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Colegrove v. Hoshino

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

January 21, 2015

MARTIN HOSHINO, et al., Defendants.



Petitioner Del Eddy Colegrove brings this Petition for Writ of Habeas Corpus, alleging that he was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Pet., ECF 1 at 10. Petitioner was charged with various sexual offenses committed against his stepdaughter between 2006 and 2008. Petitioner alleges that his trial counsel provided him inadequate assistance during plea bargaining, causing Petitioner to reject a plea bargain under which he would have received a maximum term of imprisonment of fifteen years. See Pet. at 10-11. After trial, the jury ultimately convicted Petitioner on thirty counts, and he was sentenced to 64 years in prison.

Petitioner argues that he is entitled to habeas relief because his counsel did not know, and did not adequately inform him, of his maximum exposure were he to be convicted by a jury at trial. He alleges that, at the time he was offered a 15-year plea bargain, he was in fact facing between 48 years and 59 years and 4 months in prison were he to be convicted, an amount which increased to 188 years and 2 months by the time of trial. Pet. at 11. Petitioner contends that:

Had I known that I could have received a sentence of 188 years 2 months, ... or even 48 years, I would have accepted the offer of plea agreement and would not have proceeded to trial. But my trial counsel never informed me of the maximum sentence that I was facing at any point in the case.

Id. The government opposes, contending, among other things, that Petitioner did not present sufficient evidence before the state court to show that his trial counsel's performance had been constitutionally deficient.

For the reasons given below, the Court DENIES the Petition.


A. Petitioner's Conviction and Subsequent Procedural History

Pursuant to a First Amended Information, see Pet. Exh. A at 257-89, Petitioner was charged with 46 sexual offenses against M., his stepdaughter.

On July 25, 2009, following a jury trial, Petitioner was convicted on 30 counts: seven counts of forcible oral copulation (Penal Code § 288a(c)(2)) and three counts of forcible penetration by a foreign object (Penal Code § 289(a)(1)), related to acts committed between June 1 and December 31, 2007; six counts of forcible rape (Penal Code § 261(a)(2)) and eight counts of oral copulation of a person under age 18 (Penal Code § 228a(b)(1)), related to acts committed between July 1, 2006 and August 25, 2008; and six counts of unlawful sexual intercourse with a minor more than three years younger than Defendant (Penal Code § 261.5(c)), related to an incident "on or around August 12, 2008." See Pet. Exh. A. at 257-89; see also Pet. Exh. I at 2.

Following trial, the People filed a sentencing recommendation asking Petitioner be sentenced to 128 years in prison, "an aggravated term of 8 years for each of his separate forcible sex acts against the minor victim." Pet. Exh. A at 387. The Probation Department also recommended a 128-year sentence. Pet. Exh. A at 403-05. Defense counsel argued in a sentencing statement that a 128-year sentence would be illegal, because the jury did not make any factual findings regarding aggravating factors or statutory sentencing enhancements, which the defense contended under Cunningham v. California, 549 U.S. 270 (2007), prevented the court from imposing full, separate, and consecutive sentences for each forcible sex act. See Pet. Exh. A at 439-45.

On November 13, 2009, Petitioner was sentenced to "a total term in prison of 64 years: eight years for the forcible foreign object penetration in count 4 (the principal term) and consecutive terms of eight years each for the forcible penetration by a foreign object in count 6 and the six rapes in counts 7 through 12. On the other counts, the Court imposed concurrent sentences or stayed sentences." Pet. Exh. I at 2-3 (a summary of the procedural history of the case provided by the California Court of Appeal, Sixth District). At sentencing, Petitioner's counsel renewed her contention that Cunningham prevented the imposition of the sentence sought by the government, see Pet. Exh. B at 2518-23, and argued that the imposition of consecutive terms, "[w]hether it's 64 years or 128 years" amounted to a life sentence for her client. Id. at 2526. Prior to being sentenced, Petitioner was given the opportunity to speak, during which he stated "I'd also like to thank you, my lawyer, Kristine Burk for doing a great job representing me through this as well." Id. at 2527.

Following his sentencing, Petitioner filed a timely notice of appeal on January 5, 2010, see Pet. Exh. F at 3, and filed for state habeas relief through an amended petition for habeas corpus on February 4, 2011, alleging various violations of his right to effective assistance of counsel. Pet. Exh. F. On October 28, 2011, the Court of Appeal for the Sixth District affirmed the judgment against Plaintiff in its entirety, and summarily denied Petitioner's request for state habeas relief in a one-sentence order.

On December 7, 2011, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court, which summarily denied the Petition in a one-sentence order on April 11, 2012. Pursuant to 28 U.S.C. § 2254, Petitioner timely filed for federal habeas relief on January 8, 2013.

B. Facts Related to Petitioner's Claim for Ineffective Assistance of Counsel

In his petition for writ of habeas corpus before the California Court of Appeal, Petitioner alleged various grounds for his claim of ineffective assistance of counsel. See Pet. Exh. F. Petitioner reasserts only one of these grounds in this instant Petition, arguing that his attorney, Kristine Burk, failed to advise him of the maximum penalty he was facing were he to go to trial, and that this failure caused him to decline a plea bargain that would have resulted in a maximum sentence of fifteen years imprisonment.

With his state petition, Petitioner included a declaration in which he stated:

Ms. Burk did not explain to me that I could be sentenced to 64 years in state prison if I was convicted of the charges upon which I was found guilty. She did not explain to me the maximum possible sentence I faced if I was convicted on all charged counts. She did not explain to me the concept of "stacking" and how "stacking" could result in a longer prison sentence for me. In fact, I understood from what Ms. Burk told me that a 16 year sentence was likely but that a 24 year sentence was possible ...

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