Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gussner v. Gonzalez

United States District Court, N.D. California, San Jose Division

June 10, 2014

DION GUSSNER, Petitioner,
TERRI GONZALEZ, Warden of the California Men's Colony, California Department of Corrections Respondent.


LUCY H. KOH, District Judge.

Petitioner Dion Gussner ("Petitioner"), a state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 asking this Court to vacate his sentence on the grounds that his guilty plea was induced by ineffective assistance of counsel. ECF No. 1. At the same time he filed his habeas corpus petition, Petitioner also filed a Memorandum of Points and Authorities in support of the petition. ECF No. 2 (hereinafter, "Memo"). The Court ordered Respondent to show cause why the petition should not be granted. ECF No. 8. Respondent has filed an answer addressing the merits of the petition. ECF No. 11 (hereinafter, "Answer"). Petitioner has filed a traverse. ECF No. 29 (hereinafter, "Traverse"). Petitioner has also filed a request for an evidentiary hearing. ECF No. 31. Respondent filed an Opposition, ECF No. 34, and Petitioner filed a Reply, ECF No. 36.

Having reviewed the briefs, the relevant law, and the underlying record, the Court concludes that Petitioner is not entitled to habeas corpus relief and DENIES the petition. The Court also DENIES Petitioner's request for an evidentiary hearing.


A. Procedural History[1]

On August 9, 2009, Petitioner was charged by complaint in Monterey County Superior Court with felony gross vehicular manslaughter while intoxicated under California Penal Code § 191.5(a) in a case titled People v. Dion Gussner, No. H27066. The complaint also alleged penalty enhancements for great bodily injury under California Penal Code § 12022.7(b) and for multiple victims under California Vehicle Code § 23558. Res. Ex. H at 468-69. On August 18, 2009, Petitioner pleaded guilty to the offense, admitted both penalty enhancements, and agreed to the maximum allowable sentence of 16 years. Pet. Ex. J at 346-49. Petitioner was sentenced to 16 years in prison on September 30, 2009, and did not appeal. Res. Ex. M at 16.

On August 6, 2010, Petitioner filed a petition for a writ of habeas corpus in Monterey County Superior Court in a case titled In re Dion Gussner on Habeas Corpus, No. HC7066. Res. Ex. H at 876. The Superior Court denied the petition in a written opinion on July 1, 2011. Pet. Ex. AAA. On August 8, 2011, Petitioner filed a habeas petition with the California Court of Appeal for the Sixth District in the case titled In re Dion Gussner on Habeas Corpus, No. H037124. Petitioner then filed a revised petition on November 10, 2011. ECF No. 6, Ex. 2. The Court of Appeal summarily denied the petition on December 2, 2011 without a statement of reasoning. ECF No. 6, Ex. 3. On December 12, 2011, Petitioner filed a Petition for Review in the California Supreme Court in the case titled Action No. 5198590. ECF No. 7. The California Supreme Court denied review without written opinion on February 15, 2012. Res. Ex. E.

Petitioner commenced this federal habeas corpus action with the filing of his Petition and Memo in support on April 16, 2012. ECF No. 1, ECF No. 2. On July 9, 2012, the Court ordered Respondent to show cause why the petition should not be granted. ECF No. 8. Respondent filed an Answer on September 20, 2012. ECF No. 11. On October 11, 2012, Petitioner filed a Motion for Summary Judgment and a Memorandum in support. ECF No. 20, ECF No. 21. Respondent filed an Opposition to that motion on October 25, 2012, ECF No. 26, and Petitioner filed a Reply on November 8, 2012, ECF No. 30. On November 8, 2012, Petitioner also filed a Traverse responding to Respondent's Answer to the Order to Show Cause, ECF No. 29, and a Request for an Evidentiary Hearing, ECF No. 31. Respondent filed an Opposition to the Request for an Evidentiary Hearing on November 19, 2012, ECF No. 34, and Petitioner filed a Reply on November 26, 2012, ECF No. 36.

On February 5, 2013, the Court denied the Motion for Summary Judgment on the grounds that the summary judgment procedure is inappropriate for review of a state court habeas denial under § 2254. ECF No. 39.

B. Petitioner's Underlying Offense

In rejecting Petitioner's habeas claims, the Monterey County Superior Court (hereinafter, "Superior Court" or "the state court") made the following factual findings:

On August 9, 2009, Petitioner Dion Gussner while driving his truck eastbound on River Road in an unincorporated area of Monterey County at or within 5 miles of the posted speed limit and approaching an intersection in a residential area looked down and sent a text message on his cell phone. As he looked up from texting, he observed a car (Honda) stopped in front of him at a traffic light that was green for the direction of travel for both vehicles. Petitioner's truck collided with the rear end of the Honda causing the Honda to spin into the intersection. The driver, Christa [B.][2] (Mrs. [B.]) suffered a concussion, a displaced right elbow, and fracture of the right arm. Her daughter [A.], age 2, received unspecified injuries; and her son, [S.], age 4, died at the scene. Petitioner was uninjured; however, his truck was damaged.
At the scene, Petitioner was administered a preliminary alcohol screen (PAS) which registered a.16 blood alcohol level. After his arrest, Petitioner was administered a blood test and was determined to have a blood alcohol level of.21.

Pet. Ex. AAA at 730-31. Other material in the record provides additional detail. When officers approached Petitioner immediately after the accident, Petitioner remarked Mrs. B "was stopped at a stop light and just sat there." Res. Ex. B at 3. Officers interviewed eleven witnesses who had seen the accident or its immediate aftermath, as well as Petitioner. Three witnesses and Petitioner stated that Mrs. B.'s Honda had been either stopped or moving slowly just before the intersection and that Petitioner's car hit the Honda from behind without slowing down or swerving. Pet. Ex. A at 18-23. Two witnesses - Max Gibbons and Ashley Madison - stated that they were driving behind Petitioner's truck and saw the Honda turn right on to the road in front of Petitioner's car. Id. at 19-20. The other witnesses did not see the position of the vehicles prior to the accident. Based on the interviews and physical evidence at the scene, police concluded that Mrs. B. was "stopped for a red light at the intersection" and that Petitioner crashed into the back of Mrs. B.'s Honda "[d]ue to [Petitioner]'s level of intoxication and unsafe speed for present conditions." Id. at 23.

An 28-page accident reenactment investigation conducted by the California Highway Patrol (hereafter, "police") concluded that Mrs. B.'s Honda was stopped at a stoplight waiting for the light to turn green, and that Petitioner failed to notice the Honda stopped in front of him and rammed into it from behind. Res. Ex. B at 7. In an interview with the Probation Department on September 2, 2009, Petitioner admitted to drinking before the accident and answering several phone calls while driving to his sister's house. Id. at 8. Petitioner denied that his alcohol consumption caused the accident, instead believing that as he looked down for a second to send a text, he did not see the tail lights of the car in front of him until it was too late. Id. at 9.

C. Petitioner's Guilty Plea and Sentencing

At an arraignment hearing on August 18, 2009, Petitioner pleaded guilty to the charge of vehicular manslaughter and to both sentencing enhancement allegations. Pet. Ex. J at 344. Petitioner acknowledged to the sentencing judge that the maximum penalty that could be imposed was 16 years, followed by a minimum of three years on parole. Id. at 345. Petitioner also averred that he read and understood each paragraph of the plea form, and that he had "plenty of time" to review his rights and the consequences of the plea with counsel. Id. at 346.

On September 2, 2009, Petitioner attended an interview with the Probation Department. Petitioner expressed his deep remorse for causing the death of a child, and "explained that was why he pled at the earliest possible time, to ensure that no one has to re-live this pain that I have caused throughout endless Court hearings, for any of the [B.] family members, or even for my own family members.'" Res. Ex. B at 10. Petitioner also stated "I know that I signed a deal for a sixteen-year state prison commitment and I will not ask the Court to impose any leniency or consider anything less." Id. The Probation Department's evaluation of Petitioner characterized him as "riddle [sic] with remorse" and emphasized that Petitioner's action of pleading guilty at arraignment "speaks volumes" and was motivated by Petitioner's desire to bring solace to the B. family and to take full responsibility for his actions. Id. at 22. The evaluation emphasized that "defendant in no way or at any time is requesting that the Court be lenient in sentencing him to the full 16-year term." Id.

On September 30, 2009, Petitioner was sentenced to the agreed-upon term of 16 years. Res. Ex. M at 16. At the sentencing hearing, both Petitioner and his attorney Tom Worthington (hereinafter, "Worthington") spoke at length about Petitioner's remorse and acceptance of responsibility. Worthington contested several statements in the probation report that could be interpreted as Petitioner denying full responsibility, id. at 6-8, pointed to the fact that Petitioner had apologized to the B. family, id. at 10, and emphasized Petitioner's "demonstration of remorse and sorrow and acceptance of responsibility by entering a plea of guilty to this offense on the day of arraignment... to ensure that no one has to relive this pain." Id. Petitioner also emphasized that he was "willing to accept full responsibility for my actions" and "willing to serve as much time as it needs to take." Id. at 12.

D. Worthington's Representation of Petitioner

In ruling on Petitioner's state habeas petition, the Superior Court found that the record revealed the following facts regarding Petitioner's representation by Worthington:

Here, the accident occurred on August 9, 2009. The record shows Worthington was retained the next day on August 10, 2009. That same day he met with Petitioner's father, and later had a second meeting which included Petitioner and his family. He also met with Richard Lee (Lee), his investigator, and John Zupee (Zupee), his law clerk. The same day, Lee met with Erik Johnson, a friend of Petitioner's who had dinner with and then followed Petitioner the evening of the accident. Lee reports the witness stated Petitioner had 4 beers and 4 shots of whiskey. Worthington's law clerk, Zupee, met with Petitioner at Monterey County Jail. He reports Petitioner said that he was going 55-60 mph, Mrs. [B.]'s vehicle was stopped at the green light, and he did not see it until the last minute. Petitioner did not recall braking and told the police he had a couple of beers.
On August 11, 2009, Worthington again met Petitioner and his family, his investigator, and law clerk. He phoned the Deputy District Attorney, Stephen Somers, who was assigned to the criminal case. Worthington made notes regarding prior DUI charges, source unknown.
On August 12, 2009, Zupee went to the accident scene and took pictures. He was accompanied by Robert Lindskog, the reconstruction expert hired by Worthington. Lee contacted Max Gibbons, a witness, who was traveling in a car behind Petitioner. The witness stated he saw the light was green and a small car pulled out in front of Petitioner as he reached the intersection. Lee then contacted Ashley Madison, the passenger riding with Max Gibbons. She stated she saw a car pull out of Las Palmas in front of Petitioner. Worthington met with his investigator and law clerk and called the reconstruction expert, who stated "You do not want a report."
On August 13, 2009, Worthington met with Deputy District Attorney Stephen Somers, Investigator Lee, and the law clerk. He had a conference with Petitioner's father. On August 14th, 2009, he again had a phone conference with Petitioner, his law clerk, another attorney in the office, and Petitioner's father.
On August 15, 2009, Zupee called Melissa Nabor, a person Petitioner had phoned at the scene of the accident. She told Zupee that Petitioner had called her earlier on the day of the accident and told her he had drunk so much the day before that he "blacked out."
On August 15 & 16, Worthington made phone calls and sent e-mails to staff, his client, and witnesses. On August 16, 2009, Zupee reports on a conference with Petitioner of an unknown date. He states Petitioner stated he had texted a friend informing him that he was heading to his sister's house to have a couple of drinks. Petitioner stated that he had four 22 ounce beers and two double shots of Crown Royale and that there was a case of beer in the back seat of his truck along with a beer bong.
On August 17, 2009, Lee and Zupee met with Melissa Nabor, who had previously spoken with Zupee by phone. Worthington met with Deputy District Attorney Somers and made notes.
On August 18, 2009, prior to the arraignment, Worthington had a conference with the Deputy District Attorney, called witnesses, and had conferences with his law clerk, investigator, client, and client's family.

Pet. Ex. AAA at 739-41.

Other material in the record before the state court provides additional details of Worthington's representation. At the initial meeting, Petitioner's father expressed that Petitioner was extremely remorseful, and Worthington expressed concern that the District Attorney might decide to file second degree murder charges. Pet. Ex. B at 30. Worthington warned that such charges could carry a maximum sentence of life in prison. Id. Worthington advised Petitioner's family that it would be best for Petitioner to plead guilty to the maximum sentence allowed under the current charges, 16 years. Id. Worthington suggested that if Petitioner received a sentence of 16 years, Petitioner could wind up serving only half that time based on good behavior. Pet. Ex. H at 60. Worthington also stated that Petitioner might get out earlier as part of the Governor's early release program. Pet. Ex. H at 60. Finally, Worthington informed Petitioner's family that his office would begin investigating the case, including retaining an accident reconstruction expert and testing Mrs. B.'s blood at the hospital. Pet. Ex. B at 30.

No accident reconstruction report was ultimately prepared. Worthington later related to another attorney that this was because when his accident reconstruction expert, Robert Lindskog (hereinafter "Lindskog"), went to review the accident scene on August 12, 2009, Lindskog told Worthington "you don't want a report." Pet. Ex. KK at 621. Upon being questioned by Petitioner's father in July of 2011, Lindskog clarified that what he had meant by "you don't want a report" was that any report prepared at the time would be inconclusive because not enough information was available. Pet. Ex. ZZ(g) at 728-29.

In interviews with witnesses Max Gibbons and Ashley Madison, Worthington's investigator Richard Lee learned that both witnesses believed the Honda had pulled out in front of Petitioner's truck suddenly, leaving Petitioner no time to avoid a collision. Pet. Ex. I at 122-23. Worthington did not provide the statements of these witnesses to Petitioner before Petitioner pleaded guilty. Instead, Worthington simply informed Petitioner and Petitioner's father that the statements would not be helpful because they were inconsistent with accident reconstruction evidence. Pet. Ex. B at 30-31.

At his August 17, 2009, meeting with Somers from the District Attorney's office, Worthington learned that the District Attorney's office was aware that Petitioner had prior alcohol-related incidents. Pet. Ex. FFF at 846-51. These incidents included an arrest for driving under the influence that was dismissed and a reckless boating misdemeanor conviction. Somers indicated that he had not decided whether to file murder charges against Petitioner, preferring to wait for the records of those prior incidents to see whether Petitioner had received a Watson warning.[3] Pet. Ex. FFF at 846-51. Somers advised that Petitioner should not "plead to the sheet" (i.e., plead guilty to all charges) before the District Attorney's office had a chance to review Petitioner's prior record, unless Petitioner was willing to stipulate to the maximum sentence. Pet. Ex. KK. at 620. Somers told Worthington that if Petitioner were inclined to plead to the sheet, Somers would have to file a second-degree murder charge in the initial complaint to preserve Somers' options. Pet. Ex. KK. at 620. At the meeting, however, Somers did not threaten to file second degree murder charges. Id.

Worthington did not explain to Petitioner the significance of a Watson warning, the elements required for a second degree murder charge, or the standard for proving gross negligence. Pet. Ex. B at 30-31; Pet. Ex. D at 46-47. Instead, Worthington advised Petitioner to plead guilty to all charges and enhancements and agree to a sentence of 16 years, or the District Attorney's office would file second degree murder charges and Petitioner could face life in prison. Pet. Ex. B at 31-33. Worthington advised Petitioner that if Petitioner were sentenced to 16 years, the sentence would be eligible for 50% conduct credits and Petitioner could end up serving only 8 years. Id.


A. Standard of Review

1. Habeas Corpus Review of State Court Decisions

This Court may entertain a petition for the writ of habeas corpus "on 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). Where a petition based on claims reviewed on the merits in state court challenges a state sentence, the Antiterrorism and Effective Death Penalty Act ("AEDPA") mandates a "highly deferential" standard of review. Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). AEDPA "demands that state court decisions be given the benefit of the doubt." Id.

Consequently, a district court may only grant the petition if 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 petitioner bears the burden of showing that the state court decision involved an error "well understood and comprehended in existing law beyond any possibility for fair-minded disagreement." Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011).

A state court's analysis of an ineffective assistance of counsel claim should generally be analyzed under the "unreasonable application" prong of § 2254(d) rather than the "contrary to" prong. See Williams v. Taylor, 529 U.S. 362, 406 (2000); Weighall v. Middle, 215 F.3d 1058, 1062 (9th Cir. 2000). Accordingly, this Court will assess whether the state court decision rejecting Petitioner's claims unreasonably applied clearly established Supreme Court precedent to the facts of this case.

2. "Unreasonable Application" Standard

A state court decision constitutes an unreasonable application of clearly established Supreme Court law if the state court's application of law to the facts presented to the state court was not merely erroneous but "objectively unreasonable." Williams, 529 U.S. at 409-11 ("[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."). Thus, a district court reviewing the state court decision must "determine what arguments or theories supported, or could have supported, the state-court decision; and then it must ask whether it is possible fair-minded jurists could disagree that those arguments or theories are inconsistent with a prior decision of [the Supreme] ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.