United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DALE A. DROZD, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against her on May 31, 2012, in the Sacramento County Superior Court pursuant to a plea agreement under the terms of which she entered a no contest plea. As a result of her plea, petitioner was convicted of causing bodily injury to another person while driving under the influence of alcohol, in violation of California Vehicle Code § 23153(b), with sentencing enhancements for causing bodily injury to more than one victim and causing great bodily injury to one victim, pursuant to California Vehicle Code § 23558 and California Penal Code § 12022.7(a). Petitioner seeks federal habeas relief on the following grounds: (1) the trial court abused its discretion in denying her motion to withdraw her no contest plea in light of the evidence presented in support of that motion, thereby violating her rights under the 6th and 14th Amendment rights; (2) she received ineffective assistance in connection with the entry of her no contest plea due to her counsel's failure to conduct an investigation, thereby violating her rights under the 6th and 14th Amendment rights; and (3) she is actually innocent of the crimes of which she was convicted. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.
In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal, the California Court of Appeal for the Third Appellate District provided the following factual summary:
Defendant Tera Lee Nicholson pled no contest to unlawfully driving under the influence of alcohol and the enhancements of causing bodily injury to more than one victim and causing great bodily injury to one victim. Before sentencing, defendant moved to withdraw her plea. The court denied her motion and sentenced her to seven years four months in prison. On appeal, defendant contends the court abused its discretion by denying her motion to withdraw her plea because her prior counsel was constitutionally ineffective. Disagreeing, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2012, emergency personnel responded to a car crash at Folsom Lake Bowl. When they arrived, they found a severely damaged car inside the patio area. The police found defendant next to the driver's door and noticed a "strong odor of an alcoholic beverage." Defendant told the officers she was driving and admitted she had been drinking.
Defendant was charged with driving under the influence of alcohol. It was further alleged that she caused bodily injury to more than one victim and that she caused great bodily injury to one victim. Following two public defenders, John Casey (hereafter prior counsel) was substituted in as defense counsel. With prior counsel's assistance, defendant accepted a no contest plea agreement and the matter was referred to the Sacramento County Probation Department. Defendant admitted to the probation officer she was driving the car the night of the accident.
On the day of her sentencing hearing, defendant - represented by new counsel Donald Masuda - moved to withdraw her plea. Defendant contended that prior counsel was constitutionally ineffective for failing to adequately investigate her case. She argued that further investigation was warranted because: (1) "[i]mmediately after the incident, officers were unable to locate any witness who saw [defendant] operating the Mustang"; (2) the one victim who identified defendant as the driver was purportedly a drug user and did not make an identification until a month after the incident; (3) defendant owned a Droid X cell phone at the time of the accident, not a Nokia phone, which is what was found in the center console of the vehicle; (4) the driver's seat air bag deployed fine white powder and there was no report of any white powder on defendant or her personal belongings; and (5) she did not sustain injuries consistent with what would be expected in an air bag deployment. Defendant filed her own personal declaration and declarations of others to support these claims.
Defendant's declarations also included the following assertions: she had asked prior counsel to conduct an investigation, he initially assured her he would investigate the possibility that someone else was driving her car that night, and after the plea she found out no investigation had been made. Defendant "told [prior counsel] specifically that the phone found in the [car] was not [hers]" and that, prior to entering her plea, prior counsel told her the results of the investigation "did not point to someone else driving that night, " which was why she decided to take the plea agreement. Prior counsel advised her to tell the probation officer she was driving the car to demonstrate remorse.
In opposition, the People submitted declarations of prior counsel. He declared that defendant was upset by the length of her prison term but never gave a substantive reason for why. Before he was retained, he advised defendant it was unlikely that he would be able to secure a better offer. After he was retained, the prosecutor emailed him that if defendant did not take the current plea, the prosecutor would add further enhancement allegations. He met with defendant and explained the best choice for her was to pursue mitigation material. Later that month, he unsuccessfully asked the court and prosecutor for a lower sentence. Defendant was emotional when he was telling her this, and he "reminded her... she did not have to accept the offer if she didn't want to." Defendant never told him she doubted she was the driver or that the cell phone was not hers. He never told defendant he would investigate whether someone else was driving the car or that an investigation had actually occurred. He did not instruct defendant to tell the probation officer she was driving.
The court denied defendant's motion to withdraw her plea, finding that "[t]o the extent disputes or conflicting statements exist between the declarations of the defendant and those of [prior counsel], I credit [prior counsel]'s statements."
People v. Nicholson, No. C071918, 2013 WL 3209465, at **1-2 (Cal.App. 3 Dist. June 25, 2013).
After the California Court of Appeal affirmed her judgment of conviction, petitioner filed a petition for review in the California Supreme Court. (Resp't's Lod. Doc. 5.) The California Supreme Court summarily denied that petition by order dated August 28, 2013. (Resp't's Lod. Doc. 6.)
A. Standards of Review Applicable to Habeas Corpus Claims
An application for a writ of habeas corpus by a person in custody under a judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).
Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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.
For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Greene v. Fisher, ___ U.S. ___, 132 S.Ct. 38, 44 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent "may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, ___ U.S. ___, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Matthews, ___ U.S. ___, 132 S.Ct. 2148, 2155 (2012)). Nor may it be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id . Further, where courts of appeals have diverged in their treatment of an issue, it cannot be said that there is "clearly established Federal law" governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634');"> 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). 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 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a firm conviction' that the state court was erroneous.'") "A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Richter, 562 U.S. at 103.
If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 562 U.S. at 99. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Similarly, when a state court decision on a ...