Opinion
CV-22-00766-PHX-SPL (JZB)
02-17-2023
Marion Truman Lovelis, Petitioner, v. David Shinn, et al., Respondents.
REPORT & RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
Petitioner Marion Truman Lovelis has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
I. Summary of Conclusion.
On October 23, 2018, Petitioner pleaded guilty to three Counts against him: (1) attempted molestation of a child; (2) attempted sexual conduct with a minor; and (3) sexual abuse. (Doc. 7-2, Ex. F, at 112.) Petitioner asserts his guilty pleas were involuntarily obtained in violation of the Due Process Clause of the 5th and 14th Amendments, and that he was deprived of his Sixth Amendment right to effective assistance of counsel because his counsel “communicated to him false factual information that was critical to his decision to plead guilty.” (Doc. 1-2 at 2.) Because Petitioner is not entitled to relief on his claims, the Court recommends his habeas petition be denied and dismissed with prejudice.
The plea agreement stipulated that Petitioner be sentenced to lifetime probation on Counts 2 and 3, with judicial discretion for sentencing on Count 1- including the possibility of probation, and with a maximum sentence of 15 years.
II. Background.
A. Facts.
The Arizona Court of Appeals summarized the facts and procedural history as follows:
The Arizona Court of Appeals' recitation of the facts is presumed correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012).
In June 2016, Lovelis's wife contacted police after returning home and finding Lovelis on top of a nude minor. The State charged Lovelis with child molestation, sexual conduct with a minor, and sexual abuse.
During a settlement conference, the State informed Lovelis that it conducted DNA testing on the victim's underwear. The test revealed the presence of acid phosphatase-a constituent of semen-with a DNA profile matching Lovelis. But the underwear contained no sperm.
Lovelis maintained his innocence throughout the settlement conference. The judge emphasized to Lovelis that “[Lovelis's] sperm was found in [the victim s] underwear. Lovelis responded that he was unaware of any sperm evidence, prompting the prosecutor to search her files. The prosecutor retrieved the report revealing acid phosphatase in the victim's underwear and Lovelis acknowledged his familiarity with the report. The judge referred to the acid phosphatase evidence as “sperm” again, later in the conference.
Lovelis pled guilty to attempted molestation of a child, attempted sexual conduct with a minor, and sexual abuse. The superior court sentenced Lovelis to the presumptive term of ten years' imprisonment on the attempted molestation count, followed by lifetime probation on the other counts.(Doc. 1-6 at 3-4.)
B. Post-Conviction Relief Proceeding.
On April 22, 2019, Petitioner filed a timely notice of post-conviction relief (“PCR”). (Doc. 7-1, Ex. K, at 61-62.) September 6, 2019, Petitioner filed his petition for PCR. (Doc. 7-1, Ex. M, at 68-85.) Therein, Petitioner claimed that he was “inaccurately told” on the eve of trial that the State had new evidence that his sperm was found in the victim's underwear. (Id. at 69.) Petitioner further argued that his plea was not voluntary because it was induced by the “inaccurate misrepresentation of the serology evidence and the coercive nature of the settlement conference conducted by the trial judge on the eve of trial.” (Id. at 9.)
In response, the State pointed out that Petitioner was informed that the underwear tested positive for acid phosphatase, a component of semen. (Doc. 7-1, Ex. N, at 113.)
Additionally, the State told Petitioner that even if the lab results could not conclusively say it was sperm “that was not the key to the case, that the key to the case was his wife walking into the room and finding him on top of a naked eleven-year old.” (Id.) Petitioner filed a Reply (doc. 7-1, Ex. O, at 125-30), and supplemental briefing (doc. 7-1, Exs. P, V, W).
The trial court set a “status conference” regarding “Defendant's claims that he relief on inaccurate or potentially false information provided by Defense counsel in entering into the plea,” (doc. 7-1, Ex. Q, at 157-58), and then an evidentiary hearing on the same issue (see doc. 7-1, Exs. R, S, T, U). On August 14, 2020, the court held the evidentiary hearing, and took the issue of Petitioner's PCR under advisement. (Doc. 7-1, Ex. X, at 184-324.) On September 10, 2020, the PCR court issued its ruling denying PCR relief, finding that Petitioner's trial counsel was not ineffective and that Petitioner's claim that his plea was involuntary based on the alleged “misrepresentation of the serology evidence and the coercive nature of the settlement conference” was without merit. (Doc. 7-2, Ex. BB, at 721.)
On November 23, 2020, Petitioner petitioned for review to the Arizona Court of Appeals. (Doc. 7-2, Ex. CC, at 23-47.) On July 13, 2021, the Arizona Court of Appeals granted review but denied relief. (Doc. 7-2, Ex. FF, at 416-19.) Petitioner petitioned for review by the Arizona Supreme Court, but on January 5, 2022, the Arizona Supreme Court denied that petition for review. (Doc. 1-2 at 34.)
III. Petitioner's Habeas Petition.
On May 5, 2022, Petitioner timely filed the instant Petition. (Doc. 1; Doc. 1-2.) Petitioner raises two grounds for relief, summarized by this Court as follows:
In Ground One, Petitioner asserts that his guilty pleas violated the Due Process Clause of the Fifth and Fourteenth Amendment “because they were involuntarily obtained as the result of the false information about the nature of the State's evidence at trial communicated to him at an informal settlement conference before the trial judge held on the eve of trial.”
In Ground Two, Petitioner contends his guilty pleas violated his Sixth and Fourteenth Amendment rights to effective assistance of counsel “because his lawyer communicated to him false factual information that was critical to his decision to plead guilty and further failed to investigate and correct such information/”(Doc. 4 at 1-2.)
On June 20, 2022, Respondents filed an Answer. (Doc. 7.) On August 19, 2022, Petitioner filed a Reply. (Doc. 10.)
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244.
A. Standard of Review.
This Court may review petitions for a writ of habeas corpus from individuals held in custody under a state-court judgment on the ground the person is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). This Court may not grant habeas relief for any claim a state court adjudicated on its merits 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.28 U.S.C. § 2254(d). “This ‘standard is difficult to meet.'”Mays v. Hines, 141 S.Ct. 1145, 1149 (2021) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)). As explained by the Supreme Court:
The term “unreasonable” [in § 2254(d)] refers not to “ordinary error” or even to circumstances where the petitioner offers “a strong case for relief,” but rather to “‘extreme malfunctions in the state criminal justice system.'” In other words, a federal court may intrude on a State's “‘sovereign power to punish offenders'” only when a decision “was so lacking in justification . . . beyond any possibility for fairminded disagreement.”Id. (brackets omitted) (quoting Richter, 562 U.S. at 102- 03). “Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.” Miller-El v. Cockrell, 537 U.S. 322, 324 (2003) (citing 28 U.S.C. § 2254(e)(1)). “[A] decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Id. (citing 28 U.S.C. § 2254(d)(2)). Cf. Andrews v. Davis, 944 F.3d 1092, 1107 (9th Cir. 2019) (“Unreasonable determinations of material facts can occur where the state court plainly misapprehends or misstates the record in making its findings or where the state court has before it, yet apparently ignores, evidence that supports petitioner's claim.” (internal quotations and citations omitted)).
The subject of federal review is “the last reasoned state-court decision.” Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014). “When at least one state court has rendered a reasoned decision, but the last state court to reject a prisoner's claim issues an order ‘whose text or accompanying opinion does not disclose the reason for the judgment,' [a federal court] ‘look[s] through' the mute decision and presume[s] the higher court agreed with and adopted the reasons given by the lower court.” Curiel v. Miller, 830 F.3d 864, 870 (9th Cir. 2016) (quoting Ylst v. Nunnemaker, 501 U.S. 797, 802- 06 (1991)). An exception to this rule arises when “the last reasoned decision adopted or substantially incorporated the reasoning from a previous decision.” Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005). For example, when a state appellate court decision affirms the trial court and adopts the trial court's reasoning in doing so, this Court's analysis “will necessarily include discussion of the trial court's decision as well.” Lewis v. Lewis, 321 F.3d 824, 829 (9th Cir. 2003); see also Barker, 423 F.3d at 1093 (noting “it was reasonable for the reviewing court to look at both decisions to fully ascertain the reasoning of the last decision” when the later decision adopts the reasoning of the previous decision).
In this case, the Court reviews the decisions of both the PCR Court and the Arizona Court of Appeals on collateral review (doc. 7-2, Ex. BB, at 7-21; doc. 7-2, Ex. FF, at 41619.) as they are the last reasoned state-court decisions adjudicating Petitioner's claims in state court. See Murray, 745 F.3d at 996. The Arizona Supreme Court did not set forth its reasons for denying Petitioner's petition for review on direct review. (Doc. 1-4, Ex. B, at 22.)
B. The October 23, 2018 Settlement Conference.
At the heart of each of Petitioner's claims is the argument that misrepresentations made to him by the trial court and trial attorneys at the October 23, 2018 settlement conference rendered his plea involuntary and that his counsel was ineffective for failing to correct the information. (See Doc. 1-2.) At each level of post-conviction review, including the Petition before this Court, Petitioner has heavily relied on three specific exchanges from that conference. (See Doc. 7-1, Ex. M, at 72-74 (PCR Petition); Doc. 7-2, Ex. CC, at 3336 (Petition for Review of PCR Decision); Doc. 1-2 at 4-7 (Petition for Writ of Habeas Corpus).)
In the first exchange, during a discussion of the facts of Petitioner's case, the trial judge incorrectly informed Petitioner that sperm was found in the victim's underwear, but was quickly corrected by the prosecutor noting that the only test she could find in the record was for acid phosphatase.
THE DEFENDANT: What do you mean it's not relevant? The fact that she already attacked one person and then come and attacked me? I know it sounds kind of ridiculous, but I was asleep.
THE COURT: It does sound ridiculous, and it's not relevant because an 11-year-old cannot consent to sex.
THE DEFENDANT: I'm not saying that.
THE COURT: So regardless to what her mindset was, it does not matter.
They have to prove one thing. You had sex with her.
THE DEFENDANT: I wasn't trying to have sex with her. She was on top of me.
THE COURT: Your sperm was found in her underwear.
THE DEFENDANT: I've never seen that.
MR. TOSTO: We are trying to pull it up, Your Honor.
MS. REAMER: What I have found so far -- it's hard -- we are paperless now. So I'm trying to go through the reports. The first test they did was for acid phosphatase on the underwear which is a component of semen that tested positive. They then took the cutting and moved it to essentially a slide, but they had to do it in the form of a mapping. And so I'll keep you posted. But the first test for acid phosphatase was positive on her underwear.
THE COURT: Well, I'm not sure what exactly the results are going to say. But if positive at all for that --
THE DEFENDANT: I understand that. And the fact that she didn't have her underwear on was a problem with me in the first place. But I don't see how the sperm wound up in her underwear if she had it not on when she was on top of me.
MS. REAMER: That's a good point. She put the underwear immediately after the abuse. She was told to put clothing on, and she did, and that's the clothing that was recovered by the police.
THE DEFENDANT: I don't think that's what happened. I believe that the underwear was found in the bed, something like that. That's what my wife kind of told me.
MS. REAMER: That's the underwear she had on prior to. She didn't go to the police naked. Right? So she put clothing on after. And that's where the DNA was found.(Doc. 7-2, Ex. GG, at 425-27 (emphasis added).)
In the second exchange, Petitioner was informed that even if sperm wasn't in the victim's underwear, that fact was not a key to the State's case against him.
THE DEFENDANT: I was not having sex with her. I was not having sex with her. She got on top of me. My bladder was full. I rolled her over one way. My bed is high or a little bit higher than this. So I couldn't roll her to the floor. I rolled her over. My wife came in. I had my arms over top of me.
My wife had to jerk her out from underneath me because she would not let go of me. And so I'm to blame when I couldn't even get out of it.
THE COURT: You can tell that to the jury. She's going to say something different. The DNA is going to say what it's going to say.
MR. TOSTO: Your DNA was on her underwear. I don't know if we have gotten beyond that, but that's all I have.
MS. REAMER: All I can find right now, because it won 't let me search, is that the first test was positive. So, then, they moved to the mapping. I think at the end of the day, even if let's say they can't say conclusively it was sperm, that is not the key to this because your wife walked in on you on top of a naked 11-year-old. And what the judge is telling you is that even if you were to get on the stand and tell the jury that she came on to you and she persuaded you to have sexual contact with her -- let's say you tell the jury that and they believe you, they will find you guilty.
THE DEFENDANT: I understand. And I did not persuade her.
MS. REAMER: You don't have to. The law does not require that. All that matters is whether you did what you did. The reason behind it does not matter.(Id. at 430-31 (emphasis added).)
And in the third exchange, the trial judge again mistakenly told Petitioner that his sperm had been found in the victim's underwear.
THE COURT: I'm not saying you have no chance. You have every right to go to trial. You have a very capable lawyer who is going to give you a good shot. I'm just trying to give you the facts of life here and tell you what's coming and what s not coming in. And a lot of things you are telling me is completely irrelevant.
THE DEFENDANT: See. I don't understand that.
THE COURT: I have rules I have to follow. One of the rules is 401. And that is relevance. Her mindset, whether she consented -- all of these other things are not relevant. It doesn't matter. Alls they have to show is that sex occurred. You can testify that sex didn't occur, that this is a misunderstanding, and how your sperm got into her underwear is a mystery to you. That's fine. You can do that. I'm just trying to tell you what to expect at trial and to give you the facts of life in terms of what happens if you are convicted.
THE DEFENDANT: I guess I didn 't see that part about the sperm in the underwear. I don 't know even how it got there because I never was erect on her. She was doing what she was doing. I have no idea.(Id. at 435-36 (emphasis added).)
C. Ground One.
In Ground One, Petitioner argues that his “guilty pleas violated the Due Process Clause of the 5th and 14th Amendments of the United States Constitution because they were involuntarily obtained as the result of the false information about the nature of the State's evidence at trial communicated to him at an informal settlement conference before the trial judge held on the eve of trial.” (Doc. 1-2, at 2.) Specifically, Petitioner argues that his guilty pleas were involuntary because they were “induced by a glaring distortion of the serology evidence communicated to the Petitioner at the settlement conference held the day before trial” (Id. at 9), and that “[considering the totality of the circumstances, the Petitioner's guilty plea was not voluntary, knowingly, and intelligently made in violation of clearly established federal law” (Id. at 11). The Court finds that Petitioner fails to show that the state courts' denial of his claim on the merits is unreasonable. See 28 U.S.C. § 2254(d).
1. State Court Decisions.
Petitioner raised nearly identical due process arguments in his Rule 32 proceedings before both the PCR court (doc. 7-2, Ex. M, at 9-14), and the Arizona Court of Appeals (doc. 7-2, Ex. CC, at 37-42). Both state courts rejected Petitioner's claims on the merits.
First, the PCR court, after providing a detailed review of the settlement conference in question, found Petitioner's claim of involuntary plea failed because the prosecutor clarified the misstated record at the conference. (See Doc. 7-2, Ex. BB, at 14 (“The Statements were clarified by the prosecutor. It is reasonable to infer that the Defendant latched onto this concept when facing the immediacy of trial in determining whether he should take a plea or proceed to trial, despite the clarification.”).) The PCR court also found Petitioner's claimed reliance on the misstatements as the basis for his plea to lack credibility for several reasons, including: (1) the record does not support Petitioner's claim that he would not have taken a plea, instead the record shows that “while [Petitioner] wanted to be guaranteed probation, he was always willing to take a plea[;]” (2) Petitioner was always aware of the DNA evidence against him; (3) Petitioner knew of the clarifications to the misstated evidence, and “it is fair to believe that he used as rational to plead and to lead his family down that path to support him[;]” and (4) any reliance by Petitioner on the “alleged misrepresentations” was unreasonable because “he always knew of the match to his DNA[,]” the “State appropriately clarified the information,” and Petitioner's discussion with the settlement judge supports that Petitioner “was not relying on the information.” (See Id. at 19-20.)
On review of the PCR court's decision, the Arizona Court of Appeals similarly rejected Petitioner's claim of involuntary plea on the merits, stating:
Lovelis first argues the references to sperm evidence amounted to a factual misrepresentation that induced him to plead guilty. A plea induced by misrepresentation is invalid. See Brady v. United States, 397 U.S. 742, 755 (1970j. But to obtain relief on that basis, Lovelis must present “substantial objective evidence” that his “mistaken subjective impression[]” was “reasonably justified.” See State v. Pritchett, 27 Ariz.App. 701, 703 (App.
Lovelis fails to explain how any reliance he placed on the nonexistent sperm evidence was justified. During the settlement conference, the State and Lovelis's counsel confirmed that no DNA evidence existed other than the positive test for acid phosphatase. Lovelis proclaimed he understood, and the conference proceeded. It is unreasonable for Lovelis to now claim that he relied on nonexistent sperm evidence when deciding to plead guilty.(Doc. 7-2, Ex. FF, at 418.)
2. Petitioner fails to show that the state courts' rejection of his claim on the merits was unreasonable.
Petitioner makes no argument in his Petition that the state courts' adjudication of his claim on the merits was contrary to, or involved an unreasonable application of, established Federal law, as determined by the Supreme Court of the United States, or that it 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. (See Doc. 1-2 at 9-12.) Instead, Petitioner merely relitigates the facts he argued before the state courts. (See id.) Specifically, Petitioner asserts the following facts. On October 23, 2018, Petitioner was left out of an “in chambers meeting” attended by counsel before the settlement conference, at which evidence and the possibility of settlement was discussed. (Id. at 9.) Shortly after the meeting, a settlement conference was held where Petitioner discussed the facts of the case with the trial judge, who was set to conduct Petitioner's trial the next day. At the conference, the trial judge falsely told Petitioner on two occasions that “his sperm had been found on the victim's underpants.” (Id.) “This misrepresentation caused the Petitioner to plead guilty in violation of the Petitioner's federal constitutional rights established by the Supreme Court of the United States.” (Id.)
Petitioner's failure to challenge the reasonableness of the state courts' adjudication of his claims is fatal. See 28 U.S.C. § 2254(d). To be sure, in his Reply, Petitioner argues that both state courts errored in their decisions by “by ignoring whole parts of the record and distorting them.” (Doc. 10 at 2.) But such arguments, having been completely neglected in the Petition, are waived. See United States v. Berry, 624 F.3d 1031, 1039 n.7 (9th Cir. 2010) (declining to address an argument raised for the first time in a reply brief); Delgadillo v. Woodford, 527 F.3d 919, 930 n.4 (9th Cir. 2008) (“Arguments raised for the first time in [habeas] petitioner's reply brief are deemed waived.”).
Even assuming arguendo that Petitioner has properly raised his arguments that the state courts adjudication of Petitioner's claims was unreasonable, those arguments fail. Petitioner first argues that “[t]he primary distortion of the facts by the Arizona Court of Appeals, and argued by the State here, is that the prosecutor cleared up the misrepresentation of the forensic evidence originally set forth on the record by the trial judge.” (Id. at 2-3.) Petitioner submits “the prosecutor and the defense attorney never ‘confirm' on the record of the settlement conference that no DNA evidence beyond the positive tests for acid phosphatase existed, as the Court of Appeals unreasonably concluded.” (Id. at 3.) Instead, Petitioner asserts that following the misrepresentation by the trial judge, the trial attorneys attempted to look up the test confirming the presence of sperm, and when only the test for acid phosphatase was found, they implied that additional tests had been done. (Id. at 3-4.) Petitioner's argument is not persuasive.
The Arizona Court of Appeals did not plainly misapprehend or misstate the record in its findings. See Miller-El, 537 U.S. at 324 (“[A] decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.”); Andrews, 944 F.3d at 1107 (“Unreasonable determinations of material facts can occur where the state court plainly misapprehends or misstates the record in making its findings or where the state court has before it, yet apparently ignores, evidence that supports petitioner's claim.” (internal quotations and citations omitted)). To be sure, the transcript of the settlement conference does not contain a firm statement from any party that no DNA evidence existed outside of the acid phosphatase. In contrast, the transcript does show the prosecutor explained to Petitioner that the only DNA evidence she could find at that time was the first test involving the acid phosphatase, and that any evidence of sperm in the victim's underwear would not be the key to the state's case against him anyway, to which Petitioner responded that he understood. (See Doc. 7-2, Ex. GG, at 431.) The state courts' reading of this exchange to conclude that the judge's misstatement regarding the DNA evidence had been clarified, and thus further conclude that it was unreasonable for Petitioner to later rely on the non-existent sperm evidence to plead guilty is not objectively unreasonable.
Specifically, after being told by the prosecutor that “All I can find right now. . . is that the first test was positive. . . . I think at the end of the day, even if let's say they can't say conclusively it was sperm, that is not the key to this because your wife walked in on you on top of a naked 11-year-old. And what the judge is telling you is that even if you were to get on the stand and tell the jury that she came on to you and she persuaded you to have sexual contact with her -- let's say you tell the jury that and they believe you, they will find you guilty[,]” Petitioner responded “I understand.” (Doc. 7-2, Ex. GG, at 431.)
Petitioner further argues that the Court of Appeals ignored important circumstances in its ruling, including that “up until the eve of trial, the Petitioner protested his innocence” and “unrebutted testimony” of Petitioner's wife “that this new evidence was critical to Petitioner's decision-making.” (Doc. 10 at 5-6.) Petitioner's argument is overstated, and the record shows Petitioner was less concerned about maintaining his innocence, and more concerned with being imprisoned for his actions. First, it is undisputed that Petitioner was willing to take a plea that would stipulate to probation. At the August 14, 2020 Evidentiary Hearing, Petitioner's defense counsel testified as follows:
Q. Now, do you recall if Mr. Lovelis was interested in a plea agreement?
A. Yes.
Q. And were the family members interested in a plea agreement?
A. I can say for sure Paul was, his son. Barbara, I don't remember either
-- one way or the other whether she expressed an opinion.
Q. And what sort of plea agreement was the Defendant interested in?
A. Probation only.(See Doc. 7-1, Ex. X, at 271-72.) Petitioner himself testified that, when he entered the settlement conference, there was no plea agreement on the table but he wanted probation. (Id. at 252.) Additionally, Petitioner stated on multiple occasions throughout the record that any prison time, given his age and physical health, “was a death sentence.” (See Doc. 7-2, Ex. GG, at 425, 436; Doc. 7-1, Ex. X, at 257.) The fact that Petitioner was looking to plea to a stipulated sentence of probation shows that he was more concerned with avoiding significant prison time, than with protesting his innocence. It was not unreasonable for the trial court to conclude that Petitioner was only dissatisfied with his decision to accept the plea when he failed to receive the sentence of probation that he was hoping for.
The Court finds that Petitioner fails to establish that the state court's adjudication of his claims on the merits was an unreasonable application of federal law.
3. Petitioner's guilty pleas were voluntarily made.
Petitioner's argument that “[considering the totality of the circumstances, the Petitioner's guilty plea was not voluntarily, knowingly, and intelligently made in violation of clearly established federal law” (doc. 1-2 at 10), also fails. Review of the record shows that Petitioner's pleas were voluntary.
Following entry of a guilty plea on the advice of counsel, the scope of a federal habeas corpus inquiry is limited to whether the plea was voluntarily and intelligently made. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). “A plea is voluntary if it ‘represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. '” United States v. Kaczynski, 239 F.3d 1108, 1114 (9th Cir. 2001). A guilty plea is not voluntary or intelligent if a defendant bases his decision on advice from counsel that is not consistent with that expected of a minimally competent criminal attorney or if a defendant otherwise lacks sufficient awareness of the relevant circumstances and likely consequences of a plea. See U.S. v. Hernandez, 203 F.3d 614, 618-619 (9th Cir. 2000), overruled on other grounds by United States v. Ferguson, 560 F.3d 1060 (9th Cir. 2009). “A reviewing court may set aside a state court guilty plea only for failure to satisfy due process: ‘if a defendant understands the charges against him, understands the consequences of a guilty plea, and voluntarily chooses to plead guilty, without being coerced to do so, the guilty plea . . . will be upheld on federal review.'” Stano v. Dugger, 921 F.2d 1125, 1141 (11th Cir. 1991) (quoting Frank v. Blackburn, 646 F.2d 873, 882 (5th Cir. 1980)). “[T]he Constitution, in respect to a defendant's awareness of relevant circumstances, does not require complete knowledge of the relevant circumstances, but permits a court to accept a guilty plea, with its accompanying waiver of various constitutional rights, despite various forms of misapprehension under which a defendant might labor[.]” United States v. Ruiz, 536 U.S. 622, 630 (2002). “A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case[.]” Brady v. United States, 397 U.S. 742, 757 (1970).
The record makes clear that Petitioner understood the charges against him. (See Doc. 7-2, Ex. GG, at 441-42 (October 23, 2018 Change of Plea Hearing Transcript) (Petitioner confirming that he had reviewed and understood the plea agreement, and that he had all his questions answered).) Additionally, Petitioner raised no objection to his plea agreement, nor did he try to withdraw from that agreement between the time he entered into it, on October 23, 2018, and the time when he was sentenced, on January 30, 2019. (See Doc. 7-2, Ex. BB, at 12-13 (Order dismissing PCR noting that “there is no records of any attempts [by Petitioner] to withdraw from the plea.”); Doc. 7-1, Ex. X, at 312 (Petitioner's defense counsel testifying that he does not recall Petitioner ever asking to withdraw from the plea).) To the extent Petitioner's conversations with counsel and the court produced erroneous, subjective ideas about the state of the evidence, those subjective ideas were not reasonably justified. See Norville v. United States, 151 F.Supp.3d 329, 339-40 (S.D.N.Y. 2015) (“A defendant's erroneous, subjective ideas, produced by conversations with his counsel, ‘in the absence of substantial objective proof showing that they were reasonably justified, do not provide sufficient grounds upon which to set aside his guilty plea.'”) (quoting United States ex rel. Curtis v. Zelker, 466 F.2d 1092, 1098 (2d Cir. 1972)).
Because the record shows that the state courts' adjudication of Petitioner's claims was not unreasonable, and that Petitioner's plea was voluntary, the Court will recommend that Petitioner's claim in Ground One of the Petition be denied.
D. Ground Two - Ineffective Assistance of Counsel.
In Ground Two, Petitioner argues that his “guilty pleas violated his right to effective assistance of counsel under the 6th and 14th Amendments of the United States Constitution because his lawyer communicated to him false factual information that was critical to his decision to plead guilty and further failed to investigate and correct such information.” (Doc. 1-2 at 2.) //
1. Legal Standard.
To succeed on a claim of ineffective assistance of counsel, Petitioner must show: (1) counsel's performance was deficient, meaning “counsel's representation fell below an objective standard of reasonableness,” and (2) “the deficient performance prejudiced the [petitioner's] defense.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). This test also applies to ineffective assistance of counsel charges in the guilty plea setting. Hill v. Lockhart, 474 U.S. 52, 58 (1985). To satisfy the second prong in the context of a guilty plea, “the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59.
If a petitioner fails to establish one of Strickland's two prongs, the Court need not address the other. See Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998) (“We have previously held that it is unnecessary to consider the prejudice prong of Strickland if the petitioner cannot even establish incompetence under the first prong.” (citation omitted)).
“[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. at 689 (citation omitted). To establish prejudice, the movant must show “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011).
On habeas review, the petitioner carries the burden of showing “the state court applied Strickland to the facts of his case in an objectively unreasonable manner.” Woodfordv. Visciotti, 537 U.S. 19, 25 (2002). “When a federal court reviews a state court's Strickland determination under AEDPA, both AEDPA and Strickland's deferential standards apply.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010). Habeas review of the ineffective assistance of counsel claims is subject to double deference because the court must give “both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013); see also Harrington v. Richter, 562 U.S. 86, 105 (2011) (“When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.”); Murray v. Schriro, 882 F.3d 778, 826 (9th Cir. 2018) (noting “the double deference applicable to AEDPA claims of ineffective assistance of counsel”).
2. Discussion.
Petitioner argues he was deprived of his Sixth Amendment right to effective assistance of counsel because trial counsel “misled the Petitioner as to the facts of the case and directly undermined the Petitioner's will to proceed to trial” and “directly induced the Petitioner's guilty pleas in violation of clearly established federal law by the Supreme Court.” (Doc. 1-2 at 12-14.) Petitioner raised the same ineffective assistance of counsel claim in his PCR proceedings, and both the PCR court and the Arizona Court of Appeals rejected Petitioner's claim on the merits.
In its September 10, 2020 Order dismissing Petitioner's PCR petition, the PCR court found as follows:
In part, Defendant argues that [defense counsel's] conduct amounted to ineffective assistance of counsel because he failed to correct the State and the Court when addressing the issue of sperm in the victim's underwear and that an expert would testify as to this information. The Defendant claims that but for this misstatement, the Defendant would not have accepted a plea agreement.
There are several problems with this position. First, there was no reason for the Defendant to believe that in fact, and ultimately rely on the statement that there was sperm in the underwear. The statement was immediately and sufficiently clarified by the prosecutor. . . .
Furthermore, the record supports that the Defendant and his family were always clear on the presence of DNA evidence. The Defendant and his family were always aware that evidence would be presented through a state expert. While there may have been initial confusion over this issue by the judge, the further clarification sufficiently addressed the confusion.
There is no dispute [defense counsel] provided the Defendant with appropriate legal advice with respect to his trial exposure and the benefits associated with the plea offers. . . . The Defendant also received similar information from [the trial judge].
The testimony of [defense counsel] is entirely credible; additionally, his testimony is further corroborated by the transcript(s) of proceedings and the Exhibits. The Defendant was given all discovery and [defense counsel] and his client met and discussed the discovery.
[Defense counsel] credibly testified, and the record supports that the evidence against the Defendant was strong, irrespective of the DNA evidence. [Defense counsel] believed the DNA evidence could at least be explained to the jury. He was much more concerned over the testimony of Ms. Lovelis and the 404 evidence to be presented by the State. This position is one of which the Defendant was aware during the pending case. The mention of sperm evidence, even though clarified, did not change [defense counsel's] perspective because “there were other facts that concerned me that I had expressed to Mr. Lovelis and to Paul. And I can -I can say with a hundred percent certainty I know Paul shared my opinion about the case. This was before- even before the misunderstanding at the settlement conference.”
While the Defendant asserted he maintained his innocence the entire case and was interested in pleading guilty, the record shows the opposite. The Defendant was willing to take a plea and certainly it is not uncommon for Defendants facing a looming jury selection, to change their minds and accept a plea. The Court finds that the Defendant did not rely on the discussion over the semen in the underpants and alternatively, if he did, that such reliance was unreasonable under the circumstances. All of the information discussed was previously known to the Defendant. The Defendant heard “sperm in the underwear” and latched onto that notion. The Defendant knew of the hurdles of trial. (HT at 46).
He took the plea because he knew he was likely to be convicted at trial. He claimed that he would not take a plea other than to stipulated to probation because “all of it was a death sentence.” However, conviction at trial would clearly present a worse option for the Defendant as the prison sentence upon conviction, surely would have put the Defendant in prison for the rest of his life. . . .
On this record, the Court cannot find any basis for the Defendant's claim of ineffective assistance of counsel.(Doc. 7-2, Ex. BB, at 14-16.)
The Arizona Court of Appeals, upholding the decision of the PCR court, similarly rejected Petitioner's IAC claims, reasoning:
Lovelis next contends the superior court erred in rejecting his ineffective assistance of counsel claim. Lovelis argues his attorney misled him to believe the State possessed sperm evidence.
To succeed on a “claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant.” State v. Bennett, 213 Ariz. 562, 567, ¶ 21 (2006). We need not address both deficient performance and prejudice “if the defendant makes an insufficient showing on one.” State v. Pandeli, 242 Ariz. 175, 181, ¶ 6 (2017) (quoting Strickland
v. Washington, 466 U.S. 668, 697 (1984)).
Lovelis fails to articulate with any particularity how his counsel misled him to believe the State possessed sperm evidence. As discussed above, Lovelis's counsel expressly confirmed with the prosecutor-in front of Lovelis-that no DNA evidence existed other than the positive test for acid phosphatase. The superior court acted within its discretion in rejecting Lovelis's ineffective assistance of counsel claim.(Doc. 7-2, Ex. FF, at 418-19.)
Here, Petitioner presents the same arguments he made before the state courts in support of his claim that defense counsel was ineffective. (See Doc. 1-2 at 12-14.) Specifically, Petitioner argues that: (1) “[C]ounsel's misrepresentation of the State's evidence in this case, and the perpetuation of the trial judge's misrepresentations of such evidence directly led the Petitioner's decision to plead guilty[;]” (2) “[o]n the eve of trial. . . counsel appeared to be ignorant of the true state of the evidence[;]” (3) “[defense counsel] told the Petitioner that the State was going to present an expert who would testify that the Petitioner's sperm had been found in the alleged victim's underwear[;]” (4) “competent counsel would have informed the Petitioner (and the Court and the State during the settlement conference) that in fact the State did not have evidence that the Petitioner's sperm was on the sample of alleged victim's underwear tested by the State[;]” and (5) “there is a ‘reasonable probability' that but for his attorney's failure to correctly understand the true state of the serology evidence, the Petitioner would not have pled guilty.” (Doc. 1-2 at 13.) Petitioner's arguments are not persuasive.
First, Petitioner does not convincingly show that he would not have pleaded guilty but for the alleged ineffective assistance of counsel. As noted by the PCR court, the evidence against Petitioner was strong irrespective of the DNA evidence - defense counsel described the case against Petitioner even without DNA evidence to be “overwhelming” (see doc. 7-1, Ex. X, at 305) - and Petitioner had expressed willingness to take a plea if it stipulated to probation (see id. at 253, 271-72). And while the plea eventually accepted by Petitioner did not stipulate to probation, it left open the possibility for a sentence of probation and was “highly beneficial in comparison to the Defendant's exposure if he were convicted at trial.” (See Doc. 7-2, Ex. BB, at 16.)
Second, Petitioner's claim that counsel “appeared to be ignorant of the true state of the evidence” on the eve of trial is belied by the record. It is undisputed that Petitioner and his family were provided copies of all discovery in his case, including the DNA evidence discussed at the settlement conference. (See Doc. 7-1, Ex. X, at 258-59, 273-75.) Defense counsel testified at the PCR proceeding's evidentiary hearing that he was prepared for trial. (See Doc. 7-1, Ex. X, at 281 (“I had conducted all the interviews in the case in preparation for trial. I - my arguments were ready. I had taken my notes. I - I was ready, sure.”).) Petitioner fails to show that defense counsel was “ignorant” of the evidence in the case on the eve of trial.
Third, Petitioner's assertion that defense counsel told him that the State was going to present an expert who would testify Petitioner's sperm had been found in the victim's underwear is not credible. Defense counsel testified that he told the family that an expert would be testifying to what was in the October 6, 2016 forensic report, which stated that “spermatozoa were not identified” on the item, but “preliminary testing for acid [phosphatase] was consistent with semen.” (Id. at 282-85.) Petitioner's argument does not show that defense counsel's conduct fell below the objective standard of reasonableness, as is required to survive the first prong of Strickland.
To the extent Petitioner argues that “competent counsel would have informed Petitioner (and the Court and the State during the settlement conference) that in fact the State did not have evidence that the Petitioner's sperm was on the sample of alleged victim's underwear tested by the State[,]” (doc. 1-2 at 13), Petitioner's argument is not persuasive. Defense counsel's decision to correct misstatements of the prosecutor or the court is a tactical decision. When asked whether he would correct a judge that misstated evidence at a settlement conference, defense counsel testified:
A. Yes. Well, yes and no. When -- when I say yes and no, I mean if the judge said something that was completely wrong, I wouldn't -- I would correct typically correct the record. But in the alternative, I would talk with my client and say, you know, what he -- he or she said is not completely accurate. That's just their understanding of the evidence.
Q. And if a prosecutor misstated evidence, you would correct them as well. Correct?
A. Maybe not, no, in court, but I would talk with my client about it and say, don't worry about that. That's not accurate, things -- things of that nature.
Q. So if the judge would have said there was sperm, and there was no sperm, you would have informed this to your client,Mr. Lovelis. Correct?
A. Yes.(See Doc. 7-1, Ex. X, at 276.) Defense counsel's decision not to correct the record about the use of the term “sperm” in open court was not unreasonable, especially when the prosecutor had already corrected the record by stating that only the test for acid phosphatase had been found. And Petitioner's claim that he was told by defense counsel that the state had evidence of sperm in the victim's underwear after the settlement conference is not credible. To be sure, Petitioner testified at the evidentiary hearing that he was aware of the acid phosphatase evidence prior to the settlement conference (see id. at 258-59), however, he did not understand what that was (Id. at 256 (“Q: [I]t was clarified for you by the prosecutor at the settlement conference that the DNA evidence consisted of acid phosphatase, a component of semen. That's all the State had. A. Ma'am, I am not a physicist or - I don't know what that is. I was told sperm.”).) It is entirely plausible that the conversations Petitioner had with defense counsel following the settlement conference accurately described the state's evidence, but Petitioner merely misunderstood defense counsel in those discussions. Such a misunderstanding is not ineffective assistance. See Norville, 151 F.Supp.3d at 339-40 (“A defendant's erroneous, subjective ideas, produced by conversations with his counsel, ‘in the absence of substantial objective proof showing that they were reasonably justified, do not provide sufficient grounds upon which to set aside his guilty plea.'”) (quoting United States ex rel. Curtis, 466 F.2d at 1098)).
Lastly, Petitioner's argument that there is a reasonable probability he would have pleaded guilty but for his counsel's ineffective assistance is not persuasive. As discussed above, the evidence against Petitioner was “overwhelming” (doc. 7-1, Ex. X, at 305), Petitioner had been open to a plea stipulating to probation, and the offered plea was objectively “highly beneficial in comparison to [Petitioner's] exposure if he were convicted at trial” (doc. 7-2, Ex. BB, at 16). And it was not unreasonable for the state courts to conclude that Petitioner was only dissatisfied with his decision to accept the plea because he failed to receive the sentence of probation that he was hoping for.
Q. [] The question that I asked was, essentially this is a case of buyer's remorse. You've had the opportunity in prison to think about things, and you want out of the plea agreement regardless of the fact that should you be successful today, you face big problems of the evidence against you at trial and also a lot of prison time?
A. It's all a death sentence to me, ma'am.(Doc. 7-1, Ex. X, at 257.)
There is no evidence Petitioner would not have taken the plea but for his counsel's alleged ineffective assistance. Therefore, Petitioner fails to show he was prejudiced under the second prong of Strickland, and the Court will recommend that Petitioner's claim in Ground Two be denied.
IV. Conclusion.
The Court concludes Petitioner is not entitled to habeas relief on his claims of involuntary plea and ineffective assistance of counsel. The Court will therefore recommend that the Petition be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the ruling debatable, and because Petitioner has not made a substantial showing of the denial of a constitutional right.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.