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Vargas v. R. M. Diaz

United States District Court, N.D. California

February 2, 2015

HILDEBRANDO VARGAS, Petitioner,
v.
R. M. DIAZ, Respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; GRANTING, IN PART, CERTIFICATE OF APPEALABILITY

VINCE CHHABRIA, District Judge.

INTRODUCTION

Hildebrando Vargas has filed a federal habeas petition challenging the validity of his conviction, following a plea of no contest, of two counts of committing a lewd or lascivious act on a victim under the age of fourteen. His primary contention is that he was denied the right to effective assistance of counsel because his lawyer did not tell him that he could get the charges dismissed based on the 12-year delay from the time the criminal complaint was filed to the time he was actually arrested. Because the lawyer's performance was not obviously deficient, and because in any event Vargas was not obviously prejudiced, the petition is denied.

BACKGROUND

On July 22, 1998, the Monterey County District Attorney's Office filed a felony complaint against Vargas, alleging three counts: (1) sexual battery; (2) sexual penetration with a foreign object; and (3) lewd or lascivious act on a victim under the age of fourteen. Dkt. No. 6-2, In re Hildebrando Vargas on Habeas Corpus, No. HC 7735 (Cal. Sup.Ct. Jul. 27, 2012), at 1. An arrest warrant promptly issued, but Vargas was not arrested until 12 years later. Id. He first appeared in court on May 20, 2010. Resp.'s Ex. A, Monterey County Superior Court Minute Ord. On November 30, 2010, the prosecutor amended the complaint to include an additional charge of committing a lewd act upon a child under the age of fourteen. Dkt. No. 6-1 at 4; Dkt. No. 6-2 at 1. On the same date, Vargas pleaded no contest to the two counts of committing a lewd and lascivious act on a victim under the age of fourteen in exchange for an eight-year prison term. Id. at 2. On December 28, 2010, the court sentenced him to eight years in prison. Id.; Dkt. No. 6-1 at 8.

Vargas did not file a direct appeal. On May 23, 2012, he filed a petition for a writ of habeas corpus in the Monterey County Superior Court, which was denied in a written order on July 27, 2012. Dkt. No. 6-2 at 1, 7. Vargas filed petitions for a writ of habeas corpus in the California Court of Appeal and California Supreme Court, which were summarily denied on November 7, 2012 and February 20, 2013, respectively. Dkt. Nos. 6-4; 6-5.

On April 9, 2013, Vargas filed this federal petition for a writ of habeas corpus. Respondent moved to dismiss the petition as untimely. Dkt. No. 6. On November 13, 2013, the Court denied the motion without prejudice to re-filing should Vargas prevail on the merits of his claims. Dkt. No. 12. On April 17, 2014, the case was reassigned to the undersigned judge. The matter is now fully briefed on the merits.

Vargas's conviction is based on a plea, but the Probation Officer's Report, which Vargas attaches to his petition, provides a summary of the facts. Dkt. No. 1 at 60-63, 66-71. It explains that Vargas sexually molested his step-daughter and biological daughter over a period of many years, beginning when each girl was about nine or ten years old. Id. The record does not explain the twelve-year delay between the filing of the complaint and issuance of the arrest warrant in 1998, and Vargas's arrest in 2010.

LEGAL STANDARD

A federal court may entertain a habeas petition from a state prisoner "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). Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a district court may not grant habeas relief unless 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); Williams v. Taylor, 529 U.S. 362, 412 (2000). In applying this deferential standard, a federal habeas court must determine what arguments or theories supported, or could have supported, the state court's decision; and then it must determine whether fair-minded jurists could disagree that those arguments or theories were inconsistent with Supreme Court precedent. Harrington v. Richter, 131 S.Ct. 770, 786 (2011).

When there is no reasoned opinion from the highest state court to consider the petitioner's claims, the court looks to the last reasoned opinion of the highest court to analyze whether the state judgment was erroneous under the standard of § 2254(d). Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). In this case, the highest court to issue a reasoned decision on Vargas's petition is the Monterey County Superior Court.

DISCUSSION

I. Ineffective Assistance of Counsel Claims

Vargas' primary contention on habeas is that his plea was not knowing or voluntary, because his lawyer did not properly advise him in connection with the plea. In particular, he argues: (A) his lawyer failed to advise him of all the rights he was waiving; (B) his lawyer didn't give him enough time to consider the plea offer; and (C) his ...


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