Pena

MEMORANDUM *

California State prisoner Manuel Gonzales Pena, Jr. appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. The petition challenged Pena’s state court conviction pursuant to a “slow plea” to the crime of petty theft with a prior theft conviction. He also challenges his 25-years-to-life sentence under California’s Three Strikes Law.

Pena contends his attorney was ineffective when the attorney advised him to waive his right to a jury trial and submit the matter to the court on documentary evidence. His principal contention in the California state courts and in the district court has been that, had he gone before a jury, he might have been acquitted, and was thereby prejudiced by the plea before the judge. The evidence against Pena was overwhelming, however, so his decision to undertake the “slow plea” was quite reasonable. Following the “slow plea” his lawyer was able to argue before the state court that, on the record before the court in the plea proceeding, the court had discretion to decline to sentence under the Three Strikes Law. Though ultimately unsuccessful in avoiding the 25-to-life sentence, this strategy was certainly not below…