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Douglas Erwin v. Anthony Hedgpeth

June 14, 2011


The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge


Petitioner, Douglas Wayne Erwin, is a state prisoner proceeding with a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a determinate sentence of twenty-two years in prison after pleading guilty to committing robbery with an enhancement for the intentional discharge of a firearm. Petitioner raises five claims in this federal habeas petition; specifically: (1) That his guilty plea was involuntary as a result of the ineffective assistance of his counsel ("Claim I"); (2) that his counsel was ineffective for failing to conduct a reasonable pretrial investigation ("Claim II"); (3) that his plea was the product of outrageous government misconduct in that the lead detective falsified reports and evidence ("Claim III"); (4) that his counsel was ineffective at sentencing for failing to object to the prosecution's evidence and for failing to inform him of his right to appeal; and, (5) that evidence used to convict him was obtained through an illegal search in violation of his Fourth Amendment rights. For the reasons stated herein, the federal habeas petition should be denied.


1. State Court Decision*fn1

The following facts were revealed at defendant's . . . trial:*fn2

F.W. was sitting in her car outside a Circle K in Elk Grove in the early morning hours of July 26, 2005. She worked at the store, but was off-duty at the time. F.W. allowed a short Black man to use her lighter then asked the man if he knew anyone who wanted to buy a bag of marijuana. She gave him her name and phone number. The man returned approximately 10 or 15 minutes later, and demanded her purse at gunpoint. A struggle ensued. A taller, light-skinned man arrived on the scene and told F.W. to open the passenger door. Eventually the taller man pulled the purse from F.W.'s hands. F.W. ran after the two men, yelling, "[Y]ou're not getting nothing" or "[Y]ou all ain't nothing but bitches. . . ." The short man shot F .W. in the groin and thigh, and ran away. The crime scene investigator found a .22-caliber shell casing at the scene of the shooting.

2. Further Pertinent Facts and Procedural History Later, on the day of the shooting, police obtained from the manager of the Circle K a compact disc which included the store's video surveillance from the incident. Pet'r's First Am. Pet. (Hereinafter "Pet."), Ex. 48. A detective brought the video to the hospital, where he showed the video to the victim. The victim identified a person in a yellowish shirt who had purchased cigarettes inside the store prior to the robbery as the person who later, along with another man, attempted to rob her. Id.; Rep.'s Tr. at 241, 248. The victim identified the man in the yellowish shirt as the one who shot her. Pet., Ex. 48. The detective then isolated several images of the suspect, id., and created a crime bulletin from those images. Pet., Ex. 44. The surveillance video was thereafter lost by the prosecution, see Clerk's 138, not to be seen by the District Attorney prosecuting the case nor Petitioner or his co-defendant's counsel until it was rediscovered contemporaneously with the victim's testimony at Petitioner's trial. Rep.'s Tr. at 230-31. The images taken from the video and placed in the crime bulletin, as well as other detective work by the Sacramento Sheriff's Department, helped identify Petitioner as the suspect seen purchasing cigarettes in the video, though the victim could not identify Petitioner out of a photo lineup. See Clerk's Tr. (Preliminary Hearing) at 53-58, 66-67. Eventually, Petitioner was arrested and was scheduled for trial along with his co-defendant, Kenneth Lomack, in early 2007.

Prior to trial, Petitioner's counsel recommended Petitioner accept a plea agreement offered by the prosecution and plead guilty to some of the crimes charged in exchange for a twenty-two year prison term. See Pet., Ex. 4. Under the agreement, Petitioner would plead guilty to the robbery charge and to an enhancement for the intentional discharge of a firearm in the commission of a felony. See Cal. Penal Code § 12022.53(c); Rep.'s Tr. at 337-38. If Petitioner was found guilty of the charged enhancement, discharge of a firearm causing great bodily injury, he would face a mandatory term of twenty-five years to life in prison. See Cal. Penal Code § 12022.53(d). At this point, Petitioner refused the proposed plea agreement and decided, against the advice of his attorney, to proceed to trial.

During the Court's consideration of the Petitioner's pre-trial motions, the Petitioner expressed dissatisfaction with his representation, and moved to have his counsel removed.*fn3

Rep.'s Tr. at 30. After a hearing on the motion, it was denied. Clerk's Tr. at 127.

Petitioner's counsel continued to argue various motions on behalf of Petitioner, including a motion to suppress several of Petitioner's statements to investigators as violations of Petitioner's Miranda rights. See Rep.'s Tr. at 67-77. Furthermore, Petitioner's counsel joined in a motion with Petitioner's co-defandant's counsel, pursuant to California v. Trombetta, 467 U.S. 479 (1984), to have the case dismissed due to the prosecution's loss of the surveillance video, which the defense claimed may contain exculpatory evidence. See Rep.'s Tr. at 62. The court, concluding that the defense could not show that the video contained any exculpatory evidence or that the video was lost in bad faith, denied Petitioner and his co-defendants Trombetta motion. Id. at 64-66. Lastly, discussed more fully below, Petitioner made a motion to suppress evidence that was discovered in a search of an apartment. Id. at 85.

At Petitioner's trial, the victim was called as the prosecution's first witness and she testified as to the events of the early morning hours of July 26, 2005. Id. at 193. The victim was sitting in her car outside the Circle K waiting for the attendant, her friend and co-worker, to come outside and smoke a cigarette with her. She observed a black male wearing a yellowish, bright colored shirt and pajama type pants purchase something inside the Circle K. Id. at 204. When the man came out of the Circle K, he borrowed a lighter from the victim. She offered to sell him some marijuana. The man said that he did not need any, but obtained the her phone number in case his friend wanted to purchase some later. Id. at 205. Minutes later, the man returned to the Circle K, put a gun in the victim's face, and demanded her purse. Id. at 212-213. A struggle ensued and eventually the man and his accomplice began to walk away with the victim's purse. She began yelling at the men and the man in the yellowish shirt, who had previously held a gun up to the victim, shot her. Id. at 221. She further testified that, later, at the hospital, she was shown the surveillance tape from the Circle K and she identified a man wearing a yellowish shirt, shown at the counter purchasing cigarettes, as the man who robbed and shot her. Id. at 241.

The victim's testimony occurred over two days of trial. The morning of the second day the court noted that the surveillance video tape had been found somewhere in the prosecution's files. Id. at 229-30. Both Petitioner and his co-defendant moved for a mistrial, id. at 230-31, which the court granted after the conclusion of the victim's testimony and hearing additional argument on the motion. Id. at 316-17. Petitioner was scheduled to be retried later the same week the mistrial was granted.

Prior to retrial, Petitioner's counsel again urged him to accept the proposed plea agreement, believing that it was Petitioner's only possibility of avoiding a life sentence. In a letter to the Presiding Judge of the Superior Court,*fn4 Petitioner's mother recalled the moments before Petitioner ultimately decided to plead guilty. Pet., Ex. 21. Counsel, urging Petitioner's mother to tell Petitioner to accept the plea agreement, "yelled" to Petitioner's mother: "do you want your son to do life?" Id.; see also Clerk's Supp. Tr. (Notice of Appeal) at 2. Just before Petitioner's retrial was to begin, Petitioner agreed to plead guilty in exchange for the twenty-two year determinate sentence. Rep.'s Tr. at 337. The court went through a lengthy plea colloquy, in which Petitioner stated that he was aware of the nature of the crimes he was charged with; had sufficient time to speak with his lawyer about the charges, the consequences of the plea, and any legal defenses he may have; that he understood he faced a maximum sentence of life in prison under the charges but would receive a twenty-two year sentence based on the plea agreement; and that he was entering the plea freely and voluntarily after fully discussing the case with his attorney. Id. at 338-45. The court found a factual basis for the plea and that Petitioner had entered the plea knowingly, intelligently, and voluntarily. Id. at 345. At a later date, Petitioner was sentenced to twenty-two years in prison pursuant to the plea agreement. Id. at 357.


An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 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)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the 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 state court. See 28 U.S.C. 2254(d); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).

In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v.Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005).


1. Claim I

In Claim I, Petitioner alleges that his guilty plea was not voluntary and intelligent because the advice he received from counsel with regard to the guilty plea fell below the requisite standard of care. Petitioner did not raise this claim in his direct appeal to the California Court of Appeal. He did, however, raise the claim before the California Supreme Court through a petition for habeas corpus, which was summarily denied. See Lodged Doc. No. 11 (Petition for Writ of Habeas Corpus Filed With ...

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