1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PETER PATRICK LAFORTE, Case No.: 22-cv-69-MMA (NLS) Petitioner, 12 ORDER DENYING FIRST v. 13 AMENDED PETITION FOR A WRIT R. GODWIN, Warden, et al., OF HABEAS CORPUS AND 14 Respondents. DENYING CERTIFICATE OF 15 APPEALABILITY 16 17 Peter Patrick LaForte (“Petitioner”) is a state prisoner proceeding pro se with a 18 First Amended Petition for a Writ of Habeas Corpus filed under

. Doc. 19 No. 4. Petitioner challenges his 2018 guilty plea and conviction in San Diego Superior 20 Court case number SCD276593 for assault with a deadly weapon with a great bodily 21 injury enhancement and admissions to priors, along with his resultant stipulated ten years 22 and 4 months sentence for the instant offense and for an offense in a separate case. Id.; 23 see also Doc. No. 16-16 at 25–26. 24 Petitioner raises three claims of federal error, alleging (1) the trial court interfered 25 with his right to conflict-free counsel by incorrectly outlining his options and 26 discouraging consultation with new counsel, (2) the trial court erred in permitting him to 27 proceed to sentencing with an attorney who had a conflict of interest, and (3) trial counsel 28 rendered ineffective assistance in advising Petitioner concerning his plea and by agreeing 1 with the trial court’s incorrect statements about the consequences of consulting with new 2 counsel. Doc. No. 4-4 at 6–7; see also Doc. Nos. 4-3 at 2, 4-4 at 2, 5–7. 3 Respondent has filed an Answer and lodged the trial record. Doc. Nos. 15, 16. 4 Respondent maintains habeas relief is unavailable because the state court rejection of 5 each of Petitioner’s three claims was reasonable. Doc. No. 15 at 2. In his separately- 6 filed Response and Reply to the Answer, Petitioner denies Respondent’s assertion the 7 state court reasonably rejected his claims. Doc. Nos. 21, 22. 8 I. FACTUAL BACKGROUND 9 The following is taken from the state appellate court opinion affirming the 10 judgment in People v. LaForte, D075609 (Cal. Ct. App. March 3, 2020). See Doc. No. 11 16-1, Lodgment No. 1. The state court factual findings are presumptively correct and 12 entitled to deference in these proceedings. See Sumner v. Mata,

, 545–47 13 (1981). 14 A

15 According to the probation report, LaForte entered a retail store and attempted 16 to conceal a bottle of vodka under his clothing. A store employee witnessed the attempted concealment and confronted LaForte. LaForte removed the 17 bottle from under his clothing and struck the employee with it, causing him to 18 suffer a laceration.

19 LaForte was charged by information with one count of assault with a deadly 20 weapon or force likely to produce great bodily injury. (§ 245, subd. (a)(1).) The information alleged LaForte used a dangerous or deadly weapon (§ 21 1192.7, subd. (c)(23)), and inflicted great bodily injury on the victim (id., 22 subd. (c)(8), § 12022.7, subd. (a)). It further alleged he suffered three prior prison terms (§ 667.5, subd. (b)), one prior serious felony conviction (§§ 667, 23 subd. (a)(1), 668, 1192.7, subd. (c)), and one prior strike conviction (§§ 667, 24 subds. (b)–(i), 668, 1170.12).

25 LaForte pleaded guilty to the charged offense, admitted he inflicted great 26 bodily injury on the victim, and admitted he suffered the prior serious felony conviction and the prior strike conviction. In exchange, the remaining 27 allegations were dismissed. The plea contained a stipulated sentence of nine 28 1 years, plus 16 months for an offense in a separate case, for an aggregate term of 10 years four months. 2 B 3 At the outset of the sentencing hearing, LaForte’s retained counsel informed 4 the court he “made a mistake” while advising LaForte about the plea. He 5 stated he previously believed—and advised LaForte—the offense to which LaForte pleaded guilty was a serious felony. (§ 1192.7, subd. (c).) But, based 6 on LaForte’s admission that he inflicted great bodily injury on the victim, the 7 offense was a violent felony. (§ 667.5, subd. (c)(8).) According to LaForte’s counsel, LaForte was “adamant” he would not plead guilty to a violent felony. 8 Based on the mistake, LaForte’s counsel asked the court to appoint new 9 counsel to file a motion to withdraw the plea on LaForte’s behalf.

10 The court initially granted the request and informed the parties it would 11 appoint a public defender. However, it then advised LaForte it wanted him to “know the risks” of a plea withdrawal. It advised him his potential exposure 12 would be greater than nine years—upwards of 20 years—if he were to “get() 13 his wish and … withdraw his plea ….” Further, it stated the prosecution was eager to prove the great bodily injury allegation and may be unwilling to 14 negotiate a new deal if he were to withdraw his plea. LaForte replied, “I’ll 15 take the ten years. I’ll take the ten years, four months.”

16 The court did not immediately proceed to sentencing and instead responded: 17 “I want you to talk to your lawyer for a few minutes and make sure it’s what you want to do. If it’s what you want to do, that is fine.... (¶) … (¶) (T)here 18 is a lot on the line here for you. And I don’t know what you want to do, sir, 19 that is why I suggest you talk to your lawyer for a few minutes, see how you want to go forward. (¶) If you want me to appoint (a) public defender and 20 look at withdrawing this plea, I will do that. If you want to do that, we will 21 set the date for some time next week. If you don’t want to do that and you want to go forward with the sentencing, tell your lawyer and we can do that 22 too.” 23 LaForte’s counsel then stated he was uncomfortable with his continued 24 representation of LaForte. He proposed the court schedule the hearing to 25 appoint new counsel and, in the interim, he would consult with LaForte about his litigation options. The court agreed to put the matter over, as counsel 26 requested, but LaForte interjected as follows: “(T)he things (counsel has) said 27 to me have been incorrect, okay…. (¶) … (¶) I just want—I want—Let’s finish this today, okay. (¶) … (¶) I mean, why don’t I just say I’m going to 28 1 get sentenced today? Why can’t I just get sentenced today where this is over, okay? You said what you said, I agree what you’re saying. Let me get the 2 ten years, four months. Let’s—done. We’re done. Then we’re done. I 3 mean—I mean, we can be done. (¶) Why bring it back next week? I’m saying—you know what I mean…. I said no, I don’t want to discuss it, I’m 4 ready. I’ll take ten years four months.” 5 The court adjourned proceedings to permit LaForte and his counsel to confer. 6 According to LaForte’s counsel, he advised his client during the adjournment 7 that it was in his interests to withdraw the plea, but LaForte insisted he “was going to go forward against (counsel’s) advice.” After the hearing resumed, 8 the court asked LaForte and his counsel if they were prepared to proceed with 9 sentencing and both answered in the affirmative. The court then sentenced LaForte to nine years in prison for the charged offense, plus 16 months for the 10 separate offense not at issue in this appeal. 11 C 12

13 After sentencing, LaForte’s counsel filed a motion to be relieved as counsel and for appointment of a public defender. The motion stated that LaForte 14 claimed ineffective assistance of counsel based on his counsel’s misadvice 15 and, therefore, a conflict in representation existed. It stated, “continu(ed) attempts (were) being made by (trial) counsel to try to assist (LaForte)” and, 16 in fact, counsel had twice attempted to “bring him into court” to “make a 17 knowing and intelligent decision as to his plea ….” It further stated LaForte “need(ed) to have … new counsel advise him what to do because he (was) not 18 listening to (his counsel) even though (his counsel was) trying to help him.” 19 At the hearing on the motion to withdraw as counsel and appoint a public 20 defender, the court stated it was not inclined to relieve counsel, but it would 21 “appoint public defenders,” presumably as co-counsel. LaForte interjected: “I didn’t ask to get this court date, okay? He did it, okay? He did it. I’m 22 done. I’m sentenced. It’s over. He’s the one doing all this right now. (¶) … 23 (¶) For whatever reason, he wants to get a public defender to try to clean up his mess—whatever. I don’t know. I don’t know why he’s doing it. But I 24 didn’t ask for this court date, and we’re done. I’m sentenced." 25 The court asked LaForte whether he was trying to withdraw his plea and he 26 stated, “(n)o.” It then asked him whether he was trying to modify his sentence 27 and he stated, “(n)o.” Finally, it asked him whether he wanted the court to calendar a hearing to address a motion to withdraw the plea and he stated, 28 1 “(n)o.” Following this colloquy, the court denied the pending motion to appoint a public defender. 2

3 Doc. No. 16-1 at 3–6. 4 II. PROCEDURAL HISTORY 5 On January 24, 2019, Petitioner was sentenced to ten years and four months in 6 prison. Doc. No. 16-16 at 25–26. Petitioner appealed to the California Court of Appeal, 7 raising Claims One and Two presented here, which the appellate court denied in a 8 reasoned opinion issued on March 3, 2020. Doc. No. 16-1. Petitioner then filed a 9 petition for review in the California Supreme Court raising the same two claims, which 10 on May 27, 2020, the state supreme court denied in an order which stated in full: “The 11 petition for review is denied.” Doc. Nos. 16-2, 16-3. Petitioner thereafter raised Claims 12 One and Two in three separate habeas petitions in the San Diego County Superior Court, 13 see Doc. Nos. 16-4, 16-5, 16-6, which on June 2, 2021, the superior court denied together 14 on procedural grounds, noting the claims were identical to those raised on appeal and did 15 not warrant reconsideration. Doc. No. 16-8. On July 26, 2021, the superior court 16 summarily denied a fourth habeas petition again raising the same two claims, again 17 noting the claims had been previously raised and rejected on appeal. Doc. No. 16-9. 18 Petitioner thereafter filed both a habeas petition in the California Court of Appeal raising 19 Claim One as well as a separate appeal of the superior court denial. Doc. Nos. 16-10, 16- 20 11. On August 20, 2021, the appellate court denied the habeas petition, finding it “barred 21 as repetitive,” and on August 24, 2021, dismissed the appeal for lack of jurisdiction. 22 Doc. Nos. 16-12, 16-13. Petitioner thereafter filed a habeas petition in the California 23 Supreme Court, raising only Claim Three presented here. Doc. No. 16-14. On 24 November 17, 2021, the state supreme court summarily denied the habeas petition. Doc. 25 No. 16-15. 26 27 28 1 On January 6, 2022, Petitioner constructively filed his First Amended Petition 2 (“FAP”), the operative pleading in this action. Doc. No. 4 at 11.1 On April 21, 2022, 3 Respondent filed an Answer and lodged the state court record. Doc. Nos. 15, 16. On 4 May 3, 2022, Petitioner constructively filed a Response to the Answer and on June 3, 5 2022, Petitioner constructively filed a Reply to the Answer, see Doc. Nos. 21, 22, which 6 the Court will consider together as Petitioner’s Traverse. 7 III. PETITIONER’S CLAIMS 8 (1) The trial court’s interfered with Petitioner’s right to conflict-fee counsel by 9 incorrectly outlining Petitioner’s options and inappropriately discouraging Petitioner 10 from consulting with new counsel. Doc. No. 4 at 6; Doc. No. 4-3 at 2–11. 11 (2) The trial court’s error in permitting Petitioner to proceed to sentencing with an 12 attorney who had a conflict of interest without obtaining a waiver of the conflict violated 13 Petitioner’s right to conflict-free counsel. Doc. No. 4 at 7; Doc No. 4-4 at 2–5. 14 (3) Trial counsel rendered ineffective assistance in advising Petitioner concerning 15 his plea and by agreeing with the trial court’s incorrect statements about the 16 consequences of consulting with new counsel. Doc. No. 4-4 at 5–7. 17 IV. DISCUSSION 18 A. Standard of Review 19 A state prisoner is not entitled to federal habeas relief on a claim that the state 20 21 1 While the FAP is filed-stamped January 24, 2022, the constructive filing date is January 1, 2022, the 22 date Petitioner handed it to correctional officers for mailing to the Court. Doc. No. 4 at 1, 11; Huizar v. Carey,

(9th Cir. 2001) (“Under the ‘prison mailbox rule’ of Houston v. Lack, 487

(1988), a prisoner’s federal habeas petition is deemed filed when he hands it over to prison authorities for mailing to the district court.”) On January 11, 2022, Petitioner constructively filed the 24 initial federal Petition, which was filed stamped January 18, 2022. See Doc. No. 1 at 1, 7. Petitioner has 25 since filed two requests to withdraw or disregard the FAP and proceed with the “original” petition. See Doc. Nos. 11, 12. Yet, while the FAP was the earlier signed and appears to the Court to be the 26 “original” Petition, the FAP was received and filed stamped after the initial Petition and was thus labeled the FAP. Because Petitioner indicates his intention to proceed with the earlier signed petition, 27 see e.g. Doc. No. 11 at 1, which again is the FAP, and because Petitioner himself acknowledges the two petitions are “identical,” see Doc. No. 12 at 1, the Court will proceed to consider the FAP as the 28 1 court adjudicated on the merits unless the state court adjudication: “(1) resulted in a 2 decision that was contrary to, or involved an unreasonable application of, clearly 3 established Federal law, as determined by the Supreme Court of the United States,” or 4 “(2) resulted in a decision that was based on an unreasonable determination of the facts in 5 light of the evidence presented in the State court proceeding.” Harrington v. Richter, 562

, 97–98 (2011) (quoting

(d)(1)–(2)). 7 A decision is “contrary to” clearly established law if “the state court arrives at a 8 conclusion opposite to that reached by [the Supreme] Court on a question of law or if the 9 state court decides a case differently than [the Supreme] Court has on a set of materially 10 indistinguishable facts.” Williams v. Taylor,

(2000). A decision 11 involves an “unreasonable application” of clearly established federal law if “the state 12 court identifies the correct governing legal principle . . . but unreasonably applies that 13 principle to the facts of the prisoner’s case.” Id.; Bruce v. Terhune,

, 953 14 (9th Cir. 2004). With respect to section 2254(d)(2), “[t]he question under AEDPA is not 15 whether a federal court believes the state court’s determination was incorrect but whether 16 that determination was unreasonable–a substantially higher threshold.” Schriro v. 17 Landrigan,

(2007) (citing Williams,

). “State-court 18 factual findings, moreover, are presumed correct; the petitioner has the burden of 19 rebutting the presumption by ‘clear and convincing evidence.’” Rice v. Collins,

, 338–39 (2006) (quoting

(e)(1)). 21 “A state court’s determination that a claim lacks merit precludes federal habeas 22 relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s 23 decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado,

, 664 24 (2004)). “If this standard is difficult to meet, that is because it was meant to be. As 25 amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court 26 relitigation of claims already rejected in state proceedings. . . . It preserves authority to 27 issue the writ in cases where there is no possibility fairminded jurists could disagree that 28 the state court’s decision conflicts with [the Supreme] Court’s precedents.” Richter, 562 1 U.S. at 102. 2 In a federal habeas action, “[t]he petitioner carries the burden of proof.” Cullen v. 3 Pinholster,

, 181 (2011) (citing Woodford v. Visciotti,

, 25 4 (2002) (per curiam)). However, “[p]risoner pro se pleadings are given the benefit of 5 liberal construction.” Porter v. Ollison,

(9th Cir. 2010) (citing 6 Erickson v. Pardus,

(2007) (per curiam)). 7 B. Merits 8 1. Claim One 9 Petitioner first contends the trial court interfered with his right to conflict-free 10 counsel by incorrectly outlining Petitioner’s options and improperly discouraging 11 Petitioner from consulting with new counsel. Doc. No. 4 at 6; Doc. No. 4-3 at 2–11. 12 Respondent maintains the state court’s rejection of Claim One was reasonable. Doc. No. 13 15-1 at 12–13. 14 Petitioner presented Claim One to the California Supreme Court in his petition for 15 review, which the state supreme court denied without a statement of reasoning or citation 16 to authority. See Doc. Nos. 16-2, 16-3. Petitioner had previously presented Claim One to 17 the California Court of Appeal, which the state appellate court denied on the merits in a 18 reasoned opinion. See Doc. No. 16-1. 19 The Supreme Court has repeatedly stated a presumption exists “[w]here there has 20 been one reasoned state judgment rejecting a federal claim, later unexplained orders 21 upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst v. 22 Nunnemaker,

(1991); see also Wilson v. Sellers,

, 138

, 1193 (2018) (“We conclude that federal habeas law employs a ‘look through’ 24 presumption.”) Given the lack of any argument or grounds in the record to rebut this 25 presumption, the Court will “look through” the California Supreme Court’s silent denial 26 to the reasoned opinion issued by the state appellate court on Claim One. See Ylst, 501 27 U.S. at 804 (“The essence of unexplained orders is that they say nothing. We think that a 28 presumption which gives them no effect- which simply ‘looks through’ them to the last 1 reasoned decision- most nearly reflects the role they are ordinarily intended to play.”) 2 (footnote omitted). 3 While Petitioner also later raised Claim One in various habeas petitions and/or 4 appeals in both the state superior and appellate courts, the grounds cited in those denials 5 barring the claim as repetitive, having been previously raised and rejected on appeal, or 6 for lack of jurisdiction, do not impact the availability of federal review because the claim 7 was addressed on the merits on direct review. See Doc. Nos. 16-8, 16-9, 16-12, 16-13; 8 see Ylst,

n.3 (“Since a later state decision based upon ineligibility for 9 further state review neither rests upon procedural default nor lifts a pre-existing 10 procedural default, its effect upon the availability of federal habeas is nil - which is 11 precisely the effect accorded by the ‘look-through’ presumption.”) 12 The state appellate court rejected Claim One in a reasoned decision as follows: 13 On appeal, LaForte contends his counsel’s erroneous advice regarding the plea created a conflict of interest between him and his counsel. He claims the 14 error resulted in a conflict of interest because any plea withdrawal motion he 15 might have filed in the trial court would have required him to argue he relied on his counsel’s flawed advice. This, in turn, would have required counsel to 16 admit he rendered ineffective assistance, which LaForte describes as an 17 obvious conflict of interest between attorney and client.

18 “‘A criminal defendant is guaranteed the right to the assistance of counsel by 19 the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. This constitutional right includes the 20 correlative right to representation free from any conflict of interest that 21 undermines counsel’s loyalty to his or her client.’” (People v. Rices (2017)

.) “‘As a general proposition, such conflicts “embrace all 22 situations in which an attorney’s loyalty to, or efforts on behalf of, a client are 23 threatened by his responsibilities to another client or a third person or his own interests.”’” (People v. Doolin (2009)

(Doolin).) The 24 guaranty of conflict-free counsel “protects the defendant who retains his own 25 counsel to the same degree and in the same manner as it protects the defendant for whom counsel is appointed, and recognizes no distinction between the 26 two.” (People v. Bonin (1989)

(Bonin).) 27 28 1 In view of the alleged conflict of interest between LaForte and his counsel, LaForte contends the trial court’s statements to him during the sentencing 2 hearing “inaccurately,” “misleadingly,” and “intimidatingly” discouraged him 3 from consulting with conflict-free counsel. We conclude there is no merit to this argument because the court did not discourage him from consulting 4 conflict-free counsel. Quite the opposite, it stated it would “appoint (a) public 5 defender to (the) matter” and “put (the case) on for appointment of (a) public defender”—exactly the relief that was requested. Even after LaForte stated 6 he wished to be sentenced, the court commented: “If you want me to appoint 7 (a) public defender and look at withdrawing this plea, I will do that. If you want to do that, we will set the date for some time next week. If you don’t 8 want to do that and you want to go forward with the sentencing, tell your 9 lawyer and we can do that too.”

10 As noted, the court advised LaForte of the risks he may face if he were to 11 withdraw his plea, which was the ostensible next step if LaForte were to seek and obtain new counsel. However, it at no time suggested these risks would 12 arise merely if LaForte were to consult with, or seek appointment of, new 13 counsel. Rather, it stated only that the risks would arise if LaForte were to withdraw his plea. These statements were accurate and did not discourage 14 LaForte from consulting conflict-free counsel. (People v. Woodruff (2018) 5

, 735 (court did not discourage counsel from applying for co- counsel where court stated it would “‘consider anything (counsel) wish(ed) to 16 bring to (its) attention’”); People v. Lewis and Oliver (2006)

, 17 1002 (court did not “induce” defendant to withdraw self-representation motion by having a “serious” conversation with him and his counsel about the 18 risks of self-representation). 19 20 Doc. No. 16-1 at 6–8. 21 “Where a constitutional right to counsel exists, [the Supreme Court’s] Sixth 22 Amendment cases hold that there is a correlative right to representation that is free from 23 conflicts of interest.” Wood v. Georgia,

(1981) (citing Cuyler v. 24 Sullivan,

(1980) and Holloway v. Arkansas,

(1978)); see 25 also Garcia v. Bunnell,

(9th Cir. 1994) (“The Sixth Amendment’s 26 right to counsel requires effective assistance by an attorney, which has two components: 27 competence and conflict-free representation.”) (citing Wood,

). In 28 situations where a trial court knows or reasonably should know of the existence of a 1 conflict of interest, inquiry into the matter is warranted. Sullivan,

; see 2 also Wood,

and n. 18. 3 Again, at the outset of Petitioner’s scheduled sentencing hearing defense counsel 4 indeed indicated he “made a mistake” with the plea that had been entered and specified: 5 “I was not aware that the way the plea was structured caused it to be a violent felony as 6 opposed to a serious felony,” noted Petitioner “was adamant, and I was also in agreement 7 that I would not plead him to a violent felony” and stated as a result: “I think he needs to 8 have a court-appointed lawyer attempt to set aside his plea.” Doc. No. 4-5 at 9–10. 9 Defense counsel agreed Petitioner was “requesting a motion to withdraw his plea” but 10 stated: “I don’t think I can be the one who does it.” Id. at 10. To this, the trial court 11 stated: “So we’re going to have to appoint public defender to this matter to review it.” Id. 12 The trial court then advised Petitioner: “So Mr. La Forte understands that if he wishes -- 13 if he gets his wish and gets to withdraw his plea, he can be looking at substantially more 14 time.” Id. at 11. The trial court further explained: “So if you get your wish and you get 15 to withdraw your plea, what you’re looking at . . . is 20 years” and warned Petitioner if 16 the plea was withdrawn, the prosecutor might choose not to negotiate and go to trial 17 instead. Id. at 11–12. The trial court then stated: “So Mr. La Forte, that is why I’m 18 putting this on the record because sometimes you don’t understand what is at stake. I 19 want you to talk to your lawyer for a few minutes and make sure it’s what you want to 20 do. If it’s what you want to do, that is fine. You may get that allegation stricken. You 21 may get nine years some other way, I don’t know. [¶] But I want you to know the risks 22 today because I don’t want you to tell me later, ‘Please, Judge, give me back my ten years 23 because I didn’t know all of this could happen.’” Id. at 12–13. 24 After discussing the parameters of Petitioner’s plea and the previously agreed upon 25 sentence that went with the plea, the trial court stated: 26 So that is why, Mr. La Forte, there is a lot on the line here for you. And I 27 don’t know what you want to do, Sir, that is why I suggest you talk to your lawyer for a few minutes, see how you want to go forward. [¶] If you want 28 1 If you want to do that, we will set the date for some time next week. If you don’t want to do that and you want to go forward with the sentencing, tell your 2 lawyer and we can do that too. [¶] I just wanted to put on the record what the 3 risks were in this case, in case you didn’t know. 4 Id. at 13–14. When defense counsel suggested Petitioner “[h]ave the Court put the matter 5 over next week, appoint counsel. I can come and see you at the jail and we can go further 6 and talk over and over and over as to --,” Petitioner replied: “I spoke to you and you -- 7 the things you’ve said to me have been incorrect, okay.” Id. at 14. Petitioner then 8 indicated he wanted to “finish this today,” and when the trial court said, “we can’t do 9 that, at this point,” Petitioner then asked, “why don’t I just say I’m going to get sentenced 10 today,” and stated: “You said what you said, I agree what you’re saying. Let me get the 11 ten years, four months” and “[t]hen we’re done.” Id. at 14–15. Defense counsel 12 indicated he was not comfortable with proceeding and the trial court provided counsel 13 and Petitioner a short time to confer and decide whether to proceed. Petitioner again 14 asked if he could get sentenced today, to which the court stated “Maybe” and added: “If 15 you guys all want to do that and everybody waives, we can maybe go forward.” Id. at 16 15–16. After conferring, both Petitioner and counsel indicated readiness to go forward 17 with sentencing. Id. at 16. 18 Petitioner presently contends: “In framing [Petitioner’s] situation, inaccurately, as 19 a choice between being represented by the same attorney or (1) withdrawing his plea, (2) 20 being stuck in a situation where the prosecutor would refuse to accept any other deal, (3) 21 going to trial and being convicted, and (4) being sentenced to the highest possible term 22 and thereby ending up with roughly twice as much prison time as he had agreed to in his 23 plea, the court interfered with [Petitioner’s] right to conflict-free counsel.” Doc. No. 4-3 24 at 5. 25 While the record plainly reflects the trial court repeatedly warned Petitioner 26 withdrawing his plea could have consequences to Petitioner’s ultimate conviction and 27 length of his sentence and mentioned it along with the option to consult with new 28 1 counsel, it is evident the trial court did not at any time state were Petitioner to choose to 2 merely consult with new counsel that his plea would necessarily be withdrawn or would 3 result in a different conviction or potentially longer sentence. Instead, the trial court 4 clearly indicated new counsel could be appointed to “look at” the potential for a plea 5 withdrawal, and that Petitioner was free to choose whether to explore that option or to 6 proceed with sentencing, as follows: “If you want me to appoint public defender and look 7 at withdrawing this plea, I will do that. If you want to do that, we will set the date for 8 some time next week. If you don’t want to do that and you want to go forward with the 9 sentencing, tell your lawyer and we can do that too.” Id. at 13–14 (emphasis added). 10 As such, the Court is not persuaded that “[t]he court’s comments to [Petitioner] 11 about his options prior to sentencing misleadingly and intimidatingly framed what was 12 involved in simply consulting with a lawyer who did not have a conflict of interest” or 13 that “[t]he court conflated the act of conflict-free representation with a worst-case- 14 scenario hypothetical in a way that effectively stepped into the role of advising 15 [Petitioner] and discouraged [Petitioner] from merely obtaining the consultation to which 16 he was entitled.” Doc. No. 4-3 at 8–9. Again, it is apparent the trial court did not 17 “discourage[]” Petitioner from obtaining consultation with conflict-free counsel, as 18 Petitioner was clearly given multiple opportunities to consult with new counsel, which 19 Petitioner repeatedly declined. See, e.g., Doc. No. 4-5 at 10, 13–14. In the end, 20 Petitioner insisted on proceeding to sentencing in accordance with the original plea and 21 with current counsel despite the trial court’s repeated offer to delay sentencing and 22 provide Petitioner a chance to discuss the situation with new counsel and despite current 23 counsel’s similar entreaties to Petitioner. See id. The Court finds no basis for a 24 conclusion the trial court incorrectly outlined Petitioner’s options or improperly 25 discouraged Petitioner from consulting with new counsel and the record instead reflects 26 the trial court, when apprised of the possibility of a conflict, duly conducted an inquiry 27 into the matter. Sullivan,

; see also Wood,

and n.18. In 28 any event, as discussed with respect to Claim Two below, the instant situation presented 1 only a potential conflict of interest given Petitioner ultimately chose to proceed with 2 sentencing in accordance with his original plea and rejected the opportunity to explore 3 the possibility of a plea withdrawal, thereby avoiding any actual conflict. 4 Accordingly, because Petitioner fails to demonstrate the state court adjudication of 5 this claim was either contrary to, or an unreasonable application of clearly established 6 federal law, or that it was based on an unreasonable determination of the facts, habeas 7 relief is not warranted on Claim One. 8 2. Claim Two 9 Next, Petitioner asserts the trial court’s error in permitting Petitioner to proceed to 10 sentencing with an attorney who had a conflict of interest without obtaining a waiver of 11 the conflict violated his right to conflict-free counsel. Doc. No. 4 at 7; Doc No. 4-4 at 2– 12 5. Respondent maintains the state court rejection of Claim Two was reasonable and did 13 not involve an incorrect or unreasonable application of clearly established federal law. 14 Doc. No. 15-1 at 14–17. 15 As he did with Claim One, Petitioner presented Claim Two to the California 16 Supreme Court in his petition for review, which that court denied without a statement of 17 reasoning or citation to authority. See Doc. Nos. 16-2, 16-3. Petitioner also previously 18 presented Claim Two to the California Court of Appeal, which that court denied on the 19 merits in a reasoned opinion. See Doc. No. 16-1. Again, given the lack of any argument 20 or grounds in the record to rebut the presumption that the two decisions rest on the same 21 grounds, the Court will “look through” the California Supreme Court’s silent denial to the 22 reasoned opinion issued by the state appellate court on Claim One. See Ylst,

803-04; see also Wilson, 138 S.Ct. at 1193. As with Claim One, while Petitioner also 24 later raised Claim Two in various habeas petitions and/or appeals in both the state 25 superior and appellate courts, the grounds cited in those denials barring the claim as 26 repetitive, having been previously raised and rejected on appeal, or for lack of 27 jurisdiction, do not impact the availability of federal review because this claim was 28 1 addressed on the merits on direct review. See Doc. Nos. 16-8, 16-9, 16-12, 16-13; see 2 Ylst,

n.3. 3 The state appellate court rejected Claim Two in a reasoned decision as follows: 4 In the alternative, LaForte claims the trial court should have held a hearing regarding the potential conflict of interest between him and his counsel and, 5 if a conflict of interest existed, appointed new counsel or ensured LaForte 6 knowingly, voluntarily, and intelligently waived the conflict. (

47 Cal.3d at pp. 836–837 (“When the trial court knows, or reasonably should 7 know, of the possibility of a conflict of interest on the part of defense counsel, 8 it is required to make inquiry into the matter…. (¶) … (¶) After the trial court has fulfilled its obligation to inquire into the possibility of a conflict 9 of interest and to act in response to what its inquiry discovers, the defendant 10 may choose the course he wishes to take.”).) LaForte contends the court took none of these actions and, therefore, violated his constitutional right to 11 conflict-free counsel. 12 For both state and federal purposes, a defendant seeking to obtain reversal of 13 a judgment on grounds of conflict of interest “must demonstrate that (1) 14 counsel labored under an actual conflict of interest that adversely affected counsel’s performance, and (2) absent counsel’s deficiencies arising from the 15 conflict, it is reasonably probable the result of the proceeding would have been 16 different.” (People v. Mai (2013)

(Mai).) An actual conflict “‘is a conflict of interest that adversely affects counsel’s 17 performance.’” (Doolin, supra,

.) 18 Applying these standards, we conclude the record in the present case discloses 19 no actual conflict of interest. A potential conflict of interest arose when counsel misadvised LaForte regarding the plea, given that LaForte 20 conceivably could have tried to withdraw his plea on grounds of misadvice of 21 counsel and his counsel’s self-interest might have impaired those efforts. (See Christeson v. Roper (2015)

(

) (“(A) 22 ‘significant conflict of interest’ arises when an attorney’s ‘interest in avoiding 23 damage to (his) own reputation’ is at odds with his client’s ‘strongest argument ….’”).) However, this potential conflict of interest never ripened 24 into an actual conflict of interest because LaForte never pursued or expressed 25 a desire to pursue a motion to withdraw his plea. (See Mai, supra,

(defendant’s conflict of interest claim failed because he was “unable 26 to show on the appellate record that any potential conflict of interest actually 27 materialized”).) On the contrary, over his counsel’s advice, he repeatedly and 28 1 fervently disclaimed any intention of seeking to withdraw his plea, both at the sentencing hearing and the hearing on his counsel’s motion to withdraw. 2 3 Further, the record discloses no grounds to conclude any alleged conflict adversely affected counsel’s performance. After LaForte’s counsel realized 4 he misadvised his client, he candidly disclosed the error to the court and 5 requested the appointment of new counsel. After LaForte informed the court he wished to proceed to sentencing, counsel again voiced his discomfort with 6 proceeding and requested the appointment of new counsel. And, while 7 counsel ultimately consented to sentencing, he did so only after conferring with his client, who, according to counsel, stated he “was going to go forward 8 (with sentencing) against (counsel’s) advice.” LaForte’s counsel even filed a 9 postsentencing motion to withdraw as counsel and seek appointment of new counsel, citing alleged ineffective assistance as the grounds for the request. 10 On this record, there is no basis for us to conclude LaForte’s counsel “‘pulled 11 his punches,’ i.e., … failed to represent defendant as vigorously as he might have, had there been no conflict.” (People v. Gonzales and Soliz (2011) 52

, 310 (Gonzales).) 13 LaForte also has not demonstrated a reasonable probability the result of the 14 proceeding would have been different but for the alleged conflict of interest. Citing People v. Easley (1988)

, and People v. Mroczko (1983) 15

, LaForte argues the prejudice standard applicable to conflict of 16 interest claims “does not depend on the outcome of the case as in a more typical (federal) ineffective-assistance-of counsel analysis,” and is instead 17 satisfied so long as the defendant establishes there was an actual conflict of 18 interest. However, our Supreme Court disapproved the Easley and Mroczko decisions, and many others, to the extent they imposed a standard 19 for conflict of interest claims different from the federal ineffective assistance 20 of counsel standard. (Doolin, supra,

.) As the law currently stands, “both standards involve a consideration of prejudice in the 21 outcome. (Id. at p. 421.) 22 LaForte has not established any such prejudice in the outcome. As discussed, 23 he repeatedly rejected counsel’s advice to pursue a plea withdrawal in lieu of 24 sentencing. Given LaForte’s determination to be sentenced, we cannot say it was reasonably probable the outcome would have been different in the 25 absence of the alleged conflict of interest. (

57 Cal.4th at pp. 1022, 26 1023 (alleged conflict of interest not prejudicial where the alleged harm resulted from “defendant’s clear, consistent, cogent, and articulately 27 expressed wish to forego” the presentation of mitigating evidence);

52 Cal.4th at p. 310 (defendant who testified over allegedly conflicted 1 trial counsel’s advice failed to establish prejudice by arguing “he might have accepted (a conflict-free) attorney’s reasonable advice not to testify”). 2 Doc. No. 16-1 at 8–11. 3 Petitioner asserts: (1) “[t]he court made no reference to the existence of a conflict 4 and did nothing to inquire whether [Petitioner] understood or waived that conflict,” (2) 5 “still failed to discuss the existence of that conflict” at a post-sentencing hearing 6 concerning counsel’s motion to be relieved as counsel and for the appointment of new 7 counsel, and (3) “the fact that sentencing went forward, even while a clear basis existed 8 to attack the plea, without [Petitioner] conferring with an unconflicted attorney in a way 9 that could have given him a clear picture of his rights and options” resulted in prejudice. 10 Doc. No. 4-4 at 3–5. 11 “In order to establish a violation of the Sixth Amendment, a defendant who raised 12 no objection at trial must demonstrate that an actual conflict of interest adversely affected 13 his lawyer’s performance.” Sullivan,

. “[A] defendant who shows that a 14 conflict of interest actually affected the adequacy of his representation need not 15 demonstrate prejudice in order to obtain relief.”

at 349–50 (citing Holloway,

at 487–91). “To establish a violation of the right to conflict-free counsel, the petitioner 17 must show either that (1) in spite of an objection, the trial court failed to allow him the 18 ‘opportunity to show that potential conflicts impermissibly imperil his right to a fair 19 trial;’ or (2) that an actual conflict of interest existed.” Alberni v. McDaniel,

, 869–70 (9th Cir. 2006) (quoting Sullivan,

). In Bonin v. Calderon, 21

(9th Cir. 1995), the Ninth Circuit further indicated: 22 In the absence of an “actual” conflict which squarely places the interests of 23 the client in opposition to those of the attorney, and is likely to compromise a 24 reasonable attorney’s ability to comply with his legal and ethical obligation to represent his client with undivided loyalty, the [Sullivan] standard cannot be 25 met. If a mere “potential” or “theoretical” conflict does affect an attorney’s 26 representation in a particular case, the defendant is not without recourse. However, he cannot rely on [Sullivan] and obtain relief merely upon a 27 showing of “adverse effect,” but must instead make the showing required by 28 Strickland that counsel’s performance was objectively unreasonable and that 1 he suffered prejudice as a result. See Strickland, 466 U.S. at 692–94, 104 S.Ct. at 2067–68. 2

3

. 4 In this instance, it appears a conflict of interest could and likely would have arisen 5 in the event Petitioner decided to withdraw the plea, given counsel’s admitted error and 6 inaccurate advice to Petitioner in entering the plea. Had Petitioner sought to withdraw 7 the plea without obtaining new counsel, trial counsel would have had a conflict. 8 However, such a situation never occurred in Petitioner’s case, and the state court 9 reasonably and accurately found as much. See Doc. No. 16-1 at 9 (“A potential conflict 10 of interest arose when counsel misadvised LaForte regarding the plea, given that LaForte 11 conceivably could have tried to withdraw his plea on grounds of misadvice of counsel 12 and his counsel’s self-interest might have impaired those efforts. . . . However, this 13 potential conflict of interest never ripened into an actual conflict of interest because 14 LaForte never pursued or expressed a desire to pursue a motion to withdraw his plea.”) 15 Thus, the Court cannot conclude there was an “actual conflict of interest” given 16 Petitioner clearly and emphatically chose to proceed with the plea and firmly rejected the 17 trial court’s repeated offer of new counsel and potentially withdrawing his plea. Sullivan, 18

. Nor does Petitioner persuasively show any such potential conflict 19 “adversely affected his lawyer’s performance.”

Again, as the state court accurately 20 and reasonably observed, once the error was discovered Petitioner’s counsel “candidly 21 disclosed the error to the court and requested the appointment of new counsel,” thereafter 22 “voiced his discomfort with proceeding and requested the appointment of new counsel” 23 after Petitioner indicated he intended to proceed with sentencing, and “while counsel 24 ultimately consented to sentencing, he did so only after conferring with his client,” and 25 additionally “filed a post sentencing motion to withdraw as counsel and seek appointment 26 of new counsel, citing alleged ineffective assistance as the grounds for the request.” Doc. 27 No. 16-1 at 10. As such, given the “absence of an ‘actual’ conflict which squarely places 28 the interests of the client in opposition to those of the attorney, and is likely to 1 compromise a reasonable attorney’s ability to comply with his legal and ethical 2 obligation to represent his client with undivided loyalty,” Petitioner fails to show a 3 violation of his right to conflict-free counsel. Bonin,

. 4 Because it is evident Petitioner’s contention fails for lack of merit, Petitioner 5 therefore fails to demonstrate the state court adjudication of Claim Two was either 6 contrary to, or an unreasonable application of clearly established federal law, or that it 7 was based on an unreasonable determination of the facts. As such, habeas relief is not 8 available on Claim Two. 9 3. Claim Three 10 Finally, Petitioner contends trial counsel rendered ineffective assistance in advising 11 Petitioner concerning his plea and by agreeing with the trial court’s incorrect statements 12 about the consequences of consulting with new counsel. Doc. No. 4-4 at 5–7. 13 Respondent maintains the state supreme court’s rejection of Claim Three on the merits 14 was reasonable. Doc. No. 15 at 2; Doc. No. 15-1 at 17–19. 15 Petitioner raised this contention solely before the California Supreme Court in a 16 state habeas petition, which the state supreme court denied without a statement of 17 reasoning or citation to authority. Doc. Nos. 16-14, 16-15. Without any evidence 18 suggesting otherwise, the Court must presume the state supreme court adjudicated Claim 19 Three on the merits. See Richter, 562 U.S. at 99 (“When a federal claim has been 20 presented to a state court and the state court has denied relief, it may be presumed that the 21 state court adjudicated the claim on the merits in the absence of any indication or state- 22 law procedural principles to the contrary.”) Additionally, given the state court denied 23 Petitioner’s ineffective assistance of counsel claim without any statement of reasoning, to 24 warrant habeas relief Petitioner must show there was “no reasonable basis” for the state 25 supreme court’s denial. See id. at 98 (“Where a state court’s decision is unaccompanied 26 by an explanation, the habeas petitioner’s burden still must be met by showing there was 27 no reasonable basis for the state court to deny relief.”) 28 1 Under the clearly established standard set forth in Strickland v. Washington, 466

(1984), “a defendant must show both deficient performance by counsel and 3 prejudice in order to prove that he has received ineffective assistance of counsel.” 4 Knowles v. Mirzayance,

(2009), citing Strickland, 466 U.S. at 687. 5 The United States Supreme Court has held “the two-part Strickland v. Washington test 6 applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. 7 Lockhart,

(1985); see also Lafler v. Cooper,

(2012) 8 (“If a plea bargain has been offered, a defendant has the right to effective assistance of 9 counsel in considering whether to accept it.”) 10 “Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 11

(2010). “When a convicted defendant complains of the ineffectiveness 12 of counsel’s assistance, the defendant must show that counsel’s representation fell below 13 an objective standard of reasonableness.” Strickland, 466 U.S. at 687–88. Moreover, “a 14 court must indulge a strong presumption that counsel’s conduct falls within the wide 15 range of reasonable professional assistance; that is, the defendant must overcome the 16 presumption that, under the circumstances, the challenged action ‘might be considered 17 sound trial strategy.’” Id. at 689. To demonstrate prejudice, a petitioner must show 18 “there is a reasonable probability that, but for counsel’s unprofessional errors, the result 19 of the proceeding would have been different.” Id. at 694. “A reasonable probability is a 20 probability sufficient to undermine confidence in the outcome.” Id. “The likelihood of a 21 different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112. 22 Additionally, when a federal habeas court is reviewing a claim of ineffective 23 assistance of counsel previously adjudicated on the merits by a state court: 24 The pivotal question is whether the state court’s application of the Strickland standard was unreasonable. This is different from asking whether defense 25 counsel’s performance fell below Strickland’s standard. Were that the 26 inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction 27 in a United States district court. Under AEDPA, though, it is a necessary 28 premise that the two questions are different. For purposes of § 2254(d)(1), 1 “an unreasonable application of federal law is different from an incorrect application of federal law.”

,

. A state 2 court must be granted a deference and latitude that are not in operation when 3 the case involves review under the Strickland standard itself. 4 Richter, 562 U.S. at 101. “When § 2254(d) applies, the question is not whether counsel’s 5 actions were reasonable. The question is whether there is any reasonable argument that 6 counsel satisfied Strickland’s deferential standard.” Id. at 105. 7 Petitioner contends trial counsel rendered constitutionally ineffective assistance in 8 two respects, as counsel not only failed to correctly advise Petitioner on the plea, but also 9 erred in agreeing with the trial court’s incorrect statements that appointing new counsel to 10 consult with Petitioner “was equivalent to withdrawing his plea and exposing himself to 11 substantially more time.” Doc. No. 4-4 at 5. 12 With respect to Petitioner’s first allegation of ineffective assistance, at the outset of 13 the sentencing hearing, trial counsel admitted he made a “mistake” in advising Petitioner 14 on the guilty plea that had been entered and stated his belief that Petitioner needed new 15 counsel to attempt to set aside the plea. See Doc. No. 4-5 at 9. Even were the Court to 16 assume trial counsel’s admitted error constitutes the requisite deficient performance 17 under Strickland, the Court finds Petitioner’s claim of ineffective assistance of counsel 18 nonetheless fails for lack of prejudice. Strickland, 466 U.S. at 697 (“[A] court need not 19 determine whether counsel’s performance was deficient before examining the prejudice 20 suffered by the defendant as a result of the alleged deficiencies. The object of an 21 ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of 22 an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect 23 will often be so, that course should be followed.”); see also Mirzayance,

24 (“[A] defendant must show both deficient performance by counsel and prejudice in order 25 to prove that he has received ineffective assistance of counsel.”) (citing Strickland, 466 26 U.S. at 687). In cases concerning allegations of ineffective assistance of counsel with 27 respect to a guilty plea, the Supreme Court has held the prejudice determination “focuses 28 1 plea process,” and “in order to satisfy the ‘prejudice’ requirement, the defendant must 2 show that there is a reasonable probability that, but for counsel’s errors, he would not 3 have pleaded guilty and would have insisted on going to trial.” Hill,

. 4 To this end, Petitioner submits a January 6, 2022, declaration in which he states he 5 would have gone to trial were it not for trial counsel’s erroneous advice as to the terms of 6 the guilty plea and repeats this assertion in May 3, 2022, and June 2, 2022, declarations 7 attached to the Traverse. See Doc. No. 4-6 at 2; see also Doc. No. 21 at 27–28, Doc. No. 8 22 at 27–28. Yet, as Respondent correctly points out, see Doc. No. 15-1 at 18, Petitioner 9 failed to present this evidence to the California Supreme Court when it adjudicated his 10 ineffective assistance of counsel claim in the state habeas petition. Indeed, Petitioner’s 11 initial declaration was signed on January 6, 2022, well after Petitioner constructively filed 12 the August 25, 2021, state habeas petition in the California Supreme Court and the 13 declaration was therefore not before the state court at the time Petitioner’s ineffective 14 assistance claim was considered and decided. See Doc. No. 4-6; Doc. No. 16-14 at 6. 15 Because Claim Three was adjudicated on the merits by the state court, this Court cannot 16 consider Petitioner’s declaration in reviewing the reasonableness of the state court 17 decision under section § 2254(d). See Pinholster, 563 U.S. at 181 (“[R]eview under 18 § 2254(d)(1) is limited to the record that was before the state court that adjudicated the 19 claim on the merits.”); see also

(d)(2) (habeas relief on claim 20 adjudicated on the merits in state court is unavailable unless it “resulted in a decision that 21 was based on an unreasonable determination of the facts in light of the evidence 22 presented in the State court proceeding.”) 23 In any event, as Respondent again correctly points out, see Doc. No. 15-1 at 18, 24 Petitioner’s contention is also plainly belied by the trial record, as Petitioner was clearly 25 advised of counsel’s error, refused multiple offers to consult with new counsel and 26 potentially withdraw the plea and instead insisted on proceeding to sentencing on the 27 original plea that very same day. See Doc. No. 4-5 at 10, 13–14. At no time did 28 Petitioner indicate to the trial court he wished to go to trial but instead vociferously 1 rejected any offer to do anything other than proceed with sentencing that same day. See 2

Thus, given the lack of any record evidence trial counsel’s alleged errors “affected 3 the outcome” of Petitioner’s plea process such that he would have gone to trial instead of 4 proceeding with the guilty plea, this contention fails for lack of demonstrated prejudice.

U.S. at 59 (“[I]n order to satisfy the ‘prejudice’ requirement, the defendant must 6 show that there is a reasonable probability that, but for counsel’s errors, he would not 7 have pleaded guilty and would have insisted on going to trial.”) 8 Nor does Petitioner’s second contention fare any better. Again, Petitioner asserts 9 trial counsel rendered prejudicially deficient performance when counsel agreed with the 10 trial court that appointing new counsel to consult with Petitioner “was equivalent to 11 withdrawing his plea and exposing himself to substantially more time.” Doc. No. 4-4 at 12 5. As an initial matter and as thoroughly discussed in the adjudication of Claim One, the 13 trial court did not indicate that simply consulting with new counsel was in any way 14 “equivalent to” a plea withdrawal that would expose Petitioner to additional time. 15 Instead, the trial court informed Petitioner new counsel could be appointed to “look” at 16 withdrawing the plea while warning Petitioner that were he to ultimately seek to 17 withdraw the plea, such an action could expose Petitioner to more time. Again, when 18 trial counsel advised the trial court of his error and asked for the appointment of new 19 counsel to withdraw the plea, the trial court stated: “So we’re going to have to appoint 20 public defender to this matter to review it,” and then advised Petitioner: “So Mr. La Forte 21 understands that if he wishes -- if he gets his wish and gets to withdraw his plea, he can 22 be looking at substantially more time.” Doc. No. 4-5 at 10–11 (emphasis added). As the 23 record plainly reflects, the trial court clearly distinguished between those two events and 24 did not state that simply appointing new counsel nor Petitioner consulting with such 25 newly appointed counsel was tantamount to withdrawing his guilty plea. Similarly, the 26 trial court later informed Petitioner: “If you want me to appoint public defender and look 27 at withdrawing this plea, I will do that. If you want to do that, we will set the date for 28 some time next week. If you don’t want to do that and you want to go forward with the 1 sentencing, tell your lawyer and we can do that too.”

at 13–14 (emphasis added). 2 Given the trial court clearly and correctly explained these possibilities to Petitioner and 3 did not indicate that simply appointing new counsel was the same as or somehow 4 equivalent to Petitioner choosing to withdraw his guilty plea, there is no support for a 5 conclusion counsel erred in voicing any agreement with the trial court’s explanation. 6 However, even were Petitioner somehow able to demonstrate counsel’s 7 performance was deficient during the events surrounding the plea hearing, Petitioner fails 8 to demonstrate prejudice for the reasons previously discussed, namely because there is no 9 indication from the record before the state court that Petitioner would have gone to trial 10 but for the asserted errors by counsel or that any such errors affected the outcome of the 11 plea process.2 See Hill,

. 12 Because it is readily apparent the state supreme court could have reasonably 13 rejected Petitioner’s claim of ineffective assistance of trial counsel for lack of Strickland 14 prejudice, habeas relief is not available on Claim Three. Richter, 562 U.S. at 101 (“The 15 pivotal question is whether the state court’s application of the Strickland standard was 16 unreasonable.”); Mirzayance,

(“[A] defendant must show both deficient 17 performance by counsel and prejudice in order to prove that he has received ineffective 18 assistance of counsel.”) (citing Strickland, 466 U.S. at 687). 19 20 21 22 23 2 In his January 6, 2022, declaration, Petitioner indicates counsel agreed with the trial court’s erroneous statement in an off the record discussion they had between themselves, as follows: “At sentencing the 24 Judge paused court so I could discuss my case with counsel. That is when counsel agreed with the 25 Judge, that appointing the public defender to consult was equivalent to withdrawing my plea and exposing myself to substantially more time.” Doc. No. 4-6 at 2–3. Petitioner repeats this assertion in 26 the declarations submitted with the Traverse. See Doc. No. 21 at 27–28, Doc. No. 22 at 27–28. However, as discussed above, the Court cannot consider these declarations because this evidence was 27 not before the state court at the time Petitioner’s ineffective assistance claim was considered and decided and Petitioner has not satisfied § 2254(d). See Pinholster, 563 U.S. at 181; see also 28 U.S.C. 28 1 V. CERTIFICATE OF APPEALABILITY 2 A petitioner may not appeal “the final order in a habeas corpus proceeding in 3 || which the detention complained of arises out of process issued by a State court” except 4 || where “a circuit justice or Judge issues a certificate of appealability.”

2253(c)(1)(A). “The district court must issue or deny a certificate of appealability when 6 enters a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 7 || 11(a), 28 U.S.C. foll. § 2254. “A certificate of appealability should issue if ‘reasonable 8 ||jurists could debate whether’ (1) the district court’s assessment of the claim was 9 || debatable or wrong; or (2) the issue presented 1s ‘adequate to deserve encouragement to 10 || proceed further.’” Shoemaker v. Taylor,

(9th Cir. 2013) (quoting 11 || Slack v. McDaniel,

(2000)). In this instance, the Court declines to 12 ||issue a certificate of appealability, as reasonable jurists would not find debatable or 13 |}incorrect the Court’s conclusion habeas relief is not warranted on any of the three claims 14 || presented in the First Amended Petition, nor does the Court find any of the issues 15 || presented deserve encouragement to proceed further. See 28 U.S.C. 2253(c); Slack, 529 16 at 484. 17 VI. CONCLUSION AND ORDER 18 For the reasons discussed above, the Court DENIES the First Amended Petition 19 || for a Writ of Habeas Corpus and DENIES a Certificate of Appealability. 20 IT IS SO ORDERED. 21 || Dated: December 21, 2022 Ju 23 United States District Judge 24 25 26 27 28

ye