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Wysinger v. Chappel

United States District Court, Ninth Circuit

August 21, 2013

KEVIN CHAPPEL, Warden, San Quentin State Prison, Respondent.


RICHARD SEEBORG, District Judge.


This is a federal habeas corpus action filed by represented state prisoner Aaron Wysinger pursuant to 28 U.S.C. § 2254. Petitioner alleges (1) his due process rights were violated, as his plea was not knowing and voluntary, and (2) his right to effective assistance of counsel was compromised when his attorney changed course immediately prior to trial stating that, without additional funds, he would not represent petitioner going forward. As a result of these alleged violations, petitioner argues he wrongly entered a plea of no contest to two counts of vandalism and admitted to a great bodily injury enhancement and prison prior, and has been prejudiced as a result. For the following reasons, the petition will be denied.


On December 10, 2008, petitioner was charged by felony complaint in the Superior Court of California, Alameda County with violating Penal Code sections 273.5(a), corporal injury to a spouse or cohabitant; 594(a), vandalism; 245(a)(2), assault with a firearm; 12021(a)(1), felon in possession of a firearm, and a number of enhancement allegations. On September 28, 2008, petitioner was charged by felony complaint in Alameda County with violating Penal Code sections 422, criminal threats; 646.9(b), stalking, and a number of enhancement provisions in connection with a separate incident. Petitioner's preliminary hearing was held on July 13 and 14, 2009, at which the prosecution presented a number of witnesses who testified as to the different incidents upon which the charges were based. The incidents pertained to crimes allegedly committed by petitioner against Tina Bryson and Lakisha Mitchell, and a shooting in which petitioner allegedly shot into an inhabited dwelling in Hayward, California. The accounts provided by the witnesses differed, and a number of inconsistencies were elicited by defense counsel during cross-examination. An information was filed on July 22, 2009 in each of the two criminal cases, which were subsequently consolidated.

Trial was scheduled for November 3, 2009. Petitioner states he told his attorney he wanted to go to trial rather than enter a plea because he was innocent of the charges against him. Petitioner's counsel allegedly told him that, so long as petitioner or his family could pay an additional $3, 000 or $4, 000 for further investigation, they had a good chance of winning at trial. On the day trial was to commence, a prosecution witness failed to appear in court and a bench warrant issued. The next day, before the case was called, petitioner's counsel allegedly told petitioner's brothers that he would need an additional $15, 000 if petitioner wanted to go to trial. Otherwise, petitioner would have to enter a plea to the ten-year offer made by the district attorney. This offer represented a reduction from the initial offer of seventeen years. Petitioner's counsel then told petitioner they had little chance of winning at trial because they had no defense. Facing a possible sentence of forty-four years if convicted, and believing his counsel had abandoned him for trial, petitioner entered a plea of no contest.

Before entering his plea, the trial court explained each of the counts brought against petitioner to ensure he understood what he was facing should he go to trial. See Pet. Ex. C. When petitioner expressed hesitation to admit to various allegations, the court explained that petitioner was under no pressure to accept the plea offer, but that if he did not accept it, the case would proceed to trial. Specifically, the court stated, "Mr. Wysinger, you're certainly under no pressure from me to take the deal." Pet. Ex. C at 217. The court also made clear it would not approve any agreement below the ten-year term of imprisonment proposed. In response to petitioner's question, the court then clarified that a ten-year sentence would require serving at least eight and one-half years. The court then asked whether there had been other promises or threats made to petitioner in accepting the plea, or anything else said that wasn't already on the record, and petitioner responded in the negative. Petitioner confirmed he was entering his plea on a free and voluntary basis. Based on this colloquy, the trial court found petitioner understood his rights, made a knowing and intelligent waiver of those rights, and that his plea was free and voluntary. He was then sentenced to the agreed-upon term of ten years imprisonment.

On December 30, 2009, petitioner filed a timely Notice of Appeal, arguing that his right to bail had been violated, that he received ineffective assistance of counsel, and that the prosecutor engaged in vindictive prosecution and violated the plea agreement. The appellate court rejected the appeal. Petitioner then filed a petition for review in pro per in the California Supreme Court, which was denied. On July 8, 2011, petitioner filed a writ of habeas corpus in the Superior Court of California, Alameda County, alleging his plea was entered involuntarily. The writ was denied on the basis that petitioner did not diligently pursue his claim, and that even if he had done so, he failed to state a prima facie case for relief. The First District Court of Appeal denied his petition on the same grounds. On April 6, 2012, petitioner filed a petition for review in the California Supreme Court. Owing to recent Supreme Court decisions in Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (March 21, 2012) and Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (March 21, 2012), petitioner additionally included in reply the allegation that his right to effective assistance of counsel had been violated. The petition was denied on the merits.


This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only 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 petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless that adjudication: "(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). "Under the contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000).

"Under the unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409. An unreasonable application of federal law differs from an incorrect application of federal law. Harrington v. Richter, 131 S.Ct. 770, 785 (2011). Thus, habeas corpus is "not a substitute for ordinary error correction through appeal." Id. at 786. Instead, the "highly deferential standard" imposed by the statute, "demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002).


A. Voluntariness of Plea

Petitioner asserts his plea of no contest was entered against his free will, as his counsel suddenly changed his opinion as to the strength of petitioner's defense, and indicated he was unwilling to represent petitioner further. Petitioner contends that the trial court's plea colloquy could not purge the plea of its involuntariness, given facts outside the court's knowledge. Petitioner has failed to meet his burden to show, however, that the California Superior Court, ...

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