Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mainez v. Gore

United States District Court, S.D. California

February 21, 2018

JOHN LAZARO MAINEZ, Petitioner,
v.
WILLIAM GORE, Respondent.

          REPORT AND RECOMMENDATION RE RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS [DOC. NO. 13]

          Hon. Karen S. Crawford, United States Magistrate Judge

         Before the Court are respondent's Motion to Dismiss the Petition for Writ of Habeas Corpus [Doc. No. 13] and petitioner's Response thereto [Doc. No. 16]. Petitioner also filed a supplementary response to respondent's Motion to Dismiss. [Doc. No. 21.] In the Motion to Dismiss, respondent argues that the District Court should dismiss the Petition as time-barred. [Doc. No. 13-1, at pp. 12-15.] Alternatively, respondent argues that the Petition should be dismissed, because it includes claims that are procedurally barred and/or unexhausted. [Doc. No. 13-1, at pp. 15-20.] In his Response, petitioner contends that the District Court should deny respondent's Motion to Dismiss and consider his Petition on the merits, because his Petition was timely filed. [Doc. No. 16, at pp. 3-6.] Petitioner also argues that his claims are not procedurally barred and that the Court should allow him leave to amend his Petition to delete any unexhausted claims, [Doc. No. 16, at pp. 6-11.] For the reasons outlined below, IT IS RECOMMENDED that the District Court GRANT respondent's Motion to Dismiss.

         Background

         In his Federal Petition, petitioner challenges his conviction by way of guilty pleas in San Diego Superior Court Case Nos. SCD 228286; SCD 240472; SCE 298454; and SCE 316127. [Doc. No. 1, at p. 1.]

         The record indicates that petitioner pled guilty in Case No. SCD 228286 to possession for sale of a designated controlled substance. [Doc. No. 14-14, at p. 133.] In Case No. SCE 298454, petitioner pled guilty on January 10, 2011 to possession of heroin in exchange for the dismissal of other charges and a sentence no greater than two years, eight months in this case combined with Case No. SCD 228286. [Doc. No. 14-1, at pp. 2, 4-8.] In a hearing held on July 22, 2011, petitioner was placed on felony probation in Case Nos. SCD 228286 and SCE 298454 and the sentences were stayed in each case pending successful completion of probation. Case No. 298454 was designated the "principal case." [Doc. No. 14-2, at pp. 5-8.] However, probation was summarily revoked on November 16, 2011, and an Order to Show Cause (OSC) hearing was set for November 18, 2011. The OSC was then continued several times. [Doc. No. 14-21, at p. I-]

         In a hearing held on March 29, 2012, petitioner admitted a violation of his probation in Case No. SCE 298454 and probation was revoked in that case. [Doc. No. 14-3, at p. 6.] During the same hearing, petitioner pled guilty in Case No. SCE 316127 to possession of a controlled substance for purposes of sale and admitted he had a prior drug-related conviction. [Doc. No. 14-3, at pp. 4-5.]

         On March 6, 2014, Case No. 240427 was considered ready for trial, but petitioner reached an agreement with the state trial court for the charges in all four pending cases (Case Nos. SCE 316127, SCD 228286, SCD 240472, and SCE 298454). [Doc. No. 14-10, at pp. 5-7.] As placed on the record, petitioner agreed to plead guilty to the charges in Case No. SCD 240472 in exchange for a maximum sentence of fourteen years and eight months, with "a nine-year lid" in all four cases for the time petitioner would spend in actual custody while earning 50 percent credits. The balance of the term (i.e., about 5.8 or 6.8 years) would be served in mandatory supervision rather than in actual custody. [Doc. No. 14-10, at p. 6-8.] When asked on the record whether this was his understanding of the plea bargain in this case, petitioner responded, "Yes, it is." [Doc. No. 14-10, at p. 7.] The state trial court also advised petitioner that without the plea bargain his maximum sentence would be 18 years and 6 months in custody. [Doc. No. 14-10, at p. 8.] Petitioner then pled guilty to three counts of transportation of controlled substances; five counts of possession of controlled substances for sale; and admitted several enhancement allegations. [Doc. No. 14-10, at pp. 5-22; Doc. No. 14-29, at p. 2.] Petitioner's guilty plea was also counted as probation violations in Case Nos. SCE 298454 and Case No. SCD 228286 and probation was formally revoked in these cases. Case No. SCE 316127 was trailed for sentencing with these other pending cases. [Doc. No. 14-10, at p. 20.]

         On May 1, 2014, the state trial court held a sentencing and probation revocation hearing in Case Nos. SCE 316127, SCD 228286, SCD 240472, and SCE 298454. [Doc. No. 14-11, at p. 3.] The People did not participate in the plea agreement, and the District Attorney argued that petitioner should be sentenced to fourteen years and eight months in these cases based on aggravating factors. [Doc. No. 14-11, at pp. 3-4, 20.] The state trial court sentenced petitioner to a total term of thirteen years and eight months. [Doc. No. 14-11, at pp. 13-15.] Nine years of the total term was to be spent in custody and the remainder of 4.8 years was to be spent in mandatory supervision. [Doc. No. 14-11, at p. 15.] With custody credits, the trial court expected petitioner to spend about four years in custody. [Doc. No. 14-11, at pp. 15-19.]

         On May 20, 2014, a "resentencing" hearing was held, because it was determined there could be a problem with the sentence as it was imposed on May 1, 2014. [Doc. No. 14-12, at pp. 1-10.] Citing California's Realignment Act, the state trial court explained that petitioner's guilty plea in one of the four cases (Case No. SCD 228286) required him to serve his time in state prison rather than in county jail, and he would accumulate fewer custody credits in state prison. As a result, he would be required to serve more time in custody than the state trial court intended. To maintain the time in custody as previously agreed and imposed (i.e., "around 4 years") the state trial court determined it would be necessary to recall the entire sentence, terminate Case No. 228286, and then re-sentence petitioner in the remaining cases. [Doc. No. 14-12, at pp. 5-11.] Petitioner expressed concern that "local custody is very difficult for that amount of time, " because the jails are only built for temporary housing and "they never let you outdoors." [Doc. No. 14-12, at p. 7-8.] It was petitioner's understanding that conditions were better in state prison, and, as a result, he indicated he would prefer to serve the same amount of time in state prison rather than the county jail. The state trial court explained that he would be required to do "much more time ... in a regular prison setting." [Doc. No. 14-12, at p. 8-9.] Petitioner agreed that he did not want to "do more custody time." [Doc. No. 14-12, at p. 9.] As proposed, the state trial court then recalled the sentence, terminated Case No. 228286, and imposed a total of fourteen years and eight months in the remaining cases, with nine years to be served in custody, less custody credits, and 5.8 years to be served in mandatory supervision. [Doc. No. 14-12, at pp. 11-14.] According to the trial court, "[t]he total time" did not change with this re-sentencing. [Doc. No. 14-12, at p. 12.]

         On July 1, 2014, petitioner filed a habeas petition in the state trial court seeking specific performance of his plea agreement and/or withdrawal of his guilty plea. Petitioner also alleged ineffective assistance of counsel in connection with the plea, claiming that he had to plead guilty to all charges because the trial court refused to allow him to retain counsel of choice. [Doc. No. 14-15, at pp. 1-12.] The state trial court denied the petition in an order filed on September 8, 2014, because petitioner had an appeal pending in the California Court of Appeal. [Doc. No. 14-16, at pp. 1-4.]

         On November 25, 2014, petitioner filed a Notice of Abandonment of Appeal and Request for Dismissal in the California Court of Appeal. [Doc. No. 14-17, at pp. 1-2.]

         On December 1, 2014, the California Court of Appeal granted petitioner's request for dismissal of the appeal and ordered a remittitur to issue "immediately." [Doc. No. 14-18, at p. L] Thereafter, the record shows that petitioner filed five separate petitions in the state court system.

         First, on June 3, 2015, petitioner filed a habeas petition in the state trial court raising numerous claims, including challenges to his plea agreement and sentence. Petitioner argued that his plea agreement was void, because his sentence violated California's Realignment Law. According to petitioner, a state prison term was mandatory for his convictions, and he was ineligible to serve his term in the county jail. [Doc. No. 14-19, at p. 8-10.] He also claimed there was insufficient evidence to establish that he committed any public offense and misconduct on the part of the prosecution for altering evidence and pursuing the case despite an alleged lack of evidence. In addition, petitioner alleged a denial of his Sixth Amendment right to his counsel of choice. [Doc. No. 14-19, at pp. 1-19.] This petition was denied in part on July 14, 2015, but the trial court indicated there might be a problem with the sentence under California's Realignment Law. [Doc. No. 14-21, at p. 7.] As a result, the state trial court requested additional briefing from the District Attorney on two sentencing issues raised in the petition: (1) the place of incarceration under California's Realignment Law; and (2) the length of the sentence imposed. [Doc. No. 14-21, at pp. 1-9.] Petitioner filed a supplement to his petition on July 10, 2015, which rehashed arguments made in the initial petition and raised new issues, including an attack on his preliminary hearing and police misconduct. [Doc. No. 14-20, pp. 1-23.] The trial court denied this petition on September 22, 2015, except for petitioner's sentencing arguments that related to California's Realignment Law, because the trial court was awaiting additional briefing by respondent on this issue. [Doc. No. 14-22, at pp. 1-7.]

         On January 5, 2016, after considering additional briefing on the sentencing issues, the trial court denied the remainder of the June 3, 2015 petition. Essentially, the trial court acknowledged that the sentence imposed in May 2014 was "unauthorized" under California law "[i]nsofar as it provides for incarceration at the county jail and for a period of 'mandatory supervision.'" [Doc. No. 14-23, at p. 7.] However, the state trial court explained that California law also provides that defendants are "estopped" from complaining about sentences "to which they agreed."[1] [Doc. No. 14-23, at p. 5.] In addition, the state trial court explained that the issue was forfeited, because petitioner did not raise the "unauthorized sentence issue before judgment was entered by the trial court" and because petitioner was "receiving the benefit of his bargain." [Doc. No. 14-23, at p. 5.]

         Second, petitioner filed a habeas petition in the California Court of Appeal on April 11, 2016. [Doc. No. 14-24, at p. 1.] Some of the claims in this petition are the same as or similar to those raised in the June 3, 2015 petition, such as a challenges to the sentence under state law, denial of the right to counsel of choice, and alteration or fabrication of evidence. However, this petition also contains new claims, including suppression of exculpatory evidence; ineffective assistance of appellate counsel for misadvising petitioner to abandon his direct appeal in favor of seeking habeas relief; ineffective assistance of trial counsel for failing to object and preserve appealable issues and for having an undisclosed conflict of interest; discovery of new evidence probative to innocence; and police misconduct (racial profiling). [Doc. No. 14-24, at pp. 1-57.]

         On April 13, 2016, the California Court of Appeal denied the petition as untimely and also because it "[fail[ed] on the merits." [Doc. No. 14-25, at p. 2.] According to the California Court of Appeal, the petition was untimely, because it was filed nearly two years after petitioner was sentenced "without any adequate explanation for the delay." [Doc. No. 14-25, at p. 2.] As a general rule, the California Court of Appeal explained that habeas corpus relief is not available where the petitioner could have raised issues in a direct appeal. [Doc. No. 14-25, at p. 2.] In addition, the California Court of Appeal concluded there was no merit to the petition, because petitioner failed to meet his burden of stating sufficient facts justifying relief and failed to meet his burden of submitting evidence to support his claims. The California Court of Appeal also noted that petitioner pled guilty, thereby waiving his right to challenge the evidence against him on the underlying charges or the sentence he stipulated to in exchange for his guilty plea. [Doc. No. 14-25, at p. 2.]

         Third, on April 25, 2016, petitioner filed a petition for review in the California Supreme Court challenging the Court of Appeal's denial of his habeas petition. [Doc. No. 14-26, at pp. 1-25.] In the petition for review, petitioner argued that his claims were not procedurally barred for failure to raise them on direct appeal, because several exceptions applied in his case. These claimed exceptions included fundamental constitutional errors (ineffective assistance of counsel for failing to object to the plea bargain; unauthorized sentence; erroneous advice by trial judge; and excessive punishment). He also claims "exceptions to [the] plea bargain bar, " because the trial court allegedly imposed an unauthorized sentence. [Doc. No. 14-26, at pp. 1-6.] In addition, the petition for review in the California Supreme Court argues that the Court of Appeal erroneously denied his petition in that court as untimely. On this issue, the petition for review states that the three-month filing delay was reasonable and excusable because he attempted on "six occasions" to raise his sentencing issues in the trial court and all of his filings in the trial court were "reasonably prompt, " but they were all erroneously denied, and "these erroneous denials by the superior court excuse any delay in filing the petition in the appellate court." [Doc. No. 14-26, at pp. 4-5.]

         The April 25, 2016 petition for review also alleges new claims and repeats a number of claims that were raised in the Court of Appeal, including denial of counsel of choice; ineffective assistance of trial and appellate counsel; erroneous inducement to enter a guilty plea; erroneous calculation of custody credits; imposition of an unauthorized sentence under California's Realignment Act; and undisclosed conflict of interest. [Doc. No. 14-26, at pp. 1-8.] On June 20, 2016, petitioner also submitted to the California Supreme Court a document entitled "Points and Authorities for Modification of Sentence" that repeats and/or expands on the claims raised in the April 25, 2016 petition for review. [Doc. No. 14-27, at pp. 1-16.] On June 22, 2016, the California Supreme Court summarily denied the petition for review without comment. [Doc. No. 14-28, at p. 1.]

         Fourth, the state trial court received correspondence from petitioner on June 27, 2016 and July 12, 2016. The state trial court construed this correspondence as a single habeas petition. [Doc. No. 14-29, at p. 4.] A copy of this correspondence could not be located in the record. On August 4, 2016, the state trial issued an order denying this habeas petition. [Doc. No. 14-29, at pp. 1-7.] In this order, the state trial court denied petitioner's claim that he should have been sentenced to time in state prison rather than in the county jail under the Realignment Act, because this claim was previously rejected and petitioner did not allege a change in the applicable law or facts. [Doc. No. 14-29, at p. 4.] The state trial court also rejected petitioner's claim that his trial counsel was ineffective for failing to object to "the unauthorized sentence, " because petitioner did not submit any corroborating facts or evidence and did not allege how he has been prejudiced by serving his sentence in county jail rather than state prison. [Doc. No. 14-29, at pp. 5-7.]

         Fifth, the state trial court received undated correspondence from petitioner on September 21, 2016, challenging the denial of the habeas petition he filed in the state trial court on June 3, 2015. The state trial court construed this correspondence as another habeas petition and issued an order denying it on September 22, 2016. [Doc. No. 14-30, at pp. 1-4.] A copy of this correspondence could not be located in the record. The state trial court rejected petitioner's challenge to the denial of his June 3, 2015 habeas petition because he did not allege a change in the applicable law or facts. [Doc. No. 14-30, at p. 2.] The correspondence received from petitioner on September 21, 2016 also argued that the trial court failed to appoint counsel after issuing an OSC, but the trial court rejected this claim, stating that petitioner was already represented by counsel at the time in question. [Doc. No. 14-30, at p. 2.]

         On February 19, 2017, petitioner mailed his Federal Petition to this Court. [Doc. No. 1, at p. 11.] This Petition was stamped "Filed" on February 24, 2017. [Doc. No. 1, at p. 1.] Under the "mailbox rule, " a habeas petition is deemed filed when the prisoner delivers it to prison authorities for forwarding to the clerk of the court, not when the petition is filed by the court. Curiel v. Miller, 830 F.3d 864, 867 (9th Cir. 2016). It is undisputed that the mailbox rule applies in this case, and petitioner is entitled to a constructive filing date of February 19, 2017.

         The claims included in the Federal Petition are as follows: (1) petitioner's guilty plea was not knowing and intelligent, because he was advised to plead guilty to an illegal sentence which required him to serve a greater term in the county jail than he would have been required to serve in state prison; (2) the trial court violated the plea agreement by resentencing him; (3) at the preliminary examination phase, counsel was ineffective because he failed to disclose an "actual" conflict of interest (i.e., he did not tell petitioner that he represented someone who might be a "hostile" witness at petitioner's trial and then did not attack the credibility of this witness during the preliminary examination); (4) at the plea phase, counsel was ineffective because he failed to communicate an early plea offer of four years and failed to object when the trial court induced him to enter the plea with "false statements"; (5) at the sentencing stage, counsel was ineffective because he did not object when the trial court violated the plea agreement by imposing a "wholly illegal sentence" in county jail when state prison was mandatory and would have resulted in a lower term in custody; (6) counsel was ineffective for failing to investigate "exculpatory evidence" when his co-defendant recanted her statement that petitioner forced her to hold the drugs during a traffic stop; (7) petitioner was deprived of his "absolute" right to counsel of choice when the trial court denied his request ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.