1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 EASTERN DIVISION 10 11 ROBIN LEE SHERWOOD, ) No. ED CV 11-1728-CJC (PLA) ) 12 Petitioner, ) ORDER ACCEPTING FINDINGS, ) CONCLUSIONS, AND RECOMMENDATION 13 v. ) OF UNITED STATES MAGISTRATE JUDGE ) 14 GEORGE NEOTTI, Warden, ) ) 15 Respondent. ) ) 16 17 On April 17, 2020, the United States Magistrate Judge issued a Final Report and 18 Recommendation (“Final R&R”), recommending that the Petition be dismissed with prejudice 19 because petitioner’s claim of ineffective assistance of counsel lacked merit. (ECF No. 169). On 20 May 1, 2020, petitioner filed Objections to the Final R&R. (ECF No. 171). 21 Petitioner asserts numerous objections to the factual findings and legal conclusions set 22 forth in the Final R&R. In particular, petitioner challenges the finding that his trial counsel, Michael 23 Belter, provided credible testimony at the evidentiary hearing. Petitioner asserts that Mr. Belter 24 had reason to be biased against him because petitioner had complained about Mr. Belter’s 25 conduct in the past and had submitted a formal complaint to the California State Bar after Mr. 26 Belter refused to provide petitioner his trial records. (ECF No. 171 at 8). From reviewing Mr. 27 Belter’s testimony as a whole, the Court finds no indication that Mr. Belter had any bias against 28 1 petitioner. The fact that petitioner complained about Mr. Belter’s assistance does not by itself 2 render Mr. Belter’s testimony at the evidentiary hearing not credible.1 3 Additionally, petitioner disputes the veracity of Mr. Belter’s testimony describing the events 4 that took place on the day petitioner entered his guilty plea, in particular Mr. Belter’s statement 5 that he and petitioner had a ninety-minute discussion about petitioner’s desire to plead guilty 6 during the lunch break before the plea proceeding began. (ECF No. 169 at 16-17). Petitioner 7 contends that Mr. Belter’s testimony is contradicted by petitioner’s own statement that Mr. Belter 8 went to lunch with the prosecutor that day and did not speak to petitioner during the lunch break. 9 (ECF No. 171 at 7 (citing EH RT 111)). This challenge to Mr. Belter’s credibility is based on the 10 evidentiary hearing testimony of respondent’s psychiatric expert, Dr. Alan Abrams, in which Dr. 11 Abrams described what petitioner reported during a 2019 psychological evaluation: 12 [Petitioner’s counsel]: Okay. Now, you also discussed with [petitioner] when you talked to him [about] the circumstances of his plea? 13 [Dr. Abrams]: Yes, that was my primary focus as we agreed in the 14 protective order. 15 [Petitioner’s counsel]: And when you talked to him, he told you that he plead[ed] guilty after he saw his defense attorney 16 coming back from lunch at a Mexican restaurant with the D.A.? 17 [Dr. Abrams]: Yes. 18 [Petitioner’s counsel]: And he concluded that his attorney wasn’t helping him. 19 [Dr. Abrams]: Of course. 20 [Petitioner’s counsel]: And when you asked [petitioner] whether he suffered 21 paranoia, his response was that he believed the D.A. and his defense attorney were working together, didn’t 22 he? 23 [Dr. Abrams]: Yes. 24 (EH RT 111). 25 26 1 Regarding petitioner’s complaint made in 2008 to the California State Bar, Mr. Belter testified that he did not promptly turn over petitioner’s trial file out of concern that certain 27 individuals identified in the file might become at risk for gang retaliation given petitioner’s gang 28 ties. When directed by the California State Bar to provide petitioner the file, Mr. Belter complied. 1 The Court is not persuaded that the above testimony contradicts Mr. Belter’s statement 2 about his lengthy pre-plea discussion with petitioner, as petitioner’s remarks about Mr. Belter and 3 the D.A. conspiring against him have no support in the record. Moreover, petitioner’s baseless 4 accusation is undercut by his own testimony at the plea hearing, in which he stated that he had 5 sufficient time to consult with Mr. Belter concerning his intent to plead guilty, and that Mr. Belter 6 had explained the written plea declaration to him and petitioner had sufficient time to consider the 7 meaning of each statement on the form. (See Reporter’s Transcript 340). See Blackledge v. 8 Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (a defendant’s representations 9 at a plea hearing constitute a “formidable barrier in any subsequent collateral proceedings” as 10 “[s]olemn declarations in open court carry a strong presumption of verity”). 11 Regarding the determination in the Final R&R that the handwritten notes in the trial file 12 were authored by petitioner and reflected his mental competence, petitioner argues that Mr. Belter 13 testified at the evidentiary hearing that “he did not see [petitioner] write many of these notes and 14 does not know if someone else helped him write them.” (ECF No. 171 at 8 (citing EH RT 88-89)). 15 Petitioner’s challenge to the trial notes is unavailing. Mr. Belter testified at the evidentiary hearing 16 that it was his practice to give his clients a pad of paper and a pencil and ask them to write things 17 down, after which the notes would be placed in their file. While Mr. Belter believed that petitioner 18 was the author of the notes at issue, during cross-examination he stated that he did not recall 19 seeing petitioner write many of the notes. (Exhibit 50 at ¶ 11; EH RT 89). The Court observes 20 that the notes, however, are written in the first person -- “When I was pulled over, I was told by 21 [the] Detective I needed to come to the station”; “[the] Detective did not read Miranda[2] until after 22 45 min. of giving me all of his evidence[] and questioning me”; “I believe I said this in the 23 Detective’s vehicle on the way to the station”; “I don’t think I said crazy or stupid stuff until[] I felt 24 I had been tricked and felt betrayed.” (See EH Exhibit 52 at 1524, 1765, 1800). Additionally, the 25 substance of the notes are consistent with petitioner’s discussions with Mr. Belter about legal 26 issues and defense strategy. (See ECF No. 169 at 15-16). The Court has also compared the trial 27 28 1 notes with petitioner’s post-conviction letters sent to the superior court, and finds that the 2 handwriting is consistent.3 Moreover, petitioner in his Objections does not assert that another 3 individual wrote the notes, let alone identify any other individual as the author. Based on the 4 foregoing, the Court agrees with the finding in the Final R&R that the handwritten notes reflect 5 petitioner’s mental competence. Even if, as petitioner appears to suggest, petitioner may have 6 drafted the notes with the help of another individual, the notes nevertheless reflect that petitioner 7 was actively participating in his defense. 8 As for the determination in the Final R&R that petitioner’s statements in his recorded jail 9 calls that took place from April to June 2004 also indicated his competence, petitioner asserts that 10 the calls provide no such insight as they only cover a three-month time frame and occurred 11 several years before the guilty plea was entered. (ECF No. 171 at 9). As the Final R&R points 12 out, however, petitioner’s psychiatric expert, Dr. Nathan Lavid, opined that petitioner was 13 incompetent from January 2004 through November 2006 -- a time frame that includes the dates 14 when petitioner made the recorded jail calls. The Final R&R appropriately faulted Dr. Lavid’s 15 opinion of incompetence for failing to explain how petitioner could be incompetent in 2004 yet 16 capable of acting rationally and coherently during these recorded conversations. (See ECF No. 17 169 at 29-30). 18 Next, petitioner objects to the Final R&R’s legal analysis, asserting that a determination of 19 the prejudice prong for his claim of ineffective assistance of counsel under Strickland v.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 EASTERN DIVISION 10 11 ROBIN LEE SHERWOOD, ) No. ED CV 11-1728-CJC (PLA) ) 12 Petitioner, ) ORDER ACCEPTING FINDINGS, ) CONCLUSIONS, AND RECOMMENDATION 13 v. ) OF UNITED STATES MAGISTRATE JUDGE ) 14 GEORGE NEOTTI, Warden, ) ) 15 Respondent. ) ) 16 17 On April 17, 2020, the United States Magistrate Judge issued a Final Report and 18 Recommendation (“Final R&R”), recommending that the Petition be dismissed with prejudice 19 because petitioner’s claim of ineffective assistance of counsel lacked merit. (ECF No. 169). On 20 May 1, 2020, petitioner filed Objections to the Final R&R. (ECF No. 171). 21 Petitioner asserts numerous objections to the factual findings and legal conclusions set 22 forth in the Final R&R. In particular, petitioner challenges the finding that his trial counsel, Michael 23 Belter, provided credible testimony at the evidentiary hearing. Petitioner asserts that Mr. Belter 24 had reason to be biased against him because petitioner had complained about Mr. Belter’s 25 conduct in the past and had submitted a formal complaint to the California State Bar after Mr. 26 Belter refused to provide petitioner his trial records. (ECF No. 171 at 8). From reviewing Mr. 27 Belter’s testimony as a whole, the Court finds no indication that Mr. Belter had any bias against 28 1 petitioner. The fact that petitioner complained about Mr. Belter’s assistance does not by itself 2 render Mr. Belter’s testimony at the evidentiary hearing not credible.1 3 Additionally, petitioner disputes the veracity of Mr. Belter’s testimony describing the events 4 that took place on the day petitioner entered his guilty plea, in particular Mr. Belter’s statement 5 that he and petitioner had a ninety-minute discussion about petitioner’s desire to plead guilty 6 during the lunch break before the plea proceeding began. (ECF No. 169 at 16-17). Petitioner 7 contends that Mr. Belter’s testimony is contradicted by petitioner’s own statement that Mr. Belter 8 went to lunch with the prosecutor that day and did not speak to petitioner during the lunch break. 9 (ECF No. 171 at 7 (citing EH RT 111)). This challenge to Mr. Belter’s credibility is based on the 10 evidentiary hearing testimony of respondent’s psychiatric expert, Dr. Alan Abrams, in which Dr. 11 Abrams described what petitioner reported during a 2019 psychological evaluation: 12 [Petitioner’s counsel]: Okay. Now, you also discussed with [petitioner] when you talked to him [about] the circumstances of his plea? 13 [Dr. Abrams]: Yes, that was my primary focus as we agreed in the 14 protective order. 15 [Petitioner’s counsel]: And when you talked to him, he told you that he plead[ed] guilty after he saw his defense attorney 16 coming back from lunch at a Mexican restaurant with the D.A.? 17 [Dr. Abrams]: Yes. 18 [Petitioner’s counsel]: And he concluded that his attorney wasn’t helping him. 19 [Dr. Abrams]: Of course. 20 [Petitioner’s counsel]: And when you asked [petitioner] whether he suffered 21 paranoia, his response was that he believed the D.A. and his defense attorney were working together, didn’t 22 he? 23 [Dr. Abrams]: Yes. 24 (EH RT 111). 25 26 1 Regarding petitioner’s complaint made in 2008 to the California State Bar, Mr. Belter testified that he did not promptly turn over petitioner’s trial file out of concern that certain 27 individuals identified in the file might become at risk for gang retaliation given petitioner’s gang 28 ties. When directed by the California State Bar to provide petitioner the file, Mr. Belter complied. 1 The Court is not persuaded that the above testimony contradicts Mr. Belter’s statement 2 about his lengthy pre-plea discussion with petitioner, as petitioner’s remarks about Mr. Belter and 3 the D.A. conspiring against him have no support in the record. Moreover, petitioner’s baseless 4 accusation is undercut by his own testimony at the plea hearing, in which he stated that he had 5 sufficient time to consult with Mr. Belter concerning his intent to plead guilty, and that Mr. Belter 6 had explained the written plea declaration to him and petitioner had sufficient time to consider the 7 meaning of each statement on the form. (See Reporter’s Transcript 340). See Blackledge v. 8 Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (a defendant’s representations 9 at a plea hearing constitute a “formidable barrier in any subsequent collateral proceedings” as 10 “[s]olemn declarations in open court carry a strong presumption of verity”). 11 Regarding the determination in the Final R&R that the handwritten notes in the trial file 12 were authored by petitioner and reflected his mental competence, petitioner argues that Mr. Belter 13 testified at the evidentiary hearing that “he did not see [petitioner] write many of these notes and 14 does not know if someone else helped him write them.” (ECF No. 171 at 8 (citing EH RT 88-89)). 15 Petitioner’s challenge to the trial notes is unavailing. Mr. Belter testified at the evidentiary hearing 16 that it was his practice to give his clients a pad of paper and a pencil and ask them to write things 17 down, after which the notes would be placed in their file. While Mr. Belter believed that petitioner 18 was the author of the notes at issue, during cross-examination he stated that he did not recall 19 seeing petitioner write many of the notes. (Exhibit 50 at ¶ 11; EH RT 89). The Court observes 20 that the notes, however, are written in the first person -- “When I was pulled over, I was told by 21 [the] Detective I needed to come to the station”; “[the] Detective did not read Miranda[2] until after 22 45 min. of giving me all of his evidence[] and questioning me”; “I believe I said this in the 23 Detective’s vehicle on the way to the station”; “I don’t think I said crazy or stupid stuff until[] I felt 24 I had been tricked and felt betrayed.” (See EH Exhibit 52 at 1524, 1765, 1800). Additionally, the 25 substance of the notes are consistent with petitioner’s discussions with Mr. Belter about legal 26 issues and defense strategy. (See ECF No. 169 at 15-16). The Court has also compared the trial 27 28 1 notes with petitioner’s post-conviction letters sent to the superior court, and finds that the 2 handwriting is consistent.3 Moreover, petitioner in his Objections does not assert that another 3 individual wrote the notes, let alone identify any other individual as the author. Based on the 4 foregoing, the Court agrees with the finding in the Final R&R that the handwritten notes reflect 5 petitioner’s mental competence. Even if, as petitioner appears to suggest, petitioner may have 6 drafted the notes with the help of another individual, the notes nevertheless reflect that petitioner 7 was actively participating in his defense. 8 As for the determination in the Final R&R that petitioner’s statements in his recorded jail 9 calls that took place from April to June 2004 also indicated his competence, petitioner asserts that 10 the calls provide no such insight as they only cover a three-month time frame and occurred 11 several years before the guilty plea was entered. (ECF No. 171 at 9). As the Final R&R points 12 out, however, petitioner’s psychiatric expert, Dr. Nathan Lavid, opined that petitioner was 13 incompetent from January 2004 through November 2006 -- a time frame that includes the dates 14 when petitioner made the recorded jail calls. The Final R&R appropriately faulted Dr. Lavid’s 15 opinion of incompetence for failing to explain how petitioner could be incompetent in 2004 yet 16 capable of acting rationally and coherently during these recorded conversations. (See ECF No. 17 169 at 29-30). 18 Next, petitioner objects to the Final R&R’s legal analysis, asserting that a determination of 19 the prejudice prong for his claim of ineffective assistance of counsel under Strickland v. 20 Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), requires an analysis of 21 whether petitioner demonstrated a reasonable probability that, absent Mr. Belter’s errors, the 22 result of the proceeding would have been different. (ECF No. 171 at 11). Petitioner asserts that 23 24 3 In particular, the Court notes that petitioner in his letters to the superior court improperly 25 used apostrophe marks in plural words (e.g., “they said they took gun’s to kill someone”; “I see a lot of back and forth decision’s on the felony murder law”; “after telling my attorney all of this for 26 three year’s, he still did not address this . . . point”). (EH Exhibit 54 at 3031, 3033, 3040). This same improper use of apostrophes can be seen in the handwritten notes in petitioner’s trial file 27 (e.g., “In other word’s wouldn’t this mean . . .”; “Write down any idea’s?”; “I said I had bullet’s on 28 top of my refrigerator”). (EH Exhibit 52 at 1765, 1800, 1802). This distinct similarity is further 1 he made this prejudice showing, because had Mr. Belter investigated petitioner’s mental health, 2 “not only could [Belter] have declared doubt as to competence, it would have also allowed [Belter] 3 to prepare a different defense strategy based on [petitioner’s] mental illness, including negotiating 4 a plea deal once [petitioner] was restored to competency.” (Id. at 12). Petitioner further asserts 5 that there is a reasonable probability that “by ensuring that [petitioner] received adequate 6 treatment for his mental illness, after [petitioner] was restored to competency, Belter could have 7 been able to persuade [petitioner] to proceed with his trial.” (Id. at 13). 8 Generally, in the context of a collateral attack on a guilty plea, Strickland’s prejudice prong 9 requires that the petitioner show “there is a reasonable probably that, but for counsel’s errors, he 10 would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 11 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Here, pursuant to Deere v. Cullen, 718 F.3d 12 1124, 1145 (9th Cir. 2013), the Final R&R addresses the prejudice prong by considering whether 13 there is a reasonable probability that, had Mr. Belter moved for a competency hearing, petitioner 14 would have been found incompetent to plead guilty. See Deere, 718 F.3d at 1145 (“The question 15 on this aspect of the case boils down to this: whether [the petitioner] suffered any prejudice from 16 the lack of a competency hearing, even assuming for the sake of argument that [his counsel] 17 should have moved for one? Put another way, was there a reasonable probability that he would 18 have been found incompetent to plead guilty?”); see also Theriot v. Whitley, 18 F.3d 311, 313 (5th 19 Cir. 1994) (“[A] claim of incompetence is difficult to analyze under the “outcome” test in Strickland 20 . . . . [The petitioner] can succeed in establishing that he was prejudiced by his attorney’s failure 21 to investigate only if he can demonstrate by a reasonable probability that he was incompetent to 22 plead guilty.”). But even if the prejudice prong of the Strickland test is considered under the 23 standard set forth in Hill, petitioner’s ineffective assistance claim still fails. Petitioner’s assertions 24 of prejudice under the Hill standard presume that he would have been found incompetent had a 25 competency hearing took place prior to his plea, as he argues that he could have, after being 26 restored to competency, either proceeded with his trial or negotiated a better plea deal. As the 27 Final R&R concludes, however, it is not reasonably likely that, had Mr. Belter declared a doubt as 28 1| petitioner's prejudice arguments fail as there is no showing that, had a competency hearing been 2|| held, petitioner would have chosen to continue with his trial after being found competent. 3 The Court has reviewed petitioner's remaining objections and finds that they are 4| adequately addressed in the R&R. 5 6 CONCLUSION 7 Based on the foregoing and pursuant to 28 U.S.C. § 636, the Court has reviewed the 8|| Petition, the other records on file herein, the Magistrate Judge’s Final Report and Recommendation, and petitioner's Objections to the Final Report and Recommendation. The 10|| Court has engaged in a de novo review of those portions of the Final Report and 11 || Recommendation to which objections have been made. The Court concurs with and accepts the findings and conclusions of the Magistrate Judge. 13 ACCORDINGLY, IT IS ORDERED: 14 1. The Final Report and Recommendation is accepted. 15 2. Judgment shall be entered consistent with this Order. 16 3. The clerk shall serve this Order and the Judgment on all counsel or parties of record. 17 Ko Lo 18] DATED: May 21, 2020 a if 19 Ruy Coc Coy 20 21 22 23 24 25 26 27 28