Petition for Writ of Certiorari — Kristin L. Hardy, Petitioner v. Kelly Santoro, Acting Warden

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Case: 17-55243, 07/05/2019, ID: 11354871, DktEntry: 68, Page 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

JUL 5 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

KRISTIN L. HARDY,

Petitioner-Appellant,

No.

17-55243

D.C. No.

5:11-cv-00948-GW-JEM

Central District of California,

Riverside

KELLY SANTORO, Acting Warden,

ORDER

Respondent-Appellee.

Before: GOULD and NGUYEN, Circuit Judges, and BENITEZ,* District Judge.

The panel has voted to deny the petition for panel rehearing. Judges Gould

and Nguyen have voted to deny the petition for rehearing en banc, and Judge

Benitez has so recommended. The full court has been advised of the petition for

rehearing en banc, and no judge has requested a vote on whether to rehear the

matter en banc. Fed. R. App. P. 35. The petition for panel rehearing and rehearing

en banc is DENIED.

The Honorable Roger T. Benitez, United States District Judge for the

Southern District of California, sitting by designation.

APPENDIX A

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NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

MAR 14 2019

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

KRISTIN L. HARDY,

Petitioner-Appellant,

No.

U.S. COURT OF APPEALS

17-55243

D.C. No. 11-00948-GW (JEM)

MEMORANDUM*

KELLY SANTORO,

Respondent-Appellee.

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted February 4, 2019

Pasadena, California

Before: GOULD and NGUYEN, Circuit Judges, and BENITEZ,** District Judge.

Kristin Hardy appeals the district court’s denial of his petition for habeas

corpus under 28 U.S.C. § 2254. We affirm.

Following a trial by jury, Hardy was sentenced to 25-years-to-life in prison

under California’s Three Strikes Law for convictions of aggravated assault and

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

The Honorable Roger T. Benitez, Senior United States District Judge for

the Southern District of California, sitting by designation.

APPENDIX B

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inflicting corporal injury on a cohabitant. Hardy argues his counsel rendered

ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984).

Specifically, Hardy claims that, if his attorney had discovered Hardy’s second prior

strike conviction and advised him of the resulting 25-years-to-life sentencing

exposure, he would have accepted the prosecution’s more lenient four-year plea

offer.

To demonstrate ineffective assistance of counsel and warrant habeas relief,

a petitioner must show both (1) his attorney’s performance was deficient and (2)

resulting legal prejudice. See Strickland, 466 U.S. at 687. On this record, Hardy

has not shown the first prong—that his attorney’s “representation ‘fell below an

objective standard of reasonableness’” as measured by “prevailing professional

norms.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S.

at 688). The record reflects that Hardy’s counsel requested Hardy’s chart report

from the District Attorney, who did not obtain the report until after Hardy rejected

the four-year plea offer. Likewise, the California Department of Corrections did

not mail Hardy’s prison records until after Hardy rejected the plea offer. The

record is devoid of evidence showing that, in Riverside County, Hardy’s counsel

would have had access to Hardy’s rap sheet prior to advising Hardy to accept the

four-year plea offer. Moreover, there is no evidence showing that Hardy’s counsel

knew of Hardy’s second strike until after the four-year plea offer expired.

APPENDIX B

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Thus, Hardy’s counsel’s performance did not fall below “an objective

standard of reasonableness” where he relied upon the information known to him

and the prosecution at the time of the preliminary hearing—that Hardy had a single

strike—and repeatedly advised Hardy to accept the four-year plea offer, a

favorable offer for a single strike offender. See Strickland, 466 U.S. at 688.

Because a showing on both Strickland prongs is required for habeas relief, the

district court correctly denied Hardy’s petition.

AFFIRMED.

APPENDIX B

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

KRISTIN L. HARDY,

Petitioner,

ROBERT H. TRIMBLE, Warden,

Respondent.

)

Case No. EDCV 11-0948-GW (JEM)

ORDER ACCEPTING FINDINGS AND

RECOMMENDATIONS OF UNITED

STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. Section 636, the Court has reviewed the pleadings, the

records on file, and the Report and Recommendation of the United States Magistrate

Judge. Petitioner has filed Objections, and the Court has engaged in a de novo review of

those portions of the Report and Recommendation to which Petitioner has objected. 1 The

Court accepts the findings and recommendations of the Magistrate Judge.

///

The Court has considered all Objections to the Report and Recommendation, including those filed

by Plaintiff pro se on October 9, 2015, and those filed by the Federal Public Defender’s Office on

November 2, 2015.

APPENDIX C

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IT IS ORDERED that: (1) the First Amended Petition for Writ of Habeas Corpus is

denied; and (2) Judgment shall be entered dismissing the action with prejudice.

DATED: February 21, 2017

GEORGE H. WU

UNITED STATES DISTRICT JUDGE

APPENDIX C

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

KRISTIN L. HARDY,

Petitioner,

ROBERT H. TRIMBLE, Warden,

Respondent.

)

Case No. EDCV 11-0948-GW (JEM)

JUDGMENT

In accordance with the Order Accepting Findings and Recommendations of United

States Magistrate Judge filed concurrently herewith,

IT IS HEREBY ADJUDGED that the action is dismissed with prejudice.

DATED: February 21, 2017

GEORGE H. WU

UNITED STATES DISTRICT JUDGE

APPENDIX C

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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

KRISTIN L. HARDY,

Petitioner,

ROBERT H. TRIMBLE, Warden,

Respondent.

)

Case No. EDCV 11-0948-GW (JEM)

REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE

The Court submits this Report and Recommendation to the Honorable George H.

Wu, United States District Judge, pursuant to 28 U.S.C. Section 636 and General Order 05-

07 of the United States District Court for the Central District of California.

PROCEEDINGS

On June 15, 2011, Kristin L. Hardy ("Petitioner"), a prisoner in state custody, filed a

Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Section 2254 (“Petition”). On July

25, 2011, Petitioner filed a First Amended Petition. The action was stayed while Petitioner

exhausted an unexhausted claim in the California Supreme Court. On October 15, 2012,

after the stay was lifted, Warden Robert Trimble (“Respondent”) filed an Answer to the First

Amended Petition. On January 3, 2013, Petitioner filed a Reply.

APPENDIX C

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On July 25, 2013, the Court appointed the Of fice of the Federal Public Defender to

represent Petitioner in connection with his ineffective assistance claim in Ground Four and

directed supplemental briefing. The Court also ordered Respondent to file a supplemental

brief addressing Ground Five, which was not addressed in the Answer. On July 29, 2014,

Respondent filed a Supplemental Brief (“First Supplemental Brief”) addressing Ground Five.

On August 28, 2014, Petitioner, through his counsel, filed a Supplemental Reply addressing

Grounds Four and Five.1 Respondent elected not to file a response to the Supplemental

Reply.

On April 8, 2015, the Court directed further supplemental briefing regarding Ground

Four. On May 12, 2015, Respondent filed a Second Supplemental Brief. On July 6, 2015,

Petitioner filed a Response to the Second Supplemental Brief.

The matter is ready for decision.

PRIOR PROCEEDINGS

On July 29, 2009, a Riverside County Superior Court jury found Petitioner guilty of

assault by means of force likely to produce great bodily injury (Cal. Penal Code § 245(a)(1))

(Count Three) and corporal injury to cohabitant (Cal. Penal Code § 273.5(a)) (Count Four).

(2 Clerk’s Transcript [“CT”] 490-91.) The jury acquitted Petitioner of rape (Cal. Penal Code

§ 261(a)(2)) (Count One), forcible oral copulation (Cal. Penal Code § 288a(c)(2) (Count

Two)), and criminal threats (Cal. Penal Code § 422) (Count Five). (2 CT 486-87, 492.)

After a bench trial, the trial court found true allegations that Petitioner had sustained

two “strike” convictions within the meaning of California’s Three Strikes law and one serious

Prior to filing a Supplemental Reply, Petitioner’s counsel sought leave to file a Second Amended

Petition asserting additional claims and a stay of the proceedings pending exhaustion of the newlyasserted claims. (Docket No. 54.) On July 3, 2014, the Court denied leave to amend, finding that the

proposed claims were untimely, unexhausted, and/or based on tenuous legal grounds. (Docket No. 62.)

Petitioner filed a motion for review and reconsideration, which was denied by the District Court on

October 6, 2014. (Docket Nos. 63, 67.) The District Court concurred with the reasoning of the order

denying leave to amend and specifically noted that: (1) the proposed claims did not relate back to the

original claims; (2) the proposed claims were unexhausted; and (3) Petitioner had not made a sufficient

showing to warrant a stay and abeyance. (Docket No. 67.)

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felony conviction within the meaning of Cal. Penal Code § 667(a), and had served one

prison term within the meaning of Cal. Penal Code § 667.5(b). (1 CT 117-18; 2 CT 504.)

On September 14, 2009, the trial court sentenced Petition er to 25 years to life in state

prison for Count Three and five concurrent years for the Section 667(a) enhancement. The

trial court imposed a 25-years-to-life sentence for Count Four, but stayed the sentence

pursuant to Cal. Penal Code § 654. The trial court struck the Section 667.5(b)

enhancement. (2 CT 537.)

Petitioner filed an appeal in the California Court of Appeal. (Lodgment [“LD”] 2.) On

December 29, 2010, the Court of Appeal issued an unpublished decision af firming

Petitioner’s conviction. The Court of Appeal reversed Petitioner’s sentence so that the trial

court could strike the five-year Section 661(a) enhancement and decide whether to impose

the one-year Section 667.5 enhancement, which it had previously stricken. (LD 5 at 25.)

Petitioner filed a petition for review in the California Supreme Court. (LD 6.) On March 16,

2011, the California Supreme Court summarily denied review. (LD 7.)

While his petition for review was still pending, Petitioner filed a habeas petition in the

Riverside County Superior Court, asserting an ineffective assistance claim arising out of

plea negotiations. (LD 8.) The state filed an informal response and Petitioner filed a reply.

(LD 9, 10.) On December 14, 2010, the Superior Court denied relief in a short reasoned

order. (LD 11.) Petitioner filed a habeas petition asserting the same claim in the California

Court of Appeal. (LD 12.) On February 25, 2011, the Court of Appeal denied the petition

without comment or citation to authority. (LD 13.) After commencing this action, Petitioner

filed a habeas petition asserting the same claim in the California Supreme Court. (LD 14.)

The state filed an informal response and Petitioner filed a reply. (LD 16-18.) On August 29,

2012, the California Supreme Court denied the petition without comment or citation to

authority. (LD 19.)

APPENDIX C

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SUMMARY OF EVIDENCE AT TRIAL

Based on its independent review of the record, the Court adopts the following factual

summary from the California Court of Appeal's unpublished opinion as a fair and accurate

summary of the evidence presented at trial:

911 Call.

On August 27, 2005, Melissa M. (M.) made a 911 call from a payphone

at a market. She told the operator, “[M]y boyfriend was beating me.” She

named defendant as her boyfriend.

Initial Interview.

At 7:15 a.m., Officer Vicente De La Torre responded to the 911 call.

When he arrived, M. was crying. She had a black eye and red “linear marks”

on the sides of her neck. He did not see any finger marks.2 Photographs of

M.'s injuries were admitted into evidence.

M. told Officer De La Torre that defendant came home around 3:00 or

4:00 a.m. He had been trying to phone her, and he was angry because the

phone was off the hook. He took a pink scarf, wrapped it around her neck,

and strangled her with it. Next, he choked her with his hands. He said, “I'm

gonna kill you....” She lost consciousness for a couple of seconds, but he

slapped her and she came to.

Next, defendant forced her to orally copulate him and then to have

sexual intercourse with him. Afterwards, he fell asleep. M. thought for about

an hour about what to do, but once she decided to leave, she ran to the

market.

A paramedic who examined M., however, noted “[o]bvious marks from hands

around [her] neck....”

APPENDIX C

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Sexual Assault Examination.

Officer De La Torre took M. to the hospital, where a nurse performed a

sexual assault examination. M.'s right eye was bruised and swollen and there

were red marks around her neck. There was also a scratch on her wrist. She

had no injuries to her genitals, but this would be true 60 to 70 percent of the

time when an adult female reported a sexual assault.

M. told the nurse that her boyfriend had wrapped a pink scarf around

her neck and choked her with it for 15 minutes. He also slapped her and hit

her. She “blacked out for a couple [of] seconds.” The sex consisted of

intercourse and oral copulation. It was stipulated that DNA from sperm cells

found in M.’s vagina matched defendant’s DNA.

Defendant’s Mother’s Testimony.

Defendant's mother testified that on August 27, 2005, around 7:00 or

8:00 a.m., defendant had some scratches, and one of his lips was “burst or

scratched.” Later that morning, defendant was arrested. Photos of his injuries

showed a scratch on his neck and a “busted” or bruised upper lip.

M. later told defendant's mother that she had punched defendant in the

face “[o]ver a girl.” She also said that she had made up the rape charges.

M.’s Meeting with a Defense Investigator.

In February 2006, M. told a defense investigator that defendant did not

force her to have sex. She had made up this allegation because she was

upset about a phone call from a girl. She also said that she had asked

defendant to choke her for erotic purposes.

The Letter from M. to Defense Counsel.

In late 2005 or early 2006, M. gave defense counsel a letter (or

declaration) in which she said that the sex had been consensual.

APPENDIX C

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Interview Before a Previous Hearing.

In March 2006, Officer De La Torre, a deputy district attorney, and M.

were in court together for a previous hearing. M. told them, “Everything I said

in that letter was a lie.” She added that everything she had told Officer De La

Torre on the day of the incident was the truth.

Jail Phone Calls.

The jury heard two phone calls that defendant made to M. while he was

in jail, one before and one after the previous hearing.

In the first call, on February 24, 2006, he told her to stop talking to

“these people,” adding, “[W]ould you rather me go to jail?”

He also told her, “[F]iling a false police report is only a misdemeanor,

you're going to get probation. Would you rather me go to prison or you get

probation?”

“I know what I did was wrong,” he stated; “... I'm owning up to my

responsibility.”

In addition, he said, “[I]t's gonna have to go to prelim and I want you to

be ready. I want you to get that letter from my mom.3 Don't forget, read over

everything. Memorize it like it's a movie script.”

In the second call, on April 18, 2006, def endant said, “What I did was

foul, it was fucking wrong. It was stupid, it was sick.” He told M.: “Go [into]

hiding, something[,] either that or call you an attorney and tell them you have a

problem in your hands, you got scared in ... making some false accusations. I

know, the accusations are real, but babe, just try to help me....”

Defendant's mother testified that defense counsel showed her the letter that M.

had written, but she denied ever having a copy in her possession.

APPENDIX C

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M.’s Telephone Calls with Defense Counsel

Between January and July 2007, Stephen Cline, defendant's then

counsel, had a number of phone calls and one meeting with M. She told him

that the sex had been consensual. She had made up the sexual assault

allegations because she was angry. The pink scarf was used as part of the

sex; “they had done this kind of thing before ....”

Defendant had hit her, she said, but she had started it, and she had hit

him as well. She explained that, in the jailhouse phone calls, they had been

talking solely about the domestic violence allegations.

M. also said she had lied at the preliminary hearing because the district

attorney's office told her, “You have to tell the story you told initially or you

could lose your child. You could go to jail for perjury....”

M.’s Meeting with a Defense Investigator.

Roughly around March 2008, a defense investigator had a conversation

with M. at court. M. told the investigator that she had lied to the police about

the rape allegations. She also said she was afraid to change her story

because a prosecution investigator had threatened to charge her with perjury,

which could mean that she would go to jail and lose custody of her child. She

did not say that she was lying about the physical abuse.

M.’s Testimony at Trial.

At trial, M. testified that she and defendant had been living together

since June 2005. On the night of August 26–27, 2005, she was jealous

because he had been flirting with some women on a chat line. At 3:00 a.m.,4

Although M. did not mention it on direct, cross, or redirect, on recross, she

testified that defendant had already hit her twice that night. First, when she and

defendant initially got home, “I was cussing at him, and ... he was calm, and he hit me,

and then I hit him in his face.” Next, after defendant went to sleep, M. answered a

(continued...)

APPENDIX C

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she woke up because defendant came into the bedroom. He asked, “Why

didn't you answer the phone? I was trying to call.” According to M., he was not

angry. She realized that the phone was off the hook.

They argued. During the argument, defendant hit her in the eye with his

fist, giving her a black eye. She hit him back, causing his cut lip.

Defendant put a pink scarf around her neck and tightened it, causing red

marks. It hurt, but she testified that it did not make it hard to breathe. She did

not lose consciousness (though she admitted telling Officer De La Torre that

she did). She was hitting defendant and “trying to push him off.”

After defendant removed the scarf, he put his hands around her neck

and squeezed. She testified that he was not applying much pressure. The

squeezing lasted for less than a minute. It did not make it hard to breathe

(though she admitted telling Officer De La Torre that it did). M. fell on the bed

and pretended to pass out so defendant would take his hands off her neck. He

slapped her, but “not a hard slap, just like a pat to m ake sure I didn't pass out.”

After the argument, they had consensual sex, including both intercourse

and oral copulation (though she admitted telling Officer De La Torre that it was

not consensual). 5

M. stayed in the apartment for about an hour, until defendant was sound

asleep. She then went to the closest liquor store and called 911. About a

week later, she learned that she was pregnant with defendant’s child.

(...continued)

phone call from one of the women from the chat line. M. yelled at defendant; “[h]e

jumped, and then his hand hit [her] face.”

M. testified that the pink scarf was not used during the sex—“[t]hat was

completely separate....” After being reminded, however, of her earlier statements, she

testified that it was used.

APPENDIX C

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M. testified that she lied to Officer De La Torre and the sexual assault

nurse because she was angry. What she said in the letter that she gave

defense counsel was “[w]hat really happened.”

According to M., she had contacted the prosecution several times to try

to “set the record straight.” Around the time of the preliminary hearing,

however, when she was at court, a man “came out of nowhere” and said he

was “an advocate of the judge ...” He knew about the letter. He told her that if

she changed her story, she would go to jail for filing a false police report (or for

perjury) and her child would be taken away from her. As a result, she felt

“pressured” to stick with the story she had originally told Officer Del La Torre.6

Defendant’s Testimony.

According to defendant, on the night of the incident, he was worried

because M. was not answering the phone. When he got home, he found that it

had been off the hook; he was not angry.

At that point, they had consensual sex, including both intercourse and

oral copulation. M. wanted “kinky sex”; at her request, defendant put first a

scarf and then his hands around her neck. T hat “must have been” what

caused the marks on M.'s neck. She was never unconscious.

After that, defendant phoned the chat line. This made M. angry, and

they got into an argument. Defendant stopped it by going to sleep. He awoke

because M. punched him in the face, which caused his “busted lip.” At first, he

did not know who had hit him. In self-defense, he started throwing punches;

The trial court took judicial notice that a private attorney, not employed by either

the prosecution or the defense, had been appointed to advise M. regarding her rights,

and it so instructed the jury.

APPENDIX C

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one of them hit M. and presumably caused her black eye.7 She kept trying to

hit him, so he grabbed her wrists to restrain her. A further argument ensued.

Eventually, defendant went back to sleep.

When defendant heard that the police wanted to talk to him, he

contacted them voluntarily.

In the jailhouse conversations, when he said what he did was wrong, he

meant “his relationship with other women and the injury to [M.'s] eye.”

8 (LD 5 at 3-10.)

PETITIONER’S CONTENTIONS

Petitioner’s due process rights were violated by the trial court’s refusal to give a

11 unanimity instruction.

The trial court abused its discretion by refusing to dismiss one of Petitioner’s

13 “strike” convictions.

Petitioner’s sentence is cruel and unusual, in violation of the Eighth

15 Amendment.

Petitioner’s prior counsel rendered ineffective assistance in connection with

17 plea negotiations.

(a) Petitioner’s trial counsel was ineffective for failing to file a motion for a new

19 trial based on a defense investigator’s destruction of her notes of a conversation with the

20 victim; and (b) appellate counsel was ineffective for failing to raise this ineffective assistance

21 claim on direct appeal.

On direct, defendant testified that first, someone hit him; then, he threw a couple

of punches; and then, he heard M. scream (inferably when one of the punches

connected). That was when he realized she was the person who hit him. On cross,

however, he testified, “she screamed while she was striking me. I hadn't hit her yet

when she screamed.” He admitted knowing who was hitting him. When the prosecutor

pointed out the contradiction and asked which version was the truth, he said, “Whichever

one. I guess you could say the first one.”

APPENDIX C

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STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs the

3 Court's consideration of Petitioner's cognizable federal claims. 28 U.S.C. § 2254(d), as

4 amended by AEDPA, states:

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; or (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.

In Williams v. Taylor, 529 U.S. 362 (2000), the United States Suprem e Court held that

14 a state court's decision can be contrary to federal law if it either (1) fails to apply the correct

15 controlling authority, or (2) applies the controlling authority to a case involving facts materially

16 indistinguishable from those in a controlling case, but nonetheless reaches a different result.

17 Id. at 405-06. A state court's decision can involve an unreasonable application of federal law

18 if it either (1) correctly identifies the governing rule but then applies it to a new set of facts in

19 a way that is objectively unreasonable, or (2) extends or fails to extend a clearly established

20 legal principle to a new context in a way that is objectively unreasonable. Id. at 407-08. The

21 Supreme Court has admonished courts against equating the term “unreasonable application”

22 with “clear error.” “These two standards . . . are not the same. The gloss of clear error fails

23 to give proper deference to state courts by conflating error (even clear error) with

24 unreasonableness.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Instead, in this context,

25 habeas relief may issue only if the state court's application of federal law was “objectively

26 unreasonable.” Id. “A state court's determination that a claim lacks merit precludes federal

APPENDIX C

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1 habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state

2 court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011).

Under AEDPA, the “clearly established Federal law” that controls federal habeas

4 review of state court decisions consists of holdings (as opposed to dicta) of Supreme Court

5 decisions “as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412 (“§

6 2254(d)(I) restricts the source of clearly established law to this Court's jurisprudence”); see

7 also Andrade, 538 U.S. at 71. If there is no Supreme Court precedent that controls a legal

8 issue raised by a habeas petitioner in state court, the state court's decision cannot be

9 contrary to, or an unreasonable application of, clearly established federal law. Wright v. Van

10 Patten, 552 U.S. 120, 125-26 (2008) (per curiam ); see also Carey v. Musladin, 549 U.S. 70,

11 76-77 (2006). A state court need not cite or even be aware of the controlling Supreme Court

12 cases, “so long as neither the reasoning nor the result of the state-court decision contradicts

13 them.” Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); see also Bell v. Cone, 543 U.S.

14 447, 455 (2005) (per curiam).

A state court’s silent denial of federal claims constitutes a denial “on the merits” for

16 purposes of federal habeas review, and the AEDPA deferential standard of review applies.

17 Richter, 562 U.S. at 98-99. Under the “look through” doctrine, federal habeas courts look

18 through a state court’s silent decision to the last reasoned decision of a state court, and

19 apply the AEDPA standard to that decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803

20 (1991) (“Where there has been one reasoned state judg ment rejecting a federal claim, later

21 unexplained orders upholding the judgment or rejecting the same claim rest upon the same

22 ground.”). The AEDPA standard applies, however, even if no state court issued a decision

23 explaining the reasons for its denial of the federal claim. Richter, 562 U.S. at 98-99.

Petitioner presented Grounds One through Three to the state courts on direct appeal.

25 (LD 2, 6.) The California Court of Appeal denied his claims in a reasoned decision and the

26 California Supreme Court summarily denied review. (LD 5, 7.) The Court looks through the

APPENDIX C

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1 California Supreme Court's silent denial to the Court of Appeal's reasoned decision, and

2 applies the AEDPA standard to that decision. See Y lst, 501 U.S. at 803.

Petitioner presented Ground Four to the Riverside County Superior Court, the

4 California Court of Appeal, and the California Supreme Court by habeas petition. (LD 8, 12,

5 14.) The Riverside County Superior Court denied the claim in a brief reasoned decision and

6 the California Court of Appeal and California Supreme Court denied it summarily. (LD 11,

7 13, 19.) Accordingly, with respect to Ground Four, the Court looks through the summary

8 denials by the California Supreme Court and the Court of Appeal to the Superior Court’s

9 reasoned decision, and applies the AEDPA standard to that decision. See Y lst, 501 U.S. at

10 803; Cannedy v. Adams, 706 F.3d 1148, 1158 (9th Cir. 2013) (even after Richter, it remains

11 Ninth Circuit practice to look through state courts’ summary denials of habeas petitions to the

12 last reasoned decision), as amended on denial of rehearing, 733 F.3d 794 (9th Cir. 2013),

13 cert. denied, __ U.S. __, 134 S. Ct. 1001 (2014).

The Court will discuss the standard of review applicable to Ground Five together with

15 its discussion of that claim.

DISCUSSION

17 I.

GROUND ONE DOES NOT WARRANT FEDERAL HABEAS RELIEF.

In Ground One, Petitioner contends that his due process rig hts were violated when

19 the trial court refused to give a unanimity instruction, i.e., instruct the jurors that they had to

20 unanimously agree which acts formed the basis for the verdicts. For the reasons set forth

21 below, the California Court of Appeal’s rejection of this claim was not contrary to, or an

22 unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1).

Background

Trial counsel requested the trial court to instruct the jury with California’s unanimity

25 instruction, CALCRIM No. 3501. The trial court refused. It found the case to be “a classic

26 case of the doctrine of continuous course of conduct,” which obviated any need for the jury

27 to agree on which act constituted the offense. (3 Reporter’s Transcript [“RT”] 468.)

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California Court of Appeal’s Decision

On direct appeal, the Court of Appeal explained that under California law the jury

3 must agree unanimously that the defendant is guilty of a specific crime. When the evidence

4 suggests more than one crime, either the prosecution must elect among the crimes or the

5 court must require the jury to agree on the same criminal act. (LD 5, citing People v. Russo,

6 25 Cal. 4th 1124, 1132 (2001)). However, there are exceptions to this rule, such as when

7 the case involves a continuous course of conduct, or when the defendant offers the same

8 defense to the various acts constituting the charged crime. (LD 5 at 11-12, citing People v.

9 Jennings, 50 Cal. 4th 616, 679 (2010)).

The Court of Appeal stated that with respect to the charge of assault with force likely

11 to cause great bodily injury, the relevant acts were closely connected in time and Petitioner

12 offered the same defense to them. The charge was necessarily based on choking the victim

13 with a scarf, choking her with hands, or a combination of both. (LD 5 at 12.) It could not be

14 based on punching her in the eye or holding or scratching her wrists, because these acts

15 involved only simple assault. (LD 5 at 12.)

The Court of Appeal explained:

The evidence with respect to the two acts of choking, however, was virtually

identical. M. told Officer De La Torre that defendant did one right after the

other, out of anger. Defendant admitted doing one right after the other, but he

claimed that he did both because M. wanted “kinky sex.” No reasonable juror

could have found that the act of choking M. with a scarf was a crime, but the

act of choking her with the hands was not; or vice versa. Moreover --

particularly given defendant's admission -- no reasonable juror could have

found that defendant did choke M. with the scarf but did not choke her with his

hands, or vice versa. The jurors necessarily found defendant guilty of

aggravated assault based on both acts.

27 (LD 5 at 12-13.)

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The Court of Appeal stated that the analysis was different with respect to the charge

2 of inflicting corporal injury on a cohabitant. It explained:

This charge did not require force likely to cause great bodily injury; accordingly,

it could have been based not only on the chokings, but also on the act of

punching M. in the eye or the act of restraining her wrists. At least according to

defendant, these acts were separated in time: The chokings came first,

followed by an interlude in which the couple argued and defendant went to

sleep; then came the punch in the eye and the wrist restraint. Moreover,

defendant offered different defenses to the different acts. With respect to the

chokings, he testified (and M. had, at times, admitted) that they were done with

M.'s consent, for erotic purposes. With respect to the punch in the eye and the

wrist restraint, he testified (and M. had, at times, suggested) that they were in

self-defense.

14 (LD 5 at 13.)

The Court of Appeal assumed, without deciding, that the trial court erred by failing to

16 give a unanimity instruction regarding the infliction of corporal injury on a cohabitant count.

17 (LD 5 at 13.) However, it found the error harmless under the standard of Chapman v.

18 California, 386 U.S. 18 (1967), which California courts apply to constitutional errors. (LD 5 at

19 13-14.) It explained:

[F]rom the jury's verdict finding defendant guilty of assault with force likely to

cause great bodily injury, we know that the jury unanimously found that

defendant choked M. both with a scarf and with his hands. The jury also

unanimously found that this was a crime – i.e., that it was not done at M.'s

request or with her consent. It necessarily follows that the jury also

unanimously found that this also constituted the infliction of corporal injury on a

cohabitant. Of course, it is possible that some or all of the jurors found that the

punch in the eye additionally constituted the infliction of corporal injury on a

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cohabitant. Nevertheless, we can be sure that, even if the trial court had given

a unanimity instruction, the jurors would have agreed unanimously that

defendant was guilty of inflicting corporal injury on a cohabitant based on both

of his acts of choking M.

5 (LD 5 at 14.)

The California Court of Appeal Did Not Unreasonably Apply Clearly

Established Federal Law.

The Supreme Court has never held that there is a federal constitutional right to a

9 unanimous jury verdict in state cases. See Apodaca v. Oregon, 406 U.S. 404, 410-12

10 (1972) (Sixth Amendment does not mandate jury unanimity in state trials); Johnson v.

11 Louisiana, 406 U.S. 356, 359-60 (1972) (noting that “this Court has never held jury unanimity

12 to be a requisite of due process of law”). Moreover, clearly established Supreme Court

13 precedent indicates that the Constitution does not req uire unanimous agreement on the

14 means by which each element of a crime is satisfied. See Schad v. Arizona, 501 U.S. 624,

15 630-32 (1991) (plurality opinion) (no constitutional right to unanimity regarding whether first

16 degree murder was premeditated murder or felony murder); see also McKoy v. North

17 Carolina, 494 U.S. 433, 449 (1990) (J. W hite, concurring) ("Plainly there is no general

18 requirement that the jury reach agreement on the preliminary factual issues which underlie

19 the verdict"); Richardson v. United States, 526 U.S. 813, 817 (1999) (“[A] federal jury need

20 not always decide unanimously which of several possible sets of underlying brute facts make

21 up a particular element, say, which of several possible means the defendant used to commit

22 an element of the crime.”). Whether Petitioner was entitled to a unanimity instruction is

23 purely a question of state law and does not implicate the Constitution. See People v.

24 Vargas, 91 Cal. App. 4th 506, 562 (2001) (“There being no right to a unanimous verdict

25 under the United States Constitution, the question of whether defendant was entitled to a

26 unanimity instruction is a state, not a federal, issue.”).

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Because there is no federal law requiring a state jury verdict to be unanimous,

2 Petitioner’s contention that the jurors might have disagreed regarding which of his acts

3 constituted the conviction offenses does not state a claim under the federal Constitution. As

4 with any instructional error, Petitioner is must show that the trial court’s failure to give a

5 unanimity instruction "so infected the entire trial that the resulting conviction violates due

6 process." Estelle v. McGuire, 502 U.S. 62, 72 (1991); Henderson v. Kibbe, 431 U.S. 145,

7 154 (1977); Cupp v. Naughten, 414 U.S. 141, 147 (1973).

The California Court of Appeal found that Petitioner was not entitled to a unanimity

9 instruction with respect to the aggravated assault count. The Court defers to the Court of

10 Appeal’s determination that punching the victim and holding or scratching her wrist did not

11 involve great bodily injury under California law and could only support a conviction for simple

12 assault. See Estelle, 502 U.S. at 67-68 (“[I]t is not the prov ince of a federal habeas court to

13 reexamine state-court determinations on state-law questions.”); see also Bueno v. Hallahan,

14 988 F.2d 86, 88 (9th Cir. 1993) (per curiam) (federal court must defer to state court’s

15 interpretation of state law). It follows that a guilty verdict on the aggravated assault count

16 could only be based on one or both of the acts of choking shown by the evidence. According

17 to both Petitioner and the victim, the two acts of choking -- choking with hands and choking

18 with a scarf -- occurred one after the other, and a rational juror could not have found that

19 Petitioner committed only one of the acts of choking, especially since Petitioner admitted

20 committing both but contended that he did so at the v ictim’s request. (1 RT 213-16; 2 RT

21 253-55, 419-21.) Thus, the Court of Appeal reasonably found that there was no need for a

22 unanimity instruction.

As for the corporal injury to a cohabitant count, the Court of Appeal declined to decide

24 whether a unanimity instruction was required because it concluded that any error was

25 harmless beyond a reasonable doubt. (LD 5 at 14.) T he jury could find Petitioner guilty of

26 corporal injury to a cohabitant based not only on the acts of choking, but also on the punch

27 to the victim’s eye and the restraint of her wrist. (Id.) Petitioner testified that the chokings

28 were separated in time from the punch and wrist restraint and offered different defenses to

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1 them: he contended that the chokings were consensual and the punch and wrist restraint

2 were in self-defense. (2 RT 418-21.) However, since the jury convicted Petitioner of the

3 aggravated assault count, it necessarily found that he choked the victim without her consent,

4 and, as explained above, logically must have found that he committed both acts of choking.

5 It follows that the jury must have unanimously found that both acts of choking constituted

6 corporal infliction of injury on a cohabitant. As the Court of Appeal reasoned, even if some

7 jurors additionally found that the punch to the eye or the wrist restraint constituted corporal

8 injury to a cohabitant, all the jurors must have agreed that both of Petitioner’s acts of choking

9 the victim constituted corporal injury to a cohabitant, and would have done so even if given a

10 unanimity instruction. There is no reasonable likelihood that the absence of a unanimity

11 instruction rendered Petitioner’s trial fundamentally unfair. See Estelle, 501 U.S. at 72.

Accordingly, the California Court of Appeal’s rejection of this claim was not contrary

13 to, or an unreasonable application of, clearly established federal law as set forth by the

14 United States Supreme Court. 28 U.S.C. § 2254(d)(1). Ground One does not w arrant

15 federal habeas relief.

16 II.

GROUND TWO DOES NOT WARRANT FEDERAL HABEAS RELIEF.

In Ground Two, Petitioner contends that the trial court abused its discretion by

18 refusing to dismiss one of his strike convictions. For the reasons set forth below, the

19 California Court of Appeal’s rejection of this claim was not contrary to, or an unreasonable

20 application of, clearly established federal law. 28 U.S.C. § 2254(d)(1).

Under California Penal Code § 1385, a California court may dismiss a defendant's

22 strike conviction for purposes of sentencing under the Three Strikes law. People v. Superior

23 Court (Romero), 13 Cal.4th 497, 529-30 (1996). Petitioner m oved to dismiss one of his two

24 strike convictions under Romero, but the trial court denied his motion. (3 RT 566, 576-78; 2

25 CT 539-57.)

A claim challenging a California court’s refusal to strike prior convictions under

27 Romero is not cognizable on federal habeas review. See Brown v. Mayle, 283 F.3d 1019,

28 1040 (9th Cir. 2002), vacated on other grounds, Mayle v. Brown, 538 U.S. 901 (2003); Ely v.

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1 Terhune, 125 F. Supp. 2d 403, 411 (C.D. Cal. 2000) (claim that trial court failed to strike

2 prior conviction was not cognizable on federal habeas review); see also Estelle, 502 U.S. at

3 67-68. “Absent a showing of fundamental unfairness, a state court's misapplication of its

4 own sentencing laws does not justify federal habeas relief.” Christian v. Rhode, 41 F.3d 461,

5 469 (9th Cir. 1994). Petitioner has not shown any misapplication of Romero, much less a

6 misapplication rising to the level of fundamental unfairness. Petitioner’s claim is cognizable

7 on federal habeas solely as a challenge to the length of his sentence – a claim that he has

8 raised in Ground Three.

Accordingly, the California Court of Appeal’s rejection of this claim was not contrary

10 to, or an unreasonable application of, clearly established federal law as set forth by the

11 United States Supreme Court. 28 U.S.C. § 2254(d)(1). Ground Two does not warrant

12 federal habeas relief.

13 III.

GROUND THREE DOES NOT WARRANT FEDERAL HABEAS RELIEF.

In Ground Three, Petitioner contends that his Three Strikes sentence violates the

15 Cruel and Unusual Clause of the Eighth Amendment. For the reasons set forth below, the

16 California Court of Appeal’s rejection of this claim was not contrary to, or an unreasonable

17 application of, clearly established federal law. 28 U.S.C. § 2254(d)(1).

Applicable Clearly Established Federal Law

As a general matter, a criminal sentence that is not proportionate to the conv iction

20 offense may violate the Eighth Amendment. Solem v. Helm, 463 U.S. 277, 284 (1983)

21 (holding that sentence of life imprisonment without possibility of parole for seventh nonviolent

22 felony violated Eighth Amendment). But outside the context of capital punishment,

23 successful challenges to the proportionality of particular sentences are “exceedingly rare.”

24 Id. at 289-90 (quoting Rummel v. Estelle, 445 U.S. 263, 272 (1980)). “The Eighth

25 Amendment does not require strict proportionality between crime and sentence. Rather, it

26 forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Ewing v.

27 California, 538 U.S. 11, 23 (2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)

28 (Kennedy, J., concurring)). If “a threshold comparison of the crime committed and the

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1 sentence imposed leads to an inference of gross disproportionality,” the reviewing court

2 should compare the sentence with sentences imposed on other criminals in the same

3 jurisdiction and for the same crime in other jurisdictions. Harmelin, 501 U.S. at 1005. If a

4 comparison of the crime and the sentence does not give rise to an inference of gross

5 disproportionality, a comparative analysis is unnecessary. Id.

California Court of Appeal’s Decision

After discussing the United States Supreme Court’s decision in Ewing, the California

8 Court of Appeal found that Petitioner’s sentence did not constitute the “rare case” in w hich a

9 Three Strikes sentence violates the Eighth Amendment. (LD 5 at 19-20.) It stated:

Even though defendant's criminal record was not as extensive as that of the

defendant in Ewing, it did include two recent strike priors, both involving

violence and the use of a weapon, as well as a number of violent

misdemeanors. Moreover, unlike the defendant in Ewing, defendant's current

offenses involved actual violence. Thus, his sentence was justified by the

state's interest in incapacitating and deterring recidivist felons.

16 (LD 5 at 20.)

The Court of Appeal Did Not Unreasonably Apply Clearly Established

Federal Law

Petitioner argues that his Three Strikes sentence is grossly disproportionate to his

20 crimes, given the nature of his conviction offenses and the circumstances of his strike

21 convictions. (Reply at 9-34.)

In Rummel, the Supreme Court upheld an indeterminate life sentence for a defendant

23 with two prior serious felony convictions who obtained $120.75 by false pretenses. Rummel,

24 445 U.S. at 266, 285. In Harmelin, the Supreme Court did not view as disproportionate a

25 sentence of life without the possibility of parole for possession of a large amount of cocaine,

26 even though the defendant had no prior felony convictions. Harmelin, 501 U.S. at 996. In

27 Ewing, the Supreme Court upheld a Three Strikes sentence of 25 years to life for a

28 defendant convicted of grand theft for stealing three $399 golf clubs. Ewing, 538 U.S. at 18,

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1 28-31. In Andrade, the Supreme Court upheld a Three Strikes sentence of 50 years to life

2 for two counts of petty theft with a prior conviction involving $153.54 of videotapes. Andrade,

3 538 U.S. at 66-68, 77. Unlike these offenses, Petitioner’s crimes – assault by means of

4 force likely to cause great bodily injury and corporal injury to a cohabitant – involved

5 violence. If the facts of Rummel, Harmelin, Ewing, and Andrade fell short of the “exceedingly

6 rare” and “extreme” situation where a sentence is grossly disproportionate to the crime, then

7 Petitioner’s sentence cannot meet that exacting standard.

Petitioner’s strike convictions were a 2001 conviction for aggravated assault and a

9 2003 conviction for robbery. (1 CT 117-18.) Petitioner argues that they were relatively

10 minor. The victim in the incident giving rise to Petitioner’s 2001 aggravated assault

11 conviction was his father and the weapons were “a straight edge razor and a chair.” (1 CT

12 118; 3 RT 567.) At the Romero hearing, Petitioner’s father told the trial court that he was in

13 an alcoholic rage, and Petitioner, who was 18 at the time, was trying to protect himself and

14 other family members. (3 RT 567-70.) The 2003 conviction arose out of a shoplifting

15 incident. A security guard at a market attempted to stop Petitioner from taking alcoholic

16 beverages without paying, and Petitioner lunged at him with a broken kitchen paring knife.

17 (2 CT 541-42.)

As the Court of Appeal pointed out, Petitioner’s strike convictions both involved violent

19 conduct, as do his current offenses. That circumstance distinguishes Petitioner’s case from

20 the few decisions that have found that a Three Strikes sentence violated the Eighth

21 Amendment. See Gonzalez v. Duncan, 551 F.3d 875, 884-85 (9th Cir. 2008) (28-years-to22 life sentence was grossly disproportionate to offense of failure to update annual sex offender

23 registration, where defendant had twice updated his registration and was still living at his last

24 registered address, and offense was “an entirely passive, harmless, and technical violation”);

25 Ramirez v. Castro, 365 F.3d 755, 768, 885 (9th Cir. 2004) (25-years-to life sentence was

26 grossly disproportionate to theft of $199 VCR when strike convictions, although nominally

27 robberies, involved no weapons or violence). Petitioner’s sentence is not one of the

28 extraordinary cases for which the principle of gross disproportionality is reserved. Under

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1 applicable Supreme Court precedent, its length is within the broad discretion the Constitution

2 allows to legislatures to fashion appropriate punishments. See Andrade, 538 U.S. at 76.

Accordingly, the California Court of Appeal’s rejection of this claim was not contrary

4 to, or an unreasonable application of, clearly established federal law as set forth by the

5 United States Supreme Court. 28 U.S.C. § 2254(d)(1). Ground Three does not warrant

6 federal habeas relief.

7 IV.

GROUND FOUR DOES NOT WARRANT FEDERAL HABEAS RELIEF.

In Ground Four, Petitioner contends that his counsel Stuart Sachs (“Sachs”) rendered

9 ineffective assistance in connection with plea negotiations. Specifically, Petitioner contends

10 that Sachs failed to advise him that although the prosecution had only alleged one strike

11 conviction, his criminal record actually included two strikes, so that he potentially faced a

12 Three Strikes sentence of 25 years to life or more if he went to trial. He maintains that if he

13 had known that he faced a Three Strikes sentence, he would not have rejected the

14 prosecution’s plea offer of four years. (First Amended Petition, Ground Four, Attachment

15 [“Attach.”] at 1-3; Reply at 35-55; Supplemental Reply at 10-22.) For the reasons set forth

16 below, the Riverside County Superior Court’s rejection of this claim was not contrary to, or an

17 unreasonable application of, clearly established federal law as set forth by the United States

18 Supreme Court, nor did it constitute an unreasonable determ ination of the facts in light of the

19 record before the state court. 28 U.S.C. § 2254(d)(1)&(2).

Pertinent Facts

Background

In a felony complaint filed on August 30, 2005, Petitioner was charged with rape (Cal.

23 Penal Code § 261(a)), forcible oral copulation (Cal. Penal Code § 288a), assault by means of

24 force likely to produce great bodily injury (Cal. Penal Code § 245), infliction of corporal injury

25 on a cohabitant (Cal. Penal Code § 273.5), and f alse imprisonment (Cal. Penal Code § 236).

26 The complaint also alleged that Petitioner had sustained a 2003 robbery conviction and had

27 served a prior prison term within the meaning of Cal. Penal Code § 667.5(b). (1 CT 1-2.)

28 This allegation exposed Petitioner to a one-year enhancement. Cal. Penal Code § 667.5(b).

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Petitioner was arraigned and the public defender’s office was appointed to represent

2 him. (1 CT 3.) On September 15, 2005, Deputy Public Defender Sachs made his first court

3 appearance on behalf of Petitioner. (1 CT 3.) On October 25, 2005, the state f iled an

4 amended felony complaint, alleging the same charges as the original complaint but adding

5 additional allegations based on the 2003 robbery conviction. In addition to the Section

6 667.5(b) enhancement, the state alleged that the 2003 robbery conviction constituted a

7 serious felony under Cal. Penal Code § 667(a) and a strike under Calif ornia’s Three Strikes

8 law. (1 CT 8-9.) The Section 667(a) enhancement carried an additional five-year term and

9 the strike allegation exposed Petitioner to a doubling of his sentence for the conviction

10 offenses.

Settlement discussions were held between Sachs and the prosecution. Sachs

12 described these discussions in some detail during the December 21, 2005 hearing on

13 Petitioner’s motion to substitute counsel pursuant to People v. Marsden, 2 Cal. 3d 118

14 (1970). (LD 20 [Transcript of December 21, 2005 Marsden hearing] at 4-5.) Sachs said that

15 the prosecution first made an offer of six years based on a guilty plea to the rape count, but

16 Sachs persuaded the prosecutor to offer a guilty plea to the Section 273.5 domestic abuse

17 count, with a sentence of four years (the low term doubled) to be served at 80%. (LD 20 at 418 5.) This offer was memorialized in writing on December 2, 2005, when the parties obtained a

19 continuance in order to allow Petitioner to consider the offer. (Supplemental Reply, Exh. A.)

20 Previously Petitioner had told trial counsel that he would accept four years at 80%, but after

21 the prosecution made its offer, he said that he wanted to plead guilty to a non-strike offense.

22 At Petitioner’s request, trial counsel made a counter-offer of 32 months (the low term

23 doubled) for a guilty plea to the false imprisonment count, but the prosecution rejected the

24 offer. (LD 20 at 5.)

Petitioner told the trial court that he understood that his sentence w ould be doubled on

26 account of his strike conviction, but argued that the prosecution should consider f actors such

27 as the seriousness of the prior conviction offense and the fact that he had never committed

28 crimes similar to the current charges. (LD 20 at 6.) The trial court stated that Sachs had

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1 been “very successful in getting very reasonable offers” from the prosecution, and that it was

2 sure that Sachs had explained to Petitioner that if he lost at trial, his exposure was very high.

3 (LD 20 at 5.) Petitioner said that he had not discussed the m atter with Sachs because Sachs

4 had not visited him in jail. (LD 20 at 6.) Sachs had previously admitted that he had not yet

5 visited Petitioner in jail, but said that he had spent several hours with him on the phone. (LD

6 20 at 3.)

The trial court warned Petitioner that after the preliminary hearing the prosecution’s

8 offers would not be as good. (LD 20 at 7.) It found that Sachs was properly representing

9 Petitioner and denied the motion for substitute counsel. (LD 20 at 7-8.)

On February 22, 2006, Petitioner again requested another counsel, or alternatively

11 leave to represent himself. The trial court held a Marsden hearing and denied his request for

12 substitute counsel. (1 RT 10-19; 1 CT 17.) The trial court granted Petitioner leave to

13 represent himself. (1 RT 19-23; 1 CT 17.) Petitioner represented himself until March 2,

14 2006, when he requested counsel to be appointed and the trial court re-appointed the public

15 defender’s office. (1 CT 20.)

The preliminary hearing was held on March 14, 2006. Petitioner was represented by

17 Sachs. (1 CT 24-75.) The court dismissed the Section 236 false imprisonment count for

18 insufficient evidence, but held Petitioner to answer on all other counts, including an

19 uncharged count for criminal threats under Cal. Penal Code § 422. (1 CT 73-74.) On March

20 27, 2006, the state filed an Information. Like the amended felony complaint, the Information

21 alleged a single strike conviction, the 2003 robbery conviction. (1 CT 77-79.) On March 28,

22 2006, Petitioner was arraigned on the Information, represented by Sachs. (1 CT 84.) On

23 April 13, 2006, there was a mandatory settlement conference. Another deputy public

24 defender appeared for Sachs. (1 CT 85.)

The record reflects that by April 27, 2006, Petitioner was represented by another

26 deputy public defender, Jennifer Mullins. (1 CT 86.) On June 1, 2006, the prosecution f iled

The transcript of the February 22, 2006 Marsden hearing is not before the Court.

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1 an Amended Information, which alleged two strike convictions: the previously-alleged 2003

2 robbery and a 2001 conviction for assault with a deadly weapon (a straight edge razor and a

3 chair). (1 CT 116-18.) Petitioner was arraigned on the Amended Information on August 10,

4 2006. (1 CT 115, 116.) When Mullins told Petitioner’s parents that he now faced a life term,

5 they said that they would hire private counsel. (1 CT 112.) The case was continued to

6 enable them to do so. (1 CT 126-30.)

On September 20, 2006, the public defender’s office was relieved as counsel.

8 Petitioner retained private counsel, who shortly afterwards discovered a conflict and another

9 private counsel was substituted. (1 CT 131, 133-35.) On March 7, 2007, counsel Stephen

10 Cline wrote a letter to the prosecutor attempting to settle the case based on the prosecution’s

11 previous four year plea offer, and offered to add a one year enhancement for a total of five

12 years. (First Amended Petition, Ex. D.)

Petitioner was subsequently represented by several different counsel. (1 CT 173-75,

14 223, 225, 234, 240.) Settlement discussions continued; on April 7, 2008, the prosecution

15 sought a continuance on the ground that it was considering a defense settlement offer. (1 CT

16 194-95, 221, 1 RT 67-77.) The parties were discussing a resolution of the case at 17 years,

17 but Petitioner’s conduct during a discussion of this offer on April 10, 2008 caused his counsel

18 to declare a doubt regarding his mental competence. Petitioner was evaluated by two

19 psychiatrists and was found competent to stand trial. The plea negotiations, however, broke

20 down. (1 RT 67-77.) On July 20, 2009, the prosecution filed a Second Amended

21 Information, again alleging two strikes. (1 CT 281-84.) Trial started on July 20, 2009. (1 RT

22 83.)

The jury acquitted Petitioner of the rape, forcible oral copulation, and criminal threats

24 counts. It convicted him of the aggravated assault and domestic abuse counts. (2 CT 48325

The record does not reflect when the prosecution became aware of Petitioner’s 2001 conviction.

The documents introduced to prove Petitioner’s prior convictions reflect that the prior conviction packet

was sent by the California Department of Corrections and Rehabilitation with a certification dated March

24, 2006. (2 CT 511.)

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1 84.) The trial court refused to dismiss the 2001 strike conviction under Romero, and

2 Petitioner received a Three Strikes sentence of 25 years to life. (2 CT 537-38.)

Declarations Submitted by Petitioner

Petitioner has submitted declarations by himself, his parents, and his trial counsel. He

5 submitted the same declarations to the state courts.

In his own declaration, Petitioner declares that Sachs told him that he felt confident

7 that Petitioner could be acquitted of all charges except perhaps the Section 273.5 domestic

8 abuse count, and that he had a good chance of mounting a defense even against that count.

9 Sachs told Petitioner that his maximum exposure if he lost at trial on the domestic abuse

10 count was 9 years (four years high term doubled on account of the strike, plus one year for

11 the prison prior). (Petition, Exh. A [Declaration of Kristin Hardy, undated [“Pet. Decl.”] at 1.)

12 Petitioner felt that Sachs’s advice regarding the prospects of winning at trial was good and

13 turned down the offer. After the prosecution filed an Amended Information adding another

14 strike, Petitioner tried to get the offer back, but the prosecution refused. Petitioner declares

15 that Sachs never mentioned that he was facing a life sentence under the Three Strikes law.

16 (Id.) He maintains that if he had known “the true consequences” of going to trial, he would

17 not have taken the risk and would have accepted the offer. (Id. at 1-2.)

Petitioner’s parents, Curtis and Denise Hardy, declare that they had numerous

19 discussions with Sachs regarding Petitioner’s case, but Sachs never mentioned that

20 Petitioner faced a life sentence under the Three Strikes law if he proceeded to trial.

21 (Declaration of Curtis Hardy, undated [“C. Hardy Decl.”] at 1; Declaration of Denise Hardy,

22 undated [“D. Hardy Decl.”] at 1.) Petitioner also never mentioned a possible life term. (D.

23 Hardy at 1.) Petitioner’s father declares that he and his wife were “not very pleased” with the

24 four year offer because they felt that Petitioner was innocent, but they would have urged him

25 to accept the offer if they had known that he faced a life term. (C. Hardy Decl. at 1.)

In his informal brief in support of his state habeas petition, Petitioner asserted that Sachs also

told him that if he was convicted of all counts, he faced more than 30 years in prison, and that the four

year offer was a good one. (LD 10 at 7.)

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1 Petitioner’s mother similarly declares that she and Petitioner’s other family members would

2 have “forced him to take the deal” had they been aware of a possible life sentence. (D. Hardy

3 Decl. at 1.)

Petitioner’s trial counsel, Samuel Long, declares that Petitioner clearly told him that he

5 would have accepted the four year offer “had he been apprised of the exposure he faced and

6 the evidentiary procedures available to bring in the victim’s statements.” (Declaration of

7 Samuel J. Long, dated July 20, 2010 [“Long Decl.”] ¶ 8.)

The Victim’s Pre-Preliminary Hearing Statements and Preliminary

Hearing Testimony

Some time before the December 21, 2005 Marsden hearing, the victim, Melissa

11 Malone (“Malone”), gave Sachs a letter in which she said that she had fabricated the rape

12 charges. (LD 20 at 4; 1 RT 145-56, 195-96.) Sachs gave the letter, which was signed by

13 Malone under penalty of perjury, to the prosecutor. (LD 20 at 4; 1 CT 50.) Malone met with

14 Sachs several times and told him that she and Petitioner had consensual sex. (1 CT 448-49.)

15 On February 21, 2006, Malone told a defense investigator that there was no rape. (1 RT 18016 81.)

At the preliminary hearing on March 14, 2006, however, Malone gave testimony

18 essentially consistent with her statements to the police when she reported the crime. (1 CT

19 32-64.) She admitted that she previously told both Sachs and the prosecutor that the incident

20 involved consensual sex, but said that she lied. (1 CT 49.) She said that she lied in the letter

21 that she gave to Sachs, and that Petitioner and his parents had encourag ed her to write it. (1

22 CT 50-51, 56-57, 66.)

Petitioner’s Jailhouse Conversations with the Victim

The prosecution played at trial portions of two surreptitiously taped telephone

25 conversations between Petitioner and Malone while he was in jail: one on February 24, 2006

26 and one on April 18, 2006. (2 CT 298-319, 413-35.) During these conversations, Petitioner

27 made statements regarding his sentence exposure, which were redacted from the recordings

28 played for the jury and from the accompanying transcripts.

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The record does not contain an unredacted transcript of the February 24, 2006

2 conversation, which took place before the preliminary hearing, but the trial court and counsel

3 quoted statements by Petitioner referring to his sentence exposure when discussing the

4 redaction of the transcript. They referred to Petitioner saying “getting no 11 years” and “I was

5 going to go to jail for 20 years.” (2 RT 281, 282, 296).

The record contains an unredacted transcript of the April 18, 2006 conversation, which

7 took place after the preliminary hearing. Petitioner makes numerous references to facing 37

8 years in prison. (2 CT 322, 323, 324, 325, 341.) At one point, w hile begging Malone not to

9 testify against him, he says, “I’m going for life.” (2 CT 328.) He also says “They took the deal

10 off the table.” and “When I went to court deal was off the table. The District Attorney took the

11 deal off then they apply pressure to you: threatening to throw you in jail just to get me. Do

12 you think a [sic] really deserve 37 years in prison Melissa?” (2 CT 323.) Later, when talking

13 about Malone’s preliminary hearing testimony, he says, “But damn it, I would rather you have

14 told me from the beginning that you was going to do that, I would of jump on that ___ I was

15 gonna take it, but they took the deal back when I went to court.” (2 CT 333.)

Applicable Clearly Established Federal Law

The Sixth Amendment right to counsel extends to the plea bargaining process. Lafler

18 v. Cooper, __ U.S. __, 132 S. Ct. 1376, 1384 (2012); Missouri v. Frye, __ U.S. __, 132 S .Ct.

19 1399, 1405-06 (2012); Padilla v. Kentucky, 559 U.S. 356, 373 ( 2010); Hill v. Lockhart, 474

20 U.S. 52, 57 (1985). Criminal defendants are entitled to the effective assistance of competent

21 counsel during plea negotiations. Lafler, 132 S. Ct. at 1384. “If a plea bargain has been

22 offered, a defendant has the right to effective assistance of counsel in considering whether to

23 accept it.” Id. at 1387.

Ineffective assistance of counsel claims in the plea bargain context, like other

25 ineffective assistance claims, are governed by the two-part test set forth in Strickland v.

26 Washington, 466 U.S. 668, 687 (1984). Frye, 132 S .Ct. at 1405; Hill, 474 U.S. at 57. Under

27 Strickland, Petitioner must prove that his attorney's representation fell below an objective

28 standard of reasonableness. Strickland, 466 U.S. at 687-88. Petitioner also m ust show that

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1 he was prejudiced by counsel's deficient performance. Id. at 687. Petitioner can prove

2 prejudice by demonstrating “a reasonable probability that, but for counsel's unprofessional

3 errors, the result of the proceeding would have been different.” Id. at 694. A “reasonable

4 probability” is “a probability sufficient to undermine confidence in the outcome.” Id. Petitioner

5 must prove both prongs of Strickland. Id. at 687. The Court may reject his claims upon

6 finding either that counsel's performance was reasonable or that the claimed error was not

7 prejudicial. Id. at 697; see Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) ("[f]ailure to

8 satisfy either prong of the Strickland test obviates the need to consider the other").

In the context of plea offers, counsel cannot be required to predict accurately what the

10 jury or court might find if the case goes to trial, but he must give the defendant the tools

11 needed to make an intelligent decision. Turner v. Calderon, 281 F.3d 851, 881 (9th Cir.

12 2002). In order to show prejudice, “a defendant must show the outcome of the plea process

13 would have been different with competent advice.” Lafler, 132 S. Ct. at 1384. W hen a

14 defendant contends that counsel's defective advice caused him to reject a plea offer and

15 proceed to trial, he has shown prejudice where “but for the ineffective advice of counsel there

16 is a reasonable probability that the plea offer would have been presented to the court (i.e.,

17 that the defendant would have accepted the plea and the prosecution would not have

18 withdrawn it in light of intervening circumstances), that the court would have accepted its

19 terms, and that the conviction or sentence, or both, under the of fer's terms would have been

20 less severe than under the judgment and sentence that in fact were imposed.” Id. at 1385.

"The standards created by Strickland and § 2254(d) are both ‘highly deferential,' and

22 when the two apply in tandem, review is ‘doubly' so." Richter, 562 U.S. at 105 (internal

23 citations omitted). To succeed on an ineffective assistance of counsel claim governed by

24 Section 2254(d), "it is not enough" to persuade a federal court that the Strickland test would

25 be satisfied if a claim "were being analyzed in the first instance." Bell v. Cone, 535 U.S. 685,

26 698-99 (2002). It also "is not enough to convince a federal habeas court that, in its

27 independent judgment, the state-court decision applied Strickland incorrectly." Id. at 699.

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1 Rather, the habeas petitioner must show that the state courts "applied Strickland to the facts

2 of his case in an objectively unreasonable manner." Id.

Analysis

The Riverside County Superior Court denied Petitioner’s ineffective assistance claim,

5 stating: “The petitioner fails to establish prejudice in this case. Petitioner has failed to

6 establish a reasonable probability that a more favorable outcome would have resulted but for

7 the complained about deficiencies of the attorney. In re Cox (2003) 30 Cal. 4th 974.” (LD 11

8 at 2.) Thus, the state court denied Petitioner’s claim purely under the prejudice prong of

9 Strickland. The Court must determine whether the state court’s conclusion that Petitioner had

10 not shown prejudice was contrary to, or an unreasonable application of, clearly established

11 federal law, or rested on an unreasonable determination of the facts in light of the evidence

12 before the state court. 28 U.S.C. § 2254(d)(1)&(2).

In assessing the state court’s prejudice determination, the Court accepts that during

14 their discussions of the state’s plea offer, Sachs never advised Petitioner that he had two

15 strikes and potentially faced a Three Strikes sentence. In addition to Petitioner’s own

16 declaration and the declarations of his parents, Sachs’s statements during the Marsden

17 hearing corroborate that he believed that Petitioner had only one strike conviction. He told

18 the trial court that “[Petitioner] does have a strike, which, of course, complicates his case,”

19 and both Sachs and Petitioner spoke of the doubling of Petitioner’s sentence as a result of

20 having one strike. (LD 20 at 4, 5.)

Respondent argues that Petitioner knew, even if his counsel did not, that he potentially

22 faced a life sentence. Petitioner presumably knew that he had sustained an aggravated

23 assault conviction in 2001, and his plea papers reflect that he acknowledged at the time that

24 the conviction would constitute a strike in the future. (2 CT 519.) However, Petitioner

25 declares that he was “somewhat ignorant” of the Three Strikes law (Pet. Decl. at 1-2), and the

There is no need to reach the performance prong if the state court reasonably denied

Petitioner’s ineffective assistance claim under the prejudice prong. Strickland, 466 U.S. at 697; Rios,

299 F.3d at 805.

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1 record does not show that he knew that he faced a sentence of 25 years to life or more if the

2 prosecution alleged both his 2001 conviction and his 2003 conviction as strikes. The Court is

3 unpersuaded by Respondent’s argument that Petitioner’s statement to Malone during their

4 April 18, 2006 conversation that “I’m going for life” shows that he knew that he faced a life

5 sentence. (Answer at 39; 2 CT 301.) Read in context, it is apparent that Petitioner is

6 exaggerating in order to make Malone feel bad enough to change her story. Moreover, in the

7 same conversation, Petitioner repeatedly refers to going to prison for 37 years. (2 CT 322,

8 323, 324, 325, 341.) The April 18, 2006 conversation shows that Petitioner knew that he

9 faced a long sentence if convicted of all charges, but does not show that he knew that he

10 faced an indeterminate sentence under the Three Strikes law.

Thus, when Petitioner rejected the four year plea offer, neither he nor Sachs realized

12 that he faced an indeterminate Three Strikes sentence if the state alleged his 2001 conviction

13 in addition to his 2003 conviction. Even so, Sachs told Petitioner that the four year offer was

14 “a good deal” and advised him to accept it. (First Amended Petition, Ground Four, Attach. at

15 1; LD 10 at 7; see also 1 CT 153 [Petitioner’s complaint to the State Bar mentioning that

16 Sachs “seemed to become angry” when Petitioner declined the offer].) Petitioner is not

17 claiming that Sachs advised him to reject the four year plea offer – he is claiming that he

18 would have accepted it if Sachs had provided him with correct information about his potential

19 sentence exposure.

A defendant who contends that his counsel’s deficient advice caused him to reject a

21 plea offer must show that, but for the deficient advice: (1) he would have accepted the plea

22 offer; (2) the prosecution would not have withdrawn it; (3) the trial court would have accepted

23 it; and (4) his sentence would have been less severe. Lafler, 132 S. Ct. at 1385. The last

24 factor is not in question here – Petitioner’s sentence of 25 years to life is clearly more severe

25 than the four year plea offer. Nor is there any indication that the trial court would not have

26 accepted the plea agreement -- the trial court granted Petitioner a continuance to consider

27 the offer and spoke favorably of it at the December 21, 2005 Marsden hearing. (LD 20 at 6,

28 7; Supplemental Reply, Exh. A.) The Superior Court reasonably could have based its finding

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1 of no prejudice only on one or both of the first two Lafler factors, i.e., that Petitioner would not

2 have accepted the plea offer and/or that the prosecution would have withdrawn it.

Although the record does not show exactly when the four year plea offer expired, the

4 parties agree that it did not survive the March 14, 2006 preliminary hearing. The trial court

5 warned Petitioner at the December 21, 2005 Marsden hearing that the prosecution’s offers

6 would not be as good after the preliminary hearing (LD 20 at 4), and the March 7, 2007 letter

7 of Petitioner’s counsel Cline refers to the Riverside County district attorney’s office policies

8 regarding post-preliminary hearing plea agreements (First Amended Petition, Exh. D).

9 Moreover, Petitioner told Malone on April 18, 2006 that the of fer was no longer available

10 when he tried to accept it in court, presumably referring to the April 13, 2006 mandatory

11 settlement conference. (1 CT 85; 2 CT 323, 333.) The relevant period during which

12 Petitioner could have accepted the offer was prior to the preliminary hearing.

Prior to the preliminary hearing, Petitioner had reason to feel optimistic about his

14 prospects. Malone had repeatedly recanted her allegations that Petitioner had sexually

15 assaulted her and she had done so in writing under penalty of perjury. She had told Sachs

16 as well as the prosecutor that the sexual activity between her and Petitioner was consensual.

17 (LD 21 at 4; 1 CT 48-51.) Malone was pregnant with Petitioner’s child, she was in regular

18 contact with Petitioner and his parents, and Petitioner could reasonably believe that she

19 would stick to her recantation and testify favorably to him at the preliminary hearing. (1 RT

20 145-46, 150-51, 169.) This changed after Malone disavowed her recantation and testified

21 against Petitioner at the preliminary hearing. The prosecution’s case became stronger and

22 Petitioner’s prospects for escaping significant prison time became dimmer. In fact, Petitioner

23 himself told Malone during a conversation with her after the preliminary hearing that he would

24 have accepted the plea offer if he had known that she would testify against him. (2 CT 333.)

25 Petitioner also said that he tried to accept the plea of fer when he “went to court,” but it was no

26 longer available. (2 CT 323, 333.) Thus, the record shows that the most significant factor in

27 Petitioner’s rejection of the plea offer was his reliance on Malone’s recantation. Once she

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1 testified against him at the preliminary hearing, Petitioner tried to accept the plea offer even

2 though he did not yet know that he would be charged with a second strike.

These facts distinguish the case from the Ninth Circuit decision in Riggs v. Fairman,

4 399 F.3d 1179 (9th Cir. 2005), rehearing en banc granted, 430 F.3d 1222 (9th Cir. 2005),

5 appeal dismissed, 2006 WL 6903784 (9th Cir., Apr. 14, 2006). Riggs was charged with petty

6 theft with a prior conviction. He had previously been convicted of four counts of robbery, but

7 during plea negotiations none of the parties understood that he had f our strikes and faced a

8 potential life term under the Three Strikes law. The prosecutor and Riggs knew Riggs’s

9 criminal history but did not realize that each robbery count constituted a separate strike, while

10 defense counsel was unfamiliar with Riggs’s criminal record. Defense counsel advised Riggs

11 that his maximum exposure on the petty theft charge was nine years and advised him to

12 reject the prosecution’s five year offer and wait for a better one. No better offer came, and

13 Riggs was convicted and sentenced to 25 years to life. Riggs, 399 F.3d at 1181.

The Ninth Circuit affirmed the district court’s grant of habeas relief. It found that

15 defense counsel performed deficiently when she failed to independently investigate Riggs’s

16 criminal history or seek information about it from Riggs himself. Riggs, 399 F.3d at 1183. It

17 also found that Riggs had suffered prejudice. The Ninth Circuit found that Riggs’s testimony

18 that he would have accepted the five year offer was supported by three factors: (1) the

19 significant disparity between the plea offer and a sentence of 25 years to life; (2) the strong

20 prosecution case against Petitioner; and (3) the fact that Riggs tried to get the offer reinstated

21 once he became aware of the application of the Three Strikes law to his case. Id.

Only one of those three factors is present here: the significant disparity between the

23 four year plea offer and Petitioner’s 25-years-to-life sentence. However, unlike the strong

24 prosecution case in Riggs, where witnesses saw Riggs running from the store with stolen

25 vitamins and he made incriminating statements when apprehended, see Riggs v. Fairman,

26 178 F. Supp. 2d 1141, 1143 (C.D. Cal. 2001), the prosecution’s case ag ainst Petitioner was

27 relatively weak at the time that he was considering the plea offer. The victim had recanted

28 and claimed that she had fabricated her allegations. Nor do Petitioner’s efforts to reinstate

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1 the four year plea offer carry the same weight as those in Riggs, because his April 18, 2006

2 conversation with the victim shows that he tried to get the four year offer reinstated before he

3 was aware of the application of the Three Strikes law to his case.

An additional factor is that in Riggs, the defendant’s exposure with only one strike was

5 nine years – a significantly shorter period than his ultimate 25-years-to-life sentence. Riggs,

6 399 F.3d at 1183, 1187. Here, Petitioner adm its that Sachs told him that his exposure would

7 be more than 30 years if he was convicted on all counts. (LD 10 at 7.) Petitioner understood

8 that Sachs’s nine year estimate assumed that Petitioner would prevail on all charges except

9 the domestic violence charge (Pet. Decl. at 1), and depended on Malone m aintaining her

10 recantation. As shown by Petitioner’s references to 37 years during his April 18, 2006

11 conversation with Malone, Petitioner knew that he potentially faced a long sentence if she

12 testified against him and he was convicted of all charges. He took the risk in reliance on her

13 recantation. The state court could reasonably infer that he would have done the same even if

14 he had known that he was a third striker.

The Court concludes that, on this record, a finding by the Superior Court that Petitioner

16 would have rejected the four year plea offer even if he had known of a potential Three Strikes

17 sentence would not have been objectively unreasonable. The state court could reasonably

18 find no prejudice under the first Lafler factor. See Lafler, 132 S. Ct. at 1385.

In his Second Supplemental Brief, Respondent argues that the second Lafler factor

20 also supports the Superior Court’s decision, because the prosecution w ould have retracted

21 the plea offer once it realized that Petitioner had a second strike. (Second Supplem ental

22 Brief at 5-7.) Petitioner counters that there is no evidence that the prosecution was unaware

23 of the 2001 strike when it made the four year offer, and argues that the prosecution’s later

24 refusal to re-extend the offer was due to the case having gone past the preliminary hearing

25 stage. (Response to Second Supplemental Brief at 2-3.)

The Court agrees with Respondent that the record strongly suggests that the

27 prosecution was unaware of the second strike when it made its four year plea offer. During

28 the Marsden hearing, Sachs talked about plea negotiations lasting “almost an hour or two”

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1 (LD 20 at 4), and it is difficult to envisage that the prosecutor would not have mentioned

2 Petitioner’s Three Strikes exposure during that time. Moreover, the prosecution did not allege

3 the second strike in the Information filed on March 27, 2006, but only did so in an Amended

4 Information filed June 1, 2006. (1 CT at 77-79, 116-118.)

Under California law, the prosecutor can amend the complaint or information to add

6 prior convictions until sentencing, as long as the jury has not been discharged. People v.

7 Tindall, 24 Cal.4th 767, 776 (2000). “[I]f a defendant pleads guilty or nolo contendere, the

8 prosecution may, on the court's order, amend the information to add previously unalleged

9 prior convictions until sentencing.” Id. at 778. Moreover, in Perez v. Rosario, 459 F.3d 943

10 (9th Cir. 2006), the Ninth Circuit held that a defendant could not show prejudice when his

11 counsel’s deficient advice led him to reject a plea offer that was based on the prosecutor’s

12 mistaken belief that one of defendant’s prior convictions did not count as a strike. The Ninth

13 Circuit declared that the defendant “was not entitled to a plea bargain offer made on mistaken

14 legal assumptions.” Id. at 946-49.

In this case, however, Respondent’s argument that the prosecution would have

16 withdrawn its four year plea offer once it realized that Petitioner had two strikes rests on

17 factual assumptions not warranted by the record that was before the state court that rejected

18 Petitioner’s claim. First, there is no reason to believe that if Petitioner had promptly accepted

19 the plea offer, the prosecution would have discovered his 2001 conviction any earlier than it

20 ultimately did. Second, in Perez it was undisputed that the plea offer would not have been

See also King v. Curry, EDCV 04-1107-R (RCF), 2011 WL 1790779, *11-12 (C.D. Cal., Feb. 23,

2011), adopted by, 2011 WL 1790953 (C.D. Cal., May 9, 2011) (defendant who rejected plea offer was

not prejudiced by counsel’s failure to advise him that he actually had three strikes rather than only one

as alleged by the prosecution, because the prosecution could have amended information to allege

additional strikes and under Perez defendant was not entitled “to capitalize on the prosecutor’s mistaken

belief about the extent of his criminal history”); Hampton v. Evans, 07-cv-00550 ALA (HCV), 2009 WL

807457, *10-11 (E.D. Cal., Mar. 26, 2009) (when prosecutor made plea offer not realizing that

defendant had a strike conviction, defendant was not prejudiced by counsel’s failure to advise him of

actual sentence exposure, because the prosecution could have amended information to allege new

strike and a defendant is not prejudiced under Strickland when he is deprived of benefiting from a

“windfall error”).

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1 extended if the prosecution had realized that Perez was a third striker. Perez, 459 F.3d at

2 948. Here, given the victim’s recantation, the relatively minor nature of Petitioner’s 2001

3 strike, and the lack of evidence regarding pertinent Riverside County district attorney’s

4 policies, this is not a case where the record on its face shows that the four year offer would

5 not have been extended or honored once the prosecutor knew of the 2001 strike. It may be

6 so, but on this record, the second Lafler factor does not support the Superior Court’s

7 decision.

Thus, only one of the Lafler factors supports the state court’s decision. That, however,

9 is sufficient. Petitioner’s claim fails because the state court could reasonably find that he

10 would not have accepted the plea offer prior to the preliminary hearing even if he had known

11 of his second strike. Critically, the Court is not making the prejudice determination de novo:

12 rather, it is determining whether, under the record before the Superior Court, the state court’s

13 finding that Petitioner was not prejudiced “was so lacking in justification that there was an

14 error well understood and comprehended in existing law beyond any possibility for fairminded

15 disagreement.” Richter, 562 U.S. at 103. In view of the victim’s adherence to her recantation

16 at the time the plea offer was open, her continuing contacts with Petitioner and his family,

17 Petitioner’s awareness that even with one strike he faced a sentence of more than 30 years if

18 convicted on all counts, and his expressed desire to accept the plea offer after the preliminary

19 hearing even though the second strike had not yet come to light, the Superior Court’s

20 conclusion that Petitioner had not shown prejudice was not so unreasonable as to meet this

21 demanding standard.

Petitioner complains that the Superior Court made credibility findings against him

23 without holding an evidentiary hearing. Thus, he argues, the Superior Court’s fact-finding

24 process was unreasonable and its determination that he failed to show prejudice rests on an

25 unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2). (Supplemental Reply

26 at 9, 19.) The Ninth Circuit has stated that when “a state court makes evidentiary findings

27 without holding a hearing and giving petitioner an opportunity to present evidence, such

28 findings clearly result in an ‘unreasonable determination’ of the facts.” Taylor v. Maddox, 366

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1 F.3d 992, 1001 (9th Cir. 2004). For instance, in Nunes v. Mueller, 350 F.3d 1045 (9th Cir.

2 2003), the Ninth Circuit found that the state court acted unreasonably by rejecting Nunes’s

3 claim that his attorney was ineffective for inaccurately conveying to him the state’s plea offer

4 without first holding an evidentiary hearing. The Ninth Circuit found that although the state

5 court had purported to accept Nunes’s version of the facts, it had actually discredited his

6 credibility and rejected his assertions. Id. at 1054-1055 & n.7.

However, even in Nunes the Ninth Circuit acknowledged that the state court need not

8 always hold an evidentiary hearing in order to reject the petitioner’s allegations, id. at 1055,

9 and in Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004), the Ninth Circuit ex pressly

10 declined “to inject an ‘evidentiary hearing’ requirement as a pre-requisite to AEDPA

11 deference.” Moreover, in Perez the Ninth Circuit declared that “state court fact

12 determinations are reasonable without an evidentiary hearing, as here, where the record

13 conclusively establishes a fact or where petitioner’s factual allegations are entirely without

14 credibility.” 459 F.3d at 951. “Where there is no likelihood that an evidentiary hearing would

15 have affected the determination of the state court, its failure to hold one does not make such

16 determination unreasonable.” Id.

That is the case here. In its analysis of Petitioner’s claim, the Court has accepted

18 Petitioner’s central factual premises – that Sachs did not tell him that he potentially faced an

19 indeterminate sentence under the Three Strikes law and that he did not know it when he

20 rejected the state’s four year plea offer. Even so, the Court has concluded, for the reasons

21 explained above, that the Superior Court could reasonably find no prejudice based on the

22 record before it. Petitioner has not shown that the Superior Court’s decision rested on an

23 unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2).

It bears stressing that the Court is not deciding whether, in its view, Petitioner has

25 suffered prejudice under the Strickland standard. The question before the Court is whether

26 the Superior Court’s determination that Petitioner did not suffer prejudice was objectively

27 unreasonable. Richter, 562 U.S. at 101-02. T his is an extremely difficult standard to meet.

28 Id. at 102. For the reasons set forth above, Petitioner has not satisfied it.

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Accordingly, the Riverside County Superior Court’s rejection of this claim was not

2 contrary to, or an unreasonable application of, clearly established federal law as set forth by

3 the United States Supreme Court, nor did it rest on an unreasonable determ ination of the

4 facts. 28 U.S.C. § 2254(d)(1), (2). Ground Four does not warrant federal habeas relief.

5 V,

GROUND FIVE DOES NOT WARRANT FEDERAL HABEAS RELIEF.

In Ground Five, Petitioner contends that trial counsel was ineffective for failing to move

7 for a new trial based on a defense investigator’s destruction of a report of a conversation with

8 the victim. Petitioner maintains that the report would have shown that Malone admitted to the

9 investigator that she struck Petitioner first, and would have impeached her testimony at trial

10 that Petitioner struck her first. Petitioner also contends that appellate counsel was ineffective

11 for failing to raise this ineffective assistance claim on direct appeal. (First Amended Petition,

12 Ground Five, Attach. at 1-7.)

In his Supplemental Brief, Respondent contends that Ground Five is unexhausted.

14 (Supplemental Brief at 7-15.) In his Supplemental Reply, Petitioner contends that

15 Respondent waived this argument when he stated in the Answer: “Petitioner’s First Amended

16 Petition for Writ of Habeas Corpus appears to be timely and exhausted.” (Supplemental

17 Reply at 1-2; Answer at 2.) 28 U.S.C. § 2254(b)(3) provides: “A State shall not be deemed to

18 have waived the exhaustion requirement or be estopped from reliance upon the requirement

19 unless the State, through counsel, expressly waives the requirement.” It is doubtful that

20 Respondent’s blanket assertion that the First Amended Petition is exhausted constitutes an

21 express waiver of the exhaustion requirement with respect to Ground Five, because

22 Respondent’s utter failure to address Ground Five in the Answer suggests that Respondent

23 overlooked this claim. In any event, an unexhausted claim may be denied on the merits if it is

24 perfectly clear that it does not constitute a colorable claim. Cassett v. Stewart, 406 F.3d 614,

25 624 (9th Cir. 2005); see 28 U.S.C. § 2254(b)(2). As shown below, such is the case here.

Background

Investigator Lacy Robitzer was called to the stand by the defense. She testified that

28 she was hired as an investigator by Petitioner’s previous counsel Christopher Dombrowski

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1 and kept a hard file regarding Petitioner’s case. The file included notes of her conversation

2 with Malone. After Dombrowski was relieved and replaced by James Curtis, Robitzer tried

3 to contact Curtis about continuing to work on Petitioner’s case, but her messages were not

4 returned. (2 RT 363-64.) After about a year she destroyed her notes, consistent with her

5 usual practice when a defendant obtains new counsel and the new counsel does not

6 expressly ask her to retain her file. (2 RT 364-65.)

Robitzer testified that she had one meeting with Malone, which took place at the

8 courthouse. (2 RT 365.) Malone told her that she had lied to the police reg arding the rape

9 allegations. Malone said that she was afraid to change the story she told the police, because

10 the district attorney’s office had told her that charges would be brought against her for lying

11 and she was afraid of losing her children. (2 RT 365-66.) Robitzer planned to conduct

12 another interview with Malone, who did not want to do a full interview at the courthouse. (2

13 RT 366.) Robitzer did not do so because Petitioner changed counsel and the new counsel

14 did not retain her. (2 RT 366.)

On cross-examination, Robitzer testified that her conversation with Malone took place

16 between February and April of 2008. (2 RT 366.) Her previous attempts to contact Malone

17 were unsuccessful, and she came to the courthouse because she knew that Malone would be

18 there that day. (2 RT 370-71.) She testified that Malone told her that she lied to the police

19 about the rape, but did not specifically say that she also lied about the physical abuse. (3 RT

20 373.) Robitzer admitted that her notes had been more detailed than her testimony was. (3

21 RT 374.)

In his First Amended Petition, Petitioner contends that af ter Robitzer spoke with

23 Malone, she visited him in jail to discuss the interview. Robitzer told Petitioner that Malone

24 had admitted that she struck Petitioner first. (First Amended Petition, Ground Five, Attach. at

25 2.) A few days before trial, trial counsel told Petitioner that he had spoken to Robitz er about

Dombrowski was relieved as Petitioner’s counsel on May 20, 2008, after the trial court granted

Petitioner’s Marsden motion. Dombrowski was replaced by Curtis, another attorney from the Conflict

Defense Lawyers (CDL) panel (1 CT 223, 225.)

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1 her 2008 interview with Malone, and Robitzer had told him that she did not remember Malone

2 telling her that she had struck Petitioner first. (Id. at 3.)

At trial Malone testified that Petitioner hit her in the eye during an argument and she hit

4 him in the face. (1 RT 113-14, 178, 201.) She testified that Petitioner hit her first and then

5 she hit him. (1 RT 202, 203.) Petitioner testified that Malone hit him while he was asleep,

6 and he started throwing punches before he realized who had hit him. (2 RT 424-25.)

Analysis

Petitioner contends that trial counsel was ineffective for failing to move for a new trial

9 based on Robitzer’s destruction of her notes. He contends that Robitzer’s notes would have

10 reflected that Malone admitted that she struck him first. Thus, according to Petitioner,

11 Robitzer’s notes would have impeached Malone’s testimony that Petitioner struck her first,

12 and would have corroborated his testimony that Malone hit him while he was asleep and he

13 reflexively hit back. (First Amended Petition, Ground Five, Attach. at 2-5.)

As an initial matter, there is no evidence in the record that Robitzer’s notes would have

15 reflected that Malone told Robitzer that she had struck Petitioner first. When she testified at

16 trial, Robitzer did not recall Malone telling her that she had lied to the police about the

17 physical abuse as well as about the rape. (2 RT 373.) Petitioner has submitted a report

18 prepared February 21, 2006 by a defense investigator retained by Sachs, in which that

19 investigator states that Malone told him that Petitioner hit her accidentally after she startled

20 him by screaming into his ear while he was asleep. (Reply, Exh. S.) However, Malone’s

21 conversation with Robitzer took place two years later, and there is no declaration by Malone

22 regarding what she told Robitzer. Petitioner’s contention rests purely on his unsworn and

23 unsupported assertion in his First Amended Petition that after her conversation with Malone,

24 Robitzer told him that Malone had admitted striking him first. (First Amended Petition,

25 Ground Five, Attach. at 2.) This is not enough to show that Robitzer’s notes contained

26 material impeaching Malone’s trial testimony.

Second, Petitioner has not shown that trial counsel could have brought a meritorious

28 motion for a new trial. Robitzer’s destruction of her notes does not fall within the grounds for

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1 a new trial enumerated in Cal. Penal Code § 1181, nor did it constitute inef fective assistance

2 of counsel, which is also a basis for granting a new trial in California. See People v.

3 Fosselman, 33 Cal. 3d 572, 582-83 (1983). Moreover, there would have been no factual

4 basis for a motion for a new trial, since Petitioner could not show that Robitzer’s notes

5 reflected that Malone admitted hitting Petitioner first.

To the extent Petitioner’s claim is not limited to trial counsel’s failure to file a motion for

7 a new trial on this basis, the record belies his contention that trial counsel w as ineffective in

8 his presentation of the defense case. Trial counsel called Robitzer as a witness and elicited

9 from her testimony that Malone had told her that she lied to the police reg arding the rape

10 allegations. (2 RT 365-66.) Trial counsel also called Petitioner’s former counsel Stephen

11 Cline, who spoke with Malone while he was representing Petitioner. Cline testified that

12 Malone told him that she had made up the story about the rape allegations. (2 RT 395-96.)

13 He further testified that Malone told him that she had falsely led the police to believe that the

14 physical violence was one-sided, and “was adamant that she had started it and been involved

15 in it as well.” Malone told Cline that she and Petitioner both hit each other and there w as a

16 mutual fight going on. (2 RT 400, 404.) While Cline’s testimony was not entirely consistent

17 with Petitioner’s testimony that Malone hit him while he was asleep and he hit her back before

18 he realized it was her, Petitioner has not shown that Malone gave Robitzer a version more

19 consistent with his testimony. Moreover, Cline squarely testified that Malone told him that

20 “she had started it.” (2 RT 406-07.) Thus, trial counsel was able to introduce testimony that

21 Malone hit Petitioner during a mutual fight and admitted hitting him first. Although the jury

22 found Petitioner guilty of the aggravated assault and domestic abuse charges, trial counsel

23 was able to obtain an acquittal on the sexual assault charges and the dissuading a witness

24 charge. His performance cannot be considered “outside the wide range of reasonable

25 professional assistance.” Strickland, 466 U.S. at 689.

Petitioner also contends that appellate counsel was ineffective for not raising this claim

27 on appeal. (First Amended Petition, Ground Five, Attach. at 7-8.) Petitioner had a Sixth

28 Amendment right to effective assistance of appellate counsel in connection with his direct

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1 appeal to the California Court of Appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985).

2 However, ineffective assistance claims requiring factual development of matters outside the

3 trial record are properly raised by habeas petition rather than direct appeal. People v .

4 Mendoza Tello, 15 Cal. 4th 264, 266 (1997). Appellate counsel did not perf orm deficiently by

5 failing to present Petitioner’s ineffective assistance of trial counsel claim on direct appeal, nor

6 did Petitioner suffer any prejudice as a result. See Miller v. Keeney, 882 F.2d 1428, 1434

7 (9th Cir. 1989) (discussing application of Strickland standard on direct appeal). Nor can

8 appellate counsel be deemed ineffective for failing to file a habeas petition raising the

9 ineffective assistance of trial counsel claim, because appointed appellate counsel have no

10 duty to file habeas petitions on their clients’ behalf. See In re Golia, 16 Cal. App. 3d 775, 786

11 (1971). Finally, since, as discussed above, Petitioner’s ineffective assistance claim is without

12 merit, there is no reasonable likelihood that Petitioner would have obtained relief if appellate

13 counsel had raised the claim. Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001)

14 (“[A]ppellate counsel's failure to raise issues on direct appeal does not constitute inef fective

15 assistance when appeal would not have provided grounds for reversal.”).

For the reasons set forth above, Petitioner has not shown that trial counsel rendered

17 ineffective assistance in connection with Robitzer’s notes, or that appellate counsel rendered

18 ineffective assistance by failing to argue that trial counsel was ineffective. Accordingly,

19 Ground Five does not warrant federal habeas relief.

20 VI.

PETITIONER IS NOT ENTITLED TO AN EVIDENTIARY HEARING.

Petitioner requests an evidentiary hearing. (First Amended Petition at 1; Supplemental

22 Reply at 20-22.)

The United States Supreme Court has held that federal habeas review under 28

24 U.S.C. § 2254(d)(1) "is limited to the record that was before the state court that adjudicated

25 the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, __, 131 S. Ct. 1388, 1398

26 (2011). By its express terms, the same is true of federal habeas review under 28 U.S.C. §

27 2254(d)(2). Id. at 1400 n.7. “[A]n evidentiary hearing is pointless once the district court has

28 determined that § 2254(d) precludes habeas relief.” Sully v. Ayers, 725 F.3d 1057, 1075 (9th

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1 Cir. 2013); see Pinholster, 131 S. Ct. at 1411 n. 20 (“Because Pinholster has f ailed to

2 demonstrate that the adjudication of his claim based on the state-court record resulted in a

3 decision ‘contrary to’ or ‘involv[ing] an unreasonable application’ of federal law, a writ of

4 habeas corpus ‘shall not be granted’ and our analysis is at an end.”) (quoting 28 U.S.C. §

5 2254(d)). Since Petitioner did not surmount the barrier of Section 2254(d) with respect to his

6 ineffective assistance claim in Ground Four, he is not entitled to an evidentiary hearing. Sully,

7 725 F.3d at 1075.

To the extent Petitioner also seeks an evidentiary hearing with respect to Grounds

9 One, Two and Three, his request is similarly foreclosed by Pinholster. See Pinholster, 131 S.

10 Ct. at 1398; Sully, 725 F.3d at 1075. Pinholster does not bar an ev identiary hearing with

11 respect to Ground Five, which was never adjudicated by a state court. However, an

12 evidentiary hearing is not warranted where, as here, "the record refutes the applicant's factual

13 allegations or otherwise precludes habeas relief." Schriro v. Landrigan, 550 U.S.465, 474

14 (2007).

Accordingly, Petitioner’s request for an evidentiary hearing should be denied.

RECOMMENDATION

THE COURT, THEREFORE, RECOMMENDS that the District Court issue an Order:

18 (1) accepting this Report and Recommendation; (2) denying the First Amended Petition; and

19 (3) directing that Judgment be entered dismissing this action with prejudice.

DATED: September 2, 2015

/s/ John E. McDermott

JOHN E. MCDERMOTT

UNITED STATES MAGISTRATE JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.