Pogue v. Ratelle
| Decision Date | 30 July 1999 |
| Docket Number | No. 98-CV-922 K(LAB).,98-CV-922 K(LAB). |
| Citation | 58 F.Supp.2d 1140 |
| Parties | Leon H. POGUE, Petitioner, v. John M. RATELLE, Respondent. |
| Court | U.S. District Court — Southern District of California |
Leon Heinz Pogue, San Diego, CA, pro se.
Attorney General, State of Cal., San Diego, CA, for Respondent.
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DENYING MOTION TO PRODUCE PERTINENT RECORDS
On May 15, 1998, Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed supplemental briefing on June 30, 1998, after receiving permission to do so from the Magistrate Judge Larry A. Burns.
On May 4, 1999, Magistrate Judge Larry A. Burns issued a Report and Recommendation ("R & R") denying the petition. Magistrate Judge Burns submitted the R & R to this court pursuant to 28 U.S.C. § 636(b)(1). In the R & R, Magistrate Judge Burns ordered that the parties may file any objections to the R & R by June 7, 1999, and allowed any reply to be filed by June 21, 1999. On May 14, 1999, Respondent John M. Ratelle, filed objections. On May 20, 1999, Petitioner Leon H. Pogue filed objections which also contained references to Ratelle's objections. Respondent did not file a reply.
According to 28 U.S.C. § 636(b)(1)(C), Id.
After a review of the Magistrate Judge's R & R and Petitioner's arguments, the court, hereby, adopts the R & R en toto pursuant to Rule 8 of the rules governing proceedings in the United States district courts under Title 28 U.S.C. § 2254.
The procedural history, as succinctly set forth by Judge Burns, is not objected to by either party.
The following history, therefore, is largely taken from the R & R.
On September 4, 1996, Petitioner was sentenced to life in prison by the San Diego County Superior Court after a jury found him guilty of auto theft and possession of drug paraphernalia. Petitioner was sentenced under California's "Three Strikes" law, California Penal Code, §§ 667(b)-(l) and 1170.12, because he had previously been convicted of three robberies. Although Petitioner seeks habeas relief in relation to the life sentence he received in the 1996 auto theft and drug paraphernalia case, his prior robbery convictions were used to enhance his sentence for the 1996 auto theft. Accordingly, the procedural history relating to Petitioner's prior robbery convictions is set forth in detail below.
On July 22, 1991, Petitioner was charged with committing a knife-point robbery in San Diego ("the San Diego case"). San Diego County Deputy Public Defender Cathlyne Coyne was appointed to represent him. On August 1, 1991, Petitioner pled guilty to the robbery charge pursuant to a plea agreement in the San Diego County Superior Court (hereafter the "San Diego plea agreement"). See First Amended Habeas Corpus Petition ("FAHCP") at 2. According to the change of plea form, in exchange for Petitioner pleading guilty to the San Diego robbery, the district attorney promised to ask for no more than six years custody and further agreed that "no additional robberies [would] be filed." See FAHCP, Exhibits A and B at 3-4.
As it turned out, the language in the change of plea form overstated the parties' actual agreement on whether additional robbery charges could be brought against Petitioner. The terms of the agreement were clarified, however, during the change of plea colloquy that preceded Petitioner's guilty plea. Referring to the change of plea form, the judge taking Petitioner's guilty plea recited the terms of the agreement as follows:
What that means is you'd be agreeing you'd get that six-year term. In return for that agreement, the rest of this complaint, which could have added more years, will be dismissed. Also no additional robberies will be filed against you which are known or could become known as a result of property found in your car at the time of your arrest.
FAHCP, Exhibit B at 3-4 (emphasis added).
The judge then asked: "Now, Mr. Pogue, is all this that we've just talked about a correct statement of the agreement in your case?" Petitioner replied, "Yes, Sir, it is." Id. at 4. The judge then accepted Petitioner's guilty plea. Petitioner was subsequently sentenced to six years in state prison on the San Diego robbery charge.
Two weeks later, on August 15, 1991, the district attorney charged Petitioner with committing another robbery in El Cajon ("the El Cajon case"). San Diego County Deputy Public Defender Michael Berberich was appointed to represent Petitioner in the El Cajon case. During a criminal settlement conference, Mr. Berberich told the court he was familiar with the San Diego plea agreement and that he had discussed the agreement with Petitioner and with Ms. Coyne, Petitioner's lawyer in the San Diego case. Mr. Berberich did not believe the agreement foreclosed the district attorney from charging Petitioner with the El Cajon robbery.1 Moreover, Berberich disclosed that Coyne had met with Petitioner after he was charged in the El Cajon case and "explained to him what was going on, what the results were, what his options were, etc., and she advised him that, notwithstanding any miscommunication as to what was encompassed by [the San Diego robbery] change of plea, it would not be in [Petitioner's] interest to withdraw that change of plea in San Diego." Lodgment No. 1 at 191. Accordingly, on Berberich's advice, Petitioner pled guilty on September 11, 1991, to the El Cajon robbery charge and was sentenced to six years in custody, to run concurrently with the sentence in the San Diego case.
On October 10, 1991, the district attorney charged Petitioner with a third robbery that had been committed in North San Diego County ("the Vista case"). Petitioner was represented by San Diego County Public Defender William Stone. On November 11, 1991, Petitioner pled guilty to the Vista robbery charge pursuant to a plea agreement that provided he would receive only one additional year in custody, "subordinate" to the concurrent sentences he was serving in the San Diego and El Cajon cases. Lodgment No. 2 at 266. Petitioner acknowledged during his change of plea colloquy that he was satisfied with Mr. Stone's efforts in his behalf and that he was pleading guilty to obtain the benefit of the plea agreement. Id. at 267. On January 17, 1992, Petitioner was sentenced to one year in custody in the Vista case, to be served consecutive to his previously-imposed six year sentence. Id. at 248.
Petitioner did not directly appeal any of the robbery cases and the judgments became final.
Petitioner was released from prison on the robbery cases in 1995 and thereafter was arrested and charged with the felony crimes of auto theft and possession of drug paraphernalia. He was convicted following a jury trial. At sentencing, the district attorney sought to enhance Petitioner's sentence under the Three Strikes law based on his three prior robbery convictions. Petitioner argued that the Three Strikes enhancement should not apply to him because the district attorney violated the San Diego plea agreement by charging him subsequently with two additional robberies (in the El Cajon and Vista cases). After conducting a hearing on the matter, the trial judge rejected Petitioner's argument and sentenced him to life in prison under the Three Strikes law.
Petitioner appealed to the California Fourth District Court of Appeals, renewing his argument that the trial court should not have considered the two, subsequent robbery convictions. The Court of Appeals unanimously affirmed the judgment on January 29, 1998, in an unpublished opinion. Lodgment No. 13. Petitioner then filed a petition for writ of habeas corpus on the same grounds with the state Court of Appeals, which was denied on February 20, 1998. See Lodgment No. 12 and Un-numbered (third) Exhibit to FAHCP at 2. On February 19, 1998, Petitioner filed a petition for writ of habeas corpus with the California Superior Court, again contending that the trial court erred in relying on the prior robbery convictions. See Un-numbered (third) Exhibit to FAHCP at 2. The Superior Court denied the petition on March 12, 1998. Id. Petitioner next filed a petition for review with the California Supreme Court, which summarily denied the petition on April 22, 1998. Lodgment Nos. 17 & 18.
As noted above, Petitioner filed the present petition on May 15, 1998.
The issues raised by this writ are: 1) whether this court has jurisdiction to review Petitioner's challenges to the validity of his 1991 "Vista" and "El Cajon" robbery convictions; 2) whether petitioner's indictment and conviction for the "Vista" and "El Cajon" robberies violates the terms of the plea agreement he entered into after the 1991 "San Diego" robbery. In the R & R, Judge Burns found that under Ninth Circuit and Supreme Court law, the court has jurisdiction to hear Petitioner's challenges to the validity of the 1991 "Vista" and "El Cajon" convictions which were used to enhance his 1996 car theft sentence. Having determined that jurisdiction existed pursuant to 28 U.S.C. § 2254, Judge Burns then turned to the merits of Petitioner's writ. Judge Burns found that under clearly established federal law the prosecutors must fulfill the promises made in return for defendant's guilty plea pursuant to the Due Process Clause of the Constitution. After examining the scope of the plea agreement, Judge Burns concluded that the government had not breached the plea agreement. As a result, Judge Burns held that the 1991 convictions were valid. The 1991 Convictions, therefore, were properly used as...
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