United States District Court, N.D. California
JAMES C. MCCURDY, Petitioner,
DAVE DAVEY, Warden, Respondent.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF APPEALABILITY; DIRECTIONS TO
LABSON FREEMAN United States District Judge
filed a pro se petition for a writ of habeas corpus
under 28 U.S.C. § 2254, challenging the revocation of
his probation. Dkt. No. 1. After the Petition was dismissed
in part, see Dkt. No. 23, Respondent filed an answer
on the merits (“Answer”). Dkt. No. 35. Petitioner
filed a traverse (“Traverse”). See Dkt.
No. 47 (titled “Denial and Exception”). For the
reasons set forth below, the Petition is
11, 2011, Petitioner pleaded no contest to felony
transportation of a controlled substance. See Dkt.
No. 17-1, Ex. A at 153:23. A seven-year suspended sentence
was imposed, and Petitioner was placed on five years'
probation. See Dkt. No. 17-1, Ex. B at 165:21-25. On
June 4, 2014, Petitioner's probation was revoked and he
was committed to prison for seven years. See Dkt.
No. 17-1, Ex. D at 3:15-18.
did not appeal the revocation of his probation. Instead,
Petitioner filed a petition for resentencing in Sonoma County
Superior Court, as well as habeas petitions in Sonoma County
Superior Court, the California Court of Appeal for the First
Appellate District, and the California Supreme Court. See
generally, Dkt. No. 17-1, Exs. E-I. Each of the
state-court petitions was denied. See generally,
id. The Sonoma County Superior Court summarily
stated that Petitioner's petition for resentencing was
denied because the defendant was not eligible, and
Petitioner's habeas petition was denied because “no
issues of merit [were] raised.” Dkt. No. 17-1, Ex. F.
The California Court of Appeal and California Supreme Court
denied Petitioner's habeas petitions without comment.
See Dkt. No. 17-1, Exs. G, I.
presented with a state court decision that is unaccompanied
by a rationale for its conclusions, a federal court must
conduct an independent review of the record to determine
whether the state court decision is objectively reasonable.
See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.
2000). This “[i]ndependent review is not a de novo
review of the constitutional issue, but rather, the only
method by which [a federal court] can determine whether a
silent state court decision is objectively
unreasonable.” Himes v. Thompson, 336 F.3d
848, 853 (9th Cir. 2003). “[W]here a state court's
decision is unaccompanied by an explanation, the habeas
petitioner's burden still must be met by showing there
was no reasonable basis for the state court to deny
relief.” Harrington v. Richter, 562 U.S. 86,
98 (2011). Accordingly, this Court will conduct an
independent, but still deferential, review of the record.
filed the instant habeas petition on February 11, 2016.
See Dkt. No. 1 (“Original Petition”).
The Original Petition stated four claims, which the Court
found cognizable and served on Respondent. See Dkt.
No. 9. Respondent moved to dismiss the Original Petition as
untimely and unexhausted. See Dkt. No. 17. The Court
found that three of Petitioner's claims were untimely,
and dismissed those claims. See Dkt. No. 23. The
Court ordered Petitioner to file an amended petition stating
only the surviving claim: that Petitioner received
ineffective assistance of counsel during probation revocation
proceedings. See id. at 7. Petitioner timely
amended, see Dkt. No. 28 (“Operative
Petition”), and the Court stayed proceedings so that
Petitioner could exhaust the ineffective assistance claim,
see Dkt. No. 30. Following a motion from Petitioner,
the Court reopened proceedings on January 25, 2019.
See Dkt. No. 32.
STATEMENT OF FACTS
absence of a reasoned state court opinion, the following
facts are taken from the Operative Petition, the exhibits
attached to the Original Petition, and the exhibits attached
to Respondent's motion to dismiss and Answer. Unless
otherwise specified, the facts are given in chronological
11, 2011, in Napa County, Petitioner pleaded no contest to
felony transportation of a controlled substance. See
Dkt. No. 17-1, Ex. A at 153:23. A seven-year suspended
sentence was imposed, and Petitioner was placed on five
years' probation. See Dkt. No. 17-1, Ex. B at
October 31, 2013, Petitioner's case was transferred to
Sonoma County. See Dkt. No. 17-1, Ex. C. The
transfer appears to have been requested on the basis that
petitioner had moved to Santa Rosa. See id. at
354:4-6. In the Operative Petition, Petitioner argues that
this transfer “breached [his] plea agreement.”
Operative Pet. at 6. However, Petitioner was present at the
transfer hearing, and responded to the transfer by saying,
“Awesome. Thank you.” Dkt. No. 17-1, Ex. C at
January 15, 2014, after the transfer was completed, the
Sonoma County Superior Court (“Sonoma Court”)
summarily revoked Petitioner's probation. See
Dkt. No. 36, Ex. L at 3, Ex. P at 2. Petitioner had been
“convicted of a new crime in Napa County” and
“had been charged with a new crime in Sonoma
County.” Dkt. No. 36, Ex. P at 2.
the Sonoma Court held four hearings concerning the revocation
of Petitioner's probation. At the first, held April 8,
2014, Petitioner's counsel requested additional time to
conduct settlement discussions with the prosecution.
See Dkt. No. 36, Ex. M. The Sonoma Court informed
petitioner that he had a right to a “probation hearing
in a reasonable time, ” and asked if Petitioner agreed
to waive that right in favor of a one-week extension.
Id. In the Traverse, Petitioner argues that the
extension of time violated his rights. See Traverse
at 3. However, during the April 8, 2014 hearing, the Sonoma
Court directly asked Petitioner if he agreed to waive his
rights and consented to an extension of time, and Petitioner
directly informed the Sonoma Court that he did so agree.
See Dkt. No. 36, Ex. M.
second hearing, held April 15, 2014, the prosecution
requested an extension of time to review Petitioner's
file and conduct settlement discussions. See Dkt.
No. 36, Ex. N. Petitioner's counsel stated that
Petitioner was “prepared to give the People as much
time as it takes to have a thoughtful discussion.”
Id. at 3:26-27; see also Id. at 5:3-5
(“I'm trying to find a way not to waste
anyone's time and have a thoughtful discussion, however
that needs to happen.”). Petitioner was again asked
directly by the Sonoma Court ...