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Pouncey v. Miller

United States District Court, C.D. California

November 13, 2014

AMY MILLER, Warden, Respondent

Elijah Demitrice Pouncey, Petitioner, Pro se, Imperial, CA.

For Amy Miller, Warden, Respondent: William Norton Frank, CAAG - Office of the Attorney General, California Department of Justice, Los Angeles, CA.



This Report and Recommendation is submitted to the Honorable Philip S. Gutierrez, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.



On July 23, 2013, Elijah Demitrice Pouncey (" Petitioner"), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (" Petition") pursuant to 28 U.S.C. § 2254.[1] On October 11, 2013, Respondent filed an Answer to the Petition. Petitioner filed a Reply on November 8, 2013. For the reasons discussed below, it is recommended that the Petition be DENIED and that this action be DISMISSED with prejudice.



On December 16, 2010, a Los Angeles County Superior Court jury found Petitioner guilty of one count of possession of a firearm by a felon in violation of California Penal Code (" P.C.") § 12021(a)(1) and one count of possession of ammunition by a felon in violation of P.C. § 12316(b)(1). (Clerk's Transcript (" CT") 178-79, 182-84; Reporter's Transcript (" RT") 1811-15). On December 22, 2010, the trial court found that Petitioner had two prior strikes within the meaning of California's Three Strikes law, P.C. § § 667(b)-(i) & 1170.12(a)-(d). (CT 185-86; RT 2145). On December 23, 2010, the trial court sentenced Petitioner to 25 years to life in state prison. (CT 187-90; RT 2418-20).

Petitioner appealed his convictions and sentence to the California Court of Appeal, which affirmed the judgment on March 8, 2012. (Lodgments 4-7). Petitioner then filed a petition for review in the California Supreme Court, which denied the petition on May 23, 2012. (Lodgments 8-9).



The following facts, taken from the California Court of Appeal's decision on direct review, have not been rebutted with clear and convincing evidence and must be presumed correct. 28 U.S.C. § 2254(e)(1); Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).

[Petitioner] dated Cindy Palmer for about four years between 2004 and early 2009, and thereafter they remained friends. On March 18, 2010, Palmer and [Petitioner] spent most of the day together. [Petitioner] left Palmer's house on San Pedro Street by 5:00 p.m. He came back at about 8:00 p.m. Palmer was sitting on her porch with a neighbor when [Petitioner] returned. She went into her house as [Petitioner] walked up the driveway because she did not want " any problems." [Petitioner] spoke to Palmer through a locked safety/screen door, and asked her if she had seen his cell phone; she had not. [Petitioner] searched the ground around Palmer's car which was parked in the driveway, and opened the door to look inside. Palmer dialed the phone's number, but neither she nor [Petitioner] could hear his phone ring. Palmer asked [Petitioner] to leave.
[Petitioner] came towards the door and asked Palmer to come outside. She refused and asked him to leave again. [Petitioner] lit a cigarette, stepped off the porch and walked toward Palmer's car, reaching under his jacket with his right hand. He then extended his right arm at shoulder height, and his hand was clenched as though holding something pointed at Palmer's car. Palmer saw flashes and heard four shots. She ran to the back of the house to check on her daughter. As she returned to the front of the house she heard two more shots in the front yard. Palmer called 911, left the house and saw [Petitioner] walk south on San Pedro.
Los Angeles Police Department (LAPD) Officers Marin and Reyes were patrolling the area in an unmarked police vehicle when the shots were fired. Officer Marin drove south on San Pedro and saw Palmer waving from a porch. She directed the officers toward [Petitioner], whom she said was " in the white car." [(##RefNum=Fn. 3 FootnoteNum=2##)] The officers drove south on San Pedro and, saw a man inside a white car parked at the curb. The man appeared " startled" when he saw the officers, and quickly drove west on 75th Street, then turned and headed north on San Pedro at a high rate of speed. The officers followed the man for several blocks while Officer Reyes broadcast information about the pursuit. Palmer was still on the phone with the 911 operator when [Petitioner] sped past her house followed by the unmarked police car. He turned east onto 74th Street and then south on Avalon. Officer Marin lost sight of [Petitioner] after he turned onto Avalon.
[Fn. 3] [Petitioner] drove a white Oldsmobile Alero.
LAPD Officer Paz and his partner were in the area and heard the other officers' broadcast. Officer Paz saw the white Alero headed south on Avalon near Manchester at a high rate of speed, and turned to pursue the car. He followed the Alero south on Avalon and east on 87th Street. By the time Officer Paz caught up with the Alero, it had crashed into another vehicle on 87th Street and the driver was gone. Bystanders told the officers the driver had run south. A perimeter was set up and the driver was detained after a 20 minute search. In a field show-up, Palmer identified the driver as the man who had earlier fired a gun outside her house. Palmer also showed police bullet holes she had found in her car, and in a shed in front of her house. A .45 caliber shell casing and a spent bullet were recovered from Palmer's yard.
Police recovered a loaded .45 caliber semi-automatic handgun from the crashed white Alero. The gun was wedged between the floorboard and the frame rail of the driver's side door.
Firearms analysis established that the shell casing and spent bullet recovered from Palmer's yard were fired by the handgun recovered from the Alero. The parties stipulated that no latent fingerprints of value were found on the handgun, the spent casing, or the live rounds, and also stipulated that [Petitioner] was previously convicted of a felony.
[Petitioner] did not testify and presented no evidence in his defense.

(Lodgment 7 at 3-4).



In his Petition, Petitioner raises the following claim for federal habeas relief:

Ground One: Petitioner was denied his Sixth Amendment right to the effective assistance of counsel when defense counsel failed to inform him of a state's plea offer until after the offer expired.

(Petition at 5).



The Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA") applies to the instant Petition because Petitioner filed it after AEDPA's effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). " By its terms [AEDPA] bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in § § 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011). Under AEDPA's deferential standard, a federal court may grant habeas relief only if the state court adjudication was contrary to or an unreasonable application of clearly established federal law or was based upon an unreasonable determination of the facts. 28 U.S.C. § 2254(d). " This is a 'difficult to meet' and 'highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt[.]'" Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (citations omitted).

Petitioner raised his claim in his petition for review to the California Supreme Court, which denied the claim without comment or citation to authority. (Lodgments 8-9). The Court " looks through" the California Supreme Court's silent denial to the last reasoned decision as the basis for the state court's judgment. See Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991) (" Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground."); Cannedy v. Adams, 706 F.3d 1148, 1159 (9th Cir. 2013) (" [W]e conclude that Richter does not change our practice of 'looking through' summary denials to the last reasoned decision -- whether those denials are on the merits or denials of discretionary review." (footnote omitted)), as amended, 733 F.3d 794 (9th Cir. 2013), cert. denied, 134 S.Ct. 1001, 187 L.Ed.2d 863 (2014). Therefore, in addressing Petitioner's claim, the Court will consider the reasoned opinion of the California Court of Appeal, which denied the claim on the merits. Berghuis v. Thompkins, 560 U.S. 370, 380, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010).



Petitioner contends he was denied his Sixth Amendment right to the effective assistance of counsel when defense counsel failed to inform him of a fifteen-year-and-four-month plea offer until the offer had expired. (Petition at 5; Reply at 1-7).

A. Background

The California Court of Appeal found the following facts underlying Petitioner's claim:

On Thursday, December 2, 2010 the judge (Judge Ryan) conducting the pretrial hearing asked the prosecutor (Mr. Hulefeld) what he had " offer[ed] to settle the case?" The prosecutor responded, " 17 years, 4 months." When asked if the defense had a counteroffer, [Petitioner's defense counsel] Mr. Rico, stated, " There is. Eight years." After conferring with [Petitioner], Mr. Rico corrected himself to state that the defense counteroffer was six years.
The prosecutor pointed out that [Petitioner] had received a 14--year sentence for his last conviction, served concurrently with a federal trafficking term. After clarifying that [Petitioner's] first strike conviction was a carjacking in which he used a shotgun and that his second strike conviction involved an attempted kidnapping and robbery, Judge Ryan stated, " I don't think I'm going to make a different offer. I've made a note that [Petitioner's] counteroffer is six years. Truthfully, I think 17 years, 4 months is a gift." [Petitioner's] counsel noted that the allegations in the instant case were that [Petitioner] shot up a car without any intent to hurt anyone, to which the court responded, " [T]hank God for that. I think -- well, I can only give you my best -- and I also say that -- I think that, if he's convicted, the People are going to be asking for a life top term." The prosecutor affirmed that would be the case. The prosecutor also noted, for the record, that he was preparing to transport an out-of-state witness and said that, " if we get to the point where we bring this person to Los Angeles to try this case, then absent something unusual happening, there isn't going to be any offers after that."
The court stated its understanding that the plea offer would be " off the table" at that point. The prosecutor said, " Yes, " and the court reiterated, " It will not be available."
On the morning of Wednesday, December 8, 2010 in the master calendar courtroom, the prosecutor asked the court, Judge Espinoza, for priority in order to discuss the pending settlement offer before his witness got on a plane that afternoon. The following exchanged occurred:
" The Court: . . . Both sides have announced ready. Has anybody told him, though, that once this witness gets on the plane, the offer is off the table?
" Mr. Rico: No.
" Mr. Hulefeld: For the record, I did state that on the record last appearance.
" The Court: Can we have [Petitioner] out? But they didn't think she was getting on the plane until tomorrow.
" Mr. Rico: Right, and I relied on that.
" The Court: I know. He is looking at 35 to life. He's had lots of time to think about his situation. . . .
" Mr. Hulefeld: And just for the record, nothing's changed from my perspective. What happened was for reasons related to the witness -- I was not there the past two days. The travel arrangements were scheduled for today when I'd asked for them to be made tomorrow."
[Petitioner] was brought into the courtroom and further discussion regarding the prosecution's settlement offer took place:
" The Court: . . . I'm getting ready to send you out for trial right now. Your trial will start probably in about 45 minutes with jury selection. And I wanted to bring you out because I know a little bit about your case and a little bit about you. Do I have your attention?
" [Petitioner]: Yes.
" The Court: Okay. And I want to make sure you're not making a mistake here. You're facing 35 to life in this case, and the People's position is that if the case goes to trial and you're convicted, they're definitely asking for a life sentence. Apparently, the last time you received a state prison commitment it was for 14 years. Is that accurate?
" [Petitioner]: 1993, yes.
" The Court: Yeah. You got a 14--year state prison commitment. They're offering you 17 years on this case today, which is slightly higher than the last time you were in. [¶ ] " Now, I don't know anything about whether you did this crime or not, and I'm not expressing an opinion as to whether you committed this crime or not because I have no way of knowing. [¶ ] " I do know that if you're convicted, it's entirely possible that you'll get a life sentence based on your record and the charges. It's entirely possible. The only thing I wanted to tell you was their witness in this case is somewhere out of state, and in about 15 minutes she's -- Hello?
" [Petitioner]: Okay.
" The Court: I really need you to focus. . . . [¶ ] . . . [¶ ] " Once I send you out and they put that witness on the plane, and that was supposed to happen tomorrow, but for whatever reason it's happening today, --
" [Petitioner]: Correct.
" The Court: -- they're taking the 17--year offer off the table and you're going to be facing a life sentence. Do you understand that?
" [Petitioner]: Yes.
" The Court: Are you interested in this offer?
" [Petitioner]: Seventeen years?
" The Court: Yeah.
" [Petitioner]: No.
" The Court: Okay. [¶ ] . . . [¶ ] . . . Good luck is all I can say. [¶ ] " All right. This matter is assigned -- they're not willing to accept a counter-offer of eight to ten years. That's just not going to be something they'll accept. [¶ ] " I'm very worried that you're playing a game of cat and mouse here hoping to get a better offer, and you couldn't be making a bigger mistake because they're pretty adamant that once you leave here, they're not going to offer you 17 years. They're going to go forward as a third-strike life case. And again, I don't know very much about the case, and I don't know whether you're going to be convicted, but if you are, with your record it's very likely a case that you can catch a life sentence on. [¶ ] " So, I'm not trying to scare you. I'm not trying to threaten you. But I'm trying to let you know sort of the urgency of you making this decision. [¶ ] " And I should note for the record that this case has been pending since April, and this offer's been on the table for -- at least a couple of months?
" Mr. Hulefeld: More than that.
" The Court: More than that. [¶ ] " So, you've had time to think about it. What you now are doing is deciding whether you want to risk the possibility that the witness they're waiting for is actually going to get on the plane and show up and lay you out. If she does, you know, then the rest will be history, as they say."
When Judge Espinoza finished his remarks, Mr. Rico complained that the one-day change to the witness's flight schedule had shortened the time frame for [Petitioner] to make a decision regarding the prosecution's settlement offer. He said the prosecutor had represented to him that there would still be " room to negotiate, " and he thought it was " unfortunate that [he] never had the chance really today to tell [Petitioner] that today, you know, in [¶ ] . . . [¶ ] 19 minutes he would have to make a decision. [¶ ] . . . [¶ ] That was never made clear to him."
Judge Espinoza responded: " My understanding is that Mr. Hulefeld wanted the witness to leave wherever she is tomorrow, but he was gone and the travel arrangements were made, and they were made for today. So, you know, it's just an unfortunate circumstance for you, but the fact of the matter is that this offer has been pending for a number of months and it's about to go away." The judge then asked [Petitioner] if he wanted to " go in the back and talk to [his] lawyer for a minute, " and told Mr. Rico to " Go back and talk to him."
Apparently, in the intervening period, [Petitioner] made a counteroffer because, when the proceedings resumed, the court noted that the prosecutor had taken [Petitioner's] " counter-offer to the D.A.'s management and they rejected it." The court told [Petitioner], " so I'm going to send you out for trial. As soon as the words leave m[y] mouth, those 17 years are off the table. You're not interested in those 17 years?
" [Petitioner]: No, sir."
The matter was sent to Judge Dohi's courtroom for trial. On the record after an in camera session with counsel, Judge Dohi again raised the prosecution's settlement offer of seventeen years four months with [Petitioner]. The judge confirmed that Mr. Rico had informed [Petitioner] that his exposure was " in excess of 35 years to life" if he was convicted of multiple counts. By that time, [Petitioner's] counteroffer had risen to 12 years. [¶ ] The following exchange occurred:
" The Court: Did you talk to your client about the possibility of -- is it 15 years, four months, if he agrees to that, that's something Mr. Hulefeld could take to his supervisor to see if he can get authorization for that?
" Mr. Rico: Well, we did not discuss that exact number because [Petitioner] just didn't seem to want to make any sort of counter -- [¶ ] . . . [¶ ] at all short of -- aside from the 12 years that were earlier offered. But I guess I'll make that clear to him right now. 15 years, four months is something that's been discussed as possible for you.
" [Petitioner]: Mm-hmm.
" Mr. Rico: If you wanted to -- if you told the Court and you told Mr. Hulefeld now that you would take that, he could go to his boss and see if he can get approval for 15/4.
" [Petitioner]: I understand, sir.
" The Court: Okay. And I take it [Petitioner] is not interested in 15/4 even though he is interested in 12; is that fair to say?
" Mr. Rico [to Petitioner]: Is that right?
" The Court: You would not -- are you willing --
" Mr. Rico: Would you be willing to make a 15--year--four--month counteroffer?
" [Petitioner]: Ten years.
" The Court: Beg your pardon? Now we're going --
" Mr. Rico: [Petitioner] just made a counteroffer of ten years.
" The Court: I'm afraid -- I take it that's a nonstarter, Mr. Hulefeld.
" Mr. Hulefeld: Yes, your Honor, it is."
At that point, [Petitioner] spoke directly to the judge about his prior convictions. The judge explained that the Three Strikes Law applied even though the priors occurred before 1994 and reiterated that the minimum sentence [Petitioner] faced on any single count was thirty-five years to life. [Petitioner's] counsel confirmed that he had given [Petitioner] the same information before, and had told [Petitioner] that his minimum exposure was a life sentence. Mr. Rico asked [Petitioner] again whether he wanted to make a 15/4 counteroffer.[(##RefNum=Fn. 5 FootnoteNum=2##)] [Petitioner] did not respond on the record. Mr. Rico conferred briefly with [Petitioner] and then asked whether [Petitioner] could have the benefit of the lunch hour to make a decision.
[Fn. 5] The reporter's transcript reflects that [Petitioner] was asked if he wanted to make a " five-four counter." Under the circumstances, we assume this is a typographical error.
" The Court: I wish we could but I'm afraid --
" Mr. Hulefeld: Well, your honor, it's difficult for us. I'm not trying to -- I understand this is an important decision for [Petitioner].
" [Petitioner]: Very, very important sir.
" Mr. Hulefeld: And I appreciate that. However, this is an offer that's been pending, basically, for the life of this case. [¶ ] . . . [¶ ] And I'm speaking of 17 years, four months at this point. [¶ ] . . . [¶ ]
" [Petitioner]: " It's been that way since June the 29th."
The court reiterated that " something close to this has been on the table for a very long time. We really do need to know sooner rather than later." The judge gave [Petitioner] a few more minutes to make a decision while he discussed evidentiary issues with counsel. At noon, Judge Dohi told [Petitioner] the matter would proceed to trial if he did not make a decision. [Petitioner] did not respond. The prosecutor withdrew the offer.
After the lunch recess, Mr. Rico informed the court that [Petitioner] was willing to take 15 years. The court responded that it was too late, and any offer had expired at noon. Mr. Hulefeld clarified that the People had never made an offer of 15 years, four months. " It was always 17 years, four months. I said before lunch and before the witness was en route, if he would represent that he would take that, that I would ask my boss. But even then, there's no guarantees." The court agreed with Mr. Hulefeld's representation and brought the prospective jurors into the courtroom.
On the afternoon of the next day, December 9, 2010, Mr. Rico asked to make a record regarding the prosecution's withdrawn offer. He stated that he had been under the assumption that there would be " some cushion" for further negotiations before the prosecution's out-of-state witness traveled to California. He also said that his client appeared " very slow" and " doesn't seem to get it as immediately as the system would require him to" but was willing to accept responsibility. Mr. Rico asked the court to consider an open plea to the prosecution's former offer. [¶ ] The prosecutor responded that the 17 year four month offer had been pending for a very long time and that [Petitioner] had an equally long time to consider it. He also noted that [Petitioner] was no stranger to the criminal justice system and had served a lengthy prison term that was itself the result of a negotiated disposition. The prosecutor repeated that the plea offer had been contingent on a pretrial acceptance and opined that it was unlikely a disposition could have been reached even if the out-of-state witness had arrived a day later as originally planned given [Petitioner's] history of unrealistic counteroffers.
Judge Dohi agreed that the prosecution had clearly communicated the offer had an expiration date (although it had been stretched out for an hour or so longer), and that the deadline had come and gone. Mr. Rico informed the court that he had " had numerous discussions with [Petitioner] trying to -- encourage[e] him to make a realistic counteroffer to the People which he never seemed to want to do up until we really got to the 11th hour and things were too late." [Petitioner] then spoke directly to the court, stating that although the offer may have been on the table since June 29, 2010, it " never went down" despite Mr. Rico telling him he may be able to " get less" and " let's wait and see."

(Lodgment 7 at 10-17 (see also RT B3-B8, C1-C10, 3-12, 14, 412-18)).

B. California Court of Appeal's Opinion

The California Court of Appeal then rejected Petitioner's claim, stating:

[Petitioner] has not made a sufficient showing with respect to prejudice for any aspect of his ineffective assistance claim. First, he makes no effort to establish a reasonable probability that a 15 year four month plea agreement would have been approved by the trial court. Given Judge Ryan's comment that an offer of 17 years four months was, in his opinion, " a gift, " it is possible the court might have rejected an offer for a shorter sentence. " [W]e may not simply presume . . . that the trial court automatically would have approved a plea bargain negotiated by the prosecutor and the defense."
More to the point, however, [Petitioner's] assertion that Mr. Rico's performance was deficient because he failed timely to advise him of the prosecution's offer of a 15 year four month sentence, or to advise him of the consequences of not accepting the deal fails because the record makes it clear no such offer was ever made to [Petitioner] and that he was fully advised of the consequences he faced at trial.
As Mr. Hulefeld stated after [Petitioner] attempted belatedly to renew the negotiation regarding a " fifteen year" sentence, any offer had expired. Moreover, " [t]here never was a 15--year four-month offer. It was always 17 years, four months. I said before lunch and before the witness was en route, if he would represent that he would take that, I would ask my boss. But even then, there's no guarantees." Judge Dohi agreed that was " exactly what [Mr. Hulefeld] said."
Indeed, [Petitioner] himself acknowledged the prosecution's offer was always 17 years and four months, and the record discloses he repeatedly rejected that offer. Shortly before trial, the possibility of a negotiated term of 15 years four months was raised as a possible defense counteroffer. But that particular counteroffer was never made because [Petitioner] offered 10 years instead.
It is clear no plea offer of 15 years four months was ever extended to or made by [Petitioner]. The only offer was for 17 years four months and, by his own account, that offer remained available to [Petitioner] from June 29, 2010 until it was withdrawn on December 8, 2010. Since no 15 years four months offer was made, Mr. Rico necessarily did not fail to advise [Petitioner] of the consequences of refusing it.
It is equally clear that, apart from his self-serving representation to the contrary, there is no evidence [Petitioner] would have accepted a plea of 15 years four months, had that offer been made. The record discloses that, when asked if he would be willing to make a 15 years four months counter offer, [Petitioner] confirmed that he understood the decision he was facing, and unequivocally rejected the hypothetical " offer" in favor of his own offer for " ten years."
To establish prejudice resulting from a rejected plea, [Petitioner] must prove there is a reasonable probability that, but for his counsel's deficient performance, he would have accepted the proffered plea bargain and the plea would have been approved by the trial court. " '" 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" '" A " defendant's self-serving statement -- after trial, conviction, and sentence -- that with competent advice he or she would have accepted a proffered plea bargain, is insufficient in and of itself to sustain the defendant's burden of proof as to prejudice, and must be corroborated independently by objective evidence." [Petitioner] failed to establish a reasonable probability that a 15 years four months plea offer was made, let alone that he would have accepted such an offer.
. . . [Petitioner's] claim of ineffective assistance of counsel fails because there is no reasonable probability he would have accepted the prosecution's actual plea offer or the hypothetical 15--years offer but for his attorney's ineffective representation.

(Lodgment 7 at 18-20 (citations omitted)).

C. Analysis

" The Sixth Amendment guarantees criminal defendants the effective assistance of counsel[, ]" Yarborough v. Gentry, 540 U.S. 1, 4, 124 S.Ct. 1, 157 L.Ed.2d 1 (2003) (per curiam); see also Missouri v. Frye, __ U.S. __, 132 S.Ct. 1399, 1404, 182 L.Ed.2d 379 (2012) (" The right to counsel is the right to effective assistance of counsel."), and this guarantee " extends to the plea-bargaining process." Lafler v. Cooper, __ U.S. __, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012); see also Padilla v. Kentucky, 559 U.S. 356, 373, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (" [T]he negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel." (citing Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985))); Turner v. Calderon, 281 F.3d 851, 880 (9th Cir. 2002) (" '[A] defendant has the right to make a reasonably informed decision whether to accept a plea offer.'" (citation omitted)). To succeed on an ineffective assistance of counsel claim, Petitioner must demonstrate both that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Cooper, 132 S.Ct. at 1384 (" '[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.'" (quoting Hill, 474 U.S. at 58)); Pinholster, 131 S.Ct. at 1403 (Strickland standard is clearly established federal law). " 'To establish deficient performance, a person challenging a conviction must show that 'counsel's representation fell below an objective standard of reasonableness.'" Richter, 131 S.Ct. at 787 (citation omitted); Premo v. Moore, 562 U.S. 115, 131 S.Ct. 733, 739, 178 L.Ed.2d 649 (2011). Prejudice " focuses on the question whether counsel's deficient performance renders the results of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); Williams v. Taylor, 529 U.S. 362, 393 n.17, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). That is, Petitioner must establish there is a " reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different[, ]" Strickland, 466 U.S. at 694; Pinholster, 131 S.Ct. at 1403, and " [t]he likelihood of a different result must be substantial, not just conceivable." Richter, 131 S.Ct. at 792; Pinholster, 131 S.Ct. at 1403. Thus, to establish prejudice where a plea offer has lapsed or been rejected because of counsel's deficient performance, " it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time." Frye, 132 S.Ct. at 1409; see also Cooper, 132 S.Ct. at 1384 (" In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice."); Hill, 474 U.S. at 59 (Prejudice " focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process."). To make such a showing, Petitioner " must demonstrate a reasonable probability [that he] would have accepted the earlier plea offer had [he] been afforded effective assistance of counsel" and that " the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law." Frye, 132 S.Ct. at 1409.

" [A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Frye, 132 S.Ct. at 1408. Here, however, Petitioner's contention that the prosecutor made him a formal fifteen-year-and-four-month plea offer is without merit. (See Petition at 5; Reply at 1-7). The California Court of Appeal found that the only formal offer Petitioner received was for seventeen years and four months in state prison, an offer that was conveyed to Petitioner and one he repeatedly rejected while acknowledging that it remained available to him for over five months. (Lodgment 7 at 19). The California Court of Appeal also found that no fifteen-year-and-four-month plea offer was made to Petitioner.[2] (Id.). Since Petitioner has not rebutted the California Court of Appeal's factual findings, which are well-supported by the record, (see RT C4-C10, 4-12, 14), the findings are presumed correct. See Mejia v. Garcia, 534 F.3d 1036, 1039 n.1 (9th Cir. 2008) (" A state court's factual determinations must be presumed correct, and a reviewing court must accept all factual findings that the state court makes, unless the petitioner can rebut 'the presumption of correctness by clear and convincing evidence.'") (quoting 28 U.S.C. § 2254(e)(1)); Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir. 2001), amended by, 253 F.3d 1150 (9th Cir. 2001) (The presumption of correctness " is not altered by the fact that the finding was made by a state court of appeals, rather than by a state trial court."). And because there was no fifteen-year-and-four-month plea offer made, defense counsel cannot have been deficient in failing to advise Petitioner of such an offer, and Petitioner's ineffective assistance of counsel claim is without merit. See Dows v. Wood, 211 F.3d 480, 486-87 (9th Cir. 2000) (factually unfounded argument provides no basis for federal habeas relief); Rupe v. Wood, 93 F.3d 1434, 1444-45 (9th Cir. 1996) (" [T]he failure to take a futile action can never be deficient performance."); Prasad v. Hill, 2012 WL 1969983, *24 (N.D. Cal. 2012) (rejecting ineffective assistance of counsel claim due to defense counsel's alleged failure to communicate a formal four-year plea offer to petitioner when there was " no evidence that a firm four-year plea offer was ever made").

Accordingly, the California Supreme Court's rejection of Petitioner's ineffective assistance of counsel claim was not contrary to, or an unreasonable application of, clearly established federal law, and was not based on an unreasonable determination of the facts.



For the foregoing reasons, IT IS RECOMMENDED that the District Court issue an Order: (1) accepting this Report and Recommendation, (2) denying the Petition for Writ of Habeas Corpus, and (3) directing that Judgment be entered dismissing this action with prejudice.

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