1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DANIEL LEE AMBURN, Case No. 20-cv-09283-JST

8 Petitioner,

ORDER DENYING PETITION FOR

9 v. WRIT OF HABEAS CORPUS;

DENYING CERTIFICATE OF

10 TRACY JOHNSON, Warden, APPEALABILITY 11 Respondent.

12 13 Before the Court is the above-titled petition for a writ of habeas corpus, filed pursuant to 14 28 U.S.C. § 2254 by petitioner Daniel Lee Amburn, challenging the validity of his state court 15 conviction. ECF No. 1. Respondent has filed an answer to the petition, ECF No. 13 (“Answer”), 16 and Petitioner has filed a traverse, ECF No. 14. For the reasons set forth below, the petition is 17 DENIED. 18 I. PROCEDURAL HISTORY 19 In 2017, Petitioner pleaded guilty in Del Norte Superior Court to assault with a deadly 20 weapon (Cal. Pen. Code § 245(a)(1)) and admitted two prior strike convictions pursuant to a 21 negotiated plea agreement. Answer, Ex. 4 at 2. Petitioner was sentenced to 25 years to life in 22 state prison. Answer, Ex. 4 at 2. 23 Petitioner appealed the conviction and judgment. Pursuant to People v. Wende, 25 Cal.3d 24 436 (1979), Petitioner’s appointed appellate counsel, Martin Kassman, and the state appellate 25 court reviewed the record to determine if there were any arguable issues on appeal. Answer, Exs. 26 3 and 4. Neither Mr. Kassman nor the appellate counsel found an arguable issue. Petitioner did 27 not file a supplemental brief, did not request to have appellate counsel relieved, and did not obtain 1 Amburn, C No. A152186, 2018 WL 3434291 (Cal. Ct. App. Jul. 17, 2018). 2 On September 17, 2018, Petitioner filed a habeas petition in the California Court of 3 Appeal, which was denied on September 19, 2018 without prejudice to refiling in superior court. 4 Answer, Exs. 5, 6. 5 On April 2, 2019, Petitioner filed a habeas petition in the Del Norte Superior Court, 6 alleging that trial counsel was ineffective because she incorrectly informed him that he would 7 qualify under Proposition 57 for early release after serving two to three years of a 25-years-to-life 8 sentence and she advised him to plead guilty based on this incorrect understanding of Proposition 9 57. Answer, Ex. 7. The Del Norte Superior Court denied this claim in a reasoned decision on 10 May 31, 2019. Answer, Ex. 8. On July 5, 2019, Petitioner filed a motion for reconsideration, 11 which was denied on September 3, 2019. Answer, Ex. 9. 12 On October 22, 2019, Petitioner filed a habeas petition in the California Court of Appeal 13 challenging the denial of the motion for reconsideration. On October 25, 2019, the state appellate 14 court denied the petition for failure to include the challenged order denying the motion for 15 reconsideration. Answer, Exs. 10 and 11. On December 20, 2019, Petitioner again filed a habeas 16 petition in the California Court of Appeal, this time including the order denying the motion for 17 reconsideration. On February 19, 2020, the state appellate court denied the petition. Answer, Exs. 18 12, 13. 19 On March 19, 2020, Petitioner filed a habeas petition in the California Supreme Court, 20 alleging that trial counsel was ineffective when she incorrectly informed him that he would qualify 21 under Proposition 57 for early release after serving two to three years of a 25-to-life sentence, and 22 that his due process rights were violated by trial counsel’s lack of knowledge regarding 23 Proposition 57 and by the District Attorney’s “invalid/faulty” plea offer. Answer, Ex. 14. On 24 September 23, 2020, the California Supreme Court summarily denied this claim. Answer, Ex. 15. 25 On December 7, 2020, Petitioner filed the instant habeas petition in this Court. ECF No. 1. 26 On February 23, 2021, the Court found that the petition stated the following cognizable claims for 27 federal habeas relief: (1) trial counsel was ineffective when she incorrectly informed Petitioner 1 and-a-half years in prison; (2) Petitioner’s guilty plea was neither voluntary nor intelligent because 2 the advice he received from counsel was not within the range of competence demanded of 3 attorneys in criminal cases, thereby leaving him unaware of the direct consequences of his guilty 4 plea and without the information necessary to assess intelligently the advantages and 5 disadvantages of pleading guilty; and (3) the plea bargain was breached when the superior court 6 refused to apply Proposition 57 to reduce his sentence. ECF Nos. 10, 16. The Court ordered 7 Respondent to show cause why federal habeas relief should not be granted. Id. 8 II. FACTUAL BACKGROUND 9 The following factual and procedural background is taken from the California Court of 10 Appeal’s opinion:1

11 In December 2015, Amburn was paroled from state prison after serving a 19-year sentence for a second robbery conviction. In May 2017, Amburn and Elizabeth 12 Jean Rinehart (collectively, defendants) had a physical altercation with a neighbor. The prosecution charged defendants with making criminal threats (Pen. Code, 13 § 422 subd. (a) (count 1)) [FN 1] and alleged defendants personally used a deadly weapon, a knife, during the offense (§ 12022, subd. (b)). The prosecution also 14 charged defendants with assault with a deadly weapon (§ 245, subd. (a)(1) (count 2)). The complaint alleged Amburn had two prior robbery convictions, each of 15 which constituted a strike (§§ 667, subd. (b), 1170.12) and a serious felony (§ 667, subd. (a)). 16 FN 1: Undesignated statutory references are to the Penal Code. 17 In June 2017, Amburn pled guilty to count 2. Amburn initialed and signed a felony 18 plea declaration form stating: “Plea to Count 2 as an OPEN plea. Admit the 2 prior Robbery convictions. Defense will file a ‘Romero’/1385 motion to strike the prior 19 strike conviction(s). All charges against Co-defendant, Elizabeth Rinehart, will be dismissed . . . . The DA’s Office reserves the right to refile against Ms. Rinehart, if 20 this plea deal is not accepted by the Court or if defendant successfully withdraws his plea. Max exposure is 25—Life.” At the plea hearing, Amburn entered an 21 Arbuckle waiver. He pled guilty to count 2 and admitted two strike priors (§§ 667, subd. (b), 1170.12) and one prior serious felony (§ 667, subd. (a)). The trial court 22 determined Amburn knowingly, intelligently, and voluntarily waived his constitutional rights and that there was a factual basis for the plea. 23 Amburn filed numerous “letters in support of . . . sentencing” and a Romero 24 motion. The prosecution opposed the motion. At the August 2017 sentencing hearing, the court noted it had read and considered the probation department’s 25 sentencing report, the letters supporting Amburn, and the Romero motion and 26 1 The Court has independently reviewed the record as required by AEDPA. Nasby v. Daniel, 853 27 F.3d 1049, 1052–54 (9th Cir. 2017). Based on the Court’s independent review, the Court finds opposition. Amburn and the victim addressed the court, and the court heard 1 argument from the parties on the Romero motion. The court determined the negotiated plea was in the interest of justice. It examined the sentencing factors 2 (Cal. Rules of Court, rules 4.421, 4.423) and denied the Romero motion, concluding “this is clearly the kind of case that is in the spirit of the [ ] three strikes 3 law.” The court sentenced Amburn to 25 years to life in state prison on count 2 and dismissed the other charges. [FN 2] The court imposed various fines and fees, 4 awarded custody and conduct credits, and reserved jurisdiction regarding restitution. 5 FN 2: Pursuant to the parties’ stipulation, the court struck Amburn’s plea to 6 the prior serious felony (§ 667, subd. (a)) so that Amburn could be sentenced to 25 years to life, pursuant to the plea agreement. 7 Amburn, 2018 WL 3434291, at *1. 8

III. DISCUSSION

9 A. Standard of Review 10 A petition for a writ of habeas corpus is governed by the Antiterrorism and Effective Death 11 Penalty Act of 1996 (“AEDPAˮ). This Court may entertain a petition for a writ of habeas corpus 12 “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that 13 he is in custody in violation of the Constitution or laws or treaties of the United States.ˮ 28 U.S.C. 14 § 2254(a). 15 A district court may not grant a petition challenging a state conviction or sentence on the 16 basis of a claim that was reviewed on the merits in state court unless the state courts’ adjudication 17 of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable 18 application of, clearly established Federal law, as determined by the Supreme Court of the United 19 States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in 20 light of the evidence presented in the State court proceeding.ˮ 28 U.S.C. § 2254(d); Williams v. 21 Taylor, 529 U.S. 362, 412–13 (2000). Additionally, habeas relief is warranted only if the 22 constitutional error at issue “had substantial and injurious effect or influence in determining the 23 jury’s verdict.” Penry v. Johnson, 532 U.S. 782, 795 (2001). 24 A state court decision is “contrary to” clearly established Supreme Court precedent if it 25 “applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases,” or if it 26 “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] 27 Court and nevertheless arrives at a result different from [its] precedent.” Williams, 529 U.S. at 1 405–06. “Under the ‘unreasonable application’ clause, a federal habeas court may grant the writ if 2 the state court identifies the correct governing legal principle from [the Supreme] Court’s 3 decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. 4 “[A] federal habeas court may not issue the writ simply because that court concludes in its 5 independent judgment that the relevant state-court decision applied clearly established federal law 6 erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411. 7 Section 2254(d)(1) restricts the source of clearly established law to the Supreme Court’s 8 jurisprudence. “[C]learly established Federal law, as determined by the Supreme Court of the 9 United States” refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions 10 as of the time of the relevant state-court decision.” Williams, 529 U.S. at 412. “A federal court 11 may not overrule a state court for simply holding a view different from its own, when the 12 precedent from [the Supreme Court] is, at best, ambiguous.” Mitchell v. Esparza, 540 U.S. 12, 17 13 (2003). 14 AEDPA requires a district court to presume correct any determination of a factual issue 15 made by a state court unless the petitioner rebuts the presumption of correctness by clear and 16 convincing evidence. 28 U.S.C. § 2254(e)(1). It is error for a federal court to review de novo a 17 claim that was adjudicated on the merits in state court. See Price v. Vincent, 538 U.S. 634, 638-43 18 (2003) (reversing judgment of 6th Circuit granting habeas relief on de novo review where claims 19 did not meet standards for relief under § 2254(d)(1)). 20 The layers of deferential review mandated by AEDPA can be summarized as follows: 21 First, challenges to purely factual questions resolved by the state court are reviewed under 22 Section 2254(d)(2); the question on review is whether an appellate panel, applying the normal 23 standards of appellate review, could reasonably conclude that the finding is supported by the 24 record. Second, fact-based challenges founded on evidence raised for the first time in federal 25 court are reviewed under Section 2254(e)(1); the question on review is whether the new evidence 26 amounts to clear and convincing proof sufficient to overcome the presumption of correctness 27 given the state court’s factual findings. Third, challenges to purely legal questions resolved by the 1 court’s decision contradicts a holding of the Supreme Court or reaches a different result on a set of 2 facts materially indistinguishable from those at issue in a decision of the Supreme Court; or (b) 3 whether the state court, after identifying the correct governing Supreme Court holding, then 4 unreasonably applied that principle to the facts of the prisoner’s case. And, fourth, challenges to 5 mixed questions of law and fact receive similar mixed review; the state court’s ultimate conclusion 6 is reviewed under Section 2254(d)(1), but its underlying factual findings supporting that 7 conclusion are clothed with the deferential protection ordinarily afforded factual findings under 8 §§ 2254(d)(2) and (e)(1). Lambert v. Blodgett, 393 F.3d 943, 978 (9th Cir. 2004). 9 The state court decision to which § 2254(d) applies is the “last reasoned decision” of the 10 state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991);2 Barker v. Fleming, 423 F.3d 11 1085, 1091–92 (9th Cir. 2005). The state superior court denied Claim No. 1 in a reasoned 12 decision on May 13, 2019, and the remaining claims were later summarily denied by the 13 California Supreme Court on September 23, 2020. When a federal claim has been presented to a 14 state court and the state court has summarily denied relief, it may be presumed that the state court 15 adjudicated the claim on the merits in the absence of any indication or state-law procedural 16 principles to the contrary. Harrington v. Richter, 562 U.S. 86, 98 (2011) (one-sentence order 17 denying habeas petition analyzed under Section 2254(d)). Accordingly, in reviewing the habeas 18 claims not addressed by the state superior court, this Court follows the Supreme Court’s direction 19 and “determine[s] what arguments or theories . . . could have supported” the California Supreme 20 Court’s rejection of the federal claim, and then gives deference to those arguments or theories 21 under AEDPA. Id. at 102. 22 / / / 23 / / / 24 2 Although Ylst was a procedural default case, the “look through” rule announced there has been 25 extended beyond the context of procedural default. Barker v. Fleming, 423 F.3d 1085, 1091 n.3 (9th Cir. 2005). The look through rule continues as the Ninth Circuit held that “it is a common 26 practice of the federal courts to examine the last reasoned state decision to determine whether a state-court decision is ‘contrary to’ or ‘an unreasonable application of’ clearly established federal 27 law” and “it [is] unlikely that the Supreme Court intended to disrupt this practice without making 1 B. Request for Evidentiary Hearing 2 In his traverse, Petitioner requests that the Court hold an evidentiary hearing if the Court 3 finds that the facts and evidence in his traverse are insufficient. ECF No. 18 at 23. Petitioner 4 argues that the state court fact finding process is not entitled to deference because (1) the state 5 court failed to conduct an evidentiary hearing in violation of his “right to a fair process for 6 developing the record supporting his claim in violation of Taylor v. Maddox, 366 F.3d 992 (9th 7 Cir. 2004), Hurles v. Ryan, 706 F.3d 1021 (9th Cir. 2013), Williams v. Woodford, 859 F.Supp.2d 8 1154, 11159 (E.D. Cal. 2012);” (2) there is no evidence in the record supporting the state court’s 9 conclusion that he would have accepted the plea bargain if he had been correctly advised as to the 10 nature of his plea, and the evidence in the record, in fact, suggests that he was incorrectly advised; 11 and (3) that the state court acted unreasonably in not engaging in further fact-finding when the 12 record “was clearly consistent with his allegations.” ECF No. 18 at 23-24. 13 The Court DENIES Petitioner’s request for an evidentiary hearing. Petitioner had a full 14 and fair opportunity in state court to develop his claim that trial counsel failed to accurately advise 15 him as to terms of his plea bargain. Moreover, as discussed below, the evidence in the record was 16 consistent with the state court’s denial. The state court is not required to sua sponte hold an 17 evidentiary hearing on this claim where the evidence in the record is consistent with the state 18 court’s denial. Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (if record refutes petitioner’s 19 factual allegations or otherwise precludes relief, an evidentiary hearing is not required); Hibbler v. 20 Benedetti, 693 F.3d 1140, 1147 (9th Cir. 2012) (state court does not have to conduct evidentiary 21 hearing to resolve every disputed factual question; “state court’s decision not to hold an 22 evidentiary hearing does not render its fact-finding process unreasonable so long as the state court 23 could have reasonably concluded that the evidence already adduced was sufficient to resolve the 24 factual question.”). The requested evidentiary hearing is DENIED because it would not develop 25 any material facts which Petitioner did not have a full and fair opportunity to develop in state 26 court. 28 U.S.C. § 2254(e)(2); see also Gandarela v. Johnson, 286 F.3d 1080, 1087 (9th Cir. 27 2002) (evidentiary hearing properly denied where petitioner “failed to show what more an 1 federal evidentiary hearing could not be considered by this Court because, as explained below, the 2 state court’s denial of Petitioner’s claims was neither contrary to, or an unreasonable application 3 of, clearly established federal law, or based on an unreasonable determination of the facts. Shoop 4 v. Twyford, 142 S. Ct. 2037, 2043-44 (2022) (review of factual determinations under Section 5 2254(d)(2) is expressly limited to evidence presented in State court proceeding, and review of 6 legal claims under Section 2254(d)(1) is also limited to record that was before state court; not 7 allowing writ to obtain new medical evidence to support claims that state court had adjudicated on 8 merits because federal court’s review limited to record before state court); Cullen v. Pinholster, 9 563 U.S. 170, 180 (2011) (new evidence presented at evidentiary hearing cannot be considered in 10 assessing whether state court’s decision “was contrary to, or involved an unreasonable application 11 of, clearly established Federal law” under Section 2254(d)(1)). 12 C. Petitioner’s Claims 13 Petitioner alleges that he is entitled to federal habeas relief because (1) trial counsel was 14 ineffective when she incorrectly informed Petitioner that, due to the applicability of Proposition 15 57, Petitioner would not serve more than two to two-and-a-half years in prison; (2) Petitioner’s 16 guilty plea was neither voluntary nor intelligent because the advice he received from counsel was 17 not within the range of competence demanded of attorneys in criminal cases, thereby leaving him 18 unaware of the direct consequences of his guilty plea and without the information necessary to 19 assess intelligently the advantages and disadvantages of pleading guilty; and (3) the plea bargain 20 was breached when the superior court refused to apply Proposition 57 to reduce his sentence. 21 1. Ineffective Assistance of Counsel 22 a. Legal Standard 23 The Sixth Amendment guarantees the accused the “right . . . to have the Assistance of 24 Counsel for his defense.” U.S. Const. amend. VI. The right to counsel is the right to the effective 25 assistance of counsel, and counsel can deprive a defendant of the right by failing to render 26 adequate legal assistance. Strickland v. Washington, 466 U.S. 668, 686 (1984). The decision 27 whether or not to accept a plea offer is a critical stage of the prosecution at which the Sixth 1 (“negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth 2 Amendment right to effective assistance of counsel.”); Turner v. Calderon, 281 F.3d 851, 879 (9th 3 Cir. 2002). Therefore, the two-part test of Strickland applies to counsel’s assistance in advising a 4 defendant to accept or reject a plea offer. See Hill v. Lockhart, 474 U.S. 52, 57-58 (1985). 5 In order to prevail on a Sixth Amendment ineffectiveness of counsel claim, petitioner must 6 establish two things. First, the defendant must establish “that counsel’s representation fell below 7 an objective standard of reasonableness.” Id. at 687–88. Second, the defendant must establish 8 that he was prejudiced by counsel’s deficient performance, i.e., that “there is a reasonable 9 probability that, but for counsel’s unprofessional errors, the result of the proceeding would have 10 been different.” Id. at 694. On habeas review, it is not enough for a federal court to have found 11 counsel ineffective. The federal court must also find that the state court’s resolution of the issue 12 was unreasonable, a higher standard. Harrington, 562 U.S. at 101. 13 Regarding plea bargains specifically, the first Strickland prong requires the petitioner to 14 establish that counsel’s advice regarding the plea bargain was deficient, meaning it was not 15 “‘within the range of competence demanded of attorneys in criminal cases.’” Hill, 474 U.S. at 56 16 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). In advising a defendant, “[c]ounsel 17 cannot be required to accurately predict what the jury or court might find, but he can be required 18 to give the defendant the tools he needs to make an intelligent decision.” Turner, 281 F.3d at 881 19 (counsel who advised defendant to reject offer of 15-years-to-life was not deficient where 20 evidence showed that petitioner informed of potential death penalty at trial, and counsel had 21 allowed petitioner to think about offer overnight). The absence of evidence that counsel gave 22 constitutionally inadequate advice cannot overcome the presumption that counsel’s conduct was 23 within the range of reasonable professional advice. Burt v. Titlow, 571 U.S. 12, 22-23 (2013) 24 (absence of evidence of adequate evidence cannot overcome strong presumption that counsel’s 25 performance was not deficient). Erroneous advice regarding the consequences of a guilty plea is 26 insufficient to establish ineffective assistance; petitioner must establish a “‘gross 27 mischaracterization of the likely outcome’ of a plea bargain ‘combined with . . . erroneous advice 1 Cir. 2004) (citing United States v. Keller, 902 F.2d 1391, 1394 (9th Cir. 1990). The Supreme 2 Court has declined to determine whether erroneous advice as to parole eligibility can constitute 3 ineffective assistance. Hill, 474 U.S. at 60. 4 b. State Court Denial of Ineffective Assistance of Counsel Claim 5 Petitioner raised this ineffective assistance of counsel claim for the first time in his habeas 6 petition filed with the state superior court and the state superior court denied this claim in a 7 reasoned order as follows:

8 A petition for habeas corpus will be dismissed if it alleges an issue that could have been, but was not, raised on direct appeal. (In re Dixon (1953) 41 Cal.2d 756, 759.) 9 If a petitioner failed to raise his claim on direct appeal, he is procedurally barred from raising it on habeas review. (Dixon, 41 Cal. 2d at P. 759.) Further, it is clear 10 by the record, as noted by the signed Tahl waiver form, that the Petitioner was absolutely cognizant of the following: “This is a 3 strikes case where the maximum 11 penalty is 25 years to life. Not eligible for probation and not eligible for sentencing under PC 1170(h). May be eligible for Prop 57 relief through the 12 CDC.” (Emphasis added.) At time of entry of plea, the Petitioner stated he read and signed said document. Petitioner now claims he truly thought he would get 13 probation, never was aware of the 25 years to life sentence possibility, and would only do 2 to 2.5 years in prison. Such belief is not credible. His beliefs and 14 statements are contradicted by the record. He read and signed a Tahl waiver form clearly stating otherwise than his now pitched belief. All of this was on the record 15 for appeal. As such, the issue could be procedurally barred from being raised as it was clear by the record. 16 Nevertheless, it is clear Petitioner received the benefit of the bargain where the co- 17 defendant’s case was dismissed and Petitioner may be considered for early parole review by prison officials per Proposition 57. Petitioner claims no one explained 18 how Proposition 57 applied. However, he provides damming documentation to the contrary whereby he claims he “wasn’t paying much attention . . .” for he was 19 thinking about other aspects of the potential sentence. He additionally claims that there was never a bail hearing. Such is contradicted by the minutes in the 20 underlying case. He claims he was sentenced to 30 years to life. Such is also contradicted by the minutes in the underlying case which reflect 25 years to life. 21 Petitioner was aware of the Romero motion and its discussion of facing 25 years to life prior to sentencing. He also admitted in the damning documentation provided 22 that he saw the 25 years to life sentence exposure on the plea form and in the sentencing reports and was aware that a 3rd Strike carries 25 years to life. 23 However, he further stated that “We hear and see what we want to hear and see.” It appears that this matter involves an issue of buyer’s remorse, especially since 24 Petitioner now believes prison officials will deny parole under Proposition 57 when “the board (parole) will look at the transcripts and police reports and deem me a 25 threat to society . . .”

26 Just as predicted by his trial counsel, Petitioner still may be eligible for Proposition 57 relief as noted that the Prison authorities slated said review for 2021. 27 Regardless, Petitioner has not made a prima facie case for ineffective assistance of supported by the record. Whether the Petitioner chose to heed those words is a 1 different story. Also, the Court will not consider the unsigned and unverified declarations provided by Petitioner. 2 ECF No. 13-4 at 139 (emphasis in original). 3 c. Analysis 4 Petitioner argues that his trial counsel, Ms. Olson, provided ineffective assistance of 5 counsel when she incorrectly informed him that he would be receiving a 4-year sentence with a 6 25-to-life enhancement and that Proposition 57 would result in the “un-enforcement” of the 7 enhancement and that he would be released within two to two-and-a-half years because he 8 received a sentence of 25-years-to-life; the Three Strikes Law is not an enhancement; and 9 Proposition 57 was not applicable to third-strikers at the time of his plea bargain. He argues that 10 Ms. Olson did not understand Proposition 57, did not explain Proposition 57 to him, and never 11 told him that he would be receiving a sentence of 25-years-to-life. See ECF No. 1 at 7-12; ECF 12 No. 18 at 9. 13 The Court has reviewed the record and finds that the state court’s denial of this claim was 14 an reasonable determination of the facts in light of the evidence presented in the state court 15 proceeding. The state court’s denial of this claim rests upon its factual determination that trial 16 counsel accurately informed Petitioner of the potential consequences of his plea bargain. AEDPA 17 requires the Court to presume correct the state court’s determination of this factual issue made by 18 a state court unless the petitioner rebuts the presumption of correctness by clear and convincing 19 evidence. 28 U.S.C. § 2254(e)(1).3 Petitioner’s allegations do not rebut the presumption of 20 correctness required by AEDPA because, as the state court found, Petitioner’s beliefs and 21 22 23 3 Petitioner argues that he was only required to prove a prima facie case of ineffective assistance 24 of counsel in state court, citing to Nunes v. Mueller, 350 F.3d 1045, 1054 (9th Cir. 2003). In Nunes, the Ninth Circuit held that a petitioner need only demonstrate that he had sufficient 25 evidence for a reasonable fact finder to conclude with “reasonable probability” that he would have accepted the plea offer, a probability “sufficient to undermine the result,” and that there was 26 “ample evidence in the record before the state court to support” his assertion that his attorney gave him the wrong information and advice about the state’s plea offer and that if he had instead been 27 informed accurately, he would have taken the bargain. Nunes, 350 F.3d at 1054. Here, however, 1 statements are contradicted by the record. The record shows that Petitioner that Petitioner was 2 informed, and aware, that he faced a 25-years-to life sentence. 3 Petitioner himself referenced a 30-year-to-life term when asking for leniency at the 4 sentencing hearing: “I would ask this court if they consider --- to consider a suspended sentence of 5 30 to life, probation for whatever term you describe. And as probation and the D.A. said I am a 6 career criminal then I’ll reoffend and I’ll have a 30 to life sentence.” ECF No. 13-3 at 660. 7 At the June 13, 2017 plea colloquy, Ms. Olson stated that the case was a three-strikes case, 8 and the trial court judge emphasized this point to Petitioner.

9 Ms. Olson: My client will enter a plea to Count 2, which is assault with a deadly weapon, a knife. It’s an open plea. This is a three-strikes case. He 10 has two prior strikes he’ll be admitting. At the time of sentencing I’ll be filing a Romero motion to strike either one or both of the 11 strikes. He’s not eligible for probation. He’s not eligible for certain under P.C. 1170(h). But he is eligible for Prop 57. And he would 12 have to apply for that through the prison.

13 The Court: Did you hear that, Mr. Amburn?

14 Petitioner: I’m sorry?

15 The Court: Did you hear what your lawyer said?

16 Petitioner: Yeah.

17 The Court: Okay. And you have been through this before. So you have a couple of strikes. This is going to be a third strike. Do you 18 understand that?

19 Petitioner: Yes, sir.

20 The Court: There is a strict limit on what the court, whoever the court is, whoever sentences you can do. Do you understand that? 21 Petitioner: Yes, sir. 22 The Court: And I take it you had an opportunity to discuss this case with your 23 lawyer --

24 Petitioner: Yes.

25 The Court: -- in some detail? Have you taken any medications or anything that would affect your ability to think clearly and logically? 26 Petitioner: No. 27 The Court: Okay. So now I’ll ask you, did you initial this document? Petitioner: Yes, sir. 1 The Court: Did you have a chance to talk to your lawyer about it? 2 Petitioner: Yes, sir. 3 The Court: And you initialed the various boxes on the left? The initials, D.A., 4 are yours?

5 Petitioner: Yes, sir.

6 The Court: All right. And you’re aware this is a third strike? And the subject offense is a strike offense? 7 Petitioner: Yes, sir. 8 9 ECF No. 13-3 at 144-45. In declining to assess attorney fees on Ms. Rhinehart, the Court again 10 emphasized that Petitioner was facing a long sentence.

11 The Clerk: And attorney fees for [Ms. Rhinehart]?

12 The Court: I’m not going to impose any in view of the fact that she’s getting a dismissal and he’s going to prison for a very long time and he 13 entered an early plea. . . . So he’s taking responsibility for what he did. So he’s going to pay a large price. So I don’t need to tack on 14 attorney fees. 15 ECF No. 13-3 at 152. 16 At the July 13, 2017 hearing on Petitioner’s request for a continuance, the prosecutor 17 described the plea agreement as stipulating to Petitioner receiving a sentence of 25 years to life in 18 return for the charges against Ms. Rhinehart being dropped.

19 The Court: Is there any objection to the request for a continuance in order for Ms. Olson to file a Romero motion on behalf of Mr. Amburn? 20 Prosecutor: I don’t object to a continuance . . . And I know that we dismissed a 21 very serious case against Mr. Amburn’s significant other based on the understanding that he would be receiving 25 years to life in 22 prison. And if the defendant is going to now try on striking one of the strikes I see that as a potential violation of our negotiations. It 23 that be the case then we may be in position we would continue with the case against Ms. Rhinehart. . . . I want to put everyone on notice 24 it was not discussed there was a Romero motion filed. I would see this as a violation of our plea negotiations. 25 ECF No. 13-3 at 155-56. 26 At the August 10, 2017 sentencing hearing, in arguing Petitioner’s Romero motion, both 27 the prosecution and defense counsel stated that Petitioner faced a sentence of 25 years to life if the 1 two prior strikes were not struck. Ms. Olson argued as follows: “The length of the sentence, 25 to 2 life, that’s a considerable amount of time given my client acknowledges he’s 63 years old. If the 3 court strikes one of the strikes that would still leave a very lengthy sentence for my client to serve . 4 . . it could lead to a nine or thirteen-year sentence regardless.” ECF No. 13-3 at 169. The 5 prosecution also referred to a 25 year to life sentence as the expected sentence and argued that 6 there was no need to strike any of Petitioner’s priors because Proposition 57 offered a “safeguard” 7 against unjust sentences in that Petitioner could earn an earlier release under Proposition 57 and 8 “theoretically be out in a couple of years.” ECF No. 13-3 at 171; see also id. at 171 (“But looking 9 at whether or not he deserved a 25 to life sentence, People believes that he does.”), at 173 (“Prison 10 for life is where he belongs. That’s the spirit of the three strikes law . . . So prison for life is where 11 defendant should go and that’s what the People ask.”). The court denied the Romero motion and 12 sentenced Petitioner “to state prison for the aggravated sentence pursuant to the three-strikes law 13 of 25 to life.” ECF No. 13-3 at 182. 14 In addition to the statements made at the hearings, the plea declaration also specifies that 15 Petitioner was facing a sentence of 25 years to life. While the plea declaration specified that the 16 maximum sentence for Count 2, Assault with a Deadly Weapon, Cal. Penal Code § 245(a)(1), was 17 four years, the plea declaration elaborated that “[Count 2] is a serious felony offense and also a 18 strike. This is a 3 strikes case where the maximum penalty is 25 years to life. . . . Maybe eligible 19 for Prop 57 relief through the CDC.” Petitioner initialed the statement that he understood that he 20 could receive a maximum sentence of 25 years to life. In describing the bargain, the plea 21 declaration again stated that maximum sentence was 25 years to life:

22 Plea to Count 2 as an OPEN plea. Admit the prior Robbery convictions. Defense will file a “Romero” / 1385 motion to strike the prior strike convictions). All 23 charges against co-defendant, Elizabeth Rinehart, will be dismissed. She will be released from custody at the time this plea is entered on the record. The DA’s 24 Office reserves the right to refile against Ms. Rinehart, if this plea deal is not accepted by the Court or if defendant successfully withdraws his plea. Max 25 exposure is 25 – Life. 26 ECF No. 13-3 at 21-23. 27 Based on Petitioner’s own admission at the sentencing hearing; the statements made by 1 on Petitioner’s request for a continuance, and the August 10, 2017 sentencing; and the plea 2 declaration, the state court could reasonably conclude that Ms. Olson accurately informed 3 Petitioner that he would be serving a three-strikes sentence of 25-years-to-life with a four-year 4 base term and that, with the application of Proposition 57, there was the possibility of Petitioner 5 being released on parole early, depending on how the CDCR applied the time-credits portion of 6 Proposition 57. 7 Moreover, to the extent that Petitioner argues that Ms. Olson informed him that he was 8 eligible for Proposition 57 relief and that Proposition 57 could allow him to be released early, Ms. 9 Olson accurately described Proposition 57. Proposition 57 was approved by California voters in 10 the November 2016 general election. Proposition 57 added Section 32 of Article I to the 11 California Constitution which (1) established a process for parole consideration for eligible 12 persons convicted of nonviolent crimes, and (2) increased incarcerated persons’ ability to earn 13 credits to reduce their sentence. Cal. Const., Art. I, § 32(a). With respect to early parole 14 consideration, Cal. Const., Art. I, § 32(a)(1) provides that “[a]ny person convicted of a nonviolent 15 felony offense and sentenced to state prison shall be eligible for parole consideration after 16 completing the full term for his or her primary offense,” and that the “full term for the primary 17 offense means the longest term of imprisonment imposed by the court for any offense, excluding 18 the imposition of an enhancement, consecutive sentence, or alternative sentence.” Cal. Const., 19 Art. I, § 32(a)(1). Ms. Olson correctly represented that, according to the language of Proposition 20 57 as codified in Section 32(a)(1), Petitioner was eligible for Proposition 57 relief. At the time of 21 Petitioner’s plea bargain, courts had held that a conviction for assault with a deadly weapon, Cal. 22 Penal Code § 245, was a nonviolent felony offense within the meaning of Section 32(a)(1), see 23 People v. Harris, C No. B281043, 2017 WL 4230834, at *2 (Cal. Ct. App. Sept. 25, 2017) (for 24 Proposition 57 purposes, violent felonies are defined in Cal. Penal Code § 667.5(c); assault with a 25 deadly weapon (Cal. Penal Code § 245) not listed in is Section 667.5(c)), and had held that the 26 three-strikes sentence is an alternative sentence, People v. Turner, 134 Cal. App. 4th 1591, 1597 27 (Cal. Ct. App. 2005) (“The punishment of an indeterminate life term under the Three Strikes Law, 1 the defendant is to be prosecuted. It is an alternative sentence imposed upon those who commit a 2 current felony offense, and who are recidivist offenders.”). Although Ms. Olson incorrectly 3 described the Three Strikes Law as a sentence enhancement, she was correct that Petitioner was 4 eligible for Proposition 57 despite serving a three strikes sentence. Proposition 57 provided that 5 Petitioner would be eligible for parole after serving the four-year base term for his commitment 6 offense of assault with a deadly weapon and provided the possibility of Petitioner earning credits 7 to reduce his sentence. 8 While Petitioner is correct that, at the time of his plea bargain, he was not eligible for 9 Proposition 57 relief, this does not render Ms. Olson’s assistance ineffective within the meaning of 10 the Sixth Amendment. Petitioner’s ineligibility for Proposition 57 relief at the time of his plea 11 bargain was due to a temporary regulation promulgated by the California Department of 12 Corrections and Rehabilitation (“CDCR”). In April 2017, the California’s Office of 13 Administrative Law (“OAL”) approved the CDCR’s “emergency rulemaking action” that defined 14 “nonviolent offender” as inter alia inmates who were “incarcerated for a term of life with the 15 possibility of parole,” which would include inmates, such as Petitioner, who were not incarcerated 16 for a triggering violent felony specified in Cal. Penal Code § 667.53 but had been sentenced to life 17 with the possibility of parole pursuant to the Three Strikes Law. In re Edwards, 26 Cal. App. 5th 18 1181, 1187–88 (Cal. Ct. App. 2018). However, a regulation that is adopted pursuant to emergency 19 rulemaking is not a permanent regulation. The emergency regulation has an initial effective 20 period of 160 days. The emergency regulation can be extended under certain circumstances if 21 approved by the OAL, but not beyond an additional 180 days. Cal. Penal Code § 5058.3(a); Cal. 22 Gov’t Code § 11346.1(e). While these emergency regulations became final in May 2018, shortly 23 thereafter on September 7, 2018, the California appellate court voided the emergency regulations 24 as inconsistent with the voters’ intentions and the “plain language” of the Section 32(a)(1). 25 Edwards, 26 Cal. App. 5th at 1191-91. In response to Edwards, the CDCR adopted emergency 26 regulations, effective January 1, 2019, that complied with Edwards. In re Arroyo, 37 Cal.App.5th 27 727, 730 (Cal. Ct. App. 2019); 15 Cal. Code Regs. § 3496(a). Because of the temporary nature of 1 Olson’s representation that Petitioner would be eligible for Proposition 57 relief did not constitute 2 ineffective assistance within the meaning of the Sixth Amendment. Her assessment of the 3 emergency regulations was shared by the prosecution as evidenced by his arguments in opposing 4 the Romero motion:

5 The law got changed to where a 25 to life sentence could be imposed to someone who is convicted of a serious or violent felony. Most recently with the adoption of 6 Proposition 57 even though somebody who was convicted of a serious felony could get sentenced to 25 to life, the defendant as he sits here today convicted of only a 7 serious felony would not be precluded from Prop 57 relief even if the court was to sentence him to 25 to life. . . . [he] could theoretically be out in a couple of years if 8 he actually earns that release while in prison. 9 See ECF No.13-3 at 171. The plea declaration also specified that Petitioner was eligible for 10 Proposition 57 relief. See ECF No. 1 at 15. 11 Petitioner misunderstands Proposition 57. Presumably Petitioner is arguing that Ms. Olson 12 represented to him that Proposition 57 guaranteed an earlier parole date, so long as he was eligible 13 for Proposition 57. But, neither eligibility for Proposition 57 relief nor the application of 14 Proposition 57 entitles an inmate to an earlier release date. Proposition 57 provides inmates with 15 the possibility of reducing their sentence through earning time credits and allows inmates to have a 16 parole hearing earlier than was previously available. The availability of time credits under 17 Proposition 57 is determined by the CDCR. Whether Petitioner is released on parole is 18 determined by the Board of Parole Hearings (“BPH”). In other words, eligibility for Proposition 19 57 did not ensure that Petitioner would be released after serving two to two-and-a-half years. 20 However, Proposition 57 made it possible for Petitioner to be eligible for a parole hearing after 21 serving two to two-and-a-half years (instead of four years) if he earned sufficient time credits 22 through the CDCR and if, at the earlier parole hearing granted due to Proposition 57, the BPH 23 granted him parole. But, as stated in the plea declaration and in the plea colloquy, the final 24 determination of whether to grant Proposition 57 relief rests with the CDCR. See ECF No. 1 at 15 25 (plea declaration stated that Petitioner was “eligible for Prop 57 relief through the CDC”) 26 (emphasis added); ECF No. 13-3 at 144 (at plea colloquy, Ms. Olson stated, “But he is eligible for 27 Prop 57. And he would have to apply for that through the prison”) (emphasis added). 1 Petitioner argues the following statements made by Ms. Olson in her letters are clear and 2 convincing evidence that she did not understand the relevant law and that she misrepresented the 3 plea bargain: Ms. Olson described the Three Strikes sentence as an “enhancement;” Ms. Olson 4 stated that without a base term of four years specified, Petitioner would not have the opportunity 5 to have his enhancement “unenforced by the Prison Board”; and Ms. Olson agreed that the legal 6 status summary incorrectly failed to include the base term of four years. See ECF No. 1 at 41; 7 ECF No. 18 at 9-10. These statements are not evidence that Ms. Olson misunderstood the Three 8 Strikes Law, Proposition 57, or the plea bargain. As discussed supra, Ms. Olson was correct that 9 Petitioner was eligible for Proposition 57 despite being sentenced pursuant to the Three Strikes 10 Law, regardless of whether she correctly identified the Three Strikes Law as an enhancement or 11 alternative sentence. And Ms. Olson was also correct that the legal status summary should 12 correctly identify Petitioner’s base term as four years. The base term determined the date of the 13 initial parole eligibility hearing available pursuant to Proposition 57. Without a base term of four 14 years specified, the Prison Board would not be able to allow him a parole eligibility hearing until 15 he had served 25 years. Although Ms. Olson misspoke in using the terms “enhancement” and 16 “unenforced,” she correctly identified Petitioner as eligible for Proposition 57 pursuant to its plain 17 language despite Petitioner being sentenced pursuant to Three Strikes Law and the existence of 18 temporary emergency regulations that were being challenged in the state courts, and she correctly 19 identified that if the legal status summary specified that Petitioner had a base term of four years, 20 Petitioner’s 25-years-to-life Three Strikes sentence would not “be enforced,” in that 25-year 21 minimum would not determine the timing of Petitioner’s initial parole eligibility hearing. 22 The state court’s denial of this claim also was not contrary to, nor an unreasonable 23 application of, clearly established federal law. Petitioner’s eligibility for Proposition 57 relief is a 24 collateral consequence of his plea, not a direct consequence, because Proposition 57 relief depends 25 on the CDCR and the BPH. The Supreme Court has “never held that the United States 26 Constitution requires the State to furnish a defendant with information about parole eligibility in 27 order for the defendant’s plea of guilty to be voluntary. . . ,” Hill v. Lockhart, 474 U.S. 52, 56 1 regarding “collateral” consequences can serve as the basis for an ineffective assistance of counsel 2 claim, see Padilla v. Kentucky, 559 U.S. 356, 365 (2010) (“We, however, have never applied a 3 distinction between direct and collateral consequences to define the scope of constitutionally 4 “reasonable professional assistance” required under Strickland, 466 U.S. at 689, 104 S.Ct. 2052; 5 Hill, 474 U.S. at 60 (“We find it unnecessary to determine whether there may be circumstances 6 under which erroneous advice by counsel as to parole eligibility may be deemed constitutionally 7 ineffective assistance of counsel, because in the present case we conclude that petitioner’s 8 allegations are insufficient to satisfy the Strickland v. Washington requirement of prejudice.’”). 9 “[A] constitutional principle is not clearly established for purposes of § 2254 where the Supreme 10 Court has expressly concluded that an issue is an open question.” Murdoch v. Castro, 609 F.3d 11 983, 994 (9th Cir. 2010) (internal quotation marks and citation omitted). The Ninth Circuit 12 explained the distinction between a direct and collateral consequence of a plea as follows:

13 The distinction between a direct and collateral consequence of a plea turns on whether the result represents a definite, immediate and largely automatic effect on 14 the range of the defendant’s punishment. . . . In many cases, the determination that a particular consequence is “collateral” has rested on the fact that it was in the 15 hands of another government agency or in the hands of the defendant himself . . . the time of potential parole eligibility is not certain result of a guilty plea, but 16 depends upon the defendant's conduct and is purely discretionary. 17 Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir. 1988). Here, the availability of Proposition 57 18 depends on another agency and Plaintiff’s conduct. The CDCR determines whether to award time 19 credits by reviewing Plaintiff’s conduct. And while the grant of a parole hearing is automatic 20 upon serving the minimum term, parole suitability is ultimately determined by the Board of Parole 21 Hearings. To the extent that Petitioner is arguing that that Proposition 57 was a “direct” 22 consequence of his plea because Ms. Olson incorrectly informed him that Proposition 57 ensured 23 that he would be released after he had served two to two a half years, the state court has already 24 denied the factual claim underlying this claim – that Ms. Olson failed to tell Petitioner that he 25 would be serving a 25-years-to-life sentence. 26 The Court has carefully reviewed the record and governing law and finds that the state 27 court’s denial of this claim was not contrary to, and did not involve an unreasonable application 1 facts in light of the evidence presented in the State court proceeding. Federal habeas relief is 2 denied on Petitioner’s ineffective assistance of counsel claim. 3 2. Voluntary and Knowing Nature of Guilty Plea 4 Petitioner argues that his guilty plea was neither voluntary nor intelligent because he was 5 incorrectly informed that Proposition 57 applied to him, and because if he had realized that he was 6 receiving a 25-years-to-life sentence, he would not have agreed to the plea bargain. ECF No. 1 at 7 11; ECF No. 18. Respondent argues that the state court’s rejection of his claim was reasonable 8 because the state court reasonably determined that the record refuted Petitioner’s claim that he was 9 not advised of the direct consequences of his plea; neither counsel nor the court guaranteed 10 Petitioner’s eligibility under Proposition 57; and his plea was not premised on release from prison 11 in two and one-half years, but on the charges against Ms. Rinehart being dismissed. ECF No. 17-1 12 at 17-19. 13 a. Legal Standard 14 The only challenges left open in federal habeas corpus after a guilty plea is the voluntary 15 and intelligent character of the plea and the nature of the advice of counsel to plead. Hill v. 16 Lockhart, 474 U.S. 52, 56-57 (1985); Tollett v. Henderson, 411 U.S. 258, 267 (1973). A 17 defendant who pleads guilty upon the advice of counsel may only attack the voluntary and 18 intelligent character of the guilty plea by showing that the advice he received from counsel was 19 not within the range of competence demanded of attorneys in criminal cases. Id. 20 b. Analysis 21 Petitioner raised this claim for the first time in the habeas petition filed in the state supreme 22 court, and the state supreme court summarily denied this claim. Answer, Exs. 14, 15. When a 23 federal claim has been presented to a state court and the state court has summarily denied relief, it 24 may be presumed that the state court adjudicated the claim on the merits in the absence of any 25 indication or state-law procedural principles to the contrary. Harrington v. Richter, 562 U.S. 86, 26 98 (2011) (one-sentence order denying habeas petition analyzed under § 2254(d)). Accordingly, in 27 reviewing the habeas claims not addressed by the state superior court, this Court follows the 1 supported” the California Supreme Court’s rejection of the federal claim, and then gives deference 2 to those arguments or theories under AEDPA. Id. at 102. 3 This claim relies on Petitioner’s factual claims that Ms. Olson did not inform Petitioner 4 that he would receive a 25-years-to-life sentence and that she misrepresented either his eligibility 5 for Proposition 57 or the impact of Proposition 57 on his sentence. As discussed in detail above, 6 AEDPA requires that this Court presumes correct the state court’s determination that Petitioner’s 7 claims are not credible and Petitioner has not rebutted this presumption of correctness. With 8 respect to this claim, the California Supreme Court’s denial is supported by (1) the state superior 9 court’s factual determination that Petitioner was informed by Ms. Olson, his plea declaration, and 10 the judge that he would be serving a 25-years-to-life sentence pursuant to the Three Strikes Law; 11 and (2) the finding that Petitioner received the benefit of his plea bargain. Petitioner received the 12 benefit of the plea bargain in that the charges against Ms. Rinehart were dropped; Petitioner 13 received a base term of four years for Count 2; and Petitioner can receive, and has received, the 14 benefits of Proposition 57, namely a parole hearing on July 9, 2021, after he had served his base 15 term of four years. Without the plea bargain, Petitioner faced the possibility of Ms. Rinehart 16 serving prison time; and being sentenced to 25-years-to-life pursuant to the Three Strikes Law if 17 found guilty of Counts 1 and 2 and of having prior strikes; and having his initial parole eligibility 18 hearing after serving seven years, because the base term of Counts 1 and 2 totaled seven years. 19 Petitioner argues that he and Ms. Rinehart would not have been convicted of the charges or would 20 have been convicted on lesser charges because the incident was, at most, a “sloppy fist fight” and 21 because Ms. Rinehart had “done nothing wrong except chase after Petitioner trying to get him to 22 stop.” ECF No. 18 at 12, 17. However, the record indicates otherwise. The victim stated that he 23 was cut eight times with a razor knife and that Ms. Rhinehart had a purple razor knife in her hand. 24 Both the prosecutor and the victim describe Petitioner preventing the victim from retreating into 25 his trailer; that the attack only ended after two people took Petitioner down; and that even when 26 the police arrived, Petitioner still had the razor knife in his hand and was trying to go after the 27 victim. The police report also provides a similar account of the attack. ECF No. 13-3 at 32-35, 1 murder and expressed concern about the charges against Ms. Rinehart being dropped despite the 2 severity of her actions:

3 It appears to the court in this situation that very being charged with attempted murder in a case where he got into a knife fight with him being the only one with a 4 knife and slashed the victim across his throat as shown by in the video. That but for defendant’s luck he still had had a slash across this throat but didn’t cut him 5 wide open.

6 He’s lucky. He could have been killed. What the court finds disturbing is that he attempted to kill or slash someone, a complete stranger, solely after being called a 7 name he did not like. And threatened to kill said individual as well, apparently while on parole during this time the assault occurred . . . The crime did involve 8 threat of great bodily harm. The act disclosed a high degree of viciousness and callousness. In America we’re allowed to express ourselves, freedom of speech, 9 whether you disagree with it or not. It doesn’t allow us to take a box knife and try to slash someone’s throat or lock them out of their house . . . [Petitioner] did induce 10 others to participate in a crime. He drags his new wife with him who apparently took a box knife and tried to stab the victim in the belly and for no reason. The 11 district attorney dismissed the case. And the court could do nothing about that. But that was the recommendation by the People. . . . This particular case I have a 12 situation where apparently defendant attempted to maim or even kill the victim in this matter all over a white rage of being called a name he did not like which most 13 children would find offense but not want to kill someone or stab them. 14 ECF No. 13-3 at 662-63. Having carefully considered the evidence presented in the state court 15 proceeding, the Court finds that the state court’s summary denial of this claim was not an 16 unreasonable determination of the facts. 17 Nor was the state court’s summary denial of this claim contrary to, or an unreasonable 18 application of federal law. The Court must presume correct that state court’s finding that the 19 advice that Petitioner received from Ms. Olsen was within the range of competence demanded of 20 attorneys in criminal cases. Accordingly, Petitioner has no basis upon which to attack the 21 voluntary and intelligent nature of his plea. Hill, 474 U.S. at 56-57. Federal habeas relief is 22 denied on this claim. 23 3. Breach of Plea Agreement 24 The petition brings the following breach of plea agreement claim:

25 Petitioner was convicted on the basis of a guilty plea that was obtained by Petitioner’s attorney and the state without Petitioner’s knowledge and appreciation 26 that the offered Plea Agreement (Proposition 57) did not exist at the time. This violated Petitioner’s right to due process of law as guaranteed by the 5th 27 Amendment of the United States. See Tower v. Phillips, 979 F.2d 815 (11th Cir. 1992). . . . Had Pet[itioner] been made aware by any of the parties involved (Pet. Atty., D.A., presiding Judge, that Prop 57 would not benefit Pet. as advertised, Pet. 1 would have pulled his plea and proceeded to trial. 2 ECF No. 1 at 12. Petitioner cites to United States v. De La Fuente, 8 F.3d 1333 (9th Cir. 1993) for 3 the proposition that “in construing [a] plea agreement, the Court must determine what the 4 defendant reasonably understood to be the terms of the agreement when he [pled] guilty.” ECF 5 No. 1 at 13. The Court construed this claim as arguing that the plea bargain was breached when 6 the superior court refused to apply Proposition 57 to reduce his sentence. ECF No. 10 at 3. In his 7 traverse, Petitioner clarifies that his claim is that the plea bargain was breached when the trial 8 court refused to address the “falsity/illegal advice of Prop. 57” and failed to determine “what the 9 Petitioner reasonably understood to be the terms of the agreement when he pleaded guilty.” ECF 10 No. 18 at 20-21. Petitioner argues that the trial court erred when it failed to ask Ms. Olson or the 11 prosecutor why Proposition 57 was referenced on the plea form, at the plea colloquy, or at 12 sentencing, when the trial court was aware that Proposition 57 did not apply to Petitioner and 13 would not result in Petitioner being released in a couple years. Petitioner also argues that the trial 14 court erred in failing to determine whether Petitioner correctly understood Proposition 57. ECF 15 No. 18 at 21. Petitioner raised this claim for the first time in the habeas petition filed in the state 16 supreme court, and the state supreme court summarily denied this claim. Answer, Exs. 14, 15. 17 a. Legal Standard 18 Due process requires that a guilty plea be both knowing and voluntary because it 19 constitutes the waiver of three constitutional rights: the right to a jury trial, the right to confront 20 one’s accusers, and the privilege against self-incrimination. See Boykin v. Alabama, 395 U.S. 238, 21 242-43 (1969). It does not, however, require a state court to enumerate all the rights a defendant 22 waives when he enters a guilty plea as long as the record indicates that the plea was entered 23 voluntarily and understandingly. See Rodriguez v. Ricketts, 798 F.2d 1250, 1254 (9th Cir. 1986). 24 A trial judge may not accept a defendant’s guilty plea without creating a record affirmatively 25 showing that the plea was knowing and voluntary: a silent record is invalid. See Boykin, 395 U.S. 26 at 242. Boykin’s presumption of invalidity does not extend to collateral challenges, however. See 27 Parke v. Raley, 506 U.S. 20, 29-30 (1992). A habeas petitioner bears the burden of establishing 1 that defendant enter a guilty plea with sufficient awareness of the relevant circumstances and 2 likely consequences, Brady, 397 U.S. at 748, and that he understand the law in relation to the 3 facts, McCarthy v. United States, 394 U.S. 459, 466 (1969). 4 A plea is “involuntary” if it is the product of threats, improper promises, or other forms of 5 wrongful coercion, and is “unintelligent” if the defendant is without the information necessary to 6 assess intelligently “the advantages and disadvantages of a trial as compared with those attending 7 a plea of guilty.” Brady v. United States, 397 U.S. 742, 754-55 (1970). The transcript of the plea 8 hearing plays a significant role in an inquiry into the validity of a plea:

9 For the representations of the defendant, his lawyer, and the prosecutor at such a hearing, as well as any findings made by the judge accepting the plea, constitute a 10 formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of 11 conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible. 12 Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (citations omitted). 13 Plea agreements are contractual in nature and subject to contract law standards of 14 interpretation. Ellis v. District Court, 356 F.3d 1198, 1209 (9th Cir. 2004). If the terms of the 15 plea agreement have a clear and unambiguous meaning, then the court does not look to extrinsic 16 evidence. United States v. Streich, 560 F.3d 926, 929-30 (9th Cir. 2009) (government did not 17 breach promise in plea agreement not to “prosecute” defendant for uncharged conduct by arguing 18 for enhanced sentence based on uncharged conduct). “[A]ny lack of clarity in a plea agreement 19 should be construed against the government as drafter.” United States v. Spear, 753 F.3d 964, 968 20 (9th Cir. 2014) (internal quotation marks omitted). In interpreting a plea agreement, courts look to 21 what the defendant reasonably understood to be the terms of the agreement when he pleaded 22 guilty. Id. at 11. The construction of a state court plea agreement is governed by state contract 23 law, and the federal court should not disturb a reasonable state court interpretation. Ricketts v. 24 Adamson, 483 U.S. 1, 6 n.3 (1987). Under California law, in determining whether a plea 25 agreement has been broken, courts must first “look to the plain meaning of the agreement’s 26 language.” Buckley v. Terhune, 441 F.3d 688, 695 (9th Cir. 2006) (citing Cal. Civil Code §§ 27 1638, 1644). Second, if that language is ambiguous, “it must be interpreted in the sense in which 1 the promisor believed, at the time of making it, that the promisee understood it.” Id. (citing Cal. 2 Civil Code § 1649). “Although the intent of the parties determines the meaning of the contract, 3 the relevant intent is objective—that is, the objective intent as evidenced by the words of the 4 instrument, not a party’s subjective intent.” Id. (quoting Badie v. Bank of America, 67 Cal. App. 5 4th 779, 802 n.9 (1998)). “This inquiry considers the disputed or ambiguous language in the 6 context of the contract as a whole and of the relevant surrounding circumstances.” Id. at 698 7 (citing Nissel v. Certain Underwriters at Lloyd’s of London, 62 Cal. App. 4th 1103, 1111-12 8 (1998)). If ambiguity still remains, the contract is construed against the party who caused the 9 uncertainty to exist. Id. at 695-96 (citing Cal. Civil Code § 1654). 10 b. Analysis 11 The Court has carefully considered the record and finds that the state court’s denial of this 12 claim was not contrary to, or an unreasonable application of, federal law; nor was it an 13 unreasonable determination of the facts in light of the evidence presented in the state court 14 proceeding. In essence, Petitioner argues that the trial judge violated due process when he failed 15 to confirm that Petitioner understood that Proposition 57 was inapplicable to Petitioner. However, 16 there was nothing in the record that would have indicated to the trial judge that Petitioner’s 17 acceptance of the plea bargain was predicated on Proposition 57 ensuring Petitioner release after 18 two to two-and-a-half years, or that Petitioner misunderstood the applicability of Proposition 57. 19 Rather, the record indicated that Petitioner was pleading guilty so that the charges against Ms. 20 Rinehart would be dropped. Specifically, the plea declaration described the bargain as agreeing to 21 plead guilty to Count 2 of assault with a deadly weapon and admitting the two prior robbery 22 convictions in return for the dismissal of all charges against Ms. Rinehart and her immediate 23 release from custody. The plea declaration further stated that the D.A.’s Office reserved the right 24 to refile the charges against Ms. Rinehart if the plea bargain were rejected by the Court or 25 withdrawn by Petitioner. The plea declaration stated twice that the maximum sentence exposure 26 was 25 years to life, and that the trial court had discretion in deciding whether or not to impose 27 midterm, aggravated, or mitigated prison terms. ECF No. 1 at 15-17. Similarly, at the plea 1 defendant is similarly charged. With entry of [Petitioner’s] plea the charges will be dismissed 2 against her. And she will be released today.” ECF No. 13-3 at 629. In response, the sentencing 3 judge stated that this description was consistent with his prior understanding of the plea bargain: 4 “Right. I understand that before from an earlier hearing. But it’s good you bring it out on the 5 record and get it straight.” ECF No. 13-3 at 629. The only reference to Proposition 57 in the plea 6 declaration and during the plea colloquy was that Petitioner might be eligible for Proposition 57 7 relief through the CDCR, ECF No. 1 at 15 (“May be eligible for Prop 57 relief through the 8 CDC.”); ECF No. 13-3 at 627 (“But he is eligible for Prop 57. And he would have to apply for 9 that through the prison.”), which accurately described the then-governing regulations as the CDCR 10 promulgated regulations applying Proposition 57. Finally, the trial court confirmed with 11 Petitioner that Petitioner understood that this case constituted a third strike, that Petitioner had 12 initialed the document and had no reservations about entering the plea; and reviewed with 13 Petitioner the factual basis for the plea and the elements of the conviction offense. ECF No. 13-3 14 at 628-233. The record shows that Petitioner was aware of the relevant circumstances of his plea, 15 namely the elements of his conviction offense, the factual basis for his plea, and that his offense 16 was a third strike; and that Petitioner was aware of the likely consequences, namely that he faced a 17 25-years-to life sentence and that any Proposition 57 relief would be determined by the CDCR. 18 Because Proposition 57 was a collateral consequence of Petitioner’s plea, the trial court was not 19 required to ensure that Petitioner was informed as to how Proposition 57 could affect (or not 20 affect) him in order to satisfy the due process requirement that the plea be voluntary. Wills, 881 21 F.2d at 825. 22 Although Petitioner’s understanding of his plea bargain may have turned on his mistaken 23 belief that Proposition 57 would result in his being released in two to two-and-a-half years, 24 nothing in the record indicates that his misunderstanding was due to Ms. Olson, the judge, or the 25 prosecution. The state court reasonably interpreted the plain meaning of the plea agreement as 26 Petitioner agreeing to plead guilty to one of the two charges against him; to the charge being a 27 third strike; and to the maximum exposure being 25 years-to-life, all in exchange for the charges 1 court interpretation. Ricketts, 483 U.S. 6 n.3. Because the terms of the plea agreement were clear 2 and unambiguous and Petitioner stated that he had no reservations about the plea agreement, the 3 state court had no constitutional obligation to conduct an inquiry into Petitioner’s understanding of 4 the plea agreement. The state supreme court’s summary denial of this claim did not result in a 5 decision that was contrary to, or involved an unreasonable application of, clearly established 6 Federal law, as determined by the Supreme Court of the United States; and did not result in a 7 decision that was based on an unreasonable determination of the facts in light of the evidence 8 presented in the State court proceeding. Federal habeas relief is denied on this claim. 9 D. Certificate of Appealability 10 The federal rules governing habeas cases brought by state prisoners require a district court 11 that issues an order denying a habeas petition to either grant or deny therein a certificate of 12 appealability. See Rules Governing § 2254 Case, Rule 11(a). 13 A judge shall grant a certificate of appealability “only if the applicant has made a 14 substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the 15 certificate must indicate which issues satisfy this standard. Id. § 2253(c)(3). “Where a district 16 court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) 17 is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district 18 court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 19 473, 484 (2000). 20 Here, Petitioner has not made such a showing, and, accordingly, a certificate of 21 appealability will be denied. 22 IV. CONCLUSION 23 In accordance with Habeas Rule 2(a) and Rule 25(d)(1) of the Federal Rules of Civil 24 Procedure, the Clerk of the Court is directed to substitute Warden Tracy Johnson as respondent 25 because she is Petitioner’s current custodian. For the reasons stated above, the petition for a writ 26 of habeas corpus is DENIED, and a certificate of appealability is DENIED. 27 / / / 1 The Clerk shall enter judgment in favor of Respondent and close the file. 2 IT IS SO ORDERED. 3 || Dated: July 27, 2023 . 4

JON S. TIGA

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