(HC) Scott v. Fox

Opinion

1 2 3 4 5 6 7 10 11 MICHAEL LADONTE SCOTT, No. 2:18-cv-2687 TLN KJN P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 Petitioner is a state prisoner, proceeding pro se and in forma pauperis. Petitioner 18 challenges his 2012 conviction for kidnapping and forcible sexual offenses with use of a weapon. 19 Petitioner claims that he suffered the ineffective assistance of counsel, and was misadvised by the 20 trial court concerning the sex offender registration requirement. After careful review of the 21 record, this court concludes that the petition should be denied. 22 I. Facts and Procedural History 23 1. On September 4, 2010, as amended on November 4, 2010, the Sacramento County 24 District Attorney filed a felony complaint charging petitioner with kidnapping and eight other 25 felony counts, including corporal injury to a former cohabitant. People v. Scott, No. 10F05927 26 (Superior Ct. Sacramento Co. Cal.). (ECF No. 58-3 at 122-28.) 27 2. On September 17, 2010, petitioner was arraigned. (ECF No. 58-1.) Defense counsel 28 requested a continuance on October 4, 2010, to “address discovery issues.” (ECF No. 58-2.) Jury 1 trial was set for November 30, 2010. (Id.) 2 3. Petitioner contends he and the victim were not present in court on November 30, 2010 3 (ECF No. 1), which respondent does not dispute (ECF No. 57 at 10). 4 4. Defense counsel requested that the matter trail until December 6, 2010, because both 5 sides needed time to prepare. (ECF No. 1 at 8.) Proceedings continued to be delayed over the 6 next year for different reasons, including evaluations to determine whether petitioner was 7 competent to stand trial.1 (See, e.g., ECF No. 58-3 at 50-62.) 8 5. On January 3, 2012, jury trial began. (ECF No. 58-4.) 9 6. During petitioner’s jury trial, petitioner opted to change his plea.2 (ECF No. 58-5 at 2.) 10 On January 17, 2012, in Sacramento County Superior Court, petitioner pleaded guilty to spousal 11 abuse, kidnapping, assault with a deadly weapon, oral copulation by force, forcible rape, and 12 sodomy by force, with two enhancements. (ECF No. 17-1.) On March 23, 2012, petitioner was 13 sentenced to 35-years in state prison. (Id.) 14 7. Petitioner did not file an appeal. On December 14, 2018, the California Court of 15 Appeal for the Third Appellate District denied petitioner’s request for permission to file a notice 16 of appeal under the constructive filing doctrine. (ECF No. 17-3.) 17 8. Petitioner filed six pro se state post-conviction challenges. (ECF Nos. 17-2, 17-4, 17- 18 6, 17-8, 17-10, & 17-12.) 19 9. On October 19, 2017, the Sacramento County Superior Court denied the petition for 20 writ of habeas corpus in a reasoned decision. (ECF No. 17-5.) 21 10. On November 1, 2017, the Court of Appeal for the State of California, Third 22 Appellate District, denied the petition for writ of habeas corpus without comment. (ECF No. 17- 23 7.) 24 1 The Speedy Trial Act is tolled during mental competency proceedings. Rule 4.130(c)(3), Cal. 25 R. Court. On April 22, 2011, the court found petitioner competent to stand trial. (ECF No. 58-3 at 52.) 26

27 2 At the subsequent change of plea hearing, defense counsel advised the court that petitioner was “taking some psychotropic medication, however in [counsel’s] opinion it has not affected his 28 ability to make this decision today.” (ECF No. 66 at 65.) Petitioner so confirmed. (Id.) 1 11. On December 21, 2017, the Court of Appeal for the State of California, Third 2 Appellate District, denied the petition for writ of habeas corpus without comment. (ECF No. 17- 3 9.) 4 12. On April 11, 2018, the California Supreme Court, sitting en banc, denied the petition 5 for writ of habeas corpus citing In re Robbins, 18 Cal. 4th 770, 780 (1998) (courts will not 6 entertain habeas corpus claims that are untimely).3 (ECF No. 17-11.) 7 13. Petitioner filed the instant petition on October 1, 2018.4 (ECF No. 1.) Respondent 8 filed an answer (ECF No. 57), and petitioner filed a traverse5 (ECF No. 74). 9 II. Standards for a Writ of Habeas Corpus 10 An application for a writ of habeas corpus by a person in custody under a judgment of a 11 state court can be granted only for violations of the Constitution or laws of the United States. 28 12 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or 13 application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502 14 U.S. 62, 67-68 (1991). 15 Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas 16 corpus relief: 17 3 The California Supreme Court’s case docket sets forth additional citations in support of the 18 denial: In re Clark, 5 Cal. 4th 760, 767-69 (1993) (courts will not entertain habeas corpus claims 19 that are successive). Individual claims are denied, as applicable. (See In re Dixon, 41 Cal.2d 756, 759 (1953) (courts will not entertain habeas corpus claims that could have been, but were 20 not, raised on appeal; In re Miller, 17 Cal.2d 734, 735 (1941) (courts will not entertain habeas claims that are repetitive). (ECF No. 17-13.) 21 4 Respondent previously filed a motion to dismiss on the grounds that this action was filed after 22 the statute of limitations expired, and still contends that the instant petition is untimely. (ECF No. 23 57 at 2.) However, respondent requested to withdraw the motion because resolution of the case on the merits would possibly avoid a complex statute of limitations analysis; the undersigned 24 granted such request. (ECF Nos. 39, 41; see ECF No. 41 at 1, n.1.)

25 5 Petitioner filed multiple traverses in this action, apparently due to his confusion about whether the court received them. (See ECF Nos. 61, 66, 70:2-70, & 74.) Because petitioner noted 26 amending his traverse (ECF No. 72), the undersigned considers the January 6, 2020 traverse as 27 his amended traverse (ECF No. 74). Petitioner refers to previously-filed exhibits (ECF No. 66 at 10-74); therefore, the court directs the Clerk to append copies of such exhibits to the operative 28 traverse to make the record clear going forward. 1 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 2 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - 3 (1) resulted in a decision that was contrary to, or involved an 4 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 5 (2) resulted in a decision that was based on an unreasonable 6 determination of the facts in light of the evidence presented in the State court proceeding. 7 8 28 U.S.C. § 2254(d). 9 For purposes of applying § 2254(d)(1), “clearly established federal law” consists of 10 holdings of the United States Supreme Court at the time of the last reasoned state court decision. 11 Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 132 S. Ct. 12 38, 44-45 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. 13 Taylor, 529 U.S. 362, 412 (2000)). Circuit court precedent “may be persuasive in determining 14 what law is clearly established and whether a state court applied that law unreasonably.” Stanley, 15 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)). However, circuit 16 precedent may not be “used to refine or sharpen a general principle of Supreme Court 17 jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced.” Marshall 18 v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (citing Parker v. Matthews, 132 S. Ct. 2148, 2155 19 (2012) (per curiam)). Nor may it be used to “determine whether a particular rule of law is so 20 widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, 21 be accepted as correct. Id. Further, where courts of appeals have diverged in their treatment of 22 an issue, it cannot be said that there is “clearly established Federal law” governing that issue. 23 Carey v. Musladin, 549 U.S. 70, 77 (2006). 24 A state court decision is “contrary to” clearly established federal law if it applies a rule 25 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court 26 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003). 27 Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the 28 writ if the state court identifies the correct governing legal principle from the Supreme Court’s 1 decisions, but unreasonably applies that principle to the facts of the prisoner’s case. 6 Lockyer v. 2 Andrade, 538 U.S. 63, 75 (2003); Williams v. Taylor, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 3 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ simply 4 because that court concludes in its independent judgment that the relevant state-court decision 5 applied clearly established federal law erroneously or incorrectly. Rather, that application must 6 also be unreasonable.” Williams v. Taylor, 529 U.S. at 411. See also Schriro v. Landrigan, 550 7 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its 8 ‘independent review of the legal question,’ is left with a ‘“firm conviction”‘ that the state court 9 was ‘“erroneous.”‘”). “A state court’s determination that a claim lacks merit precludes federal 10 habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s 11 decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 12 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal 13 court, a state prisoner must show that the state court’s ruling on the claim being presented in 14 federal court was so lacking in justification that there was an error well understood and 15 comprehended in existing law beyond any possibility for fair-minded disagreement.” Richter, 16 562 U.S. at 103. 17 If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing 18 court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford, 19 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) 20 (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of 21 § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by 22 considering de novo the constitutional issues raised.”). 23 The court looks to the last reasoned state court decision as the basis for the state court 24 judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 25 If the last reasoned state court decision adopts or substantially incorporates the reasoning from a 26 6 Under § 2254(d)(2), a state court decision based on a factual determination is not to be 27 overturned on factual grounds unless it is “objectively unreasonable in light of the evidence presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford, 28 384 F.3d 628, 638 (9th Cir. 2004)). 1 previous state court decision, this court may consider both decisions to ascertain the reasoning of 2 the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a 3 federal claim has been presented to a state court and the state court has denied relief, it may be 4 presumed that the state court adjudicated the claim on the merits in the absence of any indication 5 or state-law procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption 6 may be overcome by a showing “there is reason to think some other explanation for the state 7 court’s decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 8 (1991)). Similarly, when a state court decision on petitioner’s claims rejects some claims but 9 does not expressly address a federal claim, a federal habeas court must presume, subject to 10 rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289, 11 (2013) (citing Richter, 562 U.S. at 98). If a state court fails to adjudicate a component of the 12 petitioner’s federal claim, the component is reviewed de novo in federal court. Wiggins v. Smith, 13 539 U.S. 510, 534 (2003). 14 Where the state court reaches a decision on the merits but provides no reasoning to 15 support its conclusion, a federal habeas court independently reviews the record to determine 16 whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. 17 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo 18 review of the constitutional issue, but rather, the only method by which we can determine whether 19 a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no 20 reasoned decision is available, the habeas petitioner still has the burden of “showing there was no 21 reasonable basis for the state court to deny relief.” Richter, 562 U.S. at 98. 22 A summary denial is presumed to be a denial on the merits of the petitioner’s claims. 23 Stancle v. Clay, 692 F.3d 948, 957 & n.3 (9th Cir. 2012). While the federal court cannot analyze 24 just what the state court did when it issued a summary denial, the federal court must review the 25 state court record to determine whether there was any “reasonable basis for the state court to deny 26 relief.” Richter, 562 U.S. at 98. This court “must determine what arguments or theories . . . could 27 have supported the state court’s decision; and then it must ask whether it is possible fairminded 28 jurists could disagree that those arguments or theories are inconsistent with the holding in a prior 1 decision of [the Supreme] Court.” Id. at 101. The petitioner bears “the burden to demonstrate 2 that ‘there was no reasonable basis for the state court to deny relief.’” Walker v. Martel, 709 F.3d 3 925, 939 (9th Cir. 2013) (quoting Richter, 562 U.S. at 98). 4 When it is clear, however, that a state court has not reached the merits of a petitioner’s 5 claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal 6 habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 7 F.3d 1099, 1109 (9th Cir. 2006). 8 III. Governing Legal Principles 9 The Supreme Court has explained that: 10 a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has 11 solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent 12 claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the 13 voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set 14 forth in McMann. 15 Tollett v. Henderson, 411 U.S. 258, 267 (1973), citing McMann v. Richardson, 397 U.S. 759, 771 16 (1970).7 In other words, parties “who voluntarily and intelligently plead[ ] guilty to a criminal 17 charge may not subsequently seek federal habeas corpus relief on the basis of pre-plea 18 constitutional violations.” Hudson v. Moran, 760 F.2d 1027, 1029-30 (9th Cir. 1985). The only 19 challenges left open on federal habeas corpus review concern the (i) voluntary and intelligent 20 character of the plea and (ii) adequacy of the advice of counsel. Womack v. Del Papa, 497 F.3d 21 998, 1002 (9th Cir. 2007) (quoting Hill v. Lockhart, 474 U.S. 52, 56-57 (1985)).8

22 7 Tollett applies with equal force to a no contest plea. Cal. Penal Code § 1016 (“[A] plea of nolo 23 contendere shall be considered the same as a plea of guilty. . . . The legal effect of such a plea, to a crime punishable as a felony, shall be the same as that of a plea of guilty for all purposes.”); see 24 also Ortberg v. Moody, 961 F.2d 135, 137-38 (9th Cir. 1992) (applying Tollett to no contest plea). Accordingly, federal constitutional principles governing guilty pleas apply to petitioner’s 25 claims in the instant action. Miller v. McCarthy, 607 F.2d 854, 856 (1979).

26 8 There are exceptions to this general bar. For example, a defendant who pleads guilty may raise 27 in habeas corpus proceedings a double jeopardy claim and may challenge the court’s jurisdiction. See Haring v. Prosise, 462 U.S. 306, 320 (1983), citing Blackledge v. Perry, 417 U.S. 21, 30 28 (1974), and Menna v. New York, 423 U.S. 61 (1975). No exception applies here. 1 To establish a constitutional violation based on ineffective assistance of counsel, a 2 petitioner must show (1) that counsel’s representation fell below an objective standard of 3 reasonableness, and (2) that counsel’s deficient performance prejudiced the defense. Strickland v. 4 Washington, 466 U.S. 668, 692, 694 (1984). Prejudice means that the error actually had an 5 adverse effect on the defense. There must be a reasonable probability that, but for counsel’s 6 errors, the result of the proceeding would have been different. Id. at 693-94. The court need not 7 address both prongs of the Strickland test if the petitioner’s showing is insufficient as to one 8 prong. Id. at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of 9 sufficient prejudice, which we expect will often be so, that course should be followed.” Id. 10 The Strickland standard also applies to challenges to counsel’s performance during the 11 plea bargain process. See Lafler v. Cooper, 566 U.S. 156, 162 (2012) (“During plea negotiations, 12 defendants are ‘entitled to the effective assistance of competent counsel.’”) (quoting McMann, 13 397 U.S. at 771). Specifically, “a defendant has the right to make a reasonably informed decision 14 whether to accept a plea offer.” See Turner v. Calderon, 281 F.3d 851, 880 (9th Cir. 2002) 15 (citation omitted). To establish prejudice from ineffective assistance during the plea bargain 16 process, petitioner must demonstrate that, but for counsel’s errors, the outcome of the process 17 would have been different. See Lockhart, 474 U.S. at 59. 18 Under California state law, Penal Code section 1382, California’s Speedy Trial Act is part 19 of California’s speedy trial scheme and generally provides that in a felony case a person must be 20 brought to trial within 60 days of an arraignment or indictment or else the action shall be 21 dismissed, with certain exceptions. See Cal. Penal Code § 1382(a)(2). Generally, “an order 22 dismissing an action for violation of the speedy trial statute is a bar to further prosecution for the 23 same offense if it is a misdemeanor, but not if it is a felony or a misdemeanor joined with a 24 felony. . . . Therefore, a new felony action may ordinarily be instituted after the dismissal and 25 within the period of the statute of limitations.” See Dryg v. Mitchell, 2009 WL 1010520, at *8 26 (N.D. Cal. Apr. 13, 2009) (internal citation omitted) (addressing section 1381.5); People v. 27 Lilliock, 71 Cal. Rptr. 434 (Cal. App. Dist. 2 1968) (dismissal of prior action on defense motion 28 for failure to retry defendant on murder charge within 60 days of remittitur did not bar refiling of 1 second action), overruled on other grounds by People v. Flood, 18 Cal. 4th 470 (Cal. 1996). 2 Criminal defendants have “the right to a speedy and public trial.” U.S. Const., amend. VI; 3 see also Doggett v. United States, 505 U.S. 647, 651 (1992). 4 IV. Petitioner’s Claims 5 A. Claim One 6 Petitioner alleges defense counsel was ineffective because counsel twice continued 7 petitioner’s trial, on November 30, 2010, and December 6, 2010, in violation of the Speedy Trial 8 Act and allegedly without petitioner’s knowledge or consent.9 (ECF Nos. 1 at 8, 74 at 3; see also 9 ECF No. 66 at 48-49.) Petitioner objects that the victim and petitioner did not appear in court on 10 such occasions, depriving him of his right to object to the continuances or request dismissal of the 11 case under California Penal Code Section 1382. In his traverse, petitioner contends that defense 12 counsel was also not in court on December 6, 2010, and such absences deprived petitioner and 13 defense counsel of the ability to object, which would have deprived the state of the ten-day grace 14 period under the Speedy Trial Act. (ECF No. 74 at 4.) 15 Respondent counters that petitioner’s claim under the Speedy Trial Act is barred by 16 petitioner’s plea, and petitioner cannot demonstrate Strickland prejudice. 17 As set forth below, the undersigned finds petitioner’s first claim is barred under Tollett. 18 1. State Court Decision 19 The state court denied petitioner’s claim as untimely. (ECF Nos. 17-11, 17-13.) 20 2. Discussion 21 Petitioner’s first claim is solely based on defense counsel’s alleged failure or inability to 22 enforce petitioner’s right to a speedy trial on two occasions in 2010. But the alleged violations of 23 petitioner’s speedy trial rights occurred long before petitioner entered his no contest plea. With 24 certain exceptions not applicable here, the law is clear that petitioner may not raise claims of 25 deprivation of his constitutional rights that occurred prior to his plea. “When a criminal 26 defendant has solemnly admitted in open court that he is in fact guilty of the offense with which 27 9 Petitioner does not claim that his rights under the U.S. Constitution were violated by the denial 28 of his right to a speedy trial. 1 he is charged, he may not thereafter raise independent claims relating to the deprivation of 2 constitutional rights that occurred prior to the entry of the guilty plea.” Tollett, 411 U.S. at 267. 3 See also McMann, 397 U.S. at 770-71; Moran v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994) (“As 4 a general rule, one who voluntarily pleads guilty to a criminal charge may not subsequently seek 5 federal habeas relief on the basis of pre-plea constitutional violations”), overruled on other 6 grounds by Lockyer, 538 U.S. at 75-76); Ortberg v. Moody, 961 F.2d 135, 137 (9th Cir. 1992) 7 (“petitioner’s nolo contendere plea precludes him from challenging alleged constitutional 8 violations that occurred prior to the entry of that plea”); Hudson v. Moran, 760 F.2d at 1029-30 9 (voluntary and intelligent guilty plea precludes federal habeas relief based upon “independent 10 claims” of pre-plea constitutional violations).) Because petitioner’s ineffective assistance claim 11 against defense counsel relates to conduct that took place long before petitioner entered his plea 12 upon counsel’s advice, such claim is barred under the rationale of Tollett. 13 In light of petitioner’s guilty plea, he may claim he received ineffective assistance of 14 counsel only based upon defense counsel’s advice as it related to the decision to enter his no 15 contest plea. Any ineffective assistance claims relating to other, earlier actions by his counsel are 16 barred by the holding in Tollett. See Moran v. Godinez, 57 F.3d at 700. See also Givens v. Sisto, 17 2010 WL 1875766, at *1 (N.D. Cal. May 7, 2010) (“the only challenges left open in federal 18 habeas corpus after a guilty plea is the voluntary and intelligent character of the plea and the 19 nature of the advice of counsel to plead.”). 20 In 2017, the Ninth Circuit held that the rationale of Tollett does not apply if counsel’s 21 incompetence “prevents petitioner from making an informed choice whether to plead.” Mahrt v. 22 Beard, 849 F.3d 1164, 1170 (9th Cir. 2017). But Mahrt is distinguishable because petitioner’s 23 ineffective assistance of counsel claim is focused on the alleged inability to enforce the Speedy 24 Trial Act in October and December of 2010, well before the start of trial in 2012. Here, petitioner 25 does not challenge the advice of trial counsel as it related to his decision to plead no contest, and 26 does not include claims implicating the intelligent or voluntary nature of his plea. Moreover, the 27 //// 28 //// 1 record reflects that petitioner’s plea was voluntary.10 Indeed, petitioner insisted on pleading no 2 contest to avoid the continuation of trial after the victim testified. 3 Moreover, petitioner waived his right to a speedy trial at the change of plea hearing. (ECF 4 No. 58-5 at 5.) Petitioner alleges no facts demonstrating how any delay impacted the voluntary 5 and intelligent character of his no contest plea. Therefore, any speedy trial claim has been waived 6 and is not cognizable in this federal habeas corpus action. See Bohn, 956 F.2d at 209. 7 In addition, a claim that petitioner’s right to a speedy trial under California’s Speedy Trial 8 Act was violated fails to state a cognizable federal habeas claim. Estelle, 502 U.S. at 67-68 (“In 9 conducting habeas review, a federal court is limited to deciding whether a conviction violated the 10 Constitution, laws, or treaties of the United States.”); Smith v. Phillips, 455 U.S. 209, 221 (1982) 11 (“A federally issued writ of habeas corpus, of course, reaches only convictions obtained in 12 violation of some provision of the United States Constitution.”) 13 To the extent petitioner claimed that he was denied his Constitutional right to a speedy 14 trial, such claim is also barred by Tollett. See, e.g., Nigro v. Evans, 399 F. App’x 279, 280, 2010 15 WL 4007576, at *1 (9th Cir. 2010) (prisoner’s nolo contendere plea foreclosed pursuit of habeas 16 relief on pre-plea speedy trial violations); Ortberg, 961 F.2d at 136-38 (prisoner could not seek 17 habeas relief based on a claim he was denied his right to a speedy trial that took place before he 18 entered nolo contendere plea); United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (per 19 curiam) (guilty plea precluded violation of Speedy Trial Act claim). Petitioner failed to explain 20 how any delay caused by the competency proceedings impacted the voluntary and intelligent 21 10 Nothing in the record suggests that petitioner’s plea was not knowing, intelligent, and 22 voluntary. At the change of plea hearing, petitioner affirmed that he understood the terms of the 23 plea. (ECF No. 58-5 at 7-8.) Petitioner acknowledged that he understood the constitutional rights he was waiving. (Id. at 5-6.) Petitioner confirmed that no one had threatened him in order to 24 make him enter the plea; and no one had made any promises to him other than what was stated on the record and in open court. (Id. at 8.) Petitioner’s solemn declarations in open court carry a 25 strong presumption of verity. See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); see also Little v. Crawford, 449 F.3d 1075, 1081 (9th Cir. 2006). Based on petitioner’s affirmations, the 26 trial court found that petitioner knowingly, intelligently and voluntarily waived his constitutional 27 rights, and found that there was a factual basis for the plea. (ECF No. 58-5 at 10.) See also Blackledge, 431 U.S. at 74 (explaining that the findings made by the judge accepting the plea 28 “constitute a formidable barrier in any subsequent collateral proceedings”). 1 character of his no contest plea, especially given that this delay occurred well before the entry of 2 the plea. Therefore, petitioner’s speedy trial claim has been waived and is not cognizable in this 3 federal habeas corpus action. See Bohn, 956 F.2d at 209. 4 For all of the above reasons, petitioner is not entitled to relief on his first claim because it 5 is barred under Tollett. 6 B. Claim Two 7 In his second claim, petitioner contends the trial court erred by accepting petitioner’s no 8 contest plea to sex offenses without first addressing petitioner and determining that he understood 9 that the sex offender registration requirement would be a life-long requirement, in violation of 10 Rule 11 of the Federal Rules of Criminal Procedure. (ECF No. 1 at 4.) In his traverse, petitioner 11 contends that the trial court’s failure to properly advise petitioner was an error that misled 12 petitioner, who claims he suffers from severe psychological issues, to believe that his duty to 13 register expired upon his completion of parole. (ECF No. 74 at 7.) Such lifelong registration 14 requirement is a harsh sanction requiring specific warning by the trial court. (ECF No. 74 at 7.) 15 Further, petitioner argues that under Brady v. United States, 397 U.S. 742, 755 (1980), a 16 defendant must be “fully aware of the direct consequences,” of a guilty plea in order for the plea 17 to be voluntary, knowing and intelligent. (ECF No. 74 at 8.) Petitioner claims that had the trial 18 court properly informed petitioner about the lifelong registration requirement, he would not have 19 entered the plea because of the “attendant detrimental consequences, shame, and public disgrace,” 20 and because petitioner did not commit the sex offenses. He contends his position is supported by 21 his September 30, 2010 note written to his intake attorney Cunningham at their initial attorney- 22 client interview, where petitioner wrote he would not enter a guilty plea to sex offenses he did not 23 commit, not even for a misdemeanor in exchange for one month in custody. (ECF No. 74 at 9, 24 citing Ex. E (ECF No. 66 at 74).) 25 Respondent counters, inter alia, that there is no clearly established law requiring trial 26 courts to advise criminal defendants as to collateral consequences of guilty pleas, but that in any 27 event, petitioner cannot demonstrate prejudice under Strickland. 28 //// 1 1. Change of Plea Hearing 2 At the January 17, 2012 change of plea hearing, the trial judge informed petitioner: “You 3 will be required, pursuant to [California] Penal Code Section 290 to register as a convicted sex 4 offender with the sheriff or police department wherever you reside.” (ECF No. 58-5 at 7.) 5 2. Last Reasoned State Court Opinion 6 The state superior court initially found that the petition for writ of habeas corpus was 7 untimely because petitioner failed to provide sufficient documentary evidence justifying his over 8 five-year delay in filing his petition. (ECF No. 17-5 at 3.) But even assuming the petition was 9 timely, and the trial court erred in failing to expressly advise petitioner that he was required to 10 register as a sex offender for life, the state court found petitioner did not adequately demonstrate 11 prejudice, stating: 12 In order to show prejudice, Petitioner must demonstrate it is reasonably probable he would not have entered into his admission or 13 plea if he had been properly advised. (In re Moser (1993) 6 Cal. 4th 342, 352.) 14 Petitioner claims that, had he known he would have to register as a 15 sex offender for life, he would have not entered his plea. There is nothing in the record, however, to support this assertion. To the 16 contrary, the record establishes that Petitioner entered his change of plea on the sixth day of his jury trial and stipulated that the trial 17 evidence provided a sufficient factual basis for his plea. Petitioner did not object to the Probation Department’s recommendation of sex 18 offender registration or the entry of the registration requirement, nor did he file a motion to withdraw his plea. Accordingly, Petitioner 19 has failed to meet his burden of establishing prejudice. (See People v. McClellan (1993) 6 Cal. 4th 367, 378. 20 21 (ECF No. 17-5 at 3.) 22 3. Governing Standards 23 A guilty plea must be knowing, intelligent and voluntary. Brady v. United States, 397 24 U.S. 742, 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242 (1969). “Waivers of constitutional 25 rights not only must be voluntary but must be knowing, intelligent acts done with sufficient 26 awareness of the relevant circumstances and likely consequences.” Brady, 397 U.S. at 748. The 27 “likely consequences” of which a defendant must be informed are only the direct consequences of 28 the plea. A defendant need not be informed about the collateral consequences of his plea, and 1 failure to so inform him does not render the plea involuntary. United States v. Delgado-Ramos, 2 635 F.3d 1237, 1239 (9th Cir.2011); see Rodriguez v. Ricketts, 798 F.2d 1250, 1254 (9th Cir. 3 1986) (“Boykin does not require a state court to enumerate all of the rights a defendant waives as 4 long as the record indicates that the plea was entered voluntarily and understandingly.”). 5 Whether a consequence is direct or collateral “turns on whether the result represents a definite, 6 immediate and largely automatic effect on the range of the defendant's punishment.” Torrey v. 7 Estelle, 842 F.2d 234, 236 (9th Cir. 1988) (enumerating examples of direct and collateral 8 consequences; citations omitted). 9 4. Discussion 10 Because there is no clearly established Supreme Court opinion requiring that criminal 11 defendants be informed, in a particular manner, that they will be subject to a lifelong registration 12 requirement, the state superior court’s denial of this claim was not unreasonable or contrary to 13 clearly established Supreme Court authority. See Chaidez v. United States, 568 U.S. 342, 349 14 (2013) (Alito, J., concurring in judgment) (noting that “sex offender registration” is “commonly 15 viewed as collateral” consequence); Delgado-Ramos, 635 F.3d at 1239 (trial court need not 16 advise criminal of “all possible collateral consequences” of the plea during plea colloquy). 17 Petitioner’s reliance on Rule 11 of the Federal Rules of Criminal Procedure is also unavailing 18 because it is not clearly established federal law, as defined under 28 U.S.C. § 2254(D)(1). 19 Thompson v. Runnels, 705 F.3d at 1096; see also United States v. Timmreck, 441 U.S. 780, 783- 20 84 (1979) (holding that technical violation of Rule 11 requiring district court to advise defendant 21 of parole term, was “neither constitutional nor jurisdictional”). 22 But even on de novo review, petitioner’s claim is unavailing. Initially, the undersigned 23 agrees with respondent that petitioner fails to demonstrate the trial judge’s advisement was 24 insufficient. Petitioner was informed that he would be required to register as a sex offender 25 without any express time limit on such registration, and the judge’s use of the word “wherever,” 26 suggests the registration requirement continues until petitioner stops “residing.” Nothing in the 27 trial court’s advisement tied the registration period to petitioner’s time on parole. 28 Finally, petitioner has not demonstrated that there is “a reasonable probability that, but for 1 the error, he would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 2 83 (2004). As evidence that he would not have taken the plea, petitioner points to an intake 3 attorney’s September 30, 2010 note in which petitioner stated he would “not accept even a 4 misd[emeanor] for one month in custody,” despite being told that the prosecutor would 5 “probably” offer a life sentence. (ECF No. 66 at 74 (Pl.’s Ex. E.) Such document is not 6 persuasive given the criminal allegations at the time11or the evidence developed through the 7 victim’s trial testimony. Although petitioner now “boldly” states that he would not have accepted 8 the plea and would have gone to trial had he known the sex offender registration was required for 9 life, his self-serving statement is not persuasive in light of the record. On January 3, 2012, at the 10 beginning of jury trial, the trial judge probed petitioner concerning a pending offer and noted that 11 petitioner’s exposure was “118 years-to-life.” (ECF No. 58-4 at 5.) The victim, petitioner’s 12 former girlfriend and cohabitant, gave graphic testimony concerning multiple incidents of 13 domestic violence, including the instant assault, committed by petitioner. (ECF No. 58-4 at 45- 14 132.) She also testified that for weeks after the assault, petitioner texted and called the victim 15 numerous times telling her “not to cooperate with the police” and to not speak with a 16 representative from the district attorney’s office, Ms. Crosby. (ECF No. 58-4 at 153-54.) In light 17 of such strong evidence, it is unlikely petitioner would have achieved a better outcome following 18 trial. As noted by respondent, the plea agreement provided petitioner with a determinate sentence 19 of 35-years, whereas petitioner was facing the risk of an indeterminate sentence, possibly life in 20 prison, if he declined the offer and went to trial. Moreover, if convicted, petitioner also would 21 have been required to register as a sex offender for life just as he was required to register as a 22 consequence of his plea. Consequently, petitioner has not established prejudice from any failure 23 to inform him of the duration of the sex offender registration requirement. 24 11 The note included a “brief case summary” taken from the police report: “Appears to be 25 allegation that client and CW met consensually, but then once CW in car, client drove her to Sac (from Oakland) without her consent. Took her to his sister’s house, took her cell phone, 26 threatened to kill her and/or run a train on her, dragged her kicked her, threatened to beat her with 27 wrench, had her orally copulate him, raped her, sodomized her, poked here with a knife, and beat her with an electrical cord. CW got her phone back and called for help, then escaped and waived 28 down officer.” (ECF No. 66 at 74 (Pl.’s Ex. 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1 Accordingly, for all of these reasons, petitioner’s second claim should be denied. 2 | V. Evidentiary Hearing 3 An evidentiary hearing is not warranted where, as here, “the record refutes the applicant’s 4 | factual allegations or otherwise precludes habeas relief.” Schriro, 550 U.S. at 474; see also 5 | Cullen v. Pinholster, 563 U.S. 170, 183 (2011) (citing Schriro with approval); Estrada v. Scribner, 6 | 512 F.3d 1227, 1235 (9th Cir. 2008). Therefore, petitioner’s request for an evidentiary hearing is 7 | denied. (ECF No. 72.) 8 | VI. Conclusion 9 Accordingly, IT IS HEREBY ORDERED that, to clarify the court record, the Clerk of the 10 | Court shall edit docket entry No. 74 as “Amended Traverse, and shall file, as ECF No. 74-1, 11 || petitioner’s exhibits submitted with his prior traverse (ECF No. 66 at 10-74). 12 Further, IT IS RECOMMENDED that the petition for writ of habeas corpus be denied. 13 These findings and recommendations are submitted to the United States District Judge 14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty days after 15 | being served with these findings and recommendations, any party may file written objections with 16 | the court and serve a copy on all parties. Such a document should be captioned “Objections to 17 | Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, he shall also 18 | address whether a certificate of appealability should issue and, if so, why and as to which issues. 19 | Acertificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a 20 | substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). Any 21 || response to the objections shall be served and filed within fourteen days after service of the 22 | objections. The parties are advised that failure to file objections within the specified time may 23 | waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 24 | 1991). 25 | Dated: July 1, 2020 Foci) Aharon /scott2687.157 UNITED STATES MAGISTRATE JUDGE 28 16