FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges a June 22, 2006 judgment of conviction entered against him in Sacramento Superior Court on charges of possession of a controlled substance, transportation of a controlled substance, and driving on a suspended license. He received a sentence of 25 years-to-life in state prison pursuant to California's Three Strikes Law. Petitioner seeks relief on the grounds that: (1) his trial counsel rendered ineffective assistance; (2) he was subject to an unreasonable search and seizure; (3) his appellate counsel rendered ineffective assistance; and (4) his constitutional rights were violated by the prosecutor's improper use of peremptory challenges to exclude two African Americans from the jury (Batson claim).
Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be granted, in part, on petitioner's Batson claim and denied in all other respects.
I. Procedural and Factual Background
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn1 , the California Court of Appeal for the Third Appellate District provided the following factual summary:
In May 2005, Sacramento County Deputy Sheriff Duncan Brown was on patrol and followed a white Lincoln to a gas station. Defendant exited the Lincoln and entered the gas station. Deputy Brown checked the car's license plate number and was informed defendant had recently purchased the car. The Department of Motor Vehicles' record showed defendant's driver's license was suspended except for in the course of employment. After defendant left the gas station in the Lincoln, Deputy Brown pulled him over. Defendant exited his car, approached Deputy Brown, identified himself, and stated he was on his way home.
Deputy Brown searched defendant, finding a "wad" of cash and "a plastic baggy that had some white powder in it." He then placed defendant in handcuffs, ordering him to stand next to the patrol car. Defendant took the baggy and smashed it between his fingers. Upon a subsequent search, Deputy Brown found another baggy in defendant's pocket containing two rocks, which later were determined to contain cocaine.
A. Standards for a Writ of Habeas Corpus
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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 the State court proceeding.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.*fn2
Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington,131 S. Ct. at 786-87.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
1. Ineffective Assistance of Counsel
Petitioner's first claim is that his trial counsel rendered ineffective assistance when he advised petitioner not to accept a plea offer of ten years in prison because he was confident he would prevail on a motion to suppress. Petitioner argues that this advice was improper because counsel was aware of petitioner's numerous prior convictions and possible Three Strikes sentence if the motion to suppress was denied and petitioner was convicted after a trial.
Pet. at 4.*fn3 Petitioner states that he trusted his trial counsel's assurance that he "was going to win the motion to suppress, and that when that happened, petitioner was going to be free." Traverse at 9. He explains that counsel "encouraged [him] not to take the ten years offer." Id. He states that he told his trial counsel he was "afraid of losing the motion to suppress," but that counsel responded, "do not worry man, we will win the motion to suppress, and after that, you go home." Id. Petitioner states he would have accepted the plea offer if his counsel had told him to accept it. Id. at 10. He requests that the offer for a ten year prison term be reinstated and that he receive an evidentiary hearing on this claim. Id. at 13.
The state court record reflects that at petitioner's sentencing hearing, his trial counsel discussed the plea offer and petitioner's rejection of that offer, as follows: prior to the motion to suppress, [petitioner] had an offer from the D.A. of ten years but that was contingent with Mr. Liggins got not [sic] going forward with the motion to suppress, which the Court knows is statutorily, and I believe constitutionally, a right of Mr.
Liggins to go forward with.
I mean, his choice at that point was ten years which would make him 60 years old roughly by the time he got out of prison when he's spent most of his life in prison actually.
It was my opinion, and without going into what my recommendation was to Mr. Liggins, and Mr. Liggins had the final word, that he and including myself believed that there was at least a reasonable chance that that motion to suppress would succeed.
Mr. Liggins knew going into it that realistically anything could happen, and there were certainly no guarantees and no percentages given whether he had a better chance he if [sic] would succeed or not. But he was at least quite aware that at least there was a very good chance that the motion would not succeed.
He made that choice, and as a result of that, the ten-year offer from the district attorney's office went away.
Reporter's Transcript on Appeal (RT) at 320-21. In the answer, respondent argues that these statements by counsel reflect that petitioner was advised of the risks of rejecting the plea offer but that he simply chose to proceed with the motion to suppress and assume the risks. Answer at 17. He argues that petitioner's trial counsel did not render ineffective assistance in failing to convince petitioner to accept the offer. Id.
Petitioner raised this claim in habeas corpus petitions filed in the California Court of Appeal and California Supreme Court. Resp.'s Lodg. Docs. 6, 8. Those petitions were summarily denied. Resp.'s Lodg. Docs. 7, 9. Accordingly, this court will independently review the record to determine whether habeas corpus relief is available under section 2254(d). Delgado, 223 F.3d at 982.
To support a claim of ineffective assistance of counsel, a petitioner must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). After a petitioner identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment, the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). Second, a petitioner must establish that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. The Ninth Circuit has opined that this burden "represents a fairly low threshold." Riggs v. Fairman, 399 F.3d 1179, 1183 (9th Cir. 2005) (citing Sanders v. Ratelle, 21 F.3d 1446, 1461 (9th Cir. 1994) (stating that a "reasonable probability" is actually a lower standard than preponderance of the evidence).
The Strickland standards apply to claims of ineffective assistance of counsel involving counsel's advice offered during the plea bargain process, including plea offers that lapse or are rejected. Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012); Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012); Padilla v. Kentucky, 559 U.S. ___, 130 S.Ct. 1473 (2009); Hill v. Lockhart, 474 U.S. 52, 58 (1985); Nunes v. Mueller, 350 F.3d 1045, 1052 (9th Cir. 2003). "During plea negotiations defendants are 'entitled to the effective assistance of competent counsel.'" Lafler, 132 S.Ct. at 1384 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). As a general rule, "defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Frye, 132 S.Ct. at 1408. See also United States v. Blaylock, 20 F.3d 1458, 1466 (9th Cir. 1994) (a trial counsel's "failure to communicate the government's plea offer to his client constitutes unreasonable conduct under prevailing professional standards."). Accordingly, when a defense attorney allows a plea offer to expire without advising the defendant about the offer or allowing him to consider it, "defense counsel did not render the effective assistance the Constitution requires." Frye, 132 S.Ct. at 1408. "It is equally ineffective to fail to advise a client to enter a plea bargain when it is clearly in the client's best interest." United States v. Leonti, 326 F.3d 1111, 1117 (9th Cir. 2003).
"A defendant has the right to make a reasonably informed decision whether to accept a plea offer." Turner v. Calderon, 281 F.3d 851, 880 (9th Cir. 2002) (citations omitted). Trial counsel must give the defendant sufficient information regarding a plea offer to enable him to make an intelligent decision. Id. at 881. "[W]here the issue is whether to advise the client to plead or not 'the attorney has the duty to advise the defendant of the available options and possible consequences' and failure to do so constitutes ineffective assistance of counsel." Blaylock, 20 F.3d at 1465 (quoting Beckham v. Wainwright, 639 F.2d 262, 267 (5th Cir.1981)).
Counsel is not "required to accurately predict what the jury or court might find." Turner, 281 F.3d at 881. See also McMann, 397 U.S. at 771 ("uncertainty is inherent in predicting court decisions."). Nor is counsel required to "discuss in detail the significance of a plea agreement," give an "accurate prediction of the outcome of [the] case," or "strongly recommend" the acceptance or rejection of a plea offer. Turner, 281 F.3d at 881. Although counsel must fully advise the defendant of his options, he is not "constitutionally defective because he lacked a crystal ball." Id. The relevant question is not whether "counsel's advice [was] right or wrong, but . . . whether that advice was within the range of competence demanded of attorneys in criminal cases." McMann, 397 U.S. at 771.
In order to show prejudice in the context of plea offers, "a defendant must show the outcome of the plea process would have been different with competent advice." Lafler, 132 S.Ct. at 1384. Specifically, where a plea offer has lapsed or been rejected because of trial counsel's deficient performance and the defendant has later accepted another, less favorable plea offer, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.
To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.
Frye, 132 S.Ct. at 1409. Where a defendant claims that ineffective assistance of trial counsel led him to accept a plea offer instead of proceeding to trial, a defendant must demonstrate "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. And in cases where trial counsel's defective advice caused the defendant to reject a plea offer and proceed to trial, prejudice is demonstrated where "but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have ...