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Fannan v. Peery

United States District Court, E.D. California

June 17, 2016

JEREMIAH D. FANNAN, Petitioner,
v.
SUZANNE M. PEERY, Warden, California Correctional Center, [1]Respondent.

          MEMORANDUM DECISION

          JAMES K. SINGLETON, JR. Senior United States District Judge

         Jeremiah D. Fannan, a state prisoner proceeding pro se, filed a Petition for Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Fannan is currently in the custody of the California Department of Corrections and Rehabilitation and incarcerated at the California Correctional Center in Susanville. Respondent has answered, and Fannan has replied.

         I. BACKGROUND/PRIOR PROCEEDINGS

         In satisfaction of a 10-count indictment, Fannan pled no contest to assault with force likely to cause great bodily injury, kidnapping during a carjacking, and reckless driving. As to the assault charge, he also admitted the sentence enhancement allegation that he inflicted great bodily injury on the victim. On direct appeal of his conviction, the Court of Appeal described the following facts underlying the charges against Fannan and his subsequent plea:

[Fannan] met Sam Jungwirth at the Whiskeytown Visitor Center in August 2010. Jungwirth agreed to give Fannan a ride to Lewiston. [Fannan] directed Jungwirth to a remote location and then hit Jungwirth multiple times on his head and face. [Fannan] ordered Jungwirth to move to the passenger's seat and Fannan moved to the driver's seat, locked the doors and began driving back toward Redding. He demanded Jungwirth's wallet and took him to an ATM to withdraw cash. [Fannan] also told Jungwirth not to report his truck as stolen for at least a week. [Fannan] threatened Jungwirth and his family's safety if he did not comply with [Fannan's] demands. When they got to the bank, Jungwirth yelled for someone to call 911.
Law enforcement issued an alert for the stolen truck. A few hours later, officers saw defendant driving Jungwirth's truck recklessly on the highway. Officers attempted to pull the truck over and [Fannan] fled in the truck, reaching speeds of approximately 80 miles per hour and skidding into the opposing lane. Later officers found the stolen truck, unoccupied and a K-9 officer found [Fannan] in the woods near the truck.
As a result of being hit by [Fannan], Jungwirth had a black eye, multiple contusions, and required stitches to his forehead and ear.
[Fannan] made five MarsdenFN1 motions which the trial court denied. The trial court granted [Fannan's] sixth Marsden motion based on an irreconcilable conflict between defendant and counsel, and appointed substitute counsel. The trial court later relieved substitute counsel due to health issues and appointed new counsel.
FN1. People v. Marsden (1970) 2 Cal.3d 118.
[Fannan] filed a motion to dismiss based on a violation of his right to a speedy trial. The trial court denied the motion. [Fannan] also filed a motion to dismiss in the interests of justice. (Pen.Code, § 1385.)FN2 The trial court denied the motion.
FN2. Undesignated statutory references are to the Penal Code in effect at the time of [Fannan's] crimes.
[Fannan] pleaded no contest to assault with force likely to cause great bodily injury (Pen.Code, § 245, subd. (a)(1)), kidnapping during a carjacking (id., § 209.5, subd. (a)), and reckless driving (Veh. Code, § 2800.2, subd. (a)). As to the assault charge he also admitted the enhancement allegation that he inflicted great bodily injury on the victim. (Pen.Code, § 12022.7, subd. (a).) In exchange for the plea, numerous charges were dismissed. In accordance with the plea agreement, the court sentenced defendant to an aggregate term of seven years eight months, plus a consecutive term of life in state prison. The trial court ordered [Fannan] to pay a $3, 000 restitution fund fine (id., § 1202.4, subd. (b)), a $3, 000 suspended restitution fine unless parole is revoked (id., § 1202.45), and awarded [Fannan] 693 days of presentence custody credit (id., § 2933.1).

People v. Fannan, No. C070904, 2013 WL 1461076, at *1-2 (Cal.Ct.App. Apr. 11, 2013).

         Through assigned counsel, Fannan appealed his conviction by filing a brief pursuant to People v. Wende, 600 P.2d 1071 (Cal. 1979), whereby appointed counsel filed an appellate brief reciting a summary of the proceedings and the facts of the case and requesting the court to independently review the record because counsel had found no arguable legal issues to raise. Appellate counsel informed Fannan of the filing of the Wende brief and advised him that he could file a supplemental brief in the Court of Appeal within 30 days of the date the Wende brief was filed or on leave of the court. Fannan submitted a supplemental brief alleging that: 1) he was denied his right to a speedy trial; 2) initial trial counsel was ineffective for failing to file a peremptory challenge under Code of Civil Procedure § 170.6, a change of venue motion, a motion to recuse the district attorney's office and for having a conflict of interest based on her prior representation of him in another case; 3) plea counsel was ineffective for advising Fannan that his speedy trial rights would be preserved for appeal; 4) the trial court erred in relieving substitute counsel for health issues and denying Fannan's motion to dismiss; and 5) appellate counsel was ineffective for filing a Wende brief on appeal. Neither Fannan or appellate counsel obtained a certificate of probable cause.[2]

         The Court of Appeal affirmed the judgment against Fannan in its entirety in an unpublished, reasoned opinion issued on April 11, 2013. Fannan, 2013 WL 1461076, at *3. The appellate court concluded that the majority of Fannan's claims raised in his supplemental brief arose prior to his plea and thus were not reviewable in the absence of a certificate of probable cause. Id. at *2. And while his post-plea claim that appellate counsel was ineffective for filing a Wende brief was reviewable, ...


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