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White v. Montgomery

United States District Court, C.D. California

June 12, 2017

CORY JAMES WHITE, Petitioner,
v.
W.L. MONTGOMERY, WARDEN, Respondent.

          ORDER DENYING PETITION

          DEAN D. PREGERSON UNITED STATES DISTRICT JUDGE

         Presently before the court is Cory James White (“Petitioner”)'s Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Pursuant to a plea agreement, White pleaded guilty to aiding and abetting a bank robbery on February 28, 2000-as charged in Count One of the indictment in United Stat es v. Anton Jamal Collins and Corey James White, No. CR 00-258-DDP-2 (hereinafter “White I”)-and to committing a bank robbery on February 23, 2000-as charged in the single-count indictment in United States v. Cory James White, No. CR 00-752-DDP-1 (hereinafter “White II”). This Court sentenced White to 94 months' imprisonment on both counts, to be served concurrently and to be followed by a period of supervised release. White completed his sentence and term of supervised release on approximately February 1, 2010. Some sixteen months later, White committed another bank robbery, which was prosecuted in the Superior Court of the State of California, County of Orange. A jury convicted White of armed bank robbery and the Superior Court sentenced petitioner to a term of imprisonment of forty years to life. This sentence was based in part on the Superior Court's determination that Petitioner's guilty pleas in White I and White II constituted two prior “strikes” under California's Three Strike Law, see Cal. Penal Code § 667.

         White now petitions this Court for relief from his guilty plea in White I on the ground that he was misinformed by his defense counsel that his plea would only constitute one strike. White claims that had he understood his guilty plea would count as two separate strikes, he would not have pleaded guilty. Having considered the parties' submissions, the court DENIES the Petition and adopts the following Order.

         I. BACKGROUND

         On March 14, 2000, Petitioner was charged in a two-count indictment with aiding and abetting co-defendant Anton Jamal Collins in the commission of two bank robberies on February 28, 2000. See White I. On June 30, 2000, Petitioner was charged in a separate case with a single-count indictment for committing a third bank robbery five days earlier on February 23, 2000. On November 14, 2000, Petitioner pleaded guilty before this Court to Count One of the indictment in White I and the single-count indictment in White II. (White I, Dkt. 47.)

         As part of the plea agreement, Petitioner admitted to the following facts. On February 23, 2000 (the first robbery), Petitioner admitted to robbing Vineyard National Bank in Rancho Cucamonga, California along with a partner. (Id., Dkt. 45 (Plea Agreement) at ¶ 6.) According to the plea, Petitioner wielded a gun and stood near the door while his partner went to the teller window. (Id.) During the course of the robbery, Petitioner admitted to throwing a male customer to the ground while brandishing his gun and to running away from the bank with his partner. On February 28, 2010 (the second robbery), Petitioner admitted to serving as a getaway driver for co-defendant Collins while Collins robbed a Vineyard National Bank in Diamond Bar, California. (Id.) Pursuant to the plea agreement, the government dismissed the second count of the indictment in White I, which asserted that Petitioner served as a getaway drive for another robbery-this one at a Bank of America in Upland, California-on February 28, 2000 (the third bank robbery). (Id. ¶ 13(b)l Presentence Report (Dec. 18, 2000), ¶¶ 17-22.) Assuming the court calculated a certain criminal history category, the government also agreed to recommend a low-end sentence. (Plea Agreement ¶ 13(d).)

         On April 18, 2001, this Court sentenced Petitioner to ninety-four months' imprisonment on each count of the conviction, to be served concurrently, followed by a total of five years of supervised release. (White I, Dkts. 66, 67.) The sentence was adjusted after Petitioner violated the terms of his supervised release and Petitioner was ultimately released from custody on February 1, 2010.

         On June 24, 2011, Petitioner committed another armed bank robbery. (Gov't Opp'n, Ex. 1.) Defendant was convicted by a jury in the Superior Court of the State of California of second degree robbery for robbing a Banco Popular in La Habra, California at gunpoint. See People v. Cory James White, No. 11NF3599 (Cal. Super. Ct. 2013) (hereinafter “White III”); (Gov't Opp'n, Exs. 2, 3.) When calculating Petitioner's sentence, the Superior Court found that Petitioner's convictions in White I and White II constituted two prior “strikes” under California's Three Strikes Law. (Gov't Opp'n, Ex. 3 at 68-69.) Based on these strikes, and other enhancements, the court sentenced Petitioner to a term of imprisonment of forty years to life. (Id. at 69.)

         Petitioner appealed his sentence to the California Court of Appeals, arguing, inter alia, the Superior court erred in finding that Petitioner had two prior strikes. See People v. White, No. G048783, 2014 WL 4638970, at *1 (Cal.Ct.App. Sept. 17, 2014). On September 17, 2014, the California Court of Appeals denied Petitioner's appeal and concluded that the Superior Court had not abused its discretion in considering Petitioner's White I and White II convictions as two separate strikes. Id. at *2.)

         On September 1, 2015, Petitioner filed the instant Section 2254 petition, alleging that his appointed counsel in White I and White II had advised him to agree to the plea deal and told him that the offenses to which he was pleading guilty would only constitute one “strike” for purposed of California's Three Strikes Law. (Pet. 3, 5.) Petitioner claims that, had he known that the guilty plea would constitute two strikes, he would not have agreed to the deal. Thus, Petitioner argues this his counsel's purported advice constituted ineffective assistance of counsel, in violation of his Sixth and Fourteenth Amendment rights. (Id. at 5.)

         II. DISCUSSION

         A. Construing Petitioner's Section 2254 Writ as a Writ of Coram Nobis

         Petitioner filed this action pursuant to 28 U.S.C. § 2254. Ordinarily, section 2254 governs habeas petitions brought by state prisoners. See White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004) overruled on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (holding that section 2254 governs actions “as long as the person is in custody pursuant to the judgment of a state court”) (internal quotations and citations omitted). Section 2254, however, is inapplicable to Petitioner's particular claim because he is not challenging his state court conviction. Instead, Petitioner argues that he received ineffective assistance of counsel during the federal criminal proceedings in White I and White II. While a habeas petition pursuant to section 2255 is the ordinary means of challenging a federal conviction, that provision is also inapplicable to the instant claim because Petitioner is no longer in federal custody. See 28 U.S.C. § 2255(a). As the government suggests, the only possible vehicle for a petitioner such as White to challenge the collateral consequence of a prior federal conviction on a subsequent state court sentence is a writ of error coram nobis.

         “The writ of error coram nobis affords a remedy to attack an unconstitutional or unlawful conviction in cases when the petitioner already has fully served a sentence.” Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994) (citing United States v. Walgren, ...


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