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Jesse Rosenfeld v. Warden

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 ...


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