United States District Court, N.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
JEFFREY S. WHITE, District Judge.
Now before the Court is the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by California state prisoner, Darryl Brown ("Brown"). The Petition is now ripe for consideration on the merits. The Court has considered the parties' papers, relevant legal authority, and the record in this case. For the reasons set forth below, the Petition is DENIED.
On July 10, 2006 Brown pled guilty to (1) felony assault by means likely to produce great bodily injury (Cal. Pen. Code § 245(a)(1)) with a sentencing enhancement for causing great bodily injury (Cal. Pen. Code §§ 12022.7(a), 1203(e)(3)); and (2) making a criminal threat (Cal. Pen. Code § 422). (Clerk's Transcript ("CT") at 40-41) (Resp't Ex. 1.) In addition to pleading guilty to both charges, Brown also admitted all of the alleged priors and sentencing enhancements. ( Id. at 41.) In exchange for his guilty plea, the prosecution agreed to dismiss the great bodily injury sentencing enhancement. (Reporter's Transcript ("RT") at 3-4) (Resp't Ex. 2.) On October 19, 2006, the trial court sentenced Brown to two concurrent prison terms of twenty-five years to life for receiving a third strike and a consecutive five-year prison term for the prior serious felony enhancement. ( Id. at 25-26.) The trial court dismissed the sentencing enhancements for prior prison terms on account of Brown's mental illnesses. ( Id. at 26.)
On August 15, 2007, Brown filed a notice of appeal. (CT at 238.) On appeal, he sought a reversal of judgment and remand to the trial court for a Marsden hearing to determine the nature and extent of his complaints about his legal representation. (Resp't Ex. 3.) On August 7, 2008, the California Court of Appeal affirmed the trial court judgment on the grounds that Brown "abandoned his request for substitute counsel, " as evidenced by his failure to raise the issue in open court at both the change of plea hearing and the Romero hearing. People v. Brown , 2008 WL3138211, at *2-3 (Cal.Ct.App. Aug. 7, 2008) (Resp't Ex. 6.) The appellate court also inferred support for their decision from the probation officer's report, which stated that Brown had "previously" wanted a Marsden hearing, not that he remained interested in one at the time of his court appearances. Id. at *3.
On September 10, 2008, Brown sought review in the California Supreme Court, which was summarily denied on October 16, 2008. (Resp't Exs. 7-8.) On October 1, 2009, Brown filed the instant petition. On October 14, 2011, this Court granted an evidentiary hearing which was held on July 9, 2013.
STATEMENT OF FACTS
The parties stipulated to the following facts in their joint brief following the evidentiary hearing held on July 9, 2013:
Petitioner Darryl Brown is now 50 years old. He has a GED and went to one year of college at Evergreen Valley College in San Jose, where he studied computer science. EH RT 4. Brown was convicted in Santa Clara County of assaulting Norton Buff and making criminal threats against him. EH RT 8. His appointed attorney was Juan Lopez, a deputy public defender. EH RT 9. His sentence was 25 to life plus 5 years consecutive, or a total of 30 years to life. EH RT 19.
On June 26, 2006, Brown wrote a letter to the judge who had presided over his preliminary hearing, Andrea Bryan, stating that he had been having unspecified "problems" with Lopez, and requesting a Marsden hearing. EH RT 10-11; Exh. A, CT 230A. Brown gave the letter to jail personnel to mail to the court a few days after he wrote it. EH RT 48. The letter was filed with the court on August 17, 2006. Exh. A, CT 230A. There is no way to determine when the letter reached the court.
Brown got the idea for the letter from speaking to a public defender who had appeared for him earlier in the case or to whom he had talked on the telephone. He understood that a Marsden hearing was a chance to get together with a judge and explain his problems with his lawyer and the judge would decide whether to give him a new lawyer. EH RT 12-13.
Lopez went to see Brown at the jail on July 6, 2006. After Brown showed him a letter dated June 18, 2006 asking for a Marsden hearing, they discussed that issue. EH RT 82, 84, 118; Exh. C. When asked on direct examination at the evidentiary hearing if he ever told Lopez he had changed his mind and did not want to have a Marsden hearing, Brown stated, "Yeah, I think I might have said it." EH RT 27. Brown said he "didn't know what he was doing." Id. However, Brown accurately described the Marsden procedure at the evidentiary hearing. EH RT 12-13 ("what I understood was that it was a motion to get with the judge and the - whoever, Mr. Lopez, and talk out what was the problem, and the judge will decide whether to give me another public defender or not"). Brown also corrected his habeas counsel at the evidentiary hearing, when habeas counsel mistakenly referred to the Marsden hearing when he meant the Romero hearing. EH RT 41.
Lopez stated that if Brown had continued to want a Marsden hearing after their July 6 meeting, Lopez would have scheduled one in court. EH RT 84-85. Lopez did not specifically make a note in his file that Brown had changed his mind about the Marsden matter, or wanted to withdraw it, or that Brown was now satisfied with Lopez's representation. EH RT 119; Exh. C. However, Lopez testified that if Brown had continued to want a hearing, "I would have made a note of it and actually set a Marsden hearing." EH RT 85; EH RT 121 ("Had he said, I want a Marsden , we would have been in court having one.").
Lopez was not reluctant or averse to holding a Marsden hearing if Brown had wanted to pursue the motion. He believed such hearings could actually be "beneficial" because they give the defendant an opportunity to "vent" and explain any issues to the judge in a confidential setting. EH RT 82-83. Lopez had had many clients make Marsden motions, but had never had a judge grant one involving him. EH RT 115-116.
Lopez was not aware that Brown had gone ahead and mailed the June 26, 2006 letter requesting a Marsden motion to the court until about five or six years later, when informed about it by counsel in connection with the current federal habeas proceedings. EH RT 121-124.
Brown testified at the evidentiary hearing that the "problems" he was having with Lopez were that Lopez had made "a lot of racial comments" to him during their conversations. EH RT 17-18. Specifically, he claimed that "a lot of times" Lopez had called him a "nigger" and a "monkey" in face-to-face conversations. EH RT 18. Brown believed Lopez was "disrespecting" him, and it caused him to question whether Lopez was properly representing him in court. EH RT 18.
Brown had also told the probation officer that the victim in this case, Norton Buff, had called him a "nigger." EH RT 49. That allegation was not corroborated by the preliminary hearing witnesses. Exh. A, CT 4-30.
Brown talked to Lopez' supervisor, Craig Kennedy, and explained that he was not getting along with Lopez. He testified that Kennedy was "sarcastic" and seemed not to care. EH RT 24-25. Brown described both Lopez and Kennedy in the same terms, as "flippant and sarcastic." EH RT 19, 49; Exh. A, CT 230A.
Brown acknowledged that he had been diagnosed with paranoid schizophrenia. EH RT 5; Exh. A, CT 117 (Sanchez report); Exh. A, CT 160 (1985 probation report). He acknowledged that his mental problems sometimes caused him to be paranoid about other people. EH RT 49-50. In 1990, a psychiatric doctor at Atascadero State Hospital specifically noted that Brown "is paranoid about white patients and the discrimination he senses against Blacks.  The patient has a chronic paranoid disorder." Exh. A, CT 93.
Lopez had a "strongly emotional" reaction at the evidentiary hearing to the accusation that he had ever called Brown a "nigger" or a "monkey." EH RT 78. He was "very offended" and "actually disgusted" by the accusation. Id. He had "never used racist remarks towards anyone, ever, " and had "always fought against racism." Id. Lopez noted that he was Mexican and had had racist remarks made against him. Id. He "chose to be a public defender to help the underdog." Id. He had worked at Castlemont High School in East Oakland, a predominantly African-American school, where the students he taught were "like my kids." Id. He had also worked at Centro Legal de la Raza in Oakland and the Family Violence Law Center in Berkeley, and had been employed at the Santa Clara County Public Defender's Office since 1996. EH RT 71-72.
Lopez said his relationship with Brown was "very cordial." EH RT 77. He believed Brown was competent and could assist in his defense. EH RT 75-76. He had no problems communicating with Brown. EH RT 76. He stated that Brown was "a very articulate gentleman, " and a "smart individual, " who had had a year of college. Id.
Lopez had Brown evaluated by a psychologist, Dr. Ubaldo Sanchez, as a precaution given Brown's mental health history. Id. Dr. Sanchez found that Brown was competent and "fully aware of what is happening here." Exh. A, CT 115. At the guilty plea hearing, Lopez told the judge that he had no difficulty communicating with Brown, Exh. 3, RT 4, which was an accurate representation. EH RT 87.
Brown never received a Marsden hearing in state court. EH RT 13-14. He never had a hearing where he told the judge that he had changed his mind and did not want a Marsden hearing. EH RT 27.
Brown did not ask the judge to hold a Marsden hearing at the next court appearance after he mailed the letter, which was his guilty plea hearing on July 10, 2006. EH RT 50-51. He testified that he did not raise the issue then because he "didn't think it would matter." He was "just in a lot of trouble and nobody cared, " and "whatever I say, I'm still going to put a lot of time." EH RT 51. Although at the outset of the guilty plea hearing the judge had told Brown that if he had any questions he could interrupt the proceedings, Exh. A, RT 4, and Brown did raise a number of questions throughout the hearing, EH RT 54-55, Brown testified that he did not say anything about the Marsden issue because it "just didn't seem like it would matter anyway, " and he was "overwhelmed with everything." EH RT 54-55.
At the guilty plea, Brown told the judge that he was taking prescription medication, Neuron and Buspar. Exh. 3, RT 4. At the evidentiary hearing, Brown said that at the time of the guilty plea he he was taking Buspar for severe anxiety, Neurontin for mood swings, and Seroquel for depression. EH RT 19-21. Brown stated on the record at the time of the plea that the prescribed medication did not affect his ability to communicate with his attorney. Exh. 3, RT 4. Brown testified at the evidentiary hearing that he told the truth when he said the medication was not affecting his ability to communicate with Lopez. EH RT 53. Brown also said that his symptoms decreased when he was taking prescribed medication. EH RT 50.
Brown stated on the record at the time of the plea that he had had enough time to discuss the case with Lopez. Exh. 3, RT 5. Brown said Lopez had discussed the elements of the crime, the nature of the crime, the possible defenses and the various pleas. Exh. 3, RT 5. When asked at the evidentiary hearing if he had told the judge the truth during the guilty plea, Brown said, "not really, no." EH RT 52. Although he had said yes when asked if he had had enough time to discuss the case with counsel and if counsel had fully explained the case and all options, Brown testified that he understands English and is "articulate, " but is not "wrapped too tight, " is "not very sane, " and is "spaced out." EH RT 56-57.
Brown testified at the evidentiary hearing, on direct examination, that he understood during the guilty plea that he was admitting two strikes that could lead to a sentence of life in prison. EH RT 35; see EH RT 58 (cross-examination). Brown said that during the pause in the proceedings after he asked a question about the strikes, Lopez explained off the record that this was the point where Brown would be admitting the two strikes they had discussed in previous conversations. EH RT 35, 57. Brown said he was "just going along with it at that point" because it felt "hopeless." EH RT 57-58.
Lopez had explained the guilty plea process to Brown. EH RT 43 (Brown), 81, 88 (Lopez). Lopez visited Brown in person at least five times, EH RT 21 (Brown), 84 (Lopez), and they had additional conversations on the phone. EH RT 84. Brown testified that although he pled guilty, he "didn't really know what I was getting myself into." EH RT 33. ...