Ellawendy v. Monterey Cnty. Superior Court, 20-02708 BLF (PR)

ABDELFATAH ELLAWENDY, Petitioner, v. MONTEREY COUNTY SUPERIOR COURT, Respondent.

No. 20-02708 BLF (PR)

United States District Court, N.D. California

January 10, 2023

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS DENYING CERTIFICATE OF APPEALABILITY; DIRECTIONS TO CLERK

BETH LABSON FREEMAN UNITED STATES DISTRICT JUDGE

Petitioner is a state parolee proceeding pro se on his original petition for a writ of habeas corpus pursuant to 28 U.S.C § 2254 challenging the voluntariness of his 2019 plea agreement. Dkt No. 1. For the reasons set forth below, the petition will be DENIED.

BACKGROUND

In November 2018, Petitioner was charged via information in Monterey County with stalking, two counts of assault with a deadly weapon, two counts of assault by means likely to produce great bodily injury (enhanced for use of a deadly weapon), and dissuading a witness from testifying.^[1] Dkt No. 12-2 at 21-28; People v Ellawendy, No. 18CR007432; Cal. Penal Code §§ 646.9(a), 245(a)(1), 245(a)(4), 12022(b)(1), 136(a)(1).

In April 2019, Petitioner pled no contest to assault with a deadly weapon. Dkt No. 12-3 at 30-37. One month later, he was sentenced to two years in prison. Id.

On direct appeal, Petitioner's appellate counsel filed a Wende^[2] brief, and Petitioner filed a brief on his own raising several issues. See Dkt No. 12-3 at 71-87, 95. Like Petitioner's appellate counsel, the California Court of Appeal (“the state appellate court”) found no arguable issues and affirmed the judgment. Dkt No. 12-3 at 90-96. The California Supreme Court then summarily denied review on March 18, 2020. Dkt No. 123 at 117.

When the last state court to adjudicate a federal constitutional claim on the merits does not provide an explanation for the denial,” the federal court should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale.” Wilson v. Sellers,---U.S.----, 138 S.Ct. 1188, 1192 (2018). “It should then presume that the unexplained decision adopted the same reasoning.” Id. Here, the California Supreme Court did not provide an explanation for its denial of the petition for review. Accordingly, this Court will “look through” the California Supreme Court's decision to the state appellate court's decision. See Skidmore v Lizarraga, No. 14-CV-04222-BLF, 2019 WL 1245150, at *7 (N.D. Cal. Mar. 18, 2019) (applying Wilson).

Petitioner filed the instant federal habeas petition on April 20, 2020. Dkt No. 1. After an initial review, the Court found that the only cognizable claim in the petition was the claim challenging the voluntary nature of Petitioner's plea and dismissed all other claims. Dkt No. 6. On January 27, 2021, Respondent filed an answer on the merits, Dkt No. 12-1, and Petitioner filed a traverse, Dkt No. 30.

STATEMENT OF FACTS

The following background facts are taken from the probation officer's report that was submitted in connection with Petitioner's sentencing hearing. The state appellate court also relied on these facts in its unpublished opinion on direct appeal:

On July 22, 2018, Pacific Grove police officers responded to a call concerning an assault by a suspect with a vehicle. The alleged victim of the assault, Jane Doe, reported to the officers that her ex-boyfriend, defendant, had been stalking her for some time. Doe stated that she had been staying in Carmel Valley with her fiance because she was concerned about her safety, and she had gone to Pacific Grove to her home to pack for a trip.

Doe told the officers that she had observed defendant driving in the area where she lived; when he saw her, he made a U-turn and followed her. Doe stated that she passed by her home and proceeded toward the police department. Defendant followed her so closely in his car that he nearly collided with her. Doe told the officers that defendant passed her and then slammed on the brakes, attempting to force her to stop. Doe swerved into the opposite lane to avoid colliding with him. She said defendant repeated this maneuver (i.e., passing her and then slamming on his brakes) several times, before eventually giving her the middle finger and driving off. Doe told the officers that defendant had driven by her home before he had left the area.

Officers conducted a check of the area, located defendant, and conducted a traffic stop. After officers explained why they were stopping him, defendant stated that he worked as an Uber driver, had picked up a passenger nearby, and had then seen Doe's vehicle, “but, ‘didn't think much of it.' “ He denied having made contact with Doe other than seeing her at an intersection. Defendant initially told officers he did not know where Doe lived, but later admitted he did. He told officers “that Doe had a history of making ‘fraudulent accusations' against him and stated he believed she was trying to get him in trouble with the police. Defendant was released.

After stopping defendant, police again spoke to Doe, who provided video footage from security cameras at her home showing defendant driving by her home at the time of the incident. Police also determined from a records search that there had been 14 prior police reports involving Doe and defendant. After officers' efforts to contact defendant further were unsuccessful because phone numbers he had provided to them were no longer in service, they referred the matter to the District Attorney with a recommendation that stalking charges be filed against defendant.

On August 4, 2018, the police were advised that defendant had been previously placed on the No-Fly List and that the FBI had received notification that defendant had bought a one-way ticket to Egypt scheduled for departure on the morning of August 4. After consultation with the District Attorney's Office, police officers arrested defendant at his home.

Dkt No. 12-3 at 91-92.

LEGAL STANDARDS

This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

“Under the ‘contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id. at 412; Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004). While circuit law may be “persuasive authority” for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be “reasonably” applied. Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003).

“Under the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413. “Under § 2254(d)(1)'s ‘unreasonable application' clause, . . . a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 411. A federal habeas court making the “unreasonable application” inquiry should ask whether the state court's application of clearly established federal law was “objectively unreasonable.” Id. at 409.

DISCUSSION

Petitioner claims that his plea is invalid because it was made under duress. He also claims that he agreed to plea to a misdemeanor charge of internet stalking, but the public defender changed the count to a strike felony. Neither of these claims has any merit, as discussed below.

1. Relevant Facts

The state appellate court set forth the relevant background regarding Petitioner's plea as follows:

On April 5, 2019, defendant, pursuant to a negotiated plea agreement, pleaded no contest to count 2, assault with a deadly weapon (§ 245, subd. (a)(1)) based upon the understanding that that he would be sentenced to no more than two years in prison. The court confirmed that defendant signed the waiver of rights and plea form filed with the court,[FN3] and that, before doing so, he had discussed with his attorney the charges, possible defenses thereto, his constitutional rights, and the consequences of changing his plea. The court inquired of defendant as to whether he understood that by entering of plea of guilty or no contest he would be giving up his constitutional right to a speedy and public trial by court or jury, the right to confront witnesses, the right to present evidence and to compel witnesses to testify on his behalf, and the

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