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Essie Simpson Iii v. John Marshall

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


April 30, 2012

ESSIE SIMPSON III, PETITIONER,
v.
JOHN MARSHALL, RESPONDENT.

The opinion of the court was delivered by: Margaret M. Morrow United States District Judge

ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the first amended petition, records on file, and the Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which Petitioner has objected. The Court accepts the findings and recommendation of the Magistrate Judge.

After the Magistrate Judge issued her Report and Recommendation, the Supreme Court issued its decisions in Missouri v. Frye, 2012 U.S. LEXIS 2321 (Mar.21, 2012), and Lafler v. Cooper, 2012 U.S. LEXIS 2322 (March 21, 2012). In those decisions, the Supreme Court made clear that the Sixth Amendment's right to counsel extends to the plea bargaining process, and the two-part Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. Id. at *12. The Court reaffirmed that "[i]n Hill, when evaluating the petitioner's claim that ineffective assistance led to the improvident acceptance of a guilty plea, the Court required the petitioner to show 'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.'" Id. at *14.

Petitioner's objections again argue that his counsel did not advise Petitioner prior to his plea of no contest that he would have to register as a gang member.

Petitioner's objections acknowledge that, at the hearing on the motion to withdraw the plea, Petitioner stated to the court that his counsel had advised as follows prior to the plea: "My attorney said, no, they're saying that you don't have to register as a gang member, but you have to register with that gang. I said it's the same thing." (Petition, Ex. B at 4-5.) For adults, registration entails "an appearance at the police or sheriff's department, a written statement containing information required by the law enforcement agency, and submission of fingerprints and a photograph."*fn1 People v. Bailey, 101 Cal. App. 4th 238, 244, 123 Cal. Rptr. 2d 729 (2002); see Cal. Penal Code § 186.32. The registration requirement does not require the adult to admit membership in the gang. See People v. Sanchez, 105 Cal. App. 4th 1240, 1245, 130 Cal. Rptr. 2d 219 (2003) (requirement does not infringe right to remain silent).*fn2

Petitioner has not shown that the state court's decision was contrary to, or an unreasonable application of, clearly established federal law. Petitioner's objection is overruled.

Petitioner's remaining objections are without merit.

IT IS ORDERED that judgment be entered denying the petition and dismissing this action with prejudice.


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