The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1]
Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by Carolyn D. Phillips, Esq.
Petitioner was convicted in the Fresno County Superior Court of felony possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) pursuant to a guilty plea. After the Court found Petitioner breached the plea agreement, the court sentenced him to 26 years to life in prison.
Petitioner appealed his conviction to the California Court of Appeals, Fifth Appellate District. On August 23, 1999, the Court of Appeals modified the sentence by striking the one-year enhancement for the prior prison term but otherwise affirmed the judgment.
The California Supreme Court denied review.
The United States Supreme Court denied the petition for writ of certiorari.
Petitioner thereafter filed three post-conviction collateral petitions in state courts. The first petition was filed in the Fresno County Superior Court on May 1, 2001. The petition was denied on May 7, 2001. The second petition for writ of habeas corpus was filed the California Court of Appeal, Fifth Appellate District on June 27, 2001. The petition was denied on November 8, 2001. Petitioner filed the third petition for writ of habeas corpus in the California Supreme Court on January 2, 2002, which was denied on May 1, 2002.
Petitioner filed the instant federal petition for writ of habeas corpus on June 24, 2002. After remand from the Ninth Circuit, Respondent filed an answer to the petition on July 27, 2011. Petitioner filed a traverse on September 23, 2011.
On February 6, 1995, police were dispatched to a motel in Fresno where they found [Petitioner] knelling beside a woman who had suffered a drug overdose. The officers suspected [Petitioner] was under the influence of a stimulant. They arrested him and found numerous bindles of methamphetamine, a syringe, and a glass vial in his pockets.[FN 1] The officers also found a loaded gun in the wastebasket.[FN 2]
FN 1. These facts are not in dispute and are summarized from the Probation Report.
FN 2. The gun was apparently not attributed to [Petitioner].
On March 8, 1995, the district attorney charged [Petitioner] with possession of methamphetamine (Health & Saf. Code, § 11377, a wobbler offense [FN 3] and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a), a misdemeanor). The information further alleged that [Petitioner] had served one prior prison term (Pen. Code, § 667.5, subd. (b)) [FN 4] and had suffered two prior serious felony convictions within the meaning of California's Three Strikes law (§§ 667, subds. (b)-(i)) and 1170.12).
On March 14, 1995, [Petitioner] pled not guilty to the charges and denied the prior conviction and prison term allegations.
On October 13, 1995, [Petitioner] agreed to a "straight up" plea bargain. In exchange for [Petitioner's] pleading guilty and admitting the prior conviction and prison term allegations, the court postponed sentencing for two years (with a status hearing after one year) and promised to reduce the possession wobbler charge to a misdemeanor pursuant to section 17, subdivision (b) (hereafter section 17(b)) if [Petitioner] avoided arrest during those two years. The court warned [Petitioner] that an arrest during that period would result in imposition of a 25-year-to-life sentence.
"[THE COURT]: . . . And in that period of time if you have not been arrested on the day of sentencing in two years the Court will entertain and grant a 17(b) motion to make Count One a misdemeanor. On the other hand, if you have in the next two years--[sic] any time during the next two years if you have been arrested we will immediately have a hearing with regard to that arrest and the hearing will be very similar to a probation violation hearing. And if the Court determines that you have indeed violated the law, that being that for which you were arrested, then at that point the extension for the sentencing will terminate and the sentencing will be that day, and the sentence will be as a matter of law twenty-five years to life."
FN 3. A crime which is punishable by either imprisonment in state prison (as a felony) or county jail (as a misdemeanor) is called a "wobbler." Possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) is a wobbler offense. Penal Code section 17, subdivision (h) permits the trial court to exercise its discretion in reducing a wobbler to a misdemeanor. (People v. Banks (1959) 53 Cal.2d 370, 380-381.)
FN 4. All subsequent statutory references are to the Penal Code unless otherwise noted.
Again, the court repeated the bargain: "THE COURT: You understand the risk that you're taking that if you are arrested and we have a hearing similar to a probation violation hearing with the same standard that the Court has that at that point you won't have a jury trial, you will have a hearing before me to determine whether or not you have indeed committed a violation of the law, and if the Court finds that you have I will at that point sentence you to twenty-five years to life?"
"[PETITIONER]: Yes, sir, I do understand."
The court also informed [Petitioner] that, if the court reduced his wobbler offense to a misdemeanor at the end of the two-year period, [Petitioner] would still be required to serve a one-year prison term. The record does not show, however, that the trial court admonished [Petitioner], pursuant to section 1192.5, of his rights to withdraw his guilty plea if the court disapproved the bargain.
One year later, on October 16, 1996, [Petitioner] failed to appear for the status hearing. The court issued alternative orders: (1) if [Petitioner] had committed no new offenses, the matter was set for October 16, 1997, or (2) if [Petitioner] had committed a new offense, the court accepted the plea and set the matter for judgment and sentencing on November 14, 1996. The court said it would choose the second alternative if [Petitioner] could not present an adequate reason for his absence.
Three hours later, the court reconvened and was told by defense counsel that [Petitioner] had called, stating he had an emergency and would be in court at 2 p.m. After 2 p.m., the court reconvened again. [Petitioner] was still absent and had not spoken to defense counsel. The court invoked its previously stated second alternative and told defense counsel that [Petitioner] was required to report to the probation department within two days.
On November 14, 1996, [Petitioner] failed to appear for sentencing. Defense counsel explained that [Petitioner] had called on October 25 and also prior to that time but while counsel was in court. [Petitioner] told defense counsel he had missed his court date on October 16, 1996, because he was at the hospital for a medical emergency. Defense counsel told [Petitioner] he needed to go to probation even though he was late. The two planned to meet the following week to discuss the case, but [Petitioner] never contacted defense counsel.
The court issued a no-bail bench warrant for [Petitioner's] arrest and then sentenced him in absentia to 25 years to life, plus a one-year enhancement for the prior prison term and a $5,000 restitution fine.
On April 2, 1997, [Petitioner] finally appeared. The court was informed that [Petitioner] had been in custody on November 14, 1996, when he was sentenced in absentia. Regarding the October 16, 1996, absence, [Petitioner] explained he was living in Sacramento at that time. He had come to Fresno for his court date, but was unable to appear because he accompanied his pregnant wife to the hospital when she suffered emergency medical problems. He said that he needed to get back to Sacramento because he had not been able to reach his parole officer before he left and the officer wanted him back in Sacramento. He claimed that, on October 17, 1996, the day after his missed court date, he spoke to defense counsel who told him that he should return to Fresno as soon as possible, that they would get a court date, and that they would "handle" the situation. [Petitioner] explained that when he returned to Sacramento, his parole officer decided he had violated parole for traveling to Fresno without a travel pass. [Petitioner] explained he had been unable to contact his parole officer to get the travel pass before he left for Fresno. [Petitioner] stated he was taken into custody on October 21, 1996, for parole violations and therefore could not return to Fresno as he had intended. He explained that he and his family now lived in Fresno and that he was promised a job with his wife's uncle.
The trial court told [Petitioner] to obtain documentation both from his parole officer regarding his violation and custody dates and from the hospital regarding his wife's medical emergency and dates of admittance and discharge. The court stated:
"THE COURT: If you bring that documentation and I'm satisfied that what you're telling me now is absolutely true and correct, then we'll take a second look at this. But if it's not, I'm telling you now, there's nothing more to talk about."
One week later, on April 16, 1997, the court reconvened to examine the parole officer's report. The court said the report stated that [Petitioner] had been arrested on October 23, rather than on October 21 as [Petitioner] had claimed. Furthermore, the report showed there were many reasons why [Petitioner] was arrested. Based on the report, it appeared to the court that [Petitioner] had breached the plea bargain of October 13, 1995. The court vacated its earlier sentence (imposed in absentia) and reset sentencing for May 14 ,1997.
At the sentencing hearing on June 3, 1997, [Petitioner] presented the court an admission slip from Kaiser Permanente Hospital. The following discussion ensued regarding the authenticity of the slip's information:
"THE COURT: What's the date on the admission slip? "[THE PROSECUTOR]: Your Honor, I think the Court should look at it. "[DEFENSE COUNSEL]: Can I approach, Your Honor?
"THE COURT: Please. "[THE PROSECUTOR]: I want the Court to note what appears to be possibly be [sic] erasures and the typing of the date seems quite amateurish with a capital "I" have [sic] been used as a 'one.' This document was not produced a long time ago when Defense was given an opportunity to produce proof of being admitted at [Kaiser Permanente Hospital].
"THE COURT: It is rather peculiar that on a carbon copy where everything else is carbon that we now have new typing.
"[DEFENSE COUNSEL]: I understand. "THE COURT: Okay. "[DEFENSE COUNSEL]: I don't know, it was just handed to me this morning, Your Honor."
The court proceeded to make the following findings: [Petitioner's] absence on October 16 was not excused, he was arrested on October 23, 1996, for a parole violation, he "admitted ingesting methamphetamine a week earlier," he had "access to the illegal weapon," he was "out of contact" with his parole officer, and he was "legitimately arrested."
Although never mentioned by the court, the May 29, 1997, Probation Officer's Report showed [Petitioner] also had been arrested on May 23, 1996, for driving with a suspended license. (Veh. Code, § 14601.1, a misdemeanor.) And in the report's narrative conclusion, the probation officer stated, "The defendant's history shows a poor performance while on parole as well as picking up a misdemeanor charge of Driving on a Suspended License."
After reviewing the October 23, 1996, Parole Officer's Report and the May 29, 1997, Probation Officer's Report and considering [Petitioner's] statements and evidence (the hospital admission slip), the court determined the plea bargain had been breached and sentenced [Petitioner] to 25 years to life for the felony methamphetamine conviction, plus an additional year for the prior prison term (§ 667.5, subd. (b)).
[Petitioner] filed a timely notice of appeal on July 18, 1997. On July 21, 1997, [Petitioner] filed a second notice of appeal and a request for a Certificate of Probable Cause, which the trial court denied the same day. On March 18, 1998, this court directed the trial court to issue a Certificate of Probable Cause. The trial court did so on August 4, 1998.
Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375, 120 S.Ct. 1495, 1504, n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. Constitution. The challenged conviction arises out of the Fresno County Superior Court, which is located within the jurisdiction of this Court.
28 U.S.C. § 2254(a); 2241(d).
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 (1997; Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 F.3d 751, 769 (5th Cir.1996), cert. denied, 520 U.S. 1107, 117 S.Ct. 1114 (1997), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997) (holding AEDPA only applicable to ...