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Tuomi v. People

United States District Court, C.D. California, Southern Division

December 1, 2014


Mitchel Alex Tuomi, Petitioner, Pro se, Costa Mesa, CA.

For The People Of The State Of California, Respondent: Daniel Brian Rogers, LEAD ATTORNEY, CAAG - Office of Attorney General, California Department of Justice, San Diego, CA.



The Court submits this Report and Recommendation to the Honorable R. Gary Klausner, United States District Judge, pursuant to 28 U.S.C. Section 636 and General Order 05-07 of the United States District Court for the Central District of California. For the reasons set forth below, the Magistrate Judge recommends that the Petition for Writ of Habeas Corpus be dismissed with prejudice.



On May 13, 2010, in the Orange County Superior Court, petitioner pleaded guilty to one count of failing to register as a sex offender (Cal. Penal Code § 290(g)), in exchange for a sentence of 16 months in state prison plus three years of parole. (See Reporter's Transcript of plea hearing (" RT"), attached to Petition). Petitioner did not appeal his conviction. (Petition at 2).

On March 17, 2011, petitioner filed a habeas petition in the Orange County Superior Court, which was denied in a reasoned opinion on April 1, 2011. (Lodgment 3 at 51-56). On May 31, 2011, petitioner filed a habeas petition in the California Court of Appeal, which was denied on November 10, 2011. (Lodgment Nos. 1, 2). On December 12, 2011, petitioner filed a petition for review in the California Supreme Court, which was denied on January 18, 2012. (Lodgment Nos. 3, 4).[1]

On July 12, 2013, petitioner filed his Petition in this Court. On November 19, 2013, respondent filed an Answer. On December 23, 2013, petitioner filed a Reply.

This matter has been taken under submission, and is ready for decision.



1. Petitioner's plea is not valid because he was mentally ill at the time of the plea hearing, and because he agreed to the plea based on threats. (Petition at 5).

2. Petitioner's counsel rendered ineffective assistance with respect to the plea hearing. (Petition at 5-6).

3. Petitioner was denied access to the prison law library and was denied his sentencing transcript " for many months." (Petition at 6).

4. Petitioner's sentencing transcript is inaccurate. (Petition at 6).

5. The conditions of petitioner's parole amount to cruel and unusual punishment. (Petition at 6).



The Petition was filed after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (" the AEDPA"). Pub. L. No. 104-132, 110 Stat. 1214 (1996). Therefore, the Court applies the AEDPA in its review of this action. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

Under the AEDPA, a federal court may not grant a writ of habeas corpus on behalf of a person in state custody " with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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). As explained by the Supreme Court, section 2254(d)(1) " places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In Williams, the Court held that:

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 this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the " unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams, 529 U.S. at 412-13; see Weighall v. Middle, 215 F.3d 1058, 1061-62 (9th Cir. 2000) (discussing Williams). A federal court making the " unreasonable application" inquiry asks " whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 529 U.S. at 409; Weighall, 215 F.3d at 1062. The Williams Court explained that " 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." Williams, 529 U.S. at 411; accord: Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Section 2254(d)(1) imposes a " highly deferential standard for evaluating state-court rulings, " Lindh, 521 U.S. at 333 n. 7, and " demands that state court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam). A federal court may not " substitut[e] its own judgment for that of the state court, in contravention of 28 U.S.C. § 2254(d)." Id.; Early v. Packer, 537 U.S. 3, 11, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam) (holding that habeas relief is not proper where state court decision was only " merely erroneous").

The only definitive source of clearly established federal law under the AEDPA is the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Williams, 529 U.S. at 412. While circuit law may be " persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court law, Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999), only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied. Williams, 529 U.S. at 412; Moses v. Payne, 555 F.3d 742, 759 (9th Cir. 2009). Furthermore, under 28 U.S.C. § 2254(e)(1), factual determinations by a state court " shall be presumed to be correct" unless the petitioner rebuts the presumption " by clear and convincing evidence."

The United States Supreme Court has held that " [w]here 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." Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Here, petitioner exhausted his claim in Ground One in his habeas petitions filed in the California courts. The Orange County Superior Court issued a reasoned denial, while the California Court of Appeal and California Supreme Court issued denials without comment or citation. Accordingly, this Court reviews the superior court's reasoned decision under the AEDPA standard. See Ylst, 501 U.S. at 803; Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000) (district court " look[s] through" unexplained California Supreme Court decision to the last reasoned decision as the basis for the state court's judgment).

As for petitioner's ineffective assistance claim in Ground Two, respondent argues, and petitioner concedes, that the claim is unexhausted. (See Answer at 9-11; Reply at 1). Under these circumstances, the Court will exercise its discretion to conduct a de novo review to determine if petitioner has presented a " colorable" claim of ineffective assistance. See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005) (to address an unexhausted claim on the merits, it must be " perfectly clear that the applicant does not raise even a colorable federal claim"); see also Berghuis v. Thompkins, 560 U.S. 370, 390, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) (where it is unclear whether AEDPA deference applies, court may deny writ of habeas corpus under § 2254 by engaging in de novo review because a habeas petitioner will not be entitled to writ under § 2254 if claim can be rejected on de novo review).

With respect to petitioner's claims raised in Grounds Three, Four, and Five, for the reasons explained infra, the claims are not cognizable on habeas review.[2]




In Ground One, petitioner asserts that his guilty plea is not valid because he was mentally ill at the time of the plea hearing, and because he agreed to the plea based on " threats" regarding a Three Strikes sentence. (Petition at 5).

A. Relevant Facts

Petitioner was charged with violating California Penal Code § 290(g) for failure to register as a sex offender, and it was alleged that he had two prior strike convictions.[3] He agreed to plead guilty to the Section 290 violation in exchange for dismissal of the two strikes.

The transcript of petitioner's plea hearing shows the following: petitioner represented that before initialing and signing his plea form, he read through the document in its entirety, he understood all the rights that were discussed on the form, and he had sufficient time to discuss the form with his attorney.[4] (RT 4-5).

The trial court then informed petitioner that he had the following rights: to be represented by an attorney; to have a preliminary hearing; to have a jury trial; to call witnesses, and question witnesses who testify against him; and to testify in his own defense or, alternatively, to exercise his right to remain silent. (RT 5-6). The trial court explained that if petitioner pleaded guilty, he would be giving up these rights. (RT 6). Petitioner stated that he understood. (RT 6).

The following exchange then occurred:

The Court: Have you had -- and the form's pretty clear here . . . that your guilty plea to Count 1 with the strikes having been stricken, [the] court's going to be committing you to state prison for the low term on Count 1 for 16 months to run concurrent with any other sentence. Do you understand that?
[Petitioner]: Yes, sir, I do.
The Court: On your release from prison, . . . you're going to be on parole for a period of three years. Do you understand that also?
[Petitioner]: Yes.
The Court: Sir, have you had sufficient time to discuss with your attorney the nature of this charge, as well as any possible defense?
[Petitioner]: Yes, sir, I have.
* * *
The Court: Any other questions, sir, that you have?
[Petitioner]: Could you quote the law to me on the 290, please?
The Court: Sir, that code section is multiple pages and I'm not going to -- we'd be here until five o'clock if I read you all of those code sections.
[Petitioner]: Only one I'm interested in is the one where you register call-in.
The Court: That you register what?
[Petitioner]: Call-in jurisdiction.
[Defense counsel]: Your Honor, the basis of this violation is not notifying law enforcement prior to changing addresses five days prior. Court wants to give me a few minutes, I'm happy to read and show [petitioner] the code section.
The Court: Okay. I'll let you do that. (Recess taken)
The Court: . . . [D]id you have sufficient time to get your questions answered, sir?
[Petitioner]: Yes, I did.
The Court: Do you have any further questions?
[Petitioner]: No, sir.
The Court: Are we ready to proceed then with the plea?
[Defense counsel]: Yes, Your Honor.
The Court: . . . . Has anybody made any threats or promises to you other than what I've summarized and what's set forth on the paperwork?
[Petitioner]: Only that I'm getting to waive two strikes.
The Court: What?
[Petitioner]: I'm being allowed to waive two strikes from my record --
The Court: Right.
[Petitioner]: -- if I take this deal.
The Court: Right.
[Petitioner]: So out of fear I wouldn't want to continue because if there's some reason the jury doesn't believe my testimony, I'd be facing 25 to life.
The Court: Correct.
[Petitioner]: Yeah. So out of fear, I'm going to take this deal because the truth is I faxed the Sheriff's Department five days before departure. And there's going to be a police officer as a witness in my trial, I understand, that's going to say that the residents -- the other two residents at the home said I'd been gone for a month, but the truth is I wasn't. But people are not going to take the chance that a jury won't believe that. So I'll take this deal.
[Defense counsel]: Your Honor, I think what I explained to [petitioner] is that for purposes of preliminary hearing, the officer could testify to the hearsay statements of the two residents at the address he was registered at, that he had been gone for a month. However, that at trial they would actually have to produce those two witnesses and ultimately the jury would have to decide whether or not they believed that testimony.
[Petitioner]: My sister faxed a letter on my behalf to the Mission Viejo Sheriff's Department within five days of my departure from that residence. And the police came to that residence and talked to two people that lived in that home who don't like me. And for some reason, they told the police I'd been gone a month. And it's not true. In many ways, I don't want to take that chance to receive a 25-to-life sentence if it goes wrong.
* * *
The Court: . . . I certainly don't like taking a guilty plea from somebody who says that they're not guilty and the only reason they're doing it is out of fear they're going to get more serious consequences. You don't have to rush into anything today. . . .
[Petitioner]: Your Honor, I'm told that if I don't take this, I won't have the opportunity again to have those strikes waived.
[Defense counsel]: Your Honor, that's not what I said. I said that in the future we might have here an offer that's higher than 16 months.
The Court: Let's take a break. Go talk in chambers.

(RT 6-11).

A recess was then taken. When the proceedings resumed, petitioner informed the trial court that because he was facing a sentence of 25 years to life, " it would be smart to take [the plea]." (RT 12).

The court agreed, and noted that since petitioner was currently serving time on a parole violation, the 16-month sentence pursuant to the plea agreement would result in only about two additional months of incarceration. (RT 12-13). The court then stated:

. . . I can accept your plea, even though you are basically stating to me that you feel you're innocent of the offense. The law allows me to accept your plea even though you are stating that you don't feel you are guilty of the offense.
It appears to me that you are an intelligent, mature individual who has gone through a cost benefit analysis that is exactly what I would go through if I were in your situation and I totally understand your position.

(RT 13).

Petitioner stated that he was " going to take a guilty plea because it's for my best interest." (RT 14). Petitioner confirmed that he was not under the influence of anything that would affect his judgment or impair his thinking, and that he understood the conviction could result in his deportation if he were not a citizen. (RT 14). Petitioner then entered his plea of guilty to Count 1, a violation of California Penal Code § 290(g), for failing to register. (RT 14). After defense counsel joined in the plea and waivers, the court accepted petitioner's guilty plea and noted that petitioner " understands his constitutional rights" and made " a knowing, voluntary, and intelligent waiver of his applicable constitutional rights." (RT 15). Pursuant to the plea deal, the court sentenced petitioner to 16 months in state prison. (RT 15).

In support of the challenge to his plea, petitioner has also provided documentary evidence in the form of mental health records. In particular, attached to the Petition is a " Consult Request" dated November 15, 2010, and prepared by a psychologist from the Long Beach VA Medical Center. The Consult Request states that petitioner was initially seen in October 2002 for treatment of " recurrent depression/bipolar mixed type." Petitioner was started on medication at that time, but apparently was not seen again until May 2005, when he was " restarted on antidepressant medication." Petitioner followed up with treatment one year later, but then he was not seen a subsequent time for treatment until November 2010. At that point, petitioner was homeless and was given a prescription for Abilify, which is prescribed to treat schizophrenia and episodes of mania and depression. (See November 15, 2010, Consult Request, attached to Petition; see also Medline Plus at

Petitioner has also attached to his Petition a document labeled as Exhibit C, which he represents is a copy of his prison status sheet that shows he was a mental health patient while incarcerated in 2010. (See Petition, Exhibit C).

Lastly, attached to the Reply is a progress note dated October 18, 2013, from the Long Beach VA Medical Center, which reflects that petitioner had been taking Wellbutrin (an antidepressant) and Abilify, but had stopped both medications the week prior. According to the note, petitioner was homeless, and reported that he had experienced manic episodes, was feeling depressed and helpless, and was feeling paranoia due to his GPS tracker. He admitted " to audio hallucinations, people calling [him], . . . a lot of talking of foreign languages[, ] and see[ing] [an] angel in the past." (See progress note, attached to Reply).

B. State Court Opinion

In denying petitioner's challenge to the validity of his plea, the Orange County Superior Court stated in pertinent part:

The transcript of the May 13, 2010 hearing, supplied by petitioner, reveals petitioner acknowledged having sufficient time to discuss with counsel the nature of the charge as well as any possible defenses. He further understood his various constitutional rights and knowingly waived them in order to plead guilty. Petitioner further represented to the court he was not under the influence of anything affecting his judgment or impairing his thinking. Petitioner acknowledged no one had threatened him or made promises to him in exchange for his plea of guilty. The mere fact petitioner decided to plead guilty to avoid the risk of having to serve an indeterminate term of imprisonment if convicted of all charges and enhancements at trial does not equate to undue coercion from the trial court or defense counsel.

(Lodgment No. 3 at 54).

C. Analysis

Due process requires that a defendant be mentally competent to plead guilty. See Godinez v. Moran, 509 U.S. 389, 396-400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). That generally means the defendant must have a rational and factual understanding of the legal proceedings and the ability to rationally consult with and understand his lawyer. See Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996) (discussing competency to stand trial); Boag v. Raines, 769 F.2d 1341, 1343 (9th Cir. 1985) (same).

Additionally, to be valid a plea must be both voluntary and intelligent. Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). " A plea is 'involuntary' if it is the product of threats, improper promises, or other forms of wrongful coercion." United States v. Hernandez, 203 F.3d 614, 619 (9th Cir. 2000) (citation omitted), overruled on other grounds by United States v. Ferguson, 560 F.3d 1060 (9th Cir. 2009). A plea is " unintelligent" if the defendant is without the information necessary to assess intelligently the advantages and disadvantages of a trial as compared with those attending a guilty plea, or if the decision to plead is based on incompetent advice from counsel. Hernandez, 203 F.3d at 619, n.7. When determining voluntariness, all of the relevant circumstances must be examined. Brady, 397 U.S. at 749; United States v. Kaczynski, 239 F.3d 1108, 1114 (9th Cir. 2001). It must be determined " whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). A defendant's representations at a plea hearing, as well as any findings made by the judge accepting the plea, constitute a " formidable barrier in any subsequent collateral proceedings." Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).[5]

Here, after a careful review of the record, including petitioner's exhibits attached to the Petition and Reply, the Court concludes that habeas relief is not warranted. Petitioner's participation in the plea colloquy shows a rational as well as a factual understanding of the nature and object of the proceedings against him: petitioner gave detailed answers when appropriate, sought clarification from the court and his counsel when necessary, and he logically explained his reasons for accepting the plea while maintaining his innocence (i.e., to avoid exposure to a lengthy sentence pursuant to the Three Strikes law). Petitioner also stated on the record that he was not under the influence of anything that would affect his judgment or impair his thinking, and the Court notes that, based on the transcript, there is no indication that petitioner was acting irrationally or was experiencing any memory problems or side effects of psychotropic medications. Although the exhibits petitioner attached to his Petition and Reply reflect that he has a history of sporadic mental health treatment from 2002 to at least 2013, the documents do not establish that, at the time of the plea hearing, petitioner was experiencing any cognitive deficits or otherwise was unable to comprehend the factual and legal nature of the proceeding. To the contrary, the transcript reflects that petitioner was lucid and fully understood the consequences of his plea negotiation and agreement, and that he received the benefit of his bargain and got the exact, bargained-for sentence of sixteen months. Indeed, after questioning petitioner during the colloquy, the trial court noted that petitioner was " an intelligent, mature individual who ha[d] gone through a cost benefit analysis" -- further indication of petitioner's mental competence. (RT 13). In short, petitioner has not provided any evidence showing that he lacked the ability to understand the plea proceeding.

Nor is there any indication that petitioner's plea was not voluntary or intelligent. According to the plea transcript, when the trial court asked petitioner if he understood the rights he was giving up by pleading guilty, and informed him that he would be receiving a sentence of sixteen months, petitioner acknowledged his understanding. Petitioner also answered in the affirmative when asked if he had read the plea form and discussed it with his counsel. From the transcript, it appears that there was adequate communication between petitioner and his counsel about the issues at stake. Although petitioner stated that he was entering into the plea out of fear of receiving a lengthy sentence as a third striker if he went to trial and lost, he represented that no one forced him to enter the plea, and that no one made promises to him other than those set forth in the plea agreement. Petitioner's " [s]olemn declarations in open court carry a strong presumption of verity[, ]" ( Allison, 431 U.S. at 74), and " [c]ourts generally consider such responses to be strong indicators of the voluntariness of the [petitioner's] guilty plea." Sanchez v. United States, 50 F.3d 1448, 1455 (9th Cir. 1995). Moreover, that petitioner entered the plea to avoid the possibility of a sentence of twenty-five years to life if he went to trial did not render his guilty plea involuntary. See, e.g., Brady, 397 U.S. at 755 (" [A] guilty plea is not invalid merely because entered to avoid the possibility of a death penalty."); Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) (" [A]cceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial." (citations omitted)). Thus, given petitioner's representations at the hearing indicating that he was waiving his rights with sufficient awareness of the consequences and that entering the plea was a voluntary expression of his own choice, his challenge to the validity of the plea agreement must fail.

Based on the foregoing, it was not unreasonable for the state court to reject petitioner's habeas challenge, as the evidence shows that petitioner was not only competent to plead guilty, but that he also validly waived his rights and voluntarily and intelligently entered the plea. Thus, the state court's denial was not inconsistent with Supreme Court precedent. See Richter, 131 S.Ct. at 786-87; 28 U.S.C. § 2254(d). Habeas relief is denied for Ground One.


In Ground Two, petitioner asserts that his attorney was ineffective for persuading him to plead guilty by convincing him that he would get a Three Strikes sentence if he went to trial and was found guilty. Petitioner states that his offense was not in fact " strikeable" and therefore counsel's advice to plead guilty to avoid a Three Strikes sentence was erroneous. (Petition at 5-6).

Claims of ineffective assistance are governed by Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (holding that Strickland applies to plea challenges based on ineffective assistance of counsel). The Strickland inquiry has two parts: deficient performance and prejudice. Strickland, 466 U.S. at 687. " In the context of a guilty plea, the ineffectiveness inquiry probes whether the alleged ineffective assistance impinged on the defendant's ability to enter an intelligent, knowing and voluntary plea of guilty. To succeed, the defendant must show that counsel's assistance was not within the range of competence demanded of counsel in criminal cases and that the defendant suffered actual prejudice as a result. " Lambert v. Blodgett, 393 F.3d 943, 979-80 (9th Cir. 2004). The test for prejudice " focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill, 474 U.S. at 59. In other words, petitioner must establish that " there is a reasonable probability that, but for counsel's alleged errors, he would not have pleaded guilty and would have insisted on going to trial." Id.

Here, petitioner asserts that his counsel's purported advice to plead guilty was misguided because, as a result of " recent changes in the law, " his commitment offense would not have subjected him to an indeterminate life sentence. (Petition at 5-6). Petitioner's assertion is baseless. At the time of petitioner's plea hearing in 2010, a defendant, such as petitioner, who had two or more prior strikes and who was convicted of any new felony would have received a sentence of at least twenty-five years to life. See Cal. Penal Code § 667(e)(2) (2010).

The Court notes that the Three Strikes law was later amended in November 2012, when California voters passed Proposition 36, the Three Strikes Reform Act. As explained by the California Court of Appeal in People v. Yearwood, 213 Cal.App.4th 161, 151 Cal.Rptr.3d 901, 904 (Cal.App. 5 Dist. 2013):

The Act change[d] the requirements for sentencing a third strike offender to an indeterminate term of 25 years to life imprisonment. Under the original version of the three strikes law a recidivist with two or more prior strikes who is convicted of any new felony is subject to an indeterminate life sentence. The Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor . In all other cases, the recidivist will be sentenced as a second strike offender.

213 Cal.App.4th at 167-68 (citations omitted) (emphasis added). To the extent petitioner is referring to this change in the Three Strikes law as the basis for his ineffective assistance claim, he cannot show any deficient performance or prejudice as the Three Strikes statute was not revised until November 2012 -- long after his plea in May 2010. Thus, had petitioner actually gone to trial and been convicted of the instant offense, and had his two prior strikes been found true, he would have been subject to a sentence of twenty-five years to life. Given that his maximum exposure at trial was twenty-five years to life, he has failed to show how any advice on the part of his attorney to accept the sixteen month sentence was professionally deficient.[6] See, e.g., United States v. Sutton, 794 F.2d 1415, 1421-22 (9th Cir. 1986) (counsel's advice to plead guilty to one of nine counts was reasonable where defendant's admission of one count in effect admitted guilt to the eight counts dismissed as part of the plea agreement). In short, his attorney's advice was not objectively unreasonable or outside the range of competent performance. Nor is there any indication that petitioner's counsel forced him to accept the plea agreement. Rather, as stated in the discussion concerning Ground One, supra, the record reflects that petitioner's plea was voluntary.

Even assuming that counsel's advice was unreasonable, however, petitioner does not establish prejudice. Again, petitioner benefitted from his plea by avoiding being prosecuted as a third strike offender. He has not presented any evidence that he could have bargained with the prosecution for a sentence lighter than sixteen months. Thus, it is not reasonably probable that, but for counsel's alleged incompetent advice, petitioner would have ultimately rejected the plea offer. See Hill, 474 U.S. at 59; see, e.g., United States v. Baramdyka, 95 F.3d 840, 845-47 (9th Cir. 1996) (the defendant suffered no prejudice from accepting plea agreement when, inter alia, " counsel succeeded in substantially reducing the sentence that [the defendant] would have likely received had he gone to trial").

For these reasons, the Court concludes that petitioner has not set forth a colorable claim of ineffective assistance. See Cassett, 406 F.3d at 623-24. Habeas relief is denied on Ground Two.


Petitioner's claims in Grounds Three, Four, and Five -- i.e., that he was denied access to the prison law library; that he was denied his sentencing transcript " for many months"; that the sentencing transcript does not accurately reflect what he remembers being said during his sentencing hearing; and that the conditions of parole have caused him to become homeless in violation of the Eighth Amendment's ban on cruel and unusual punishment -- are not cognizable in this habeas proceeding because the claims do not challenge the legality or duration of his conviction and sentence. " [T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); see also Heck v. Humphrey, 512 U.S. 477, 481, 114 S.Ct. 2364, 2369, 129 L.Ed.2d 383 (1984) (" [H]abeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release. . . ."). Petitioner's challenges to the conditions of his confinement and parole term are therefore not cognizable on habeas review. See Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003) (" [H]abeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence."); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (" Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the 'legality or duration' of confinement. A civil rights action, in contrast, is the proper method of challenging 'conditions of . . . confinement.'" (citations omitted)). Accordingly, habeas relief is not available for Grounds Three, Four, and Five. V.


It is recommended that the District Court issue an Order: (1) accepting this Report and Recommendation; and (2) directing that judgment be entered denying the Petition and dismissing this action with prejudice.

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