Myers v. Mendoza-Powers
| Decision Date | 15 December 2008 |
| Docket Number | No. EDCV 06-1221-JSL (AGR).,EDCV 06-1221-JSL (AGR). |
| Citation | 621 F.Supp.2d 902 |
| Parties | Derrick Tyrone MYERS, Petitioner, v. Kathy MENDOZA-POWERS, Respondent. |
| Court | U.S. District Court — Central District of California |
James R. Bostwick, Jr., James R. Bostwick Jr. Law Offices, Claremont, CA, for Petitioner.
Angela M. Borzachillo, Stacy A. Tyler, CAAG Office of Attorney General of California, San Diego, CA, for Respondent.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the Magistrate Judge's Report and Recommendation. The Court agrees with the recommendation of the magistrate judge.
IT IS ORDERED that the Magistrate Judge's Report and Recommendation is adopted.
IT IS FURTHER ORDERED that (1) a conditional writ of habeas corpus is granted as to Ground One; (2) Respondent shall permit Petitioner to withdraw his plea in San Bernardino County Superior Court Case No. FSB041428, or shall release Petitioner from custody, within sixty (60) days of the date the Judgment herein becomes final, plus any additional delay authorized under state law; and (3) the Petition is otherwise denied.
IT IS FURTHER ORDERED that Judgment be entered accordingly.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
The Court submits this Report and Recommendation to the Honorable J. Spencer Letts, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order No. 05-07 of the United States District Court for the Central District of California. For the reasons set forth below, the Magistrate Judge recommends the Petition for Writ of Habeas Corpus be granted.
Petitioner pled guilty to robbery and petty theft with a prior. On August 9, 2004, Petitioner was sentenced to 11 years, 4 months in state prison. (Lodged Document "LD" 2 at 50.) On June 15, 2005, 2005 WL 1400159, the California Court of Appeal modified the sentence to ten years and otherwise affirmed the judgment. (LD 7.)
On September 30, 2005, the California Supreme Court granted the petition for review. (LD 11.) On remand, the California Supreme Court ordered the Director of Corrections to show cause "why trial counsel was not ineffective in advising petitioner to enter a guilty plea to the charge of robbery in light of the lack of evidence to support the robbery charge, and why petitioner should not be allowed to withdraw his guilty plea to robbery." (Id.)
On February 14, 2006, the trial court, on remand, did not conduct an evidentiary hearing. The trial court found that "the crime [of robbery] had in fact not been committed by the Petitioner." (LD 16 at 2.) The trial court found that "Petitioner entered his plea to the robbery against counsel's advice." (Id.) "Trail (sic) counsel was not ineffective and did all in his power to persuade the Petitioner not to agree to the robbery charge." (Id. at 3.) Petitioner did not follow counsel's advice because of "his own eager desire to be temporarily released from custody." (Id. at 2.)
On April 6, 2006, the California Court of Appeal denied the petition for writ of habeas corpus without explanation. (LD 18.) On June 21, 2006, the California Supreme Court denied the petition for review. (LD 20.)
On November 7, 2006, Petitioner filed a Petition for Writ of Habeas Corpus By a Person in State Custody ("Petition") in this Court pursuant to 28 U.S.C. § 2254. The Petition states two grounds: (1) ineffective assistance of counsel; and (2) a coercive plea agreement. (Petition at 5 & Attachment # 10.) On February 12, 2007, Respondent filed an answer that admitted both claims are exhausted, as Respondent understands the claims. (Answer at 2.) On March 13, 2007, Petitioner filed a Reply.
On May 16, 2008, the Court granted Petitioner's request for an evidentiary hearing. (Dkt. No. 13.) A status conference was held on June 12, 2008. (Dkt. No. 16.) On September 10, 2008, the Court conducted an evidentiary hearing. On October 6, 2008, Respondent filed a Notice of Supplemental Authority.
This matter has been taken under submission and is now ready for decision.
Below are the facts set forth in the California Court of Appeal decision on direct review. To the extent an evaluation of Petitioner's claims for relief depends on an examination of the record, the Court has made an independent evaluation of the record specific to Petitioner's claims for relief.
On October 13, 2003, a San Bernardino Rite Aid drug store security officer, Thomas Rhodes, detained defendant as he exited the store when an antitheft device located at the entrance activated. Rhodes noticed that defendant's waistband appeared "bulky" and asked defendant what he had. Defendant reached into his right rear pocket and removed two canisters of deodorant.
Defendant was escorted back into the store by Rhodes and the store manager, Olin Thrower. Once inside the store, Rhodes and Thrower told defendant to empty his pockets. Defendant reached into the front of his pants and removed six more canisters of deodorant.
Defendant pleaded with Rhodes not to call the police. When defendant became agitated and tried to flee, Rhodes wrestled him to the ground and handcuffed him. San Bernardino Police Officer Mary Yanez responded to the scene and took defendant into custody.
(LD 7 at 3-4.)
On October 15, 2003, Petitioner was charged with felony petty theft with a prior. (LD 2 at 1-2.)
A preliminary hearing was held on November 10, 2003. (Id. at 12.) In addition to Count 1, the prosecutor asked the Court to hold Petitioner to answer to a violation of Cal.Penal Code § 211 (robbery). (Id. at 23.) However, the court held Petitioner to answer only on Count 1. (Id.)
On November 13, 2003, an information was filed against Petitioner adding a charge of robbery as Count 2. (Id. at 28-31.) Myers' counsel, William Dole, never filed a motion to dismiss the robbery count under Cal.Penal Code § 995. At the evidentiary hearing, Dole testified that the preliminary hearing evidence was insufficient to establish probable cause for robbery. (Tr. at 11:20-25, 13:25-14:6.)1 Dole intended to file a motion to dismiss under § 995.2 (Id. at 16:7-17.) Dole could not explain why he did not file the motion.3 (Id. at 16:18-22.)
On January 9, 2004, the matter came on for trial readiness. (LD 2 at 35.) The prosecutor offered a plea of guilty to Count 1 for 16 months, admit one strike and double the term to 32 months, and Count 2 (robbery) would be dismissed. (LD 1 at 2-3.) Petitioner responded:
(Id. at 3.) The court asked: "Mr. Myers, they're offering you 32 months. Do you want it or not? Petitioner responded, "No, sir." (Id. at 4.) Defense counsel stated that Petitioner wanted two years with no strike. (Id. at 2.)
On January 20, 2004, the parties notified the court that there was a signed plea bargain. (LD 2 at 38.) The written plea agreement provided that Petitioner "freely and voluntarily" entered into the plea "[b]ecause I am guilty ... and" "[b]ecause the district attorney agreed" to certain sentencing terms. (Id. at 45.)
Petitioner's attorney, Dole, signed the plea agreement. (Id. at 46.) The attorney statement on the plea agreement provided, among other things, that "I concur in the defendant's withdrawal of his plea of not guilty; and that I concur in the defendant's plea of guilty and/or admissions to the charge(s) as set forth by the defendant in the above declaration." (Id.) The matter was continued to April 12, 2004. (Id. at 38, 45-46.)
The plea hearing took place on April 12, 2004. Dole did not appear. (LD 1 at 5.) The court stated: (Id.) Petitioner agreed. (Id.) A person identified as Mr. Poston indicated that (Id. at 6.)
In the plea hearing transcript, there is no mention of an attorney appearing for Petitioner at the plea hearing until page 11 of the transcript, when the court addressed Steve Bremser after Petitioner pleaded guilty. (Id. at 11.) However, at the evidentiary hearing, Bremser testified that he appeared at the plea hearing starting with page 6, line 7. (Tr. at 100:2-9.)
In the plea hearing transcript, when the court inquired whether Bremser joins in the plea agreement, Bremser asked who signed the agreement. The court responded, "Mr. Dole." Mr. Bremser then joined in the plea agreement "[o]n behalf of Mr. Dole." (LD 1 at 11.)
The court found that counsel joined in the plea agreement. (Id. at 13.) The court further found that a preliminary hearing established the factual basis for the entry of the plea. (Id.) The court indicated, however, that the agreed upon 11 year, 4 month term in the plea agreement was above the maximum sentence because of a merger of the two counts, which arose from the same incident. The court "round[ed] it off at ten years." (Id. at 14-15.) The court sentenced Petitioner to 10 years in state prison on Count 2 (the upper term for robbery) and a concurrent sentence of 4 years on Count 1 (the midterm for petty theft with a prior), with no explanation as to why the court chose the upper term for robbery. (Id. at 15.) The Court stayed execution of the sentence to May 20, 2004. (Id. at 16.) The court stated that if Petitioner returned on May 20, 2004 and complied with the probation office's requirements, his sentence would be reduced to 32 months.4 (Id....
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