitioner filed a petition for writ of habeas corpus in the Solano County Superior Court. (Ex. 9.) The Solano County Superior Court denied the petition on October 16, 2008. (Ex. 10.)

Petitioner filed a second petition for writ of habeas corpus in the Solano County Superior Court on February 23, 2009. (Ex. 11.) The Solano County Superior Court denied the petition on April 23, 2009. (Ex. 12.)

Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, First Appellate District, Case No. A124761, on May 1, 2009. (Ex. 13.) The petition was denied on May 27, 2009. (Ex. 13.)

On June 30, 2009, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. (Ex. 14.) The California Supreme court denied the petition without comment on July 22, 2009. (Ex. 14.)

The instant petition was filed on August 21, 2009. (Dkt. No.1.)

III. Standards for a Writ of Habeas Corpus

An application for a writ of habeas corpus by a person in custody under a 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). 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).

Federal habeas corpus relief 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).

Under section 2254(d)(1), a state court decision is "contrary to" clearly

established United States Supreme Court precedents if it applies a rule that contradicts the governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at different result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. 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." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'") (internal citations omitted). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned decision, "and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. That presumption may be overcome by a showing that "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, the federal court conducts an independent review of the record. "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). Where no reasoned decision is available, the habeas petitioner has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784. "[A] habeas court must determine what arguments or theories supported or, . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. at 786.

IV. Last Reasoned State Court Opinion

Petitioner raised the three instant claims in his petition for writ of habeas corpus filed in the Solano County Superior Court. (Ex. 11.) The last reasoned rejection of these claims is the April 23, 2009 decision of the Solano County Superior Court. (Ex. 12.) The state court addressed petitioner's claims as follows:

Petitioner claims . . . the Court sentenced him to an illegal plea bargain, his counsel committed ineffective assistance by advising him to not withdraw his plea and the Court coerced a credit waiver from him.

Petitioner cannot raise the illegal plea bargain and coerced credit waiver on writ of habeas corpus as they should have been raised on appeal. Habeas corpus is not a substitute for appeal. (In re Dixon (1953) 41 Cal.2d 756, 759; In re Harris (1993) 5 Cal.4th 813, 826-827.) The Court will not entertain any of Petitioner's issues in this petition because he should have raised them in FCR258408, which he filed August 21, 2008. "[P]iecemeal presentation of known claims and ...


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