McCurdy v. Davey ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JAMES C. MCCURDY, 11 Case No. 16-00696 BLF (PR) Petitioner, 12 ORDER DENYING PETITION FOR v. WRIT OF HABEAS CORPUS; 13 DENYING CERTIFICATE OF APPEALABILITY; DIRECTIONS 14 DAVE DAVEY, Warden, TO CLERK 15 Respondent. 16 17 Petitioner filed a pro se petition for a writ of habeas corpus under 28 U.S.C. 18 § 2254, challenging the revocation of his probation. Dkt. No. 1. After the Petition was 19 dismissed in part, see Dkt. No. 23, Respondent filed an answer on the merits (“Answer”). 20 Dkt. No. 35. Petitioner filed a traverse (“Traverse”). See Dkt. No. 47 (titled “Denial and 21 Exception”). For the reasons set forth below, the Petition is DENIED. 22 I. BACKGROUND 23 On July 11, 2011, Petitioner pleaded no contest to felony transportation of a 24 controlled substance. See Dkt. No. 17-1, Ex. A at 153:23. A seven-year suspended 25 sentence was imposed, and Petitioner was placed on five years’ probation. See Dkt. No. 26 17-1, Ex. B at 165:21-25. On June 4, 2014, Petitioner’s probation was revoked and he was 27 1 committed to prison for seven years. See Dkt. No. 17-1, Ex. D at 3:15-18. 2 Petitioner did not appeal the revocation of his probation. Instead, Petitioner filed a 3 petition for resentencing in Sonoma County Superior Court, as well as habeas petitions in 4 Sonoma County Superior Court, the California Court of Appeal for the First Appellate 5 District, and the California Supreme Court. See generally, Dkt. No. 17-1, Exs. E-I. Each 6 of the state-court petitions was denied. See generally, id. The Sonoma County Superior 7 Court summarily stated that Petitioner’s petition for resentencing was denied because the 8 defendant was not eligible, and Petitioner’s habeas petition was denied because “no issues 9 of merit [were] raised.” Dkt. No. 17-1, Ex. F. The California Court of Appeal and 10 California Supreme Court denied Petitioner’s habeas petitions without comment. See Dkt. 11 No. 17-1, Exs. G, I. 12 When presented with a state court decision that is unaccompanied by a rationale for 13 its conclusions, a federal court must conduct an independent review of the record to 14 determine whether the state court decision is objectively reasonable. See Delgado v. 15 Lewis, 223 F.3d 976, 982 (9th Cir. 2000). This “[i]ndependent review is not a de novo 16 review of the constitutional issue, but rather, the only method by which [a federal court] 17 can determine whether a silent state court decision is objectively unreasonable.” Himes v. 18 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “[W]here a state court’s decision is 19 unaccompanied by an explanation, the habeas petitioner’s burden still must be met by 20 showing there was no reasonable basis for the state court to deny relief.” Harrington v. 21 Richter, 562 U.S. 86, 98 (2011). Accordingly, this Court will conduct an independent, but 22 still deferential, review of the record. 23 Petitioner filed the instant habeas petition on February 11, 2016. See Dkt. No. 1 24 (“Original Petition”). The Original Petition stated four claims, which the Court found 25 cognizable and served on Respondent. See Dkt. No. 9. Respondent moved to dismiss the 26 Original Petition as untimely and unexhausted. See Dkt. No. 17. The Court found that 27 Case No. 18-01446 BLF (PR) 1 three of Petitioner’s claims were untimely, and dismissed those claims. See Dkt. No. 23. 2 The Court ordered Petitioner to file an amended petition stating only the surviving claim: 3 that Petitioner received ineffective assistance of counsel during probation revocation 4 proceedings. See id. at 7. Petitioner timely amended, see Dkt. No. 28 (“Operative 5 Petition”), and the Court stayed proceedings so that Petitioner could exhaust the ineffective 6 assistance claim, see Dkt. No. 30. Following a motion from Petitioner, the Court reopened 7 proceedings on January 25, 2019. See Dkt. No. 32. 8 II. STATEMENT OF FACTS 9 In the absence of a reasoned state court opinion, the following facts are taken from 10 the Operative Petition, the exhibits attached to the Original Petition, and the exhibits 11 attached to Respondent’s motion to dismiss and Answer. Unless otherwise specified, the 12 facts are given in chronological order. 13 On July 11, 2011, in Napa County, Petitioner pleaded no contest to felony 14 transportation of a controlled substance. See Dkt. No. 17-1, Ex. A at 153:23. A seven- 15 year suspended sentence was imposed, and Petitioner was placed on five years’ probation. 16 See Dkt. No. 17-1, Ex. B at 165:21-25. 17 On October 31, 2013, Petitioner’s case was transferred to Sonoma County. See 18 Dkt. No. 17-1, Ex. C. The transfer appears to have been requested on the basis that 19 petitioner had moved to Santa Rosa. See id. at 354:4-6. In the Operative Petition, 20 Petitioner argues that this transfer “breached [his] plea agreement.” Operative Pet. at 6. 21 However, Petitioner was present at the transfer hearing, and responded to the transfer by 22 saying, “Awesome. Thank you.” Dkt. No. 17-1, Ex. C at 354:26. 23 On January 15, 2014, after the transfer was completed, the Sonoma County 24 Superior Court (“Sonoma Court”) summarily revoked Petitioner’s probation. See Dkt. No. 25 36, Ex. L at 3, Ex. P at 2. Petitioner had been “convicted of a new crime in Napa County” 26 and “had been charged with a new crime in Sonoma County.” Dkt. No. 36, Ex. P at 2. 27 Case No. 18-01446 BLF (PR) 1 Subsequently, the Sonoma Court held four hearings concerning the revocation of 2 Petitioner’s probation. At the first, held April 8, 2014, Petitioner’s counsel requested 3 additional time to conduct settlement discussions with the prosecution. See Dkt. No. 36, 4 Ex. M. The Sonoma Court informed petitioner that he had a right to a “probation hearing 5 in a reasonable time,” and asked if Petitioner agreed to waive that right in favor of a one- 6 week extension. Id. In the Traverse, Petitioner argues that the extension of time violated 7 his rights. See Traverse at 3. However, during the April 8, 2014 hearing, the Sonoma 8 Court directly asked Petitioner if he agreed to waive his rights and consented to an 9 extension of time, and Petitioner directly informed the Sonoma Court that he did so agree. 10 See Dkt. No. 36, Ex. M. 11 At the second hearing, held April 15, 2014, the prosecution requested an extension 12 of time to review Petitioner’s file and conduct settlement discussions. See Dkt. No. 36, Ex. 13 N. Petitioner’s counsel stated that Petitioner was “prepared to give the People as much 14 time as it takes to have a thoughtful discussion.” Id. at 3:26-27; see also id. at 5:3-5 (“I’m 15 trying to find a way not to waste anyone’s time and have a thoughtful discussion, however 16 that needs to happen.”). Petitioner was again asked directly by the Sonoma Court whether 17 he agreed to waive his right to a speedy probation hearing, and again directly informed the 18 Sonoma Court that he so agreed. See id. at 5:23-27. 19 At the third hearing, held April 29, 2014, Petitioner’s counsel admitted that 20 Petitioner had violated probation. See Dkt. No. 36, Ex. O. The Sonoma Court spoke to 21 Petitioner directly, and informed Petitioner that he was entitled to a hearing in which the 22 prosecution had “to prove by a preponderance of the evidence . . . that [Petitioner was] in 23 violation of probation.” Id. at 2:22-25. The court informed Petitioner that he had a right to 24 testify at such a hearing, and to test the evidence against him. See id. Petitioner informed 25 the Sonoma Court that he understood and waived those rights. See id. at 3:3-5. The 26 Sonoma Court found this waiver to be “knowing, voluntary, and intelligent,” and accepted 27 Case No. 18-01446 BLF (PR) 1 Petitioner’s admission that Petitioner had “failed to be of good conduct and obey all laws.” 2 Id. at 3:2-15. The Sonoma Court observed that the violation was based on Petitioner’s 3 conviction of a misdemeanor. Id. at 3:16-17 (The Court: “This misdemeanor, is that the 4 basis of the violation?” Prosecution: “It is, Your Honor.”). The Sonoma Court then 5 referred the matter to the Sonoma County probation department for a supplemental 6 sentencing report. See id. 7 The Sonoma County probation department provided its supplemental sentencing 8 report on May 28, 2014. See Dkt. No. 36, Ex. P at 5. The report noted that, among other 9 violations of the probation imposed in 2011, Petitioner had been “convicted of a 10 misdemeanor violation of Section 69 PC in Napa County on 01/30/14.” Id. at 3. As 11 punishment for this conviction, Petitioner “served 120 days in jail and was granted 12 summary probation.” Id. at 3. The report concluded that Petitioner’s “compliance on 13 probation has been dismal,” and recommended the Sonoma Court revoke probation. Id. at 14 3, 5. 15 The fourth hearing was held June 4, 2014, after the probation department provided 16 its report. See Dkt. No. 17-1, Ex. D (noting that the court had “read and considered the 17 probation report”). The transcript from that hearing shows that Petitioner’s counsel asked 18 the Sonoma Court to impose “an alternative sentence besides state prison,” and suggested 19 that Petitioner be released on his own recognizance. See id. at 2:12-22. The Sonoma 20 Court denied both requests and revoked probation. Id. at 3. 21 III. DISCUSSION 22 A. Legal Standard 23 This Court may entertain a petition for a writ of habeas corpus “in behalf of a 24 person in custody pursuant to the judgment of a State court only on the ground that he is in 25 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 26 § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). The writ may not be granted with 27 Case No. 18-01446 BLF (PR) 1 respect to any claim that was adjudicated on the merits in state court unless the state 2 court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or 3 involved an unreasonable application of, clearly established Federal law, as determined by 4 the Supreme Court of the United States; or (2) resulted in a decision that was based on an 5 unreasonable determination of the facts in light of the evidence presented in the State court 6 proceeding.” 28 U.S.C. § 2254(d). 7 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state 8 court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question 9 of law or if the state court decides a case differently than [the Supreme] Court has on a set 10 of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). 11 The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is 12 in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state 13 court decision. Id. at 412; Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). While 14 circuit law may be “persuasive authority” for purposes of determining whether a state 15 court decision is an unreasonable application of Supreme Court precedent, only the 16 Supreme Court’s holdings are binding on the state courts and only those holdings need be 17 “reasonably” applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.), overruled on 18 other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003). 19 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the 20 writ if the state court identifies the correct governing legal principle from [the Supreme 21 Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s 22 case.” Williams, 529 U.S. at 413. “Under § 2254(d)(1)’s ‘unreasonable application’ 23 clause, . . . a federal habeas court may not issue the writ simply because that court 24 concludes in its independent judgment that the relevant state-court decision applied clearly 25 established federal law erroneously or incorrectly.” Id. at 411. A federal habeas court 26 27 Case No. 18-01446 BLF (PR) 1 making the “unreasonable application” inquiry should ask whether the state court’s 2 application of clearly established federal law was “objectively unreasonable.” Id. at 409. 3 B. Analysis 4 As explained above, Petitioner has only one claim in the Operative Petition: that 5 counsel rendered ineffective assistance during probation revocation proceedings. See 6 generally, Operative Pet. Specifically, Petitioner argues that his counsel was ineffective in 7 advising Petitioner to admit to violating probation, see id. at 6, and in not “even 8 attempt[ing] to compromise with the Sonoma County Court [at the] probation hearing” 9 Traverse at 1. 10 Petitioner must establish two things in order to prevail on a Sixth Amendment 11 ineffectiveness of counsel claim. First, he must establish that counsel’s performance was 12 deficient, i.e., that it fell below an “objective standard of reasonableness” under prevailing 13 professional norms. Strickland v. Wash., 466 U.S. 668, 687-88 (1984). Second, he must 14 establish that he was prejudiced by counsel’s deficient performance, i.e., that “there is a 15 reasonable probability that, but for counsel’s unprofessional errors, the result of the 16 proceeding would have been different.” Id. at 694. A reasonable probability is defined as 17 a probability sufficient to undermine confidence in the outcome. Id 18 “[A] court need not determine whether counsel’s performance was deficient before 19 examining the prejudice suffered by the defendant as the result of the alleged deficiencies.” 20 Id. at 697; Williams v. Calderon, 52 F.3d 1465, 1470 & n.3 (9th Cir. 1995) (applauding 21 district court’s refusal to consider whether counsel’s conduct was deficient after 22 determining that petitioner could not establish prejudice), cert. denied, 516 U.S. 1124 23 (1996). 24 1. Counsel was not ineffective in his attempts to negotiate. 25 Petitioner’s argument that counsel “didn’t even attempt to compromise with the 26 Sonoma County Court [at the] probation hearing,” Traverse at 1, is belied by the record. 27 Case No. 18-01446 BLF (PR) 1 The transcript of the first hearing before the Sonoma Court reveals that counsel requested, 2 and was granted, a continuance “to have a settlement discussion about” Petitioner’s 3 probation. Dkt. No. 36, Ex. M at 2:11-12. At the second hearing, counsel twice stated that 4 he and the prosecution “need[ed] to continue our conversation” and to “continue our 5 discussion.” Dkt. No. 36, Ex. N at 2:10-13. That the “discussion” or “conversation” with 6 the prosecution needed to be “continue[d]” suggests that counsel had already begun 7 settlement talks with the prosecution. Indeed, Petitioner’s own statements show that his 8 counsel attempted to negotiate with the prosecution; Petitioner states that he agreed to a 9 continuance at the second hearing because “we were trying to compromise.” Traverse at 2. 10 The record and Petitioner’s own description of events thus show that counsel did attempt 11 to negotiate with the prosecution, but in the end was unsuccessful. 12 To the extent Petitioner intends to challenge the failure to secure a plea deal, 13 Petitioner’s claim fails because the failure to secure a plea deal does not constitute 14 ineffective assistance of counsel. The United States Supreme Court has stated that, “[i]f no 15 plea offer is made, or a plea deal is accepted by the defendant but rejected by the judge, the 16 issue [of ineffective assistance of counsel] simply does not arise.” Lafler v. Cooper, 566 17 U.S. 156, 168 (2012); see also United States v. McCall, No. C 00-00505 WHA, 2014 WL 18 2581353, at *3 (N.D. Cal. June 9, 2014) (explaining that the requirement for effective 19 advice from counsel only attaches to formal plea offers). This is because “defendants have 20 ‘no right to be offered a plea . . . nor a federal right that the judge accept it.’” McCall, 21 2014 WL 2581353, at *3 (quoting Missouri v. Frye, 566 U.S. 134, 148 (2012)). 22 To the extent Petitioner intends to claim that counsel was ineffective because he did 23 not accurately predict that the Sonoma Court would revoke probation, Petitioner’s claim 24 fails. It is well-settled that an attorney’s incorrect prediction as to the likely sentence 25 following a guilty plea does not amount to erroneous advice, or satisfy the deficiency 26 prong of Strickland, simply because the trial court ultimately imposed a different sentence. 27 Case No. 18-01446 BLF (PR) 1 Womack v. Del Papa, 497 F.3d 998, 1002-02 (9th Cir. 2007) (distinguishing Iaea v. Sunn, 2 800 F.2d 861 (9th Cir. 1986)). 3 Because the record is clear that counsel attempted to negotiate with the prosecution, 4 Petitioner has not established that counsel was ineffective. 5 2. Petitioner was not prejudiced by admitting he violated probation. 6 Petitioner’s argument that counsel should not have advised Petitioner to admit the 7 probation violation does not demonstrate prejudice, because as Petitioner concedes in the 8 Operative Petition, he in fact violated probation. See Operative Pet. at 6 (“I violated 9 probation . . . .”). 10 First, it is apparent from public records that Petitioner violated probation. Court 11 records show that Petitioner was convicted of at least one misdemeanor after Petitioner 12 was granted probation, and before the Sonoma Court held the probation revocation 13 proceedings at issue here. See Napa Cty. Super. Ct. Case Nos. CR-169183 (on January 30, 14 2014, Petitioner pleaded guilty to a violation of the California Penal Code, for obstructing 15 or resisting an officer), CR-163036 (on October 24, 2012, Petitioner pleaded guilty to a 16 misdemeanor violation of the California Vehicle Code, for driving under the influence of 17 alcohol and with a suspended license).1 Petitioner’s conviction for obstructing or resisting 18 an officer was noted in the probation report, see Dkt. No. 36, Ex. P at 2, and the 19 prosecution expressly cited that conviction as a basis for revoking probation, see Dkt. No. 20 17-1, Ex. D at 3:7-8. Because Petitioner was convicted of resisting or obstructing a police 21 officer while Petitioner was on probation, and because the record of this conviction is 22 publicly available, the only practical difference Petitioner’s admission made to the 23 probation revocation proceedings is that it saved the prosecution the effort of introducing 24 25 1 The Court takes judicial notice of the Napa County court docket. Courts “may take 26 notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” United States v. Black, 482 27 F.3d 1035, 1041 (9th Cir. 2007). Case No. 18-01446 BLF (PR) 1 court records to prove up Petitioner’s probation violation. Accordingly, Petitioner has not 2 established that he was prejudiced by this admission. 3 Second, although Petitioner argues that he was inappropriately advised to admit to 4 two probation violations, see Traverse at 1 (arguing that the failure to complete a drug 5 treatment program did not constitute a second violation of probation), Petitioner does not 6 explain how this would have made a difference to the probation revocation proceedings. 7 Petitioner does not cite any case law that suggests he would have been entitled to remain 8 on probation if he violated the conditions of probation only once, and the Court is unaware 9 of any case law that allows a probationer one “free pass.” It therefore appears to the Court 10 that any admission to two probation violations did not prejudice Petitioner. 11 Moreover, Petitioner did not actually admit to two probation violations on the 12 record. The Sonoma Court did not ask Petitioner whether Petitioner had violated probation 13 more than once. Instead, Petitioner was asked: “do you admit that you violated your 14 probation in that you failed to be of good conduct and obey all laws?” Dkt. No. 36, Ex. O 15 at 3:10-12. Petitioner answered “Yes, sir.” Id. at 3:13. And as noted, supra, the Sonoma 16 Court believed this admission was based on only one probation violation: Petitioner’s 17 misdemeanor conviction. See id. at 3:16-17 (The Court: “This misdemeanor, is that the 18 basis of the violation?” Prosecution: “It is, Your Honor.”). As Petitioner appears to 19 concede that he violated probation at least once, see Operative Pet. at 6, and court records 20 reveal that Petitioner was convicted of a crime while on probation, and the Sonoma Court 21 believed Petitioner’s admission was based on this single conviction, see supra, Petitioner’s 22 admission that he “failed to be of good conduct and obey all laws” is true even if the 23 alleged second probation violation is disregarded. 24 For these reasons, Petitioner has failed to show that there is a reasonable probability 25 the Sonoma Court would have permitted him to remain on probation, but for counsel’s 26 alleged errors. 27 Case No. 18-01446 BLF (PR) 1 Because counsel was not ineffective in negotiations with the prosecution, and 2 || because Petitioner has not shown he was prejudiced by admitting to two probation 3 violations rather than to one, Petitioner has failed to demonstrate that he is entitled to 4 || habeas relief. 5 IV. CONCLUSION 6 After a careful review of the record and pertinent law, the Court concludes that the 7 || Operative Petition must be DENIED. 8 Further, a Certificate of Appealability is DENIED. See Rule 11(a) of the Rules 9 || Governing Section 2254 Cases. Petitioner has not made “‘a substantial showing of the 10 || denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Nor has Petitioner demonstrated 11 that “reasonable jurists would find the district court’s assessment of the constitutional q (12 claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may 5 13. || not appeal the denial of a Certificate of Appealability in this Court but may seek a S 14 || certificate from the Court of Appeals under Rule 22 of the Federal Rules of Appellate 15 || Procedure. See Rule 11(a) of the Rules Governing Section 2254 Cases. z 16 The Clerk shall terminate any pending motions, enter judgment in favor of 5 17 || Respondent, and close the file. 18 IT IS SO ORDERED. Ly hon 19 || Dated:_January 2, 2020 min) BETH LABSON FREEMAN 20 United States District Judge 21 22 23 24 25 26 27 Case No. 18-01446 BLF (PR) 2g || ORDER DEN. PET. FOR WRIT OF HABEAS CORPUS; DEN. CERTIFICATE OF APPEALABILITY 14