UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
September 7, 2012
STEVEN BELLA PEREZ, PETITIONER,
R. LOPEZ, WARDEN, RESPONDENT.
The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge
MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS PROCEEDINGS
On January 6, 2011, Steven Bella Perez ("Petitioner"), a prisoner in state custody, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254 ("Petition"). On April 4, 2011, Warden R. Lopez ("Respondent") filed an Answer. On July 11, 2011, Petitioner filed a Traverse. The parties have consented to proceed before the Magistrate Judge.
The matter is ready for decision. For the reasons set forth below, the Court concludes that the Petition should be denied and the case dismissed with prejudice.
On September 25, 2006, a Riverside County Superior Court jury found Petitioner guilty of transportation of heroin (Cal. Health & Saf. Code § 11352(a)), possession of heroin with intent to sell (Cal. Health & Saf. Code § 11351), being a felon in possession of a firearm (Cal. Penal Code § 12021(a)(1)), and being a felon in possession of ammunition (Cal. Penal Code § 12316(b)(1)). (Respondent's Lodged Document ("LD") 1, Clerk's Transcript ("CT") 154, 156, 158, 159.) The jury found that Petitioner was personally armed with a firearm during the commission of the drug offenses. (CT 155, 157.) On February 23, 2007, Petitioner admitted that he had sustained nine prior convictions within the meaning of California's Three Strikes Law (Cal. Penal Code § 667(c) &(e)(20) (A), § 1170.12(c)(2)(A)) and had served four prior prison terms (Cal. Penal Code § 667.5(b)). (CT 181-82.) On February 1, 2008, the trial court sentenced Petitioner to state prison for a term of 32 years to life. (CT 257-58.)
Petitioner filed an appeal in the California Court of Appeal. (LD 3-5.) On March 19, 2009, the California Court of Appeal issued an unpublished decision affirming the judgment. (LD 6.) Petitioner filed a petition for review in the California Supreme Court. (LD 7.) On June 10, 2009, the California Supreme Court summarily denied the petition for review. (LD 8.)
Petitioner filed a petition for a writ of habeas corpus in the Riverside County Superior Court. (LD 9.) On November 23, 2009, the Superior Court denied his petition for failure to state a prima facie factual case. (LD 10.) Petitioner filed a petition for a writ of habeas corpus in the California Court of Appeal. (LD 11.) On February 23, 2010, the Court of Appeal summarily denied the petition. (LD 12.) Petitioner filed a petition for a writ of habeas corpus in the California Supreme Court. (LD 13.) On October 27, 2010, the California Supreme Court summarily denied the petition. (LD 14.)
SUMMARY OF EVIDENCE AT TRIAL
Based on its independent review of the record, the Court adopts the following factual summary from the California Court of Appeal's unpublished opinion as a fair and accurate summary of the evidence presented at trial:
On November 17, 2005, Riverside County Deputy Sheriff Sam Morovich was on patrol in Perris, California when he drove by a house and saw an unfamiliar car (Firebird) stopped at the home. The deputy was familiar with the house because he had previously made and assisted in felony arrests at that location. [Petitioner] was sitting in the car conversing with a man standing beside the car. As the deputy drove by, he observed there was no front license plate on the car. When the vehicle drove off, the deputy turned around and followed the car. The deputy stopped the car a short distance away.
When Deputy Morovich asked [Petitioner] for his driver's license, [Petitioner] stated his license had been suspended. After the deputy verified the suspension with dispatch, [Petitioner] was detained for driving without a license. In a patdown search of [Petitioner], the deputy found a large amount of cash in [Petitioner]'s wallet.
After the deputy placed [Petitioner] in the back of his patrol unit, the deputy conducted an inventory search of the car and found more cash in the car, which, with the cash found in [Petitioner]'s wallet, totaled over $1,300. A loaded revolver, bullets, two pieces of heroin, four syringes, a digital scale, a glass pipe, and a bottle cap with heroin residue in it were also found in the vehicle. The car was registered to a Luis Gonzalez of Thermal, California.
Deputy Morovich showed the heroin and gun to [Petitioner], and asked [Petitioner] where he had obtained the items. [Petitioner] had initially, "most likely," denied knowing the gun and drugs were in the car, but then [Petitioner] initiated the conversation by asking, "[H]ey, what if I told you where the items came from?" Deputy Morovich speculated that [Petitioner] wanted something in return for his cooperation. [Petitioner] gave the officer the identity of the owner of the car and stated the gun and heroin belonged to the owner.
[Petitioner] was upset and claimed that he had to stay out of jail to be with his dying father. He also stated that he was selling the heroin because he needed the money to pay for his father's funeral.
Deputy Morovich drove [Petitioner] to the police station where he read [Petitioner] his constitutional rights pursuant to Miranda v. Arizona[, 384 U.S. 436 [1966)] (Miranda). [Petitioner] waived those rights and agreed to speak with the deputy. Deputy Morovich asked [Petitioner] about the source of the gun and heroin. [ Petitioner] said the car and the heroin came from two brothers who lived in Thermal, who sold the car to him, and admitted that he was going to sell the heroin to make money for his father's funeral. [Petitioner] also admitted that he was a heroin user.
[Petitioner] continued to offer information to law enforcement. Deputy Morovich contacted the Southwest Narcotics Task Force and Deputy Theodore Peterson, who was working as an undercover narcotics officer in November 2005, came to speak with [Petitioner] at the police station.*fn1 After speaking with [Petitioner], Deputy Peterson opined the information [Petitioner] provided was of no interest to his unit. [Petitioner] appeared somber and disappointed but did not mention his dying father. Deputy Peterson opined [Petitioner] was a user and dealer of heroin based on the amount of heroin found together with the gun, scale, money, and needles.
[Petitioner] testified that he had bought the Firebird from a friend in Thermal, to resell for a profit, about two weeks before his arrest. The day he was arrested a woman had called him about the car and he drove to the location of the house where he encountered a man claiming the woman was not home. He confirmed that he had been pulled over by Deputy Morovich and informed the officer that his license was suspended. He stated that he had followed the deputy's directives and in a brief conversation, the deputy had asked him who the gun and drugs belonged to. [Petitioner] denied owning the gun or knowing it was in the car; he also denied the heroin belonged to him.
[Petitioner] further testified that on the drive to the police station Deputy Morovich said [Petitioner] could get a long time in prison and that [Petitioner] needed to say who owned the drugs. [Petitioner] claimed that the deputy said the deputy could make [Petitioner]'s charges go away, "if [[Petitioner]] could tell [him] where the drugs came from, that he would allow [[Petitioner]] to be with [his] father." [Petitioner] explained that it was "possible" he told the deputies about the drugs, but it was so important for him not to go to jail at that time, that he "might have said anything to keep [himself] out of jail"; he might even have lied to the deputies. [Petitioner] agreed with the prosecutor that it was a total coincidence that there was heroin in the car and he was under the influence of heroin that day. [Petitioner] admitted that he had used drugs in the past and also admitted to having a past criminal record.
[Petitioner]'s fiancee testified that she had seen about $1,500 in [Petitioner]'s wallet on the morning of his arrest and that [Petitioner] had visited his ailing father everyday in Perris.*fn2 She believed that [Petitioner] was going to use the money for his father's funeral. (LD 6 at 2-5.)
1. The trial court erred when it failed to exclude statements made by Petitioner during pre-Miranda questioning and statements he made shortly after receiving Miranda advisements.
2. Petitioner's statements were involuntary. 3. Petitioner was denied effective assistance of counsel because trial counsel failed to preserve the Miranda and voluntariness issues for appeal.
4. The trial court's denial of Petitioner's motion to suppress violated his Fourth, Sixth and Fourteenth Amendment rights.
5. Petitioner's Three Strikes sentence violates due process because his prior convictions involved negotiated plea agreements that specified the allowable future uses of the convictions.
6. Petitioner's Three Strikes sentence violates the Eighth Amendment prohibition against cruel and unusual punishment.
7. Trial counsel rendered ineffective assistance, in violation of the Sixth Amendment, because she failed adequately to prepare for trial.
(Petition at 5-6, attached petition ("Attach.") at 5-7.)
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs the Court's consideration of Petitioner's cognizable federal claims. 28 U.S.C. § 2254(d), as amended by AEDPA, states:
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.
In Williams v. Taylor, 529 U.S. 362 (2000), the United States Supreme Court held that a state court's decision can be contrary to federal law if it either (1) fails to apply the correct controlling authority, or (2) applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. Id. at 405-06. A state court's decision can involve an unreasonable application of federal law if it either (1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or (2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Id. at 407-08. The Supreme Court has admonished courts against equating the term "unreasonable application" with "clear error." "These two standards . . . are not the same. The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Instead, in this context, habeas relief may issue only if the state court's application of federal law was "objectively unreasonable." Id. "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, __ U.S. __, __, 131 S. Ct. 770, 786 (2011).
Under AEDPA, the "clearly established Federal law" that controls federal habeas review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court decisions "as of the time of the relevant state-court decision." Williams, 529 U.S. at 412 ("§ 2254(d)(i) restricts the source of clearly established law to this Court's jurisprudence"); Andrade, 531 U.S. at 71. If there is no Supreme Court precedent that controls a legal issue raised by a habeas petitioner in state court, the state court's decision cannot be contrary to, or an unreasonable application of, clearly established federal law. Wright v. Van Patten, 552 U.S. 120, 125-26 (2008) (per curiam); see also Carey v. Musladin, 549 U.S. 70, 76-77 (2006). A state court need not cite or even be aware of the controlling Supreme Court cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); see also Bell v. Cone, 543 U.S. 447, 455 (2005) (per curiam).
Petitioner raised Grounds One, Two and Three on direct appeal. (LD 3.) The California Court of Appeal denied these claims in a reasoned decision and the California Supreme Court denied them summarily. (LD 6, 8.) The Court looks through the California Supreme Court's silent denial to the Court of Appeal's reasoned decision and reviews that decision under the AEDPA standards. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see Gill v. Ayers, 342 F.3d 911, 917 n.5 (9th Cir. 2003) (the federal court looks through the unexplained California Supreme Court decision to the last reasoned lower court decision to determine the basis for the state court's judgment).
Petitioner presented Grounds Four through Seven to the state courts by habeas petition and the state courts denied these claims summarily. (LD 9-14.) The AEDPA standard applies even if no state court issued a decision explaining the reasons for its denial of the federal claim. Harrington, 131 S. Ct. at 784-85. In the absence of a reasoned decision, however, the federal court must independently review the record to determine whether the state court was objectively unreasonable in its application of clearly established federal law. Stanley v. Cullen, 633 F.3d 852, 860 (9th Cir. 2011); Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009).
I. GROUND ONE DOES NOT WARRANT FEDERAL HABEAS RELIEF.
In Ground One, Petitioner contends that his statements to the police should have been excluded from evidence because they were elicited in violation of Miranda. He argues that the trial court should have excluded the statements he made before receiving Miranda advisements as well as the statements he made after the Miranda advisements, since these were tainted by the prior Miranda violation. (Petition at 5, Attach. at 9-14.)
As an initial matter, Petitioner did not object to the admission of his statements at trial on Miranda grounds, as California law requires. See People v. Seaton, 26 Cal.4th 598, 655-56 (2001) (defendant who did not object to evidence on Miranda grounds at trial could not raise Miranda issue on appeal); People v. Mattson, 50 Cal.3d 826, 853-54 (1990) (same). For this reason, the California Court of Appeal found that Petitioner had failed to preserve his Miranda claim for appeal. (LD 6 at 6-7.) The California Court of Appeal nevertheless addressed the claim and found that it lacked merit. (Id. at 7.) For the reasons set forth below, the Court finds that the Court of Appeal reasonably applied Miranda and its progeny.*fn3
In Miranda v. Arizona, the United States Supreme Court declared that a person questioned by law enforcement officers after being "taken into custody or otherwise deprived of his freedom of action in any significant way" must first "be warned that he has the right to remain silent, that any statements he does make may be used against him, and that he has a right to the presence of an attorney, either retained or appointed." 384 U.S. at 444. "Statements elicited in noncompliance with this rule may not be admitted for certain purposes in a criminal trial." Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam). The Miranda safeguards come into play when a person in custody is subjected to either express questioning or its functional equivalent, i.e., words or actions on the part of the police that they should know are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 309-01 (1980).
The California Court of Appeal assumed, for the sake of argument, that Petitioner's pre-Miranda statements should have been excluded, and focused on his statements at the police station after he received his Miranda advisements. (LD 6 at 8.) The Court of Appeal relied on the Supreme Court's decision in Oregon v. Elstad, 470 U.S. 298 (1985). In Elstad, the suspect acknowledged, during a brief exchange with a police officer while he was being arrested on a burglary charge, that he had been at the scene of the burglary. At the police station, the suspect was given his Miranda warnings and confessed. Id. at 300-01. The Supreme Court stated that "absent deliberately coercive or improper tactics in obtaining the initial statement," the mere fact that a suspect has made a pre-Miranda admission does not necessarily mean that his waiver of his Miranda rights is not voluntary. Id. at 314. "A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement." Id. The Supreme Court held that "a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." Id. at 318.
Applying Elstad, the Court of Appeal stated:
Here, as in Elstad, [Petitioner]'s prior statements concerning the gun and heroin, though obtained without Miranda warnings, were otherwise uncoerced. The record shows that the questioning as to these items consisted of the sole question of whether [Petitioner] knew where these items came from. Deputy Morovich asked [Petitioner] about the source of the gun and heroin. [Petitioner] said the car and the heroin came from two brothers who lived in Thermal, who sold the car to him, and admitted that he was going to sell the heroin to make money for his father's funeral. [Petitioner] also admitted that he was a heroin user, and asked about providing information to the deputy to get him out of custody. Furthermore, [Petitioner] was given his Miranda warnings prior to making these statements, and the record reasonably supports the conclusion that he made a rational and intelligent choice to waive his rights. (Elstad, supra, 470 U.S. at p. 314.) Contrary to [Petitioner]'s claim that he simply had no choice but to say the drugs were his, the record indicates that he freely waived his rights and voluntarily confessed to being a heroin user and having knowledge of the gun and heroin. Therefore, the court properly admitted the statements. (LD 6 at 10-11.)
The Court of Appeal rejected Petitioner's attempt to analogize his case to Missouri v. Seibert, 542 U.S. 600 (2004). (LD 6 at 11.) In Seibert, the police deliberately withheld Miranda warnings and questioned the defendant until she confessed; then the same officer gave defendant her Miranda warnings and continued the interrogation, confronting her with her pre-warning statements until she confessed again. Seibert, 542 U.S. at 604-06. A plurality of the Supreme Court held that, under these circumstances, the Miranda warnings were ineffective, because a reasonable person would not have understood them to convey that she retained a choice about continuing to talk.*fn4 Id. at 617.
The California Court of Appeal found that in this case, unlike in Seibert, "there was no deliberate strategy to undermine Miranda," but only a simple failure to administer the warnings, unaccompanied by any coercion. (LD 6 at 12.) The pre-Miranda questioning involved only a single question -- whether Petitioner knew who the drugs and gun belonged to -- in order to gather information at the time of investigating the scene, and the post-Miranda questioning was not designed to get Petitioner to repeat the statements he had made before the Miranda advisements, but to question him about what the deputies had found during the search of the car. (Id.) The Court of Appeal concluded that the trial court had properly admitted Petitioner's post-Miranda statement. (Id.)
The Court concurs in the analysis and conclusion of the Court of Appeal. Petitioner was clearly in custody when Deputy Morovich asked him about the money, drugs and gun in the car; he had been detained, handcuffed and placed in the patrol car. (LD 2, 1 Reporter's Transcript ("RT") 73-80, 106-15; 2 RT 293-96.) He should have been given Miranda warnings and his statements in the car were admitted in violation of Miranda. However, Petitioner did not make any particularly incriminating statements in the car and none that he did not repeat after receiving his Miranda warnings. The Court agrees with the Court of Appeal's conclusion that Petitioner's post-Miranda statements were not tainted by the Miranda violation: the pre-Miranda questioning was extremely brief, there were no circumstances suggesting coercion, and the facts do not suggest that the deputies deliberately used a two-step process to circumvent Miranda. (1 RT 84-85, 115-18; 2 RT 291-94.) The California Court of Appeal reasonably applied United States Supreme Court precedent when it rejected Petitioner's Miranda claim.
Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1). Ground One does not warrant federal habeas relief.
II. GROUND TWO DOES NOT WARRANT FEDERAL HABEAS RELIEF.
In Ground Two, Petitioner contends that his statements to the police were involuntary because the deputies took advantage of his fragile emotional state and promised that he could return home to his dying father after he answered their questions. (Petition at 5; Attach. at 15-20.)
The Fifth Amendment, which commands that no person "shall be compelled in any criminal case to be a witness against himself," precludes the use of a confession that is not voluntary. Seibert, 542 U.S. at 607. The Fourteenth Amendment secures the privilege against self-incrimination against state invasion. Id.; Malloy v. Hogan, 378 U.S. 1, 8 (1964). In determining whether a confession was voluntary, the question is whether the defendant's will was overborne at the time he confessed. If so, the confession cannot be deemed the product of a rational intellect and a free will. Lynumn v. Illinois, 372 U.S. 528, 534 (1963).
Determining whether a defendant's will was overborne in a particular case involves assessing "the totality of all the surrounding circumstances -- both the characteristics of the accused and the details of the interrogation." Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). The court must first determine if there was coercive police activity. Colorado v. Connelly, 479 U.S. 157, 167 (1986). The court then must consider the effect that the totality of the circumstances had upon the will of the suspect. Schneckloth, 412 U.S. at 226-27. "The test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne."*fn5 United States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir. 1988). If a promise was involved, it must be sufficiently compelling to overbear the suspect's will in light of the circumstances. Id.
The Court of Appeal found that Petitioner's statements were voluntary. It stated: There was no evidence of force, threats, or promises by the deputies. [Petitioner] himself volunteered that his father was ill and that he would do anything to avoid custody, including helping the police by providing information about the heroin. [Petitioner] had substantial prior experience with the criminal justice system and there was no evidence to suggest that he was physically vulnerable or impaired. In addition, the interrogation was brief in duration. Though [Petitioner] was upset about his father's illness, that was a pre-existing circumstance that was neither caused by nor exploited by the deputies here.
In addition, although [Petitioner] describes the deputies' statements as an offer to "'make the charges go away,'" according to Deputy Morovich it was [Petitioner] who had initiated the possibility of cooperation, going so far as to give the deputy the name of another deputy [Petitioner] had worked for as an informant in the past. Deputy Peterson was contacted to give [Petitioner] an opportunity to provide information that might have helped [Petitioner]. There was no evidence that the deputies had induced [Petitioner]'s admissions through coercive tactics, as [Petitioner] suggests. Rather, [Petitioner] voluntarily provided information in an effort to help himself out of his dilemma. Based on the totality of the circumstances, [Petitioner]'s statement was voluntarily made. (LD 5 at 14-15.)
The Court concurs in the Court of Appeal's analysis and conclusion. Petitioner contends that he was vulnerable to coercion because he was devastated at the prospect that his detention would preclude him from being with his dying father in his last days. (Petition, Attach. at 17; see 2 RT 294.) However, the voluntariness inquiry is "not concerned 'with moral and psychological pressures to confess emanating from sources other than official coercion.'" Connelly, 479 U.S. at 170 (quoting Elstad, 470 U.S. at 305)). Petitioner contends that Deputy Morovich told him that he could be with his father if he provided information regarding the source of the drugs, and that he understood from Deputy Petersen that he could return home if he provided information. (Petition, Attach. at 17; 2 RT 295, 311.) Deputy Petersen testified at trial that he told Petitioner that he could talk to the district attorney about a reduced sentence in exchange for information about the source of the drugs, and conceded on cross-examination that sometimes arrangements with informants involve release on one's own recognizance. (1 RT 168-69.) As long as it is unaccompanied by threats or other coercive practices, an interrogating officer's promise to inform prosecutors of cooperation and to recommend leniency does not render a subsequent statement involuntary. See Leon Guerrero, 847 F.2d at 1366 & n.2; see also United States v. Okafor, 285 F.3d 842, 847 (9th Cir. 2002). There were no threats or coercive practices here, and the promises made by the deputies were not sufficiently compelling to overbear Petitioner's will. Leon Guerrero, 847 F.2d at 1366. In fact, Deputy Morovich testified that it was Petitioner who initiated the possibility of providing information, and Petitioner himself testified that he was eager to provide the deputies with information in the hope of securing his release. (1 RT 91, 115-16; 2 RT 297.) The California Court of Appeal reasonably found that, under the totality of the circumstances, Petitioner's statements were made voluntarily. See Schneckloth, 412 U.S. at 226-27.
Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1). Ground Two does not warrant federal habeas relief.
III. GROUND THREE DOES NOT WARRANT FEDERAL HABEAS RELIEF.
In Ground Three, Petitioner contends that trial counsel rendered ineffective assistance, in violation of the Sixth Amendment, because she failed to preserve the Miranda and voluntariness issues raised in Grounds One and Two for appellate review. (Petition at 6, Attach. at 20-23.) Petitioner raised his ineffective assistance claim on direct appeal, and the California Court of Appeal implicitly rejected it when it stated that it would address Petitioner's Miranda claim on the merits "to avoid his ineffective assistance of counsel argument." (LD 6 at 7.)
A. Clearly Established Federal Law
Review of Petitioner's ineffective assistance of counsel claims involves a two-step analysis. See Strickland v. Washington, 466 U.S. 668, 687 (1984). First, Petitioner must prove that his attorney's representation fell below an objective standard of reasonableness. Id. at 687-88. Second, Petitioner must show that he was prejudiced by counsel's deficient performance. Id. at 687. Petitioner must prove both elements. Id. The Court may reject his claims upon finding either that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697; see also Thomas v. Borg, 159 F.3d 1147, 1151-52 (9th Cir. 1998).
Moreover, courts generally maintain a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. Indeed, the Supreme Court dictates that "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. In order to show that his counsel's performance was objectively unreasonable, Petitioner must overcome the strong presumption that the challenged action might be considered sound trial strategy under the circumstances. Id. A reasonable tactical decision by counsel with which the defendant disagrees cannot form a basis for an ineffective assistance of counsel claim. See id. at 690; Guam v. Santos, 741
F.2d 1167, 1169 (9th Cir. 1984) (per curiam). The Court does not consider whether another lawyer with the benefit of hindsight would have acted differently than Petitioner's trial counsel. Strickland, 466 U.S. at 689. Instead, the Court looks only to whether Petitioner's trial counsel made errors so serious that counsel failed to function as guaranteed by the Sixth Amendment. Id. at 687. In conducting this analysis, the Court must make "every effort . . . to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689.
Assuming that Petitioner can show that his defense counsel's performance was unreasonable, the Court still must determine whether counsel's performance prejudiced Petitioner. See Strickland, 466 U.S. at 694. A petitioner can prove prejudice by demonstrating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. Thus, the petitioner will prevail only if he can prove that because of counsel's deficient performance, "the result of the proceeding was fundamentally unfair or unreliable." Lockhart v. Fretwell, 506 U.S. 364, 369 (1993).
B. The Court of Appeal Reasonably Rejected Petitioner's Claim
To the extent Petitioner complains that trial counsel did not preserve the Miranda and voluntariness arguments for appeal, he has not shown prejudice because the Court of Appeal addressed and rejected the Miranda and voluntariness claims on the merits despite trial counsel's failure to raise them in the trial court. (LD 6 at 7-15.) To the extent Petitioner complains that trial counsel failed to seek suppression of the statements, he must show that the motion would have been meritorious and that there is a reasonable probability that the jury would have reached a different verdict if his statements had been suppressed. OrtizSandoval v. Clarke, 323 F.3d 1165, 1170 (9th Cir. 2003) (citing Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)). The Court's discussion of Grounds One and Two demonstrates that there was no reasonable likelihood that the trial court would have granted a motion to suppress Petitioner's post-Miranda statements, and that suppression of the pre-Miranda statements would have had little impact on the overall evidence presented. Moreover, there was overwhelming evidence against Petitioner apart from his admissions. He was caught with two pieces of heroin together weighing approximately 31 grams, scales, a loaded gun, ammunition, and $1,300 in cash. (1 RT 73-82, 124, 192-94.) There is no reasonable likelihood that the jury would have reached a different verdict if Petitioner's statements to the deputies had been excluded. See Ortiz-Sandoval, 323 F.3d at 1170.
Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1). Ground Three does not warrant federal habeas relief.
IV. GROUND FOUR DOES NOT WARRANT FEDERAL HABEAS RELIEF.
In Ground Four, Petitioner contends that his Fourth, Fifth, and Sixth Amendment rights were violated by the trial court's denial of his motion to suppress the evidence obtained during the traffic stop. (Petition at 5, Attach. at 23-29.) Petitioner filed a motion to suppress for lack of probable cause. (CT 43-53.) There was a hearing, during which Deputy Morovich and Petitioner's investigator testified, and the trial court denied the motion. (1 RT 34.)
Petitioner's challenge to the trial court's denial of his motion to suppress arises under the Fourth Amendment. In Stone v. Powell, 428 U.S. 465, 494 (1975), the United States Supreme Court held that "where 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 obtained in an unconstitutional search or seizure was introduced at his trial." In other words, "[a] Fourth Amendment claim is not cognizable in federal habeas proceedings if a petitioner has had a full and fair opportunity to litigate the claim in state court." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). In determining whether a habeas petitioner had a full and fair opportunity to litigate his claim in state court, "[t]he relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided." Id.
California provides criminal defendants with a full and fair opportunity to litigate their Fourth Amendment claims through the procedures of California Penal Code § 1538.5. See Gordon v. Duran, 895 F.2d 610, 613-14 (9th Cir. 1990). Petitioner availed himself of this opportunity when he filed his motion to suppress. Because Petitioner had a full and fair opportunity to pursue his Fourth Amendment claims in state court, he cannot pursue them in this habeas action. See Stone, 428 U.S. at 494.
Accordingly, Ground Four does not warrant federal habeas relief.
V. GROUND FIVE DOES NOT WARRANT FEDERAL HABEAS RELIEF.
In Ground Five, Petitioner contends that his due process rights were violated when he received a Three Strikes sentence based on prior convictions arising from guilty pleas, because he pleaded guilty on the understanding that the convictions would result in no more than a five year enhancement if he was convicted in the future. (Petition at 6, Attach. at 29-33.) There is no evidence before the Court regarding the plea agreements in Petitioner's prior cases. Assuming that their provisions were as represented by Petitioner, his claim is nevertheless without merit.
In general, considerations of fundamental fairness require that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262 (1971); see also Gunn v. Ignacio, 263 F.3d 965, 969 (9th Cir. 2001); United States v. Mondragon, 228 F.3d 978, 980 (9th Cir. 2000). To determine whether a plea agreement has been broken, courts consider what was "reasonably understood" by a defendant when he entered his plea of guilty. Gunn, 263 F.3d at 970. "[T]he construction of the plea agreement and the concomitant obligations flowing therefrom are, within broad bounds of reasonableness, matters of state law . . . ." Ricketts v. Adamson, 483 U.S. 1, 5 n.3 (1987).
Additionally, the longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. Hill v. Lockhart, 474 U.S. 52, 56 (1985). Absent misrepresentations or other impermissible conduct by state agents, a voluntary plea of guilty intelligently made in light of the then applicable law does not become vulnerable because later judicial decision indicate that the plea rested on a faulty premise. Brady v. United States, 397 U.S. 742, 757 (1970).
There is no indication that any promise was breached here. Contrast Davis v. Woodford, 446 F.3d 957, 961-62 (9th Cir. 2006) (because the prosecutor expressly promised that only one prior conviction would be placed in defendant's criminal record, use of eight counts as eight strikes violated the plea agreement). The Three Strikes law was enacted in 1994, after Petitioner's 1985 and 1992 guilty pleas. Petitioner's claim is premised on the view that the plea agreement locked in the sentencing law in effect at the time the agreement was made. Under California law, however, a plea agreement is "deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws . . . ." People v. Gipson, 117 Cal. App. 4th 1065, 1070 (2004) (internal quotation marks and citation omitted) (holding that Three Strikes sentence did not violate pre-1994 plea agreement); see also Davis, 446 F.3d at 962 (explaining that its conclusion that the plea agreement was breached was consistent with Gipson, because the plea bargain "did not purport to freeze the law" but included a specific promise as to how many prior convictions would be placed in defendant's criminal record). To the extent Petitioner contends that the provision in his plea agreement that in the event of a future conviction he would be subject to a five-year enhancement under Cal. Penal Code § 667 constituted a promise that he would not be subject to additional enhancements under future laws, Petitioner could not have reasonably interpreted this provision as a representation that he was forever insulated from future changes in California's sentencing laws. See Gunn, 263 F.3d at 970; see also Gipson, 117 Cal. App. 4th at 1070 ("Subsequent to the plea bargain, the Legislature amended the law; defendant committed another crime; defendant became subject to the penalty described in the amended statute.").
Moreover, Petitioner was not entitled to have the trial court advise him of the possibility that the law could change and that his convictions could be used to enhance a future sentence under a not-yet-passed law. "The possibility that the defendant will be convicted of another offense in the future and will receive an enhanced sentence based on an instant conviction is not a direct consequence of a guilty plea," and a defendant's plea is voluntary even if he is not advised of such collateral consequences. United States v. Brownlie, 915 F.2d 527, 528 (9th Cir. 1990); see also People v. Crosby, 3 Cal. App. 4th 1352, 1354-55 (1992) (possibility of enhanced punishment in case of a future conviction is a collateral consequence of which a defendant need not be advised in connection with a valid guilty plea).
For these reasons, Petitioner's Three Strikes sentence does not violate his prior plea agreements and the use of his 1985 and 1992 prior convictions as "strikes" did not violate due process. Accordingly, the state court's rejection of this claim was not contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1). Ground Five, therefore, does not warrant federal habeas relief.
VI. GROUND SIX DOES NOT WARRANT FEDERAL HABEAS RELIEF.
In Ground Six, Petitioner contends that his Three Strikes sentence is grossly disproportionate to his crimes, in violation of the Cruel and Unusual Clause of the Eighth Amendment. (Petition, Attach. at 33-38.)
As a general matter, a criminal sentence that is not proportionate to the conviction offense may violate the Eighth Amendment. Solem v. Helm, 463 U.S. 277, 284 (1983) (sentence of life imprisonment without possibility of parole for seventh nonviolent felony violated Eighth Amendment). But outside the context of capital punishment, successful challenges to the proportionality of particular sentences are "exceedingly rare." Id. at 289-90 (quoting Rummel v. Estelle, 445 U.S. 263, 272 (1980)). "The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are 'grossly disproportionate' to the crime." Ewing v. California, 538 U.S. 11, 23 (2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)). If "a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality," the reviewing court should compare the sentence with sentences imposed on other criminals in the same jurisdiction and for the same crime in other jurisdictions. Harmelin, 501 U.S. at 1005. If a comparison of the crime and the sentence does not give rise to an inference of gross disproportionality, a comparative analysis is unnecessary. Id.
There can be no inference of gross disproportionality here. In Rummel, the Supreme Court upheld an indeterminate life sentence for a defendant with two prior serious felony convictions who obtained $120.75 by false pretenses. Rummel, 445 U.S. at 266, 285. In Harmelin, the Supreme Court did not view as disproportionate a sentence of life without the possibility of parole for a first-time offense of possession of 672 grams of cocaine. Harmelin, 501 U.S. at 996. In Ewing, the Supreme Court upheld a Three Strikes sentence of 25 years to life for a defendant convicted of grand theft for stealing three golf clubs priced at $400 each, where the defendant had four prior "strike" convictions. Ewing, 538 U.S. at 19, 28-31. In Andrade, the Supreme Court upheld a Three Strikes sentence of two consecutive terms of 25 years to life for two counts of petty theft with a prior conviction involving $153.54 of videotapes, where the defendant had three prior "strike" convictions. Andrade, 538 U.S. at 66-68, 77. Petitioner had nine "strike" convictions, and was convicted of possession and transportation of heroin with intent to sell while armed with a loaded revolver, which as an ex-felon he could not legally possess. If the facts of Rummel, Harmelin, Ewing, and Andrade fell short of the "exceedingly rare" and "extreme" situation where a sentence is grossly disproportionate to the crime, then Petitioner's sentence cannot meet that exacting standard. Under applicable Supreme Court precedent, its length is within the broad discretion the Constitution allows legislatures to fashion appropriate punishments. See Andrade, 538 U.S. at 76.
Accordingly, the state court's rejection of Petitioner's Eighth Amendment claim was not contrary to, or an unreasonable application of, clearly established federal law as set forth by the United States Supreme Court. 28 U.S.C. § 2254(d)(1). Ground Six does not warrant federal habeas relief.
VII. GROUND SEVEN DOES NOT WARRANT FEDERAL HABEAS RELIEF.
In Ground Seven, Petitioner contends that trial counsel was ineffective, in violation of the Sixth Amendment, because she failed to prepare adequately for trial. (Petition, Attach. at 38-40.) In his attached declaration, Petitioner sets forth the following instances of deficient representation: (1) trial counsel did not file a Pitchess*fn6 motion; (2) she did not investigate the ownership history of the car in which the drugs and gun were found; (3) she did not ask the arresting officer why he searched the engine compartment; (4) she did not investigate possible legitimate sources for the money Petitioner had with him; (5) she did not investigate the inhabitants of the house he visited prior to his arrest to corroborate his claim that he was there for a legitimate purpose; (6) she did not interview Maria and Jose Lopez, although Petitioner told her that Maria Lopez had admitted placing the drugs and gun in his car; (7) she did not call a forensic witness to testify about a fingerprint analysis favorable to the defense; (8) she rushed to trial, giving Petitioner only a two-day notice of the trial date; (9) she met with Petitioner at the jail only twice and did not adequately communicate with him about trial preparation and tactics; and (10) after Petitioner was convicted, she told him that he was "fucking guilty," and that she had discussed his case with another inmate, who had told her that Petitioner was guilty. (Petition, Declaration of Steven Bella Perez, dated November 2, 2009 ("Perez Decl.") ¶¶ 4-13.) In his Traverse, Petitioner also complains that trial counsel did not call an expert witness to testify about false confessions and did not call Deputy Rico to testify that Petitioner never worked for him as an informant. (Traverse at 16, 17.)
After his conviction, Petitioner successfully moved to substitute
counsel pursuant to People v. Marsden, 2 Cal.3d 118 (1970), and his
new counsel filed a motion for a new trial on the ground that trial
counsel rendered ineffective assistance. (CT 172, 184-93.) Trial
counsel testified at the hearing on the motion, which was held on
November 30, 2007, more than a year after the trial.*fn7
(2 RT 443, 447-474.) The trial court denied the motion, but
specifically ruled that the denial did not foreclose Petitioner from
seeking state court post-conviction relief based on newly discovered
evidence, for instance if Maria Lopez was found and admitted that the
drugs were hers. (2 RT 482.)
A. Failure to File Pitchess Motion
In Pitchess, 11 Cal.3d at 537-38, the California Supreme Court held that, under certain circumstances, criminal defendants are entitled to discovery of information in a law enforcement officer's personnel file that can assist their defense. Motions for discovery of police personnel files are called "Pitchess motions." The defendant must first describe the information sought and show good cause for disclosure, i.e., a specific factual scenario which establishes a plausible factual foundation for the allegations of officer misconduct. California Highway Patrol v. Superior Court, 84 Cal. App. 4th 1010, 1020 (2000). If the trial court finds good cause, it screens the requested records in camera for relevance. Id.; see Cal. Penal Code §§ 832.7, 832.8; Cal. Evid. Code §§ 1043--1045.
At the hearing on a motion for a new trial, trial counsel testified that she did not think a Pitchess motion seeking Deputy Morovich's personnel records would be meritorious because she did not think the officer was lying about having seen that Petitioner's car had no license plate -- she had re-enacted the scenario with her investigator and found that the license plate or lack of it was generally visible -- and in any event Petitioner did not dispute that his car had no license plate. (2 RT 457-58.) The trial court ruled that trial counsel was not ineffective because Petitioner had not shown any basis for a Pitchess motion to be filed in good faith. (2 RT 480.)
Petitioner contends that trial counsel should have filed a Pitchess motion based on information that Deputy Morovich had a history of harassing minorities and conducting traffic stops without probable cause. (Perez Decl. ¶ 4.) These unsubstantiated assertions are utterly conclusory and do not set forth a factual scenario constituting good cause for disclosure. See Warrick v. Superior Court, 35 Cal.4th 1011, 1024 (2005) (to constitute good cause, counsel's declaration in support of Pitchess motion must show how records will support defense to pending charges). Absent a showing that a Pitchess motion would have been meritorious, counsel did not perform deficiently by failing to file it and Petitioner has not shown prejudice. See Strickland, 466 U.S. at 687, 694.
B. Failure to Investigate
Defense counsel has "a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. What investigation decisions are reasonable, however, depends in large part on information supplied by the defendant. Id. "[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Id. Thus, "inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions." Id.
Moreover, to establish prejudice based on failure to investigate, there must be evidence showing what significant and favorable evidence an adequate investigation would have yielded. See Hendricks v. Calderon, 70 F.3d 1032, 1042 (9th Cir. 1995); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994); see generally Mickey v. Ayers, 606 F.3d 1223, 1236--37 (9th Cir. 2010), cert. denied, 132 S. Ct. 419 (2011) ("[W]ith respect to defective investigations, the test for prejudice is whether the noninvestigated evidence was powerful enough to establish a probability that a reasonable attorney would decide to present it and a probability that such presentation might undermine the jury verdict.").
Petitioner contends that trial counsel failed to investigate the ownership history of the Firebird to explain the presence of drugs in the car. (Perez Decl. ¶ 5.) The car was registered to Luis Gonzales of Thermal, California. (1 RT 83-84.) Trial counsel testified that she and her investigator obtained a D.M.V. history of the car. (2 RT 461.) Petitioner initially told her that he had borrowed the car from a man called Daniel Gonzalez in Blythe; later he told her that he had bought the car from a man called Daniel whose last name or address he did not know. (2 RT 461-62, 464.) She did not try to contact Luis Gonzalez, whose name was on the pink slip, because Petitioner told her and her investigator that he did not know who Luis Gonzalez was; it was only during the trial that he told her that he had learned that Luis Gonzalez was Daniel's cousin. (2 RT 465.) At trial, Deputy Morovich testified that Petitioner told him that he got the car and heroin from two brothers in Thermal and was going to sell the heroin to make money for his father's funeral, while Petitioner testified that Daniel Gonzales in Thermal had sold the car to him and he was going to resell it. (1 RT 85-86, 117; 2 RT 278-83.)
Petitioner has not shown prejudice. Petitioner admitted knowledge of the heroin and gun to Deputy Morovich and told him that he got the car and the heroin from the same source. (1 RT 85-86, 117.) Thus, evidence linking Luis Gonzalez and his car to drugs would not have exculpated Petitioner. There is no reasonable likelihood that further investigation of the ownership of the car would have yielded helpful evidence, or made a difference to the result of the trial. Strickland 466 U.S. at 694.
Petitioner complains that trial counsel did not investigate possible legitimate sources of the cash he had with him or subpoena his bank records, in order to rebut the prosecution theory that the money was from drug sales. (Perez Decl. ¶ 7.) Significantly, Petitioner does not state in his declaration where he got the money or what he told trial counsel about its source. At the hearing on the motion for a new trial, trial counsel was asked whether she had contacted Petitioner's employer to explain the money Petitioner had with him. She responded that she had not, because Petitioner had originally told her that he had done some work for a neighbor and had recently cashed a large check at the Bank of America. (2 RT 462.) When she pressed him for the name of the neighbor or the location of the Bank of America branch, he told her that the money did not come from a single source and that he had been saving it up from doing odd jobs. (Id.) At that point, trial counsel decided not to pursue the matter further. (Id.) Given Petitioner's changing stories, trial counsel reasonably decided that further investigation would be fruitless, if not harmful. See Strickland, 466 U.S. at 691. She presented testimony from Petitioner's fiancee that on the day of the arrest he had taken with him $1,500 in cash, collected in part from his family, to make a deposit on his father's funeral. (1 RT 218-19, 234.) In any event, Petitioner has not shown that further investigation would have yielded helpful information; in fact, he pointedly avoids explaining where he got the money. Thus, he has not shown prejudice. Strickland, 466 U.S. at 694.
Petitioner contends that trial counsel failed to investigate the inhabitants of the house he had visited just before his arrest in order to corroborate his claim that he was there for a legitimate purpose. (Perez Decl. ¶ 8.) At the hearing on the motion for a new trial, trial counsel testified that she and her investigator unsuccessfully attempted to contact the owner of the house, which had gone into foreclosure. They discovered that the woman living in the house was in jail and they did not have her last name because the house actually belonged to another family member. (2 RT 450.) In any case, Petitioner has not come forth with evidence that the inhabitants of the house would have corroborated his story that he was there to sell his car. Thus, Petitioner has not shown prejudice. See Dows v. Wood, 211 F.3d 480, 486 (9th Cir. 2000) (rejecting ineffective assistance claim based on failure to interview or call alibi witness when no declaration from witness that would have provided helpful testimony).
In a related claim, Petitioner contends that trial counsel refused to interview Maria and Joe Lopez, who rented a room at the house. (Perez Decl. ¶ 9.) Petitioner contends that Maria Lopez put the drugs and gun in the engine compartment without his knowledge, and had confessed to doing so. (Perez Decl. ¶ 9; Traverse at 16.) He has attached to the Petition a letter dated August 1, 2007, from Lupe Navarro -- another witness whom Petitioner contends trial counsel should have interviewed -- stating that she heard Maria Lopez say that she was sorry that she put the drugs and gun in the engine, and that she would testify for Petitioner and admit that she put the drugs and gun there. (Petition, Exhs.) Petitioner asserts that, two weeks after his arrest, Maria and Joe Lopez were arrested for drug offenses and pleaded guilty. (Perez Decl. ¶ 9; Traverse at 16.)
Trial counsel testified that Petitioner had told her that "Mary Lopez" was looking at his car while he was speaking to someone else by the front door, and that he thought she might have placed the drugs under the hood. (2 RT 451.) After he told her that Lopez was in custody, she tried to find Lopez but could not locate a current criminal case against "Mary Lopez" or a Riverside County jail inmate by that name. (Id. at 452.) Petitioner did not tell her that Lopez's name was actually Maria, though apparently her investigator knew the correct name. (Id. at 453-54.) She did not think that Joe Lopez would have useful information, and Petitioner never told her about Lupe Navarro. (Id. at 455.) In making its ruling, the trial court noted that there was no evidence before it that Maria Lopez would actually testify that she put the drugs in the car, and that Petitioner could attempt to obtain such evidence for future attacks on his conviction. (Id. at 482.)
Petitioner, however, has not submitted a declaration by Maria Lopez stating that she would have testified that she placed the drugs and gun in the Firebird engine. Nor has he submitted a declaration by Joe Lopez or Lupe Navarro or any person who saw Maria Lopez place the drugs and gun in the engine or, for that matter , explained how she was able to do so without Petitioner noticing. Thus, even assuming that trial counsel's attempts to locate Lopez were deficient, Petitioner has not shown prejudice. See Dows, 211 F.3d at 486.
C. Inadequate Cross-Examination; Failure to Call Witnesses
Petitioner contends that trial counsel failed to ask the arresting officer why he searched the engine compartment when the basis for the traffic stop was traffic violations. (Perez Decl. ¶ 6.) By the time Deputy Morovich searched the engine, he had ascertained that Petitioner was driving with a suspended driver's license and had a suspiciously large amount of cash on him. (1 RT 72-74.) There was probable cause for an inventory search of the car, and Petitioner does not explain how this line of inquiry would have benefited him.
He has shown neither deficient performance nor prejudice. Strickland, 466 U.S. at 687, 694.
Petitioner complains that trial counsel did not call a forensic technician to testify regarding a fingerprint analysis that was favorable to the defense. (Perez Decl. ¶ 10.) The parties stipulated at trial that the forensic technician who examined the gun, bullets, bags with heroin, and drug paraphernalia for fingerprints would testify that she was unable to lift any comparable latent prints from the items. (1 RT 206.) At the hearing on the motion for a new trial, trial counsel testified that she did not call the forensic technician to the stand because the fingerprints lifted were non-comparable. (2 RT 460.) She also testified that she entered into the stipulation in order to preclude the forensic technician from saying on the stand that the fact that the fingerprints were non-comparable did not rule out the possibility that they were Petitioner's. (Id.) At closing argument, trial counsel stressed that there were no fingerprints linking Petitioner to the drugs and gun. (2 RT 372.) Thus, trial counsel had a valid strategic reason for stipulating to the results rather than calling the forensic technician to the stand. Petitioner has shown neither deficient performance nor prejudice. Strickland, 466 U.S. at 687, 694.
Petitioner contends that trial counsel was ineffective because she did not call an expert to testify regarding false confessions. (Traverse at 16.) Petitioner has not shown prejudice from counsel's failure to contact an expert because he has not provided a declaration setting forth the substance of the expert's expected testimony. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir.1997) ("Speculation about what an expert could have said is not enough to establish prejudice.").
In his Traverse, Petitioner contends that trial counsel should have called Deputy Rico to the stand, because Rico would have testified that Petitioner never worked as an informant for him, thus impeaching Deputy Morovich, who testified that Petitioner had told him that he worked as an informant for Rico. (Traverse at 17.) At trial counsel's request, Morovich's testimony regarding Rico was struck and the jury was instructed to disregard it. (RT 87-89.) While the prosecutor later elicited testimony that Morovich contacted Rico (1 RT 91), there was no testimony before the jury that Petitioner worked for Rico as an informant. Thus, there was nothing to impeach and no ineffective assistance.
D. "Rush to Trial"; Inadequate Communication; Discussing Case with Another Client
Petitioner complains that trial counsel rushed to trial and provided him with only a two-day notice of the trial date. (Perez Decl. ¶ 11.) The felony complaint against Petitioner was filed on November 21, 2005, and trial commenced on September 18, 2006. (CT 1, 72.) This was a straightforward case and ten months hardly constituted a "rush to trial." Moreover, trial tactics, including the determination of whether the defense is ready for trial, are committed to the discretion of counsel. See United States v. Corona-Garcia, 210 F.3d 973, 977n.2 (9th Cir. 2000). The Court also notes that Petitioner did not testify until September 21, 2006, three days after the trial started. (CT 85.)
Petitioner also contends that trial counsel did not adequately communicate with him regarding trial preparation and tactics. (Perez Decl. ¶ 12.) He declares that she only visited him in jail twice for short periods, and that she told him that she was too tired to discuss the case and that he should just trust her. (Id.) At the hearing, trial counsel testified that she went to the jail twice before the motion to suppress because Petitioner was giving her different information each time. (2 RT 455.) She also saw Petitioner the Friday before trial started and told him that she was too tired to talk because she had just finished trial, but that she would return during the weekend. (Id. at 455-56.) She returned on Saturday and spent several hours at the jail with Petitioner. (Id.) She denied that she ever told him that he should just trust her. (Id. at 456.)
"Adequate consultation between attorney and client is an essential element of competent representation of a criminal defendant." Summerlin v. Schriro, 427 F.3d 623, 633 (9th Cir. 2005) (quoting United States v. Tucker, 716 F.2d 576, 581 (9th Cir. 1983)). "While the amount of consultation required will depend on the facts of each case, the consultation should be sufficient to determine all legally relevant information known to the defendant." Tucker, 716 F.2d at 581-82. "[T]here is no established minimum number of meetings between counsel and client prior to trial necessary to prepare an attorney to provide effective assistance of counsel." Moody v. Polk, 408 F.3d 141, 148 (4th Cir. 2005) (internal quotation marks and citation omitted). Petitioner does not specify what material information he was unable to divulge to trial counsel, nor does he set forth any facts that would support a finding that trial counsel's failure to meet with him more often negatively impacted the outcome of his trial. Thus, Petitioner has not shown that he was prejudiced by the purportedly inadequate consultation. See United States v. Mealy, 851 F.2d 890, 908-09 (7th Cir. 1988) ("[Defendant] fails to explain how the lack of consultation affected the outcome of the trial. [Defendant's] conclusory allegations regarding the time spent in consultation with his trial counsel do not show that he was prejudiced at trial, and thus his ineffective assistance of counsel claim must fail.").
Finally, Petitioner complains that after his conviction, trial counsel told him, using profanity, that he was guilty, and said that another of her clients, who was an inmate at the same jail, had told her so. (Perez Decl. ¶ 13.) At the hearing on a motion for a new trial, trial counsel denied that she had told Petitioner that she knew that he was guilty, or that she had discussed his case with another client. (2 RT 457.) She testified that she had told Petitioner not to discuss his case with other inmates, because she was approached by an inmate who told her that she needed to stop Petitioner from talking because he had overheard him boasting that he had almost gotten away with the crime. (2 RT 457-558.) Regardless, trial counsel's actions cannot be a basis for an ineffective assistance claim because Petitioner had already been convicted and she did not represent Petitioner during his post-trial motions or at sentencing.
Accordingly, the state court's rejection of Petitioner's ineffective assistance claims was not contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1). Ground Seven does not warrant federal habeas relief.
VIII. PETITIONER IS NOT ENTITLED TO AN EVIDENTIARY HEARING.
Petitioner seeks an evidentiary hearing. (Traverse at 18.) The Supreme Court has held that federal habeas review under 28 U.S.C. § 2254(d)(1) "is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1398 (2011). Moreover, an evidentiary hearing is not warranted where, as here, "the record refutes the applicant's factual allegations or otherwise precludes habeas relief." Schriro v. Landrigan, 550 U.S. 465, 474 (2007). Accordingly, Petitioner's request for an evidentiary hearing is denied.
Petitioner is not entitled to relief on the claims in his Petition.
Accordingly, IT IS HEREBY ORDERED that the Petition is denied, and Judgment shall be entered dismissing this action with prejudice.
John E. McDermott