The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
(1) ADOPTING IN PART REPORT AND RECOMMENDATION; [Doc. No. 15]
(2) DENYING PETITION FOR [Doc. No. 1]
(3) DENYING CERTIFICATE OF APPEALABILITY
Currently before the Court is Michael David Wilson ("Petitioner")'s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("the Petition"). [Doc. No. 1.] Petitioner was convicted, pursuant to a guilty plea that was negotiated by counsel appointed to replace his original counsel, of vehicle theft and evading a police officer with reckless driving. [Id. at 2.] Petitioner was sentenced to nine years and four months in state prison. [Id. at 1.] Petitioner's sole claim in the Petition alleges a violation of his Sixth Amendment right to the effective assistance of counsel. [Id. at 6.] Petitioner alleges that he was offered a six-year plea deal at his first court appearance and informed his original counsel he wished to immediately accept the offer, but his counsel failed to communicate Petitioner's acceptance to the prosecutor, which caused the offer to expire and resulted in Petitioner being sentenced to an additional three years and four months in prison. [Id.]
Respondent filed an answer to the Petition along with a memorandum of points and authorities. [Doc. Nos. 8-9.] In the answer, Respondent argues that federal habeas relief is unavailable to Petitioner because the entry of Petitioner's later negotiated guilty plea precludes any attack on matters occurring before the entry of that plea, including any events surrounding the earlier six-year plea offer. [Doc. No. 8 at 5.] Petitioner was granted leave to file a traverse on or before July 22, 2011, but failed to do so by that date.
The Court referred the matter to Magistrate Judge Barbara L. Major, who issued a Report and Recommendation ("R & R") concluding that habeas relief was not available to Petitioner because: (1) the state court's adjudication of Petitioner's claim did not involve an unreasonable application of clearly established federal law which precludes an attack on a conviction entered as a result of a guilty plea unless (aside from exceptions which do not apply here) the plea was not voluntary and intelligent; (2) even if Petitioner could make such a showing, he had waived any constitutional claim arising from the original plea deal by entering into the subsequent negotiated plea; and (3) Petitioner had already received any relief to which he might be entitled because counsel had been appointed in state court to assist him in enforcing the original six-year offer. [Doc. No. 15.]
On September 26, 2011, Petitioner filed a motion for leave to file his untimely traverse, [Doc. No. 12], which the Court granted and remanded the issue back to the Magistrate Judge for the issuance of an Amended Report and Recommendation ("Amended R & R") in light of the traverse. [Doc. No. 13.] The Magistrate Judge issued an Amended R & R concluding again that habeas relief was not available to Petitioner and also concluding: (1) that Petitioner had attempted to raise a new claim in his traverse which is untimely, unexhausted or procedurally defaulted, and the Court should exercise its discretion to decline to address the new claim; and (2) that an evidentiary hearing is not warranted. [Doc. No. 15.] The Magistrate Judge recommended that the Petition be denied. [Id.] The time for filing objections to the Amended R & R passed on November 14, 2011 without Petitioner filing any objections.
After Petitioner failed to object to the Amended R & R the Court issued an order adopting in full the Amended R & R and denying the Petition. [Doc. No. 16.] Shortly after, Petitioner filed a motion for an extension of time to file his objections to the Amended R & R. [Doc. No. 19.] Accordingly, the Court vacated its prior order adopting the Amended R & R and denying the petition, and the Court granted Petitioner's motion for an extension. [Doc. No. 20.] Petitioner filed his objections on February 6, 2012. [Doc. No. 22.] Petitioner objects to the Amended R & R on the four following grounds: (1) the Magistrate Judge erred in concluding that Tollett v. Henderson, 411 U.S. 258 (1973) precludes habeas corpus relief based upon Petitioner's plea of guilty; (2) the Magistrate Judge erred by finding that it could not hold an evidentiary hearings; (3) the Magistrate Judge erred by finding that his counsel's assistance was effective; and (4) the Magistrate Judge erred by determining that habeas relief was barred by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). [Id. at 1.]
Upon de novo review, the Court concludes that Petitioner is not entitled to habeas relief on his Sixth Amendment ineffective assistance of counsel claim. Accordingly, the Court ADOPTS IN PART the Amended R & R and DENIES the Petition.
The Amended R & R contains a complete and accurate summary of the proceedings in this case, and the Court fully adopts the Magistrate Judge's detailed background. [See Doc. No. 15 at 3-6.] In sum, Petitioner alleges that he was offered a six-year plea deal at his first court appearance and informed his original counsel he wished to immediately accept the offer, but his counsel failed to communicate Petitioner's acceptance to the prosecutor. [Doc. No. 1 at 6.] On May 13, 2008, Petitioner, represented by his original counsel, entered an unconditional guilty plea as to all seven counts in the information and admitted to two prior conviction allegations. [Doc. No. 15 at 3.]
On July 30, 2008, prior to sentencing, Petitioner brought a motion to substitute counsel. [Id. at 4.] New counsel was appointed for the purpose of bringing a motion to withdraw the guilty plea. [Id.] Petitioner filed a motion to withdraw the plea on October 1, 2008, which included a motion to enforce a six-year plea deal that was allegedly offered on the first court date. [Id.] On March 12, 2009, before the motion was heard, the parties reached a negotiated settlement in which Petitioner was allowed to withdraw his guilty plea to counts one and four, and withdraw his admission to one of the prior strike allegations. ...