Wagner v. Diaz

• Decision Date: 28 May 2015
• Docket Number: Case No.: 1:12-cv-01782-LJ0-JLT
• Court: U.S. District Court — Eastern District of California
• Parties: RAYMOND G. WAGNER, Petitioner, v. RALPH M. DIAZ, Respondent.

RAYMOND G. WAGNER, Petitioner, v. RALPH M. DIAZ, Respondent.

Case No.: 1:12-cv-01782-LJ0-JLT

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

May 28, 2015

FINDINGS AND RECOMMENDATIONS TO DENY PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1)

ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS

In 2010, Petitioner entered a guilty plea to one count of automobile theft with a prior theft conviction and one count of operating a chop shop. He admitted a prior prison term enhancement, pursuant and a prior serious felony conviction within the meaning of California's "three strikes" law. (Doc. 21, Ex. A, p. 2). He was sentenced to seven years in custody. Id. In the 12 grounds described in his petition for habeas relief¹, Petitioner asserts numerous claims related to ineffective assistance of counsel, that the trial court erred in refusing him to withdraw his plea, that the police illegally searched for and seized evidence and that they conspired to violate his Fourth Amendment rights. The Court disagrees relief is warranted and recommends the petition be DENIED.

I. Background

The Court adopts the Statement of Facts in the 5^th DCA's unpublished decision²:

On August 25, 2010, appellant, Raymond Glen Wagner, entered into a plea agreement in which he would admit one count of committing an automobile theft with a prior automobile theft conviction (Pen.Code, § 666.5, subd. (a), count one)1 in case No. BF133375A and one count of operating a chop shop (Veh.Code, § 10801, count one) in case No. BF133357B. Appellant would admit a prior prison term enhancement (§ 667.5, subd. (b)) and a prior serious felony conviction within the meaning of the three strikes law (§§ 667, subds.(a)-(e) & 1170.12, subds. (a)-(d)). The remaining allegations in both cases would be dismissed and appellant would receive a stipulated sentence of seven years.

Appellant executed felony advisement of rights, waiver and plea forms that set forth the terms of the plea agreement, the consequences of the plea, and the advisement and waiver of appellant's constitutional rights pursuant to Boykin/Tahl.2 The court established that appellant understood his rights, initialed, and executed the change of plea forms. The parties stipulated to a factual basis for the plea based on the law enforcement reports. Appellant pled no contest to both charges and admitted the special allegations. Appellant was represented at that time by James Rogers.

On September 23, 2010, the trial court granted appellant's motion to relieve James Rogers as counsel and substitute in Robert Dowd as appellant's attorney of record. On October 21, 2010, the sentencing hearing was continued because Dowd was not available. Attorney Arturo Revelo appeared for Dowd. On October 28, 2010, the court granted Dowd's request for a continuance so he could prepare a motion for appellant to withdraw his plea. Dowd did not appear for the next hearing date on November 16, 2010, because he had a family emergency. The court found good cause to trail the matter for one day.

On November 17, 2010, Dowd appeared with appellant and stated he had no objection to appellant being sentenced. Dowd explained to the court that appellant had retained him to file a motion to withdraw his plea. Dowd said he advised appellant on four different occasions and visited the witnesses appellant asked him to visit. Dowd stated that in his opinion, a motion for appellant to withdraw his plea would be without merit.

The court noted the total fixed term under appellant's plea agreement was seven years. Appellant told the court that he was trying to file a motion to withdraw his plea, claiming "good legal grounds." The court replied that appellant hired Dowd and Dowd indicated there were no legal grounds to make a motion for appellant to withdraw his plea. Dowd further explained he felt that before appellant entered into his plea bargain, witnesses should have been interviewed. Dowd interviewed the witnesses, spoke to appellant, and formulated the opinion that there were no grounds for appellant to withdraw his plea.

Appellant requested another continuance for a couple of days to get another attorney. The court said, "No" to appellant's request. Appellant asserted there were definite grounds for him to withdraw his plea. The court stopped appellant and stated the case had already been continued for two months. The court explained appellant had plenty of time to talk to another attorney. The court proceeded to sentence appellant to prison for four years for operating a chop shop, plus consecutive terms of one year for a prior prison term enhancement and two years for vehicle theft. Appellant's total prison term is seven years. The court awarded 100 days of actual custody credits and 50 days of conduct credits.

(LD 3, pp. 1-2).

II. Discussion

A. Jurisdiction

Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Kern County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d).

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by Lindh, 521 U.S. 320 (holding the AEDPA only applicable to cases filed after statute's enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions.

B. Legal Standard of Review

A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner can show that the state court's adjudication of his claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413.

A state court decision is "contrary to" clearly established federal law "if it applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases, or "if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005), citing Williams, 529 U.S. at 405-406 (2000).

In Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770 (2011), the U.S. Supreme Court

explained that an "unreasonable application" of federal law is an objective test that turns on "whether it is possible that fairminded jurists could disagree" that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has "said time and again that 'an unreasonable application of federal law is different from an incorrect application of federal law.'" Cullen v. Pinholster, 131 S.Ct. 1388, 1410-1411 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement." Harrington, 131 S.Ct. at 787-788.

The second prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d at 637, citing Miller-El v. Cockrell, 537 U.S. 322 (2003). Under § 2254(d)(2), a federal court may grant habeas relief if a state court's adjudication of the petitioner's claims "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Wiggins v. Smith, 539 U.S. at 520; Jeffries v. Wood, 114 F.3d at 1500. A state court's factual finding is unreasonable when it is "so clearly incorrect that it would not be debatable among reasonable jurists." Id.; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004).

To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court's decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). "[A]lthough we independently review the record, we still defer to the state court's ultimate decisions." Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

The prejudicial impact of any constitutional error is assessed by asking whether the error had "a substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007)(holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness). Furthermore, where a habeas petition governed by the AEDPA alleges ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), the Strickland prejudice standard is applied and courts do not engage in a separate analysis applying the Brecht standard. Avila v. Galaza, 297 F.3d911, 918 n. 7 (9^th Cir. 2002); Musladin v. Lamarque, 555 F.3d 830, 835 (9^th Cir. 2009).

III. Review of Petitioner's Claims.

The instant petition...