(HC) Mendoza v. Cate

• Court: District Court, E.D. California
• Decided: January 11, 2021
• Docket: 2:09-cv-01710
• Status: Unknown

Opinion

1 2

6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ARQUIMEDES MENDOZA, No. 2:09-cv-1710 MCE DB P 11 Petitioner, 12 v. FINDINGS AND RECOMMENDATIONS 13 MATTHEW CATE, 14 Respondent. 15

16 Petitioner is a state prisoner proceeding through counsel with a petition for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2004 judgment of conviction 18 for rape of an intoxicated person in violation of California Penal Code § 261(a)(3), which was 19 20 entered in the San Joaquin County Superior Court pursuant to his guilty plea. Petitioner raises 21 two grounds for federal habeas relief: (1) ineffective assistance of counsel in the negotiation and 22 entry of his guilty plea based on counsel’s misrepresentation that the conviction to which he was 23 pleading guilty was not a “strike” under California’s Three Strikes Law; and (2) ineffective 24 assistance of counsel in failing to investigate and challenge the validity of the prosecutor’s DNA 25 evidence.1 26 27 1 Petitioner also presents what he claims is a third ground for relief (see Pet. at 10-11), but which 28 is instead merely a repackaging of grounds one and two, as discussed infra. 1 Previously, the undersigned issued findings and recommendations to grant Petitioner’s 2 petition as to the first ground for relief and reserved consideration of the second ground for relief. 3 (ECF No. 116.) The Honorable Morrison C. England, Jr. has since declined to adopt the findings 4 and recommendations and referred the matter back for consideration of Petitioner’s second 5 ground for relief. (ECF No. 126.) These supplemental findings and recommendations now follow. 6 7 I. Relevant Procedural History 8 A. Petitioner’s State Conviction 9 On July 31, 2003, a complaint was filed in the San Joaquin County Superior Court 10 charging petitioner with violating California Penal Code § 261(a)(3), sexual intercourse with a 11 person prevented from resisting by virtue of intoxication, for conduct occurring on July 17, 1999. 12 (Resp.’t’s Lod. Doc. 11.) An arrest warrant was issued, and petitioner was arrested on or around 13 September 8, 2003. (Resp’t’s Lod. Doc. entitled “Clerk’s Transcript” (“CT”) at consecutive pages 14 15 pgs. 42-44.) Petitioner entered a plea of not guilty. (See id.) 16 On October 1, 2003, an information was filed charging petitioner with four counts: (1) one 17 count of rape of an intoxicated person in violation California Penal Code § 261(a)(3), (2) one 18 count of unlawful intercourse with a minor three years younger in violation of California Penal 19 Code § 261.5(c), and (3) two counts of resisting arrest in violation of California Penal Code § 20 148. (Resp.’t’s Lod. Doc. 12.) 21 On October 8, 2003, a preliminary hearing was held where witness testimony was taken. 22 23 (Resp.’t’s Lod. Doc. 2 Ex. B.) 24 On May 3, 2004, petitioner entered into a plea deal and plead guilty to one count of 25 violating § 261(a)(3). Resp.t’s Lod. Doc. 1. All other charges were dismissed, and petitioner was 26 sentenced to 3 years with credit for time served.2 Id. 27

28 2 Petitioner has since been released from custody. Following this release, he was deported to 1 B. Petitioner’s Federal Habeas Petition 2 Petitioner filed the pending habeas petition on June 22, 2009. Respondent filed an answer 3 on January 23, 2012, and petitioner filed a traverse on February 24, 2012. 4 On August 1, 2012, the previously-assigned magistrate judge appointed counsel for 5 petitioner. Following this appointment, petitioner filed a motion for discovery and/or expansion 6 7 of the record. At the October 25, 2013, hearing on that motion, counsel for petitioner stated that 8 he was also seeking an evidentiary hearing on his claim of ineffective assistance of counsel 9 during the plea bargain process in state court. 10 By order dated January 27, 2014, petitioner’s motion was granted only as to the 11 evidentiary hearing, which was set for April 21, 2014. (ECF No. 61.) That hearing date was then 12 vacated on respondent’s request pending the filing and disposition of a motion to dismiss. (ECF 13 Nos. 70, 72.) On April 21, 2014, respondent filed a motion to dismiss, which was ultimately 14 15 denied on March 11, 2015. (ECF Nos. 73, 79, 84.) 16 Following resolution of respondent’s motion to dismiss, the evidentiary hearing was 17 rescheduled and then continued multiple times. It was ultimately vacated entirely on February 24, 18 2017. (ECF No. 108.) On November 14, 2017, the Court3 issued findings and recommendations 19 to grant petitioner’s petition as to the first ground for relief. (ECF No. 116.) On August 11, 2020, 20 Judge England declined to adopt those findings and recommendations, referring the matter back 21 to the undersigned for consideration of petitioner’s second ground for relief. 22 23 //// 24 //// 25 //// 26 27 Mexico where he now resides permanently. 28 3 This case was reassigned to the undersigned on August 2, 2016. (ECF No. 101.) 1 II. Petitioner’s Claims of Ineffective Assistance of Counsel

2 In his second ground for relief, petitioner contends that his attorney failed to properly 3 investigate and challenge the prosecution’s DNA analysis, which was the only direct evidence 4 outside of petitioner’s guilty plea to support his conviction. 5 6 The only reasoned decision issued as to this claim is from the San Joaquin County 7 Superior Court,4 which denied it as follows: 8 The record reflects that defense counsel stipulated to the admission 9 of evidence which showed that the DNA sample taken from Petitioner matched a semen swab taken from the victim on the date 10 of the offense. The stipulation was for purposes of the preliminary hearing only. Later in the hearing, defense counsel offered an 11 explanation for how his semen could be found in the victim’s vagina which did not implicate him in the rape. 12 The record, thus, does not establish ineffective assistance, but rather, 13 a strategic decision by defense counsel. The failure of defense counsel to challenge the DNA evidence at the preliminary hearing 14 does not establish or otherwise raise an inference of incompetence. 15 Accordingly, IT IS HEREBY ORDERED that the petition for habeas corpus is denied as to this ground because Petitioner has failed to 16 make a prima facie case showing as to this issue. In re Bower (1985) 38 C.3d 865, 872. 17 18 (Resp.’t’s Lod. Doc. 5 at 2.) 19 “The Sixth Amendment guarantees criminal defendants the effective assistance of 20 counsel.” Yarborough v. Gentry, 540 U.S. 1, 4 (2003) (per curiam); see also Missouri v. Frye, 21 566 U.S. 134, 138 (2012) (“The right to counsel is the right to effective assistance of counsel.”). 22 23 Prevailing on an ineffective assistance of trial counsel claim requires demonstrating both (1) that 24 counsel’s performance was deficient and (2) that the deficient performance prejudiced the 25 26

27 4 See Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007) (“On habeas review, we look through unexplained state-court decisions leaving, in effect, the denial of post-conviction relief to the last 28 reasoned state-court decision to address the claim at issue.”). 1 defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Cullen v. Pinholster, 563 2 U.S. 170, 189 (2011) (Strickland standard is clearly established federal law). 3 “To establish deficient performance, a person challenging a conviction must show that 4 ‘counsel's representation fell below an objective standard of reasonableness.’” Harrington v. 5 Richter, 562 U.S. 86, 104 (2011) (citation omitted); Premo v. Moore, 562 U.S. 115, 121 (2011); 6 7 see Strickland, 466 U.S. at 690 (the Court must “determine whether, in light of all the 8 circumstances, the identified acts or omissions were outside the range of professionally competent 9 assistance.”). A petitioner must overcome a “strong presumption” that his lawyer “rendered 10 adequate assistance and made all significant decisions in the exercise of reasonable professional 11 judgment.” Id. 12 Prejudice “focuses on the question whether counsel’s deficient performance renders the 13 results of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 14 15 U.S. 364, 372 (1993); Williams v. Taylor, 529 U.S. 362, 393 n.17 (2000). That is, a petitioner 16 must establish there is a “reasonable probability that, but for counsel’s unprofessional errors, the 17 result of the proceeding would have been different,” Strickland, 466 U.S. at 694; Pinholster, 563 18 U.S. at 189, and “[t]he likelihood of a different result must be substantial, not just conceivable.” 19 Richter, 562 U.S. at 112. Thus, counsel’s errors must be “so serious as to deprive the defendant of 20 a fair trial whose result is reliable.” Strickland, 466 U.S. at 687. A petitioner bears the burden of 21 establishing both components. Williams, 529 U.S. at 390-91. However, the Court need not 22 23 determine whether counsel’s performance was deficient before examining the prejudice the 24 alleged deficiencies caused Petitioner. See Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000) (“If 25 it is easier to dispose of the ineffectiveness claim on the ground of lack of sufficient prejudice ... 26 that course should be followed.”) (quoting Strickland, 466 U.S. at 697). 27 28 1 “Finally, even if [a petitioner] can satisfy both of those prongs, the AEDPA requires that a 2 federal court find the state court’s contrary conclusions are objectively unreasonable before 3 granting habeas relief.” Woods v. Sinclair, 764 F.3d 1109, 1132 (9th Cir. 2014) (citing Schriro v. 4 Landrigan, 550 U.S. 465, 473 (2007)). 5 Plaintiff’s second ground for relief fails because he has not shown that defense counsel’s 6 7 performance was constitutionally deficient. By way of background, the Court reproduces here the 8 exchange that occurred at the October 8, 2003, preliminary hearing prior to the introduction of 9 DNA evidence: 10 [Petitioner’s counsel]: Your Honor, at this time I think this witness 11 is going to testify to some hearsay testimony that he received from an expert witness as to the results of DNA that had been taken from 12 my client, Mr. Arquimedes, and a vaginal swab that had been taken from the alleged victim who testified earlier. Counsel and I have 13 decided since this testimony is going to be by way of 115, that we would enter into a stipulation as to that and the stipulation would be 14 … 15 [Prosecutor]: I made an agreement that the stipulation would indicate that a DNA sample taken from this defendant matched a semen swab 16 taken from the victim in this case, Rachael, on the date in question, July 17th, 1999. 17 The Court: For purposes of preliminary hearing only? 18 [Petitioner’s counsel]: Clearly for only the preliminary hearing. 19 The Court: Is that agreeable? 20 [Petitioner’s counsel]: Yes. 21

22 (Resp.’t’s Lod. Doc. 7, Ex. B.) Petitioner contends that counsel provided ineffective assistance 23 when he stipulated to the DNA evidence. But as the state court noted, counsel’s decision was 24 plainly a strategic decision made in the context of the preliminary hearing only. In fact, at the 25 26 same hearing, counsel highlighted the defense’s theory of the DNA hit, suggesting that Petitioner 27 masturbated while sitting on the ground and that the real perpetrator, who was sitting next to 28 1 Petitioner, somehow came into contact with Petitioner’s semen, which he then transferred to the 2 victim. (See id.) None of these facts support a finding that trial counsel’s performance was 3 constitutionally deficient as opposed to merely a strategic decision made within a limited context. 4 Counsel’s subsequent decision to forego challenging the DNA evidence before advising 5 plaintiff to accept a plea deal does not alter this conclusion. In fact, “strict adherence to the 6 7 Strickland standard [is] all the more essential when reviewing the choices an attorney made at the 8 plea bargain stage.” Premo, 562 U.S. at 125. As the Supreme Court noted in Premo, 9 Acknowledging guilt and accepting responsibility by an early plea 10 respond to certain basic premises in the law and its function. Those principles are eroded if a guilty plea is too easily set aside based on 11 facts and circumstances not apparent to a competent attorney when actions and advice leading to the plea took place. Plea bargains are 12 the result of complex negotiations suffused with uncertainty, and defense attorneys must make careful strategic choices in balancing 13 opportunities and risks. The opportunities, of course, include pleading to a lesser charge and obtaining a lesser sentence, as 14 compared with what might be the outcome not only at trial but also from a later plea offer if the case grows stronger and prosecutors find 15 stiffened resolve. A risk, in addition to the obvious one of losing the chance for a defense verdict, is that an early plea bargain might come 16 before the prosecution finds its case is getting weaker, not stronger. The State's case can begin to fall apart as stories change, witnesses 17 become unavailable, and new suspects are identified.

18 Id. at 124-25. 19 20 Here, the record reveals that Petitioner was arrested on felony charges for violation of 21 Penal Code § 261(a)(3), Rape: Victim Drugged. (Resp.’t’s Lod. Doc. 12.) After the preliminary 22 hearing, Petitioner was facing three more charges: one count for violation of Penal Code § 23 261.5(C), Unlawful Intercourse w/ Minor 3 Years Younger, and two counts for Violation of Penal 24 Code § 148, Resisting, Delaying, or Obstructing a Police Officer. (Resp.’t’s Lod. Doc. 12.) 25 Because these additional charges would have suggested to counsel that the prosecutor’s case was 26 27 growing stronger, counsel apparently “ma[d]e careful strategic choices in balancing opportunities 28 and risks” when he decided to forego challenging the DNA evidence and instead advised 1 Petitioner to enter into a plea deal and plead guilty to one count of violating § 261(a)(3). 2 (Resp.’t’s Lod. Doc. 1.) As a result of the plea negotiations, the three extra charges were 3 dismissed, and Petitioner was sentenced to 3 years minus time served. (See id.) Counsel’s 4 decision, which limited Petitioner’s criminal exposure, should not be second guessed by the court. 5 See Premo, 562 U.S. at 132 (“Hindsight and second guesses are also inappropriate, and often 6 7 more so, where a plea has been entered without a full trial....”). 8 As noted, Petitioner also asserts an amalgamation of grounds one and two in his third 9 ground for relief. He contends that counsel’s failure to challenge the DNA analysis (as asserted in 10 ground two), together with his failures during the plea bargain process (as asserted in ground 11 one), left Petitioner with a second serious felony or “strike” conviction, a conclusion that could 12 have been avoided had Petitioner proceeded to trial. This claim was first presented to the 13 California Court of Appeal on habeas review, which summarily denied it on January 29, 2009. 14 15 (Resp.’t’s Lod. Docs 4-5.) The California Supreme Court also summarily denied this claim on 16 April 22, 2009. (Resp.’t’s Lod. Doc. 7.) This claim was therefore not addressed in a reasoned 17 decision by any state court below. Because the state court’s decision was “unaccompanied by an 18 explanation” of its reasoning, AEDPA requires the Court to perform an “independent review of 19 the record” to determine “whether the state court’s decision was objectively unreasonable.” 20 Harrington v Richter, 562 U.S. 86, 98 (2011). When the state court does not explain the basis for 21 its rejection of a prisoner’s claim, a federal habeas court “must determine what arguments or 22 23 theories [ ] could have supported the state court’s decision” in evaluating its reasonableness. Id. at 24 102. 25 Petitioner’s third ground for relief is substantively indistinguishable from grounds one and 26 two. Therefore, for the reasons set forth in these Findings & Recommendations recommending 27 the denial of Petitioner’s second ground for relief and for the reasons set forth in the district 28 1 | court’s August 11, 2020, order denying Petitioner habeas relief on his first ground, the Court 2 | concludes that Petitioner has not shown in his third ground for relief that counsel’s conduct was 3 constitutionally deficient warranting reversal of his plea. 4 Accordingly, the Court concludes that the California Supreme Court’s rejection of 5 6 Petitioner’s ineffective assistance of trial counsel claims were neither contrary to, nor an 7 | unreasonable application of, clearly established federal law. 8 | I. Conclusion 9 For the foregoing reasons, IT IS RECOMMENDED that petitioner’s petition for a writ of 10 . habeas corpus be denied. 11 These findings and recommendations will be submitted to the United States District Judge 12 B assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty days after

14 being served with these findings and recommendations, any party may file written objections with 15 | the court and serve a copy on all parties. The document should be captioned “Objections to 16 | Magistrate Judge's Findings and Recommendations.” Any response to the objections shall be 17 | filed and served within seven days after service of the objections. The parties are advised that 18 failure to file objections within the specified time may result in waiver of the right to appeal the 19 district court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). In the objections, the 20 > parties may address whether a certificate of appealability should issue in the event an appeal of the judgment in this case is filed. See Rule 11, Rules Governing § 2254 Cases (the district court 23 | must issue or deny a certificate of appealability when it enters a final order adverse to the 24 | applicant). 25 . Dated: January 8, 2021 26 27 28 ORAH BARNES UNITED STATES MAGISTRATE JUDGE

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