(HC) Corona Parra v. Ndoh

• Court: District Court, E.D. California
• Decided: April 20, 2020
• Docket: 1:17-cv-01274
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AUGUSTIN JAMIE CORONA PARRA, Case No. 1:17-cv-01274-AWI-JDP (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR HABEAS CORPUS 13 v. ECF No. 1 14 R. NDOH, 15 Respondent. 16 17 Petitioner Augustin Jamie Corona Parra, a state prisoner proceeding without counsel, 18 seeks a writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. For the following reasons, we 19 recommend denying the petition. 20 Background 21 Petitioner, represented by counsel, pled no contest to one count of making criminal threats 22 and one count of willful infliction of corporal injury, with enhancements for using a deadly or 23 dangerous weapon and inflicting great bodily injury, and two enhancements for prior felony 24 convictions. CT 86-88. Petitioner’s negotiated sentence for his plea was thirteen years and eight 25 months. Id. After he failed to appear at his sentencing, petitioner sought to withdraw his plea and 26 his counsel withdrew. CT 92, 94, 102-108. The trial court held a hearing on the motion, denied 27 petitioner’s motion, and then sentenced him accordingly. CT 134-39, 144-45. 28 1 We set forth below the facts of the underlying offense and circumstances surrounding 2 petitioner’s motion to withdraw, as stated by the California Court of Appeal, Fifth District. A 3 presumption of correctness applies to these facts. See 28 U.S.C. § 2254(e)(1); Crittenden v. 4 Chappell, 804 F.3d 998, 1010-11 (9th Cir. 2015).

5 On July 17, 2014, appellant was arrested for attacking his fiancée, Ms. Gabriela Ruiz. According to a report filed by the Kern County Sheriff's 6 Department, after Ms. Ruiz received a telephone call, appellant accused Ms. Ruiz of cheating on him and assaulted her. In the course of the assault, appellant 7 attacked Ms. Ruiz with a kitchen knife, cutting her right thigh. Appellant also strangled Ms. Ruiz while apologizing for the belief that he would have to murder 8 her. When Ms. Ruiz was able to escape appellant's attack and call for help, appellant fled. 9 Appellant was ultimately charged with assault with a deadly weapon (§ 245, subd. (a)(1)), making criminal threats, willful infliction of corporal injury, 10 and attempted murder (§§ 187, 664), with each count carrying multiple enhancements. These charges carried a minimum potential sentence of 29 years. 11 In addition, appellant faced an alleged parole violation based on the same conduct. Appellant retained Jessie Whitten as counsel to represent him. 12 On October 8, appellant pleaded no contest to counts 2 and 3, and admitted his pending parole violation. In exchange, appellant was promised a 13-year 13 sentence on counts 2 and 3, a consecutive 8-month sentence on the parole violation, and dismissal of all remaining charges. The trial court engaged in a plea 14 colloquy for both the charges in this case and the related probation violation. When the trial court recounted the plea agreement and asked appellant if the 15 agreement was correctly stated and in line with his understanding, appellant responded “Yes, ma’am.” When asked if he understood that the great bodily 16 injury allegation meant he would be required to serve 85 percent of his sentence, appellant responded “Yes, your Honor.” Appellant further confirmed he had 17 reviewed with his attorney the rights identified in the written “Waiver of Rights” form he had signed, stated he understood those rights “Perfectly,” and, when asked 18 if he had any questions, sought to confirm that his guilty plea would also resolve his probation violation. The trial court accepted appellant’s plea and, after a 19 discussion with appellant, sent him to “the fifth floor” to conduct an interview with the probation department. 20 The subsequent probation officer’s report contained a personal history “obtained from the defendant” which included a notation on alcohol and drug use 21 stating appellant “denied any prior use of alcohol and/or illegal narcotics.” With respect to appellant’s self-reporting on his health and disabilities, appellant 22 “indicated he is currently taking medication for anxiety and ADHD.” Appellant denied culpability for the crimes he had pleaded no contest to and declined to 23 provide a written or verbal statement on them. Appellant failed to appear for his initial sentencing hearing on December 3. 24 After appellant had been detained on a no-bail warrant, Mr. Whitten informed the court that appellant wished to withdraw his plea and, due to that request, Mr. 25 Whitten needed to withdraw from the representation. Appellant was assigned a public defender and filed a motion to withdraw his plea. 26 The trial court held a hearing to take evidence on appellant’s motion. At that hearing, appellant testified he had been taking Adderall and Xanax since early 27 2010. Having no insurance, appellant paid for his prescriptions in cash and sometimes found himself without adequate funds to purchase his medicine, leading 28 him to abruptly stop using them. Appellant claimed one of these medication 1 stoppages occurred around the time he pleaded nolo contendere. Appellant further claimed Mr. Whitten was fully aware of his medical issues, but took no action to 2 investigate their potential effect on the charges against him. Appellant explained that he filled a prescription for 60 Xanax pills on 3 September 17, with orders to take two per day. According to appellant, he began taking an additional pill each day around September 23 due to the stress of his 4 legal proceedings, and ran out of medication by October 5. This lack of medicine caused appellant to be irrational and confused at his plea hearing on October 8, 5 such that he claimed to be having auditory hallucinations during the hearing and was unable to recall the proceedings or the following probation interview with any 6 real specificity. On October 11, appellant allegedly suffered a seizure which was witnessed 7 by Ms. Ruiz. He went to the hospital the next day and was given additional Xanax medication. The parties stipulated that the abrupt stoppage of Xanax can lead to 8 an increased potential for seizures and that Adderall lowers a person’s threshold for seizures. 9 Ms. Ruiz testified on appellant’s behalf. Ms. Ruiz asserted she had spoken to Mr. Whitten multiple times about appellant’s mental issues, which she described 10 as “a lot of depression.” These discussions had occurred in both April, as a result of a separate incident where appellant allegedly attacked Ms. Ruiz, and July, 11 following the current attack. Ms. Ruiz claimed she told Mr. Whitten that appellant attacked her because he was off of his medications. However, she later admitted 12 that appellant was also drunk when he attacked her. Mr. Whitten also testified. A lawyer with ten years of criminal defense 13 experience, Mr. Whitten explained he had spent several hours discussing the present case with appellant. Mr. Whitten had also represented appellant in a prior 14 matter from around April 2014 during which he spent another four hours or so discussing legal issues with appellant. Mr. Whitten testified that appellant never 15 mentioned mental health issues in those discussions, instead blaming all of his issues on drinking, and that appellant fully denied all of the charges. Mr. Whitten 16 further testified that he had spoken to Ms. Ruiz a couple of times, but that she had not mentioned mental health as an issue, other than a general reference to 17 emotional problems. Mr. Whitten confirmed, however, that he had seen, prior to the plea agreement, at least one notation in a police report indicating Ms. Ruiz had 18 told the police about appellant’s use of medication. At no point during any of his discussions with appellant, including the time 19 they spent discussing the present plea, did Mr. Whitten feel appellant was mentally unstable or incapable of understanding the proceedings. At most, Mr. Whitten 20 thought appellant was slightly agitated, which he attributed to appellant being in the stressful position of having to decide whether or not to accept the offered plea 21 deal. Mr. Whitten admitted that, based on his observations and discussions, he did not review appellant’s medical history, did not discuss the possibility of a not 22 guilty by reason of insanity plea, did not consider retaining a psychologist or psychiatrist, did not refer appellant to a mental health professional, and never had a 23 reason to believe appellant’s sanity was an issue. Following the testimony and argument, the trial court denied appellant’s 24 motion to withdraw his plea. Relying on the court’s own impressions of its colloquy with appellant, which the court described as “a lucid conversation 25 regarding what was happening” where appellant “clearly understood what he was doing,” the court found no indication that appellant’s “stoppage of his medications, 26 if that actually occurred, led to any confusion on the date he entered the plea.” While the court concluded appellant did suffer a seizure on October 11, it found 27 this incident “did not affect what he did on October 8.” The court then further found that nothing in the record indicated Mr. Whitten should have investigated a 28 1 not guilty by reason of insanity defense and concluded Mr. Whitten had done “a thorough and competent job in representing” appellant. 2 3 People v. Parra, 2016 Cal. App. Unpub. LEXIS 5857, at *1-8 (Aug. 10, 2016). 4 Discussion 5 Here, petitioner raises four habeas claims: (1) trial court erred by denying his motion to 6 withdraw his plea; (2) ineffective assistance of trial counsel; (3) ineffective assistance of appellate 7 counsel; and (4) appellate court erred by refusing to permit supplemental pro se briefing. ECF 8 No. 1 at 5-6. The Court of Appeal rejected the first two claims on the merits in a reasoned 9 opinion. Petitioner raised the third and fourth claims on appeal. The California Supreme Court 10 summarily denied review on all four claims. Petitioner raised all four claims in his state habeas 11 petition that was denied by the Court of Appeal and California Supreme Court. 12 Legal Standard 13 A federal court may grant habeas relief when a petitioner shows that his custody violates 14 federal law. See 28 U.S.C. §§ 2241(a), (c)(3), 2254(a); Williams v. Taylor, 529 U.S. 362, 374-75 15 (2000). Section 2254 of Title 28, as amended by the Antiterrorism and Effective Death Penalty 16 Act of 1996 (“AEDPA”), governs a state prisoner’s habeas petition. See 28 U.S.C. § 2254; 17 Harrington v. Richter, 562 U.S. 86, 97 (2011). To decide a § 2254 petition, a federal court 18 examines the decision of the last state court that issued a reasoned opinion on petitioner’s habeas 19 claims. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). 20 When a state court has adjudicated a petitioner’s claims on the merits, a federal court 21 reviews the state court’s decision under the deferential standard of § 2254(d). Section 2254(d) 22 precludes a federal court from granting habeas relief unless a state court’s decision is (1) contrary 23 to clearly established federal law, (2) a result of an unreasonable application of such law, or 24 (3) based on an unreasonable determination of facts. See § 2254(d); Murray v. Schriro, 882 F.3d 25 778, 801 (9th Cir. 2018). A state court’s decision is contrary to clearly established federal law if 26 it reaches a conclusion “opposite to” a holding of the United States Supreme Court or a 27 conclusion that differs from the Supreme Court’s precedent on “materially indistinguishable 28 facts.” Soto v. Ryan, 760 F.3d 947, 957 (9th Cir. 2014) (citation omitted). The state court’s 1 decision unreasonably applies clearly established federal law when the decision has “no 2 reasonable basis.” Cullen v. Pinholster, 563 U.S. 170, 188 (2011). An unreasonable 3 determination of facts occurs when a federal court is “convinced that an appellate panel, applying 4 the normal standards of appellate review, could not reasonably conclude that the finding is 5 supported by the record.” Loher v. Thomas, 825 F.3d 1103, 1112 (9th Cir. 2016). A federal 6 habeas court has an obligation to consider arguments or theories that “could have supported a 7 state court’s decision.” See Sexton v. Beaudreaux, 138 S. Ct. 2555, 2557 (2018) (quoting 8 Harrington v. Richter, 562 U.S. 86, 102 (2011)). One rule applies to all state prisoners’ petitions 9 adjudicated on the merits: the petitioner must show that the state court’s decision is “so lacking in 10 justification that there was an error well understood and comprehended in existing law beyond 11 any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. 12 Even when a state court does not explicitly address a petitioner’s claims on the merits, a 13 § 2254 petitioner must satisfy a demanding standard to obtain habeas relief. When a state court 14 gives no reason for denying a petitioner’s habeas claim, a rebuttable presumption arises that the 15 state court adjudicated the claim on the merits under § 2254(d). See Richter, 562 U.S. at 99. And 16 a federal habeas court’s obligation to consider arguments or theories that could support a state 17 court’s decision extends to state-court decisions that offer no reasoning at all. See Sexton, 138 S. 18 Ct. at 2557. 19 If obtaining habeas relief under § 2254 is difficult, “that is because it was meant to be.” 20 Richter, 562 U.S. at 102. As the Supreme Court has put it, federal habeas review “disturbs the 21 State’s significant interest in repose for concluded litigation, denies society the right to punish 22 some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises 23 of federal judicial authority.” Id. at 103 (citation omitted). Our habeas review authority serves as 24 a “guard against extreme malfunctions in the state criminal justice systems, not a substitute for 25 ordinary error correction through appeal.” Id. at 102-03 (emphasis added). 26 As petitioner has entered a plea, his habeas review is limited in scope. Generally, a 27 petitioner may not collaterally attack alleged pre-plea constitutional violations if he enters a 28 voluntary and intelligent guilty plea. See Tollett v. Henderson, 411 U.S. 258, 265-67 (1973); 1 Journigan v. Duffy, 552 F.2d 283, 287 (9th Cir. 1977). A petitioner may challenge the voluntary 2 and intelligent character of the guilty plea or counsel’s ineffectiveness in advising the petitioner 3 to enter a plea. See Tollett, 411 U.S. at 267; Journigan, 552 F.2d at 287 n.6. In addition, a guilty 4 plea will not bar the petitioner from raising claims that challenge the state’s power to bring the 5 petitioner into court or that are entirely independent of the question of factual guilt. See, e.g., 6 Menna v. New York, 423 U.S. 61, 62 (1975) (per curiam) (raising double jeopardy claim on direct 7 appeal); Blackledge v. Perry, 417 U.S. 21, 30-31 (1974) (raising claim of vindictive prosecution); 8 Journigan, 552 F.2d at 288-89 (challenging an allegedly unconstitutional statute). 9 Plea Withdrawal 10 Plaintiff’s first ground for relief is that the trial court erred by denying his motion to 11 withdraw his no contest plea. Due process requires a guilty plea to be voluntarily and 12 intelligently made, with sufficient awareness of the relevant circumstances and likely 13 consequences of the waiver of certain fundamental constitutional rights. See Parke v. Raley, 506 14 U.S. 20, 29 (1992). A petitioner seeking to repudiate his representations at a plea hearing faces a 15 heavy burden. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (“[T]he representations of the 16 [petitioner], his lawyer, and the prosecutor at such a hearing, as well as any findings made by the 17 judge accepting the plea, constitute a formidable barrier in any subsequent collateral 18 proceedings.”). 19 The record contains abundant evidence that petitioner made his no contest plea voluntarily 20 and intelligently, with an understanding of the consequences. The trial court engaged in a 21 substantial colloquy with petitioner to establish that the plea was voluntary and intelligent. CT 22 116-24; RT 2-9. The trial court conducted a hearing on petitoner’s motion to withdraw and heard 23 testimony from multiple witnesses before denying the motion in a reasoned opinion. RT 14-96. 24 The Court of Appeal reasonably found that petitioner’s no contest plea was knowingly and 25 intelligently made because the record supported the trial court’s conclusion that appellant was not 26 suffering from withdrawal symptoms when he entered the plea. Parra, 2016 Cal. App. Unpub. 27 LEXIS 5857, at *10-11. 28 1 Accordingly, the state court’s rejection of the claims in ground one was not contrary to or 2 an unreasonable application of clearly established federal law as set forth by the United States 3 Supreme Court and did not rest on an unreasonable determination of the facts in light of the 4 evidence. 28 U.S.C. § 2254(d). Ground one does not warrant federal habeas relief. 5 Ineffective Assistance of Counsel 6 Petitioner contends in ground two that he received ineffective assistance of trial counsel 7 when he entered his plea because his counsel had failed to investigate the potential of an insanity 8 defense. Petitioner contends in ground three that he received ineffective assistance of appellate 9 counsel because counsel refused to file a supplemental pro se brief prepared by petitioner. 10 A doubly deferential standard governs a federal habeas petitioner’s claim of ineffective 11 assistance of counsel. On direct appeal, the two-step inquiry from Strickland v. Washington 12 guides the analysis for an ineffective-assistance-of-counsel claim. See 466 U.S. 668, 687 (1984). 13 First, a criminal defendant must show some deficiency in performance by counsel that is “so 14 serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth 15 Amendment.” Id. Second, the defendant must show that the deficient performance caused him 16 prejudice; this requires him to show “that counsel’s errors were so serious as to deprive [the 17 petitioner] of a fair trial.” Id. On habeas review, coupled with Section 2254(d)’s fairminded- 18 jurist standard, the Strickland requirements become even more deferential: The question is 19 “whether there is any reasonable argument that counsel satisfied Strickland’s deferential 20 standard.” Richter, 562 U.S. at 105 (emphasis added). That is, if there is even one reasonable 21 argument that counsel did not violate the Strickland standard—even if the state court has not 22 identified the argument—then the petitioner cannot obtain habeas relief. See id. at 106. 23 Here, petitioner has failed to satisfy the daunting Strickland requirements on habeas 24 review. Neither of the two alleged errors—failure to investigate an insanity defense and refusal 25 to file a supplemental brief on appeal—satisfies the first prong of Strickland, deficient 26 performance. As the Court of Appeal explained, “there was nothing in the record to indicate the 27 need to investigate an insanity defense.” Parra, 2016 Cal. App. Unpub. LEXIS 5857, at *13. 28 Thus, trial counsel’s non-investigation of such a defense was not deficient performance. 1 Petitioner’s appellate counsel refused to file petitioner’s supplemental brief because petitioner 2 was attempting to introduce new evidence on appeal, which is not permitted. ECF No. 1 at 86. 3 Appellate counsel’s performance was not deficient for failing to file a brief that would only have 4 served to waste the court’s time and not have any impact on petitioner’s conviction or sentence. 5 Thus, grounds two and three do not warrant federal habeas relief. 6 State policy against represented parties filing briefs in pro per 7 Petitioner’s fourth ground for relief challenges the California courts’ policy of denying 8 represented appellants in criminal cases the opportunity to file briefs in pro per in addition to 9 briefs filed by their counsel. Petitioner may feel that this policy is wrong, but such a policy 10 objection is not cognizable in a habeas context. Clearly established federal law holds that there is 11 no federal “constitutional right to self-representation on direct appeal from a criminal conviction.” 12 Martinez v. Court of Appeal of Cal., 528 U.S. 152, 163 (2000). Thus, petitioner’s fourth ground 13 does not warrant habeas relief. 14 Certificate of Appealability 15 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 16 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 17 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases 18 requires a district court to issue or deny a certificate of appealability when entering a final order 19 adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 20 1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes 21 “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This 22 standard requires the petitioner to show that “jurists of reason could disagree with the district 23 court’s resolution of his constitutional claims or that jurists could conclude the issues presented 24 are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord 25 Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial 26 showing of the denial of a constitutional right. Thus, we recommend that the court decline to 27 issue a certificate of appealability. 28 wOoOe 4:4 FOUN VLEET VERA MVOC CO POO ee OY VI

1 | Findings and Recommendations 2 The court should deny the petition for a writ of habeas corpus, ECF No. 1, and decline to 3 | issue a certificate of appealability. These findings and recommendations are submitted to the 4 | U.S. District Court judge presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of 5 | the Local Rules of Practice for the United States District Court, Eastern District of California. 6 | Within thirty days of the service of the findings and recommendations, the parties may file 7 | written objections to the findings and recommendations with the court and serve a copy on all 8 | parties. That document must be captioned “Objections to Magistrate Judge’s Findings and 9 | Recommendations.” The district judge will then review the findings and recommendations under 10 | 28 U.S.C. § 636(b)(1)(C). 11 IT IS SO ORDERED. Pp □ \ prssanp Rae — Dated: _ April 20, 2020 14 UNIT#D STATES MAGISTRATE JUDGE 15 16 | No. 204. 17 18 19 20 21 22 23 24 25 26 27 28