Perez v. Rosario

• Decision Date: 22 May 2006
• Docket Number: No. 04-15279.,04-15279.
• Citation: 459 F.3d 943
• Parties: Albino PEREZ, Petitioner-Appellant, v. Terry ROSARIO, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 943

459 F.3d 943

Albino PEREZ, Petitioner-Appellant, v. Terry ROSARIO, Respondent-Appellee.

No. 04-15279.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 6, 2004.

Submission Deferred December 8, 2005.

Resubmitted May 22, 2006.

Filed May 22, 2006.

Amended July 13, 2006.

Kent A. Russell, Russell and Russell, San Francisco, CA, argued the cause for the petitioner-appellant and was on the briefs.

Christopher W. Grove, Deputy Attorney General of the State of California, San Francisco, CA, argued the cause for the respondent-appellee; Bill Lockyer, Attorney General of the State of California, was on the brief for the respondent-appellee.

Appeal from the United States District Court for the Northern District of California; William H. Alsup, District Judge, Presiding. D.C. No. CV-02-05237-WHA.

Before DIARMUID F. O'SCANNLAIN, ROBERT E. COWEN,^* and CARLOS T. BEA, Circuit Judges.

ORDER AND AMENDED OPINION

O'SCANNLAIN, Circuit Judge.

ORDER

The opinion filed on May 22, 2006 is amended as follows Slip Op. 5555. Insert the following footnote after the final paragraph in Part IV:

Because Perez requested an evidentiary hearing in California state court, he would be entitled to an evidentiary hearing on disputed facts if "(1) he has alleged facts that, if proven, would entitle him to relief, and (2) he did not receive a full and fair evidentiary hearing in state court." Horton v. Mayle, 408 F.3d 570, 582 n. 6 (9th Cir.2005). Perez cannot satisfy the first prong of this test. His allegations are incredible; thus he has not alleged facts that if proven would entitle him to relief, but rather has alleged facts that could not be proven at all.

No petition for rehearing or rehearing en banc has been filed, and none will be entertained.

OPINION

In this habeas corpus appeal, we must decide whether an attorney's alleged faulty advice to his criminal defendant client during the plea bargaining process in state court constitutes ineffective assistance of counsel.

I

In 1987 Albino Perez's girlfriend left him for John Hernandez. Perez took a hammer to Hernandez and broke his arm before he was pulled off.

A

Eight years later, Hernandez was driving his Honda Prelude home from running an errand, sometime between 7:00 and 7:30 PM on April 16, 1995, when he observed a dark-colored BMW stopped in the street. When he pulled forward to investigate, he saw Perez in the driver's seat, wearing a blue-knit cap. Perez then pulled out a black semi-automatic handgun. Hernandez sped away while Perez fired several shots. Hernandez escaped unhurt but his car was riddled with bullet holes.

The police searched the area and found ten-millimeter shell casings and a ten-millimeter bullet. They went to Perez's house but were unable to find a BMW there, outside or in the garage. Two days later, they returned with an arrest warrant and found a dark-blue BMW parked in front, which they towed because it would not start. The police also found a ten-millimeter bullet and a blue knit cap in Perez's room. Perez was charged with assault with a deadly weapon.

Perez turned down a plea bargain offer and trial began in September of 1996. John Hernandez testified as the prosecution's key witness. The prosecution also presented forensic evidence of gun-shot residue in Perez's BMW and had a ballistics expert testify that the markings on the bullet found in Perez's bedroom were similar to those found on the casings at the scene of the shooting. Another expert witness testified that he had examined the BMW and it could have been operable the night of the shooting.

In turn, Perez presented testimony that the BMW in his possession was inoperable during the time of the shooting and called a witness whose testimony provided circumstantial evidence that two unknown Asian men were the real culprits.

The state court jury found Perez guilty of assault with a deadly weapon and other crimes. The trial court eventually found that Perez's previous felonies qualified him for a three-strikes sentence and sentenced him to a prison term of 47 years to life.

B

In March of 1997, counsel filed a motion for a new trial, based on the testimony of Gilbert Hernandez that John Hernandez his brother, had admitted that he was not really sure who had shot at him. The trial court rejected the motion because Gilbert, a felon, was not credible.

In October of 1997, counsel then filed a second motion for a new trial, based on testimony from Monico Lopez giving circumstantial evidence that Jose Villanueva was the real shooter. This motion was also denied.

Perez changed attorneys and filed a third motion for a new trial, which was also denied.

C

Perez then filed an appeal which was ultimately denied. Simultaneously, he petitioned the California Court of Appeal for a state writ of habeas corpus, claiming ineffective assistance of counsel on numerous grounds. He also submitted various supporting declarations. In one made in 1999, Perez gave his own account ("the first declaration"). He claimed that Jose Villanueva had come to him in prison before the trial and confessed to the shooting but had made him promise not to tell anyone. After the State of California responded that Perez's account did little to show ineffective assistance of counsel, Perez submitted a second declaration. In that declaration Perez added that he had told prior counsel about the Villanueva confession and had planned on testifying about it but prior counsel closed without calling him. Additional declarations were submitted, including one from a man named Jim Ford who said he accompanied Villanueva during his confession and corroborated the account in Perez's first declaration. Perez also sought but ultimately did not receive a declaration from his prior counsel.

The California Court of Appeal found these declarations incredible and denied Perez's habeas petition, including his request for an evidentiary hearing on the various ineffective assistance claims. The Supreme Court of California summarily denied Perez's petition to it.

D

In due course Perez filed his petition for writ of habeas corpus in the federal district court, which denied it. Perez's timely appeal is now here.

II

As the primary basis for his ineffective assistance of counsel claim, Perez avers that if his counsel had properly advised him that he faced a life-sentence under California's three-strikes law, he would not have rejected the plea bargain. Under the first prong of the ineffective assistance of counsel test found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Perez must show that his prior counsel's advice during the plea bargaining process "fell below an objective standard of reasonableness." See id. at 688, 104 S.Ct. 2052. In evaluating Perez's claims under this prong, we must indulge, and we must permit the California state courts to indulge, "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." See id. at 689, 104 S.Ct. 2052.

Under the second prong of the Strickland test Perez must show that his prior counsel's mistakes resulted in prejudice. Generally, there must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

The record shows that, at a pre-trial hearing in July of 1995, the prosecutor mistakenly came to the conclusion that one of Perez's previous convictions did not count as a strike.¹ The trial judge reinforced the error by agreeing with the prosecutor. Based on that error, the prosecutor then offered a plea bargain of fourteen years. In his 1999 declaration, Perez stated that when he and prior counsel went aside immediately thereafter to discuss the bargain, prior counsel failed to inform him that the prosecutor and the judge were mistaken and that Perez really faced a life sentence if convicted because the conviction would be his third strike. Instead, Perez claimed, prior counsel advised him to turn down the plea bargain. Prior counsel felt that fourteen years was too long a sentence for a conviction that was not a third strike. Perez stated that if properly advised that he faced a three-strikes life sentence, he would have taken a few days to think the plea bargain over and then would have accepted it.

The California state court had previously rejected this claim on two grounds. First, it held that Perez's uncorroborated after-the-fact declaration was alone legally insufficient to establish that he would have accepted the plea bargain if offered one.² Second, it made a pair of factual findings to which we must ordinarily defer: that prior counsel knew during the preliminary hearing that this conviction could potentially be Perez's third strike, and that he had already formed the strategic intention of challenging the validity of the prior strikes, if the issue arose.

Here, the district court also made two relevant findings of fact: that the prosecutor would have realized his mistake and withdrawn the plea bargain offer while Perez was taking a few days to think it over, and that the state trial judge would have refused to accept the plea, since Perez would have refused to admit guilt.

Any of these four findings, if sustained, would be enough to warrant denying Perez's claim. Because Perez contests these findings, see United States v. Howard, 381 F.3d 873, 879 (9th Cir.2004) (reminding that evidentiary hearings can be in order "once a petitioner asserts a more detailed claim, about which there are controverted facts"), we will instead consider the unusual legal question presented by this case: whether Perez can validly claim ineffective assistance of counsel when the legal mistake that allegedly denied him effective assistance of counsel in the plea bargaining process was the same mistake that led to his being offered a plea bargain in the first place.

We conclude that...