The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, DENYING PETITION, AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner Fernando F. Velarde, a state prisoner, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254 ("Petition"). Petitioner was charged with three counts: (1) possession/purchase of cocaine base for sale, 14.25 grams of cocaine base; (2) transportation of a controlled substance; and (3) having a concealed firearm in his vehicle. On September 20, 2007, he pled guilty to count one and admitted to a firearm enhancement. In exchange, the remaining two counts were dismissed. Pursuant to the plea agreement, he received credit for time served at sentencing (364 days) and a four year suspended sentence. Because Petitioner was not a United States citizen and faced deportation, he subsequently attempted to withdraw his guilty plea, but his motion was denied. He claims his federal constitutional rights were violated because his counsel were ineffective when they advised him that by pleading guilty his chance of avoiding deportation was "extremely slim" rather than advising him that the law required his deportation.
The Petition was referred to United States Magistrate Judge William McCurine, Jr. for a report and recommendation ("R&R") pursuant to 28 U.S.C. Section 636(b)(1)(B) and Civil Local Rule 72.1(d). Although the Magistrate Judge found the state court "unreasonably applied Strickland [v. Washington, 466 U.S. 668 (1984),] to the facts of Velarde's case" on the issue whether the counsels' representation fell below the objective standard of reasonableness (R&R at 12), he also found the state court "reasonably applied the second prong of Strickland" on the issue of prejudice (Id. at 16). He recommended denying the Petition. Petitioner filed objections. Respondent did not file a response. For the reasons which follow, Petitioner's objections are overruled, the Report and Recommendation is adopted in part as stated herein, and the Petition is DENIED.
In reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Petitioner objects to the Report and Recommendation insofar as it finds the state court reasonably applied Strickland's prejudice prong.
The question raised by the Petition is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under [the Antiterrorism and Effective Death Penalty Act], though, it is a necessary premise that the two questions are different. For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law. A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.
Harrington v. Richter, 562 U.S. __, 131 S. Ct. 770, 785 (2011) (internal quotation marks and citation omitted, emphases in original). "Even under de novo review, the standard for judging counsel's representation [under Strickland] is a most deferential one." Id. at 788.
Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.
Id. (internal quotation marks and citations omitted).
To establish the deficient performance prong under Strickland, "a person challenging a conviction must show that 'counsel's representation fell below an objective standard of reasonableness. A court considering a claim of ineffective assistance must apply a 'strong presumption' that counsel's representation was within the 'wide range' of reasonable professional assistance. The challenger's burden is to show 'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" Harrington, 131 S. Ct. at 787, quoting Strickland, 466 U.S. at 687-89.
The Magistrate Judge concluded, "Given the Ninth Circuit's advisement against attorneys use of 'passive omission' when counseling their clients, it is recommended the Court find the California Court of Appeal unreasonably applied Strickland to the facts of Velarde's case in light of the rule announced recently by the Supreme Court in Padilla which requires a duty to give correct advice when immigration consequences are clear." (R&R at 12 (emphasis omitted), citing Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010).) The recommendation therefore rests on Padilla and United States v. Bonilla, which included the advisement against "passive omission of correct advice about the possibility of deportation," 637 F.3d 980, 983-84 (9th Cir. 2011).
As pertinent here, 28 U.S.C. Section 2254(d)(1) provides that a state habeas application may be granted only if the state court adjudication "involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." This occurs when "the state court identifies the correct governing legal principle from [the United State Supreme] Court's decisions but unreasonably applies the principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. 362, 413 (2000). The "clearly established Federal law" in section 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions as of the time of the relevant state-court decision." Carey v. Musladin, 549 U.S. 70, 74 (2006).
The Report and Recommendation finding on the deficient performance prong rests largely on Padilla. Padilla established "that advice regarding deportation was not categorically removed from the ambit of the Sixth Amendment right to counsel." 130 S. Ct. at 1478 at 1482. Prior to Padilla, this issue had not been addressed by the United States Supreme Court and was the subject of disagreement among jurisdictions. See id. at 1481 & n.9. Padilla was decided on March 31, 2010, after the relevant state court decisions were rendered in Petitioner's case. Petitioner's motion to withdraw his guilty plea was denied on June 9, 2008, and the state court issued its last reasoned opinion on December 18, 2009. The principle on which the Report and Recommendation rests therefore was not clearly established by the United States Supreme Court as of the time of the relevant state-court decision, and cannot serve as a basis for the finding that the state court decision resulted from an unreasonable application of clearly established federal law. See Carey, 549 U.S. at 76.
For the same reason, the Report and Recommendation cannot rest on Bonilla, which was decided March 11, 2011. Furthermore, Bonilla is not a United States Supreme Court decision and did not apply Strickland, but instead relied on the standard for change of plea under Federal Rules of Criminal Procedure. 637 F.3d at 983 ("fair and just reason" for withdrawal under Rule 11(d)(2)(B)).
Even if Padilla had been decided prior to the relevant state court decision in Petitioner's case, it does not support a finding that the state court decision involved an unreasonable application of clearly established federal law. The counsel in Padilla failed to advise the defendant of the deportation consequence of his guilty plea and told him not to worry about his immigration status because he had been in the country for so long. 130 S. Ct. at 1477-78. The Supreme Court ruled that "a constitutionally competent counsel would have advised [the defendant] that his conviction for drug distribution made him subject to automatic deportation." Id. at 1478. Unlike ...