UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT APR 202018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS LORENZO MICQUELL LATIMER, No. 17-56447

Petitioner-Appellant, D.C. No. 2:14-cv-08434-DSF-KK Central District of California, V. Los Angeles

JEFF MAC OMBER, Warden,

Respondent-Appellee.

Before: McKEOWN and N.R. SMITH, Circuit Judges.

The motion for reconsideration (Docket Entry No. 12) is denied. See 9th

Cir. R. 27-10.

No further filings will be entertained in this closed case. Case: 17-56447, 03/16/2018, ID: 10801549, DktEntry: 11, Page 1 of 1

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT MAR 162018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS LORENZO MICQUELL LATIMER, No. 17-56447

Petitioner-Appellant, D.C. No. 2:14-cv-08434-DSF-KK Central District of California, Los Angeles

JEFF MACOMBER, Warden,

Respondent-Appellee.

Before: CANBY and SILVERMAN, Circuit Judges.

Appellant's opening briefs (Docket Entry Nos. 5 & 7) are construed as a request for a certificate of appealability. So construed, the request is denied because appellant has not made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537

U.S. 322, 327 (2003).

Any pending motions are denied as moot.

DENIED. 1

1 JS-6 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 LORENZO MICQUELL LATIMER, Case No. CV.14-8434-DSF (KK) 11 Petitioner, 12 V. JUDGMENT 13 MACOMBER, 14 Respondent. 15 16 17 Pursuant to the Order Accepting Findings and Recommendation of United 18 States Magistrate Judge, 19 IT IS HEREBY ADJUDGED that the Petition is DENTED and this action is 20 DISMISSED with prejudice.

21 Sr 10 22 Dated 9/5/17 HONORABLE DALE S. FISCHER 23 United States District Judge 24 25 26 27 28 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 LORENZO MICQUELL LATIMER, Case No. CV 14-8434-DSF (KK) 11 Petitioner, 12 V. REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE 13 WARDEN MACOMBER, JUDGE 14 Respondent. 15 16 17 This Report and Recommendation is submitted to United States District 18 Judge Dale S. Fischer, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the 19 United States District Court for the Central District of California. 20 I. 21 SUMMARY OF RECOMMENDATION 22 Petitioner Lorenzo Micquell Latimer ("Petitioner") has filed a pro se 23 Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254, 24 challenging his 2011 state convictions for attempted murder; aggravated mayhem; 25 corporal injury to his child's parent; arson; and driving a vehicle without the 26 owner's consent. Petitioner asserts claims of prosecutorial misconduct and 27 ineffective assistance of counsel. Because Petitioner's claims fail on their merits, 28 the Court recommends denying the Petition. II. 2 SUMMARY OF FACTS AND PROCEEDINGS 3 A. STATE TRIAL COURT PROCEEDINGS 4 On April 24,2009, an information was filed in Los Angeles County Superior 5 Court charging Petitioner with corporal injury to his child's parent; mayhem; arson 6 of property of another; driving a vehicle without the owner's consent; and 7 misdemeanor hit-and-run. 1 CT at 3537•1 The information further alleged . 8 Petitioner previously suffered a conviction in the state of Utah that qualified as a 9 strike prior under California's Three Strike Law. Id. at 38. 10 11 1 The Court's citations to Lodged Documents refer to documents lodged in 12 support of Respondent's February 2 2015 Motion to Dismiss, see ECF Docket No. ("I3kt. ') 18, and December 10, 201g Answer, see Dkt. 36. The Court does not refer to Lodged Documents A and B, which contain only excerpts of the Clerk's 13 Transcript trom Petitioner's trial as 'Lodged Document Opontams the entire Clerk's Transcript. Respondent identifies the documents in Dkts. 18 and 36, as 14 follows: 15 Appellant's Opening Brief in California Court of Appeal 16 Respondent's Brief in California Court of Appeal Appellant's Reply Brief in California Court of Appeal 17 California Court of Appeal opinion on direct appeal 18 Petition for Review in California Supreme Court 19 California Supreme Court order denying review Habeas Corpus Petition in the Los Angeles County Superior Court 20 Los Angeles County Superior Court order denying habeas relief 21 Habeas Corpus Petition in the California Court of Appeal 22 California Court of Appeal order denying habeas relief Habeas Corpus Petition in the California Supreme Court 23 California Supreme Court order denying habeas relief 24 0. Clerk's Transcript in Los Angeles County Superior Court case number KA085849 ("CT") 25 P. Augmented Clerk's Transcript in Los Angeles County Superior Court 26 case number KA085849 ("Aug. CT") Q Reporter's Transcript in Los Angeles County Superior Court case 27 numberKA085849("RT") R. Supplemental Reporter's Transcript in Los Angeles County Superior 28 Court case number KA085849 ("Supp. RT") 2 At a hearing on May 12, 2009, the prosecution stated for the record that 2 Petitioner had rejected a plea offer of twenty-two years in state prison in exchange 3 for Petitioner's guilty plea to one count of corporal injury to his child's parent, one 4 count of mayhem, "and some special allegations" (the "first plea offer"). 2 RT at 5 A-4-A-5. The trial court warned Petitioner that future plea offers would be for a 6 longer prison term. EL at A-5-A-6. 7 On September 25, 2009, an amended information was filed charging 8 Petitioner with corporal injury to his child's parent; mayhem; arson of property of 9 another; driving a vehicle without the owner's consent; misdemeanor hit-and-run; 10 attempted willful, deliberate, and premeditated murder; and aggravated mayhem. 1 11 CT at 6366.2 The amended information did not allege a prior strike conviction. 12 See id. at 67-68. 13 At a hearing onJuly 14, 2010, the prosecutor informed the trial court that in

14 February 2010 - after the information had been amended deleting the prior strike

15 allegation - Petitioner had been offered, but had not accepted, a plea offer of a 16 seventeen to eighteen-year prison term in exchange for Petitioner's guilty plea to 17 all the charges in the amended information except for attempted murder and 18 aggravated mayhem. EL at F-18-F-19. 19 On March 10, 2011, Petitioner rejected a plea offer of a twenty-years-and- 20 two-months prison term in exchange for Petitioner's guilty plea to the amended 21 information. 2 CT at 191. 22 On March 30, 2011, following a jury trial in the Los Angeles County Superior 23 Court, Petitioner was convicted of corporal injury to his child's parent in violation 24 of section 273.5(a) of the California Penal Code; arson of the property of another in 25 violation of section 451(d) of the California Penal Code; driving a vehicle without 26 27 2 On July 14, 2010 the trial court granted the prosecutor's request to dismiss the charge ot mayhem, leaving in place the charge of aggravated mayhem. 2 CT at 28 173. 3 1 the owner's consent in violation of section 10851(a) of the California Penal Code; 2 attempted murder in violation of sections 187 and 664 of the California Penal Code; 3 and aggravated mayhem in violation of section 205 of the California Penal Code. 2 4 CT at 252-57, 267-69, 3283 330. The jury also found true allegations that in the 5 commission of the corporal injury, Petitioner personally inflicted great bodily injury 6 within the meaning of section 12022.7(e) of the California Penal Code; Petitioner 7 committed the attempted murder willfully, deliberately, and with premeditation 8 within the meaning of section 664(a) of the California Penal Code; and in the 9 commission of the corporal injury, attempted murder, and aggravated mayhem, 10 Petitioner personally used a deadly and dangerous weapon within the meaning of 11 section 12022(b)(1) of the California Penal Code. 2 CT at 252-57. In a bifurcated 12 proceeding, the jury found Petitioner was sane at the time he committed the 13 offenses. Id. at 283-88, 290-91. 14 On April 11, 2011, the trial court sentenced Petitioner to a state prison term 15 of life with the possibility of parole plus ten years and eight months, in addition to a 16 consecutive county jail term of 180 days. Id. at 323-29. 17 B. STATE COURT POST-CONVICTION PROCEEDINGS 18 Petitioner appealed his conviction to the California Court of Appeal. Id. at 19 332; Lodg. C. On January 23, 2013, the California Court of Appeal affirmed 20 Petitioner's conviction in a reasoned decision. Lodg. F. 21 Petitioner then filed a petition for review in the California Supreme Court. 22 Lodg. G. On April 17, 2013, the California Supreme Court denied review. Lodg. 23 H. 24 On May 4, 2014, Petitioner filed a habeas corpus petition in the Los Angeles 25 County Superior Court. Lodg. I. On June 26,2014, the Los Angeles County 26 Superior Court denied relief. Lodg. J. 27 28 ru On June 30, 2014, Petitioner filed a habeas corpus petition in the California 2 Court of Appeal. Lodg. K. On July 29, 2014, the California Court of Appeal 3 denied relief. Lodg. L. 4 On July 14, 2014, Petitioner filed a habeas corpus petition in the California 5 Supreme Court. Lodg. M. On October 1, 2014, the California Supreme Court 6 denied relief. Lodg. N. 7 C. FEDERAL HABEAS PETITION 8 On October 24, 2014, Petitioner constructively fl1ed3 his Petition in this 9 Court challenging his 2011 conviction. Dkt. 1. 10 On February 2, 2015, Respondent filed a Motion to Dismiss, arguing Claim 11 One was unexhausted to the extent it was based on anything other than the Fifth 12 and Fourteenth Amendments of the United States Constitution. Dkt. 17 at 5-8. 13 On September 11, 2015, the previously assigned United States Magistrate Judge4 14 issued a Report and Recommendation that the Petition be dismissed without 15 prejudice unless Petitioner withdrew the unexhausted portions of Claim One or 16 requested the action be held in abeyance pending exhaustion of his claim. Dkt. 27 17 at 5-10.5 0n September 28, 2015, Petitioner filed a notice of withdrawal of the 18 unexhausted portions of Claim One. Dkt. 29. 19 On December 10, 2015, Respondent filed an Answer. Dkt. 35. On January 8, 20 2016, Petitioner filed a Response to the Answer. Dkt. 37. This matter thus stands 21 submitted and ready for decision. 22 I/I 23 Under the "mailbox rule," when a pro se prisoner gives prison authorities a 24 pleading to mail to court, the court deems the )leading constructively filed" on the date it is signed. Roberts v. Marshall, 627 F .3d 768, 770 n.1 (9th Lir. 2010) 25 (citation omitted). 26 On June 6, 2017, this case was reassigned to the undersigned United States Magistrate Judge. Dkt. 49. 27 On October 14, 2015, the District Court issued an Order Accerng the Findings, Conclusions, and Recommendations of the United States a gistrate 28 Judge as set forth in the September 11, 2015 Report and Recommendation. Dkt. 30. 5 1 Ff1 2 PETITIONER'S CLAIMS FOR RE! LEF 3 Petitioner presents the following remaining claims in the Petition: 4 Claim One: The prosecutor violated Petitioner's Fifth and Fourteenth 5 Amendment rights by improperly alleging a strike prior enhancement and 6 adding more serious charges after Petitioner rejected the prosecutor's plea 7 offer; 8 Claim Two: Petitioner's trial counsel was ineffective in her representation of 9 Petitioner with respect to the strike prior allegation. 10 See Dkt. 1at5.6 11 Respondent contends these claims fail on the merits. Dkt. 35 at 8-21. 12 N. 13 STANDARD OF REVIEW 14 Under the Antiterrorism and Effective Death Penalty Act of 1996 15 ("AEDPA"), a federal court may not grant habeas relief on a claim adjudicated on 16 its merits in state court unless the adjudication: 17 resulted in a decision that was contrary to, or involved an 18 unreasonable application of, clearly established Federal law, as 19 determined by the Supreme Court of the United States; or 20 resulted in a decision that was based on an unreasonable 21 determination of the facts in light of the evidence presented in the 22 State court proceeding. 23 28 U.S.C. § 2254(d). 24 "[C]learly established Federal law' for purposes of § 2254(d) (1) includes 25 only 'the holdings, as opposed to the dicta, of th[e] [United States Supreme] 26 27 6 To the extent Petitioner raises new arguments for relief in his Response to the Answer, those arguments are not properly presented. Cacoperdo V. 28 Demosthenes, 37 F.3Td 504 507 (9th clr.1994) ("A Traverse is not the proper pleading to raise additional grounds for relief. '). rol 1 Court's decisions" in existence at the time of the state court adjudication. White

2 v. Woódall, ____ U.S. ____, 134 S. Ct. 1697, 1702, 1706, 188 L. Ed. 2d 698 (2014). 3 However, "circuit court precedent may be 'persuasive' in demonstrating what law 4 is 'clearly established' and whether a state court applied that law unreasonably." 5 Maxwell v. Roe, 628 F.3d 486,494(9th Cir. 2010). 6 Overall, AEDPA presents "a formidable barrier to federal habeas relief for

7 prisoners whose claims have been adjudicated in state court." Burt v. Titlow,

8 U.S. ____, 134 S. Ct. 10, 16, 187 L. Ed. 2d 348 (2013). The federal statute presents

9 "a difficult to meet. . . and highly deferential standard for evaluating state, court 10 rulings, which demands that state-court decisions be given the benefit of the 11 doubt." Cullen v. Pinhoister, 563 U.S. 170, 131 S. Ct. 1388, 1398, 179 L. Ed. 2d 557 12 (2011) (internal citation and quotation marks omitted). On habeas review, AEDPA 13 places the burden on petitioners to show the state court's decision "was so lacking 14 in justification that there was an error well understood and comprehended in 15 existing law beyond any possibility for fairminded disagreement." Harrington v. 16 Richter, 562 U.S. 86, 103, 131 S. Ct. 770,178 L. Ed. 2d 624 (2011). Put another 17 way, a state court determination that a claim lacks merit "precludes federal habeas 18 relief so long as fairminded jurists could disagree" on the correctness of that ruling. 19 Id. at 101. Federal habeas corpus review therefore serves as "a guard against 20 extreme malfunctions in the state criminal justice systems, not a substitute for 21 ordinary error correction through appeal." Id. at 102-03 (internal citation and 22 quotation marks omitted). 23 Where the last state court disposition of a claim is a summary denial, this 24 Court must review the last reasoned state court decision addressing the merits of 25 the claim under AEDPA's deferential standard of review. Maxwell, 628 F.3d at 26 495; see also Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S. Ct. 2590, 115 L. Ed. 27 2d 706 (1991). Here, the California Court of Appeal's July 29, 2014 opinion on 28 habeas review (aee Lodg. L) stands as the last reasoned decision with respect to 7 1 Petitioner's claims and will be reviewed under AEDPA's deferential standard of 2 review for claims "adjudicated on the merits." 28 U.S.C. § 2254(d); Richter, 562 3 U.S. at 99. 4 V. 5 DISCUSSION

6 A. CLAIM ONE - PROSECUTORIAL MISCONDUCT 7 In Claim One, Petitioner argues the prosecutor violated his Fifth and 8 Fourteenth Amendment rights by alleging an erroneous strike prior enhancement 9 in the first plea offer, and adding more serious charges after Petitioner rejected the

10 first plea offer.7 Dkt. 1 at 5-25; Dkt. 1-1 at 1-25; Dkt. 1-2 at 1-6. - 11 State Court Opinion 12 The California Court of Appeal denied Petitioner's claim, finding Petitioner 13 had not cast doubt on the accuracy and reliability of the proceedings and had failed 14 to show a fundamental miscarriage of justice. Lodg. L. 15 Relevant Law 16 "In our system, so long as the prosecutor has probable cause to believe that 17 the accused committed an offense defined by statute, the decision whether or not 18 to prosecute, and what charges to file or bring before a grand jury, generally rests 19 entirely in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S. Ct. 20 663,54 L. Ed. 2d 604 (1978). However, "while an individual certainly may be 21 penalized for violating the law, he just as certainly may not be punished for 22 exercising a protected statutory or constitutional right." United States v. 23 Goodwin, 457 U.S. 368, 372 n.4, 1025. Ct. 2485,73 L. Ed. 2d 74 (1982) 24 ("Goodwin") (quoting Bordenkircher, 434 U.S. at 363). Vindictive prosecution 25 may be established (1) "by producing direct evidence of the prosecutor's punitive 26 27 7 Petitioner alleges he did not suffer a prior strike conviction, thus the prosecution's strike prior allegation was erroneous. See Dkt. 1 at 6. The Court assumes for the purposes of this review that Petitiondid not suffer a prior strike 28 conviction. 8 motivation. . . ," United States v. Jenkins, 504 F.3d 694, 699 (9th Cir. 2007), or (2) 2 "by showing that the circumstances establish a 'reasonable likelihood of 3 vindictiveness,' thus giving rise to a presumption that the Government must in 4 turn rebut." United States v. Kent, 649 F.3d 906, 912-13 (9th Cir. 2011). 5 X Where there is no direct evidence of actual vindictiveness, a criminal 6 conviction may be reversed only if a presumption of vindictiveness is warranted. 7 See Goodwin, 457 U.S. at 380-81. The United States Supreme Court has held that 8 a presumption of vindictiveness arises when, following a conviction, a defendant's 9 exercise of a procedural right causes or threatens a second trial, and the defendant 10 then is exposed to even greater punishment. See Blackledge v. Perry, 417 U.S. 21, 11 94 S. Ct. 2098) 40 L. Ed. 2d 628 (1974); North Carolina v. Pearce, 395 U.S. 711, 89 12 S. Ct. 20723 23 L. Ed. 2d 656 (1969). "But in the 'give-and-take' of plea 13 bargaining, there is no such element of punishment or retaliation so long as the 14 accused is free to accept or reject the prosecution's offer." Bordenkircher, 434 15 U.S. at 363. Thus, the Supreme Court has declined to apply a presumption of 16 vindictiveness where more serious charges are alleged after a defendant rejects a 17 plea offer. Goodwin, 457 U.S. at 381-83; see also United States v. Gallegos-Curiel, 18 681 F.2d 1164, 1167 (9th Cir. 1982). 19 "[I]n the context of pretrial plea negotiations vindictiveness will not be 20 presumed simply from the fact that a more severe charge followed on, or even 21 resulted from, the defendant's exercise of a right." United States v. Gamez- 22 Orduño, 235 F.3d 453, 462 (9th Cir. 2000). During plea negotiations, "prosecutors 23 may threaten additional charges and may carry through on this threat." United 24 States v. Noushfar, 78 F.3d 1442, 1446 (9th Cir. 1996). "[T]he appearance of 25 vindictiveness results only where, as a practical matter, there is a realistic or 26 reasonable likelihood of prosecutorial conduct that would not have occurred but for 27 hostility or a punitive animus towards the defendant because he has exercised his 28 specific legal rights." Gallegos-Curiel, 681 F.2d at 1169 (citation omitted). 3. Analysis 2 Here, Petitioner has not provided any direct evidence of actual prosecutorial 3 vindictiveness, nor do the circumstances give rise to a presumption of 4 vindictiveness. 5 First, Petitioner has not shown any evidence the prosecutor knowingly 6 alleged an erroneous strike allegation. Rather, the only implication from the record 7 is that the prosecutor alleged what she believed to be a valid strike allegation and, 8 upon discovering Petitioner's out of state conviction did not qualify as a strike 9 under California law, amended the information to delete the strike allegation. 10 Further, despite Petitioner's ongoing insistence that he rejected the first plea 11 offer because it required him to admit the erroneous strike, his claim is undermined 12 by the record. Petitioner subsequently rejected plea offers to the amended 13 information that did not allege the strike, including two offers for less time than the 14 first plea offer. 2 RT at F-18-F-19; 2 CT at 191. To the extent Petitioner argues the 15 removal of the erroneous strike prior would have forced the prosecutor to make a 16 plea offer for even less prison time and that Petitioner would have accepted that 17 offer, he has not shown the prosecutor had any intention of offering less prison 18 time. In fact, the record shows the prosecutor intended to keep her plea offers 19 within the twenty-year range. See 1 CT at 160-61; 2 RT at F-13. 20 Second, Petitioner has not shown the prosecutor acted improperly by adding 21 more serious charges after Petitioner rejected the plea offer. Notably, Petitioner 22 does not contest whether there was probable cause for the additional charges. 23 Further, as the record establishes, Petitioner was warned he could face more 24 serious charges if he rejected the first plea offer and the case proceeded toward 25 trial. 1 CT at 154, 155; 2 RT at F-9, F-18. Under these circumstances, it was not 26 improper for the prosecutor to add charges as she prepared the case for trial. See 27 Goodwin, 457 U.S. at 381 ("In the course of preparing a case for trial, the 28 prosecutor may uncover additional information that suggests a basis for further 10 1 prosecution or he simply may come to realize that information possessed by the 2 State has a broader significance. At this stage of the proceedings, the prosecutor's 3 assessment of the proper extent of prosecution may not have crystallized."); see 4 also Gamez-Orduno, 235 F.3d at 463. 5 Therefore, Petitioner has failed to show either actual or a presumption of 6 vindictiveness. See Bordenkircher, 434 U.S. at 363. Hence, the state court's 7 denial of Petitioner's claim was not "contrary to" or an "unreasonable 8 application" of "clearly established federal law." 28 U.S.C. 2254(d). 9 Accordingly, habeas relief is not warranted on Claim One.

10 B. CLAIM TWO - INEFFECTWE ASSISTANCE 11 In Claim Two, Petitioner argues his trial counsel was ineffective for waiving 12 the reading of the information, thereby depriving Petitioner of the opportunity to 13 deny the erroneous strike prior allegation; failing to have the erroneous strike prior 14 allegation dismissed; and denying Petitioner the opportunity to accept a plea offer 15 of eleven years and two months. Dkt. 1 at 5; Dkt. 1-2 at 7-20; Dkt. 1-3 at 1-14. 16 1. State Court Opinion 17 The California Court of Appeal denied Petitioner's claim, explaining 18 "Petitioner fail[ed] to show the existence of an issue with a reasonable potential for 19 success." Lodg. L. 20 2. Relevant Law 21 Under Strickland v. Washington, 466 U.S. 668,104 S. Ct. 2052, 80 L. Ed. 2d 22 674 (1984), ineffective assistance of counsel claims require a petitioner to satisfy a 23 two-prong test: (1) counsel's performance was deficient; and (2) prejudice resulted 24 from the deficient performance. 466 U.S. at 687. To prove deficient performance, 25 a petitioner must show counsel's representation fell below an objective standard of 26 reasonableness. Id. at 687-88. However, establishing counsel's deficient 27 performance does not warrant setting aside the judgment if the error had no effect 28 on the judgment. Id. at 691; see also Seidel v. Merkle, 146 F.3d 750, 757 (9th Cir. 11 1998). Thus, a petitioner must also show prejudice, such that there is a reasonable 2 probability that, but for counsel's unprofessional errors, the result of the 3 proceeding would have been different. Strickland, 466 U.S. at 694. 4 3. Analysis 5 First, Petitioner faults his trial counsel for waiving the reading of the 6 information, which Petitioner alleges prevented him from denying the erroneous 7 prior strike allegation. Dkt. 1-2 at 8; Dkt. 1-3 at 9, 10,14. However, upon waiving 8 reading of the information, Petitioner's counsel informed the trial court Petitioner 9 would enter a plea of not guilty and would "deny any and all special allegations." 2 10 RT at A-2. Hence, the prior strike allegation was denied, and Petitioner has not 11 shown that reading the information for the record would have allowed counsel or 12 Petitioner to more strenuously or effectively deny the allegation.ei 13 Next, Petitioner faults his trial counsel for failing to have the erroneous prior 14 strike allegation dismissed. However, other than insisting he told his counsel on 15 many occasions he believed the strike allegation was in error, Petitioner fails to 16 •show what his trial counsel could, or should, have done to have the strike allegation

.,.. 17 removed earlier. See Moore v. Chróñes, 687 F. Supp. 2d 1005,1034 (C.D. Cal. 18 2010) (holding that without identifying specific favorable research or other 19 preparation counsel should have taken, the petitioner's allegations were merely 20 conclusory and thus petitioner was not entitled to relief); see also Jones v. Gomez,

21 66 F.3d 199, 204-05 (9th Cir. 1995) (holding "conclusory suggestions that. . . trial 22 counsel provided ineffective assistance fall far short of stating a valid claim of 23 constitutional authority"). 24 Petitioner further argues that without the erroneous strike prior allegation, 25 the first plea offer was actually eleven years and two months.8 Dkt. 1-2 at 7. 26 27 8 Petitioner assumes that by deducting the strike prior enhancement included in the prosecution's original plea bifer, he can calculate the prosecution's offer 28 absent the strike allegation. 12 1 Petitioner insists he wanted to accept this offer, but could not do so because his 2 trial counsel failed to have the strike allegation removed and failed to inform the 3 court that Petitioner wished to accept the plea offer. Dkt. 1-2 at 19; Dkt, 1-3 at 5-6, 4 9. However, the prosecution never presented Petitioner with an offer of eleven 5 years and two months. Hence, Petitioner cannot show his trial counsel was 6 ineffective in any respect regarding this non-existent offer. 7 Finally, even if Petitioner could show his trial counsel should have acted 8 differently with respect to the strike prior allegation, he cannot show that any of the 9 alleged errors by counsel resulted in prejudice. Ultimately, Petitioner rejected plea 10 agreements which (1) omitted the prior strike allegation, and (2) offered less time 11 than the first plea offer. It is, therefore, unclear what prejudice Petitioner could 12 allege under these circumstances. 13 Hence, the state court's denial of Petitioner's ineffective assistance of 14 counsel claim was not "contrary to" or an "unreasonable application" of "clearly 15 established federal law." 28 U.S.C. § 2254(d). Accordingly, habeas relief is not 16 warranted on claim Two. 17 C. PETITIONER IS NOT ENTITLED TO AN EVIDENTIARY 18 19 Petitioner urges this Court to conduct an evidentiary hearing into his claims. 20 Response at 3, 6, 18, 20. An evidentiary hearing is not warranted where, as here, 21 "the record refutes the applicant's factual allegations or otherwise precludes 22 habeas relief." Schrirro v. Landrigan, 550 U.S. 465, 474, 1275. Ct. 1933, 167 L. Ed. 23 2d 836 (2007). As such, Petitioner's request for an evidentiary hearing should be 24 denied. 25 I/I 26 I/I 27 I/I 28 I/I 13 1 VI. 2 RECOMMENDATION 3 IT IS THEREFORE RECOMMENDED that the District Court issue an 4 Order: (1) accepting this Report and Recommendation; (2) denying the Petition; 5 and (3) dismissing this action with prejudice. 6

7 Dated: July 26, 2017 HONORABLE KENLY K1YA KATO 8 United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 Additional material from this filing is available in the Clerk's Office.