Santana v. Foulk

• Decision Date: 04 August 2015
• Docket Number: Case No. 1:13-cv-02034 MJS (HC)
• Court: U.S. District Court — Eastern District of California
• Parties: JOSE LUIS SANTANA Petitioner, v. FRED FOULK, Warden, Respondent.

JOSE LUIS SANTANA Petitioner, v. FRED FOULK, Warden, Respondent.

Case No. 1:13-cv-02034 MJS (HC)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

August 4, 2015

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

ORDER GRANTING APPLICATION FOR LEAVE TO FILE OVERSIZED BRIEF (Doc. 35)

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent, Fred Foulk, Warden of High Desert State Prison is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented by Mark A. Johnson of the office of the California Attorney General. Both parties have consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 16, 24.)

I. PROCEDURAL BACKGROUND

Petitioner is currently incarcerated pursuant to a judgment of the Superior Court of California, County of Kern, following his no contest pleas on July 19, 2010 of two counts of possession of methamphetamine, felon in possession of a firearm, possession of a loaded firearm in a vehicle, and felon in possession of ammunition. (Clerk's Tr. at 212-13.) On September 10, 2010, the trial court sentenced Petitioner to a determinate term of ten (10) years in state prison. Id.

Petitioner filed a direct appeal with the California Court of Appeal, Fifth Appellate District. (Lodged Doc. 1.) On May 30, 2012, the court struck a duplicative enhancement allegation, but otherwise affirmed the judgment. (Lodged Doc. 3.) Petitioner filed a petition for review with the California Supreme Court on July 10, 2012. (Lodged Doc. 4.) The Supreme Court summarily denied the petition on August 29, 2012. (Lodged Doc. 5.) Petitioner did not seek collateral review of his convictions in the state courts.

Petitioner filed the instant federal habeas petition on December 2, 2013. (Pet., ECF No. 1.) On March 11, 2014, Petitioner filed an amended petition that serves as the operative petition in this matter. (1st Am. Pet., ECF No. 12.) In the amended petition, Petitioner presents three claims for relief: 1) that his due process rights were violated due to the failure of the prosecution to disclose the reasons for police investigation and arrest of Petitioner; 2) that his due process rights were violated by the court not providing adequate time for defense counsel to investigate and argue his motion to withdraw his plea; and 3) that trial counsel was ineffective in presenting his motion to withdraw the plea. (1st Am. Pet.)

Respondent filed an answer to the petition on June 11, 2014, and Petitioner filed a traverse to the answer on October 29, 2014. (Answer and Traverse, ECF Nos. 22, 34.) With respect to his traverse, Petitioner filed an application for leave to file an oversized brief, as the traverse is thirty-three (33) pages long. (ECF No. 35.) The application is hereby GRANTED. Accordingly, the matter stands fully briefed and ready for adjudication.

II. STATEMENT OF THE FACTS¹

INTRODUCTION

On the evening of February 12, 2010, Officer Ryan Kroeker conducted a traffic stop of appellant/defendant Jose Luis Santana's vehicle in a motel parking lot, after Kroeker saw the vehicle traveling on the wrong side of the adjoining road. Defendant admitted he was on parole. As Kroeker attempted to conduct a parole search, defendant tried to escape, but he was restrained by Kroeker and his partner. Defendant was found in possession of over 100 grams of methamphetamine, a loaded firearm was in his vehicle, and his motel room contained packaging materials and ammunition.

Defendant was arrested and charged with multiple narcotics-related offenses. He filed a motion for disclosure of Officer Kroeker's confidential personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), and claimed Kroeker's account of the traffic stop was false. The court conducted an in camera hearing and ordered disclosure of certain Pitchess information to defense counsel.

Defendant also filed a suppression motion and argued that Kroeker performed an illegal traffic stop and his account of the incident was not credible. During the suppression hearing, defense counsel extensively cross-examined Kroeker as to his account of the traffic stop, but she did not impeach Kroeker with any information obtained from the Pitchess motion. She did not introduce any evidence to impeach Kroeker's testimony that defendant said he was on parole. The court denied defendant's suppression motion and found the traffic stop was valid based on the officer's testimony that defendant had been driving on the wrong side of the road. Thereafter, defendant entered into a negotiated plea to the narcotics charges and was sentenced to 10 years.

During the course of the criminal proceedings, defendant was represented by two deputy public defenders. Leticia Perez represented him when the complaint was filed, when defendant rejected an initial plea offer of six years, and at the preliminary hearing. Janice Kim filed the Pitchess and suppression motions; represented him when he rejected a plea offer of nine years; was the subject of defendant's motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden); and she represented defendant when he entered into the negotiated plea for a term of 10 years. Defendant was represented by retained counsel, Arturo Revelo, at the sentencing hearing when he received the 10-year term.

On appeal, defendant contends that the superior court should have granted his motion to suppress the evidence, and asserts that Kroeker's testimony about the traffic stop was not credible.

Also on appeal, defendant asserts that Mr. Revelo, his retained attorney at the sentencing hearing, was prejudicially ineffective for failingto file a motion to withdraw his plea; defendant's three attorneys were prejudicially ineffective because they failed to realize he was charged with and admitted a duplicative fifth prior prison term enhancement; the sentencing court improperly prevented defendant and Mr. Revelo from pursuing a motion to withdraw his pleas and admissions; and the sentencing court should have asked defendant to explain why he wanted to file a motion to withdraw.

Defendant further requests this court to review the entirety of the Pitchess proceedings to determine if the superior court should have disclosed additional confidential records. We will strike defendant's admission to a duplicative enhancement and otherwise affirm.[Fn1]

FN1: While the instant appeal was pending, defendant filed a petition for writ of habeas corpus with this court, In re Jose Santana (F063135). By separate order, we will deny defendant's writ petition without prejudice. In this appeal, however, we grant defendant's motion for judicial notice of the existence of the writ petition and the issues raised therein. In several footnotes in this opinion, information from the petition for writ of habeas corpus is summarized solely to provide a complete factual and legal history. Such information was not relied upon by this court to resolve any issues in this appeal. In this appeal, this court is also not deciding any issues in the writ.

In his habeas petition, defendant contends Ms. Kim was prejudicially ineffective during the suppression hearing because she failed to investigate and introduce impeachment evidence against Officer Kroeker based on the Pitchess information that was disclosed to the defense. Defendant further contends that Ms. Perez and Ms. Kim were prejudicially ineffective for failing to accurately calculate his maximum possible exposure, which purportedly led him to turn down the prosecution's plea offers of six and nine years; Mr. Revelo was prejudicially ineffective for failing to discover various errors allegedly committed by Ms. Perez and Ms. Kim, and failing to renew his suppression motion; and all of his attorneys were ineffective for failing to discover, and permitting him to admit, the duplicative fifth prior prison term enhancement.

PART I

DEFENDANT'S ARREST AND THE CHARGES

We begin with Officer Kroeker's account of defendant's arrest, based on his police report which was made part of the appellate record during the Pitchess motion. According to the police report, Officers Kroeker and Holcomb were on patrol in a marked patrol car on the evening of February 12, 2010, on Olive Tree Court near Knudsen Drive in Kern County. The report states they were driving behind a Toyota Prius, and Kroeker noticed it was traveling on the wrong side of the road. Kroeker activated the patrol car's flashing lights to conduct a traffic stop. The Toyota pulled into the parking lot of Sleep Inn on Knudsen Drive.

The report states that there were two people in the Toyota: defendant was the driver and Breeann Oxford was the passenger. Officer Kroeker contacted defendant while Officer Holcombe spoke to Oxford. Kroeker noticed that defendant was very nervous. Kroeker asked defendant if he was on probation or parole, and defendant said he was on parole. Kroeker asked defendant to get out of the car for a parole search, and defendant complied. Kroeker ordered defendant to put his hands behind his head, and defendant turned and tried to run away. Kroeker held onto defendant as he tried to run. Defendant kept trying to reach inside his jacket for something, and kicked at Kroeker as he tried to escape. Defendant ignored Kroeker's orders to stop. Officer Holcombe used his baton and hit defendant twice on the left leg. Defendant went down, but he put his hand inside his jacket, and Kroeker thought he was reaching for a weapon. Defendant continued to resist. Holcombe again hit defendant's leg with his baton, and the officers were able to place defendant in handcuffs.

According to the police report, Kroeker searched defendant and found a bag, which contained approximately 111 grams of apparent methamphetamine, and a small bindle, which contained 0.7 grams of the same

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