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Collier v. Hartey

United States District Court, Ninth Circuit

May 30, 2013

HENRY E. COLLIER, Petitioner,
v.
JAMES HARTEY, Warden, Respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND CERTIFICATE OF APPEALABILITY

JEFFREY S. WHITE, District Judge.

Petitioner filed a pro se petition for a writ of habeas corpus under 28 U.S.C § 2254. Respondent was ordered to show cause why the writ should not be granted based upon three claims. Respondent filed an answer with a supporting memorandum of points and authorities. Petitioner filed a traverse. For the reasons set forth below, the petition is DENIED.

BACKGROUND

On April 7, 2008, Petitioner entered a plea agreement in two cases, People v. Collier, Monterey County Superior Court Case No. SS081031A and SS073412A. In SS081031A, Petitioner pled no contest to attempting to dissuade a witness in violation of Penal Code § 136.1(a)(2) and was sentenced to one-third of the middle term, or eight months, doubled to 16 months for a strike allegation, plus two years for two prior prison term allegations. Accordingly, the term of his sentence totaled three years and four months. In SS073412A, Petitioner pled no contest to furnishing marijuana to a minor in violation of Health and Safety Code § 11361(b) and was sentenced to the upper term of five years, doubled to 10 years for a strike allegation. Petitioner's combined sentence totaled a term of 13 years and four months in state prison.

On January 27, 2010, the Legal Processing Unit of the California Department of Corrections and Rehabilitation notified the court of an error in the calculation of Petitioner's sentence in Case No. SS081031A. Pursuant to Penal Code § 1170.15, the court should have sentenced Petitioner to the full middle term of two years, doubled to four years for the strike allegation. Because this correction would have increased Petitioner's total prison term to 16 years, the Court adjusted Petitioner's sentence in both cases on October 22, 2010, to a new total term of 13 years in state prison, which is four months less than the original sentence.

Petitioner did not file a direct appeal, but he filed numerous habeas petitions in the California Court of Appeal and the California Supreme Court. All were denied. On April 10, 2012, Petitioner filed the instant petition. Although he previously filed a habeas petition in this court, the instant petition is not barred as second or successive because Petitioner is challenging a judgment that was entered after the filing of his first petition.

STANDARD OF REVIEW

A district court may not grant a petition for a writ of habeas corpus with respect to any claim adjudicated on the merits in state court unless the state court's 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). The first prong applies to questions of law and to mixed questions of law and fact, Williams v. Taylor, 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual determinations. Miller El v. Cockrell, 537 U.S. 322, 340 (2003).

Under the first clause of § 2254(d)(1), a state court decision will be deemed "contrary to" Supreme Court authority if "the state court arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decide[d] a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. Under the second clause of § 2254(d)(1), a state court decision will be deemed "an unreasonable application of" Supreme Court authority if it correctly identifie[d] the governing legal principle from the Supreme Court's decisions but "unreasonably applie[d] that principle to the facts of the prisoner's case." Id. at 413. Lastly, a state court decision that is "based on a factual determination will not be overturned [under § 2254(d)(2)] unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller El, 537 U.S. 322 at 340.

ANALYSIS

As grounds for federal habeas relief, Petitioner claims that (1) he suffered ineffective assistance of counsel prior to and at the moment he accepted his plea bargain; (2) his Sixth Amendment right to counsel was violated when the trial court wrongly denied his motions to represent himself and to substitute counsel; and (3) his sentence is "illegal."[1]

I. Ineffective Assistance of Counsel

Petitioner claims that he received ineffective assistance of counsel. (Pet. at 4.) A defendant who pleads guilty cannot later raise in habeas corpus proceedings independent claims relating to the deprivation of constitutional rights that occurred before his plea. Haring v. Prosise, 462 U.S. 306, 319-20 (1983). Rather, the only claims such a defendant may assert are that his guilty plea was not knowing and voluntary because of counsel's ineffectiveness in connection with the advice to render such a plea. See id.; Hill v. Lockhart, 474 U.S. 52, 57-59 (1985).

Petitioner's claim is written in a somewhat confusing and jumbled manner and thus it is not clear whether he means to assert that counsel was ineffective on matters that occurred prior to and were not directly related to the plea negotiations and decision to plead guilty plea. To ...


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