Opinion
Case No. 05-CV-1133-W (NLS).
February 3, 2006
ORDER ADOPTING REPORT AND RECOMMENDATION
On May 27, 2005 Petitioner Daryl Armstead ("Petitioner"), a state prisoner proceeding pro se, commenced this habeas corpus petition pursuant to 28 U.S.C. § 2254. Petitioner challenges his armed robbery convictions. On October 12, 2005 United States Magistrate Judge Nita L. Stormes issued a Report and Recommendation ("Report") recommending the Court deny Petitioner's habeas request. On November 8, 2005 Petitioner timely submitted objections to the Report. The Court decides the matter on the papers submitted and without oral argument. See Civ. L.R. 7.1.(d.1). For the reasons outlined below, the Court ADOPTS the Report and DENIES the Petition. I. BACKGROUND
Petitioner and an acquaintance, Agustin Delgado, committed several armed robberies in San Diego. Both were charged with nine counts of armed robbery. ( Lodgment 1 at 1-6) At trial, Petitioner maintained his innocence while Delgado pled guilty and testified against Petitioner. ( Lodgment 2 at 414-79). In addition to Delgado's testimony, the prosecution presented strong evidence incriminating Petitioner, including eyewitness identifications and victims' belongings found at Petitioner's residence. ( Lodgment 2). Petitioner was convicted on three counts of armed robbery, but the jury failed to reach a verdict on the remaining six counts. Before retrial on the remaining six counts, Petitioner pled guilty and received a 16 year prison sentence for all nine counts pursuant to a written plea agreement. ( Lodgment 2 at 858-61).
Thereafter, Petitioner appealed his three trial convictions, arguing that the court improperly replied to a request to clarify jury instructions. ( Lodgment 4, 6). The appellate court agreed and reversed Petitioner's three convictions. ( Lodgment 7). The appellate court also permitted Petitioner to withdraw his guilty pleas on the other six counts. ( Lodgment 7 at 23-24). On remand, Petitioner pled guilty to all nine armed robbery counts. He received a 15 year sentence for all counts pursuant to a written plea agreement. ( Lodgment 16, 19).
In May 2005, after exhausting all state remedies, Petitioner filed this habeas petition. Petitioner asserts that he is entitled to habeas relief because (1) he was denied effective assistance of counsel in reaching his second plea bargain; and (2) his guilty plea violates his Due Process rights because it was based on his mistaken belief about his parole eligibility. ( Petition, at 1-8; Traverse in Support of Petition for Writ of Habeas Corpus (" Trav.") at 4-7). II. LEGAL STANDARD
In August 2005, Petitioner filed a habeas writ with the state superior court. ( Lodgment 21). The state superior court denied Petitioner's claim and issued the last reasoned decision on this matter. ( Lodgment 23). The state appellate court also denied Petitioner's habeas request. ( Lodgment 24, 25). After Petitioner filed a habeas petition with the California Supreme Court, the court denied the petition without comment. ( Lodgment 26, 27).
The duties of a district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72(b) of the Federal Rules Of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also United States v. Raddatz, 447 U.S. 667, 676 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).
When a reasoned state court decision addresses a petitioner's Constitutional claims, Federal courts conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of clearly established Supreme Court Law. See Delgado v. Lewis, 223 F. 3d 976, 982 (9th Cir. 2000). A state court decision is contrary to clearly established Supreme Court law if it (1) applies a rule that contradicts the governing law set forth in Supreme Court cases; or (2) confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at the opposite result. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision is an unreasonable application of the law to the facts "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case. Id. at 413.
III. ANALYSIS
Having read and considered the underlying Petition, the Report and Petitioner's objection thereto, the Court concludes the Report presents a well-reasoned analysis of the issues. For the following reasons, the Court finds the Report correctly concluded that Petitioner is not entitled to federal habeas relief. A. PETITIONER WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL
Petitioner first contends that his trial counsel was ineffective for failing to "fully investigate or retrieve petitioner's post-term credits accrued." ( Petition at 2). However, Petitioner's dissatisfaction stems from an incorrect determination of sentencing credits based on his first plea bargain. ( Petition at 1 Exs. A-C). The Report determined that Petitioner's counsel informed him of all the second plea agreement's relevant terms, including sentencing credits. ( Report at 6-7). Petitioner objects to the Report by merely restating his original argument that counsel failed to adequately investigate the first plea agreement's credit error. ( Objections at 2).
According to the abstract of judgment, the California Department of Corrections ("CDC") initially calculated Petitioner's minimum parole date as December 2007. ( Petition, Ex. A). This calculation assumed a credit accrual rate of up to 50 percent. Since the CDC overlooked Petitioner's violent felony conviction, the CDC failed to limit conduct credit accrual to 15 percent as required by California law. CAL. PENAL CODE § 2933.1 (c); People v. Cooper, 27 Cal.4th 38, 40 (Cal. 2002). Thus, a proper calculation would have actually made Petitioner's minimum parole date sometime in 2011. ( Petition, Ex. C). Although the state appellate court vacated this sentence, Petitioner complains that he agreed to the second plea bargain using the incorrect 2007 date as a benchmark for parole eligibility. ( Petition at 6). In other words, Petitioner thought accepting a 15 year sentence would result in a parole date earlier than 2007 because the new sentence was one year less than his original, 16 year sentence. ( Petition at 7). Petitioner argues that his counsel's failure to research his conduct credit issue, which would have revealed the error in the CDC's original release date, amounts to ineffective assistance of counsel.
Under California law, defendants convicted of certain non-violent crimes may be eligible to earn good time and work time credits (collectively referred to as "conduct credits") to reduce their time in custody by up to 50 percent. CAL. PENAL CODE § 2933.1(c); People v. Cooper, 27 Cal.4th 38, 40 (Cal. 2002).
A CDC records analyst eventually discovered the error and Petitioner's minimum parole date was recalculated. ( Petition, Ex. C).
To demonstrate that counsel was ineffective, Petitioner must show that (1) counsel's actions were objectively unreasonable; and (2) counsel's deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Turner v. Calderon, 281 F.3d 851, 873 (9th Cir. 2002). Counsel's performance is generally presumed reasonable. Strickland, 466 U.S. at 690. A defendant cannot overcome this general presumption with self-serving statements alone. Turner, 281 F.3d at 881.
"If the rule were otherwise, every rejection of a plea offer, viewed perhaps with more clarity in the light of an unfavorable verdict, could be relitigated upon defendant's later claim that had his counsel better advised him, he would have accepted the plea offer." Turner, 281 F.3d at 881. This Court finds the Turner analysis equally applicable in accepting plea offers. With the benefit of hindsight, a defendant's self-serving statements cannot override the presumption of counsel's reasonable judgment under Strickland.
To show prejudice in the context of a guilty plea, the petitioner must show a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). For parole eligibility errors, petitioner must show special circumstances and that he placed particular emphasis on parole eligibility in deciding whether or not to plead guilty.See id. at 59-60 (holding "[defendant] alleged no special circumstances that might support the conclusion that he placed particular emphasis on parole eligibility in deciding whether or not to plead guilty.").
At the change of plea hearing, Petitioner testified under oath that he had discussed the terms of his plea agreement with counsel, that he understood the terms, and that he had no questions about any aspect of the agreement. ( Lodgment 16 at 2-5). He also signed a change of plea form containing the same statements. ( Lodgment 17). The form specifically stated that one consequence of the plea was reduced eligibility for conduct credits. Petitioner initialed directly next to this provision and signed the bottom of the form, declaring under penalty of perjury that he read and understood the entire change of plea form. ( Lodgment 17 at 2). Counsel also signed the form, declaring under penalty of perjury that he explained the plea terms and personally witnessed Petitioner initialing and signing the form. ( Lodgment 17 at 3). The record supports the state court's conclusion that counsel properly advised Petitioner about the amount of time he would be required to serve under the plea agreement. ( See Lodgment 23).
California's generic form accommodates several options and instructs the defendant to circle the plea agreement's applicable consequences. Under item 7f, Petitioner circled (13) (a) which specifically states "Reduced Conduct Credits" and "Violent Felony (No credit or max. 15%)." ( Lodgment 17, at 2).
Counsel cannot be faulted for failing to retrieve Petitioner's old parole date calculation. For violent felonies, California law limits the accrual of conduct credits at 15 percent. That is, a defendant convicted of a violent felony must serve at least 85 percent of his sentence. CAL. PENAL CODE §§ 2933.1(a), 667(c). Accordingly, the Court finds that Counsel adequately notified Petitioner of all relevant terms of his plea deal. Moreover, no evidence suggests the CDC's prior administrative error played any part in the negotiation process. To the extent Petitioner faults counsel for unreasonably furthering his belief that 85 percent of 15 years would make him parole eligible before 2007, Petitioner's faulty math skills, and not counsel's performance, deserve blame.
Petitioner's IAC claim also overemphasizes the CDC's role in calculating minimum parole eligibility dates. The dates are by no means definitive and are based on certain assumptions about Petitioner's future earning of conduct credits (e.g. assuming good behavior while incarcerated and assuming that Petitioner earns work-time credit). In short, the date represents the earliest possible date Petitioner might be parole-eligible and can change in any event. See CAL. PENAL CODE § 2933(b) (providing that credits are a "privilege, not a right," and must be earned and may be forfeited).
Even assuming counsel's performance was deficient, Petitioner cannot satisfy Strickland's "prejudice" prong. In Hill, the Supreme Court concluded that the petitioner failed to establish prejudice after claiming his attorney misadvised him about parole eligibility. Hill, 474 U.S. at 59-60. Based on his attorney's advice, the petitioner believed his parole eligibility commenced after serving one third of his sentence rather than one-half as required by law. Id. at 54-55. The Court determined that the petitioner's mistaken belief about parole eligibility would have affected "not only his calculation of the time he likely would serve if sentenced pursuant to the proposed plea agreement, but also his calculation of the time he likely would serve if he went to trial and were convicted." Id. at 60. In other words, the belief acted as a constant, affecting either decision equally. Similarly, Petitioner's mistaken belief about earlier parole eligibility would have caused him to miscalculate both the prison time pursuant to the plea agreement and the prison time he risked through conviction at trial. Petitioner's assertion that given proper advice he would have elected to proceed to trial is utterly unsupported and belied by the fact that the consequences of his mistaken beliefs were the same regardless of whether he pled guilty or went to trial. ( Petition at 2, 6).
In denying Petitioner's state habeas petition, the state superior court relied on Hill and concluded that Petitioner failed to establish that he received ineffective assistance of counsel at the plea bargain stage. ( Lodgment 23 at 3-4). This Court is not called to decide whether it agrees with the state court's decision or whether it would have reached the same conclusion; rather, the Court inquires only whether the state court's decision was objectively unreasonable. Yarborough, 540 U.S. at 4. Based on the record, the Court finds Petitioner has failed to show that the state court's determination was objectively unreasonable. Accordingly, the Court OVERRULES Petitioner's objections and DENIES Petitioner's ineffective assistance of counsel claim.
B. PETITIONER'S GUILTY PLEA DOES NOT VIOLATE HIS DUE PROCESS RIGHTS
Petitioner raises a separate claim alleging his guilty plea is invalid under the Due Process Clause of the Fourteenth Amendment. Specifically, Petitioner contends he based his plea on "extrinsically fraudulent coercive information;" namely, his mistaken belief about the date he would become parole eligible. ( Petition at 7). The Report determined that Petitioner's second plea was voluntary and intelligent and that he was not misled while accepting the plea agreement's terms. ( Report at 8-9). Petitioner objections in essence simply restate arguments he made in his initial petition. ( Objections at 2-3).
To be valid under the Due Process Clause, a guilty plea must be voluntary and intelligent. Mabry v. Johnson, 467 U.S. 504, 509 (1984); Brady v. United States, 397 U.S. 742, 747 (1970). A guilty plea is considered voluntary and intelligent only if the defendant is fully aware of the direct consequences of his plea.Brady, 397 U.S. at 755. Although this requires a general understanding of the likely consequences and circumstances of the plea, the mere fact that a defendant may have held certain mistaken beliefs about his case does not mean the plea must necessarily be set aside. United States v. Ruiz, 536 U.S. 622, 630 (2002). In other words, a guilty plea may be upheld despite a defendant's misunderstanding about certain aspects of his case.Id. (collecting cases). Moreover, a guilty plea has long been considered valid if the plea "represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Hill, 474 U.S. at 56. A defendant's representations during the disposition hearing carry a strong presumption of truth and pose a formidable barrier in any subsequent collateral proceedings. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). With respect to parole issues, the Supreme Court has "never held that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant's plea of guilty to be voluntary." Hill, 474 U.S. at 56; see also Lambert v. Blodgett, 393 F.3d 943, 981 n. 26 (9th Cir. 2004) (recognizing that the Supreme Court does not require defendant to be given information about parole eligibility for guilty plea to be deemed voluntary).
The Fifth Circuit has held that a defendant's subjective, mistaken belief about parole eligibility did not invalidate his guilty plea. Spinelli v. Collins, 992 F.2d 559, 561-62 (5th Cir. 1993). In Spinelli, the defendant misunderstood the state's sentencing scheme and believed that he would be eligible for parole after five, rather than 20 years. Id. at 561. Eventually learning the truth about his eligibility, the defendant sought to set aside his guilty plea as involuntary. Spinelli, 992 F.2d at 561-62. The Fifth Circuit concluded that the defendant's misconception did not invalidate his guilty plea because the mistake was not based on any promises made to him by the defense attorney, the prosecutor or the court. Id. As the Constitution does not require the defendant to be furnished with any information regarding his parole eligibility, the Fifth Circuit found no basis for setting aside the plea. Id. at 562.
Here, the record demonstrates that Petitioner was fully advised about the relevant conditions of his plea and sentence. His testimony and signature under oath admit as much. ( Lodgment 16 at 2-5; Lodgment 17). Under Blackledge, these statements carry a strong presumption of truth and Petitioner has presented no credible evidence to the contrary.
Petitioner's claim arises from his same mathematical error which formed the basis of his Strickland claim. Despite all indications that he understood his reduced parole eligibility, Petitioner tries to rely on the administrative error in the original, vacated judgment. Because Petitioner signed the change of plea form in February 2003, it strains credulity to believe the CDC miscalculation convinced Petitioner that 85% of 15 years equaled 4 years, or parole eligibility in 2007.
Petitioner has presented no evidence that at any point during negotiations leading up to his second plea bargain he was misled about his conduct credits or parole conditions. Under Hill, the state has no affirmative duty to furnish Petitioner with parole eligibility for his plea to be voluntary. Therefore, neither the court, the prosecutor nor the defense counsel may be held responsible for not correcting Petitioner's mistaken belief. As in Spinelli, Petitioner testified under oath that he understood his plea terms and that no one had made him any additional promises. Although Petitioner's mistaken belief originated from a CDC calculation, neither the court, the prosecutor nor the defense counsel attempted to use the error to influence Petitioner's assent to the second plea. Again, the record indicates full disclosure and understanding. ( Lodgment 16 at 2-5; Lodgment 17).
Accordingly, the Court finds Petitioner's guilty plea valid because it represents a voluntary and intelligent choice among alternative courses of action. Had he proceeded to trial and been convicted, Petitioner faced up to 46 years in prison. ( Lodgment 17 at 2). A jury had already convicted Petitioner on three charges and was close to conviction on the remaining six. ( Lodgment 2 at 653). Despite the convictions being overturned, the state still possessed strong evidence with which to retry Petitioner. ( Lodgment 2). This Court concludes that pleading guilty in exchange for a 15 year sentence — one year less that the sentence he originally received — can reasonably be viewed as a "voluntary and intelligent" choice against going to trial.
In denying Petitioner's state habeas petition, the superior court relied on Hill and determined that Petitioner failed to establish that his guilty plea was involuntary. ( Lodgment 23). Again, this Court does not decide whether it agrees with the state court's decision, only whether that decision was "objectively unreasonable." Yarborough, 540 U.S. at 4. Based on the record, the Court finds Petitioner has failed to demonstrate that the state court's determination was objectively unreasonable. Accordingly, the Court OVERRULES Petitioner's objections and DENIES Petitioner's second claim.
C. PETITIONER HAS NOT ALLEGED FACTS SUFFICIENT TO WARRANT AN EVIDENTIARY HEARING
Finally, in his Traverse, Petitioner makes a cursory request for an evidentiary hearing on his claims. ( Trav. at 2). The Ninth Circuit has held that an evidentiary hearing is required only when the petitioner has alleged facts that, if proven, would entitle him to habeas relief. Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004). Nowhere in his Traverse does Petitioner explain what evidence he would present at an evidentiary hearing or argue that an evidentiary hearing is necessary to resolve his claims. Since Petitioner has failed to allege facts that would entitle him to habeas relief, the Court DENIES Petitioner's evidentiary hearing request. IV. CONCLUSION AND ORDER
In light of the foregoing, the Court ADOPTS the reasoning and findings contained in the Report. For the reasons stated in the Report, which is incorporated herein by reference, the Court DENIES Petitioner's § 2254 writ of habeas corpus. The Clerk of Court shall close the district court case file.
IT IS SO ORDERED.