Jenkins v. CIM-MSF

• Decision Date: 07 August 2012
• Docket Number: CASE NO. CV 11-1722-DMS (WMc)
• Parties: CHRISTOPHER LEE JENKINS, Petitioner, v. WARDEN CIM-MSF, Respondent.
• Court: U.S. District Court — Southern District of California

CHRISTOPHER LEE JENKINS, Petitioner,

v.WARDEN CIM-MSF, Respondent.

CASE NO. CV 11-1722-DMS (WMc)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Date: August 7, 2012

REPORT AND

RECOMMENDATION OF

MAGISTRATE JUDGE RE:

PETITION FOR WRIT OF

HABEAS CORPUS

I. INTRODUCTION

Shawn Albin, aka Christopher Lee Jenkins ("Petitioner"), a California inmate appearing pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. Petitioner challenges the validity of his guilty plea and sentencing. Respondent contends Petitioner's first four claims are barred from federal habeas relief because Petitioner failed to properly exhaust these claims and also failed to comply with state procedural rules. Regarding all seven¹ of Petitioner's claims, Respondent argues Petitioner's constitutional rights were not violated, the state courts properly ruled on Petitioner's state petitions, and any error during the state proceedings was harmless.

The Court submits this Report and Recommendation to United States District Judge Dana M. Sabraw pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule H.C.2 of the United States District Court for the Southern District of California.

After reviewing the Petition, Respondent's Answer and Memorandum of Points andAuthorities in support thereof, the Lodgments filed by Respondent, the Petitioner's Traverse and all the supporting documents submitted by the parties, the Court RECOMMENDS the Petition be DENIED for the reasons discussed below.

II. STATEMENT OF FACTS/PROCEDURAL HISTORY

Petitioner was charged with commercial burglary. (Lodgment 1 at p.1-5.) Petitioner pleaded guilty to commercial burglary. (Lodgment 1 at p. 6.) Petitioner also admitted to a prior robbery conviction from Oregon, for which he served time in prison. (Lodgment 1 at p. 6.) Before the Change of Plea and Immediate Sentencing hearing ("Hearing"), Petitioner, with the assistance of counsel, read, initialed and signed a Plea of Guilty form. The form listed the charges, Petitioner's constitutional rights, the consequences of a guilty plea, and other waivers. (Lodgment 1.) The form included check-boxes which Petitioner was instructed to initial after reading the corresponding information. By initialing twenty check-boxes on the form, Petitioner indicated his intent to waive his constitutional rights in order to plead guilty and indicated his understanding and acceptance of the consequences of his guilty plea. (Lodgment 1.) Additionally, Petitioner initialed to confirm he entered his plea "freely and voluntarily," he was "sober and [his] judgment is not impaired," and he had not "consumed any drug, alcohol or narcotics within the past 24 hours." (Lodgment 1 at p. 6.) Petitioner initialed check-boxes indicating his intent to waive his constitutional rights in order to plead guilty, including his right to a speedy and public trial by jury, his right to confront and cross-examine all witnesses, his right to remain silent, and his right to present evidence on his behalf. (Lodgment 1 at p. 6.) Petitioner initialed check-boxes under the "Consequences of Plea of Guilty or No Contest" section and initialed to confirm he "gives up [his] right to a full probation report before sentencing" under the "Other Waiver" section. Also, Petitioner handwrote that he enters a guilty plea for "1 count PC 459," a "strike prior," and a "prison prior." (Lodgment 1.)

At the Hearing, Petitioner verbally waived his constitutional rights and plead guilty to commercial burglary, admitted to a prior robbery offense, and admitted to serving a prior prison term. The following are relevant portions of the hearing transcript:

THE COURT: Mr. Alvin [Petitioner], please raise your right hand to be sworn in. (The [Petitioner] was sworn.)

THE COURT: It looks like I'm giving him the mid-term, the strike prior, plus oneyear prison.

MR. PALMER: Yes.

THE COURT: For a total of five. Is your true name Shawn Ray Maurice Albin?

THE DEFENDANT: Shawn Ray Maurice Albin.

THE COURT: And Christopher Lee Jenkins?

THE DEFENDANT: Apparently so, yes.

THE COURT: Have you taken any medication in the last 24 hours that could affect your understanding of the change of plea proceedings?

THE DEFENDANT: No.

THE COURT: I have a change of plea form with your name on it. Did you read, understand, initial, and sign this form?

THE DEFENDANT: I did, with my attorney.

THE COURT: And you went over it with him, and do you have any questions about its contents?

THE DEFENDANT: I do not.

THE COURT: Do you understand and give up your constitutional rights in order to plead guilty?

THE DEFENDANT: I do.

THE COURT: The plea agreement in this case calls for your pleading guilty to Count 1, felony commercial burglary, Penal Code Section 459. In addition to that, you're going to be admitting a robbery strike prior from 1994, and you're also going to be admitting a prison prior from - the last prison prior. The third prison prior from 2000. The People have agreed to the mid-term of two years. That's doubled by

virtue of your strike prior to four years, and the Court must give an additional one year consecutive for the prison prior for a total term of five years, and I'll run that concurrent with any parole or probation violations you have out there. Is that your understanding?

THE DEFENDANT: That's my understanding.

THE COURT: Before you enter your plea, do you have any questions to ask of the Court?

THE DEFENDANT: No.

THE COURT: Did you go over this form with your attorney?

THE DEFENDANT: I have.

THE COURT: Are you satisfied with his efforts on your behalf?

THE DEFENDANT: Yes.

THE COURT: Are you entering this plea freely and voluntarily because you believe it's in your own personal best interest to do so?

THE DEFENDANT: Yes.

THE COURT: As to Count 1, that on or about September 19th of this year, you unlawfully entered a building with the intent to commit theft in violation of 459, how do you plead?

THE DEFENDANT: Guilty.

THE COURT: Do you admit at the time of this offense, you were previously convicted of the crime of robbery, Penal Code Section 211 - - excuse me, no Penal Code Section. The date of the conviction was December 19, 1994, case number 940835704, in the circuit court of Multnomah, Oregon, and you admit that that's a serious or violent California strike prior?

THE DEFENDANT: I admit.

THE COURT: And do you also admit that you were convicted of petty theft with a prior on March 2nd of the 21st of the year 2000 in case number SCD151604, and a result of that conviction in the San Diego Superior Court, you were sentenced to state prison, and as a result of that prison commitment, that you have failed to remain free of prison custody or free of a new felony offense within five years after your release from prison on the petty theft wit a prior conviction? Do you admit the third prison prior as alleged in the complaint?

THE DEFENDANT: I admit.

THE COURT: As to the factual basis, do you admit that you entered Home Depot with the intent to commit theft and attempted to do so suffering a prison prior?

THE DEFENDANT: I admit.

THE COURT: I accept your plea and find that you are entering this plea freely, voluntarily, and intelligently, and there's a sufficient factual basis upon which to base the plea.

I further find as a matter of law that the petty theft with a prior is a prison prior within the meaning of Penal Code Section 667.5(b) and 68, and I also find that the crime of robbery is a strike prior within the meaning of Penal Code Section 667(b) through (I), 1170.12 and 668. Does he waive time for sentencing?

MR. PALMER [Petitioner's trial attorney]: He does.

THE COURT: Any reason why judgment cannot be pronounced?

MR. PALMER: No.

THE COURT: Waive probation report?

MR. PALMER: He does.

THE COURT: The Court will deny probation as to Count 2, sentence you to the mid-term of two years by virtue of your admission of the strike prior. That term is doubled by operation of law to a total term of four years, and based upon your admission of the prison prior, the court is adding an additional one year for a total term - - of five years with credits of 14 actual, six 4019 credits, $500 restitution fine to be paid forthwith. A second restitution fine of $500 is stayed unless your parole is revoked.

(Lodgment 2.)

The trial judge sentenced Petitioner to five years in prison. (Lodgment 2 at 6:10-20). Petitioner filed a notice of appeal challenging the validity of his plea and requested a certificate of probable cause in the superior court. (Lodgment 1 at p. 23-24.) The superior court denied Petitioner's request. (Lodgment 1 at p. 40.)

On direct appeal, Petitioner, represented by counsel, filed a Wende brief with the Court of Appeal. (Lodgment 2.) In his brief, Petitioner's counsel did not affirmatively allege any arguable issue, but asked the court to review the record for error pursuant to People v. Wende, 25 Cal. 3d 436, 158 Cal. Rptr. 839, 600 P.2d 1071 (1979) and Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). (Lodgment 2 at pp. 4-5.) With the appellate court's permission, Petitioner submitted a supplemental brief challenging the validity of his plea. (Lodgment 5.) Petitioner argued his guilty plea to commercial burglary and prior offense were invalid, his prior offense from Oregon was not a "strike", and the trial court did not verbally advise Petitioner of his constitutional rights. After reviewing the record pursuant to People v. Wende, supra, 25 Cal.3d 436 (1979), the appellate court found no reasonably arguable appellate issues and affirmed judgment. Petitioner did not filed a petition for review in the California Supreme Court. (Doc. 1 at pg 2.)

Petitioner filed writs of habeas corpus with the superior court, court of appeal, and the California Supreme Court, challenging the validity of his guilty plea and sentencing. Each petitionraised the following issues: (1) Petitioner did not admit to committing a prior burglary; (2) Petitioner's prior offense from Oregon does not apply under California's "Three Strikes" law;...