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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 vs NICK DAWSON, Warden, Avenal State Prison, Respondent. Petitioner, ALEX MONETTE, ) Case No. _________________________ ) ) POINTS AND AUTHORITIES IN ) SUPPORT OF PETITION FOR WRIT ) OF HABEAS CORPUS ) ) ) ) ) ) ) ) ) ) ) ) UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA STEVEN C. SANDERS, Esq. SBN 171369 3960 Industrial Blvd., Suite 100 West Sacramento, California 95691
Telephone No: (916) 376-8738 Facsimile No.: (916) 376-8717

SANDERS & ASSOCIATES

Attorney for Alex Monette

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TABLE OF CONTENTS INTRODUCTION ......................................................................................................................... 5 FACTS AND PROCEDURAL HISTORY OF CASE .................................................................. 6 THE STATE COURT DECISIONS .............................................................................................. 9 PETITIONER RECEIVED PREJUDICIALLY INEFFECTIVE ASSISTANCE OF COUNSEL AND WOULD NOT HAVE ENTERED INTO HIS PLEA AGREEMENT HAD HE RECEIVED COMPETENT ADVICE......................................................................................... 14 A. INTRODUCTION. ........................................................................................................... 14 B. THE CHARGES. .............................................................................................................. 15 C. THE EVIDENCE AGAINST PETITIONER ................................................................... 15 D. THE POSSIBLE LEGAL DEFENSES............................................................................. 15 E. AUTHORITIES RELATING TO THE GRANT OR DENIAL OF PAROLE UNDER CALIFORNIA LAW. ............................................................................................................... 16 F. PETITIONER'S OTHER CRIME AND THE MERIT OF HIS INDIVIDUAL BID FOR PAROLE. .................................................................................................................................. 17 G. TRIAL COUNSEL DID NOT INVESTIGATE THE ONLY DEFENSE AND HAD NO IDEA OF HOW THE PAROLE BOARD OPERATED OR HOW THE NEW CHARGE WOULD IMPACT PETITIONER'S ULTIMATE RELEASE FROM PRISON; THIS IGNORANCE PREJUDICIALLY IMPACTED THE ADVICE TRIAL COUNSEL GAVE RELATING TO TAKING A PLEA ON THE DRUG CHARGE AND AS SUCH AMOUNTS TO PREJUDICIALLY INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS PETITIONER WOULD NOT HAVE PLED GUILTY ABSENT THE POOR ADVICE HE RECEIVED. ....................................................................................................................... 20 H. SUMMARY...................................................................................................................... 24 PETITIONER'S PLEA BARGAIN CONTRACT IS UNENFORCEABLE .............................. 25 A. INTRODUCTION ............................................................................................................ 25 B. PETITIONER RECEIVED NO BENEFIT FROM THE BARGAIN. ............................. 26 C. IMPOSSIBILITY.............................................................................................................. 28 D. THE CONTRACT IS UNCONSCIONABLE AT THIS POINT IN TIME. .................... 28 E. MISTAKE OF FACT. ...................................................................................................... 29 F. MISTAKE OF LAW......................................................................................................... 31 G. MISTAKEN UNDERSTANDING OF LEGAL CONSEQUENCES. ............................. 31 H. REMEDY.......................................................................................................................... 32 CONCLUSION............................................................................................................................ 33 PRAYER FOR RELIEF .............................................................................................................. 33

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TABLE OF AUTHORITIES Cases People v Shepard, 160 Cal.App.3d. 580, 586 (1985), ................................................................ 20 Alvernaz v Ratelle, 831 F.Supp. 790 (S.D. Cal., 1993)................................................................ 9 Balisteri v Nevada Livestock Production Credit Assn., 214 Cal.App.3d. 635 (1989) ............... 24 Biggs v Terhune, 334 F.3d. 910, 913 (9th Cir., 2003)................................................................. 12 Carboni v Arrospide, 2 Cal.App.4th 76, 81-82 (1991) ............................................................... 23 City of Torrance v W.C.A.B., 32 Cal.3d. 371, 378 (1982)......................................................... 20 Dairy Food Store v Alpert, 116 Cal.App. 670, 672 (1931). ................................................. 23, 24 Daniels v Williams, 474 U.S. 327, 331 (1986)........................................................................... 11 Dent v West Virginia, 129 U.S. 114, 123 (1899) ....................................................................... 11 F. P. Cutting Co. v Peterson, 164 Cal. 44 (1912) ....................................................................... 24 Hill v Lockhart, 474 U.S. 52 (1985) ........................................................................................... 10 Houge v Ford, 44 Cal.2d. 706, 713 (1955) ................................................................................. 27 In re Alvernez, 2 Cal.4th 924 (1992) ............................................................................................. 9 In re Cordero, 46 Cal.3d. 161, 181 (1988).................................................................................... 9 In Re Crumpton, 9 Cal.3d. 463, 468 (1973) ........................................................................ 23, 26 In re Dannenberg, 34 Cal.4th 1061 (2005)...................................................................... 11, 12, 13 In re Powell, 45 Cal.3d. 894, 904 (1988).................................................................................... 12 In re Rosenkrantz, 29 Cal.4th 616, 654 (2002)................................................................ 11, 12, 13 In Re Sutherland, 6 Cal.3d. 666, 672 (1972) .............................................................................. 27 Lawrence v Shutt, 269 Cal.App.2d. 749 (1969) ......................................................................... 25 Leo v Superior Court 179 Cal.App.3d. 274, 283 (1986) ............................................................ 20 Lepper v Ratterree, 98 Cal.App. 245 (1929) .............................................................................. 25 McQuillion v Duncan, 306 F.3d. 895, 902 (2002) ............................................................... 11, 12 Miller v Germann Seed & Plant Co., 193 Cal. 62, 67-70 (1924) ............................................... 21 Mitidiere v Saito, 246 Cal.App.2d. 535 (1969) .......................................................................... 25 Moore v Copp, 119 Cal. 429 (1897) ........................................................................................... 25 Mosher v Mayacamas Corp., 215 Cal.App.3d. 1, 5 (1989 ......................................................... 25 Palace Hardware Co. v Smith, 134 Cal. 381 (1901)................................................................... 25 Pechtel v Universal Underwriters Ins. Co., 15 Cal.App.3d. 194 (1971) .................................... 25 People v Alvarez, 127 Cal.App.3d. 629, 633 (1982).................................................................. 20 People v Ames, 213 Cal.App.3d. 1214, 1217 (1989) ................................................................. 20 People v Barnett, 113 Cal.App.3d. 563, 571-572 (1980) ........................................................... 20 People v Collins, 45 Cal.App.4th 849, 862-863 (1996). ...................................................... 20, 21 People v Cox, 53 Cal.3d 618, 656 (1991).................................................................................... 9 People v Duncan 53 Cal.3d. 955, 966 (1991). .............................................................................. 9 People v Gallego, 90 Cal.App.3d.Supp. 21, 33 (1979)............................................................... 23 People v Gallegos, 90 Cal.App.3d. Supp. 21 (1979) .................................................................. 26 People v Haney, 207 Cal.App.3d. 1034, 1037 (1989) ................................................................ 20 People v Huynh, 229 Cal.App.3d. 1067, 1083 (1991),..................................................... 9, 16, 21 People v Ledesma, 43 Cal.3d. 171, 216 (1987) ............................................................................ 9 People v Lewis, 50 Cal.3d 262, 288 (1990).................................................................................. 9

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People v Mancheno, 32 Cal.3d. 855, 860-861 (1982) .......................................................... 20, 26 People v Pope, 23 Cal.3d. 412, 424 (1979) ................................................................................ 17 People v Precaido, 78 Cal.App.3d. 144, 149 (1978) .................................................................. 26 People v Spann, 187 Cal.App.3d. 400 (1986) ............................................................................ 10 People v West ............................................................................................................................... 7 Strickland v Washington, 466 U.S. 668, 688 (1984) .................................................................... 9 Superintendent v Hill, 472 U.S. 445, 456-457 (1985)................................................................ 12 Swenson v File, 3 Cal.3d. 389, 393 (1970)................................................................................. 21 Taylor v Maddox, 366 F.3d. 992 (9th Cir., 2004) .................................................10, 11 Universal Sales Corp. v California Press Mfg. Co., 20 Cal.2d. 751 (1942) ............................... 20 Witkin's Summary of California Law, 9th Edition, Contracts, ............................................ 23, 24 Wolff v McDonnell, 418 U.S. 539, 558 (1974) .......................................................................... 11 Statutes California Civil Code 1441......................................................................................................... 23 California Civil Code 1550......................................................................................................... 21 California Civil Code 1577................................................................................................... 24, 25 California Civil Code 1578......................................................................................................... 26 California Civil Code 1613......................................................................................................... 23 California Civil Code 1636......................................................................................................... 27 California Civil Code 1656......................................................................................................... 20 Penal Code 1170.12 .................................................................................................................... 10 Penal Code 12022(d) .................................................................................................................... 6 Penal Code 182 ....................................................................................................................... 7, 10 Penal Code 187 ............................................................................................................................. 6 Penal Code 3041 ......................................................................................................................... 11 Penal Code 4573.6 ........................................................................................................ 7, 8, 10, 18 Regulations 15 CCR 2402(a) .......................................................................................................................... 11 15 CCR 3377.1(c) ......................................................................................................................... 6 Constitutional Provisions California Constitution, Article 1, §7 ......................................................................................... 12 U.S. Constitution, Amendment 14.............................................................................................. 12 /// /// ///

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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 circumstances of this case.

I INTRODUCTION Via this Petition, Alex Monette (petitioner) challenges his conviction for possession of drugs in a correctional institution. Petitioner contends that he received ineffective assistance of counsel from his court appointed attorney. Specifically that the attorney was not familiar with California Board of Parole Hearings (BPH) procedures and practices and failed to investigate his only defense; that these failures resulted in incompetent advice to plead guilty from the attorney and also resulted in petitioner receiving no discernible benefit from the plea agreement; and that petitioner would not have pled guilty had he received proper advice. Petitioner also claims the plea bargain contract is unenforceable for violations of contract law principles as set forth herein. Had trial counsel been even remotely familiar with BPH policies and practices he would have known that his client, who was proclaiming his innocence, would spend many additional years incarcerated on his existing 15 year to life sentence because of the drug charge conviction. Had counsel grasped this, he would not have allowed his client, who was claming his innocence and did appear to have an arguable defense (which was never investigated), to plead guilty. Simply put, there was no real benefit to pleading guilty under the unique

Petitioner prays the court, after considering the Petition and evidence submitted, will reverse the conviction on the drug charge.

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All factual assertions not proven by way of exhibit are proven via the attached declaration of petitioner or attorney Steven C. Sanders. Prison inmates are forcibly double celled due to massive overcrowding. The only exception are those inmates meeting the criteria for single cell placement. See 15 CCR 3377.1(c).
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II FACTS AND PROCEDURAL HISTORY OF CASE Alex Monette (petitioner) is a state prison inmate who was serving a 15 year to life sentence for second degree murder (Penal Code 187) and a one year weapon use enhancement [Penal Code 12022(d)], via a conviction from the Los Angeles County Superior Court, case #A893088, on March 2, 1990.
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On September 23, 2003, petitioner was placed in administrative segregation at the Correctional Training Facility (CTF) at Soledad. Other inmates were apparently involved in a marijuana trafficking scheme, where the drugs were allegedly brought in through the prison medical department, as revealed in an in-house prison investigation. Petitioner was forced to share a cell with an inmate named Hemphill.
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Hemphill was

one of the inmates targeted in the investigation relating to the drug smuggling operation. Search of their jointly occupied cell revealed the marijuana at issue. See attached Exhibit "A," the investigative reports relating to petitioner's disciplinary proceedings. Petitioner was tested for drugs as a result of finding drugs in the jointly occupied cell, and he tested positive for marijuana. Petitioner claimed throughout the CDC-115 proceedings he was innocent and the

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marijuana was not his. That he knew inmate Hemphill possessed marijuana because Hemphill would smoke it in the cell. See Exhibit "A," page 27 of 35. Inmate Hemphill admitted the marijuana was his and that petitioner had nothing to do with it. Hemphill explained petitioner would try and hide under a blanket when Hemphill would smoke marijuana in petitioner's presence. See Exhibit "A," pages 15 of 35 to 18 of 35. Other inmates involved in the drug smuggling conspiracy also admit petitioner was not involved in any way. Inmate Fuller, an inmate found guilty in prison disciplinary proceedings of the drug smuggling conspiracy, claimed he did not even know petitioner (Monette). See Exhibit "F," 115 information, page 1 of 8. Petitioner was later absolved of any wrongdoing

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related to the smuggling of drugs into the prison by the prison disciplinary officer, as even under the low preponderance of the evidence standard used in those proceedings, the evidence was insufficient. See Exhibit "A." Nonetheless, criminal charges were filed against petitioner for conspiracy and possession of drugs in a penal institution (Penal Code 182, Penal Code 4573.6), as well as for a prior prison term. Later the conspiracy charges were dropped prior to entry of plea. See Exhibit "B," the minute order from this proceeding. Petitioner, while still claiming his innocence, was told by his appointed attorney that he would almost certainly be convicted and that he should plead guilty to avoid more serious punishment. Petitioner continued to assert his innocence and pressed his attorney to investigate second hand marijuana smoke effects. Ultimately, petitioner pled nolo contendere to the drug possession charge, pursuant to People v West. As explained to petitioner by trial counsel,
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Prison Disciplinary offenses will be referred to by their prison designation, CDC-115 (or 115).

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under People v West, you continue to maintain your innocence but enter a plea of no contest and the judge proceeds as if you are guilty in spite of your refusal to acknowledge guilt. Trial counsel also told petitioner that under a People v West plea he would have "no problems" with the parole board. Petitioner was sentenced to two years in state prison, consecutive to his existing 15 year to life term. See Exhibit "C," the abstract of judgment and minute order of the entry of plea proceedings. Petitioner then appeared before the California Board of Parole Hearings (BPH or board) on March 8, 2006, for his first parole hearing after his drug conviction. Predictably, the board spent a large amount of the hearing addressing the drug charge. In essence the board told petitioner that he was very close to parole but had destroyed that via the drug charge and that he needed years of distance between the new charge and a serious bid for parole. See

numerous colloquies, some detailed infra, at Exhibit "D," the 2006 parole hearing transcript. For the court's information, Hemphill was ultimately convicted in the Monterey County Superior Court of possession of drugs in a prison (Penal Code 4573.6) and in the prison 115 hearing of possession of drugs. See Exhibit "E," Hemphill's abstract of judgment, plea entry minute order and 115 proceedings. Inmate Fuller was ultimately convicted in the Monterey County Superior Court of conspiracy relating to the drug smuggling and in the prison 115 hearing of the same charge. See Exhibit "F," Fuller's abstract of judgment, plea entry minute order, and 115 proceedings. Petitioner filed a habeas corpus petition in the Monterey County Superior Court

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challenging his drug conviction on the same exact grounds raised herein. Said petition was denied on October 23, 2006. See Exhibit "J." Petitioner filed a habeas corpus petition in the Sixth District Court of Appeal challenging his drug conviction on the same exact grounds raised herein. Said petition was denied on January 4, 2007. See Exhibit "K." Petitioner filed a habeas corpus petition in the California Supreme Court challenging his drug conviction on the same exact grounds raised herein. Said petition was denied on June 27, 2007. See Exhibit "L." III THE STATE COURT DECISIONS The Superior Court response denying the Habeas Petition (Exhibit "J"), leaves much to be desired. The Superior Court claimed petitioner had failed to show errors by defense counsel amounted to prejudicially ineffective assistance. Exhibit "L," page 2:16-24. The court goes on to make factual findings via a list of the evidence against petitioner (quite inaccurately), and claimed petitioner benefited from the plea bargain. Exhibit "J," page 3:1-12.
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The "overwhelming evidence" the court cites was not as "overwhelming" as the court made it out to be. The drugs were found in a place around the head area of petitioner's bunk as the court claimed. Exhibit "J," page 1:14-16. Yet the court selectively neglected to mention the fact that the bunk in question was a double bunk and that anything hanging on the bunk would be hanging from the bunk of both inmates in the cell. The court also neglected to note the entire cell is a common area shared by two inmates complicating greatly the legal basis of any claim of possession by petitioner; particularly when the other inmate admits the drugs were his and the prison investigation (under a lesser standard of proof than a court) revealed petitioner had nothing to do with the drugs in question save he possibly used some of them. See Exhibit "A." It is substantially unlikely a jury would have found petitioner actually possessed the drugs in this factual scenario. At best the "overwhelming" evidence proved that petitioner had either smoked marijuana with his cell mate Hemphill or ingested marijuana via second hand smoke. The "investigative reports" the court mentions as "overwhelming evidence" lay all this out clearly. Moreover, the evidence relating to the positive drug test of petitioner is inadmissible to prove petitioner possessed the drugs, see People v Spann, 187 Cal.App.3d. 400 (1986). Thus the evidence of possession was not as "overwhelming" as the court claimed it was. This erroneous legal conclusion by the court (brought about through the plea and the subsequent lack of testing of the prosecution's case) clouded the court's view of the prejudice petitioner suffered as a result of the plea. A jury could have easily acquitted petitioner in this factual scenario.

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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 stated:

There are two problems with the Superior Court action in this case. First off, petitioner submits that the Superior Court decision (Exhibit "J,") cannot be deferred to under the AEDPA based upon the reasoning of Taylor v Maddox, 366 F.3d. 992 (9th Cir., 2004). It is clear no evidentiary hearing was held. It is obvious, as any fair reading of Exhibit "J," will show, that the Superior Court decided many facts, contrary to petitioner's evidence and claims, without benefit of any evidentiary hearing or other type of factual inquiry. In essence, the court took it upon itself to dispute petitioner's evidence and disregard his sworn statement. These actions violated California's own habeas corpus procedure, set forth in People v Duvall, 9 Cal.4th 464 (1995), where the court held all allegations and evidence must be assumed as true as the court makes its initial habeas corpus determination. It is clear that did not occur in this case. Yet far more importantly at this point, the Superior Court actions destroyed any opportunuity for this court to defer to that order under the AEDPA. As Taylor v Maddox

"If, for example, a state court makes evidentiary findings without holding a hearing, such findings clearly reuslt in an `unreasonable determination of the facts." Taylor v Maddox at 1001. "Where the state courts plainly misapprehend or misstate the record in making their findings, and the misapprehension goes to a material factual issue that is central to petitioner's claim, that misapprehension can fatally undermine the fact-finding process, rendering the resulting factual finding unreasonable." Id., at 1001.

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"And, as the Supreme Court noted in Miller-El, the state court fact finding process is undermined where the state court has before it, yet apparently ignores, evidence that supports petitioner's claim." Id., at 1001.

In summary, Taylor v Maddox stands squarely for the proposition that the Superior Court Order (Exhibit "J,") cannot be deferred to in this case. The second flaw in the Superior Court Order (Exhibit "J,") is that the court viewed petitioner's claim too narrowly, with a belief that any benefit petitioner received under the plea bargain undermines a claim of ineffective assistance of counsel. The court cited no authority for this proposition, which appears to be undermined by Santabello v New York, 404 U.S. 257 (1971). It also defies common sense, as a prisoner could benefit from a plea bargain in some way but still suffer severe prejudice from the same plea bargain in other areas. Petitioner submitted a sworn declaration by a practicing attorney who has co-authored the parole portion of CEB, California Criminal Law Procedure & Practice (Chapter 57, parole) and is widely considered an expert in this area of law. This declaration states the behavior of trial counsel in recommending the plea bargain was prejudicially incompetent. That, IN AND OF ITSELF, was sufficient at the filing stage to warrant an Order To Show Cause. When the Superior Court refused to assume the facts alleged under penalty of perjury were true (that petitioner suffered prejudicially ineffective assistance of counsel according to a member of the state bar who has reviewed the case files) it failed to follow the dictates of People v Duvall, 9 Cal.4th 464, 474-475 (1995). Phrased another way, petitioner's declaration from another

attorney alone established a prima facie case for relief on the ineffective assistance of counsel claim. Petitioner was NOT CHALLENGING the fact that a conviction would be considered by

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the parole board as the Superior Court inaccurately claimed.

Exhibit "J," page 3:7-10.

Petitioner was challenging the fact that his trial attorney had a legal and ethical duty to protect his client from unnecessary and needless prejudice. Under the unique facts of this case, ANY PLEA BARGAIN created undue prejudice because the case had a reasonable chance of resulting in a not guilty verdict at trial, the client was proclaiming his total innocence, and ANY FELONY CONVICTION would amount to a long term denial of parole for petitioner, COMPLETELY NEGATING ANY BENEFIT FROM THE BARGAIN. Because trial counsel was unaware of the board prejudice aspect, solely due to his failure to consult experts on parole board law, or otherwise investigate, research, or educate himself on the issue, he erroneously believed his client's best interests were being served by the guilty plea when nothing could have been further from the truth. The issue is not whether or not petitioner derived a benefit from the bargain by narrowly focusing on just the charges at issue. The issue is whether petitioner suffered

prejudicially ineffective assistance of counsel by the advice to plead guilty under the unique factual scenario of this case. The Superior Court ignored this distinction in its response and as it did so it missed the entire issue petitioner was presenting to the court. As to the court's claim that petitioner should have raised the issue of the enforceability of the plea bargain on appeal the court is blatantly incorrect. First of all, no issue is cognizable on appeal that is unknown at the time of the appeal. It was not until after the parole

proceedings in 2006 that petitioner became aware of the massive prejudice he was suffering under the plea bargain contract and counsel's incompetent advice to plead guilty. Immediately after so learning of that prejudice petitioner retained counsel and moved timely through the

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courts via habeas corpus. Moreover, evidence outside the record could not have been considered on direct appeal and a habeas corpus action would have had to have been filed in any event. Petitioner's habeas corpus petition relies on documents of his co-defendants and an expert witness declaration from another member of the state bar as to the ineffective assistance and prejudice petitioner received due to the decisions of trial counsel. One of the main exhibits is the parole hearing transcript (Exhibit "D,") which did not exist at the time of the appeal as the hearing had not been held yet. Those documents could not have been considered in a direct appeal as this

court is well aware. Since the Superior Court erected a specious procedural hurdle the plea bargain issues have yet to be addressed. This court should address the issue as it was properly before the court on habeas corpus contrary to the Superior Court Order. In essence the Superior Court was unable to articulate anything to contradict the declaration of present counsel found at Exhibit "H." Knowing it could not refute the factual claims of the declaration, the Superior Court side-stepped all issues touched upon by the declaration instead of confronting them. Even prisoners deserve a full and fair hearing on their claims. Petitioner did not receive that from the Superior Court. The Appellate Court and Supreme Court responses (Exhibits "K" & "L") are no different. Indeed, both Courts issued a summary denial meaning they did not take issue with anything the Superior Court did. The Appellate and Supreme Court decisions suffer from the same flaws as just discussed relating to the Superior Court Decision. As things currently stand the Superior Court decision is both contrary to, and an

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unreasonable application of, decisional law of the U.S. Supreme Court (Strickland v Washington/Hill v Lockhart, infra). IV PETITIONER RECEIVED PREJUDICIALLY INEFFECTIVE ASSISTANCE OF COUNSEL AND WOULD NOT HAVE ENTERED INTO HIS PLEA AGREEMENT HAD HE RECEIVED COMPETENT ADVICE A. INTRODUCTION.

To sustain a claim of ineffective assistance of counsel, a court must determine that counsel's performance fell "below an objective standard of reasonableness... under prevailing professional norms" [People v Ledesma, 43 Cal.3d. 171, 216 (1987), quoting Strickland v Washington, 466 U.S. 668, 688 (1984)] and that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v Washington, supra at 693. In People v Lewis, 50 Cal.3d 262, 288 (1990), the California Supreme Court stated that:
To establish entitlement to relief for ineffective assistance of counsel the burden is on the defendant to show (1) trial counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." (See also People v Cox, 53 Cal.3d 618, 656 (1991); People v Duncan 53 Cal.3d. 955, 966 (1991).)

People v Ledesma, supra at 218;

An attorney must investigate and explore all potential defenses. In re Cordero, 46 Cal.3d. 161, 181 (1988). An attorney must also inform the defendant of the potential penalties for his conduct if a plea is offered to him. See In re Alvernez, 2 Cal.4th 924 (1992); Alvernaz v Ratelle, 831 F.Supp. 790 (S.D. Cal., 1993). In People v Huynh, 229 Cal.App.3d. 1067, 1083 (1991), the court stated:
"We cannot imagine a case where a defendant should not be informed by defense counsel not only about the probabilities of conviction of the charged offenses, but also the likely amount of incarceration, if any, following conviction."

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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 testing provided to students at Oregon State University. Petitioner's cell mate (Inmate Hemphill) admitted the marijuana found in their jointly occupied cell did not belong to petitioner. Exhibit "A," page 15 of 35. Hemphill also admitted he smoked a marijuana cigarette, with petitioner present in the cell, only hours before the cell Poor air circulation, the small size of a room, the duration of exposure, the frequency of exposure and the potency of the drug all impact whether a dirty test will result from second hand smoke. See Exhibit "G," an internet overview of marijuana second hand smoke drug Case law indicates that a positive drug test is not, on its own, evidence of possession of a drug. People v Spann, 187 Cal.App.3d. 400 (1986). A person can fail a drug test for marijuana if they are exposed to its second hand smoke. The evidence against petitioner consisted of the following: Marijuana was found in petitioner's cell; Petitioner tested positive for the presence of marijuana in his bloodstream. D. THE POSSIBLE LEGAL DEFENSES. 1170.12). As the conspiracy charge was dismissed prior to entry of plea (see Exhibit "B") the evidence discussed focuses solely on the possession charge. C. THE EVIDENCE AGAINST PETITIONER Petitioner was charged with possession of drugs in a correctional institution (Penal Code 4573.6); conspiracy (relating to the smuggling of the drugs into the prison, Penal Code 182); and a prior felony conviction within the meaning of the three strikes law (Penal Code Inadequate assistance of counsel can occur in relation to a plea agreement. Hill v Lockhart, 474 U.S. 52 (1985); In re Alvernaz, supra; Alvernaz v Ratelle, supra. B. THE CHARGES.

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was searched and the test was administered. Id. The person most centrally involved in the actual drug smuggling conspiracy according to reports petitioner has been given (inmate Fuller), admitted he did not even know petitioner (Monette), that he only knew inmate Hemphill (petitioner's cell mate). See Exhibit "F," Fuller's 115 materials, page 1 of 8. E. AUTHORITIES RELATING TO THE GRANT OR DENIAL OF PAROLE

UNDER CALIFORNIA LAW. California's parole statute (Penal Code 3041) is couched in mandatory language and states that an inmate shall appear before the parole board at least one year prior to his minimum eligible parole date and that the board "shall normally" grant parole unless public safety would be endangered. The parole board interprets this statute to mean that an inmate should be denied parole if the board finds the inmate would pose "an unreasonable risk of danger to society if released from prison." 15 CCR 2402(a). The board has adopted a series of parole suitability and unsuitability rules inmates are viewed under as they appear before the parole board to carry out this statutory directive. See 15 CCR 2402 et.al. Based on the statutory language, inmates appearing before the BPH have a liberty interest protected by the United States Constitution. In re Rosenkrantz, 29 Cal.4th 616, 654,

658 (2002); McQuillion v Duncan, 306 F.3d. 895, 902 (2002); In re Dannenberg, 34 Cal.4th 1061, 1084 (2005). The touchstone of due process is the protection of the individual against arbitrary government action. Dent v West Virginia, 129 U.S. 114, 123 (1899); Wolff v McDonnell, 418 U.S. 539, 558 (1974); Daniels v Williams, 474 U.S. 327, 331 (1986).

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BPH Decisions which lack evidence to support them are arbitrary, and thereby violative of the Due Process Clauses of both the California and Federal Constitutions. See California Constitution, Article 1, §7; U.S. Constitution, Amendment 14. Also see In re Powell, 45 Cal.3d. 894, 904 (1988); In re Rosenkrantz, supra at 654-658; McQuillion v Duncan, supra at 903-906. The standard to be applied when reviewing BPH actions is the "some evidence" test set forth in Superintendent v Hill, 472 U.S. 445, 456-457 (1985); In re Powell, supra at 902-904; In re Rosenkrantz, supra at 423; In re Dannenberg, supra at 1084. The commitment offense can be used as a basis to deny a prisoner parole if the board finds, and evidence supports the finding, that the crime was committed in a manner which exceeded the minimum elements required for conviction of the crime a prisoner was convicted of. In re Dannenberg, supra; In re Rosenkrantz, supra. However, repeated parole denial based on unchanging factors like the facts of the crime runs against the rehabilitative goals of California's parole system and can rise to a due process violation. See Biggs v Terhune, 334 F.3d. 910, 913 (9th Cir., 2003); In re Rosenkrantz, supra (Moreno dissenting). F. PETITIONER'S OTHER CRIME AND THE MERIT OF HIS INDIVIDUAL

BID FOR PAROLE. The facts of petitioner's other crime (the life term) are detailed in his latest parole hearing transcript provided at Exhibit "D," pages 8-12. Basically a dispute started at a phone booth and petitioner stabbed the victim one time in the chest area killing him. As to the life term crime, death via a single stab wound is without question the minimum necessary to cause a conviction for second degree murder via stabbing. As such,

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under In re Rosenkrantz and In re Dannenberg, supra, the crime itself (after the minimum term has been served) is not a valid basis to deny petitioner parole. Petitioner had no prior criminal record. Exhibit "D," page 88. Indeed, as the reading of the decision by the board makes clear, there was really no basis to deny parole but the crime (which does not appear legally valid) and the new drug charge. See Exhibit "D," pages 8692. Careful review of the 92 page parole hearing transcript reveals that the drug case was mentioned much more often then the murder was during the latest parole hearing. See Exhibit "D," pages 28, 29, 45, 46, 47, 48, 50, 51, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 81, 83, 87, 88, 89, 90, 91. How prejudicial was the drug charge? Aside from consuming a large amount of time during the hearing, the board used the new drug charge to deny parole and as the primary basis to deny parole for four (4) years. Exhibit "D," page 90. Yet earlier in the parole hearing, the panel noted that petitioner had been treated well by the board previously, getting only a two year denial of parole at his first hearing (when the board usually denies for at least three years) and then petitioner received a one year denial at his next parole hearing (indicating a grant of parole was very close). Exhibit "D," pages 64-65. The author of this petition, Steven C. Sanders, is an attorney who is a member of the parole board's panel that represents parole-eligible indigent inmates as well as in his own
5

5

Petitioner believes the record proves the new drug charge was the primary basis of the four year parole denial because the life term crime had never been viewed as a basis to deny parole for that length of time previously. Petitioner submits that absent the new charge he would have been granted parole, or at the worst, denied parole for only one year. Indeed, fair reading of the comments of the board make clear their frustration with petitioner's new drug charge; their desire to see him be released; and their inability to release him because of the drug charge.

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private practice. As the declaration of Mr. Sanders sets forth at Exhibit "H," he has represented approximately 500 inmates before the parole board and is intimately familiar with parole board rules, policies, practices and procedures, as well as state law covering parole. Mr. Sanders has set forth in declaration that he believes, prior to the drug charge, that petitioner was suitable for parole due to his outstanding prison behavior; lack of prior record, supportive psychological reports; waiting job offers; and large amounts of community support which would ease his transition back to the free world. Ultimately, Mr. Sanders concludes the only reason petitioner was not granted parole in 2006 was because of the new criminal conviction. Indeed,

petitioner's 2006 board attorney also believed petitioner was suitable for release absent the new drug charge:
"He's very pro-social in his orientation, in the way he conducts himself, and I just wish that he had not had these two 115's and that he ­ that this blemish on his record with the consecutive prison term had not occurred. Other than that, he is outstanding and should be paroled, and I hope the Board can see that." Exhibit "D," page 83:21-27.

In summary, as a veteran of approximately 500 parole hearings as an attorney, Mr. Sanders believes that petitioner has been denied parole because of the new drug charge, and will likely be denied parole into the foreseeable future (at least one more parole denial is likely), before petitioner is seriously considered again for parole by the board because of the drug charge. Prior to the drug charge, petitioner presented an overwhelming portrait of parole suitability and would likely not be in prison at this time absent the new drug charge. The prejudicial nature of the drug charge on petitioner's bid for parole on the murder charge is clearly established.

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G. TRIAL COUNSEL DID NOT INVESTIGATE THE ONLY DEFENSE AND HAD NO IDEA OF HOW THE PAROLE BOARD OPERATED OR HOW THE NEW CHARGE WOULD IMPACT PETITIONER'S ULTIMATE RELEASE FROM PRISON; THIS IGNORANCE PREJUDICIALLY IMPACTED THE ADVICE TRIAL COUNSEL GAVE RELATING TO TAKING A PLEA ON THE DRUG CHARGE AND AS SUCH AMOUNTS TO PREJUDICIALLY INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS PETITIONER WOULD NOT HAVE PLED GUILTY ABSENT THE POOR ADVICE HE RECEIVED. Trial counsel performed no investigation of second hand marijuana smoke causing positive drug tests for marijuana. Yet he advised his client to plead guilty without even

investigating this possibly meritorious defense. Examine the facts. Hemphill was willing to testify (actually he already had) that the drugs were his. Hemphill would also testify that petitioner didn't smoke pot and that Hemphill often smoked pot in the cell and did so right before the drug test in question. See Exhibit "A," pages 15 of 35 to 18 of 35. Failure to investigate the second hand smoke defense under these facts is clearly derelict performance. Given Hemphill's testimony, the ONLY evidence of petitioner's

marijuana use was the positive drug test. Thus any doubt that could be cast on the drug test result via second hand smoke was imperative to the defense and yet trial counsel never even bothered to investigate the issue. That is textbook prejudicially inadequate assistance, particularly given Exhibit "G."
6

The likelihood of being able to back the claim with an expert witness on what is frankly common knowledge: Second hand cigarette smoke is so harmful public smoking has been strictly regulated to avoid harm to non-smokers; and marijuana smoke (as with all other kinds)
6

This document alone sets out a prima facie case for habeas corpus relief on the second hand smoke defense issue. See People v Duvall, 9 Cal.4th 464, 474-475 (1995).

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is inhaled by proximate non-smokers and they suffer its ill effects. To be honest, junior high school kids know this. Failure to investigate the defense was a blatantly prejudicial failure by trial counsel.
7

As to the parole board, it is clear counsel had no idea how the parole board operated. Yet that knowledge was crucial to his client's interests. This was a prison case. A prison drug case. The client was a convicted murderer who had to appear before the parole board for parole. Any action in the drug case would obviously impact petitioner's parole suitability on the murder charge. It seems obvious that when an attorney represents a person already convicted of other crimes, those crime and their punishments are relevant to the tactical decisions to be made in the current case. The other crimes impact whether the defendant will testify at a trial. The other offenses also are relevant at sentencing, as they may be aggravating factors leading to a non-mitigated prison term or even consecutive sentences. The other crimes are also CRUCIAL as a plea bargain is structured. Any decision by

petitioner to plead guilty in the drug case would be necessarily based, in large measure, on how much time petitioner would ultimately serve as a result of the plea. That meant an analysis of the interaction between the drug charges and other charges petitioner had already been convicted of was paramount to any competent advice later to be rendered as to entering a guilty plea on the drug charges.
8

Petitioner was entitled to make an informed decision as to whether to plead guilty. Trial counsel's failure to investigate this angle of defense via contacts with experts allowed the decision to be made in a factual vacuum.
8

7

See People v Huynh, supra at 1083, where the court noted that a paramount concern of a defendant in seeking to resolve a case by way of plea is his total incarceration period as a result of the plea.

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Given petitioner's legal situation, a plea agreement made in whole or part to reduce petitioner's potential prison time on the drug charge was not possible. Yet trial counsel failed to grasp that the time petitioner received for the drug case was, frankly, the least of petitioner's problems. In failing to grasp that point trial counsel failed in his first duty to his client; that of being a diligent, conscientious advocate for his client's interests. See People v Pope, 23 Cal.3d. 412, 424 (1979). At its core, decisions to plead guilty are risk versus reward assessments. What is the risk of conviction on the charges and those possible consequences, versus the guarantee of a punishment certain, an accurate assessment of the time the prisoner would actually serve, and possible dismissal of some charges in the process. That assessment of risk versus reward is impossible to calculate until the trained legal professional making the assessment (in this case petitioner's trial attorney) understands and appreciates the actual situation under which the client would enter into a plea, and the actual repercussions the decision to plead guilty will have on the client. It is clear to educated legal professionals in the area of parole law that an in-prison criminal conviction dooms short term prospects for parole via the parole board. See Exhibit "H." Trial counsel didn't grasp this. That is not his failure. Trial counsel's failure was not educating himself; not doing the research necessary to properly and competently inform his client of the real risks associated with pleading guilty so that the real rewards could be honestly
9

As petitioner's declaration sets forth, the only reason trial counsel wanted him to plead guilty was the fear that petitioner would receive more time from the court if convicted on the drug charge than the offer from the prosecutor to plead the case out. Yet if parole would not be granted on the life term for many additional years because of the plea bargain in the drug case, then any benefit from a plea to the drug charges is illusory.

9

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and accurately assessed by the client prior to the decision to enter into the plea agreement. As it stands, trial counsel was ignorant of the actual impact any conviction would have on petitioner before the parole board. Indeed, trial counsel told petitioner that under his People v West plea, the parole board would not be an issue. Trial counsel also failed to investigate the ingestion of second hand smoke as a defense to the charges. Trial counsel then advised petitioner to plead guilty based on the time he might receive if convicted on the drug charge (which was irrelevant had trial counsel fully understood petitioner's true legal situation). Petitioner ultimately entered a no contest plea on the drug possession charge for what are frankly indiscernible reasons.
10

Given the devastating nature of any conviction for petitioner on his underlying murder charge, pleading guilty in this factual scenario is incomprehensible. Petitioner gained no discernible benefit from the bargain. Whatever time petitioner was spared from by entering a plea, that time is more than offset by the tremendous prejudice the conviction brings him before the parole board as they continue to deny him parole because of the plea agreement. This is what trial counsel failed to grasp. That trial counsel also failed to investigate the defense of second hand smoke ingestion prior to advising his client to plead guilty renders his errors all the more prejudicial. There was simply no reason for petitioner to plead guilty in this case. No benefit was
10

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The penalty for violation of Penal Code 4573.6 is 2, 3, or 4 years. Petitioner received a two year term via the plea. Yet the court may have imposed the low or middle term after a trial. As a two strike defendant, the court could have imposed a doubled sentence. The court did strike the prison prior. Yet the court may well have done that anyway after trial (not doubling the term) given that the drugs were clearly not petitioner's, and any "possession" of the drugs (for lack of a better term) was simply via petitioner's cell mate and the placement of the drugs by the cell mate into a shared common area. Even assuming petitioner knew the drugs were present (which there is NO EVIDENCE of), the fact they were not petitioner's substantially mitigates petitioner's conduct, especially in light of the life threatening situation informing correctional officers on one's cell mate can create.

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gained by pleading guilty. Indeed, massive adverse effects were both predictable and ignored by a trial attorney who did not even bother to investigate the impact of the guilty plea on his client's other criminal convictions. The error is exacerbated because a viable defense to the charges (given the witness testimony) clearly existed but was not investigated Had petitioner been advised in a manner similar to the Declaration from Mr. Sanders (Exhibit "H,"); had trial counsel actually performed an investigation into second hand smoke causing positive drug tests; had the impact of the guilty plea been fully explained to him, petitioner contends in sworn statement he would not have entered a plea to the drug charge. See Exhibit "I," the declaration of petitioner. There would have been no reason to do so. Petitioner understands he may have been convicted, but had he known (meaning had he been properly advised) how terribly the drug charge would impact his bid for parole on the murder, he would not have waived his right to fight the charges. As ANY CONVICTION would seriously undermine realistic chances of parole in the next few years for petitioner, there would have been no reason not to exercise his right to a trial in exchange for the mere possibility of additional time in prison. Defeating the new drug charge in total was the only way to eliminate the problems the new drug charge would cause to petitioner. The problem was that his trial attorney never told him that because he failed to investigate. H. SUMMARY.

Petitioner received prejudicially inadequate assistance of counsel. He would not have pled no contest to the drug charge had trial counsel conducted the investigation necessary on second hand smoke and fully and properly advised petitioner of his actual legal situation and

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how drastic the impact of any conviction would be on his bid for parole. Petitioner is respectfully entitled to reversal of his conviction. V PETITIONER'S PLEA BARGAIN CONTRACT IS UNENFORCEABLE A. INTRODUCTION

Petitioner contends a number of contract law principles invalidate his plea bargain contract. They are discussed infra after review of some preliminary authorities. A plea bargain is in essence a contract between the defendant and the prosecutor to which the court agrees to be bound. People v Shepard, 160 Cal.App.3d. 580, 586 (1985), People v Ames, 213 Cal.App.3d. 1214, 1217 (1989). The bargaining process has been

analogized to a unilateral contract. People v Barnett, 113 Cal.App.3d. 563, 571-572 (1980). Plea bargains are generally interpreted within the purview of contract principles. People v Haney, 207 Cal.App.3d. 1034, 1037 (1989); People v Alvarez, 127 Cal.App.3d. 629, 633 (1982); Leo v Superior Court 179 Cal.App.3d. 274, 283 (1986). Although breaches of plea bargains are normally demonstrated by reliance on contract law, the voiding of a plea is done under the due process clause because constitutional standards require more than contract law to remedy breaches. People v Barnett, supra at 571-572; People v Mancheno, 32 Cal.3d. 855, 860-861 (1982); Leo v Superior Court, supra at 283; People v Haney, supra at 1037, fn. 2. Every contract, express or implied, carries with it an implied covenant of good faith and fair dealing. Universal Sales Corp. v California Press Mfg. Co., 20 Cal.2d. 751 (1942). The idea of "reciprocal benefits" or "mutuality of advantage" is the basis of the plea

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bargaining process. This has been recognized by both the California and U.S. Supreme Courts. People v Collins, 45 Cal.App.4th 849, 862-863 (1996). It is a fundamental rule of contract law that all statutes in existence when a contract is made become a part of it. California Civil Code 1656; City of Torrance v W.C.A.B., 32 Cal.3d. 371, 378 (1982); Haney, supra at 1038. Or, as another Court put it:
"As a general rule, all applicable laws in existence when an agreement is made, which laws the parties are presumed to know and to have had in mind, necessarily enter into the contract and form a part of it, without any stipulation to that effect, as if they were expressly referred to and incorporated." Swenson v File, 3 Cal.3d. 389, 393 (1970).

Customs exhibited by parties to a contract can be considered as an implied part of that contract. See Miller v Germann Seed & Plant Co., 193 Cal. 62, 67-70 (1924). The parties had a right to consider the length of incarceration as part of the decision to enter into a plea. Indeed, this is normally the pre-eminent concern of a criminal defendant. As the Court in People v Huynh, supra at 1083, stated:
"We cannot imagine a case where a defendant should not be informed by defense counsel not only about the probabilities of conviction of the charged offenses, but also the likely amount of incarceration, if any, following conviction."

B.

PETITIONER RECEIVED NO BENEFIT FROM THE BARGAIN.

Some sort of consideration, or "reciprocal benefit," is required in every contract. California Civil Code 1550. This is especially true in plea bargain situations. People v Collins, supra at 862-863. Yet in petitioner's case he pled nolo contendere, and waived his constitutional rights, for nothing. Petitioner's consideration was illusory. Receiving the low term on the drug charge was an illusory benefit at best (as was not doubling that term). First of all, the court is obviously forbidden from penalizing a person for exercising their constitutional right to trial by jury. It is highly unlikely any court would do so. Thus petitioner could have went to trial and received

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the same two year sentence on the drug charge after conviction as he received in the bargain (there were mitigating factors). Even assuming the lower term was not chosen by the court, and the sentence was doubled, the benefits to petitioner were an illusion. Petitioner cannot be released from prison until paroled by the BPH. As the BPH just denied parole for four years (when the worst previous denial was two years prior to the new charge--and the most recent denial of parole before the new charge was one year), any "benefit" from the bargain is already offset by the increased parole denial period from the parole board on the underlying murder charge caused by the new drug charge. Trial counsel's failures caused petitioner to not be warned about how negatively the BPH would view any conviction. Had trial counsel sought out the help of an attorney well versed in board policy, or just did some basic research, he would have known any reduction in time pursuant to a plea in the Monterey County drug case would be more than offset by the penalties the parole board would impose on the underlying murder count via lengthy denials of parole.
11

Thus trial counsel presented the plea bargain offer to his client as if it had a benefit, but neglected to tell petitioner the benefit was illusory, and that he had minimal risk by going to trial given the completely predictable way the parole board would view the matter if any conviction was ever entered onto his record.
11

It is for this reason dismissal of the prior prison term (and possibly doubling of the sentence) are illusory benefits. Even if the maximum term was imposed on the possession charge and the sentence doubled, end punishment would have been 8 years. Petitioner will almost certainly suffer at least that amount of prejudice to his application to parole from the parole board. There was just no reason not to fight the drug case. Particularly when a witness was admitting the drugs were his; that petitioner never used drugs in his presence; and that he smoked marijuana in the very small cell with petitioner present often (including a few hours before petitioner was tested for drugs).

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As there was no consideration, or at best an illusory consideration, the contract is not enforceable. Relief lies. C. IMPOSSIBILITY.

Petitioner was advised to plead guilty to avoid the punishment that could have been imposed had he not pled guilty. Yet the punishment to be avoided in fact wasn't avoided due to trial counsel not understanding the situation completely and not explaining it to petitioner completely. California Civil Code 1441 allows for the voiding of a contract that has a condition that is impossible to fulfill. A contract which provides for a method of consideration which becomes impossible to execute can be voided. California Civil Code 1613. If a thing essential to a contract exists at the time of the agreement, but then ceases to exist, there is a contract, but its performance is excused by impossibility. Dairy Food Store v Alpert, 116 Cal.App. 670, 672 (1931). Also See Witkin's Summary of California Law, 9th Edition, Contracts, §366. The principle of impossibility has been extended to plea agreement situations. See among others People v Gallego, 90 Cal.App.3d.Supp. 21, 33 (1979). The consideration petitioner sought in the contract never came to fruition, and thereby the contract is impossible to fulfill. Relief lies. D. THE CONTRACT IS UNCONSCIONABLE AT THIS POINT IN TIME.

A contract can be voided if it is, or becomes, unconscionable. California Civil Code 1670.5. As stated by one court, "at some point the price of money lent becomes so extreme that it is unconscionable." Carboni v Arrospide, 2 Cal.App.4th 76, 81-82 (1991). The

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unconscionability premise has been extended to plea agreements. In Re Crumpton, 9 Cal.3d. 463, 468 (1973). Petitioner would respectfully submit that the point of unconscionability in his plea agreement contract has been reached. He will almost certainly be denied parole at his next hearing on the murder charge based on the plea agreement in the drug case that was supposed to provide him some benefit. The sentence to a low term and the striking of the prior felony conviction allegation appear on their face to be benefits, but they are illusory as any benefit is offset as the parole board deals with the new criminal charge harshly and repeatedly denies petitioner parole into the foreseeable future. That fact, unknown to trial counsel simply due to his lack of research, means the actual benefit bargained for was a complete illusion. It is, with all due respect, unconscionable that petitioner remains incarcerated under the terms of this plea agreement. He received only illusory benefit from the bargain. Illusory benefits are no benefits at all. Relief is required. E. MISTAKE OF FACT.

Petitioner contends that the parties entered into the contract under a mistake of fact: That there would actually be some consideration for petitioner if he pled guilty. California Civil Code 1577 allows a contract to be voided or modified if a party displays an unconscious ignorance of a thing material to a contract, or if belief in the existence of a thing, material to the contract, does not exist. At times mistake of fact prevents the formulation of a contract altogether, because there is no meeting of the minds. Balisteri v Nevada Livestock Production Credit Assn., 214

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Cal.App.3d. 635 (1989). If a thing essential to a contract exists at the time of the agreement, but then ceases to exist, there is a contract, but its performance is excused by impossibility. Dairy Food Store v Alpert, 116 Cal.App. 670, 672 (1931). Also See Witkin's Summary of California Law, 9th Edition, Contracts, §366; Gallegos, supra at 33. Relief from th