August 8, 2013
DESMOND DAVIS, Petitioner,
K. ALLISON, Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE
S. JAMES OTERO, District Judge.
Pursuant to 28 U.S.C. § 636, the Court has reviewed de novo the First Amended Petition ("FAP"), records on file, and Report and Recommendation ("R&R") of the U.S. Magistrate Judge. On July 8, 2013, after one extension of time, Petitioner filed Objections to the R&R, several of which simply reargue the FAP. Some of Petitioner's objections to the R&R, however, warrant a response.
Petitioner argues that the Magistrate Judge incorrectly found that he does not challenge the sufficiency of the evidence. (Objections at 5; see also R&R at 4 ("Because Petitioner does not challenge the sufficiency of the evidence, the Court adopts the following statement of facts from the California Court of Appeal opinion on direct appeal as a fair and accurate summary of the evidence presented at trial.").) In support, Petitioner points to arguments in his Reply that the state had "no physical evidence" and "no eyewitness identification" connecting him to the crime. (Objections at 5 (citing Reply at 5).) Claims raised for the first time in a reply are not properly before the court. Delgadillo v. Woodford , 527 F.3d 919, 930 n.4 (9th Cir. 2008). In any event, Petitioner made those arguments in an attempt to show that he would not have pleaded guilty had he known about the mandatory parole term, not to show that insufficient evidence supported his conviction. (See, e.g., Reply at 7.) Nothing indicates that Petitioner sought to raise a separate sufficiency-of-the-evidence claim (see, e.g., FAP at 5 (listing grounds for relief)), which would have made little sense given that Petitioner's conviction was the product of a no-contest plea.
To the extent Petitioner argues that given the allegedly weak evidence, he would not have pleaded guilty had he known he would be subject to lifetime parole, that argument fails because it conflicts with the following facts, as laid out in the R&R (R&R at 20-21): 10 jurors voted to convict him based on the evidence presented at trial; the trial court observed, after presiding over the trial, that the evidence against Petitioner was "strong"; and Petitioner assured the court that "knowing basically the evidence that the People have against [him], " he believed the plea to be in his best interest. (See Lodged Doc. 1, Rep.'s Tr. at 1-4, 16, 22.) Petitioner's self-serving statements are therefore insufficient to show that the state courts were unreasonable when they found that he would not have pleaded guilty had he known that he would be subject to lifetime parole. Cf. Turner v. Calderon , 281 F.3d 851, 881 (9th Cir. 2002) ("self-serving statement" insufficient to raise claim for relief).
Petitioner erroneously contends that the Magistrate Judge "ignore[d] circuit precedent that holds a mandatory parole term is a direct consequence of a guilty plea." (Objections at 7 (internal quotation marks omitted).) In fact, after correctly finding that "no holding of the Supreme Court clearly establishes that a defendant must be advised of the length of a parole term" and therefore that Petitioner was not entitled to relief (R&R at 17), see Marshall v. Rodgers , 569 U.S. ___, 133 S.Ct. 1446, 1450, 185 L.Ed.2d 540 (2013) (circuit precedent may not be used in habeas cases to "refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that this Court has not announced"), the Magistrate Judge nevertheless went on to conclude that Petitioner's claim failed even under Ninth Circuit precedent (see R&R at 14-15, 18).
Petitioner also contends that the Magistrate Judge's "standard of law for showing prejudice, requiring a petitioner show that he would not have pleaded guilty, is more onerous than the Supreme Court's standard, requiring only a reasonable probability that he would not have entered the plea." (Objections at 6-7 (citations, internal quotation marks, alterations, and some punctuation omitted).) Petitioner relies on United States v. Dominguez Benitez , 542 U.S. 74, 83, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004), but that case dealt with what showing must be made on direct review to obtain relief for an "unpreserved" violation of Federal Rule of Criminal Procedure 11; it did not set forth the standard to be applied on habeas review when the state court's decision is entitled to AEDPA deference. See id. at 76; see also id. at 83 (emphasizing that "the violation claimed was of Rule 11, not of due process"). Indeed, throughout his Objections Petitioner confuses the standards applicable to AEDPA review with review in other circumstances. (See, e.g., Objections at 4-5, 10-11, 14.) In any event, for the reasons outlined in the R&R (see R&R at 18-21), Petitioner has failed to establish any probability - reasonable or otherwise - that he would not have entered a plea and would have gone to trial had he known of the mandatory lifetime parole term.
Petitioner's challenge to the Magistrate Judge's findings regarding the substance of his motion to set aside the plea fails because it is based on a misrepresentation of the evidence. (Objections at 10.) In finding that the state courts did not unreasonably err in determining that the lifetime-parole term was not a key factor in Petitioner's decision to enter a plea, the Magistrate Judge noted that Petitioner claimed to have learned that he would be subject to lifetime parole before hiring new counsel to move to recall the judgment and set aside the plea, but he nevertheless "failed to even raise that issue in his motion to the trial court." (R&R at 19.) Petitioner contends that he did, in fact, raise that issue, because his motion "asserted that he was not advised of the consequences of his plea" and "[t]he record demonstrates that the only consequence of his plea that he was not advised of was the life-time period of parole." (Objections at 10.) But as discussed in the R&R (R&R at 19-20), Petitioner's motion actually stated that he "did not understand the consequences of [the] plea" because he "believed that he would be leaving prison in 15yrs" and "did not know he was pleading guilty and being sentenced to two life terms" in prison (Supp. Lodged Doc. 1, Clerk's Tr. at 232).
Petitioner also challenges the Magistrate Judge's rejection of his argument that ground two of the FAP was "exempt from exhaustion" because the state courts would find it procedurally barred under In re Clark , 5 Cal.4th 750, 786, 797, 21 Cal.Rptr.2d 509, 533, 539 (1993) (holding habeas petition filed after substantial, unjustified delay should be dismissed), and Ex Parte Dixon , 41 Cal.2d 756, 759, 264 P.2d 513, 515 (1953) (holding that, in general, petitioners may not raise habeas claims that "could have been, but were not, raised upon a timely appeal from a judgment of conviction"). (Objections at 14-15.) If it were "clear" that Petitioner's claim would be procedurally barred if presented to the state court, the exhaustion requirement would be satisfied. See Castille v. Peoples , 489 U.S. 346, 351-52, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989); Johnson v. Zenon , 88 F.3d 828, 831 (9th Cir. 1996). Here, however, there remains a possibility that the California Supreme Court would consider ground two because the procedural bars imposed under Clark and Dixon are permissive, not mandatory. See Walker v. Martin , 562 U.S. ___, 131 S.Ct. 1120, 1128, 179 L.Ed.2d 62 (2011) (noting that California's timeliness rule for filing habeas petition is "discretionary"); Clark , 5 Cal.4th at 797 (holding that although "it should not be inflexible, " "general rule" is that "absent justification, " untimely petitions will be sununarily denied); Dixon , 41 Cal.2d at 759 (recognizing that claims may not be procedurally barred for failure to raise them on direct appeal if "special circumstances" exist "constituting an excuse"); see also In re Robbins , 18 Cal.4th 770, 805-13, 77 Cal.Rptr.2d 153, 176-82 (1998) (recognizing that substantially delayed claim can be considered on merits if petitioner demonstrates "good cause" for delay or if exception applies); In re Harris , 5 Cal.4th 813, 829-41, 21 Cal.Rptr.2d 373, 380-89 (1993) (recognizing exceptions to Dixon rule). Because it is uncertain whether the California Supreme Court would entertain a petition raising ground two, that claim is unexhausted. See Johnson v. Lewis , 929 F.2d 460, 464 (9th Cir. 1991) (finding claim unexhausted because "[a]n Arizona court may decide that [state law] does not bar consideration of [petitioner's] unexhausted due process claim and proceed to grant him the relief he has requested"); Carrillo v. Gonzales, No. CV 09-0047-JSL (JEM), 2010 WL 466025, at *5 (C.D. Cal. Feb. 5, 2010) ("Even if it is uncertain whether the California Supreme Court will entertain a renewed petition raising Ground Five, the claim is still unexhausted.").
Indeed, as noted in the R&R (R&R at 25), here the California Supreme Court could potentially entertain ground two because Petitioner asserts that he had "cause" for not raising it on direct review: that he faced numerous obstacles in getting his appellate lawyer to raise the claims he wanted (FAP at 5(d)-5(f)). Although Petitioner argues without explanation that his justification for failing to raise his claim on direct review does not satisfy an "exception" to the relevant procedural bars (Objections at 14-15), the California state courts may appropriately make that determination, not this Court, see Cassett v. Stewart , 406 F.3d 614, 622-23 (9th Cir. 2005) (noting that Arizona state courts are better suited to determine whether claim is waived, and thus procedurally defaulted, because determination "may require both a fact-intensive inquiry, and an application of Arizona's complex case law on waiver"); see generally Taylor v. Maddox , 366 F.3d 992, 999 (9th Cir. 2004) ("Principles of comity and federalism counsel against substituting our judgment for that of the state courts....").
Finally, Petitioner misses the mark in arguing that the Magistrate Judge should have given him an opportunity to respond before observing, in a footnote, that "even if" ground two were exhausted because a procedural bar prevented Petitioner from presenting it to the state courts, it would "likely" be subject to procedural default. (Objections at 16 (citing Boyd v. Thompson , 147 F.3d 1124, 1128 (9th Cir. 1998) ("A habeas court must give a petitioner notice of the procedural default and an opportunity to respond to the argument for dismissal.")); see also R&R at 26 n.6.) The Magistrate Judge did not determine that ground two was procedurally defaulted; rather, she clearly and appropriately determined that it was unexhausted, and Petitioner thereafter dismissed it. (See R&R at 26; see also Sept. 4, 2012 Minute Order at 2 ("because grounds two and three of the FAP are unexhausted, the FAP remains a mixed' petition subject to dismissal").) Moreover, Petitioner had ample opportunity to respond to the argument that ground two was unexhausted, and in fact he did so on three occasions. (See Apr. 27, 2012 Order to Show Cause (notifying Petitioner that claim two appeared to be unexhausted and ordering him to respond); see generally Answer to Order to Show Cause Why Action Should Not Be Dismissed Without Prejudice; Mot. for New Trial; Objections.)
Having reviewed de novo those portions of the R&R to which objections were filed, the Court accepts the findings and recommendations of the Magistrate Judge.
IT THEREFORE IS ORDERED that (1) the Petition is denied without leave to amend, (2) Petitioner's motion for reconsideration is denied, and (3) Judgment be entered dismissing this action with prejudice.