Powers v. Covello, 20-cv-04244-HSG

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
PartiesANTHONY POWERS, Petitioner, v. PATRICK COVELLO, Respondent.
Decision Date22 April 2022
Docket Number20-cv-04244-HSG



No. 20-cv-04244-HSG

United States District Court, N.D. California

April 22, 2022



Petitioner, a state prisoner incarcerated at Mule Creek State Prison, has filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the validity of a conviction obtained against him in state court. Dkt. No. 1 (“Pet.”). Respondent has filed an answer (Dkt. Nos. 16, 17), and Petitioner has filed a traverse (Dkt. No. 20). The Court has carefully considered the briefs submitted by the parties. For the reasons set forth below, the petition is DENIED.


On April 27, 2017, Petitioner pled no contest in Napa County Superior Court to misuse of personal identifying information (Cal. Penal Code § 530.5(a)) and misdemeanor possession of methamphetamine (Cal. Health & Safety Code § 113377(a)) and admitted having a prior strike conviction. Petitioner entered his plea as part of a plea bargain that provided for a two-year sentence or, if he failed to appear for subsequent hearings, a six-year sentence. Petitioner was released from custody on the day of his plea. Ans., Ex. 1 (“CT”) at 30-36 and Ex. 2 (“RT”) at 255-59.[1] The sentencing hearing was scheduled for May 30, 2017, but Petitioner failed to appear.


CT at 37. On November 1, 2017, Petitioner moved to withdraw his plea, and on January 3, 2018, he withdrew that motion. Pet. at 15. On January 5, 2018, the trial court sentenced Petitioner to six years in state prison. CT at 69.

Petitioner appealed. CT at 82. On or about June 21, 2018, Petitioner filed an application for relief from the certificate of probable cause requirement (Cal. Penal Code § 1237.5) in his appeal and argued that his attorney had been ineffective for failing to request a certificate. Ans., Ex. 4. He also filed a habeas petition in the California Court of Appeal raising the following arguments: (1) his plea was involuntary under applicable federal standards because he was not informed that his offense could have been reclassified as misdemeanor shoplifting pursuant to Proposition 47; and (2) trial counsel was ineffective for failing to make a motion to reclassify his offense as misdemeanor shoplifting pursuant to Proposition 47, for failing to advise Petitioner that the offense could have been reclassified, and for failing to seek to withdrew the plea on the grounds that it was involuntary in the absence of Petitioner's knowledge of the potential for reclassification. Ans., Ex. 5 (Dkt. No. 17-22). On September 5, 2018, the California Court of Appeal ordered the habeas petition consolidated with the appeal and directed the Attorney General to provide an informal response. Ans., Ex. 7 (Dkt. No. 17-24).

On May 21, 2019, the California Court of Appeal issued an unpublished opinion, finding that the claims raised in the appeal were forfeited by Petitioner's failure to obtain a certificate of probable cause, and that Petitioner's ineffective assistance of counsel claim did not excuse the failure and did not “surmount the lack of a certificate . . .” Ans., Ex. 11 at 6 (Dkt. No. 17-28 at 7). The California Court of Appeal denied the application for relief from the certificate of probable cause requirement, dismissed the appeal, and denied the petition for writ of habeas corpus. Ans., Ex. 11 (Dkt. No. 17-28).

Petitioner filed a petition for review of the denial of the appeal and habeas petition in the California Supreme Court. Ans., Ex. 12. In this petition, Petitioner argued that (1) the state appellate court erred in finding that Petitioner was precluded from raising his claims as a result of his failure to obtain a certificate of probable cause because Petitioner could not have raised either claim on appeal since the claims relied on evidence outside of the appellate record; and (2) he was


entitled to relief on the merits of both claims. The California Supreme Court summarily denied the petition for review on August 14, 2019. Ans., Ex. 13 (Dkt. No. 17-30).

On February 14, 2020, Petitioner filed in superior court a motion for modification of his sentence pursuant to Cal. Senate Bill No. 1392, [2] and a motion for resentencing pursuant to Cal. Senate Bill No. 136 (“SB 136”).[3] On March 4, 2020, the superior court denied the motion for modification of the sentence as too vague and/or unsupported by sufficient evidence, and denied the motion for resentencing under Cal. Senate Bill No. 136 on the grounds that the judgment was final and the conviction did not qualify for the relief sought. Ans., Ex. 14 at 60-68 (Dkt. No. 1731 at 62-70).

On May 18, 2020, Petitioner filed a resentencing motion in Napa County Superior Court. Ans., Ex. 14 at 69-84. On June 11, 2020, the superior court denied the petition with a citation to People v. Jimenez, 9 Cal. 5th 53 (Cal. 2020). Ans., Ex. 14 at 85 (Dkt. No. 17-31 at 87). In Jimenez, the California Supreme Court held that Proposition 47 does not allow for the reduction of a felony conviction for misuse of personal identifying information under Cal. Penal Code § 530.5(a) to misdemeanor shoplifting. People v. Jimenez, 9 Cal.5th 53, 58 (Cal. 2020).

Petitioner appealed the superior court's decision not to reduce his felony conviction to a


misdemeanor. Petitioner's court-appointed counsel also filed a brief seeking the appellate court's independent review of the record pursuant to People v. Wende, 25 Cal.3d 436 (Cal. 1979), to determine whether there were any arguable issues on appeal. Ans., Ex. 14 at 86. On September 28, 2020, in an unpublished opinion, the California Court of Appeal affirmed the superior court's denial of the resentencing motion, and, after reviewing the entire record, found that there were no issues which required further briefing. Ans., Ex. 15.

On or about June 17, 2020, [4] Petitioner filed the current petition alleging the following claim for federal habeas relief:[5] the guilty plea was not knowing, voluntary, or intelligent because trial counsel did not advise Petitioner that his offense could have been reclassified as a misdemeanor pursuant to Proposition 47. Dkt. No. 1.


The following factual background is taken from the May 21, 2019 opinion of the California Court of Appeal:[6]

On October 26, 2016, Powers's car was pulled over by American Canyon police when he failed to proceed through an intersection after the light changed to green. He appeared to be inebriated, his license was suspended or revoked, and his wallet contained numerous identification cards, drivers' licenses, and credit cards belonging to six different individuals. One of those individuals later told police that one credit card found in Powers's possession had been stolen and used at a Kentucky Fried Chicken near the scene of the theft. A baggy containing methamphetamine, a glass smoking pipe and an open bottle of vodka were found in the car. Powers had a 30-year criminal history, was on probation in Solano and Sacramento counties, and would possibly serve a lengthy sentence in his Sacramento cases
The Napa County district attorney charged Powers with one count of felony identity theft (§ 530.5, subd. (a)), six counts of misdemeanor identifying information theft (§ 530.5, subd. (c)(1)), possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), possession of an injection/ingestion device (Health & Saf. Code, § 11364, subd. (a), and driving with a suspended or revoked license (Veh. Code, § 14601.1, subd. (a)). The complaint alleged a prior serious or violent felony conviction pursuant to section 667, subdivisions (b) through (i).
On April 27, 2017, pursuant to a negotiated disposition, Powers entered a no contest plea to identity theft and possession of a controlled substance, admitted the prior conviction allegation, and was immediately released on his own recognizance pending sentencing. The plea bargain contemplated a two-year prison sentence, to be increased to six years if Powers failed to appear or committed any new offense.
On May 30, Powers failed to appear for sentencing. The court revoked his ownrecognizance release and issued a bench warrant.
On November 1, 2017, Powers moved to withdraw his plea. He asserted his plea was involuntary because he had cancer and was on pain medication at the time, did not appreciate the risk of a six-year sentence, entered the plea against his attorney's advice, and “[t]he prospect of immediate release and influence of pain medication overcame the exercise of my free judgment.” On January 3, 2018, Powers withdrew the motion. He was sentenced in accord with the plea agreement to six years in prison, consisting of the aggravated three-year term for identity theft doubled due to the prior strike conviction, plus a concurrent 100 days for the controlled substance misdemeanor.

People v. Powers, C No. A153361, 2019 WL 2183386, at *1-*2 (Cal.Ct.App. May 21, 2019).


Respondent argues that Petitioner's claim is procedurally defaulted because he failed to obtain a certificate of probable cause as required by Cal. Penal Code § 1237.5. In the alternative, Respondent argues that Petitioner's claim fails on the merits because his conviction under Cal. Penal Code § 530.5 is ineligible for reduction to a misdemeanor under Proposition 47. See Dkt. No. 16.

I. Standard of Review

A petition for a writ of habeas corpus is governed by AEDPA. This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

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