Yagao v. Weaver
| Decision Date | 07 July 2017 |
| Docket Number | Case No.: 15-cv-2554 WQH (JLB) |
| Court | U.S. District Court — Southern District of California |
| Parties | MACJHAY YAGAO, Petitioner, v. JOHN WEAVER, Warden, Respondent. |
REPORT AND RECOMMENDATION FOR ORDER:
(1) DENYING MOTION FOR STAY AND ABEYANCE [ECF No. 34]; and
This Report and Recommendation is submitted to United States District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.
Before the Court is the first amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 of Macjhay Yagao. (ECF No. 6.) Petitioner challenges his March 25, 2014 San Diego County Superior Court conviction for the transportation of more than 28.5 grams of marijuana in violation of California Health and Safety Code § 11360(a). (Id.)
Also before the Court is Petitioner's motion for a stay and abeyance. (ECF No. 34.) Petitioner requests that this Court stay and hold in abeyance his federal habeas corpus petition pending the exhaustion of his state court remedies. (Id.)
Petitioner is a citizen of the Philippines. (ECF No. 6 at 14, 35.) He has been a Legal Permanent Resident of the United States since 1995. (Id.)
On February 10, 2014, the San Diego County District Attorney filed a complaint in the San Diego County Superior Court charging Petitioner with one count of transportation of more than 28.5 grams of marijuana in violation of California Health and Safety Code § 11360(a) (count one), one count of possession of marijuana for sale in violation of California Health and Safety Code § 11359 (count two), and one count of driving with suspended driving privileges in violation of California Vehicle Code § 14601(a) (count three). (ECF No. 20-5 at 38-40.)1
On March 25, 2014, Petitioner, represented by attorney Jill Kovaly, pleaded guilty by way of a written plea agreement to count one. (ECF No. 6 at 94-96.) The prosecution, in exchange, agreed to dismiss counts two and three, to not oppose local time, and to allow defendant alternatives to custody, if available. (Id. at 94.)
Petitioner was scheduled for sentencing on May 5, 2014 (see id. at 78); however, his sentencing hearing was continued to June 2, 2014, when he stated that he wished to file a motion to withdraw his guilty plea (see id. at 80-84). The record reflects that Petitioner did not file a motion to withdraw his plea by the court-imposed deadline of June 2, 2014. (See id. at 86-91.) The court sentenced Petitioner in accordance with his plea agreement to 180 days in work furlough and three years of formal probation. (Id. at 89-91.) As a result of his conviction, on October 3, 2014, Petitioner was placed in immigration removal proceedings. (Id. at 33-35.) At the time Petitioner filed his federal habeas petition, he was in the custody of Immigration and Customs Enforcement ("ICE"). (Id. at 14.)
On January 6, 2015, Petitioner filed a petition for a writ of habeas corpus in the San Diego County Superior Court in Case No. HC21871. (ECF No. 20-2.) In the petition,Petitioner contended that attorney Jill Kovaly provided ineffective assistance during pretrial proceedings, during plea negotiations, and at the plea and sentencing hearings, resulting in the violation of Petitioner's federal constitutional rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Id. at 2-3.) Specifically, Petitioner contended that his trial counsel: (1) failed to investigate the immigration consequences of his guilty plea; (2) failed to advise him of the adverse immigration consequences of his guilty plea; (3) failed to negotiate a plea agreement that would not trigger immigration removal proceedings; and (4) coerced him into entering a guilty plea. (Id. at 6-9.) In addition, Petitioner contended that his constitutional rights were violated because his guilty plea was not entered knowingly, intelligently, freely, or voluntarily. (Id. at 3-4.) On May 21, 2015, the San Diego County Superior Court denied the petition on the merits. (ECF No. 20-4.)
Petitioner filed a subsequent petition for writ of habeas corpus in the California Court of Appeal on August 25, 2015, in Case No. D068709. (ECF No. 20-5.) Petitioner raised the same claims in this petition as he did in his petition before the San Diego County Superior Court. (Id. at 8-15.) In addition, he asserted that he received ineffective assistance of counsel because his trial counsel failed to investigate all of the possible defenses to his guilty plea. (Id. at 15-17, 21.) Furthermore, Petitioner contended his constitutional rights were violated because the trial court failed to conduct an on-the-record colloquy with Petitioner in order to validate his written waiver of his right to a jury trial. (Id. at 20.) On August 27, 2015, the California Court of Appeal denied the petition in a reasoned decision on the grounds that Petitioner's claims were both procedurally barred and meritless. (ECF No. 20-6.)
Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court on September 8, 2015, in Case No. S229109. (ECF No. 20-7.) Petitioner raised the same claims in this petition as he did in the petition before the California Court of Appeal. (ECF No. 20-7 at 13-27.) The California Supreme Court denied the petition without comment on October 14, 2015. (ECF No. 20-8.)
On November 12, 2015, Petitioner submitted a petition for writ of habeas corpus to this Court. (ECF No. 1.) Petitioner subsequently filed a first amended petition for writ of habeas corpus on December 17, 2015. (ECF No. 6.) On March 29, 2016, Petitioner filed a document entitled, "Supplemental Brief in Support of Habeas Corpus." (ECF No. 16.) The Court notes that this filing is not properly before the Court, as Petitioner had already amended his pleading once as a matter of course and Federal Rule of Civil Procedure 15 requires parties to seek leave of Court prior to amending their pleadings further. See Fed. R. Civ. P. 15(a)(2); see also 28 U.S.C. § 2242 (); Calderon v. U.S. Dist. Court (Taylor), 134 F.3d 981, 986 n.6 (9th Cir. 1998) (). However, because Petitioner is proceeding pro se and because the Court "must remain guided by 'the underlying purpose of Rule 15 to facilitate decisions on the merits, rather than on the pleadings and technicalities,'" Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)), the Court considers Petitioner's Supplemental Brief in Support of Habeas Corpus (ECF No. 16) as part and parcel of the First Amended Petition.
Respondent filed an answer to the Petition on May 2, 2016. (ECF No. 19.) Petitioner was given until July 30, 2016 to file a traverse (ECF No. 33); however, Petitioner did not file one. Instead, Petitioner filed a document entitled "Amended Supplemental Brief & Prayer for Relief" on June 13, 2016. (ECF No. 29.) As this filing was made within the time limitation provided for Petitioner to file a traverse, the Court treats it as such.
Section 2254 of Title 28 of the United States Code provides the scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in [sic] 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). In addition, federal habeas corpus claims are subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2254(d). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997) (). Under AEDPA, a petitioner must overcome a high threshold to obtain relief:
28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100 (2011).
For purposes of federal habeas corpus review under § 2254(d)(1), "clearly established Federal law" means "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). The term refers to the holdings, as opposed to the dicta, of Supreme Court decisions. Id. at 71 (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).
A federal habeas court may grant relief under the "contrary to" clause of § 2254(d)(1) if the state court applied a rule different from the governing law set forth in Supreme Court cases or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the "unreasonable application" clause of § 2254(d)(1) if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of...
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