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Jorge Abel Cortez v. R. Grounds

October 31, 2012


The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court


Jorge Abel Cortez ("Petitioner"), a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on September 7, 2011. (Doc. No. 1.) Respondent filed an answer to the petition opposing relief on December 2, 2011. (Doc. Nos. 7, 8.) The magistrate judge filed a Report and Recommendation on August 14, 2012, recommending that the petition be denied. (Doc. No.11.) Petitioner filed an objection to the Report and Recommendation on September 6, 2012. (Doc. Nos. 14, 15.)


Petitioner was arrested and charged with two counts of lewd and lascivious acts with his 13 year old male cousin. (Resp. Lodgment No. 1.) The District Attorney offered Petitioner a plea agreement of 12 years and 8 months while he was represented by a public defender. (Resp. Lodgment No. 2, Vol 1 at 1-4.) Petitioner was facing the possibility of life in prison but he did not accept that plea agreement. (Id.) Petitioner then hired Mr. Raphael Acosta, who discovered a Miranda violation that had allegedly occurred during Petitioner's interrogation. (Id. at 5-8, Resp. Lodgment No. 2, Vol. 4.) Counsel also negotiated for a stipulated ten year sentence and the dismissal of six of the eight counts charged against Petitioner. (Id.) On May 5, 2009, Petitioner, aided by a Spanish interpreter, pled guilty to both counts while represented by counsel. (Doc. No. 1, Ex. A, Resp. Lodgment No. 2, Vol. 2.) At the change of plea hearing, the court asked Petitioner if he was aware of the legal effects of his plea, and found that his plea was knowing, intelligent, and voluntary. (Id.)

On August 7, 2009, Petitioner filed motion to withdraw his guilty plea and have the original charges reinstated. (Resp. Lodgment No. 1, at 30.) After hearing testimony by both Petitioner and his counsel, the trial court held that for each count Petitioner had "pled guilty, waived his rights, and understood the nature of the offense," and thus denied Petitioner's motion to withdraw his guilty plea. (Resp. Lodgment No. 2, Vol. 4 at 56.) The California Court of Appeal affirmed the trial court's judgment and his petition for review was denied by the California Supreme Court. (Resp. Lodgment No. 5; Resp Lodgment No. 8.)

On September 7, 2011, Petitioner filed this petition for habeas corpus. (Doc. No. 1.) Petitioner first argues that his guilty plea was not valid because it did not comport with constitutional standards. (Id.) He also argues that he received ineffective assistance of counsel. (Id.) Finally, he argues that his statements to the detective were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1996). (Id.)


I. Standard of Review

A federal court reviews an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State Courtonly on the ground that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs the review of the petition in this case. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997); 28 U.S.C. 2254(d). Section 2254(d) bars a federal court from relitigating any claim "adjudicated on the merits" in state court unless the result "was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States" or "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)(1)-(2). "[R]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). AEDPA imposes a "'highly deferential standard for evaluating state-court rulings,'"requiring that "state court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002), (quoting Lindh, 521 U.S. at 333 n.7).

Under § 2254(d)(1), a decision is "contrary to" clearly established precedents if it "applies a rule that contradicts the governing law set forth in our cases," or if it "confronts a set of facts that are materially indistinguishable from" a Supreme Court decision but reaches a different result. Early v. Packer, 537 U.S. 3, 8 (2002).Under 2254(d)(2), a decision is "an unreasonable application of clearly established federal law"if the state court "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Williams v. Taylor, 529 U.S. 362, 407-08. The decision must be more than just "incorrect or erroneous;" it "must [be] objectively unreasonable." Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). The petitioner must show that "'there was no reasonable basis' for the state high court's decision."Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 784 (2011). If there is not clearly established federal law on an issue, a state court cannot be said to have unreasonably applied the law as to that issue. See Carey v. Musladin, 549 U.S. 70, 74 (2006); Holley v. Yarborough, 568 F.3d 1091, 1098 (9th Cir. 2009); Moses v. Payne, 555 F.3d 742, 753-754 (9th Cir. 2009). These standards are applied to "the last reasoned decision" by a state court on the merits of the federal constitutional claims raised by a state prisoner seeking relief from sentence. Campbell v. Rice, 408 F.3d 1166, 1170 (9th Cir. 2005).

II. Analysis

A. Validity of Guilty Plea

Petitioner contends that his guilty plea is invalid because the state court failed to comply with the constitutional requirements of Boykin v. Alabama, 395 U.S. 238 (1969), and In re Tahl, 1 Cal. 3d 122 (1969), when it accepted his plea. (Doc No. 1.) He also erroneously claims that he was deprived the assistance of an interpreter to translate for him when he pled guilty, when the record reflects that he had an interpreter. (Id.; Resp. Lodgment No. 2, Vol. 2, at 6.)

Boykin requires that a court ensure that a person pleading guilty does so voluntarily and intelligently because a guilty plea waives several constitutional rights, such as the privilege against self incrimination, the right to a jury trial, and the right to confront witnesses against him. Boykin, 395 U.S. at 243-244.In California, the defendant must specifically ...

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