Free Answer to Complaint - District Court of Arizona - Arizona

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TERRY GODDARD ATTORNEY GENERAL (FIRM STATE BAR NO. 14000) KATIA MÉHU ASSISTANT ATTORNEY GENERAL CRIMINAL APPEALS SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007B2997 TELEPHONE: (602) 542B4686 (STATE BAR NUMBER 016992) E-MAIL: [email protected] ATTORNEYS FOR RESPONDENTS

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
RICHARD FARRALL, JR.,
Petitioner,

CV 04­0260­PHX­EHC

-vsDORA B. SCHRIRO, et al.,
Respondents.

SUPPLEMENTAL ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS

Respondents, pursuant to Rules 5 and 11 of the Rules Governing § 2254

17 Cases, hereby answer the Petition for Writ of Habeas Corpus on the merits. For 18 the reasons set forth in the following Memorandum of Points and Authorities, 19 Respondents respectfully request that the petition be denied and dismissed with 20 prejudice. 21 22 23 24 25 26 27 28
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DATED this 12th day of June, 2008.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL

s/KATIA MÉHU ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

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MEMORANDUM OF POINTS AND AUTHORITIES FACTUAL AND PROCEDURAL BACKGROUND. Petitioner is challenging his 1999 convictions in Maricopa County cause On September 28, 1998, the State initially indicted

5 number CR1998­13810.

6 Petitioner on 13 sexual conduct counts for crimes committed against Petitioner's
1 7 minor daughter and minor step-daughter. (Exhibit A, Indictment.) Eleven months

8 later, on August 26, 1999, Petitioner pled no contest to one count of sexual conduct 9 with a minor under the age 15 (Count 7, committed against Bobbie Joe West), and 10 to one count of attempted sexual conduct with a minor over 15 (Count 10, Durina 11 Farrall). (Exhibit B, Bobbie Jo West Plea Agreement; Exhibit B, Durina Farrall 12 Plea Agreement.) The State's plea offers permitted Petitioner to enter no contest 13 pleas to two of the counts, capped the maximum sentences at 27 years, and made 14 one of the offenses probation eligible. (Id.) If convicted as originally charged, 15 Petitioner faced mandatory consecutive sentences in excess of 200 years. A.R.S. 16 § 13­604.01, 13­702. The trial court accepted the plea and entered it of record. 17 (Exhibit D, R.T. Aug. 26, 1999, at 21­22.) 18 Thereafter, Petitioner expressed a desire to withdraw from the plea 19 agreement, and the trial court conducted a hearing on the matter on September 24, 20 1999. (Exhibit E, R.T. Sept. 24, 1999.) Petitioner outlined his reasons for wishing 21 to withdraw from the plea agreements. (Id. at 2­5, 8­9, 11­14.) The trial court 22 denied the motion to withdraw from the plea agreements, finding no manifest 23 injustice. (Id. at 16.) At the time originally set for sentencing, the motion to 24 withdraw from the plea agreements was discussed, and the trial court informed 25 Petitioner that it would not revisit the issue. (Exhibit F, Minute Entry of Sept. 27, 26 ________________________ 27 28 Respondents filed State exhibits A­P with its Answer to the Petition for Writ of Habeas Corpus (Doc. 12).
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1 1999.) Petitioner was sentenced on November 23, 1999, and he again moved to 2 withdraw from the plea agreement. (Exhibit G, R.T. Nov. 23, 1999, at 3­4.) The 3 trial court again informed Petitioner that the order of denial would stand. (Id. at 4­ 4 5.) The trial court imposed an aggravated 25-year sentence on Count 7 (the Bobbie 5 Jo West charge), and placed Appellant on lifetime probation on Count 10 (the 6 Durina Farrall charge). (Id. at 12­13.) 7 On February 11, 2000, Petitioner filed a notice of post-conviction relief.

8 (Exhibit H, Notice of Post-conviction Relief.) Petitioner filed the petition for post9 conviction relief on April 30, 2001. 10 Relief.)2 11 12 13 14 15 16 17 18 19 (Id.) 20 The State filed a response. (Exhibit J, Response to Petition for Post21 conviction Relief.) Petitioner filed a reply. (Exhibit K, Reply to Post-conviction 22 Relief.) The trial court summarily dismissed the petition for post-conviction relief 23 after finding that none of Petitioner's claims were supported by competent 24 evidence, that his plea of no-contest waived all non-jurisdictional defenses, and 25 26
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(Exhibit I, Petition for Post-conviction

Petitioner categorized his claims as follows: 1. 2. 3. 4. Officers of the Court altered the plea agreement after it was signed by Petitioner. The plea was the result of duress and coercion. Ineffective assistance of counsel. Appointed counsel coerced Petitioner into accepting the plea agreement.

Respondents are submitting another copy of Exhibit I, the Petition for Post27 conviction Relief with the supplemental response. The copy filed in 2004 did not contain all of the pages of the petition. 28
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1 that Petitioner failed to raise colorable claims. (Exhibit L, Minute Entry Order of 2 Sept. 6, 2001.) 3 On October 10, 2001, Petitioner petitioned the court of appeals for review,

4 and raised the following claims: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7. The trial court improperly refused to resolve in favor of allowing withdrawal of guilty plea which was requested shortly after [Petitioner] signed the plea. 6. The State suppressed evidence that would have acquitted [Petitioner], thus violating [Petitioner's] constitutional rights. 5. The plea agreement is an illegal and void document having been changed after [Petitioner] signed it. 4. 3. 2. 1. [Petitioner] was coerced and intimidated into accepting his plea agreement and therefore the plea was not entered into knowingly and willingly by [Petitioner]. The constitutional right to representation by a competent lawyer at every critical stage of the proceedings was denied. Use of the State of perjured testimony which denied [Petitioner] his constitutional rights. [Petitioner's] rights against unconstitutionally violated. self-incrimination were

(Exhibit M, Petition for Review of Oct. 10, 2001.) Petitioner submitted three affidavits with his petition. (Id.)3 On August 30, 2002, the court of appeals summarily denied review. (Exhibit N, 1 CA­CR 01­0885PR Order.) On

November 4, 2002, Petitioner petitioned the Arizona Supreme Court for review.
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Respondents are supplementing Exhibit M, the October 10, 2001, petition for 26 review with a copy of Petitioner's list of exhibits and three affidavits filed with the petition for review. Respondents did not include the affidavits with the copy of the 27 petition filed in 2004. 28
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1 (Exhibit O, Petition for Review.)4 The claims were substantially similar to the 2 claims raised in the petition for review to the court of appeals. (Id.) Petitioner 3 submitted the same three affidavits previously submitted with the petition to the 4 court of appeals. (Id.) On February 20, 2003, the Arizona Supreme Court

5 summarily denied review. (Exhibit P, CR­02­0377­PR Order.) 6 Petitioner filed the present habeas petition on February 4, 2004, and raised

7 the following claims: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ________________________ 26 Respondents are supplementing Exhibit O, the November 4, 2002, petition for review with a copy of Petitioner' list of exhibits. Respondents are not the exhibits 27 with the affidavits; they are submitted with Exhibit M. Respondents did not include the list of exhibits when they filed the copy of the petition filed in 2004. 28
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1. 2. 3. 4.

Appointed counsel coerced and intimidated Petitioner into accepting the plea agreement rendering his plea involuntary. Petitioner was denied the right to representation by a competent attorney at all critical stages of the proceedings. The plea agreement is an illegal and void document having been changed after Petitioner signed it. The State suppressed evidence that would have acquitted Petitioner thus violating Petitioner's constitutional rights.

(Doc. 1.) On June 3, 2004, the State filed a response limited to the affirmative defense of time bar. (Doc. 12.) Petitioner had filed the habeas petition 64 days after the 1year limitations period had expired. (Id.) The magistrate recommended that the District Court enter an order dismissing the petition as untimely. (Docs. 15, 18.) The District Court conducted a de novo review of the record, and adopted the report and recommendation in full on December 29, 2004. (Doc. 20.) On January 10, 2005, Petitioner filed a motion for certificate of appealibility

1 denied by the Court on January 14, 2005. (Docs. 22­23.) On March 3, 2006, the 2 Ninth Circuit granted Petitioner's certificate of appealibility with respect to one 3 issue: 4 5 6 7 8 Whether Appellant is entitled to 90 days statutory tolling under Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) after the Arizona State Supreme Court denied review of his state post-conviction relief petition because a first post-conviction relief petition in analogous to direct appeal for pleading defendants in Arizona, see State v. Smith, 184 Ariz. 456, 458, 910 P.2d 1, 3 (1996).

9 (Doc. 28.) Ultimately, on May 1, 2007, the Ninth Circuit, relying on Summers v. 10 Schriro, 481 F.3d 710 (9th Cir. 2007), held that Petitioner's habeas petition was 11 timely filed. (Id. at 35.) The Ninth Circuit ordered the matter reversed and 12 remanded for further proceedings. (Id.) 13 At Petitioner's request, the Court appointed Petitioner counsel under the 14 Criminal Justice Act. (Doc. 43.) Appointed counsel, the Federal Public Defender, 15 initially requested a stay of the proceedings to familiarize themselves with the 16 record, and later requested that the matter be set for an evidentiary hearing on the 17 issue of whether Petitioner's plea of no contest was knowing and voluntary.5 18 (Docs. 46, 52.) By separate response, Respondents oppose the motion for 19 evidentiary hearing. (Doc. 58.) Respondents hereby file their merits brief 20 addressing the issues raised in the habeas petition. 21 II. STANDARD OF REVIEW. 22 23 24 Under the AEDPA, 28 U.S.C. § 2254(d), habeas relief may only be granted
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Although appointed counsel does not identify them as such, he appears to raise 25 two new claims in the motion for evidentiary hearing: (1) judicial involvement in the plea was coercive; and (2) denial of counsel at hearing to withdraw plea. (Doc. 26 52 at 13­15.) Respondents do not address the new claims in its supplemental answer, but await Petitioner's motion to amend the petition or the Court's 27 determination that the new claims comply with Rule 15 of the Federal Rules of Civil Procedure. 28
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1 with respect to a claim adjudicated on the merits when the state court's decision 2 was (1) contrary to, or involved an unreasonable application of, clearly established 3 federal law as determined by the United States Supreme Court, or (2) resulted in a 4 decision that was based on an unreasonable determination of the facts in light of 5 the evidence presented in the state court proceeding. Williams v. Taylor, 529 U.S. 6 362, 402­13, 120 S. Ct. 1495 (2000) (O'Connor, J., concurring and delivering the 7 opinion of the Court with respect to AEDPA standard of review); see also Bell v. 8 Cone, 535 U.S. 685, 694, 122 S. Ct. 1843 (2002). "Clearly established Federal 9 law" is "the governing legal principle or principles set forth by the Supreme Court 10 at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 11 71­72, 123 S. Ct. 1166 (2003) (quoting Williams, 529 U.S. at 405); see also Early 12 v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362 (2002); Cone, 535 U.S. at 698. 13 The Act also codifies a presumption of correctness of state court findings of

14 fact, and the habeas petitioner bears the burden of rebutting the presumption by 15 clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The Act limits the district 16 court's discretion to hold evidentiary hearings. 28 U.S.C. § 2254(e)(2). A petition 17 may be denied on the merits even though it contains unexhausted claims, and the 18 state does not waive exhaustion except by an express waiver on the record. 19 28 U.S.C. § 2254(b)(2) and (3). 20 The "contrary to" and "unreasonable application" clauses in subsection (1)

21 have independent meanings. Cone, 535 U.S. at 694. The Court explained: 22 23 24 25 26 27 28 A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principles from our decisions but unreasonably applies it to the facts of the particular case. The focus on the latter inquiry is on whether the state court's application of clearly established federal law is objectively
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unreasonable, and we stressed in Williams that an unreasonable application is different from an incorrect one.

3 Id. (Citations omitted.) The federal court has no authority to "substitute its own 4 judgment for that of the state court" and grant habeas relief based solely on an 5 incorrect application of federal law; rather, the state court's application of federal 6 law must also be objectively unreasonable. Woodford v. Visciotti, 537 U.S. 19, 27, 7 123 S. Ct. 357 (2002) (per curiam) ("The federal habeas scheme leaves primary 8 responsibility with the state courts for these judgments, and authorizes federal9 court intervention only when a state-court decision is objectively unreasonable."). 10 In determining whether a state court decision is contrary to or an unreasonable 11 application of federal law, this Court examines the last reasoned decision of a state 12 court as the basis of the state court's judgment. Ylst v. Nunnemaker, 501 U.S. 797, 13 803, 111 S. Ct. 2590 (1991); Brown v. Palmateer, 379 F.3d 1089, 1092 (9th Cir. 14 2004); Bailey v. Rae, 339 F.3d 1107, 1112 (9th Cir. 2003). The unreasonable 15 determination of facts prong applies to decisions based on factual determinations. 16 Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 1041 (2003). Claims of 17 ineffective assistance of counsel are reviewed to determine whether the state court 18 judgment amounts to an "unreasonable application" of Strickland to the facts of the 19 particular case. Williams, 529 U.S. at 391; Weighall v. Middle, 215 F.3d 1058, 20 1062 (9th Cir. 2000). 21 In evaluating the state court decision, this Court must refrain from 22 "mischaracterization of the state court opinion" or record and defer to "the 23 presumption that state courts know and follow the law." Visciotti, 537 U.S. at 25­ 24 27 (reversing Ninth Circuit's granting of habeas relief, finding that state court 25 opinion rejecting claim of ineffective assistance of counsel was not contrary to or 26 27 28
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1 an unreasonable application of Strickland)6. Even if the state court neither explains 2 its ruling nor cites United States Supreme Court authority, the reviewing federal 3 court must nevertheless examine Supreme Court precedent to decide whether the 4 state court reasonably applied federal law. Packer, 537 U.S. at 8. The United 5 States Supreme Court has expressly held that citation to federal law is not required 6 and that compliance with the habeas statute "does not even require awareness of 7 our cases, so long as neither the reasoning nor the result of the state-court decision 8 contradicts them." Id. 9 III. 10 EXHAUSTION AND PROCEDURAL DEFAULT. The AEDPA exhaustion principle, codified at 28 U.S.C. § 2254(b)(1)(A),

11 encompasses two basic tenets: 1) that each claim presented in the federal habeas 12 petition must have been presented to every level of state court in a procedurally 13 correct manner; and 2) that every claim presented in the federal habeas petition 14 must have been "fairly presented" to each state court as a specific federal claim. 15 See also Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887 (1995); Rose v. 16 Lundy, 455 U.S. 509, 518, 102 S. Ct. 1198 (1982). 17 Procedurally, an Arizona state prisoner properly exhausts state court

18 remedies by presenting his claims to the Arizona Supreme Court. Baldwin v. 19 Reese, 541 U.S. 27, 29, 124 S. Ct. 1347 (2004) (noting that the exhaustion 20 requirement is satisfied only after a prisoner presents his claim in each appropriate 21 state court, including a state supreme court with powers of discretionary review); 22 but see Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005); Swoopes v. 23 Sublett, 196 F.3d 1008 (9th Cir. 1999). An Arizona state prisoner fairly presents 24 each of his federal claims in a procedurally correct manner to the state appellate 25 courts by presenting it either on direct appeal or in post-conviction relief 26 27 28
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Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
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1 proceedings. See Ariz. R. Crim. P. 31 (direct appeal), 32 (post-conviction relief); 2 See also O'Sullivan v. Boerckel, 526 U.S. 838, 844, 119 S. Ct. 1728 (1999); 3 Peterson v. Lampert, 319 F.3d 1153, 1155­56, 1159 (9th Cir. 2003); Roettgen v. 4 Copeland, 33 F.3d 36, 38 (9th Cir. 1994); Jennison v. Goldsmith, 940 F.2d 1308, 5 1310­11 (9th Cir. 1991). If state remedies have not been exhausted, the petition 6 may not be granted and should be dismissed. See Johnson v. Lewis, 929 F.2d 460, 7 463 (9th Cir. 1991). In the alternative, the court may deny the claims on the 8 merits. 28 U.S.C. § 2254(b). 9 To substantively satisfy the exhaustion requirement, a state prisoner has to

10 fairly present the federal claims in state court "to give the State the opportunity to 11 pass upon and correct alleged violations of its prisoners' federal rights." Picard v. 12 Connor, 404 U.S. 270, 275, 92 S. Ct. 509 (1971). A state prisoner "must include 13 reference to a specific constitutional guarantee, as well as a statement of the facts 14 which entitle the petitioner to relief." Gray v. Netherland, 518 U.S. 152, 162­63, 15 116 S. Ct. 2074 (1996); Connor, 404 U.S. at 275­78; Shumway v. Payne, 16 223 F.3d 982, 987 (9th Cir. 2000). General appeals to broad constitutional

17 principles, such as due process, equal protection, and the right to a fair trial, are not 18 sufficient to establish fair presentation of a federal constitutional claim. Lyons v. 19 Crawford, 232 F.3d 666, 669 (9th Cir. 2000); Shumway, 223 F.3d at 987; Hiivala v. 20 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). Further, it is not enough that all the 21 facts necessary to support the federal claim were before the state courts or that a 22 "somewhat similar" state law claim was made. Baldwin, 541 U.S. at 32­33;

23 Henry, 513 U.S. at 366; Castillo v. McFadden, 399 F.3d at 998­99; Johnson v. 24 Zenon, 88 F.3d 828, 830­31 (9th Cir. 1996). Rather, the prisoner must specifically 25 indicate to the state court that the claims are based on federal law. Henry, 513 U.S. 26 at 366; Lyons, 232 F.3d at 668. "The petitioner must make the federal basis of the 27 claim explicit either by citing federal law or the decisions of federal courts, even if 28 the federal basis is `self-evident' . . . ." Lyons, 232 F.3d at 668; accord, Gatlin v.
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1 Madding, 189 F.3d 882, 888 (9th Cir. 1999). New factual allegations render a 2 claim unexhausted when they fundamentally alter the legal claim considered by the 3 state court. Vasquez v. Hillery, 474 U.S. 254, 260, 106 S. Ct. 617 (1986). Federal4 state comity favors the principle that federal courts should not "entertain new 5 evidence that places [a] claim in a significantly different posture, when that 6 evidence was never presented to the state courts." Nevius v. Sumner, 852 F.2d 463, 7 470 (9th Cir. 1988). 8 Not only must a federal claim be fairly presented, it must be presented in a

9 procedurally appropriate manner. Coleman v. Thompson, 501 U.S. 722, 729­30, 10 111 S. Ct. 2546 (1991) (independent and adequate state ground doctrine bars 11 federal review due to state court determination of untimely filing of notice of 12 appeal); Castille v. Peoples, 489 U.S. 346, 351, 109 S. Ct. 1056 (1989) 13 (presentation of claim in procedural context in which claim's merits would not be 14 considered was not "fair presentation"); Roettgen, 33 F.3d at 38 (same). A federal 15 court will not review a federal question decided by a state court, "if the decision of 16 that court rests on a state law ground that is independent of the federal question and 17 adequate to support the judgment." Coleman, 501 U.S. at 729. 18 If a petitioner has failed to fairly present a claim (or claims) in state court in

19 a procedurally appropriate manner, state court remedies may, nonetheless, be 20 "exhausted." In such a situation, a state prisoner has "procedurally defaulted" his 21 claims and federal habeas review of the claims are "procedurally barred." See, e.g. 22 Ylst v. Nunnemaker, 501 U.S. 797, 802­05, 111 S. Ct. 2590 (1991); Coleman, 23 501 U.S. at 731­32; White v. Lewis, 874 F.2d 599, 602­03 (9th Cir. 1989). 24 There are basically two categories of procedural default. First, a state court

25 may have actually applied a procedural bar when the prisoner attempted to raise 26 the claim in state court. See, e.g., Nunnemaker, 501 U.S. at 802­05; Coleman, 27 501 U.S. at 731­32; Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305­06 (9th Cir. 28 1996). If the state court also addressed the merits of the underlying federal claim,
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1 the "alternative" ruling does not vitiate the independent state procedural bar; the 2 claim is still barred from federal review. Nunnemaker, 501 U.S. at 802­05; Harris 3 v. Reed, 489 U.S. 255, 264 n. 10, 109 S. Ct. 1038 (1989); Poland v. Stewart, 4 151 F.3d 1014, 1021 n. 7 (9th Cir. 1998) (state trial court found claims precluded; 5 the fact that it "went on to discuss the lack of merit of some or all of the claims 6 does not eliminate the procedural bar"), amended and superseded on denial of 7 rehearing, 169 F.3d 573 (9th Cir. 1999); Carriger v. Lewis, 971 F.2d 329, 333 (9th 8 Cir. 1992) (state supreme court found ineffective assistance of counsel claims 9 "barred under state law," but also discussed and rejected the claims on-the-merits; 10 en banc court held that the on-the-merits discussion was an "alternative ruling" and 11 claims were procedurally defaulted and barred from federal review). And, a 12 subsequent "silent" denial of review simply affirms the lower court's application of 13 a procedural bar. Nunnemaker, 501 U.S. at 803; Acosta-Huerta v. Estelle, 14 7 F.3d 139, 142 (9th Cir. 1992). 15 Second, the prisoner may not have presented the claim in state court, but

16 pursuant to the state court's procedural rules, a return to state court would be 17 "futile." See, e.g., Teague v. Lane, 489 U.S. 288, 297­99, 109 S. Ct. 1060 (1989); 18 Reed v. Ross, 468 U.S. 1, 10­11, 104 S. Ct. 2901 (1984); White, 874 F.2d at 602. 19 In Arizona, any claim not previously presented to the Arizona courts is 20 procedurally barred from federal review because any attempt to return to state 21 court to present additional claims would be "futile." See Ariz. R. Crim. P. 32.1(d)­ 22 (h), 32.4(a), (successive petition for post-conviction relief is limited to certain 23 claims); State v. Mata, 185 Ariz. 319, 322­37, 916 P.2d 1035, 1048­53 (1996); see 24 also Carriger, 971 F.2d at 333. 25 In either case, federal habeas review is barred absent a showing of "cause

26 and prejudice" or a "fundamental miscarriage of justice." Teague, 489 U.S. at 298; 27 Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2678 (1986); Hughes v. Idaho 28 State Board of Corrections, 800 F.2d 905, 907­08 (9th Cir. 1986). To demonstrate
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1 "cause," a state prisoner must show that some objective factor external to the 2 prisoner or his counsel impeded efforts to comply with the state's procedural rules. 3 Carrier, 477 U.S. at 488; see also Hughes, 800 F.2d at 908­09. To show

4 "prejudice," the prisoner must demonstrate that the alleged constitutional violation, 5 "worked to his actual and substantial disadvantage, infecting his entire trial with 6 error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 7 102 S. Ct. 1584 (1982). To establish "fundamental miscarriage of justice," a state 8 prisoner must establish by clear and convincing evidence that no reasonable juror 9 could find him guilty of the offense. 28 U.S.C. § 2244(c)(2)(B). The miscarriage 10 of justice exception requires a showing that a constitutional violation probably 11 resulted in the conviction of one who is actually innocent. Schlup v. Delo,

12 513 U.S. 298, 326­27, 115 S. Ct. 851 (1995). "`[A]ctual innocence' means factual 13 innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 14 623, 118 S. Ct. 1604 (1998). "To be credible, [a claim of actual innocence] 15 requires petitioner to support his allegations of constitutional error with new 16 reliable evidence-whether it be exculpatory scientific evidence, trustworthy 17 eyewitness accounts, or critical physical evidence-that was not presented at trial." 18 Schlup, 513 U.S. at 324. A fundamental miscarriage of justice occurs in only 19 narrow cases and in extraordinary instances where a constitutional violation 20 probably caused the conviction of an innocent person. Carrier, 477 U.S. at 496; 21 see also Dretke v. Haley, 541 U.S. 386, 124 S. Ct. 1847, 1852 (2004) (federal 22 courts faced with allegations of actual innocence must first address all 23 nondefaulted claims for comparable relief to excuse the procedural default). 24 IV. 25 ARGUMENT. With these controlling principles in mind, Respondents will address each of

26 Petitioner's claims, and discuss whether the ground for relief amounts to a federal 27 constitutional question, and whether the federal claim was properly exhausted. If 28 appropriate, Respondents will address whether the state court's resolution of the
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1 claim is contrary to, or amounts to unreasonable application of clearly established 2 Supreme Court precedent, and whether Petitioner has rebutted the presumption of 3 correctness by clear and convincing evidence. 4 5 Ground I: Guilty plea involuntary due to attorney pressure. Petitioner claims that his Fifth Amendment privilege against self-

6 incrimination was violated because his guilty plea resulted from the threats, 7 coercion, and intimidation of defense counsel, and was therefore involuntary. The 8 alleged coercion at issue occurred during a break in a settlement conference when 9 appointed counsel reportedly smacked the plea offer on a table, yelled, "Sign the 10 damn plea," and Petitioner complied. Petitioner categorized appointed counsel's 11 conduct as a federal constitutional violation of his Fifth Amendment privilege 12 against self-incrimination and presented it in that manner to every level of state 13 appellate courts. 14 A guilty plea must be a "knowing, intelligent act," that is "the voluntary

15 expression of [the defendant's] own choice." Brady v. United States, 397 U.S. 742, 16 748, 90 S. Ct. 1463 (1970). Thus, a guilty plea is void if induced by threats which 17 strip it of a voluntary nature. Machibroda v. United States, 368 U.S. 487, 493, 82 18 S. Ct. 510 (1962); see also Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709 19 (1969) ("Ignorance, incomprehension, coercion, terror, inducements, subtle or 20 blatant threats might be a perfect cover-up of unconstitutionality.") 21 However, "a plea of guilty in a state court is not subject to collateral attack

22 in a federal court on the ground that it was motivated by a coerced confession 23 unless the defendant was incompetently advised by his attorney." McMann v. 24 Richardson, 397 U.S. 759, 772, 90 S. Ct. 1441 (1970). Neither is a plea deemed 25 coerced under the Fifth Amendment because the prisoner pled out of fear of his 26 prospective sentence. North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160 27 (1970) (allegation that the prisoner plead guilty to avoid the possibility of the death 28 penalty); accord, Brady, 397 U.S. at 749 (same). Thus, the pressure allegedly
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1 brought to bear by appointed counsel, and its resulting impact on Petitioner, does 2 not constitute a violation of the Fifth Amendment. 3 "Absent some officially coerced self-accusation, the Fifth Amendment

4 privilege is not violated by even the most damning admissions." Oregon v. Elstad, 5 470 U.S. 298, 305, 105 S. Ct. 1285 (1985). This is based on the fact that "the Fifth 6 Amendment privilege against self-incrimination is not concerned with

7 noncustodial evidence nor is it concerned with moral and psychological pressures 8 to confess emanating from sources other than official coercion." Elstad, 470 U.S. 9 at 305 (citing California v. Beheler, 463 U.S. 1121, 1125, and n. 3, 103 S. Ct. 3517 10 (1983); Rhode Island v. Innis, 446 U.S. 291, 303, and n. 10, 100 S. Ct. 1682 11 (1980); Oregon v. Mathiason, 429 U.S. 492, 495­96, 97 S. Ct. 711 (1977) 12 (emphasis added). Consequently, the Supreme Court has only considered guilty 13 pleas involuntary in instances where state actors committed the objectionable 14 conduct, and has not applied the principle to instances of defense counsel coercion. 15 See e.g., Blackledge v. Allison, 431 U.S. 63, 68­69, 97 S. Ct. 1621 (1977) 16 (allegations of unkept plea bargain supported by specific factual allegations); 17 Fontaine v. United States, 411 U.S. 213, 214, 93 S. Ct. 1461 (1973) (allegation that 18 plea had been coerced "by a combination of fear, coercive police tactics, and 19 illness, including mental illness."); Parker v. North Carolina, 397 U.S. 790, 796, 20 90 S. Ct. 1458 (1970) (allegation that coercive police conduct during interrogation 21 lead to guilty plea a month later); McMann, 397 U.S. at 762 (allegation of coerced 22 confession and trial judge's threat to impose a 60-year sentence if defendant was 23 convicted after a plea of not guilty); Machibroda, 368 U.S. at 493 (allegation that 24 guilty plea had been induced by an Assistant United States Attorney's promises that 25 the sentence would not exceed 20 years, that the prosecutor had admonished him 26 not to tell his lawyer about the agreement, and that the trial judge had wholly failed 27 to inquire whether the guilty plea was made voluntarily before accepting it); Waley 28 v. Johnston, 316 U.S. 101, 102­03, 62 S. Ct. 964 (1942) (allegation that guilty plea
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1 had been induced by the threats of a named FBI agent to publish false statements 2 and manufacture false evidence that the kidnapped person had been injured); see 3 also Brady, 397 U.S. at 750 (noting that state agents may not produce a guilty plea 4 by actual or threatened physical harm or by mental coercion overbearing the will of 5 the defendant); Benson v. Terhune, 304 F.3d 874, 882 (9th Cir. 2002) (allegation 6 that defendant was intimidated in general because she was in jail, and coerced by 7 specific conduct of the jail staff). 8 Absent some allegation of coercion by a state actor, a claim of coercion by

9 defense counsel does not amount to a federal constitutional question. Habeas relief 10 is, therefore, not available. Threats, coercion, and intimidation by defense counsel 11 constitute the deprivation of effective assistance, and categorized as a violation of 12 the Sixth Amendment. McMann, 397 U.S. at 770­71 ("Whether a plea of guilty is 13 unintelligent and therefore vulnerable when motivated by a confession erroneously 14 thought admissible in evidence depends as an initial matter, not on whether a court 15 would retrospectively consider counsel's advice to be right or wrong, but on 16 whether that advice was within the range of competence demanded of attorneys in 17 criminal cases."); accord Hill, 474 U.S. at 56. 18 Nonetheless, the standard for determining whether a guilty plea is valid is

19 whether the plea represents a voluntary and intelligent choice among the 20 alternative courses of action open to the defendant. Alford, 400 U.S. at 31; see also 21 Hill, 474 U.S. at 56­57; Boykin, 395 U.S. at 242; Machibroda, 368 U.S. at 493. 22 Here, Petitioner was charged in September 1998, with 13 counts of sexual

23 conduct with a minor, and 9 of the counts were charged as dangerous crimes 24 against children. (Exhibit A.) If convicted as charged, Petitioner faced mandatory 25 consecutive sentences in excess of 200 years. A.R.S. § 13­604.01, 13­702. In 26 December 1998, Petitioner wrote a letter to one of his daughters requesting that she 27 assist him in getting the charges dropped. (Exhibit BB, State's Response to

28 Defendant's Motion to Release Defendant on his Own Recognizance.) In relevant
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1 part, Petitioner explained: 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Durina says I rubbed her crotch and just for one charge of her saying that is 13 to 23 years in prison. I was looking at a list of prison sentences and for me giving the video to watch can get me up to 5 years in prison. Please talk to them about just saying all of this never happened and let God be the judge of me. (Id. at Batch number 000092.) Petitioner also informed his daughter: I just need to be given this last chance. I have a different inner being and Satan no longer has a power over me..... This is so serious. ... I'm a good dad. I've just made some mistakes in my life. We all do but the Lord has taken all of the wrong away from me and he has given me a new and better life now. ... My roommate had only six charges like mine and he got found guilty for them last week and has to do from 88 to 144 years in prison (life!). ... (Id. at Batch number 000095­96.) At the settlement conference of August 26, 1999, the trial court recounted that the evidence against Petitioner was overwhelming and consisted of the videotaped statements of Petitioner's daughter and step-daughter, an incriminating confrontation call wherein Petitioner admitted to committing to some of the acts charged, a statement to the police wherein Petitioner admitted to stimulating sex acts and to providing one of the victims with pornographic material, and of the aforementioned letters Petitioner wrote to his family asking them to recant their allegations. (Exhibit D, at 3, 5.) The trial court also recounted that the victims had initially attempted to recant, but were now resolved to testify against Petitioner.

1 (Id.)

The trial court's cautionary commentary is supported by information

2 provided to the pre-sentence report writer: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Statement of Interested Parties: Karen Frapp the grandmother of both victims, advised that Bobbie Jo went "daffy" and is hard to control. She has been doing much better until she heard the defendant may withdraw from his plea. Durina appears to have recovered better and is looking to join the Air Force. The defendant is sending her letters to give to the victims. She does not believe he should have any contact with the victims and hopes the Court will order him to stop the attempted contact. She had not further comment as to sentencing. Bobbie Jo West did not wish to discuss the offense with this officer but issued a statement through her grandmother, Karen Frapp. She never wants to see the defendant again as his behavior has devastated her. However, she has to learn to live with what happened as there is no way the defendant's behavior can be reversed. She does not believe she is God and cannot judge what should happen to another person's life. She is angry and hurt by the defendant's behavior. She is not requesting restitution. Durina Farrell (sic) is doing fine at this time, as long as the offense is not mentioned. The defendant's behavior and the abuse bother her a great deal when she is confronted regarding the abuse. Durina reiterated that the defendant actually touched her vagina and advised he had been participating in this type of behavior since she was eleven. She reaffirmed that the defendant also touched Bobbie Jo in a sexual manner many times. Shortly after the abuse, Durina was caught shoplifting and was placed in a diversion program which included counseling. She sees Heidi Miller once a week relative to the shoplifting and the sexual abuse. She has no desire to have any contact with the defendant and does not want to judge him. She had no comment as to an appropriate sentence and is not requesting restitution.

26 (Exhibit CC, Presentence Investigation.) 27 28
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Last, the trial court explained during the settlement conference that guilty

1 verdicts on these charges required consecutive sentencing. (Id. at 4.) Petitioner 2 later pled guilty to two of the 13 charges. (Exhibits B and C.) The sentence on 3 Count 7 was capped at 27 years and the sentence on Count 10 was probation 4 eligible and capped at 15 years. (Id.) The trial court engaged in a lengthy change 5 of plea colloquy with Petitioner and in relevant part, Petitioner stated that he 6 understood the terms of the plea agreement, had discussed the matter with counsel, 7 and no force had been used to get him to enter into the plea. (Exhibit D, at 13­19.) 8 Petitioner answered yes when asked if the plea agreement contained everything he 9 agreed to, and no when asked if there was anything in the agreement he did not 10 agree with. (Id.) 11 Nonetheless, Petitioner had a change of heart, and at the next court hearing,

12 September 24, 1999, informed the trial court that he wished to withdraw from the 13 plea agreement. (Exhibit E, at 2.) Petitioner explained that he did not understand 14 the plea, felt coerced into taking the plea offers, was in obvious distress at the time 15 he pled no contest, that alterations were made to the plea agreements after he 16 signed them, that appointed counsel addressed him in anger on two separate 17 occasions: during a telephone call and a during a break in the settlement 18 conference, and that he had never actually read the plea offers. (Id. at 2­5.) 19 Petitioner also discussed the fact that other plea offers had been made and he had 20 previously indicated that he would not take a plea. (Id. at 3­4.) The prosecutor 21 surmised that Petitioner's change of heart was probably a result of learning that, 22 shortly after the plea agreement was executed, one of the victims was on runaway 23 status. (Id. at 6­7.) However, Petitioner was not aware that the runaway had 24 contacted the prosecuting agency a few days before the September hearing and 25 reaffirmed her intent to testify. (Id.) At the trial court's direction, the prosecutor 26 memorialized for the record the changes made to the plea offers after signatures 27 were affixed thereto. (Id. at 9­11.) 28 Petitioner's protestations aside, it is clear that the plea represented a
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1 voluntary and intelligent choice among the alternative courses of action open to 2 Petitioner. Alford, 400 U.S. at 31. Petitioner was acutely aware of the sentencing 3 range and tried to influence the victims to renounce their allegations. The direct 4 evidence against Petitioner was overwhelming, and the victims were willing to 5 testify. The trial court conducted a lengthy settlement conference wherein he 6 reviewed the overwhelming evidence and the sentencing range with Petitioner. 7 Petitioner accepted plea offers offering lifetime probation and capping the 8 sentencing range at 27 years, and avowed in open court that the pleas were 9 intelligent and voluntary. As Brady notes, "for a defendant who sees slight

10 possibility of acquittal, the advantages of pleading guilty and limiting the probable 11 penalty are obvious-his exposure is reduced, the correctional processes can begin 12 immediately, and the practical burdens of a trial are eliminated." 397 U.S. at 752. 13 "As far as this record reveals, the guilty plea was [Petitioner's] free and voluntary 14 act, the product of his own choice, just as he affirmed it was when the plea was 15 entered in open court." Parker, 397 U.S. at 796. Petitioner cannot absolve himself 16 of his guilty plea by virtue of claiming involuntariness. 17 18 19 Ground II: Ineffective assistance of counsel due to exertion of pressure to accept plea offer. Petitioner contends that he was not represented by competent counsel at

20 every stage of the proceedings, because trial counsel allegedly pressured Petitioner 21 to accept a plea offer even though he knew that Petitioner wanted to take the matter 22 to trial. This ground for relief amounts to a federal constitutional question, that is, 23 the deprivation of the Sixth Amendment right to effective representation by 24 counsel. Further, the allegation is exhausted because it was raised in post25 conviction relief proceedings and presented to every level of state courts as a 26 federal claim. (Exhibit I, K, M, O.) Nonetheless, the trial court's finding of failure 27 to present a colorable claim was not an unreasonable application of Strickland. 28 Petitioner failed to demonstrate that the advice was not "within the range of
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1 competence demanded of attorneys in criminal cases." McMann, 397 U.S. at 771. 2 3 The Strickland standard regarding ineffective assistance of counsel. Ineffective assistance of counsel claims are analyzed under the framework

4 set out by the Supreme Court in Strickland, and a convicted state prisoner claiming 5 that counsel's performance was constitutionally ineffective must satisfy two 6 separate requirements: (1) show that counsel's performance fell below objective 7 standards of reasonableness and was "outside the wide range of professionally 8 competent assistance"; and (2) establish that counsel's deficient performance 9 prejudiced the prisoner by creating "a reasonable probability that absent the errors 10 the fact finder would have had a reasonable doubt respecting guilt." Strickland, 11 466 U.S. at 687­88, 694. This standard also applies to contentions that a prisoner's 12 guilty plea was based on the ineffective assistance of counsel. Hill, 474 U.S. 13 at 57­59. In the context of plea agreements, an attorney provides ineffective 14 assistance of counsel when both of the following conditions exist: (1) "the 15 defendant must show that counsel's representation fell below an objective standard 16 of reasonableness," and (2) there exists "a reasonable probability that, but for 17 counsel's errors, he would not have pleaded guilty and would have insisted on 18 going to trial." Id. 19 Regarding the performance prong of the Strickland standard, a reviewing

20 court engages "`a strong presumption' that counsel rendered adequate assistance 21 and exercised reasonable professional judgment in making decisions." Strickland, 22 466 U.S. at 690; Thompson v. Calderon, 86 F.3d 1509, 1515 (9th Cir. 1996). The 23 prisoner "must demonstrate that counsel's performance was `outside the wide 24 range of professionally competent assistance.'" Strickland, 466 U.S. at 690. The 25 Court conducts an "extremely limited" review of counsel's performance: 26 27 28 The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

acted, in the circumstances, as defense counsel acted at trial. Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir. 1998), judgment rev'd on other grounds, 525 U.S. 141 (1998). Thus, review of counsel's performance is highly differential and there is a strong presumption that counsel's conduct fell within the range of reasonable representation. Ortiz, 149 F.3d 923, 932 (9th Cir. 1998). A court may also go directly to the prejudice requirement of an ineffective assistance of counsel claim. Jackson v. Calderon, 211 F.3d 1148, 1155 n.3 (9th Cir. 2000) (citing Strickland, 466 U.S. at 697). However, a court may not presume prejudice solely from counsel's allegedly deficient performance. 211 F.3d at 1155. Strickland requires a showing of a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 691; see also Hill, 474 U.S. at 59 (to satisfy the prejudice requirement in guilty plea context, the defendant must show a reasonable probability that, but for the errors of counsel, he would not have pleaded guilty and would have insisted on going to trial). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Dows v. Wood, 211 F.3d 480, 485 (9th Cir. 2000) (quoting Strickland, 466 U.S. at 694). The relevant procedural facts follow. The alleged "coercion" at issue

occurred during a break in a settlement conference when appointed counsel reportedly smacked the plea offer on the table and yelled "sign the damn plea." Petitioner was not alone with counsel at the time and was accompanied by a support team consisting of his father and a friend. (Doc. 1 at 5A­5B.) The settlement conference occurred on August 26, 1999, and Petitioner proceeded to plead no contest in a lengthy proceeding. (Exhibit D, at 13­23.) The trial court inquired whether the pleas were the results of threats, force, or promises and Petitioner responded that none had been made. (Id. at 19.) At the next court hearing, on September 24, 1999the trial court heard
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1 Petitioner on his motion to withdraw from the plea agreements and Petitioner 2 claimed that he did not understand the terms of the plea agreements, that he was in 3 obvious distress at the time he pled no contest, that alterations were made to the 4 plea agreements after he signed them, and that appointed counsel addressed him in 5 anger on two separate occasions: during a telephone call and a during a break in 6 the settlement conference. (Exhibit E, at 2­5.) The trial court denied the motion to 7 withdraw, ruling that withdrawal was not necessary to correct a manifest injustice. 8 (Id. at 16.) The trial court twice denied Petitioner's motion to withdraw in later 9 proceedings. (Exhibit F; Exhibit G, at 4­5.) 10 On February 11, 2000, Petitioner filed a notice of post-conviction relief and

11 the trial court appointed counsel. (Exhibit H.) On April 26, 2000, appointed 12 counsel filed a notice for preparation of post-conviction relief record. (Exhibit Q, 13 Request for Preparation of Transcript.) However, appointed counsel moved to 14 withdraw on May 25, 2000, citing a conflict of interest. (Exhibit R, Motion to 15 Withdraw.) On June 14, 2000, the trial court permitted the Public Defender's 16 Office to withdraw and appointed Kerri Droban as post-conviction counsel. 17 (Exhibit S, Minute Entry Order of June 14, 2000.) A court reporter filed the 18 transcript of the November 23, 1999 on October 26, 2000. (Exhibit T, Cover sheet 19 of Transcript of November 23, 1999.) Post-conviction counsel apparently filed a 20 notice of completion of post-conviction review, but it was not made part of the 21 record on appeal, and on January 15, 2001, the trial court granted Petitioner an 22 extension of time, to February 23, 2001, to file a pro-per petition for post23 conviction relief. (Exhibit U, Minute Entry Order of January 15. 2001.) On 24 February 13, 2001, Petitioner filed a motion for extension of time. (Exhibit V, 25 Motion for Extension of Time.) In pertinent part, Petitioner advised the trial court 26 that he would file only one request for extension of time, and that if he could not 27 retain legal representation, he would withdraw his petition for post-conviction 28 relief. (Id.) The trial court extended the time for filing until April 23, 2001.
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1 (Exhibit W, Minute Entry Order of February 26, 2001.) 2 Arizona law requires that a petitioner file his petition for post-conviction

3 relief with supporting "[a]ffidavits, records, or other evidence currently available to 4 the defendant supporting the allegations of the petition." Ariz. R. Crim. P. 32.5. 5 See also State v. Borbon, 146 Ariz. 392, 399, 706 P.2d 718, 725 (1985) (in 6 affirming the trial court's denial of a Rule 32 hearing, the appellate court noted that 7 defendant's factual allegations were not supported by affidavits). 8 On April 30, 2001, Petitioner filed a bare-bones petition for post-conviction

9 relief consisting of checking eight boxes on the petition for post-conviction relief, 10 without further elaboration. 11 compound ground for relief: 12 13 14 15 16 (Exhibit I, at 4.) The question and response to Question 5 of the pro-forma petition for post17 18 conviction is reproduced below: 19 20 21 22 23 24 25 26 27 28 (Exhibit I, at 4.) The question and response to Question 6(B) of the pro-forma petition for post-conviction is reproduced below: No affidavits, records or other supporting evidence are attached because:
24

(Exhibit I.)

Petitioner specified the following

After plea bargains were signed changes were made by the prosecutor and court appointed attorney, plea was accepted under duress and cohursion [sic], ineffective assistance of counsel. Defendant as much felt forced into plea by court appointed attorney.

The facts in support of the alleged error(s) upon which this petition is based are contained in Attachment A. [State facts clearly and fully; citations or discussions of authorities need not be included]. Need all court transcripts in order to show the facts of errors. As should have been taken down by court reporter during all hearings in the defendant's case from 6­15­98 to sentence date 11­23­99.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Need transcripts from all court hearings pertaining to defendant's case from start to sentencing. From the courtrooms of Galati and Reinstein and McVey. (Id.) Petitioner also filed a form letter requesting the preparation of the postconviction relief record. (Exhibit X, Request for Preparation of Post-conviction Relief Record.) The trial court initially dismissed the petition for post-conviction relief because it had not been filed by April 23, 2001, but later reinstated post-conviction relief proceedings. (Exhibit Y, Minute Entry Order of May 30, 2001.) The State requested summary dismissal of the petition arguing that none of the grounds were supported by competent evidence, and that three of the grounds raise were precluded by entry of a guilty plea. (Exhibit J, at 3.) In his reply, filed on August 8, 2001, Petitioner advised the trial court that the post-conviction relief record had not been prepared, and that he was aware that the petition needed to be supplemented with affidavits, records, and other evidence. (Exhibit K, at 2.)

Nonetheless, Petitioner supplemented his petition with a case synopsis, material facts, and argument premised on violation of federal law. (Id. at 10­12.) Petitioner did not supplement his petition with affidavits. On September 4, 2001, Petitioner filed a motion for clarification reiterating that the post-conviction relief record had not been prepared and that he needed the record to file a Rule compliant petition. (Exhibit Z, Motion for Clarification.) The trial court addressed the request for production of records in its order dismissing post-conviction relief proceedings. (Exhibit L.) The trial court

erroneously stated that the transcripts had been prepared when in fact only one hearing had been transcribed.7 (Id.) The trial court summarily dismissed the
________________________
7

The Arizona Court of Appeals subsequently ordered the remaining transcripts 27 prepared in July 2002. (Exhibit AA, 1 CA­CR 01­0885PR Order of July 15, 2002.) 28
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1 petition ruling that none of Petitioner's claims was supported by competent 2 evidence, that his plea of no-contest waived all non-jurisdictional defenses, and 3 that no colorable claim were raised. (Id.) The State appellate courts summarily 4 denied review. (Exhibits N, P.) 5 At the outset, Respondents note that the trial court's erroneous assertion

6 regarding the available transcripts does not undermine the soundness of its ruling. 7 Petitioner's allegations relate to events occurring outside the courtroom and the 8 transcripts could not cast any light on what occurred during the telephone call 9 between Petitioner and counsel or their private consultation during the settlement 10 conference. In fact, Petitioner notified the state court of the material facts germane 11 to his claim without the assistance of the transcripts. 12 Nonetheless, even if the Court assumes that Petitioner's assertions are true,

13 the conduct at issue amounted only to the sound advice of counsel. Many courts 14 have recognized that "`Advice--even strong urging' by counsel does not invalidate 15 a guilty plea." Williams v. Chrans, 945 F.2d 926, 933 (7th Cir. 1991) (quoting 16 Lunz v. Henderson, 533 F.2d 1322, 1327 (2nd Cir. 1976)); see also Marrero17 Rivera, 124 F.3d 342, 349 (1st Cir. 1997); Miles v. Dorsey, 61 F.3d 1459, 1470 18 (10th Cir. 1995). 19 The pressure to accept the plea offers was not without basis, in light of the

20 overwhelming evidence of Petitioner's guilt which consisted of the videotaped 21 statements of Petitioner's daughter and step-daughter, an incriminating 22 confrontation call wherein Petitioner admitted to committing some of the acts 23 charged, and a separate statement to the police wherein Petitioner admitted to 24 stimulating sex acts with his daughter and to providing pornographic material to 25 his daughter. (Exhibit D, at 3, 5.) In addition, the State exceedingly strong case 26 was bolstered by the incriminating letters Petitioner wrote to various family 27 members from jail. (Id.) If Petitioner was found guilty of the charges, any verdict 28 would require consecutive sentencing resulting in sentences in excess of 200 years.
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1 (Id. at 4.) In contrast, the State's plea offers permitted Petitioner to enter no contest 2 pleas to two of the counts, capped the maximum sentences at 27 years, and made 3 one of the offenses probation eligible. (Exhibits B and C.) In recommending that 4 Petitioner accept the plea offer, trial counsel gave Petitioner sound advice 5 satisfying the requirements of the Sixth Amendment. Thereafter, Petitioner made a 6 reasoned choice among the alternatives presented. 7 A determination of reasoned choice is buttressed by the fact that Petitioner

8 signed the plea agreements in the presence of his support system, his father and his 9 best friend. (Exhibits B­D; Doc. 1 at 5A­5B.) Their silence during appointed 10 counsel's strongly worded dispensation of advice supported an inference that 11 Petitioner's will was not overborne by counsel's actions. Undoubtedly, they too 12 understood that the plea offers were in Petitioner's best interests. In all likelihood, 13 the conduct and statements of Petitioner's support system was the source of the 14 coercion. As Petitioner relates it: 15 16 17 18 19 20 21 22 23 (Exhibit E at 13­14.) Petitioner's post-change of plea averment that he wanted to 24 take the take the case to trial and would have live with the outcome should be 25 rejected. (Doc. 1 at 6.) Courts have routinely found such self-serving claims 26 incredible, especially in cases wherein the challenged plea agreement significantly 27 reduced the defendant's potential punishment. See United States v. Farley, 72 F.3d 28 158, 165 (D.C. Cir. 1995); Parry v. Rosemeyer, 64 F.3d 110, 118-19 (3rd Cir.
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The day after that hearing I was told we were going to go before a Judge Reinstein, and I want you to sit down and listen. Don't say nothing. Just listen. And as soon as I come here in the court, I am being barreled. My dad was telling me, you know, that Miss Nannetti [the prosecutor] has this and Miss Nannetti has that. My best friend is in tears. He is crying, telling me, Miss Nannetti, he was understanding that they were going to basically put a rope around my neck and hang me for life.

1 1995); Armstead v. Scott, 37 F.3d 202, 210­11 (5th Cir. 1994); Panuccio v. Kelly, 2 927 F.2d 106, 109 (2nd Cir. 1991); Czere v. Butler, 833 F.2d 59, 64 (5th Cir. 1987). 3 Moreover, Petitioner changed his plea in open court and stated that that he

4 not been coerced into changing his plea. (Exhibit D at 19.) Petitioner did not 5 advise the trial court that he was accepting the plea because he had been coerced. 6 Statements made under oath in response to a judge's questions carry a strong 7 presumption of truth. See Allison, 431 U.S. at 74. Correspondingly, the plea or 8 sentencing proceeding record constitutes a formidable barrier to a collateral attack 9 on a guilty plea. Id. Petitioner is therefore bound by his responses to the trial 10 court's inquiries where the trial court scrupulously followed state procedures for 11 acceptance of a guilty plea. Petitioner cannot demonstrate that the advice of 12 counsel was not "within the range of competence demanded of attorneys in 13 criminal cases." McMann, 397 U.S. at 771; accord, Strickland, 466 U.S. at 687. 14 Petitioner is also unable to demonstrate that he would not have pleaded

15 guilty and would have insisted on going to trial. Hill, 474 U.S. at 59; Strickland, 16 466 U.S. at 694. Petitioner's letters to his family indicated that he would obstruct 17 justice rather than go to trial. (Exhibit BB.) Petitioner even acknowledged that 18 counsel might have saved him from spending the rest of his life in prison. (Doc. 1 19 at 6.) Most important however, is the fact that Petitioner by word or deed did not 20 indicate that he would not have accepted the plea offers but for counsel's coercion. 21 At the September 1999 hearing Petitioner explained that he wanted to withdraw 22 from the plea because he did not understand the plea, felt coerced into taking the 23 plea offers, was in obvious distress at the time he pled no contest, that alterations 24 were made to the plea agreements after he signed them, that appointed counsel 25 addressed him in anger on two separate occasions, and that he had never actually 26 read the plea offers. (Exhibit E at 2­5.) Petitioner also acknowledged that plea 27 negotiations had been ongoing for a period of time, and that he was under the 28 impression that he could plead to just one charge. (Id. at 2­5, 14.) Petitioner also
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1 stated that his father and best friend had expressed their dismay at the sentence he 2 faced. (Id. at 14.) At the sentencing hearing, on November 23, 1999, Petitioner 3 complained that his attorney "was supposed to be trying to get me the very least of 4 whatever it was that was on the plea bargain through all this." (Exhibit G at 8.) At 5 the settlement conference of August 26, 1999, Petitioner's "first question" 6 concerned recantation by his wife and kids to recant. (Exhibit D at 4­5.) That 7 statement was followed shortly, by the following statement, "I guess I just think it 8 is a little bit stiff; 13 to 26, whatever it may be years. I think that is a bit much." 9 (Id. at 6.) In the aggregate, Petitioner's statements evinced a simple desire for less 10 prison time; Petitioner was not committed to taking the matter to trial. In sum, the 11 pressure appointed counsel allegedly brought to bear was sound advice and does 12 not constitute grounds for withdrawing the guilty plea. 13 14 Ground 3: Alterations to plea agreement were unlawful. Petitioner contends that the plea agreements are illegal and void because

15 they were altered after he signed them. This ground for relief was raised in open 16 court, mentioned in summary form in the petition for post-conviction relief, 17 excluded from the reply to the State's response, and expounded upon in the petition 18 for review. 19 at 14­16.) 20 Clearly, Petitioner has failed to satisfy the fair presentation and the (Exhibits E at 5; Exhibit I at 4, Exhibit K at 9­15, Exhibit M,

21 exhaustion requirements. Petitioner only presented this claim in cursory fashion in 22 post-conviction relief proceedings before the trial court, and did not identify the 23 federal constitutional right implicated in modifying the plea agreements. As set 24 forth previously, to satisfy the exhaustion requirement, each claim must be 25 presented to every level of state court in a procedurally correct manner, and must 26 be "fairly presented" to each state court as a specific federal claim. 28 U.S.C. 27 § 2254(b)(1)(A); see also Baldwin, 541 U.S. at 29; Carey v. Saffold, 536 U.S. 214, 28 219­20, 122 S. Ct. 2134 (2002); McFadden, 399 U.S. at 998. That did not occur
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1 here, and there is a failure to exhaust that precludes habeas review. 2 Habeas review is also precluded because the alterations to the plea

3 agreements were made before they were accepted by the court (Exhibit D at 14), 4 and a petitioner may not raise independent claims relating to the deprivation of 5 constitutional rights that occurred prior to the entry of the guilty plea. Tollett v. 6 Henderson, 411 U.S. 258, 266­67, 93 S. Ct. 1602 (1973); accord, Moran v. 7 Godinez, 57 F.3d 690, 700 (9th Cir. 1994). Consequently, this ground for relief 8 does not amount to a federal constitutional question. 9 Additionally, a guilty plea forecloses all collateral attack not related to the

10 knowing and voluntary nature of the plea. United States v. Broce, 488 U.S. 563, 11 569, 109 S. Ct. 757 (1989); see also, Strickland, 466 U.S. at 697 ("The 12 presumption that a criminal judgment is final is at its strongest in collateral attacks 13 on that judgment."). A voluntary plea of guilty waives all non-jurisdictional 14 defenses, even constitutional violations not logically inconsistent with the valid 15 establishment of factual guilt. Henderson, 411 U.S. at 266­67; Alford, 400 U.S. 16 at 31; Parker, 397 U.S. at 797­98; McMann, 397 U.S. at 772; Brady, 397 U.S. 17 at 747­48; Henderson v. Morgan, 426 U.S. 637, 96 S. Ct. 2253 (1976); Menna v. 18 New York, 423 U.S. 61, 96 S. Ct. 241 (1975). See also Mabry v. Johnson, 467 U.S. 19 504, 508­09, 104 S. Ct. 2543 (1984) ("It is well-settled that a voluntary and 20 intelligent plea of guilty made by an accused person, who has been advised by 21 competent counsel, may not be collaterally attacked.") 22 Last, even if Petitioner had preserved this claim, the challenge he makes to

23 the plea agreement is a state law issue for which federal habeas relief is not 24 available. See, e.g., Langford v. Day, 110 F.3d 1380, 1388­89 (9th Cir. 1996) 25 (alleged failure of state courts to permit defendant to withdraw from his guilty 26 pleas was a matter of state law only and not a matter of federal constitutional 27 concern); Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989) ("It is well28 established that a defendant has no right to withdraw his guilty plea.") (quoting
Case 2:04-cv-00260-EHC-BPV Document 57 30 Filed 06/12/2008 Page 30 of 34

1 United States v. Signori, 844 F.2d 635, 637 (9th Cir. 1988)); United States v. Rios2 Ortiz, 830 F.2d 1067, 1069 (9th Cir. 1987); United States v. Read, 778 F.2d 1437, 3 1440 (9th Cir. 1985). These cases naturally flow from the proposition that there is 4 no constitutional right to a plea bargain. See, e.g., Weatherford v. Bursey, 429 U.S. 5 545, 560­61, 97 S. Ct. 837 (1977); United States v. Estrada-Plata, 57 F.3d 757, 6 760 (9th Cir. 1995); United States v. Wheat, 813 F.2d 1399, 1405 (9th Cir. 1987), 7 aff'd on other grounds, 486 U.S. 153, 108 S. Ct. 1692 (1988); Nguyen v. United 8 States, 114 F.3d 699, 704 (8th Cir. 1997). No federal con