Opinion
No. C 02-2442 CRB (PR).
July 3, 2003
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner was convicted by jury in the Santa Clara Superior Court in 1999 for possession of methamphetamine and giving false evidence to a police officer. The court also found that petitioner had a prior conviction on his record for a violation of California Penal Code section 191.5 (gross vehicular manslaughter). The court found that this prior conviction qualified as a "strike," necessitating sentencing enhancement under California's "Three Strikes Law," because it involved the infliction of great bodily injury on a person other than an accomplice.See Cal. Penal Code § 667 (three strikes law); id. at § 1170.12 (sentencing guidelines); id. at § 1192.7(c)(8) (including "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice" in the definition of "serious felony"). In light of these findings, on October 4, 1999, petitioner was sentenced to five years in state prison.
Petitioner unsuccessfully appealed on several grounds, including ineffective assistance of counsel at his sentencing. He subsequently sought and was denied habeas relief from the California Court of Appeal. On December 19, 2001, the Supreme Court of California denied review.
Petitioner then filed the instant federal petition for a writ of habeas corpus under 28 U.S.C. § 2254. Subsequent to this filing, the petitioner was released on parole. On November 15, 2002, the United States Immigration and Naturalization Service deported him to Mexico.
Per order filed on October 9, 2002, the Court found that the petition stated a cognizable claim for ineffective assistance of counsel under § 2254 and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause.
FACTUAL BACKGROUND
The California Court of Appeal summarized the relevant facts concerning the trial court's finding of a prior strike as follows:
The information alleged that defendant's prior conviction for gross vehicular manslaughter qualified as a strike in that he personally inflicted great bodily injury on a person other than an accomplice. (§§ 1192.7, subd. (c)(8); 191.5, subd. (a); 667, subd. (d)(1); 1170.12, subd. (b)(1).) At trial, the prosecutor introduced defendant's prison packet (see § 969b), containing an abstract of judgment against defendant that reflected convictions for vehicular manslaughter with gross negligence (§ 191.5, subd. (a)) and driving under the influence (Veh. Code, § 23153, subd. (a)) and a finding that he caused bodily injury to more than one victim (former Veh. Code, § 23182, now Veh. Code, § 23558). The prosecution also introduced, without objection, the probation report in that case, which summarized the offense. Based exclusively on police reports, the summary related that defendant drove his vehicle into a tree, killing one passenger and seriously another. The surviving passenger — Carlos Torres — was taken to the hospital, and while there he told police about the accident. He said that on North 13th Street defendant started to race the car next to him. At that time, Torres "told the defendant to slow down because he was driving too fast." Defendant continued and ran a stop sign. Torres again told him to "stop." Defendant then hit a white vehicle, raced on, and almost hit a patrol car. Torres said he could not remember what happened after that.
The probation report also contained the defendant's statement, in which he explained that he was driving at normal speed. He said he stopped at a stop sign, allowed another car to cross and then proceeded. At that moment, the brakes failed and he crashed into a tree.People v. Miranda, No. H020890, unpublished op. at 10 (Cal.Ct.App. Sept. 26, 2001) (Resp't Ex. C) (emphasis in original).
DISCUSSION
Petitioner argues that he was denied his Sixth Amendment right to effective assistance of counsel because his lawyer failed to object to the probation report as hearsay. Pet. at 12-15. He asserts that "[t]he inevitable result of a proper objection would have been a shorter sentence." Id. at 15.
A. Mootness
Respondent first contends that petitioner's deportation subsequent to filing his petition renders the petition moot, because he is "no longer in state custody." Resp't's Mem. at 3.
"A case becomes moot when it no longer satisfies the case-or-controversy requirement of Article III, section 2, of the Constitution." United States v. Verdin, 243 F.3d 1174, 1177 (9th Cir. 2001) (citation omitted). Satisfaction is presumed when a convict or parolee remains under the terms of his sentence. Spencer v. Kemna, 523 U.S. 1, 7 (1998). Once the sentence is complete, however, the petitioner must show, or benefit from the presumption of, "continuing collateral consequences" in order for this Court to maintain jurisdiction. Id. at 7-8. While continuing consequences may generally be presumed when the conviction itself is challenged, see id. at 8-12, such a presumption does not necessarily apply when the convict instead challenges the length of his sentence. Compare United States v. Palomba, 182 F.3d 1121 (9th Cir. 1999) (holding an appeal of sentencing length to be moot when the defendant had completed the final supervised release portion of his sentence) with Verdin, 243 F.3d at 1 174 (finding an appeal of sentencing length presented collateral consequences when the defendant was still serving under the terms of his supervised release); see also id. at 1177-79 (analyzing the relationship among Spencer, Palomba, and Verdin).
Here, since the trial court handed down its sentence on October 4, 1999, petitioner technically remains on parole until October 4, 2004.Verdin therefore suggests that collateral consequences remain. However, petitioner's subsequent deportation would appear to override this presumption.
"[W]here an alien habeas petitioner is deported after he files his petition, the fact of his deportation does not render the habeas petition moot where there are collateral consequences arising from the deportation that create concrete legal disadvantages." Zegarra-Gomez v. INS, 314 F.3d 1124, 1125 (9th Cir. 2003). Zegarra-Gomez challenged the validity of his deportation order, and the court found the existence of collateral consequences because the deportation barred him from seeking reentry for a period of twenty years. Id. at 1127.
Petitioner here, however, does not challenge the deportation order, or even the conviction; he challenges only the length of his sentence. Unlike the deportation order challenged in Zeguarra-Gomez, the mere length of petitioner's sentence does not present any collateral consequences.
An individual who has been removed may not seek revocation of his removal for ten years. See 8 U.S.C.S. § 1182(a)(9)(A)(ii). Moreover, since petitioner has been convicted of violating a state law relating to a controlled substance (the underlying methamphetamine conviction), he has likely been rendered permanently inadmissable. See 8 U.S.C.S. § 11 82(a)(2)(A)(i)(II) (2003) (setting out the immigration guidelines); 8 U.S.C.S. § 802(6) (defining "controlled substance" by referencing 21 U.S.C.S. § 812 which includes "[a]ny substance (except an injectable liquid) which contains any quantity of methamphetamine, including its salts, isomers, and salts of isomers"); see also People v. Miranda, No. H020890, unpublished op. at 2 (Cal.Ct.App. Sept. 26, 2001) (Resp't Ex. C) (noting stipulation by the parties that the arresting officer found a packet containing 2.09 grams of methamphetamine). Neither of these provisions of immigration law relies upon the length of petitioner's sentence.
In order for petitioner to be subjected to state custody on the remainder of his sentence, he would have to reenter the United States prior to October 4, 2004. Any collateral consequences of his sentence (e.g., a parole violation) therefore require that he enter the country illegally. Such consequences are too remote and attenuated to be justiciable. Cf. Spencer, 523 U.S. 15 (suggesting that a hypothesized violation of a law may not be used to satisfy the Article III case or controversy requirement).
Because the habeas petition is moot, this Court lacks subject matter jurisdiction over it.
B. Merits
Even on the merits, this Court must deny petitioner's request for relief based on his claim of ineffective assistance of counsel.
1. Standard of Review
This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's 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." Id. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 317 F.3d 1038, 1044 (9th Cir. 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.
2. Ineffective assistance of counsel
In order to prevail on an ineffective assistance of counsel claim, petitioner must establish two things. First, he must establish that counsel's performance was deficient, i.e., that it fell below an "objective standard of reasonableness" under prevailing professional norms. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is a probability sufficient to undermine the confidence in the outcome. Id.
In order to show prejudice under Strickland from failure to object to the admission of evidence or testimony, as petitioner claims here, petitioner must show that (1) had his counsel objected, it is reasonable that the trial court would have sustained the objection, and (2) had the objection been sustained, it is reasonable that there would have been an outcome more favorable to him. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999).
Petitioner claims that:
the statements in the "Summary of Offense" and "Case Evaluation" sections of the probation officer's report are multiple hearsay. . . . The description of the incident contained in the probation officer's report was obtained from police reports which contained information gathered by interviewing witnesses. (CT 142-143). These are the only sections of the report which describe the injured persons [sic] actions at the time of the incident. No hearsay exception applies to these statements. . . . Without the hearsay evidence contained within the probation officer's report, the record would have been silent as to whether the injured person was an accomplice.
Pet. at 13-14. According to petitioner, therefore, "[i]f trial counsel had objected, the objection would have been sustained and no evidence would have been admitted that proved the injured persons were not accomplices. Without any such evidence, the prosecution would not have been able to prove that petitioner's prior conviction qualified as a strike . . . [t]he inevitable result of a proper objection would have been a shorter sentence." Id. at 15.
The California Court of Appeal rejected the idea that a hearsay objection to the probation officer's report would have resulted in a more favorable outcome. Even if the injured Torres' statements to the probation officer were inadmissible, the court found that petitioner's own statements in the probation report regarding the death of a second passenger were admissible and sufficient to find the vehicular manslaughter conviction a strike:
The deceased victim of the car accident was not liable for prosecution for vehicular manslaughter in connection with his own death because his conduct did not result in the death of another person. This is so even if he aided and abetted defendant's commission of some other unlawful conduct, such as reckless driving, that made his own death reasonably foreseeable. Thus, since the deceased passenger could not be liable for vehicular manslaughter, he was not an accomplice to that offense as a matter of law
. . .
We further note that defendant's own statements in the probation report were admissible over a hearsay objection as a party admission. (See Evid. Code § 1220; People v. Monreal (1992 52 Cal.App.4th 670, 676.) His statements establish that he was driving the car when it crashed. Moreover, it is undisputed that a passenger suffered fatal great bodily injury. Thus, regardless of whether Torres was an accomplice, the record establishes that defendant personally inflicted great bodily injury on someone other than an accomplice. Thus, his conviction for vehicular manslaughter constituted a strike. (§ 1192.7, subd. (c)(8)).People v. Miranda, No. H020890, unpublished op. at 13 (Cal.Ct.App. Sept. 26, 2001) (Resp't Ex. C).
The state court's rejection of petitioner's claim was not based on an unreasonable application of Strickland, or an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 406, 409 (2000). The facts were (and remain) undisputed; the only question before the state court was the application of state law regarding hearsay rules and the definition of "accomplice" in the context of the Three Strikes Law. "State courts are the principle expositors of state law," Moore v. Sims, 442 U.S. 415, 430 (1979), and nothing in § 2254 gives this Court jurisdiction to review those state court findings.
Given its conclusions regarding state law, the state court's interpretation that petitioner did not receive ineffective assistance of counsel was not "objectively unreasonable." Williams, 529 U.S. at 409. Petitioner is therefore not entitled to federal habeas relief on his claim of ineffective assistance of counsel. See 28 U.S.C. § 2254(d).
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The clerk shall enter judgment in favor of respondent and close the file.
SO ORDERED.