Buckley, v. Terhune

Decision Date06 December 2002
Docket NumberNo. CV 00-2435-JSL(AJW).,CV 00-2435-JSL(AJW).
Citation266 F.Supp.2d 1124
PartiesBrian A. BUCKLEY, Petitioner, v. CA. TERHUNE, Director of the California Department of Corrections, Respondent.
CourtU.S. District Court — Central District of California

Allen R Bloom, Allen R Bloom Law Offices, San Diego, for Brian A Buckley, petitioner.

Noah P Hill, CAAG—Office of Attorney, General of California, Los Angeles, for C A Terhune, Director of the CDC, respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

LETTS, District Judge.

Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has reviewed the entire record in this action, the attached Report and Recommendation of Magistrate Judge ("Report"), and the objections thereto. Good cause appearing, the Court concurs with and adopts the findings of fact, conclusions of law, and recommendations contained in the Report after having made a de novo determination of the portions to which objections were directed.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

WISTRICH, United States Magistrate Judge.

Facts1

Thomas Urell was murdered on July 16, 1986. Shortly after the murder, petitioner was arrested based on some traffic tickets and was interviewed by the police about the murder. At the direction of Deputy District Attorney Donald Glynn, petitioner was questioned "outside of Miranda," and was promised that his statements would not be used against him. [Transcript of Evidentiary Hearing held on July 31, 2002 ("EHT") 9-10, 46-47; Evidentiary Hearing Exhibit ("EH Ex.") D at 55-58]. Relying on those assurances, petitioner provided the police with a detailed statement about the murder, including details about his own role and the role of Curtis Fauber. After providing that information, petitioner was neither arrested nor charged with any crime related to the murder. Instead, he took care of his traffic tickets and was released. [EHT 26, 47]. Mr. Fauber, by contrast, was prosecuted for capital murder.

More than a year later, the case against Mr. Fauber ran into trouble after the trial court suppressed Mr. Fauber's confession. Suddenly, the prosecution needed petitioner's testimony to prove the charges against Mr. Fauber. [See EHT 10-14, 181-182 (Mr. Glynn's explanation that he needed petitioner as a witness because he was "struggling to put together the Fauber case"); EH Ex. S (statement of Mr. Glynn at petitioner's December 18, 1996 parole hearing) ].

On November 12, 1987, petitioner was arrested and charged with the first degree murder and robbery of Mr. Urell, and residential burglary. [EH Ex. B]. Before being charged with these offenses, petitioner, who had just turned 22 years old, had no criminal history other than traffic tickets. [EHT 49-50].

The preliminary hearing was held on December 14, 2002. [EH Ex. D]. The prosecution did not attempt to use petitioner's prior statements to the police against him. Instead, the prosecution relied on the testimony of Kristen McCarthy, a girlfriend to whom petitioner had confessed some involvement in the murder. [EH Ex. D at 74-90]. Petitioner's statements to Ms. McCarthy were admitted after the trial court rejected petitioner's motion to suppress them. [EH Ex. D at 55-72]. At the conclusion of the preliminary hearing, the trial court found the evidence against petitioner sufficient to warrant a trial. [Clerk's Transcript ("CT") at 112].

The following day, Mr. Glynn, the prosecutor assigned to petitioner's case, sent petitioner's attorney, Willard Wiksell, a letter offering a plea bargain. The plea offer required that petitioner plead guilty to murder, and cooperate with the prosecution by testifying truthfully against Mr. Fauber and Christopher Caldwell regarding their participation in the murders of Mr. Urell and two others. [EH Ex. E; EHT 187-189]. In exchange, the prosecutor stated he would ask the court to declare the charge against petitioner to be second degree murder and to dismiss the charges of burglary and robbery. The letter said nothing about the sentence that petitioner would receive. [EH Ex. E; EHT 183-184,191].

After receiving the letter from the District Attorney's Office, Mr. Wiksell brought a copy of the letter to petitioner and discussed the plea offer with him. [EHT 52-53, 56]. Mr. Wiksell explained that if petitioner pleaded guilty, he would receive a 15 year sentence, and could be out in seven and one-half years if petitioner behaved himself in prison. [EHT 56-57, 77-112].2

Petitioner signed the letter on December 17, 1987. [EH Ex. E at 12; EHT 58-59]. On the same date, petitioner signed a form entitled "Felony Disposition Statement" that set forth the terms of the plea bargain. [EH Ex. H; EHT 59,174]. Portions of the form had been filled out by Mr. Glynn, and when petitioner received it there were little "x"s indicating where petitioner was supposed to place his initials. [EHT 61-62,174-176; EH Ex. H].3

In pertinent part, the Felony Disposition Form indicates that petitioner will change his plea to a plea of guilty to murder. It further states that

My attorney has explained to me the direct and indirect consequences of this plea including the maximum possible sentence. I understand that the following consequences could result from my plea:

— I could be sentenced to the state prison for a maximum possible term of 15 year(s).

—After I have served my prison term, I may be subject to a maximum parole period of life (In re Carabes, 144 Cal.App.3d 927,193 Cal.Rptr. 65).

— I will be ordered to pay a fine of not less than $100 nor more than $10,000 (Gov'tCode § 13967).

[EH Ex. H at 5-6]. Petitioner initialed these three statements describing the consequences of his plea. [EH Ex. H at 6; EHT 62-63].4 He also initialed other parts of the form indicating that he understood and waived his constitutional rights, and that his plea was entered into freely and voluntarily. [EH Ex. H at 5-6]. The form was returned to Mr. Glynn at some time prior to the January 4, 1988 change of plea hearing. [EHT 108-109, 176-177].

The second portion of the Felony Disposition Statement is entitled "The District Attorney's Position On Sentence" and "Summary of District Attorneys' Reason for Sentence." [EHT 66-67, 177; EH Ex. F at 7]. With respect to the "position on sentence", Mr. Glynn wrote in:

At the time of sentencing the People will move the court to declare the murder to be murder in the second degree, with a maximum term of 15 years to life.

[EH Ex. H at 7]. Mr. Glynn had not filled out the second portion of the form before petitioner read, initialed, and signed the other portions of the form on December 17, 1987. [EHT 66-68, 114-115].5 Petitioner never saw or initialed the second portion of the form. [EHT 115; EH Ex. H at 7-8].

Pursuant to the terms of the plea bargain, petitioner was interviewed by Larry Troxel, a District Attorney's investigator, on December 21, 1987. [EHT 14-15, 70-71; EH Ex. F]. Mr. Troxel, who had been an investigator with the Ventura County District Attorney's Office for ten years at the time, was assigned to handle the investigation of the case against Mr. Fauber, as well as the case of petitioner. [EHT 6-7]. During the December 21, 1987 interview, or perhaps during another meeting where Mr. Glynn and petitioner were present, the plea bargain offered by the prosecution was discussed. Based upon those discussions, Mr. Troxel believed that petitioner would plead guilty to second degree murder and would receive a sentence of "15 years tops," so long as he testified truthfully against Mr. Fauber. [EHT 16]. His understanding was that petitioner would not be required to serve "any time beyond 15 years." [EHT 16]. In fact, there was some discussion to the effect that petitioner would "probably do less than the 15 years, perhaps half that time." [EHT 16-17]. It was not Mr. Troxel's understanding that petitioner's sentence would be 15 years to life in jail. [EHT 17]. Mr. Troxel conveyed his understanding of petitioner's sentence to petitioner's mother, Jynx Schoaf, during a conversation with her. [EHT 24]. Mr. Troxel made it clear that his understanding of petitioner's sentence was based upon his conversations with Mr. Glynn. [EHT 20, 24]. Mr. Glynn testified that he had no doubt as to Mr. Troxel's integrity and believability. [EHT 211].

On January 4,1988, before the change of plea hearing, petitioner met with Mr. Wiksell, Mr. Troxel, and Mr. Glynn in the holding cell outside of the courtroom. [EHT 72-73]. The four men discussed whether or not petitioner should plead guilty. Petitioner was reluctant to agree to the plea bargain because he feared violent retaliation by Mr. Fauber, Mr. Caldwell, or other inmates because of his cooperation with the prosecution. [EHT 57-58, 73-74; Memorandum in Support of Petition, Ex. D (Declaration of Brian Buckley ("Buckley Decl.")) at 32].6 He was having second thoughts because the benefits of the deal did not seem worth the risk of physical harm. In particular, in evaluating the advantages and disadvantages of pleading guilty, petitioner compared what he believed his maximum sentence would be if he were convicted on the charges—25 years—to the sentence he would receive if he pleaded guilty—15 years.7 [EHT 73]. Further, petitioner believed that, assuming good behavior, he would serve only half of either sentence so that the difference between the two sentences did not seem substantial. [EHT 73]. At that time, petitioner was told by either Mr. Glynn or Mr. Wiksell that he should focus on the 7$ years he would be serving if he accepted the plea offer. He was also told that he could get a degree in prison and start his own business after he was released, since he would still be a young man. [EHT 73-74].

Petitioner then went into the courtroom and changed his plea to guilty. It was on that date that both Mr. Glynn and Mr. Wiksell signed the Felony Disposition Statement. [EH Ex. H at 8; EH Ex. J].

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