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Johnson v. Hatton

United States District Court, N.D. California

November 7, 2017

CEDRIC CHESTER JOHNSON, AX8353, Petitioner,
v.
SHAWN HATTON, Warden, Respondent.

          ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

          CHARLES R. BREYER, UNITED STATES DISTRICT JUDGE.

         Petitioner Cedric Chester Johnson, a state prisoner incarcerated at the Correctional Training Facility (CTF) in Soledad, California, seeks a writ of habeas corpus under 28 U.S.C. § 2254 invalidating three consolidated criminal convictions from Monterey County Superior Court on the ground that he received ineffective assistance from both trial and appellate counsel. For the reasons set forth below, the petition will be denied.

         I. STATEMENT OF THE CASE

         On February 17, 2015, the Monterey County District Attorney filed a complaint in case number SS150250A accusing petitioner of transportation of a controlled substance (Cal. Health & Safety Code § 11379(a)), possession for sale of a controlled substance (id. § 11378), possession of marijuana for sale (id. § 11359), receiving stolen property (Cal. Penal Code § 243(b)), and misdemeanor resisting a peace officer (id. § 148(a)(1)) with two prior prison term sentencing enhancements (id. § 667.5(b)).

         On that same day, the district attorney also filed a complaint in case number SS150256A accusing petitioner of corporal injury to a spouse or cohabitant with a prior domestic violence battery conviction (Cal. Penal Code § 273.5(f)(1)) and false imprisonment (id. § 236) with two prior prison term enhancements.

         On May 1, 2015, the district attorney filed a complaint in case number SS150683A accusing petitioner of criminal threats (Cal. Penal Code § 422(a)), stalking (id. § 646.9(b)) and dissuading a witness (id. § 136.1(b)(2)), and of six misdemeanor counts of violation of a criminal protective order (id. § 166(c)(1)).

         On May 21, 2015, after petitioner waived a preliminary hearing on some of the charges and the court ordered that he be held to answer the others, the district attorney filed an information charging petitioner with all the above charges except criminal threats.

         On May 28, 2015, the district attorney filed a motion to consolidate the above three cases and, on June 11, 2015, the motion was heard and granted.

         On June 25, 2015, pursuant to a negotiated plea agreement, petitioner pled no contest to transportation of a controlled substance, misdemeanor battery on a peace officer and misdemeanor resisting a peace officer, as alleged in case number SS150250A; corporal injury to a spouse or cohabitant with a prior domestic violence battery conviction, as alleged in case number SS150256A; and dissuading a witness, as alleged in case number SS150683A. In exchange for his plea, petitioner would be sentenced to six years in state prison - four years for corporal injury to a spouse or cohabitant with a prior conviction, two years for dissuading a witness, and a concurrent three-year term for transportation of a controlled substance and concurrent 180-day terms for misdemeanor battery on a peace officer and resisting a peace officer - and all other charges would be dismissed.

         But when petitioner learned that his first two attorneys - Maribel Ferreira and Jan Lindberg - had engaged in plea negotiations with Deputy District Attorney Elaine McCleaf and that his current attorney - Evan George - did not know that the earlier negotiations had included a promise by the prosecutor to keep open a plea offer for a concurrent sentence for the transportation of a controlled substance and misdemeanor resisting a peace officer charges in exchange for petitioner's waiver of a preliminary hearing in case number SS150250A, petitioner informed George that he wished to withdraw his pleas. Petitioner objected to the fact that George had advised him to accept the prosecutor's six-year global plea offer, which included not only a plea to the transportation of a controlled substance and misdemeanor resisting a peace officer charges in the earlier promise to petitioner's former attorney(s), but also a plea to misdemeanor battery on a peace officer.

         On August 6, 2015, George filed a motion to withdraw petitioner's pleas. The court heard and denied the motion. It also heard and denied petitioner's motions for substitution of counsel on August 19 and on August 27, after it denied the motion to withdraw petitioner's pleas.

         On August 27, 2015, the court sentenced petitioner to six years in state prison pursuant to the terms of the plea agreement - four years for corporal injury to a spouse or cohabitant with a prior conviction, two years for dissuading a witness, and a concurrent three-year term for transportation of a controlled substance and concurrent 180-day terms for misdemeanor battery on a peace officer and resisting a peace officer. The remaining charges and allegations were dismissed.

         On September 2 and 8, 2015, petitioner filed notices of appeal and requests for certificates of probable cause to appeal, which the trial court denied. New appellate counsel Nerrissa Kunakemakorn then filed petitions for a writ of mandate and for a writ of habeas corpus in the California Court of Appeal.

         On December 17, 2015, the California Court of Appeal denied the petition for writ of mandate and, on September 28, 2016, affirmed the judgment of the trial court and denied the petition for a writ of habeas corpus. The appellate court noted that appellate counsel had filed an opening brief summarizing the case but raising no issues, and that petitioner had filed a supplemental brief on his own behalf. Pursuant to People v. Wende, 25 Cal.3d 436 (1979), and People v. ...


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