Gomez v. Sullivan

• Court: District Court, N.D. California
• Decided: October 16, 2020
• Docket: 3:19-cv-06129
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ELROY PEDRO GOMEZ, Case No. 19-cv-06129-SI

8 Petitioner, ORDER DENYING PETITION FOR 9 v. WRIT OF HABEAS CORPUS

10 WILLIAM “JOE” SULLIVAN, 11 Respondent.

12 13 Elroy P. Gomez filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. 14 § 2254. Respondent has filed an answer to the petition. For the reasons discussed below, the Court 15 denies the petition. 16 17 BACKGROUND 18 Elroy P. Gomez challenges his conviction for attempted premeditated murder arising from 19 an incident with the victim at Gomez’s home. In his federal petition for writ of habeas corpus, 20 Gomez’s sole claim is that his constitutional right to effective assistance of counsel was violated 21 “by the failure of his court-appointed attorney to advise and encourage him to accept the 22 prosecution’s offer of a 9-year sentence.” Dkt. No. 1 at 39 (Petition). Gomez contends that he 23 would have accepted the plea offer if counsel had informed him of several facts about the certainty 24 of a conviction for assault with a deadly weapon and the fair chance of a conviction for attempted 25 murder, either of which carried a sentence that would be longer than that offered to him in the plea 26 deal. 27 Because Gomez’s ineffective-assistance claim raises questions regarding the likelihood of 1 The California Court of Appeal described the facts of this case as follows: 2 At around 8:00 a.m. on September 17, 2014, the victim was drinking coffee and smoking a cigarette outside his San Leandro home when Gomez approached him. 3 He had met Gomez through a mutual friend earlier that summer, and they had visited each other’s homes a couple times. The victim was six feet tall and weighed about 4 210 pounds, and he agreed that Gomez was “[q]uite a bit smaller.” 5 Gomez appeared “agitated” and demanded that the victim come with him to talk to 6 Gomez’s father. The victim did not understand what Gomez was talking about and initially refused to leave. But the victim eventually agreed to go with Gomez because 7 he did not want to disturb his neighbors or a woman who was staying at his house.

8 Gomez and the victim began walking to Gomez’s house, where Gomez lived with at 9 least one of his parents. During the walk, which took 20 to 30 minutes, Gomez was walking three to six feet behind the victim and “very strict about where [the victim] 10 was going in relation to him,” directing the victim to walk near the sidewalk’s edge and keep his distance. During the walk, the victim’s cell phone rang, and Gomez 11 took the phone from the victim’s hand. The victim perceived this action as threatening and aggressive, and he got nervous as they approached Gomez’s house. 12 The victim did not attempt to leave, however, because he wanted to fix whatever 13 misunderstanding had led to the encounter.

14 When they reached Gomez’s house, Gomez directed the victim into the garage, part of which was set up as Gomez’s living area. Gomez locked the door and told the 15 victim to sit on a cooler. The victim testified that Gomez said he had been hired to kill the victim by 10:00 that morning and “alluded to something [like] I talk too 16 much” but refused to tell the victim who wanted him killed. Gomez also said that 17 “he took an oath to do what he was . . . hired to do” and showed the victim some bullets in a nightstand drawer. 18 Gomez pulled out a box cutter and showed it to the victim. Gomez then took off his 19 shirt, “scuff[ed]” the box cutter across his chest, and stated again that he was going 20 to kill the victim. Holding the box cutter, Gomez directed the victim “to turn to the mirror and . . . ‘to take it like a man.’” In the victim’s words, Gomez “was going to 21 – he wanted to [slit] my throat.” The victim said he was not going to let Gomez kill him, and he refused to turn his head. 22 Gomez then ordered the victim into the backyard and told him to sit in a chair in the 23 corner. The victim refused because he did not want “to be cornered and out of sight.” 24 Gomez became angry and hit the victim in the jaw. The victim saw “blood pouring down [his] chest” and Gomez said, “‘I got you’” and “‘You’re going to bleed out.’” 25 At that point, the victim noticed that Gomez was holding the box cutter, which explained the severity of the injury. Gomez threw the box cutter over the fence into 26 a ravine.

27 The victim took off his shirt and tank top, tied the tank top around his neck to try to was scared, and he tried to “talk [Gomez] out of this whole thing.” Gomez directed 1 the victim back to the garage, where he had the victim sit on the cooler again. Gomez 2 told the victim that he was “going to have to do this” and the victim’s “time [was] running out,” and he also asked the victim whether there were any “last things [he] 3 want[ed] or need[ed to] say or do.” The victim continued to try to talk Gomez out of his plan: “I saw there was an opportunity. There was this human side of him that, 4 one, he was going to kill me. It was absolute. And there was one that would seem to calm down because I kept trying to remind him . . . [t]hat I didn’t want to fight 5 with him.” 6 The victim asked Gomez for a half gallon of orange juice that was nearby, and 7 Gomez agreed he could take it.1 As the victim was drinking, Gomez indicated that someone else was in the house and yelled toward a room, but no one responded. The 8 possibility that another person was present worried the victim, and he continued to “try to defuse the situation” by talking to Gomez. 9

10 [Footnote 1:] On cross-examination, the victim testified that it was a half gallon of peppermint schnapps, not orange juice, and he drank about a shot. 11 Gomez directed the victim to the backyard again, and the two men continued to talk. 12 Gomez seemed less threatening and upset, and the victim kept “trying to talk him down.” Gomez used a garden hose to hose down the victim, and he then directed the 13 victim into the kitchen. Inside, it seemed like Gomez was considering what the 14 victim was saying, but Gomez repeated that he had to kill the victim. Gomez also embraced the victim and stated, “‘I love you[,] brother.’” The victim responded that 15 he loved Gomez too.

16 Gomez directed the victim back to the garage for a third time, where he again told the victim to sit on the cooler. At some point earlier in the encounter Gomez had 17 produced a knife and cut the victim in a different part of his neck. As the victim sat 18 on the cooler for the third time, Gomez “stood right up against [the victim] pressing . . . the weight of his legs against [the victim] and he had the knife in his hands.” 19 Gomez then “struck” the victim’s knee with the knife so deeply that the victim could see bone. The victim took off his shirt and used it as a tourniquet around his thigh. 20 As the victim was taking his shirt off, Gomez “struck” the victim’s hand with the knife. 21

22 Less than a minute after cutting the victim’s hand, Gomez walked the victim to the front door and told the victim to leave and not “‘rat’” on him. Gomez also said, 23 “[N]ow, you can go out there and tell everybody . . . not to mess with me,” or “something to that effect.” The victim began walking away, looking for help. After 24 he reached another street, a witness noticed that he was bleeding and flagged down 25 an Alameda County Sheriff’s deputy. An ambulance took the victim to the emergency room. 26 Gomez’s next-door neighbor testified that around 6:30 a.m. that morning, he “heard 27 some very loud conversations” coming from Gomez’s house. Less than an hour later, saying, “‘[Y]ou better not fuck with me. I set you straight. You have been told. You 1 just better not fuck with me.’” When the neighbor asked Gomez what he was talking 2 about, Gomez turned and left.

3 Several hours later, sometime after 10:00 a.m., the neighbor saw Gomez and a man whom he identified as the victim standing in Gomez’s backyard. Gomez, who had 4 his shirt off, “was pacing back and forth” and “kind of growling in anger.” The victim appeared “to be trying to de[-]escalate and calm [Gomez] down.” The neighbor 5 watched the men for three to five minutes but did not observe any physical altercation 6 or any weapons, and the next time he looked back they were gone.

7 The victim’s treating surgeon testified that the victim had three lacerations on his neck, one of which was so deep that it approached the carotid artery. Another 8 laceration had a piece of blade in it, and the surgeon opined that “it would require quite a bit of impact” to the victim’s neck for part of the weapon to be left behind. 9 The victim required sutures in his neck and staples in his knee. The victim later 10 developed infections in his face, limiting his ability to eat, and had to return to the hospital for additional treatment and pain medication. The surgeon testified that the 11 victim’s injuries could have been life-threatening if they had been left untreated.

12 The police arrested Gomez, who had scratch marks on his chest and a cut on his hand that appeared to have been made by a blade. A search of his garage uncovered 13 ammunition and “a kitchen knife or steak knife” in a dresser, another knife tucked 14 into some clothing, and a bloody tank top. There were also blood drops on the walkway to the front door and inside the garage. The police searched the ravine, but 15 it was dark and they were unable to recover a box cutter or any other cutting instrument. Gomez did not present any evidence, and his defense focused on 16 attempting to undermine the victim’s credibility. Bearing on the victim’s general credibility, the victim admitted that he had a previous conviction for disturbing the 17 peace based on a domestic violence incident and two DUI charges pending, but he 18 also testified that he had not been promised anything by the district attorney in exchange for his testimony. The victim also admitted that he suffered from bipolar 19 disorder and had a history of alcoholism. Bearing on the victim’s credibility about the day in question, Gomez’s trial counsel suggested that the victim had come to 20 Gomez’s house to get methamphetamine and the two had argued. While the victim admitted he had smoked methamphetamine before, he denied ever doing so with 21 Gomez or visiting Gomez’s house that day to obtain the drug. 22 The jury convicted Gomez of attempted premeditated murder and found true the 23 allegations that during that crime Gomez personally inflicted great bodily injury on the victim and personally used a deadly and dangerous weapon. The jury also found 24 Gomez guilty of possession of ammunition by a felon and assault with a deadly 25 weapon and found true the allegation that Gomez personally inflicted great bodily injury on the victim during the assault. 26 After the trial court found true the allegation that Gomez had a prior conviction for 27 a serious felony, it sentenced him to a total term of 24 years and four months to life 1 California Court of Appeal Opinion filed January 19, 2018 in People v. Gomez, No. H56903, 1-6 2 (Cal. Ct. App. January 19, 2018) (unpublished) (footnotes omitted). 3 Gomez appealed his conviction. The California Court of Appeal affirmed his conviction. 4 Dkt. No. 11-3 at 27 (Answer, Exhibit E). The California Supreme Court denied his petition for 5 review. Id. at 82 (Answer, Exhibit G). Gomez filed petitions for writ of habeas corpus with the 6 California Court of Appeal and California Supreme Court. Id. at 84 (Answer, Exhibit H). The 7 California Court of Appeal summarily denied his petition for writ of habeas corpus. Dkt. No. 1 at 8 79. The California Supreme Court also summarily denied his petition for writ of habeas corpus. 9 Dkt. No. 11-3 at 93 (Answer, Exhibit I). 10 Gomez then filed this action arguing that his constitutional right to effective assistance of 11 counsel was violated during the plea negotiations. Dkt. No. 1. 12 13 JURISDICTION AND VENUE 14 This Court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. 15 § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition concerns the 16 conviction and sentence of a person convicted in Alameda County, California, which is within this 17 judicial district. 28 U.S.C. §§ 84, 2241(d). 18 19 STANDARD OF REVIEW 20 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in custody 21 pursuant to the judgment of a State court only on the ground that he is in custody in violation of the 22 Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 23 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) amended § 2254 to 24 impose new restrictions on federal habeas review. A petition may not be granted with respect to 25 any claim that was adjudicated on the merits in state court unless the state court’s adjudication of 26 the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application 27 of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) 1 evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). 2 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state court 3 arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if 4 the state court decides a case differently than [the] Court has on a set of materially indistinguishable 5 facts.” Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000). 6 “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if 7 the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions 8 but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal 9 habeas court may not issue the writ simply because that court concludes in its independent judgment 10 that the relevant state-court decision applied clearly established federal law erroneously or 11 incorrectly. Rather, that application must also be unreasonable.” Id. at 411. “A federal habeas 12 court making the ‘unreasonable application’ inquiry should ask whether the state court’s application 13 of clearly established federal law was ‘objectively unreasonable.’” Id. at 409. 14 Section 2254(d) generally applies to unexplained as well as reasoned decisions. “When a 15 federal claim has been presented to a state court and the state court has denied relief, it may be 16 presumed that the state court adjudicated the claim on the merits in the absence of any indication or 17 state-law procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). 18 When the state court has denied a federal constitutional claim on the merits without explanation, the 19 federal habeas court “must determine what arguments or theories supported or . . . could have 20 supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists 21 could disagree that those arguments or theories are inconsistent with the holding in a prior decision 22 of [the U.S. Supreme] Court.” Id. at 102. 23 24 DISCUSSION 25 A threshold matter to resolve is to determine the state court decision to which 28 U.S.C. 26 § 2254, applies because Gomez presented the claim in two procedurally different circumstances. 27 Gomez first presented an ineffective-assistance claim on direct appeal, where it was rejected because 1 appellate court explained that, because the “presumption of counsel’s competence can usually be 2 rebutted only with evidence outside the record, a reversal on direct appeal is not warranted unless 3 ‘(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act 4 or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could 5 be no satisfactory explanation.’” Id. (citation omitted). Gomez later presented his ineffective- 6 assistance claim in a state habeas petition and submitted declarations in support of the habeas 7 petition. The California Court of Appeal and the California Supreme Court denied the habeas 8 petition without discussion. Given that the rejection of the claim on direct appeal was due to the 9 procedural problem that the appellate court could not provide relief for a claim that had to be proven 10 with materials outside the record on appeal, and given that Gomez later provided materials beyond 11 the appellate record when he presented his claim again in a state habeas petition, this court concludes 12 that the California Supreme Court’s unexplained denial of the habeas petition is the decision to 13 which 28 U.S.C. § 2254(d) applies. Thus, this court “must determine what arguments or theories 14 supported or . . . could have supported” the California Supreme Court’s rejection of the claim, “and 15 then it must ask whether it is possible fairminded jurists could disagree that those arguments or 16 theories are inconsistent with the holding in a prior decision of [the U.S. Supreme] Court. 17 Harrington v. Richter, 562 U.S. at 102. 18 19 I. The Plea-Bargaining Efforts 20 Gomez’s ineffective-assistance claim rests on the premise that a 9-year plea was offered to 21 him. Respondent, however, disputes that a 9-year offer was ever made, claiming that “the record is 22 unclear as to what plea offers were made by the prosecution and when any such offers were made.” 23 Dkt. No. 11-1 at 15. Some of the confusion appears to be due to the fact that three different trial 24 prosecutors and one supervising prosecutor were involved in the case. Although the record is not 25 particularly clear, it appears to show the following: 26 On December 8, 2014, a preliminary hearing was held. Dkt. No. 12 at 18. At the preliminary 27 hearing—when Gomez had been charged with attempted murder but not yet charged with assault 1 that this is an attempted murder,” but that “we may have an assault here.” Id. at 91-92. 2 A few months later, on February 2, 2015, the prosecution extended a 13-year plea offer to 3 Gomez. Dkt. No. 12-1 at 30-31. According to the supervising deputy district attorney, Matthew 4 Golde, Gomez rejected this offer because he wanted a drug program. Id. 5 On July 8, 2015, the prosecution amended the charges against Gomez to add a charge under 6 California Penal Code Section 245—assault with a deadly weapon. Id. at 114-120. 7 The first trial began on August 31, 2015. Id. at 145. Shortly before that, on August 18, 8 2015, Christopher Chin was listed—for the first time—as the deputy district attorney for the case, 9 replacing Matthew Gaidos. Id. at 129, 130. On September 1, 2015, the parties conducted plea 10 negotiations off the record. Id. at 149. According to the clerk’s minutes, the prosecution extended 11 an offer to Gomez, and Gomez rejected it. Id. The record does not indicate why Gomez rejected 12 this offer. On September 21, 2015, a mistrial was declared because of the health issues of Gomez’s 13 attorney. Id. at 153. 14 On February 1, 2016, the trial court stated that “Mr. Golde had indicated he would let Mr. 15 Gomez plead to 9 years at . . . 80 percent as a strike on a 245.” Id. at 5. Mr. Golde then replied, “I 16 thought it was 85 percent.” Id. Notably, on that date, Mr. Golde did not refute that a 9-year offer 17 was ever made. 18 The second trial began on February 2, 2016. Id. at 168. The deputy district attorney listed 19 for the case was Ashley Dodson. Id. On February 8, 2016, supervising deputy district attorney 20 Golde was present and summarized the plea negotiations as he recalled them. Dkt. No. 12-1 at 30- 21 31. He stated that he did not recall making a 9-year plea offer but “maybe it was” made. Id. Deputy 22 district attorney Dodson then stated that her predecessor (Christopher Chin) had made a note, “I 23 believe in September [2015], that the last offer was the 245 at nine years, but it was not made since 24 I have been the DA in this courtroom.” Id. The trial court also recalled that a 9-year offer was made 25 to Gomez but was rejected. Id. at 30 (“Well, my understanding was, was that Mr. Gomez flatly 26 rejected the last offer of nine years.”). 27 1 II. Gomez’s Contentions 2 Gomez points to twelve “facts” which he claims, if explained to him, would have made him 3 accept the plea offer. Dkt. No. 1 at 65. Among these alleged “facts” are assertions, such as: 4 A. That I had no defense to the 245 charge;

5 B. That I would certainly be found guilty of [the 245] charge, even if I were found not guilty of the attempted murder charge; 6

7 . . .

8 F. That I had no defense to the allegations of having a prior serious-felony conviction;

9 . . .

10 H. That, as a result of being found guilty of [the 245 charge], with said . . . 11 enhancement[s] . . ., I would be sentenced to . . . a minimum sentence of 12 years and a maximum of 16 years, even if I were found not guilty of attempted murder; 12 I. That there was a fair chance that I would be found guilty of attempted murder; 13 J. That there was an even greater chance that, if I were found guilty of attempted 14 murder, I would also be found to have deliberated and premeditated the attempted 15 murder;

16 K. That if I were found guilty of attempted murder without deliberation and premeditation, I would be sentenced to . . . [up to 27 years], and if I were found guilty 17 of attempted murder with deliberation and premeditation, I would be sentenced to life imprisonment with a minimum eligibility for parole date of 7 years, doubled 18 . . ., plus 9 years for the above enhancements (i.e., 23 years to life). 19 L. That, under these circumstances, where I had no hope if I went to trial of being 20 found not guilty of violation of section 245 or of the enhancement and prior- 21 conviction allegations being found not true and, therefore, of being sentenced to less than 12 years and did have a chance of being found guilty of attempted murder and 22 a greater chance of being found guilty of deliberate, premeditated attempted murder and being sentenced to a term as long as 26 years or 23 years to life, I had no rational 23 choice but to accept the prosecution’s offer of 9 years. 24 25 Id. at 63-65. He declares that, had all these facts been explained, “I would have accepted the 26 prosecution’s offer of 9 years. Instead [defense counsel] told me that we were going to beat the 27 case.” Id. at 65. Notably, he does not allege that he was not informed of the maximum sentence he 1 attorney, states that trial counsel did not predict the outcome for him and that counsel did not show 2 him how various sentences would be calculated upon a conviction. 3 4 III. Analysis 5 A. A Nine-Year Plea Offer Was Made 6 Respondent argues that the state habeas court could have rejected the ineffective-assistance 7 claim due to the absence of evidence that a 9-year plea offer was made. The court disagrees. 8 Although the record is somewhat unclear about what offers were made, by whom, and when, it 9 would have been unreasonable for the California Supreme Court to dismiss Gomez’s ineffective- 10 assistance claim purely on the basis that no 9-year plea offer was ever extended to him. 11 Respondent’s argument to the contrary rests on supervising deputy district attorney Golde’s 12 memory, which was contrary to that of deputy district attorney Dodson (based on her predecessor’s 13 notes), as well as the recollection of the trial court and Gomez. Even supervising deputy district 14 attorney Golde stated that “maybe [the 9-year offer] was” extended to Gomez, conceding that he 15 may just not have remembered it. Id. The evidence in the record heavily corroborates that a 9-year 16 plea offer was extended to Gomez by the prosecution at or before the first trial in September 2015. 17 See Dkt. No. 12 at 149; Dkt. No. 12-1 at 30-31. 18 Although it would have been unreasonable for the California Supreme Court to determine 19 that there never was a 9-year plea offer, that court reasonably could have determined that the 9-year 20 offer was not extended again in February 2016, as the second trial was beginning. But a 21 determination that the 9-year offer was not extended again in February 2016 would not alone support 22 a denial of habeas relief here because this court must determine whether there was ineffective 23 assistance of counsel with respect to the 9-year plea deal that was offered in September 2015. 24 The assault with a deadly weapon charge under California Penal Code Section 245 (also 25 occasionally referred to as the “245” charge) was added in a first amended information filed July 26 8, 2015, before the 9-year offer was made in September 2015. Because Gomez’s primary 27 argument is that his court-appointed attorney failed to properly account for and advise him of the 1 extended on February 1, 2016, any advice given by Gomez’s attorney about that offer should have 2 accounted for the 245 charge. 3 4 B. Legal Standard 5 The Sixth Amendment’s right to counsel guarantees not only assistance, but effective 6 assistance, of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The benchmark for 7 judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper 8 functioning of the adversarial process that the trial cannot be relied upon as having produced a just 9 result. Id. The right to effective assistance of counsel applies to the performance of both retained 10 and appointed counsel without distinction. See Cuyler v. Sullivan, 446 U.S. 335, 344-45 (1980). 11 In order to prevail on a Sixth Amendment ineffective assistance of counsel claim, a petitioner 12 must establish two things. First, he must establish that counsel’s performance was deficient, i.e., 13 that it fell below an “objective standard of reasonableness” under prevailing professional norms. 14 Strickland, 466 U.S. at 687-88. Second, he must establish that he was prejudiced by counsel’s 15 deficient performance, i.e., that “there is a reasonable probability that, but for counsel’s 16 unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A 17 reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. 18 A “doubly” deferential judicial review is appropriate in analyzing ineffective assistance of 19 counsel claims under § 2254. See Cullen v. Pinholster, 563 U.S. 170, 202 (2011). When analyzing 20 an ineffective assistance of counsel claim under § 2254, “[t]he pivotal question is whether the state 21 court’s application of the Strickland standard was unreasonable. This is different from asking 22 whether defense counsel’s performance fell below Strickland’s standard.” Harrington v. Richter, 23 562 U.S. 86, 101 (2011). A petitioner must “show that the state court’s ruling on the claim being 24 presented in federal court was so lacking in justification that there was an error well understood and 25 comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103. 26 Under this standard, “if the state court reasonably concluded that Petitioner failed to establish either 27 prong of the Strickland test,” then a federal court cannot grant relief. Cannedy v. Adams, 706 F.3d 1 C. Deficient Performance of Counsel 2 For plea counseling to be deficient performance under Strickland, a petitioner must establish 3 that the advice was “so incorrect and so insufficient that it undermined the defendant’s ability to 4 make an intelligent decision about whether to accept the plea offer.” Turner v. Calderon, 281 F.3d 5 851, 880 (9th Cir. 2002) (internal quotations omitted). For bad advice to reach that level, it must be 6 more than “a mere inaccurate prediction,” as that, “standing alone, would not constitute ineffective 7 assistance.” Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986). Deficient performance may exist 8 where there is a “gross mischaracterization of the likely outcome” of a plea bargain “combined with 9 . . . erroneous advice on the possible effects of going to trial.” Id. Judicial scrutiny of counsel’s 10 performance must be highly deferential, and a court must indulge a strong presumption that 11 counsel’s conduct falls within the wide range of reasonable professional assistance. See Strickland, 12 466 U.S. at 689. The absence of evidence that counsel gave constitutionally inadequate advice 13 cannot overcome the presumption that counsel’s conduct was within the range of reasonable 14 professional advice. Burt v. Titlow, 571 U.S. 12, 22-23 (2013). 15 Respondent argues that the state court could have found that Gomez failed to demonstrate 16 deficient performance by his attorney because there may have been some tactical basis for the advice 17 he gave to Gomez. Dkt. No. 11-1 at 17. Gomez’s argument is that his attorney failed to advise him 18 of the twelve “facts” because his attorney believed “it was highly unlikely that [Gomez] would be 19 found guilty.” Dkt. No. 1 at 38. Gomez references an email that his trial attorney wrote to his 20 appellate attorney wherein his trial attorney says that “[t]he verdict surprised me more than any other 21 in my experience.” Dkt. No. 1 at 67. 22 The California Supreme Court could have found that Gomez’s claims are not sufficiently 23 corroborated by the record. Gomez states that his attorney did not explain twelve “facts” to him. 24 Dkt. No. 1 at 38. He also states that his attorney—at some unidentified time—told him that they 25 “were going to beat the case.” Id. at 65. Nothing in the record corroborates these assertions, but 26 there is evidence that tends to point against them. For example, there are two points in the record 27 where Gomez’s attorney acknowledges that a 245 conviction was possible, if not likely. The first 1 offer was made. See Dkt. No. 12 at 91-92 (“So I think that, you know, we may have an assault here, 2 but an attempted murder, I don’t think there’s any evidence to indicate that this is an attempted 3 murder.”). The second instance was after the jury found Gomez guilty of all charges and the defense 4 was moving for a new trial. Id. at 252 (“[T]he evidence in this case, in my opinion, certainly admits 5 of an assault, I can’t deny that.”). Because these statements by Gomez’s attorney sandwich the 6 period where the plea offer was made, the California Supreme Court reasonably could have rejected 7 the claim that rested only on Gomez’s self-serving statements made after he had been convicted— 8 that Gomez’s attorney believed or would have advised him that he could “beat” the 245 charge. The 9 attorney’s later statement that the verdict “surprised [him] more than any other” could reasonably 10 be read as referring to the attempted murder conviction rather than the 245 conviction. See Dkt. No. 11 1 at 67 (“It seemed improbable to me that the jury would convict of 187/664.”). Further, there is 12 evidence in the record of Gomez misconstruing prior statements made by his attorney or the trial 13 court. See, e.g., Dkt. No. 12-1 at 13-14 (trial court informs Gomez that everyone but Gomez recalled 14 Gomez’s plea to a different charge as being a plea to a felony rather than a misdemeanor; “If you 15 pled to it as a misdemeanor, you know I am going to honor it and take care of business. But it’s 16 everybody’s recollection as well as the state of the law you haven’t pled to it.”). 17 The California Supreme Court’s rejection of the claim of ineffective assistance of counsel 18 also has some support from the absence of certain information in Gomez’s habeas petition that was 19 prepared with the assistance of counsel. First, Gomez does not declare that he was not informed of 20 the plea offer or the maximum sentence he faced; instead, his declaration describes counsel’s failure 21 to explain how particular sentences would be calculated if he was found guilty. While the maximum 22 sentence Gomez faced at trial would be paramount in importance, the particular math used by the 23 court to reach that sentence would not be. 24 Second, Gomez does not declare what he told his attorney about the plea offer at the time 25 the offer was made to him. Comments by the court and counsel in the court record indicate that 26 Gomez directed counsel to reject the offer because he wanted a drug treatment program in lieu of a 27 custodial sentence, but Gomez’s failure to explain what he thought and said contemporaneous with 1 Third, Gomez presents no evidence as to what his attorney did tell him, other than to say that 2 counsel said he could “beat” this case. Gomez did not report to the state habeas court that trial 3 counsel refused to communicate with habeas counsel or refused to explain what had transpired in 4 the plea negotiations. Even if trial counsel was unwilling to prepare a declaration for the habeas 5 petition, Gomez could have provided in his own declaration some information about counsel’s 6 discussions with him, beyond simply that “he told me that we were going to beat the case.” Because 7 it is clear from the record that Gomez—at least at one point—wanted a drug treatment program 8 instead of prison and eventually Gomez offered to take a 14-year deal after the prosecutor terminated 9 the plea negotiations, it is obvious that there was more than this single sentence uttered by counsel. 10 Fourth, trial counsel turned over his file, yet there is no mention in the habeas petition of 11 whether there were notes in the file about the plea negotiations or what any such notes stated. The 12 absence of information as to what the attorney did discuss with the client about the plea reasonably 13 could have been viewed by the California court as suggesting the absence of deficient performance. 14 Insofar as Gomez urges that counsel did not push him hard enough to take a deal, the argument fails 15 both because (a) the U.S. Supreme Court has never issued a holding explaining how much an 16 attorney must push his client to take a deal the attorney sees as favorable and (b) Gomez has failed 17 to provide details about what exactly counsel did discuss with him regarding the plea offer. On the 18 record presented to it, it would have been a reasonable application of Burt v. Titlow for the California 19 Supreme Court to conclude that Gomez had not overcome the presumption that counsel’s conduct 20 was within the range of reasonable professional advice. See Burt, 571 U.S. at 22-23 (“The absence 21 of evidence that counsel gave constitutionally inadequate advice cannot overcome the presumption 22 that counsel’s conduct was within the range of reasonable professional advice.”); George v. Madden, 23 794 F. App’x 681, 682 (9th Cir. 2020) (finding that there was insufficient evidence to show that 24 petitioner was misadvised by counsel). 25 Even if the California Supreme Court accepted that Gomez was not advised about the twelve 26 “facts,” the state court could have found that failing to advise of those “facts” did not amount to 27 constitutionally deficient performance. Many of the “facts” Gomez posits correspond to the 1 of the 245 charge. Dkt. No. 1 at 35 (emphasis added). “Fact” four states that the allegation of great 2 bodily injury would also “certainly be found to be true.” Id. And “fact” seven states that the prior- 3 conviction allegations would “certainly be found to be true.” Id. at 36. In advising a defendant, 4 “[c]ounsel cannot be required to accurately predict what the jury or court might find.” Turner, 281 5 F.3d at 881. Therefore, it would not have been unreasonable for the California Supreme Court to 6 conclude that counsel would not have provided constitutionally deficient performance by failing to 7 advise Gomez that he would “certainly” be found guilty of the allegations against him. 8 Moreover, the other “facts” that Gomez raises are that he had “no defense” to certain charges, 9 so he had “no hope . . . of being sentenced to less than 12 years” if he went to trial. See Dkt. No. 1 10 at 35, 37. It may be conceded that Gomez did not have a defense to the prior-conviction allegations. 11 But these enhancements were only applicable if Gomez was convicted of one of the felonies charged 12 in the present case. See, e.g., Cal Pen Code § 667(a)(1) (“[I]n addition to the sentence imposed by 13 the court for the present offense, a five-year enhancement for each such prior conviction [shall be 14 received].”). 15 The state court could have concluded that Gomez did have a defense to both the attempted 16 murder and the 245 charge. Because the burden of proof is on the prosecution in a criminal trial, 17 Gomez had a defense that the prosecutor did not meet his burden of proof beyond a reasonable 18 doubt. Gomez now argues that—because of the physical evidence—there “was no other possible 19 explanation in the evidence” for the victim’s injuries apart from an assault by Gomez. Dkt. No. 1 20 at 46. However, the state habeas court reasonably could have rejected this assertion. The defense 21 theory at trial was that the victim wanted something from Gomez, such as drugs, Gomez refused to 22 give them to him, there was a fight, and both the victim and Gomez got injured. See Dkt. No. 12-1 23 at 247. Gomez himself had lacerations on his chest and hands. There was ample evidence that 24 would have allowed the jury to find that the victim was not credible; the victim had prior convictions, 25 inconsistencies in testimony, substance abuse, and a recent psychiatric history. See, e.g., id. at 121, 26 125, 149. The victim’s description of the crime was an odd one, and defense counsel focused on 27 that to forcefully argue that the victim was not credible. Defense counsel argued, for example, that 1 did not make sense, given that the victim was much bigger than Gomez and was not being 2 threatened, id. at 234-35; the victim’s story had changed over time, see id. at 238; that the victim’s 3 story “became even more implausible, bordering on hallucinatory” on cross-examination, id. at 237. 4 If the victim’s statements were discounted, there would be substantial gaps in the prosecution’s case 5 and Gomez’s theory of the case could provide the jury with a reasonable doubt. Therefore, it was 6 not guaranteed that Gomez would be convicted of the 245 charge or attempted murder and receive 7 a sentence of nine years or longer if he went to trial. 8 Regardless of the reasons, the record is silent as to what Gomez’s attorney advised him as 9 to the advisability of taking the plea offer and why Gomez ultimately chose to reject the plea offer. 10 This silent record cannot defeat the strong presumption that counsel acted appropriately. See Burt, 11 571 U.S. at 22-23. Therefore, the state court could reasonably have found that Gomez failed to 12 show constitutionally deficient performance by his attorney. 13 14 D. Prejudice 15 The prejudice prong of the Strickland test requires a petitioner to prove a “reasonable 16 probability that, but for counsel’s unprofessional errors, the result . . . would have been 17 different.” Strickland, 466 U.S. at 687-694. To establish prejudice from counsel’s advice to reject 18 a plea offer, petitioner must show that there is a reasonable probability that, but for counsel’s errors, 19 he would have accepted the plea, “the plea offer would have been presented to the court . . ., that 20 the court would have accepted its terms, and that the conviction or sentence, or both, under the 21 offer’s terms would have been less severe than under the judgment and sentence that in fact were 22 imposed.” Lafler v. Cooper, 566 U.S. 156, 164 (2012). The Supreme Court recently noted of 23 ineffective-assistance claims in the accepted plea context that “Courts should not upset a plea solely 24 because of post hoc assertions from a defendant about how he would have pleaded but for his 25 attorney’s deficiencies. Judges should instead look to contemporaneous evidence to substantiate a 26 defendant’s expressed preferences.” Lee v. United States, 137 S. Ct. 1958, 1967 (2017). Similarly, 27 in the rejected plea context, the Court must look to the “totality of the circumstances” to substantiate 1 Strickland, 466 U.S. at 695. 2 Respondent argues that the state court could have found that Gomez was not prejudiced 3 because his declaration is “self-serving and insufficient, in and of itself, to establish prejudice 4 without independent, objective evidence of corroboration.” Dkt. No. 11-1 at 17. Gomez disagrees. 5 Largely relying on Alvernaz for support, he argues that “a substantial disparity between the plea 6 offer and the potential sentence exposure constitutes strong evidence of a reasonable probability that 7 a properly advised defendant would have accepted a guilty plea offer.” Dkt. No. 1 at 52 (discussing 8 In re Alvernaz, 2 Cal. 4th 924 (1992)). He then applies Alvernaz to himself and argues that “the 9 ‘substantial disparity’ between the 9-year [plea offer] and the 24-years-to-life sentence that he 10 received is corroboration that, with proper advice, he would have accepted the offer.” Id. at 59. 11 Gomez’s argument is unpersuasive. 12 In Alvernaz, the California Supreme Court considered a claim of ineffective assistance of 13 counsel in the context of a rejected plea offer, approaching the claim wary of the “ease with which 14 a defendant, after trial, may claim that he or she received inaccurate information from counsel 15 concerning the consequences of rejecting a plea offer.” Alvernaz, 2 Cal. 4th at 938; cf. Lee, 137 S. 16 Ct. at 1967. The court identified the following as “[p]ertinent factors” to consider in evaluating 17 whether, with effective assistance, a defendant would have accepted the plea offer: “whether 18 counsel actually and accurately communicated the offer to the defendant; the advice, if any, given 19 by counsel; the disparity between the terms of the proposed plea bargain and the probable 20 consequences of proceeding to trial, as viewed at the time of the offer; and whether the defendant 21 indicated he or she was amenable to negotiating a plea bargain.” Alvernaz, 2 Cal. 4th at 938 22 (emphasis added). A defendant’s stance at trial may also be considered, as protesting under oath 23 that one is innocent generally tends to suggest he would not have desired to accept a plea offer. See 24 id. at 940. Alvernaz is not controlling but is helpful in that it identifies some factors to consider as 25 the court looks for corroboration for a post hoc assertion by a defendant that he would have taken 26 the plea offer.1 27 1 Gomez relies on Alvernaz to argue that the substantial disparity between the plea offer of 9- 2 years and the 24-to-life sentence he did receive provides evidence that he would have accepted the 3 plea offer. Dkt. No. 1 at 59. But the sentence disparity discussed in Alvernaz is not so simple, as 4 the California Supreme Court described the disparity as between the plea offer and the “probable 5 consequences at trial, as viewed at the time of the offer.” In re Alvernaz, 2 Cal. 4th at 938. Alvernaz 6 does not simply compare the plea offer with the worst possible outcome or the actual outcome, but 7 instead with the “probable consequences” at trial. This distinction is subtle but important, especially 8 when it is unlikely that the worst possible outcome will occur. Where a criminal defendant is facing 9 a high disparity between an offered plea and his probable outcome at trial, the defendant is more 10 likely to accept the offer if properly advised because a properly informed client would be less likely 11 to risk going to trial when his probable sentence at trial is substantially greater than the plea offer. 12 Here, the evidence indicates that counsel believed an attempted murder conviction was 13 highly unlikely.2 If an assault conviction was probable and an attempted murder conviction was 14 highly unlikely, then the probable consequence of trial would be viewed more as that the likely 15 prison exposure facing the defendant. In Alvernaz, the petitioner faced several charges plus sentence 16 enhancement allegations. After rejecting a plea offer that would have resulted in a maximum of four or five years in prison (with the likelihood of him being in prison no more than two-and-a-half 17 years with time credits), Alvernaz went to trial, was convicted of all but one charge, and received a sentence of life with the possibility of parole, for which he expected to be confined for more than 18 16 years before being paroled. 2 Cal. 4th at 929-30. In the habeas action, Alvernaz declared that when he asked about the possibility of losing at trial, defense counsel had told him that the maximum 19 penalty was about eight years (with the likelihood of him being in prison for only about four years with time credits) and there was a 70-80% chance the defense would prevail at trial. Id. at 930-31. 20 Unlike the situation in Alvernaz, there is no evidence that Gomez’s attorney misstated his maximum sentencing exposure. Because Alvernaz’s facts are not comparable to Gomez’s, Alvernaz’s 21 usefulness here is limited to its identification of pertinent factors to consider in evaluating whether a defendant would have accepted the plea offer. 22

2 Gomez eventually appealed on the ground that the evidence was insufficient to support the 23 attempted murder verdict, which provides some indication that Gomez would have believed before trial that the charge was unlikely to result in a conviction at trial. It also suggests that even after 24 seeing the evidence that ultimately was presented, Gomez, trial counsel, and appellate counsel felt that the evidence did not show attempted murder. Some support for this view can be found in the 25 California Court of Appeal’s opinion which rejected Gomez’s challenge to the sufficiency of the evidence of attempted murder but “acknowledge[d] that a reasonable jury might have concluded 26 that Gomez, despite his statements, did not truly intend to kill the victim because some of his actions were inconsistent with that purpose.” People v. Gomez, slip op. at 7. All of this supports a view 27 that an attempted murder conviction was not among “the probable consequences of proceeding to 1 sentence would be somewhere between 12-16 years (assuming Gomez’s declaration correctly 2 identifies the sentencing options), and the disparity identified in Alvernaz would be the difference 3 between the 9-year plea offer and the probable 12-16 year sentence if convicted. That disparity is 4 substantially less than the disparity between a 9-year offer and a 27-to-life sentence (i.e., the worst 5 possible outcome) or a 24-to-life sentence (i.e., the actual outcome). The materials in the record 6 indicate that defense counsel did not believe an attempted murder conviction was likely, and 7 Gomez’s position on appeal was that the evidence was insufficient to support an attempted murder 8 conviction. 9 The disparity between the 9-year offer and the probable 12-16 year sentence if convicted 10 provides some corroborating evidence that Gomez would have taken the deal. But there also is 11 evidence in the record that the victim had substantial credibility problems, making such a conviction 12 less of a certainty. And there is no evidence that counsel did not accurately communicate the plea 13 offer to Gomez. See Alvernaz, 2 Cal. 4th at 938 (whether counsel accurately communicated the 14 offer to defendant is a factor to consider in determining whether he would have accepted the plea). 15 Additionally, the record supports a determination that Gomez rejected the plea offer that involved 16 prison time because he wanted a drug treatment program instead of prison time, and there is no 17 indication that he budged from this position until after the prosecutor terminated the plea 18 negotiations. See id. (defendant’s indication of his amenability to negotiating a plea is a factor to 19 consider in determining whether he would have accepted the offer). On this record, it would not 20 have been an unreasonable application of clearly established federal law as set forth by the U.S. 21 Supreme Court for the California Supreme Court to conclude that Gomez had not established 22 prejudice under the Strickland test. Gomez is not entitled to the writ on his claim that he received 23 ineffective assistance of counsel. 24 25 IV. Denial of Certificate of Appealability 26 A certificate of appealability will not issue. See 28 U.S.C. ' 2253(c). This is not a case in 27 which “reasonable jurists would find the district court’s assessment of the constitutional claims 1 CONCLUSION 2 The petition for writ of habeas corpus is DENIED on the merits. The Clerk shall close the 3 file. 4 IT IS SO ORDERED. 5 Dated: October 16, 2020 Site WU tee 6 _ Urerme eeamee SUSAN ILLSTON 7 United States District Judge 8 9 10 11 12

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