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Jesse Rosenfeld v. Warden

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


August 3, 2012

JESSE ROSENFELD,
PETITIONER,
v.
WARDEN, CCC,
RESPONDENT.

The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable David O. Carter, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

On March 1, 2012, Petitioner lodged a "Petition for Writ of Habeas Corpus By a Person in State Custody." The Petition, with attached exhibits ("Petition Att."), was filed March 12, 2012. Petitioner filed a memorandum of points and authorities in support of the Petition ("Petition Mem.") on March 8, 2012.

Respondent filed an Answer and supporting memorandum of points and authorities ("Answer Mem.") on June 4, 2012. Respondent lodged certain documents in support of the Answer ("Respondent's Lodgment") on the same date. Petitioner filed a "Response" to the Answer and separate exhibits ("Response Ex.") on June 18, 2012.

BACKGROUND

On November 8, 2010, in Los Angeles Superior Court, Petitioner pleaded no contest to two counts of identity theft, three counts of second degree commercial burglary, three counts of theft by acquiring and retaining possession of access card account information, one count of forgery, and one count of perjury, and also admitted that he had suffered three prior convictions. See Reporter's Transcript ("R.T."), pp. 1-9; Clerk's Transcript ("C.T."), pp. 301-303. The Superior Court sentenced Petitioner to a total of five years and eight months in state prison (R.T. 9-11; C.T. 301-03).

On November 10, 2010, Petitioner, proceeding pro se, filed a motion to withdraw the plea, alleging that he had been suffering from a head injury and sleep deprivation at the time the plea was taken (C.T. 304-08). The Superior Court denied the motion, finding no cause to withdraw the plea (C.T. 309; Reporter's Transcript Augmentation ("Aug. R.T."), pp. 91-93).

On November 23, 2010, Petitioner filed a notice of appeal with a request for a certificate of probable cause, alleging, inter alia, that he did not remember entering the plea and did not knowingly enter the plea, purportedly because of sleep deprivation and head trauma (C.T. 310-11). The Superior Court denied the request for a certificate of probable cause (C.T. 311).*fn1 Petitioner petitioned for writ of mandate to the California Court of Appeal, seeking an order that the Superior Court issue a certificate of probable cause (Respondent's Lodgment 14). The Court of Appeal denied the petition for writ of mandate without comment (Respondent's Lodgment 15). Petitioner then was appointed counsel, who filed a second petition for writ of mandate seeking the same relief (Respondent's Lodgment 16). The Court of Appeal denied the second petition for writ of mandate without comment (Respondent's Lodgment 17). Petitioner's counsel then petitioned the California Supreme Court for review, which that Court denied without comment on June 29, 2011 (Respondent's Lodgments 18-19).

Thereafter, on appeal to the California Court of Appeal, Petitioner's counsel filed a "no merit" brief pursuant to People v. Wende, 25 Cal. 3d 436, 158 Cal. Rptr. 839, 600 P.2d 1071 (1979) (Respondent's Lodgment 5). Petitioner filed a pro se supplemental brief (Respondent's Lodgment 7). On September 26, 2011, Petitioner also filed a document entitled "New facts of Evidence on Habeas Corpus, etc." (Respondent's Lodgment 8). The Court of Appeal treated this document, together with a request for judicial notice and associated pleadings, as a petition for writ of habeas corpus alleging ineffective assistance of counsel. See Respondent's Lodgment 9, p. 2 (explaining procedural history). On November 29, 2011, the California Court of Appeal affirmed the judgment and denied petitioner's petition for writ of habeas corpus in a reasoned decision, ruling that Petitioner's trial counsel was not ineffective and finding no arguable issue in the record (Respondent's Lodgment 9). The California Supreme Court subsequently denied review without comment (Respondent's Lodgments 26-27).*fn2

Meanwhile, Petitioner filed several unsuccessful habeas petitions in the Los Angeles County Superior Court, California Court of Appeal, and California Supreme Court. See Respondent's Lodgments 10-13, 20-25.

SUMMARY OF EVIDENCE

The following summary is taken from the opinion of the California Court of Appeal in People v. Rosenfeld, 2011 WL 5996087, at *1 (Cal. App. Nov. 29, 2011) (lodged as Respondent's Lodgment 9). See Slovik v. Yates, 556 F.3d 747, 749 n. 1 (9th Cir. 2009) (taking factual summary from state appellate decision).

The evidence at the preliminary hearing showed that Rosenfeld was the passenger in a vehicle stopped by Santa Monica police officers for a traffic violation. Upon searching the interior of the vehicle the police found driver's licenses, credit cards, Social Security cards and other forms of identification; some bearing Rosenfeld's name; some bearing the names of other individuals; and some bearing the names of other individuals with Rosenfeld's picture. The police seized these documents and they were admitted at Rosenfeld's preliminary hearing.

On September 14, 2010, the court granted Rosenfeld's request to represent himself. Two weeks later Rosenfeld filed a motion in propria persona under [Cal. Penal Code] section 1538.5 seeking to suppress documents found between the front seats and on the rear floorboard of the car on the passenger side. The trial court did not hear that motion. Instead, when the court called the motion on November 8, 2010, Rosenfeld told the court he wished to give up his "pro. per." status and have his former deputy public defender "take over the case" and specifically "take over the 1538.5." The court granted that request and took the section 1538.5 motion off calendar.*fn3 After an unreported discussion, Rosenfeld pleaded no contest to the charges against him except for count 6 which the court dismissed.

PETITIONER'S CONTENTIONS

Petitioner contends:

1. Petitioner's plea assertedly was not voluntary and intelligent (Petition, Ground One);

2. Petitioner allegedly was deprived of his right to counsel of choice (Petition, Ground Two);

3. Petitioner's counsel allegedly rendered ineffective assistance by assertedly coercing Petitioner's plea rather than pursuing a motion to suppress (Petition, Ground Three);

4. Petitioner's conviction assertedly was obtained by evidence obtained pursuant to an allegedly unconstitutional search and seizure (Petition, Ground Four); and

5. Petitioner assertedly was denied his right to appeal by the state courts' failure to issue a certificate of probable cause (Petition, Ground Five).

STANDARD OF REVIEW

Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody 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." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000). This standard of review is "highly deferential" and "difficult to meet." Harrington v. Richter, 131 S. Ct. 770, 786 (2011); Woodford v. Visciotti, 537 U.S. at 24. "The petitioner carries the burden of proof." Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts. . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).

"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S. Ct. at 786. This is "the only question that matters under § 2254(d)(1)."

Id. (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("As 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.").

In applying these standards, the Court looks to the last reasoned state court decision on the claim or claims presented. See DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir.), cert. denied, 130 S. Ct. 183 (2009). Where there exists only a summary denial of a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S. Ct. at 786; accord Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011).

Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

DISCUSSION

For the reasons discussed below,*fn4 the Petition should be denied and dismissed with prejudice.

I. Petitioner's Claim that his Plea was Involuntary Does Not Merit Habeas Relief.

Petitioner contends that his no contest plea was involuntary because Petitioner assertedly was "incoherent, suffering from head trauma and sleep deprivation and [Petitioner] has no memory of entering into a plea agreement or of being sentenced in this case" (Petition, p. 5; see also Petition Att., p. 9 (Petitioner alleging he was "semi-conscious, incoherent and remembers very little from the [plea] proceedings"); Response, pp. 5-7, 14-15 (same)). Petitioner claims that he would never have pleaded no contest if he had been coherent because the evidence against Petitioner assertedly was obtained illegally. See Petition, Ground One.

A. The Plea Proceedings

As indicated above, the Superior Court accepted Petitioner's no contest plea on November 8, 2010. At that time, the court had an extensive on-the-record discussion with Petitioner concerning the plea offer, the rights Petitioner would be waiving, the voluntariness of Petitioner's entry of the plea, and Petitioner's reasons for entering into the plea agreement:

The Court: We had a discussion off the record. The court has indicated based on -- Mr. Rosenfeld has three priors. He got 16 months on the first two. The last time he got four. ¶ So if he pled open to the court, I would give him five years, eight months. That's the high term on Count 10 and one-third the midterm on Count 2, plus one year prior. The remaining counts would run concurrent. ¶ And my understanding is Mr. Rosenfeld wishes to accept that offer; is that correct? [Petitioner]: Yes.

The Court: All right. In order for you to accept that indicated sentence, you're going to have to first understand and give up certain rights that you have, and we have to do it on the record. ¶ First of all, you do have a right to a jury trial in this matter. Do you understand your right to a jury trial? [Petitioner]: Yes, your Honor.

The Court: And do you give it up? [Petitioner]: Yes, your Honor.

The Court: You have a right to confront and cross-examine the witnesses against you and to present evidence in your own behalf. That includes the use of the subpoena power of the court and your right to testify on your own behalf if you choose to. ¶ Do you understand each of those rights? [Petitioner]: Yes, your Honor.

The Court: And do you give them up? [Petitioner]: Yes, your Honor.

The Court: You have a right against self-incrimination; however, pleading guilty or no contest, you give up that right because you'll be convicted based solely on that plea; do you understand that? [Petitioner]: Yes, your Honor.

The Court: And do you give up your right against self-incrimination? [Petitioner]: Yes, your Honor.

The Court: All right. The disposition or the indicated sentence of the court is if you plead open to the court, which means you'll have to plead to all 11 charges, admit all the allegations, is that I would sentence you to a total term in state prison of five years and eight months. . . . Do you understand all of that? [Petitioner]: Yes, I do.

The Court: Okay. Once you're released from prison, you'll be on parole for a period of three years. If you violate your parole, you can go back to prison for up to a year on each violation. ¶ Do you understand all of that? [Petitioner]: Yes, your Honor.

The Court: If you're on probation or parole in some other case, this would be a violation of that probation or parole, and you could end up doing additional time on those other cases because of this conviction; do you understand? [Petitioner]: Uh-huh.

The Court: Is that "yes"?

Ms. Schnier: That's "yes." [Petitioner]: Yes, your Honor.

The Court: This could be used against you as a prior felony conviction, a prior theft conviction, a prior identity theft conviction, and a prior prison commitment in the future. Do you understand that?

[Petitioner]: Yes, your Honor.

The Court: If you're not a citizen of the United States, a conviction for this offense will lead to deportation, denial of admission to the United States, denial of re-entry to the United States, and denial of naturalization pursuant to the laws of the United States. ¶ Do you understand all of that? [Petitioner]: Yes, your Honor.

The Court: Has anyone made any threats against you for anyone close to you to get you to plead guilty or no contest to this offense? [Petitioner]: No, your Honor.

The Court: Has anyone made any promises other than this agreement I just spoke of on the record? [Petitioner]: No, your Honor.

The Court: Are you pleading guilty or no contest freely and voluntarily and solely because, after discussing this matter with your attorney, you feel it's in your best interest to do so?

Ms. Schnier: If we could hold on for one second.

(Counsel and client confer sotto voce.)

The Court: If there are other charges that are alternative charges to the counts that you're pleading to, People would be precluded by law -- you don't need a stipulation -- from bringing those charges. ¶ If there are additional charges that are not related to the charges you're pleading to, then they wouldn't be bound. And since you're not entering an agreement with them, there's no reason for them to agree to it. Do you understand what I'm saying? ¶ But as far as the charges that you're pleading to, any lesser-included, related type offenses that would be alternative to these particular charges, the same conduct, they couldn't do it. [Petitioner]: Okay.

The Court: Do you understand? [Petitioner]: Uh-huh.

The Court: Okay. So where was I? I think I was asking you -- Ms. Schnier: After consulting with your attorney.

The Court: After discussing with your attorney, do you wish to plead guilty or no contest solely because you feel it's in your best interest to do so? [Petitioner]: Absolutely.

The Court: Did I ask you if anybody threatened you or -- [Petitioner]: Definitely not. No one threatened me.

The Court: Has anybody made any promises other than the agreement I just spoke of on the record, the indicated sentence of the court? [Petitioner]: No.

The Court: All right. So to the charges in Counts 1 and 2, violations of identity theft as charged in the information in Case SA074561, how do you plead to those charges?

[Petitioner]: No contest.

The Court: To the charges in Counts 3, 4, and 5, violations of Penal Code section 459, burglary in the second degree, as alleged in the information in this case, how do you plead to each of those counts? [Petitioner]: No contest.

The Court: To the allegation in Count 6, a violation of Penal Code section 530.5(c)(2) -- is that Katz?

Ms. Brown: Six?

The Court: Yes.

Ms. Brown: Yes.

The Court: I'm granting the 995 as to that.

Ms. Brown: Very well.

The Court: As to Count 7, a violation of Penal Code section 484E(D), and Count 9, a violation of Penal Code section 484E(D), and Count 11, another violation of Penal Code section 484E(D), as alleged in each of those respective counts in this information, how do you plead to those each of those charges? [Petitioner]: You're not gonna strike those now?

The Court: I'm not going to strike those. After reviewing it, I think that those were -- they're not going to affect your sentence, but I believe that they are properly charged.

[Petitioner]: No contest.

The Court: Okay. To the charge in Count 8, a violation of

Penal Code section 470(B), as alleged in the information, how do you plead? [Petitioner]: No contest.

The Court: And to the charge in Count 10, a violation of

Penal Code section 118(A), perjury as alleged in the information, how do you plead? [Petitioner]: No contest.

The Court: Counsel, join in the waivers and plea and stipulate to a factual basis pursuant to the facts stated in the police report and the preliminary hearing transcript?

Ms. Schnier: Yes.

The Court: The Court finds the defendant has expressly, knowingly, understandingly, and intelligently waived his constitutional rights. The court finds the defendant's plea is freely and voluntarily made with an understanding of the nature and consequences thereof, and that there's a factual basis for the plea. The court accepts the defendant's plea.

(R.T. 1-7). After accepting the plea, the court continued to have discussions on the record with Petitioner concerning his admission of the prior convictions, sentencing, and restitution (R.T. 8-11).

B. Petitioner's Plea Was Voluntary and Intelligent.

"[G]uilty pleas are valid if both voluntary and intelligent." Brady v. United States, 397 U.S. 742, 747 (1970) (quotations omitted). "The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Parke v. Raley, 506 U.S. 20, 29 (1992) (citations and quotations omitted). A plea represents a voluntary and intelligent choice among the alternative courses of action where record of the plea proceedings reflects that the defendant voluntarily waived his or her right to a jury trial, the right to confront his or her accusers, and his or her privilege against compulsory self-incrimination. Id.; Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); United States v. Butcher, 926 F.2d 811, 817 (9th Cir.), cert. denied, 500 U.S. 959 (1991). As quoted above, Petitioner was advised of and voluntarily waived each of these rights.

Petitioner argues that he was incompetent to enter the plea (i.e., that he did not have the capacity to understand the proceedings and to assist counsel). See Godinez v. Moran, 509 U.S. 389, 398-99 (1993) (discussing competence required to enter a plea). As discussed below, the state courts reasonably rejected this argument.

After entering the plea, Petitioner returned to the Superior Court for a hearing on November 16, 2010 (Aug. R.T. 87). Subsequent to the entry of his plea, Petitioner reportedly had been requesting that his counsel have the court issue a certificate of probable cause or that Petitioner be allowed to withdraw his plea (Aug. R.T. 87).

Petitioner told the court that, prior to the plea, Petitioner had been up for two straight days preparing for his motions, and prior to that, had been hit in the back of his head during a jail riot (Aug. R.T. 88). Petitioner alleged he had "tried to put a game face on, but [] was exhausted. . . and suffering from sleep deprivation" (Aug. R.T. 88). Petitioner also alleged that he had a "nervous breakdown," did not remember the things that were discussed in court, and did not enter the plea in his right mind (Aug. R.T. 88-91).

The trial court denied the motion to withdraw the plea, explaining:

Here's the problem, Mr. Rosenfeld: I've observed you in the courtroom a number of times; today, the day of your plea, the date of the arraignment, in the interim between then. So you've been to court four or five times.

I saw no difference in your behavior or your ability to follow the -- follow along with the proceedings on the date that we took the plea. On the contrary, you were as engaged as you are or have been at every one of the proceedings that I've had you before me.

You took as active a roll [sic], and you were as coherent and clear as 99.9 percent of the defendants that I have before me. You did express the fact that you were tired, and then you wanted to just, you know, ask for -- to have an attorney brought in, have Ms. Schneir brought in to represent you.

We did that. And at that point, there were discussions relating to settlement discussions. I undercut the People on this particular case and gave you what I thought was the best possible offer I could give you based on the information that I had.

You asked questions about it. You tried to get me to consider going down on that. When we were going through the nature of the pleas and what the consequences were, you were engaged. You were asking questions. You were more involved than the vast majority of defendants that I have in my court and displayed to me a clear understanding of what the proceedings were and what was going on around you.

And I warned you at the time --

(Aug. R.T. 91-92). Petitioner interrupted with "Yes, you did" and "You did. You did." (Aug. R.T. 92). The trial court continued:

I'm not going to play games with this. Don't come in here again and try to tell me you were too tired or too exhausted, because I'm sitting here watching you, and I can tell what was going on.

And -- so I don't know how to put this in strong enough terms. You were as lucid and as involved and coherent as I could possibly expect any defendant to be during the course of a plea.

(Aug. R.T. 92-93).

"[F]indings made by the judge accepting the plea constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977). At no point during the lengthy record of plea discussions does there appear any indication that Petitioner was incoherent or otherwise unable to understand the nature of the proceedings, the rights he was waiving, and the consequences of pleading no contest to the charges against him. To the contrary, the record shows that Petitioner lucidly, voluntarily and intelligently decided to plead no contest. Petitioner responded appropriately to the court and to counsel throughout the entirety of the proceedings. See Tanner v. McDaniel, 493 F.3d 1135, 1146 (9th Cir.), cert. denied, 552 U.S. 1068 (2007) (record of plea hearing indicating Tanner "lucidly and voluntarily" pleaded guilty defeated Tanner's claim that his plea was not voluntary due to alleged depression); United States v. Elmer, 395 Fed. App'x 401, 403 (9th Cir. 2010), cert. denied, 131 S. Ct. 965 (2011) (record of plea colloquy contradicted claim that plea was not knowing and voluntary due to alleged pressure from counsel and medications; defendant was able to respond appropriately to questions by the court and to voice any concerns she had during the hearing, and stated that her medications did not affect her mental processes or her ability to understand the proceedings);*fn5 see generally United States v. Kaczynski, 239 F.3d 1108, 1114-15 (9th Cir. 2001), cert. denied, 535 U.S. 933 (2002) ("substantial weight" must be given to a defendant's in-court statements).

"[A] determination of a factual issue made by a State court shall be presumed to be correct." See 28 U.S.C. § 2254(e)(1); see also Cooper v. Brown, 510 F.3d 870, 919 (9th Cir. 2007), cert. denied, 130 S. Ct. 749 (2009) (discussing deference); see generally Marshall v. Lonberger, 459 U.S. 422, 434 (1983) ("28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them."). A petitioner can overcome the presumption of correctness only by introducing clear and convincing evidence showing that the determination was incorrect. See 28 U.S.C. § 2254(e)(1) ("The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence"); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (discussing same). "Clear and convincing evidence requires greater proof than preponderance of the evidence. To meet this higher standard, a party must present sufficient evidence to produce in the ultimate factfinder an abiding conviction that the truth of its factual contentions are [sic] highly probable." Sophanthavong v. Palmateer, 378 F.3d 859, 866 (9th Cir. 2004) (internal quotations and citation omitted). Petitioner's bare allegations of incoherency, made here as before the state courts, are not clear and convincing evidence demonstrating that the state courts' determination was incorrect.*fn6 In particular, the Superior Court reasonably rejected the reliability of the competency-related allegations Petitioner made subsequent to the entry of his plea.

Petitioner's plea was valid. The state courts' rejection of Petitioner's claim challenging the validity of his plea was not contrary to, or an objectively unreasonable application of, any clearly established Federal Law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. at 785-87. Thus, Petitioner is not entitled to federal habeas relief on Ground One.

II. Petitioner's Claim that He Was Deprived of Private Counsel Does Not Merit Habeas Relief.

Petitioner contends that he was deprived of private counsel between his arraignment on June 7, 2010, and the November 16, 2010 hearing on Petitioner's motion to withdraw his plea. Petitioner alleges that the Superior Court and the prosecution blocked the return of money Petitioner reportedly carried in a wallet that was seized during Petitioner's arrest on June 3, 2010. Without this money, Petitioner allegedly was forced to represent himself. See Petition, Ground Two; Petition Att., pp. 3-6; Response, pp. 16-23.

A. Relevant Superior Court Proceedings

On September 27, 2010, Petitioner filed a pretrial motion alleging, inter alia, that he had been denied counsel of choice and he was seeking return of the money seized so he could hire private counsel. See C.T. 190-211 (motion); Aug. R.T. 15-21 (discussing motion); see also C.T. 116-22 (earlier motion termed a "petition for writ of habeas corpus" raising same grounds) and C.T. 123 (order denying petition); C.T. 238-248 (another motion seeking return of seized property). The prosecution opposed the motion, asserting that it was not possible to trace from where the money came and suggesting that the money was "highly suspicious given the other activity that was presented at the preliminary hearing" (Aug. R.T. 16-17; see also C.T. 262-68 (written opposition)). Petitioner claimed that the money came from his landlord's return of a security deposit (Aug. R.T. 17).

On October 14, 2010, the trial court: (1) denied the motion to the extent the motion alleged Petitioner had been denied his counsel of choice (Aug. R.T. 21, 44-45); (2) granted the motion to the extent the motion sought the return of the bank cards and credit cards in Petitioner's name (Aug. R.T. 46-47); and (3) continued the motion to the next court date so that Petitioner could litigate the source of the money in his wallet (Aug. R.T. 46-51). On the next court date, however, Petitioner pleaded no contest (Aug. R.T. 53; R.T. 1-11). Petitioner did not again raise with the Superior Court his request to have the money returned.

B. Petitioner's Claim Fails.

Petitioner's valid plea forecloses his claim regarding the alleged pre-plea deprivation of private counsel.

[A] guilty plea*fn7 represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea. . . .

Tollett v. Henderson, 411 U.S. 258, 267 (1973); see also United States v. Broce, 488 U.S. 563, 569, 572-74 (1989) (absent a claim that defense counsel's plea advice constituted ineffective assistance of counsel, defendant cannot challenge subsequent plea; "A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative, then the conviction and the plea, as a general rule, foreclose the collateral attack."); Lefkowitz v. Newsome, 420 U.S. 283, 288 (1975) (guilty plea generally "bars the later assertion of constitutional challenges to the pretrial proceedings"); Ortberg v. Moody, 961 F.2d 135, 137-38 (9th Cir.), cert. denied, 506 U.S. 878 (1992) ("Petitioner's nolo contendere plea precludes him from challenging alleged constitutional violations that occurred prior to the entry of that plea").

Petitioner's no contest plea forecloses pre-plea claims other than claims implicating the validity of the plea, and thus forecloses Petitioner's claim that the trial court's rulings deprived him of private counsel. See United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (Tollett forecloses claim that defendant was denied counsel, entirely, at critical pre-plea stage).

To the extent Petitioner claims that the Superior Court's rulings deprived him of counsel of choice after he pleaded no contest, Petitioner's claim fails because, inter alia, the Sixth Amendment does not entitle a defendant to preferred counsel where the defendant cannot afford preferred counsel or where that counsel is not willing to represent the defendant. See Miller v. Blackletter, 525 F.3d 890, 895 (9th Cir. 2008), cert. denied, 555 U.S. 1107 (2009). Moreover, it appears that Petitioner did have the financial ability to retain private counsel following Petitioner's plea. In a declaration filed with this Court on June 18, 2012 (Docket No. 23), Petitioner stated that, following his arrest, his wife gave Petitioner's intended private counsel, Sammy Weiss, $500 to represent Petitioner. Weiss reportedly required an additional $1,000 to come to court. See Docket No. 23, p. 7, ¶¶ 1-2. In a separate declaration filed with the trial court, Petitioner alleged that his wallet contained over $3,000 worth of debit cards. See C.T. 193, ¶ 6. The trial court ordered return of these cards to Petitioner on October 14, 2010. See Aug. R.T. 46-47. It thus appears Petitioner would have had access to sufficient financing to retain Weiss for post-plea proceedings.

For the foregoing reasons, the state courts' denial of Petitioner's claim that he was deprived of private counsel was not contrary to, or an objectively unreasonable application of, any clearly established Federal Law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. at 785-87. Petitioner is not entitled to federal habeas relief on Ground Two.

III. Petitioner's Ineffective Assistance of Counsel Claim Does Not Merit Habeas Relief.

Petitioner contends that his counsel was ineffective for failing to take over a hearing to suppress evidence when Petitioner allegedly could not continue representing himself due to purported blurred vision, sleep deprivation, and head trauma. Petitioner alleges that, instead of taking over the suppression hearing, counsel coerced Petitioner's plea while Petitioner purportedly was incoherent. See Petition, Ground Three; Petition Att., p. 10; Response, pp. 7-13. Petitioner appears to allege that he did not even regain "consciousness" until the day after he entered his plea (Petition Att., p. 11).

Petitioner raised this claim with the Superior Court, which denied the claim on the merits. The Superior Court found that Petitioner withdrew his motion to suppress and then chose to plead no contest. See Respondent's Lodgment 10, p. 3-4; Respondent's Lodgment 11.*fn8 Petitioner also raised this claim with the California Court of Appeal, which issued the last reasoned decision denying the claim on the merits. See Respondent's Lodgment 22, p. 18; Respondent's Lodgment 9, pp. 3-4.

A. Relevant Trial Court Proceedings

During the October 14, 2010 pretrial hearing, the trial court noted that Petitioner had filed a motion to suppress evidence (Aug. R.T. 21; see also C.T. 131-54, 238-48 (motions)). Petitioner informed the court that he was not ready to proceed on the motion and described the witnesses he supposedly needed subpoenaed (Aug. R.T. 21-25, 45). The court stated that it would address the motion on November 5, 2010, after affording Petitioner time to subpoena witnesses (Aug. R.T. 45, 50-51).

When proceedings resumed on the morning of November 8, 2010, Petitioner argued a separate motion to dismiss the charges based on alleged insufficiency of the evidence (Aug. R.T. 53-83). In the afternoon of the same day, when the parties returned from lunch to argue the motion to suppress, Petitioner told the court that he was exhausted and suffering from degenerative eye disease, and Petitioner then requested representation by his standby appointed counsel, Eleanor Schnier (Aug. R.T. 84). The court expressed doubt regarding whether Schnier would be ready to proceed with the motion to suppress and released the witnesses who had appeared for the motion (Aug. R.T. 85-86).*fn9 A bench conference was held but not reported (Aug. R.T. 86).

The court went back on the record, stated that Petitioner then was represented by Schnier,*fn10 and discussed a plea offer that Petitioner reportedly wished to accept (R.T. 1). Petitioner accepted the plea offer on the record and was sentenced. See R.T. 1-11 (transcript of proceedings).

B. The Court of Appeal Decision

In denying this claim, the Court of Appeal explained:

By entering a plea of no contest Rosenfeld admitted the sufficiency of the evidence establishing the crime, and therefore he is not entitled to a review of any issue that goes to the question of whether he is guilty or not guilty. An exception to this rule exists for issues relating to the validity of a denial of a motion to suppress but, as discussed above, the court did not deny Rosenfeld's motion to suppress. It took the motion off calender after Rosenfeld told the court he wanted to give up his pro per status and have his previous attorney take over the motion.

Rosenfeld argues his trial counsel provided ineffective assistance in failing to read his suppression motion, review the evidence and argue the motion. We disagree. . . .

Counsel was called to the courtroom immediately after Rosenfeld revoked his pro per status and appears to have arrived minutes later. Counsel could not have competently argued the motion on such short notice.

If Rosenfeld is arguing that his counsel provided ineffective assistance in not setting the motion for a hearing at a later date, his argument is not supported by the record. A letter from trial counsel to appellate counsel dated August 31, 2011 [Lodged as Exhibit A with Respondent's Lodgment 8], which Rosenfeld has included in the record, states that trial counsel "would not have been prepared to go ahead with the motion" on the date she was reappointed and that after the court took the motion off calendar "there was some off the record discussion and we arrived at a settlement of the case." The reporter's transcript supports counsel's explanation. Furthermore, had the motion been brought it is not reasonably probable that it would have succeeded because defendant's own evidence shows the driver of the car consented to the search. . . .

(Respondent's Lodgment 9, pp. 3-4 (internal citations omitted)).

C. Petitioner's Valid Plea Forecloses Any Claim that Counsel Was Ineffective for Failing to Argue the Suppression Motion.

Petitioner's plea of no contest forecloses any pre-plea claims not challenging the validity of the plea, including Petitioner's claim that counsel failed to argue the motion to suppress evidence. Tollett v. Henderson, 411 U.S. at 267; United States v. Broce, 488 U.S. at 569, 572-74; Lefkowitz v. Newsome, 420 U.S. at 288; Ortberg v. Moody, 961 F.2d at 137-38; see also United States v. Friedlander, 217 Fed. App'x 664, 665 (9th Cir. 2007) (alleged ineffectiveness in connection with suppression motions waived by plea); Moran v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994), cert. denied, 516 U.S. 976 (1995) (claim of ineffectiveness in failing to prevent use of petitioner's confession at trial foreclosed by plea).

D. Petitioner Has Failed to Demonstrate that Counsel Was Ineffective.

Even if Petitioner's claim were not foreclosed by his plea, the claim would fail. Under Strickland v. Washington, 466 U.S. 668, 688-93 (1984), to establish ineffective assistance of counsel, the petitioner must demonstrate both that: (1) counsel's performance was deficient; and (2) the deficient performance prejudiced his defense in that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. A reasonable probability of a different result "is a probability sufficient to undermine confidence in the outcome." Id. at 694.

Petitioner posits that if his counsel had argued the suppression motion, the Superior Court would have granted the motion, all evidence in the case would have been suppressed, and a different outcome would have occurred (Petition Att., p. 12). Had counsel argued the suppression motion, however, it is not reasonably probable that the Superior Court would have suppressed the seized evidence or that the outcome at trial would have been different.

Evidence obtained as a direct or indirect result of a traffic stop that violates the Fourth Amendment generally cannot be used at trial against a defendant. United States v. Morales, 252 F.3d 1070, 1073 (9th Cir. 2001) ("If the initial stop was unconstitutional, then all evidence seized as a result of the stop must be suppressed as the fruit of the poisonous tree.") (citing Wong Sun v. United States, 371 U.S. 471, 484-85 (1963)). The Fourth Amendment requires law enforcement officers to have at least a reasonable suspicion of criminal activity (which includes vehicular violations) before making an investigatory traffic stop. See Arizona v. Johnson, 555 U.S. 323, 326-27 (2009) (citing Terry v. Ohio, 392 U.S. 1 (1968)); United States v. Choudhry, 461 F.3d 1097, 1100 (9th Cir. 2006), cert. denied, 549 U.S. 1236 (2007) ("[A] police officer may conduct an investigatory traffic stop if the officer has 'reasonable suspicion' that a particular person 'has committed, is committing, or is about to commit a crime.'") (citation omitted). Reasonable suspicion is a particularized and objective basis for suspecting criminal activity. United States v. Morales, 252 F.3d 1070, 1073 (9th Cir. 2001) (citation and internal quotations omitted). Officers have reasonable suspicion when specific, articulable facts, together with objective and reasonable inferences, form the basis for suspecting that the particular person detained is engaged in criminal activity. Choudhry, 461 F.3d at 1100 (citation and internal quotations omitted).

Petitioner argues that the police lacked justification to make the traffic stop based on a belief that Petitioner was not wearing his seatbelt. Petitioner and a witness apparently both claimed that Petitioner was wearing his seat belt (Respondent's Lodgment 26, pp. 5-6).*fn11 Apart from the seatbelt issue, however, the police based the stop on an observed violation of Vehicle Code section 5201 (failure to have rear license plate securely fastened to the rear of the car).

See Attachment to Docket No. 27 (police narrative stating that car was stopped for violating section 5201, and because it appeared that Petitioner was not wearing his seat belt).*fn12 The defense investigation report indicates that Pressimone "said that he put the license plate on the rear window deck (because the license holding bracket was broken) and he propped it up with a box of tissues, . . . as he drove the box and license plate would slide from side to side in the rear window of his vehicle as he went around corners, [and] he . . . has no idea of where it was on the night of the [] arrest." See Petition Att., p. 13; see also Attachment to Docket No. 27 (police narrative indicating Petitioner also said he used a box to prop the license plate in the rear window).*fn13

Had counsel argued in favor of the suppression of the evidence seized, the Superior Court would not have ordered suppression. The officers would have proven probable cause to believe (as well as a reasonable suspicion of), the existence of a violation of California Vehicle Code section 5201 based on their observation of the license plate in the rear window. See Whren v. United States, 517 U.S. 806, 810 (1996) ("As a general matter, the decision to stop an automobile is reasonable where police have probable cause to believe that a traffic violation has occurred."); United States v. Norris, 2009 WL 1144185, at *1 (9th Cir. April 29, 2009), cert. denied, 130 S. Ct. 421 (2009) (defendant's driving a car in violation of California Vehicle Code provided officers with reasonable suspicion to justify an investigatory traffic stop); see also Cosme v. LASD, 2009 WL 3517553, at *5 (C.D. Cal. Oct. 23, 2009) (finding a reasonable basis to stop car where deputies observed violation of section 5201). Petitioner's allegation that the rear license plate was "mounted" with clear tape (which is contrary to the statements the police attributed to Pressimone and to Petitioner) would not have undermined the officers' observations because, inter alia, clear tape would not have been visible to the officers from outside the car.

Because the suppression motion would have failed, Petitioner has not demonstrated that his trial counsel was ineffective for failure to argue the suppression motion. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996), cert. denied, 519 U.S. 1142 (1997) ("the failure to take a futile action can never be deficient performance"); see also Shah v. United States, 878 F.2d 1156, 1162 (9th Cir.), cert. denied, 493 U.S. 869 (1989) ("[T]he failure to raise a meritless legal argument does not constitute ineffective assistance of counsel") (citation and internal quotations omitted). Petitioner's allegation that he was wearing his seatbelt at the time of his arrest does not demonstrate a reasonable probability of a different outcome had counsel argued the suppression motion.*fn14

For the foregoing reasons, the state courts' rejection of Petitioner's claim of ineffective assistance of trial counsel was not contrary to, and did not involve an unreasonable application of clearly established law, and was not based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. at 785-87. Petitioner is not entitled to federal habeas relief on Ground Three.*fn15

IV. Petitioner's Claim that His Conviction Resulted From the Use of Evidence Obtained From an Allegedly Unconstitutional Search and Seizure Does Not Merit Habeas Relief.

Petitioner contends that his conviction resulted from the use of evidence obtained through an allegedly unconstitutional search and seizure because assertedly there was no probable cause for the traffic stop leading to the search and seizure and his arrest, and the search purportedly violated Arizona v. Gant, 556 U.S. 332, 343-44 (2009) (holding that police may search a vehicle incident to a recent occupant's arrest only when (1) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search; or (2) it is reasonable to believe that evidence of the offense might be found in the vehicle). See Petition, Ground Four. Petitioner appears to have raised this claim with the California Supreme Court which denied the claim summarily. See Respondent's Lodgment 24, p. 12; Respondent's Lodgment 25.

Petitioner's claim fails because aPetitioner's plea precludes Petitioner from raising any alleged Fourth Amendment violation in this proceeding. Tollett v. Henderson, 411 U.S. at 267; Lefkowitz v. Newsome, 420 U.S. at 288; Ortberg v. Moody, 961 F.2d at 137-38. The principles of Stone v. Powell also bar Petitioner's claim. See Stone v. Powell, 428 U.S. 465, 494 (1976) ("[W]here the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence [was] obtained in an unconstitutional search and seizure . . . ."). Where, as here, "the petitioner had an opportunity to litigate his claim," Stone v. Powell bars habeas relief regardless of "whether [the petitioner] did in fact" litigate his claim. Ortiz v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (citations omitted); see Gordon v. Duran, 895 F.2d 610, 613-14 (9th Cir. 1990) (California Penal Code section 1538.5 provides each criminal defendant with a "full and fair" opportunity to litigate Fourth Amendment claims in state court). In any event, as discussed in the previous section, Petitioner has shown no Fourth Amendment violation.

The California Supreme Court's rejection of Petitioner's claim was not contrary to, and did not involve an unreasonable application of, clearly established law, and was not based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. at 785-87. Petitioner is not entitled to federal habeas relief on Ground Four.

V. Petitioner's Claim that He Was Deprived of His Right to Appeal Does Not Merit Habeas Relief.

Petitioner contends that he was denied his right to appeal when the Superior Court denied a certificate of probable cause and the Court of Appeal assertedly delayed appointing appellate counsel "past statutory 60 day mandate period." See Petition, Ground Five; Petition Mem., pp. 1-8; Response, pp. 24-25. Petitioner raised a due process claim concerning the Superior Court's denial of his request for certificate of probable cause with the California Supreme Court in a petition for review, which the Supreme Court denied summarily. See Respondent's Lodgment 18; Respondent's Lodgment 19.

Under California law, when a defendant wishes to appeal a judgment resulting from a guilty or no contest plea, the defendant must obtain a "certificate of probable cause for such appeal" unless the appeal is based on (1) the denial of a motion to suppress evidence or (2) grounds that arose after entry of the plea and do not affect the plea's validity. Cal. Penal Code § 1237.5; Cal. R. Ct. 8.304(b). As discussed above, at the time of Petitioner's plea, the Superior Court advised Petitioner not to seek a certificate of probable cause and later denied Petitioner's request for a certificate without comment. Petitioner's appointed appellate counsel on appeal filed a petition for writ of mandate with the California Court of Appeal which that Court denied without comment. See Respondent's Lodgments 16-17. Petitioner's counsel also petitioned the California Supreme Court for review which that Court also denied without comment. See Respondent's Lodgments 18-19. Thus, the state courts denied these petitions on the merits, not because of any untimeliness resulting from any delay in the appointment of counsel. See Hunter v. Aispero, 982 F.2d 344, 347-48 (9th Cir. 1992), cert. denied, 510 U.S. 887 (1993).

To the extent Petitioner may be claiming that the state courts erred in denying the certificate of probable cause, Petitioner has failed to demonstrate the violation of any federal right. Errors in a state's post-conviction review process are not addressable through a federal habeas corpus petition. See Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998), cert. denied, 526 U.S. 1123 (1999); Franzen v. Brinkman, 877 F.2d 26 (9th Cir.), cert. denied, 493 U.S. 1012 (1989). A federal habeas court will defer to a state court's interpretation of state law. See Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) ("we have repeatedly held that it is not the province of a federal habeas court to re-examine state-court determinations on state-law questions") (citation and internal quotations omitted).

To the extent Petitioner is claiming that the state courts violated federal law by issuing summary rulings, Petitioner's claim fails. See, e.g., Owens v. Nool, 2010 WL 144364 (N.D. Cal. Jan. 5, 2010) (dismissing habeas petitioner's claim that the California Court of Appeal "erred in failing to state, in a written opinion, its reasons for denying petitioner's petition"); Stewart v. Sisto, 2008 WL 5178835, at *1 (E.D. Cal. Dec. 10, 2008) ("there is no federal constitutional prohibition preventing state courts from disposing of [the petitioner's] post-conviction claims in a summary fashion. Nor is there a federal requirement that state courts consider post-conviction claims with a full discussion of the merits").

To the extent Petitioner is claiming he was denied his right to appeal, Petitioner has failed to show any prejudice resulting from the alleged denial. Petitioner alleges he was denied his right to appeal Grounds One and Two herein (Petition Mem., pp. 2-7). Petitioner raised each of these claims in a habeas petition filed with the California Supreme Court. The California Supreme Court denied these claims on the merits. See Respondent's Lodgment 24, pp. 3-6, 9; Respondent's Lodgment 25; see also Harrington v. Richter, 131 S. Ct. at 784-85 ("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."); Hunter v. Aispuro, 982 F.2d at 347-48 (California Supreme Court's unexplained denial of habeas petition constitutes decision on the merits of federal claims subjecting such claims to review in federal habeas proceedings). Thus the failure to issue a certificate of probable cause, if error, was harmless. See, e.g., Johnson v. Mendoza-Powers, 2008 WL 5245991, at *18 (C.D. Cal. Dec. 12, 2008) (state court collateral review denial of claims on the merits necessarily means that the failure to issue a certificate of probable cause was harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993)). Moreover, as discussed herein, Grounds One and Two lack merit. Accordingly, Petitioner is not entitled to federal habeas relief on Ground Five. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. at 785-87; Frantz v. Hazey, 533 F.3d at 736-37.

RECOMMENDATION*fn16

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.


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