United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding without counsel with a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The matter has been referred to the undersigned
pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.
Petitioner challenges a judgment of conviction entered
against him on February 20, 2013 in the Sacramento County
Superior Court on charges of second degree murder with a
deadly weapon. He seeks federal habeas relief on the
following grounds: (1) his trial counsel was ineffective in
failing to advise him of certain affirmative defenses prior
to entry of his plea deal and (2) his appellate counsel was
deficient in failing to raise his ineffective assistance of
trial counsel claim on appeal. Upon careful consideration of
the record and the applicable law, it is recommended that
petitioner's application for habeas corpus relief be
unpublished memorandum and opinion affirming petitioner's
judgment of conviction on direct appeal, the California Court
of Appeal for the Third Appellate District provided the
following factual summary:
Police found defendant at the scene of Keenan Slotty's
murder covered in blood and practically confessing to the
killing. In one version of the murder, according to
defendant's son and codefendant Nicholas Koppe, Nicholas
started the fight with the victim and his father took over.
Both were charged with first degree murder with an
enhancement for using a deadly and dangerous weapon (a
knife). If convicted as charged, defendant would have faced a
prison term of 25 years-plus to life in prison. Nicholas,
with two prior strikes, would have faced a sentence of 25
years-plus to life for any felony conviction.
The People were reluctant to compromise, but before the trial
started they offered defendant and Nicholas a package they
both had to accept. Defendant was to plead no contest to
second degree murder and admit the use of a knife. He would
be sentenced to a 15-year indeterminate term for the second
degree murder and a one-year determinate sentence for the use
of a knife, for a total of 16 years to life. Nicholas would
plead no contest to one count of voluntary manslaughter, use
of a knife, and assault by means of a knife, and would admit
two prior convictions. He would receive a 33-year determinate
At the plea hearing, Nicholas vacillated between his options.
After initially agreeing to the deal, he backed out of it. He
agreed to it again after telling defendant he would do what
defendant wanted, and defendant indicated he should accept
the deal. At one point, Nicholas discussed the deal with his
attorney and said, “Just because I can't get up to
represent myself doesn't mean he should go down for the
rest of his life.” He backed out of the deal for a
second time, but finally accepted it after the court ordered
the witnesses out of the courtroom and the trial to proceed.
The trial court explicitly asked defendant several questions
about his rights including: if he understood and waived them,
if he understood the consequences of his decision, and if he
had any questions regarding his plea. He answered the
questions appropriately and both he and Nicholas pled no
contest to the previously mentioned charges.
Defendant filed a motion to withdraw his plea. When denying
the motion, the court found defendant had made a very
rational and voluntary decision because the court believed,
relying on its experience with homicide cases, the People had
a very strong case and a jury was likely to find defendant
guilty. The trial court did not find extraneous factors, such
as might be present in a package deal, that affected the
outcome of the case or the decision of defendant to such a
degree that it overpowered his independent will. Defendant
People v. Koppe, 2014 WL 2591117, at *1 (Cal.App. 3
Dist., 2014). Petitioner only raised one issue on direct
appeal, however, namely whether the trial court abused its
discretion in denying his motion to withdraw his plea.
Id. at *1-2. The court of appeal denied his direct
appeal - Id. at *4 - and the California Supreme
Court declined to review this claim on August 20, 2014.
Lodged Document Six “Order Denying Petition for
claims relevant to the immediate action were raised for the
first time in a habeas petition filed with Sacramento County
Superior Court on August 21, 2015. Lodged Document Seven
“Petition for Writ of Habeas Corpus.” The
superior court issued an order denying that petition on
October 26, 2015. Lodged Document Eight “Order Denying
Petition - Sacramento County Superior Court.”
Petitioner appealed that order and, on December 3, 2015, the
California Court of Appeal for the Third Appellate District
issued a summary denial. Lodged Document Ten “Order
Denying Petition - Court of Appeal for the Third Appellate
District.” The California Supreme Court likewise issued
a summary denial on March 16, 2016. Lodged Document Twelve
“Docket Reporting Denying Petition-California Supreme
Standards of Review Applicable to Habeas Corpus
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).
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;
(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.
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. Thompson v. Runnels, 705 F.3d
1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher,
565 U.S. 34, (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,
133 S.Ct. 1446, 1450 (2013) (citing Parker v.
Matthews, 567 U.S. 37, 49 (2012) (per curiam)). 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).
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). In this
regard, 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.
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.”).
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
785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803
(1991)). Similarly, when a state court decision on a
petitioner's claims rejects some claims but does not
expressly address a federal claim, a federal habeas court
must presume, subject to rebuttal, that the federal claim was
adjudicated on the merits. Johnson v. Williams, 568
U.S. 289, 292 (2013).
the state court reaches a decision on the merits but provides
no reasoning to support its conclusion, a federal habeas
court independently reviews the record to determine whether
habeas corpus relief is available under § 2254(d).
Stanley, 633 F.3d at 860; Himes v.
Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
“Independent review of the record is not de novo review
of the constitutional issue, but rather, the only method by
which we can determine whether a silent state court decision
is objectively unreasonable.” Himes, 336 F.3d
at 853. Where no reasoned decision is ...