Free Answer to Complaint - District Court of California - California

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GARY W. SCHONS Senior Assistant Attorney General 4 KEVIN VIENNA Supervising Deputy Attorney General 5 ANTHONY DA SILVA, State Bar No. 159330 Deputy Attorney General 110 West A Street, Suite 1100 6 San Diego, CA 92101 P.O. Box 85266 7 San Diego, CA 92186-5266 Telephone: (619) 645-2608 8 Fax: (619) 645-2271 Email: [email protected] 9 10 Attorneys for Respondent 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ERNESTO RIVAS LOPEZ, 08CV0457-LAB (AJB) IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

Petitioner, MEMORANDUM OF POINTS AND AUTHORITIES IN v. SUPPORT OF ANSWER TO PETITION FOR WRIT OF MACK JENKINS, Chief Probation Officer, et. al., HABEAS CORPUS Respondents.

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GARY W. SCHONS Senior Assistant Attorney General 4 KEVIN VIENNA Supervising Deputy Attorney General 5 ANTHONY DA SILVA, State Bar No. 159330 Deputy Attorney General 110 West A Street, Suite 1100 6 San Diego, CA 92101 P.O. Box 85266 7 San Diego, CA 92186-5266 Telephone: (619) 645-2608 8 Fax: (619) 645-2271 Email: [email protected] 9 10 Attorneys for Respondent 11 12 13 14 15 16 17 18 19 INTRODUCTION 20 21 Ernesto Rivas Lopez ("Lopez") filed a Petition for Writ of Habeas Corpus pursuant to 28 v. MACK JENKINS, Chief Probation Officer, et. al., Respondents. ERNESTO RIVAS LOPEZ, Petitioner, 08CV0457-LAB (AJB) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ANSWER TO PETITION FOR WRIT OF HABEAS CORPUS IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

22 U.S.C. § 2254 alleging that he received ineffective assistance from his trial counsel because counsel 23 failed: (1) to pursue an "upward plea" to a greater but non-aggravated offense which would have 24 made Lopez eligible for relief from deportation; and, (2) to investigate and present evidence that 25 would have shown that Lopez was guilty only of possession or transportation of drugs, leaving 26 Lopez eligible for relief from deportation. Lopez is not entitled to federal habeas corpus relief 27 because the state courts' denial on his claims on habeas corpus was not contrary to or an 28 unreasonable interpretation of established United States Supreme Court precedent and was not based
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1 on an unreasonable determination of the facts presented to the state courts. See 28 U.S.C. § 2 2254(d). Lopez is also not entitled to an evidentiary hearing in this Court because he has not alleged 3 facts that, if true, would entitle him to habeas relief. 4 5 STATEMENT OF THE CASE A San Diego County jury convicted Lopez of possession of cocaine for sale (Cal. Health

6 & Safety Code § 11351; count 1); possession of methamphetamine for sale (Cal. Health & Safety 7 Code § 11378; count 2); possession of marijuana for sale (Cal. Health & Safety Code § 11359; count 8 3); possession of ketamine (Cal. Health & Safety Code § 11377(b)(2); count 5); possession of 9 paraphernalia used for narcotics (Cal. Health & Safety Code § 11364; count 6); and unauthorized 10 possession of a hypodermic needle or syringe (Cal. Bus. & Prof. Code § 4140; count 7) in Case No. 11 SCD187886. (Lod. 1 - Clerk's Transcript (CT) at 1-4; 52-57; Lod. 3 - Reporter's Transcript (RT) 12 at 283-284.) The court suspended imposition of the sentence and placed Lopez on probation for five 13 years on the condition that he serve 365 days in county jail. (Lod. 1 - CT at 132-134, 161; Lod. 3 14 RT at 362-364.) 15 Lopez appealed, contending that: (1) the trial court erred in instructing the jury that they

16 could find him liable for possession for sale (counts 1-3) where he did not have the specific intent 17 to personally sell the controlled substance, but rather the specific intent that someone else do so; and 18 (2) the order granting probation improperly reflected the terms and conditions imposed by the court. 19 (Lod. 4 - Lopez's Opening Brief at 7-19.) In an unpublished opinion, the California Court of 20 Appeal, Fourth Appellate District, Division One, affirmed the judgment and remanded the case for 21 the trial court to redetermine the terms of probation. (Lod. 7 - People v. Lopez, No. D046705, slip. 22 op. at 1-12 (June 2, 2006).) Lopez filed a review petition raising the same claims (Lod. 8), which 23 was denied by the California Supreme Court in Case No. S144907, on August 16, 2006. (Lod. 9.) 24 On September 7, 2006, Lopez filed a habeas petition in San Diego County Superior Court

25 Case No. HC18635, wherein he alleged that he received ineffective assistance by his trial counsel 26 because he failed: (1) to pursue an "upward plea" to a greater but non-aggravated offense which 27 would have made Lopez eligible for relief from deportation; and, (2) to investigate and present 28 evidence that would have shown that Lopez was only guilty of possession or transportation of drugs,
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1 leaving Lopez eligible for relief from deportation. (Lod. 10.) The Superior Court issued an order 2 to show cause (Lod. 11), and the San Diego County District Attorney's Office filed a return. (Lod. 3 12.) Lopez filed a traverse. (Lod. 13.) The superior court issued an order denying Lopez's petition 4 on January 24, 2007. (Lod. 14.) 5 On February 27, 2007, Lopez filed a habeas petition raising the same claims in California

6 Court of Appeal, Fourth Appellate District, Division One, Case No. D050345.) (Lod. 15.) The 7 Court of Appeal issued an order denying the petition on March 13, 2007. (Lod. 16.) 8 On June 25, 2007, Lopez filed a habeas petition raising the same claims in California

9 Supreme Court Case No. S154133. (Lod. 17.) The Supreme Court requested an informal response, 10 which was filed by Office of the Attorney General. (Lod. 18.) Lopez filed a reply. (Lod. 19.) The 11 California Supreme Court issued an order denying the Petition on February 13, 2008. (Lod. 20.) 12 13 14 Lopez filed the instant Petition in this Court on March 12, 2008. STATEMENT OF FACTS The facts relevant to the determination of Lopez's Petition are summarized in the opinion

15 of the California Court of Appeal. (Lod. 7 - People v. Lopez, No. D046705, slip. op. at 2-4.) The 16 state court's recitation is presumed to be correct. Briggs v. Galaza, 242 F.2d 1082, 1087 (9th Cir. 17 2001). The state appellate court summarized the facts as follows: 18 19 20 21 22 23 24 25 26 27 28 A 38-page telephone bill in Lopez's name, immigration paperwork in Lopez's name, and photographs of Lopez were found in an armoire in the bedroom. A black tin box containing glass methamphetamine pipes, syringes, a manual weighted scale and some baggies were recovered from the living room. A baggie containing 14.30 grams of cocaine was found in a black vinyl pouch in a plastic organizer bin next to the bed. Three baggies containing 0.2 grams of methamphetamine were recovered from the plastic organizer bin. Four baggies containing
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On December 29, 2004, at approximately 10:00 p.m., the San Diego Police Department's Narcotics Team Ten served a search warrant on an apartment in San Diego rented by Lopez. Lopez and Richard Mancha approached the apartment after the officers had entered. They were both carrying grocery bags. San Diego Police Officer Jon Brown contacted Lopez and Mancha at the base of the stairwell and told them they were being detained for a narcotics investigation. Both Lopez and Mancha appeared to be under the influence of a controlled substance. Mancha refused to provide his name when asked and appeared nervous. Mancha dropped his grocery bag and started to run away as Officer Brown was placing Lopez in handcuffs. Officer Brown grabbed Mancha and forced him to the ground. Lopez had $280 in his left front pants pocket.

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a total of 52.06 grams of marijuana were also found in the plastic organizer next to the bed. Eight glass pipes with burn residue were found in the plastic organizer. San Diego Police Detective Timothy Norris testified that the pipes were primarily used to smoke methamphetamine. A metal container holding four 10-millimeter bottles of ketamine was found under the bed. Three plastic containers containing a total of 20.78 grams of methamphetamine were found in a wooden box on the night stand, together with a glass methamphetamine pipe and plastic straw used to snort cocaine or methamphetamine. A second wooden box found on the night stand contained a small bag of marijuana and an empty glass vial. The officers also recovered a black metal tin containing a baggie holding 2.53 grams of methamphetamine, a baggie with methamphetamine residue and a digital scale, and a round metal silver tin containing five baggies, two of which contained a total of 1.46 grams of methamphetamine, and three of which contained methamphetamine residue. Detective Norris testified that the methamphetamine, cocaine and marijuana recovered during the search were all in usable quantities and, based upon the amounts, the packaging and paraphernalia, were for the purpose of sale. Detective Norris testified that the methamphetamine had a street value of $1,875 and that the cocaine had a street value of $1,120. ARGUMENT

12 I. 13 STANDARD OF REVIEW 14 15 Lopez's Petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996

16 ("AEDPA") because it was filed after its enactment on April 26, 1996. 110 Stat. 1214. See 17 Woodford v. Garceau, 538 U.S. 202, 207, 123 S. Ct. 1398, 155 L. Ed. 2d 363 (2003) (habeas 18 application filed after the AEDPA's effective date of April 24, 1996, is reviewed under the 19 AEDPA); Lockyer v. Andrade, 538 U.S. 63, 70, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). To 20 obtain federal habeas relief, Ma must satisfy either 28 U.S.C. § 2254(d)(1) or § 2254(d)(2). 21 Williams v. Taylor, 529 U.S. 362, 403, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). As amended by 22 the AEDPA, 28 U.S.C. § 2254 reads: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgement of a State court shall not be granted with respect to any claim that was adjudicated on the 24 merits in State court proceedings unless the adjudication of the claim ­ 23 25 26 27 28 (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.
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To obtain federal habeas relief, Lopez must satisfy either § 2254(d)(1) or § 2254(d)(2).

2 Williams v. Taylor, 529 U.S. at 403. The Supreme Court interprets § 2254(d)(1) as follows: 3 4 5 6 Under the "contrary to" clause, a federal habeas corpus court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

7 Williams v. Taylor, 529 U.S. at 412-13; Lockyer v. Andrae, 538 U.S. at 73-74. 8 While habeas corpus relief is an important instrument to assure that individuals are

9 constitutionally protected (Barefoot v. Estelle, 463 U.S. 880, 887, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 10 (1993); Harris v. Nelson, 394 U.S. 286, 290, 89 S. Ct. 1082, 22 L. Ed. 2d 281 (1969)), direct review 11 of a criminal conviction is the primary method for a petitioner to challenge that conviction. Brecht 12 v. Abrahamson, 507 U.S. 619, 633, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993). In addition, the state 13 court's factual determinations must be presumed correct, and the federal court must accept all factual 14 findings made by the state court unless the petitioner can rebut "the presumption of correctness by 15 clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769, 115 16 S. Ct. 1769, 131 L. Ed. 2d 834 (1995); Thompson v. Keohane, 516 U.S. 99, 109, 116 S. Ct. 457, 133 17 L. Ed. 2d 383 (1995); Langford v. Day, 110 F.3d 1380, 1388 (9th Cir. 1997). 18 19 20 21 As on state habeas corpus, Lopez claims that he received ineffective assistance by his trial II. LOPEZ FAILS TO SHOW THAT HIS TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE

22 counsel because he failed: (1) to pursue an "upward plea" to a greater but non-aggravated offense 23 which would have made Lopez eligible for relief from deportation; and, (2) to investigate and 24 present evidence that would have shown that Lopez was guilty only of possession or transportation 25 of drugs, leaving Lopez eligible for relief from deportation. Lopez is not entitled to federal habeas 26 corpus relief because the state courts' denial on his claims on habeas corpus was not contrary to or 27 an unreasonable interpretation of established United States Supreme Court precedent and was not 28 based on an unreasonable determination of the facts presented to the state courts. See 28 U.S.C. §
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1 2254(d). 2 3 A. Analysis of Claims of Ineffective Assistance of Counsel The Sixth Amendment to the Constitution provides that every criminal defendant has the

4 right to the effective assistance of counsel. The law governing ineffective assistance of counsel 5 claims is clearly established for the purposes of the AEDPA deference standard set forth in 28 6 U.S.C. § 2254(d). Canales v. Roe, 151 F.3d 1226, 1229 (9th Cir. 1998). In a petition for writ of 7 habeas corpus alleging ineffective assistance of counsel, this Court must consider two factors. 8 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Lowry v. 9 Lewis, 21 F.3d 344, 346 (9th Cir. 1994). First, the petitioner must show that counsel's performance 10 was deficient, requiring a showing that counsel made errors so serious that he or she was not 11 functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The 12 petitioner must show that counsel's representation fell below an objective standard of 13 reasonableness, and must identify counsel's alleged acts and omissions that were not the result of 14 reasonable professional judgment considering the circumstances. Id. at 688; United States v. 15 Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995). In assessing claims of ineffective assistance, 16 courts must "assess counsel's overall performance throughout the case (Kimmelman v. Morrison, 17 477 U.S. 365, 366, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986)), and further evaluate it "from counsel's 18 perspective at the time of the alleged error and in light of all the circumstances. (Id. at 384).) 19 Judicial scrutiny of counsel's performance is highly deferential. A court indulges a strong 20 presumption that counsel's conduct falls within the wide range of reasonable professional assistance. 21 Strickland, 466 U.S. at 687; Sanders v. Ratelle, 21 F.3d 1446, 1456 (9th Cir. 1994). Ineffective 22 assistance of counsel claims are analyzed under the "unreasonable application" prong of the AEDPA 23 as indicated in Williams v. Taylor, 529 U.S. at 412-13. Weighall v. Middle, 215 F.3d 1058, 1062 24 (9th Cir. 2000). 25 Second, the petitioner must demonstrate that "there is a reasonable probability that, but

26 for counsel's unprofessional errors, the result . . . would have been different." Strickland, 466 U.S. 27 at 694. The petitioner must show that counsel's error's were so egregious as to deprive him or her 28 of a fair trial, one whose result is reliable. Id. at 688. The court must evaluate whether the entire trial
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1 was fundamentally unfair or unreliable because of counsel's ineffectiveness. Id.; Quintero-Barraza, 2 78 F.3d at 1345; United States v. Palomba, 31 F.3d 1456, 1461 (9th Cir. 1994). 3 4 B. State Court Review Lopez raised the instant claims in three habeas petitions (Lods. 10, 15, 17) that were

5 denied by the superior court, Court of Appeal, and California Supreme Court. (Lods. 14, 16, 20.) 6 In support of his petitions, Lopez proffered the same declarations that he presents to this Court ­

7 declarations by his trial counsel, Deputy Public Defender Neil Besse, Lopez's own declaration, and 8 the declarations of his friends, Richard Granstaff, Jose Carlos Clark, Carlos Estrada, and Richard 9 Mancha. (Lod. 10 - Exhs. A-F; Lod. Lod. 13 - Ex. A; Lod. Lod. 15 - Exhs. A-F, Lod. 17 - Appendix 10 - Exhs. A-F; see Lopez's Pet. - Exhs. E-K.) In opposing the petition, the People provided the 11 declarations of Deputy District Attorney Kathleen Lewis, who represented the People at a readiness 12 conference and offered a plea in Lopez's case, and Deputy District Attorney Greg Walden, who was 13 Chief of the Disposition Division. (Lod. 12 - Exhs. 1-2; Lod. 18 - Exhs. 3-4; see Lopez's Pet. 14 Exhs. L-M.) 15 The San Diego County Superior Court properly noted the Strickland standard in its

16 analysis of Lopez's claims. (Lod. 14 at 3.) The superior court rejected Lopez's contention that his 17 trial counsel rendered ineffective assistance by failing to advise him that a conviction for any of the 18 three possession for sale counts would result in deportation and loss of asylum. (Lod. 14 at 3-4.) 19 20 21 22 The superior court noted that: However, counsel's declaration affirmatively states that: 1) [Lopez] was advised that he would be deported as a result of a conviction in the case; 2) that there were harsh immigration consequences stemming from the pending charges against [Lopez]; which may result in a loss of his asylum; and 3) that deportation and exclusion from readmission was mandatory for possession for sale offenses, which are aggravated felonies.

23 (Lod. 14 at 4, citing Declaration of Neil Besse, Petition Exhibit F, ¶¶ 3-5.) 24 The superior court distinguished Lopez's case from the cases that he relied on in support

25 of his claim. The court noted the state supreme court's holding an attorney's affirmative misadvisal 26 regarding immigration consequences could constitute ineffective assistance (see In re Resendiz, 25 27 Cal.4th 230, 105 Cal. Rptr. 2d 431, 19 P.3d 1171 (2001)), but concluded that there was no such 28 affirmative misadvice by attorney Besse because "the statements made by counsel were correct, in
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1 that conviction would result in deportation and could result in a loss of asylum." (Lod. 14 at 4.) 2 The superior court also distinguished Lopez's cases with the immigration consequence

3 cases that he cited (see People v. Soriano, 194 Cal. App. 3d 1470, 240 Cal. Rptr. 328 (1987)), and 4 People v. Bautista, 115 Cal. App. 4th 229, 8 Cal. Rptr. 3d 862 (2004)), because: 5 6 7 8 9 10 11 the defendants in those cited cases plead guilty, thereby giving up their right to a trial, based on the advice of counsel concerning the immigration consequences. (Footnote omitted.) It was in those situations that the courts found that incomplete advice concerning immigration consequences constituted ineffective assistance of counsel due to a defendant's decision to waive his right to trial. However, central to these holdings was the fact that the defendants' acceptance of the plea offer which ultimately led to their deportation, deprived them of their opportunity to take their cases to trial and seek acquittal. [¶] Here, no such issue exists as [Lopez] did not plead guilty and did not waive his right to trial. Rather, the plea offer made to [Lopez] in this case was for one count of possession for sale of methamphetamine and one count of possession for sale of cocaine, both of which are aggravated felonies. Based on the plea offer from the People, [Lopez] made the decision to go to trial and seek acquittal, the only other alternative aside from accepting the offer and facing deportation.

12 (Lod. 14 at 4-5.) 13 The superior court found that Lopez failed to show that his trial counsel rendered

14 ineffective assistance by failing investigate and present evidence of his alleged innocence of the 15 charged crimes. (Lod. 14 at 5.) The superior court noted that: 16 17 18 19 20 21 22 23 24 (Lod. 14 at 5 (emphasis added).) 25 The superior court also rejected Lopez's claim that his trial counsel rendered ineffective With regard to [Lopez]'s claim that counsel failed to put on a defense at trial, it appears that counsel did defend the case, albeit by cross-examination of the People's witnesses. Although [Lopez] submits declarations from various potential witnesses asserting [Lopez]'s alleged innocence, (Petition, Exhibits A-E) [Lopez] has failed to show that counsel was aware of the existence of such issues, or that the decision not to call such witnesses was anything other than a strategic decision by counsel. Counsel's declaration merely states that he did not consider the strategy of focusing an attack on the aggravated felony counts and that he may have conducted the trial differently had been aware of the "upward plea" as discussed in Bautista may not have resulted in deportation. (Declaration of Neil Besse, Petition, Exhibit F, ¶¶ 23-24.) Noticeably absent is any statement by counsel that he would have called such witnesses at trial or that he was even aware that such witnesses existed. [¶] Nor is there any evidence presented regarding what investigation was undertaken by counsel, or conversely, that no investigation was conducted. . . .

26 assistance by failing to consider an "upward plea" to a more serious, but non-aggravated felony to 27 avoid the immigration consequence as indicated in Bautista. (Lod. 14 at 6-7.) The superior court 28 distinguished Bautista from Lopez's case as follows:
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First, as previously discussed above, unlike the defendant in Bautista, [Lopez] did not plead guilty and thus did not waive his right to a jury trial. Rather, [Lopez] went to trial and sought an acquittal, which was the only other option available to [Lopez] to avoid deportation and/or loss of asylum. [¶] Second, and perhaps most importantly, the People have quite clearly established that they would have never have agreed to an "upward plead." As stated in the People's Return, the People would have opposed an offer that would give special treatment to non-citizens. (Declaration of DDA Greg Walden, People's Return, Exhibit 2, ¶¶ 1-11.) Thus, no special offer proposed by the defense, such than an "upward plea" would have been agreed to by the People. The People further state that they would have flatly rejected any offer to plead up to a crime such as transporting or offering to sell drugs because there was no evidence that [Lopez] either transported, or offer to sell, drugs in this case. There was no factual basis for those charges and the People, and the Court, would have required [Lopez] to make some admission that would have satisfied the statute. The People would not accept a factual basis that falsely stated that [Lopez] merely offered to sell or transport narcotics or possessed them for personal use. There was no non-aggravated felony that the People would have accepted had it been offered by [the] defense. (Declaration of DDA Kathleen Lewis, People's Return, Exhibit 1, ¶¶ 6-7.)

11 (Lod. 14 at 6-7.) 12 The California Court of Appeal took judicial notice of Lopez's direct appeal and habeas

13 corpus proceedings in the Superior Court when it considered and denied Lopez's habeas petition. 14 (Lod. 16.) The state appellate court rejected Lopez's claim that his trial counsel rendered 15 ineffective assistance because he did not advise him, pursuant to Bautista, that it was possible to 16 "plead upward" to a greater but non-aggravated felony which would make him eligible for relief 17 from deportation as follows: 18 19 20 21 22 23 24 25 (Lod. 16 at 1-2.) 26 The state appellate court also rejected Lopez's claim that his trial counsel rendered In the petition filed in San Diego Superior Court, Lopez provided a declaration of trial counsel Neil Addison Besse stating Besse did not consider offering to have Lopez "plead up" to a non-aggravated felony because he did not know it would have been more beneficial for avoiding immigration consequences. Besse declared that if he had known about the "upward plea" under Bautista, he "would have negotiated the case differently and [he] may have conducted the trial differently. [¶] Even if counsel were ineffective by not pursuing an "upward plea," Lopez cannot show he was prejudiced because the People would not have agreed to the plea bargain. In return to the order to show cause issued by the superior court, Deputy District Attorneys Greg Walden and Kathleen Lewis declared they would not have accepted the "upward plea" because the District Attorney "do[es] not make special pleas to allow non-citizen defendants to avoid deportation as a consequence of their crimes."

27 ineffective assistance by failing to investigate and present evidence that would have shown that he 28 was guilty only of possession of drugs, leaving him eligible for relief from deportation. The
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1 appellate court rejected this claim because: 2 3 4 5 (Lod. 16 at 2.) 6 The California Supreme Court denied Lopez's petition raising the same claims without The declarations offered in support of this claim are from addicts who used drugs with Lopez and state, among other things, that they have never seen Lopez sell drugs and believe that he has never sold drugs. The proffered evidence does not establish a meritorious defense that would have resulted in a better outcome for Lopez.

7 comment or citation. (Lod. 20.) The California Supreme Court's summary denial is construed as 8 an adjudication on the merits. Luna v. Cambra, 306 F.3d 954, 960 (9th Cir. 2002), amended 311 9 F.3d 928 (9th Cir. 2002); Hunter v. Aispuro, 983 F.2d 344, 347-48 (9th Cir. 1992). To determine 10 the reasonableness of the California Supreme Court's decision with regard to the claim presented 11 by Lopez, this Court must analyze the written opinion of the superior court and the state appellate 12 court. See Ylst v. Nunnemaker, 501 U.S. 797, 801-803, 111 S. Ct. ,115 L. Ed. 22 706 (1991). Thus, 13 in conducting habeas review of this claim, this Court must apply the deferential standards of review 14 articulated in 28 U.S.C. § 2254(d). 15 16 17 C. Analysis of Lopez's Claim of Ineffective of Trial Counsel 1. Failure to Advise About an "Upward Plea"

Lopez contends he is entitled to federal habeas corpus relief because the state courts'

18 denial of his claim that his trial counsel rendered ineffective assistance by failing to advise him of 19 an "upward plea" as in Bautista to make him eligible for relief from deportation was based on an 20 unreasonable determination of the facts in light of the evidence presented to the state courts. (Pet. 21 at 6 - Ground One; First Amend. Mem. P&A at 7-12.) But the state courts properly evaluated the 22 evidence before them when they concluded that: (1) there was no factual basis for the "upward 23 pleas" that Lopez claimed should have been made ­ transportation of narcotics, or accessory after 24 the fact; and (2) Lopez failed to provide substantial or credible evidence that the San Diego County 25 District Attorney's Office would have accepted such a plea. Accordingly, Lopez is not entitled to 26 federal habeas corpus relief as to this claim. See 28 U.S.C. § 2254(d). 27 In plea proceedings, to satisfy the deficient performance prong of the Strickland test, the

28 petitioner must show that his counsel's advice as to the consequences of the plea was not within the
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1 range of competence demanded of criminal attorneys. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. 2 Ct. 366, 88 L. Ed. 2d 203 (1985). In considering this issue, there is a "strong presumption that 3 counsel's conduct falls within a wide range of acceptable professional assistance." Strickland, 466 4 U.S. at 689. Moreover, post-hoc complaints about the strategy or tactics employed by defense 5 counsel are typically found insufficient to satisfy the first prong of Strickland. See, e.g., United 6 States v. Simmons, 923 F.2d 934, 956 (2nd Cir. 1991) (appellant's displeasure with strategy 7 employed by trial counsel insufficient to establish ineffectiveness). 8 To satisfy the prejudice prong of Strickland, the petitioner must show that but for

9 counsel's advice, he would not have pleaded guilty but would have insisted on going to trial. Hill 10 v. Lockhart, 474 U.S. at 58-59; Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990). The 11 focus of the prejudice analysis is on whether the result of the proceeding was fundamentally unfair 12 or unreliable because of counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S. 13 Ct. 838, 122 L. Ed. 2d 180 (1991). 14 This Court may also grant relief if a state court's adjudication "was based on an

15 unreasonable determination of the facts in light of the evidence presented in the State court 16 proceeding." 28 U.S.C. § 2254(d)(2). The AEDPA directs federal courts to presume that state court 17 factual findings are correct. 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to state 18 appellate determinations of fact as well as those of the state trial courts. Tinsley v. Borg, 895 F.2d 19 520, 525 (9th Cir. 1990). Those factual findings may not be overturned "absent clear and 20 convincing evidence" that they are "objectively unreasonable." 28 U.S.C. § 2254(e)(1); Miller-El 21 v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003); Purkett v. Elem, 514 U.S. 22 765, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995); Langford v. Day, 110 F.3d at 1388 . Clear and 23 convincing evidence "requires greater proof than preponderance of the evidence" and "to meet this 24 higher standard, a party must present sufficient evidence to produce `in the ultimate factfinder an 25 abiding conviction that the truth of its factual contentions are [sic] highly probable.'" 26 Sophanthavong v. Palmateer, 365 F.3d 726, 733 (9th Cir. 2004) (quoting Colorado v. New Mexico, 27 467 U.S. 310, 316, 104 S. Ct. 2433, 81 L. Ed. 2d 247 (1984) (presumption not rebutted where state 28 court made credibility determinations and petitioner presents no new evidence in federal court.)).
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1 2 In the instant case, Lopez claims that, "It is an objectively unreasonable determination of

3 the facts to take four conflicting declarations (two from Besse, as well as those of Deputies Lewis 4 and Walden), all from sworn members of the California Bar, and adopt one side of the facts." Lopez 5 argues that the state courts choice to believe the prosecutors and disregard the word of Attorney 6 Besse was a "dismissive and strained interpretation" of the evidence before the state courts. (First 7 Amend. Mem. P&A at 8.) But the only fact that was presented to the state courts was that the San 8 Diego County District Attorney's Office would not have accepted the "upward plea" counter-offer 9 as proposed by Attorney Besse. Attorney Besse's "belief" that his "novel" counter-offer "would 10 have been accepted" by the District Attorney's Office is not supported by any evidence and is 11 speculative, indeed inadmissible. Accordingly, it was objectively reasonable, based upon the 12 evidence presented, for the state courts to conclude that District Attorney's Office would have never 13 accepted such a counter-offer. (Lod. 14 at 6-7; (Lod. 16 at 1-2.) 14 As previously discussed, ineffective assistance of counsel claims are analyzed under the

15 "unreasonable application" prong of the AEDPA as indicated in Williams v. Taylor, 529 U.S. at 16 412-13. Weighall v. Middle, 215 F.3d at1062. Under the "unreasonable application" clause of the 17 AEDPA, a federal habeas court may grant the writ if the state court identifies the correct governing 18 legal principle from this Court's decisions but unreasonably applies that principle to the facts of the 19 prisoner's case. Williams v. Taylor, 529 U.S. at 412-13; Lockyer v. Andrade, 538 U.S. at 73-74. 20 Here, the state courts did not unreasonably apply Strickland when they denied Lopez's claim. 21 The state trial court properly concluded that Lopez had failed to show that attorney Besse

22 failed to act within the range of competence demanded of attorneys in criminal cases. The state trial 23 court assessed attorney Besse's overall performance throughout the case (Kimmelman v. Morrison, 24 477 U.S. at 366), and further evaluated it "from counsel's perspective at the time of the alleged error 25 and in light of all the circumstances. (Id. at 384). It also concluded that Lopez had failed to show 26 any resulting prejudice. (Lod. 14 at 1-2, 4-5.) The Court of Appeal denied the claim by finding that, 27 even if attorney Besse had rendered ineffective assistance, he could not establish any prejudice from 28 the plea advisal. (Lod. 16 at 1-2.) A court need not determine whether counsel's performance was
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1 deficient before examining any prejudice suffered by the petitioner as a result of the alleged 2 deficiencies. Strickland, 466 U.S. at 697. "Failure to satisfy either prong of the Strickland test 3 obviates the need to consider the other." Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002). 4 Under California law, because a plea agreement is a contract, it is interpreted according

5 to ordinary contractual principles. People v. Shelton, 37 Cal. 4th 759, 767, 37 Cal. Rptr. 3d 354, 6 358, 125 P.3d 290, 294 (2006). The fundamental goal of contractual interpretation is to give effect 7 to the mutual intention of the parties, and such intention is determined by the objective 8 manifestations of the parties' intent, including the words used in the agreement, extrinsic evidence 9 of the surrounding circumstances under which the parties negotiated the contract, the object, nature 10 and subject matter of the contract, and the subsequent conduct of the parties. Ibid. Here, based on 11 the evidence presented it was reasonable for the state courts to conclude that Lopez could not get 12 a plea deal that would make him eligible for relief from deportation. 13 In this case, Lopez was charged with possession of cocaine, methamphetamine and

14 marijuana for sale (counts 1-3), possession of ketamine (count 5), possession of paraphernalia used 15 for narcotics (count 6), and unauthorized possession of a hypodermic needle or syringe (count 7). 16 (Lod. 1 - CT at 1-4.) At a trial readiness conference, Deputy District Attorney Kathleen Lewis 17 offered Lopez a plea to possession of cocaine for sale (count one) and possession of 18 methamphetamine for sale (count two). The offer included felony probation and no opposition to 19 local time served if Lopez did not have any prior felonies. (See Pet. Ex. L - Decl. of Kathleen Lewis 20 ("Lewis Decl."), at 1-2, ¶¶ 3-4.) Lopez's trial counsel, Deputy Public Defender Neil Addison Besse, 21 made a counter offer of simple possession of the narcotics to avoid immigration consequences. But 22 the offer was rejected by the prosecutor and the case was set for trial. (Pet. Ex. F - Decl. of Neil 23 Addison Besse ("Besse Decl."), at 2, ¶ 7; Pet. Ex. L - Lewis Decl., at 2, ¶¶ 5; Pet. Ex. Ex. M 24 Declaration of Greg Walden ("Walden Decl.") at 2, ¶ 9.) 25 Attorney Besse declared that, if he had been aware of Bautista, he would have made an

26 alternative counter-offer to "plea up" to two counts of transportation of narcotics for personal use, 27 or offering to sell or transport narcotics in violation of California Health and Safety Code sections 28 11352, 11360, or 11379, to give Lopez a chance to retain his asylum. (Pet. Ex. F - Besse Decl. at
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1 2, ¶¶ 9-10; Pet. Ex. G - Besse Decl. at 2-3, ¶¶ 6-12.) In response to the declarations by Deputies 2 Lewis and Walden, Attorney Besse stated that: 3 4 5 In my experience negotiating cases with Ms. Lewis and Mr. Walden, I believe a counter offer of two counts of Health and Safety Code §§ 11352, 11360, or 11379, with a grant of probation, would have been accepted. This is because such an offer would provide the D.A. with substantially the same factual basis and an increased potential sentence in the event of a probation violation.

6 (Pet. Ex. F - Besse Decl. at 2, ¶ 10.) 7 Attorney Besse then admitted that would be "novel approach" to negotiating a plea in a

8 case where the defendant was charged with possession of narcotics for sale. Besse further admitted 9 that he had never presented such a counter-offer, and declared that he was "not aware of the D.A. 10 ever rejecting such a counteroffer." (Pet. Ex. F - Besse Decl. at 2, ¶ 11.) 11 Deputy District Attorney Lewis declared that she would have rejected such a counter-offer

12 by Attorney Besse because her office does not allow acceptance of "special pleas to allow non13 citizen defendants to avoid deportation as a consequence of their crimes." (Pet. Ex. L - Lewis Decl. 14 at 2, ¶ 6.) Deputy Lewis further stated that the fact the crimes contained in Attorney Besse's 15 counter-offer provide: 16 17 18 19 (Pet. Ex. L - Lewis Decl. at 2, , ¶ 7.) 20 Deputy District Attorney Greg Walden, who was in charge of the Case Disposition Unit, for a greater prison term than the crimes we offered would not have persuaded me to accept the offer. Even if Lopez pleaded to transportation or offering to sell narcotics, he would likely get felony probation, not prison. He would then face a maximum of 365 days in jail, the same maximum he faced pursuant to our offer.

21 confirmed that the possible counter-offer proposed by Attorney Besse would not have been 22 accepted. Deputy Walden declared that, as matter of policy, a defendant's "immigration status is 23 simply not a relevant factor in the consideration of plea offers []" by the San Diego County District 24 Attorney's Office. (Pet. Ex. M - Walden Decl. at 2, ¶ 4.) That is because "it undermines federal 25 immigration laws, and is contrary to the efforts of law enforcement agencies." (Id. at 2, ¶ 7.) 26 Deputy Walden explained that, based on his review of Lopez's case file, the counter-offer proposed 27 by Attorney Besse in his declarations would have been rejected as follows: 28 If the defense had offered to plead to transportation of narcotics for personal use, or
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1 2 3 4 5

offering to transport or sell narcotics, in violation of Health and Safety Code sections 11352, 11360, or 11379, the People would have rejected that offer. I would not authorize a special plea designed to allow Lopez to avoid the legal consequences of his crimes based on his immigration status. [¶] It makes no difference that sections 11352, 11360, and 11378 carry a greater prison term than the possession for sale crimes offered by the People. Lopez has no prior felonies and would almost certainly not be sentenced to prison even if he pleaded to transportation or offering to sell narcotics. Instead, he would get felony probation with a maximum of 365 days of local custody, the same limit he would face pursuant to the [no opposition to local time] we offered him.

6 (Pet. Ex. M - Walden Decl. at 2-3, ¶¶ 8-11.) 7 Attorney Besse's "belief" that his "novel" counter- offer "would have been accepted" was

8 clearly speculative because, as properly concluded by the state courts, the District Attorney's Office 9 would have never accepted such a counter-offer. (Lod. 14 at 6-7; (Lod. 16 at 1-2.) Accordingly, 10 the state courts reasonably rejected Lopez's claim of ineffective assistance for failure to advise him 11 about an "upward plea" that would permit relief from deportation because it was not supported by 12 the evidence presented before them on habeas corpus. 13 Lopez claims he was prejudiced by his counsel's failure to pursue a Bautista-type "upward

14 plea" because a factual basis existed for a plea to the non-aggravated felonies of transportation of 15 narcotics or accessory after the fact. ((First Amend. Mem. P&A at 5-7.) But no factual basis existed 16 to support such a plea, as properly determined by the superior court. (Lod. 14 at 7.) 17 Lopez claims that, even without an investigation by his trial counsel, a factual basis

18 existed for him to plead to transportation of drugs (Cal. Health and Safety Code § 1160) because 19 some of the drugs found in his apartment were his, they "did not magically appear" there, and 20 "[o]bviously they were transported there." (First Amend. Mem. P&A at 5-6; see Pet. Ex. F - Besse 21 Decl. at 3, ¶ 14.) But there was no evidence presented to the state courts to show that there was a 22 factual basis to support a plea by Lopez for transportation of drugs. 23 California Penal Code section 1191.5 requires a trial court to determine by independent

24 inquiry, before accepting a plea of guilty or nolo contedere to a felony offense, whether there exists 25 a factual basis for the plea. The purpose behind the inquiry is to "`protect against the situation 26 where the defendant, although he realizes what he has done, is not sufficiently skilled in law to 27 recognize that his acts do not constitute the offense with which he is charged.'" People v. Tigner, 28 133 Cal. App. 3d 430, 432-33, 184 Cal. Rptr. 61, 62 (1982); People v. Watts, 67 Cal. App. 3d 173,
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1 178, 136 Cal. Rptr. 496, 499 (1977); see also North Carolina v. Alford, 400 U.S. 25, 38 n.10, 91 S. 2 Ct. 160, 27 L. Ed. 2d 162 (1977); 3 ABA Standards for Criminal Justice, std. 14-1.6 (2nd ed. 1980) 3 at 14.32. Under California law, a person transports a controlled substance by carrying or

4 conveying a usable quantity of the substance with knowledge of its presence and illegal character. 5 People v. Rogers, 5 Cal. 3d 129, 133-34, 137, 95 Cal. Rptr. 601, 606, 606, 486 P.2d 129, 131, 134 6 (1971); see also CALJIC No. 12.02. However, there mere presence of the controlled substances at 7 Lopez's apartment, standing alone, would not be sufficient to justify a finding of guilt that he 8 transported those substances. See People v. Phillips, 22 Cal. 4th 226, 237, 92 Cal. Rptr. 2d 58, 65, 9 99 P.2d 145, 152 (2000). In Lopez's case, he approached his apartment after police officers had 10 entered pursuant to a warrant and they subsequently located the narcotics, paraphernalia and syringe. 11 There is no evidence that anyone saw him transport any of the narcotics. (Lod. 7 - People v. Lopez, 12 No. D046705, slip. op. at 2-4.) In his own declaration, Lopez does not admit to transporting the 13 drugs found in his apartment, but only states that, "Many different guys would leave there (sic.) 14 stuff, including drugs, in that apartment. (Pet. Ex. A - Declaration of Ernesto Rivas Lopez at 3, ¶ 15 31.) Lopez's friends, Richard Granstaff, Jose Carlos Clark, Carlos F. Estrada, and Richard Mancha, 16 all declared that persons, including some of them, left items including drugs in Lopez's apartment. 17 But all of them do not state that Lopez transported drugs to his apartment. (See Pet. Exs. H-K.) 18 Accordingly, the superior court properly concluded that there was no factual basis to support a plea 19 by Lopez to transportation of narcotics. (Lod. 14 at 7.) 20 Lopez also claims his trial counsel could have offered that he plea to being an accessory

21 after the fact because it is not an offense "relating to" a controlled substance and such conviction 22 would not make him deportable. (First Amend. Memo P&A at 6; see Pet. Ex. G - Besse Decl. at 3, 23 ¶¶ 18-19.) But again, there is no evidence that would support a factual basis for Lopez to plead 24 guilty to being an accessory after the fact. California Penal Code section 32 states: 25 26 27 28 Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony. Lopez and his friends deny that anyone purchased or sold narcotics in Lopez's apartment.
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1 They all merely declare that they used drugs, and left items including drugs, when they visited 2 Lopez at his apartment. (See Pet. Exs. A, H-K.) Neither Lopez nor his friends state that one of them 3 committed a felony and that Lopez harbored, concealed or aided them to escape from arrest, trial, 4 conviction or punishment. Accordingly, there was no factual basis for support a plea by Lopez to 5 the crime of being an accessory after the fact. 6 Based on this evidence, it was reasonable for the superior court to conclude that there was

7 no deficient performance because: (1) the plea offer made by the People to Lopez was one count of 8 possession of methamphetamine and one count of possession for sale of cocaine, both of which are 9 aggravated felonies; (2) the People rejected attorney Besse's counter-offer to a plea of simple 10 possession; and (3) based on the plea offer by the People, Lopez made the decision to go trial and 11 seek acquittal, which was the only alternative aside from accepting the offer and facing deportation; 12 and (Lod. 14 at 4-5.) It was also reasonable for the superior court to conclude that Lopez could not 13 show any prejudice because: (1) the People quite clearly established they would not have agreed 14 to an "upward plea" in this case; and, (2) the People would have flatly rejected any offer to plead 15 up to a crime such as offering to sell or transporting narcotics because there was no evidence that 16 Lopez did that in this case. (Lod. 14 at 6-7.) 17 Lopez relied on the same evidence when he presented the same claims to the Court of

18 Appeal. Accordingly, it was proper for the Court of Appeal to conclude that, even if attorney Besse 19 rendered ineffective assistance by not pursuing a Bautista-type "upward plea," Lopez could not 20 show he was prejudiced because the evidence presented showed that "the People would not have 21 accepted the plea bargain." (Lod. 16 at 1-2.) 22 Lopez also makes a conclusory allegation that the state courts unreasonably applied

23 Strickland to deny his claim regarding his trial counsel's failure to offer an "upper plea" as indicated 24 in Bautista because, "He submitted evidence to the state court showing a reasonable probability that 25 he was in fact prejudiced. Yet the state court ignored it and dismissed his claim without holding an 26 evidentiary hearing. (First Amend. Memo P&A at 13.) But since Lopez failed to make a prima 27 facie case for state habeas corpus relief on his claim that his trial counsel rendered ineffective 28 assistance by not informing him about an "upward plea" that would have made him eligible for relief
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1 from deportation, he was not entitled to an evidentiary hearing. 2 3 4 5 6 California Rules of Court, rule 4.552(f) states, in pertinent part: An evidentiary hearing is required if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner's entitlement to relief depends on the resolution of an issue of fact. Before an order to show cause will issue, and before an evidentiary hearing on a petition

7 for writ of habeas corpus can be granted, the petitioner must allege specific facts which establish a 8 prima facie case for relief. In re Sassounian, 9 Cal. 4th 535, 547, 37 Cal. Rptr. 2d 446, 453, 887 9 P.2d 527, 534 (1995); People v. Romero, 8 Cal. 4th 728, 739-40, 35 Cal. Rptr. 2d 270, 274-75, 883 10 P.2d 388.) Where there is no basis for habeas relief, it is futile for a court to conduct an evidentiary 11 hearing. In re Olden, 69 Cal. 2d 845, 848, 73 Cal. Rptr. 229, 231, 447 P.2d 341, 343 (1968). The 12 regularity of proceedings are presumed on habeas and "the burden is on petitioner to establish 13 grounds for his release." People v. Duvall, 9 Cal. 4th 464, 474, 37 Cal. Rptr. 2d 259, 265, 886 P.2d 14 1252, 1258 (1995). Lopez did not meet his pleading burden as he failed to state a prima facie case 15 of this claim of ineffective assistance of counsel in the state courts. Therefore, no state evidentiary 16 hearing was warranted. 17 18 19 Lopez claims that the state courts unreasonably applied Strickland and unreasonably 2. Failure to Investigate Witnesses and Present a Defense of Merge Drug Possession

20 determined the facts when they denied his claim that trial counsel Besse rendered ineffective 21 assistance by failing to investigate witnesses that would support a defense that drugs in his 22 apartment were not possessed for sale. (Pet. at 6-7, Ground Two; First Amend. Memo P&A at 1423 22.) But the state courts properly evaluated the evidence and properly applied Strickland when they 24 concluded that: (1) Lopez failed to present evidence to show that attorney Besse would even have 25 called those witnesses at trial; and, (2) Lopez failed to show how that, if the witnesses had been 26 called, he would have a meritorious defense that would result in a better outcome at trial. 27 Accordingly, Lopez is not entitled to federal habeas corpus relief as to this claim. See 28 U.S.C. § 28 2254(d).
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1

Defense counsel has a "duty to make reasonable investigations or to make a reasonable

2 decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. "[A] 3 particular decision not to investigate must be directly assessed for reasonableness in all the 4 circumstances, applying a heavy measure of deference to counsel's judgments." Id. When an 5 attorney has decided not to investigate because of reasonable tactical evaluations, his or her 6 performance is not constitutionally deficient. Siripongs v. Calderon, 133 F.3d 732, 734 (9th Cir. 7 1998). "[I]neffective assistance claims based on a duty to investigate must be considered in light 8 of the strength of the government's case." Bragg v. Galaza, 242 F.3d 1082, 1088 (9th Cir. 2001) 9 (citation omitted). Federal habeas review must be "highly deferential," avoid "the distorting effects 10 of hindsight," and "indulge a strong presumption that counsel's conduct falls within the wide range 11 of reasonable professional assistance." Strickland, 466 U.S. at 689. 12 Lopez argues that, in Riley v. Payne, 352 F.3d 1313 (9th Cir. 2003), the Ninth Circuit

13 granted habeas corpus relief "in a situation very similar to Mr. Lopez's." (First. Amend. Memo 14 P&A at 18-22.) But Riley is distinguishable from Lopez's case. In Riley v. Payne, petitioner Riley 15 sought habeas relief by arguing that he was denied the effective assistance of counsel for his 16 counsel's failure to interview or call witnesses who were present at the scene of Riley's alleged 17 crime. Riley, 352 F.3d at 1317. The witness filed a declaration with the court stating that he would 18 have testified in a way that would have supported Riley's claim of self-defense. Id. at 1317. The 19 court held that counsel's failure to interview the witness rendered his performance below an 20 objective standard of reasonableness. Id. at 1319.) Here, in contrast, Lopez failed to offer any 21 evidence to show that attorney Besse would have called the witnesses he proffers even if he had 22 been aware of them, and failed to show that their testimony would have supported a defense that he 23 did not possess the drugs for sale. 24 In support of his contention that attorney Besse failed to investigate and pursue a defense

25 that he was not guilty of possession of narcotics for sale, Lopez offers the same evidence that he 26 proffered to the state courts. In addition to his own declaration, he offers the declarations of Richard 27 Granstaff, Jose Carlos Clark, Carlos Estrada, and Richard Mancha, who state that they frequently 28 stored belongings, including drugs, in Lopez's apartment. They also deny ever seeing drugs sold
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1 in the apartment. (Lod. 10 - Exhs. A-F; Lod. Lod. 13 - Ex. A; Lod. Lod. 15 - Exhs. A-F, Lod. 17 2 Appendix - Exhs. A-F; see Lopez's Pet. - Exhs. E-K.) But notably absent from those declarations 3 is any allegation that Lopez told attorney Besse about the existence of those witnesses. (See Pet. Ex. 4 E - Lopez Decl.) Also notably absent is a statement from attorney Besse that, if he had known about 5 those witnesses, he would have called them to testify at Lopez's trial. (See Pet. Exs. F&G - Besse 6 Decls.) Based on this evidence, the superior court properly concluded that, "Noticeable absent is 7 any statement by counsel that he would have called such witnesses at trial or that he was even aware 8 that such witnesses existed." (Lod. 14 at 5.) 9 Even if attorney Besse should have been aware of these witnesses, he could not be faulted

10 if he made a tactical decision not to call them at trial. Proffered witnesses Granstaff, Clark, Estrada 11 and Mancha are friends of Lopez, some are in drug treatment and recovery programs with Lopez, 12 some are admitted drug users, and their credibility is clearly questionable. (Pet. - Exhs. H-K.) 13 Further, their proffered testimony would not have been particularly helpful to Lopez's case. 14 Testimony that other persons that other persons stored drugs at Lopez's apartment did not disprove 15 that Lopez possessed the drugs for sale on the date at issue. See People v. Johnson, 158 Cal. App. 16 3d 850, 854, 204 Cal. Rptr. 877, 879 (1984). Lopez acknowledges in his declaration that he lived 17 in the apartment at issue and the knew a large quantity of drugs were stored there. (Pet. Ex. E 18 Lopez Decl. at 3, ¶ 23 & 4, ¶ 47.) Also, the large quantity of cocaine, methamphetamine, and 19 marijuana, their approximate street value of $3,000, packaging as well as the presence of a digital 20 scale demonstrated that the drugs were possessed for sale. (Lod. 3 - RT at 21, 32-33, 36, 46, 68, 7721 88, 91-98, 171.) Further, any proffered witness that Lopez was an addict who knowingly allowed 22 other to store drugs at his apartment because he never liked being alone and the large number of 23 drugs on that date of his arrest was because their plan to party on New Year's Eve (see Pet. Ex. E 24 Lopez Decl. at 4, ¶¶ 46-47; Ex. H - Granstaff Decl. at 2, ¶ 16; Ex. I - Clark Decl. at 1, ¶ 6; Ex. k 25 Mancha Decl. at 1, ¶¶ 6-7 & at 2, ¶ 9.), it would have contravened attorney Besse's trial strategy 26 of attempting to show that Lopez did not know that the drugs were at his apartment. 27 Although Lopez declares that attorney Besse "did nothing whatsover" to investigate the

28 charges against him and claims he only met with him once (First Amend. Memo P&A at 14; Pet. Ex.
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1 E - Lopez Decl. at 2, ¶ 9), he has not provided any credible factual basis to support that claim. In 2 his declaration, attorney Besse asserts that, because of his limited knowledge of immigration law, 3 he never considered a trial strategy of focusing an attack on the aggravated felony (possession for 4 sale) counts. (Pet. Ex. G - Besse Decl. at 4, ¶ 23.) The record, however, demonstrates that is exactly 5 what he did. 6 First, attorney Besse tried to show that the evidence at trial did not prove that Lopez had

7 knowledge of the drugs in his apartment. Attorney Besse highlighted facts such as the extent of 8 clutter and disarray in Lopez's apartment. (Lod. 3 - RT at 102-110.) Besse also elicited testimony 9 that: (1) the drugs were kept in closed, non-transparent, portable containers that could have been 10 brought into the apartment by others without Lopez being alerted to their contents; (2) there was no 11 showing of dominion and control over the containers; (3) the officers had no idea how much time 12 Lopez spent in the apartment; and, (4) the officers also did not know how many other persons had 13 been present in the apartment. (Lod. 3 - RT at 114-124, 148-149.) During closing, attorney Besse 14 argued that the drugs could have belonged to Mancha, who had been carrying groceries to the 15 apartment with Lopez at the time of his arrest and started to run away when Lopez was being 16 handcuffed. (Lod. 3 - RT at 226.) 17 Second, attorney Besse alternatively attempted to show that the drugs could have been for

18 personal use and not possessed for purpose of sales. (Lod. 3 - RT at 227-228, 233.) Besse 19 extensively cross-examined Detective Norris on the imprecision of determining standard dosage 20 units, and the amounts that heavy cocaine and methamphetamine users could consume over the 21 course of a few days. (Lod. 3 - RT at 130-132, 137-138.) Attorney Besse also highlighted the fact 22 that some drug users are sufficiently affluent to allow them to purchase drugs in quantity for 23 personal use, and that the officers neglected to look into Lopez's finances to see if he could have 24 afforded to do so. Besse also elicited testimony that drug users can pool their money to purchase 25 larger quantities and share them with other users. (Lod. 3 - RT at 130, 134-135, 163-164.) 26 Besse's cross-examination of the People's witnesses, as well as his argument that the

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1 examination of the People's witnesses to establish reasonable doubt about the charged crimes was 2 a reasonable tactical choice that was not second-guessed by the state courts on habeas corpus. 3 Based on the foregoing, the superior court properly concluded that: (1) Lopez failed to show that 4 attorney Besse was aware of these witnesses prior to trial; (2) Lopez failed to show that even if he 5 had known about these witnesses, the decision not to call them to testify was not based on a strategic 6 decision by attorney Besse; and, (3) Lopez failed to provide any evidence regarding what 7 investigation was undertaken by attorney Besse, or conversely that no investigation was conducted 8 (Lod. 14 at 5.) The Court of Appeal also properly concluded that: 9 10 11 12 (Lod. 16 at 2.) 13 Lopez is not entitled to federal habeas corpus relief because the state courts' denial on his The declarations offered in support of this claim are from addicts who used drugs with Lopez and state, among other things, that they have never seen Lopez sell drugs and believe that he has never sold drugs. The proffered evidence does not establish a meritorious defense that would have resulted in a better outcome for Lopez.

14 claims of ineffective assistance of counsel on habeas corpus were not an unreasonable application 15 of Strickland was were not based on an unreasonable determination of the facts presented to the 16 state courts. Accordingly, he is not entitled to federal habeas corpus relief as to these claims. See 17 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. at 412-13; Lockyer v. Andrade, 538 U.S. at 7318 74; Weighall v. Middle, 215 F.3d at 1062. 19 20 21 III. LOPEZ IS NOT ENTITLED TO AN EVIDENTIARY HEARING Lopez claims that he is entitled to an evidentiary hearing because he has raised a

22 "colorable claim" of ineffective assistance of counsel and he should have been given such a hearing 23 by the state courts. (Pet. at 8; First Amend. Memo P&A at 22-24.) But the Ninth Circuit's

24 "colorable claim" standard on which Lopez relies (First Amended Memo P&A at 22, citing 25 Stankewitz v. Woodford, 365 F.3d 706, 708 (9th Cir. 2002) (quoting Smith v. McCormick, 914 F.2d 26 1153, 1170 (9th Cir. 1990)), has been overruled by the Supreme Court's decision in Schriro v. 27 Landrigan, (2007) 550 U.S. ___, 127 S. Ct. 1933, 167 L. Ed. 2d 482 (2007). The analysis in 28 evaluating the merits of a petition under § 2254(d) also applies when considering whether to grant
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1 an evidentiary hearing on the petition: "[I]f the record refutes the applicant's factual allegations or 2 otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." 3 Schriro v. Landrigan, 127 S. Ct. at 1940. In Schriro, a death-penalty defendant, Landrigan, objected 4 when his attorney tried to present mitigating evidence at sentencing. Schriro, 127 S. Ct. at 1937-38. 5 After his conviction and death sentence were affirmed, Landrigan argued that his attorney had been 6 ineffective by failing to investigate and present mitigating evidence -- including extra mitigating 7 evidence that Landrigan claimed he would not have objected to had he known about it at sentencing. 8 Id. at 1938. The Arizona courts and a federal district court rejected Landrigan's arguments, and no 9 court conducted an evidentiary hearing regarding Landrigan's factual allegation that he would have 10 permitted counsel to introduce the extra mitigating evidence at sentencing. Id. But the en banc 11 Ninth Circuit held that an Arizona court's factual finding that Landrigan refused to permit his 12 attorney to introduce "any" mitigating evidence at sentencing was unreasonable under § 2254(d)(2), 13 and it remanded for an evidentiary hearing to permit Landrigan to prove his allegations. Id. at 1939. 14 The Supreme Court, however, reversed the Ninth Circuit. Id. at 1940, 1944. The Supreme Court 15 held that federal district courts need not "reopen factual disputes that were conclusively resolved in 16 the state courts." Id. at 1940. The Supreme Court held that the district court had acted within its 17 discretion by relying on the Arizona court's ruling that Landrigan would have objected to all 18 mitigating evidence, including the extra mitigating evidence, even without conducting an evidentiary 19 hearing. Id. at 1941-42, 1944. 20 Schriro v. Landrigan overrules Ninth Circuit authority regarding evidentiary hearings.

21 Relying on pre-AEDPA authority, the Ninth Circuit previously held that petitioners must receive 22 an evidentiary hearing when they satisfy the relatively "'low bar'" of alleging a "colorable claim" for 23 relief. See Landrigan v. Schriro, 441 F.3d 638, 643, 650 (9th Cir. 2006) (en banc), rev'd 127 S. Ct. 24 1933, 1944 (2007); Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005) (citing Insyxiengmay v. 25 Morgan, 403 F.3d 657, 669-70 (9th Cir. 2005)); also Horton v. Mayle, 408 F.3d 570, 581-82 & n.6 26 (9th Cir. 2005); cf. Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004) (pre-AEDPA); Phillips 27 v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001) (pre-AEDPA). In Schriro v. Landrigan, however, 28 the Supreme Court linked the Ninth Circuit's "colorable claim" language to the statutory text of §
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1 2254(d), which requires a petitioner to demonstrate not simply incorrectness but the "substantially 2 higher threshold" of unreasonableness. See Schriro v. Landrigan, 127 S. Ct. at 1337-39, 1943. The 3 Supreme Court's reversal of the en banc Ninth Circuit indicates that a petitioner's allegation of a 4 "colorable claim" is no longer sufficient to guarantee a federal evidentiary hearing -- at least not 5 as the phrase "colorable claim" was used in pre-AEDPA cases. See Landrigan v. Schriro, 441 F.3d 6 at 6