Mahrt v. Beard

849 F.3d 1164

Gregory MAHRT, Petitioner–Appellee,

v.Jeffrey A. BEARD, Secretary of the California Department of Corrections and Rehabilitation; Stu Sherman, Warden, Respondents–Appellants.

No. 15-16404

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 14, 2016 San Francisco, California

Filed March 1, 2017

Pamela K. Critchfield (argued), Deputy Attorney General; Peggy S. Ruffra and Jeffrey M. Laurence, Supervising Deputy Attorneys General; Office of the Attorney General, San Francisco, California, for Respondents–Appellants.

Paul Kleven (argued), Law Offices of Paul Kleven, Berkeley, California, for Petitioner–Appellee.

Before: William A. Fletcher, Morgan B. Christen, and Michelle T. Friedland, Circuit Judges.

OPINION

W. FLETCHER, Circuit Judge:

The State of California appeals from a grant of habeas corpus to Petitioner Gregory Mahrt. The district court found that Mahrt's state-court guilty plea rested on a violation of his Sixth Amendment right to effective assistance of counsel. For the reasons that follow, we reverse.

I. Factual Background

On September 3, 2012, at approximately 10:00 p.m., Sonoma County Sheriff's deputies were dispatched to a residence in Petaluma, California. A neighbor had reported that a "male and female subject [were] arguing over a gun." The property was owned by Robyn Ryan, the mother of Petitioner–Appellee Gregory Mahrt's ex-girlfriend, Tracy Ryan. Mahrt was living in a garage on the property that had been converted into a room.

As the deputies approached the property, Mahrt walked out and met them at the front gate. The deputies detained Mahrt and asked about the argument and the gun. In a written "Incident/Investigation Report," Deputy Yoder described Mahrt as initially "uncooperative." According to Deputy Yoder's report, Mahrt told the deputies that Tracy had left before they arrived. Robyn Ryan stated in a sworn declaration that she likewise had informed the deputies that Tracy had "left the area" before they arrived, and that she had provided this information to the deputies before any search.

The deputies conducted what Deputy Yoder's report characterizes as a "protective sweep" of Mahrt's room in the garage. According to the report, the deputies felt justified in conducting this warrantless search "[d]ue to the report of the possible domestic incident and the mention of a deadly weapon" and because Mahrt "may [have been] attempting to conceal a victim inside." As the deputies approached the garage, Mahrt "began yelling that he did not want [the officers] to enter his room." The deputies found no one inside Mahrt's room.

According to the report, the deputies observed ammunition cans, ammunition, and what appeared to be an AR–15 Rifle (later determined to be a replica). Upon determining that no one was in the room, and after observing the firearm-related materials, the deputies discontinued their search of the garage.

According to the report, the deputies subsequently learned that Mahrt had a prior felony conviction and arrested him for being a felon in possession of ammunition. The deputies then asked Mahrt for permission to search his room, and Mahrt consented. The deputies conducted a second search of the room. They found additional ammunition, rifle magazines, and two firearms.

In a sworn declaration, Mahrt described only one search of his room. He insisted that he did not consent to the search. He stated in his declaration:

I saw several deputies approach the room, and stated that they did not have permission to search it, but they ignored me. The deputies searched the room for close to an hour. Inside the room were closed green boxes that contained ammunition, and a locked guitar case that contained a shotgun and an AK–47 rifle.... After the deputies completed their search of the room, the deputy in charge, Deputy Yoder, approached and asked me to sign a written form waiving my right to object to the search. When I refused, the deputy I had been talking to about my [frightened three-year-old] son threatened that if I did not sign the waiver form, the SWAT team would tear the entire place up for the next twelve hours right in front of my son. I believe that his threat was recorded on the dash camera. Based on the threat, I signed the form and recorded a statement to the effect that the waiver was given voluntarily.

According to Deputy Yoder's report, further investigation "verified that [Tracy Ryan] was not a victim of Domestic Violence."

II. Prior Judicial Proceedings

On September 5, 2012, the State of California charged Mahrt with having been a felon in possession of a firearm and ammunition in violation of California Penal Code § 29800(a)(1) and § 30305(a)(1). Mahrt believed that the warrantless search (or searches) of the garage was (or were) illegal. However, neither of the two public defenders who represented him at the trial court level moved to suppress the firearms and ammunition recovered from his room.

Mahrt's first public defender, Anderson Thomas, represented Mahrt for just over a month while his case was being considered for early resolution. Mahrt's state-court habeas corpus attorney, Paul Kleven, states in a sworn declaration that Thomas originally told him that he did not recall discussing a motion to suppress with Mahrt. However, after checking his files, Thomas corrected himself, telling Kleven that he "did recall Mr. Mahrt telling him that the police should not have been allowed to search." Kleven states that Thomas recounted to him that he told Mahrt "the search was justified under the circumstances." Mahrt states in his declaration that no such conversation occurred.

Mahrt's second public defender, Christina Davis, took over from Thomas and represented Mahrt thereafter in the trial court. Kleven states in a sworn declaration that he twice spoke to Davis, who told him both times "that she did not recall ever discussing a motion to suppress with Mr. Mahrt." Kleven drafted a proposed declaration to that effect, but Davis never signed it. On November 2, 2012, Mahrt filed a Marsden motion seeking to replace Davis as his court-appointed counsel. See People v. Marsden , 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 (1970). A " Marsden motion" is the California procedural mechanism through which a criminal defendant "seeks to discharge his appointed counsel and substitute another attorney" on the ground that he has received inadequate representation. People v. Barnett , 17 Cal.4th 1044, 74 Cal.Rptr.2d 121, 954 P.2d 384, 409 (1998) (quoting People v. Memro , 11 Cal.4th 786, 47 Cal.Rptr.2d 219, 905 P.2d 1305, 1343 (1995) ); see also John–Charles v. California , 646 F.3d 1243, 1245 n.1 (9th Cir. 2011). During his Marsden hearing, Mahrt said he was dissatisfied with Davis because she had not returned his phone calls, had made him feel "less important," and had left Mahrt "not feeling like [he was] being represented." Mahrt did not raise the issue of Davis's failure to file a suppression motion. The judge denied the request for new counsel.

A few weeks later, while still represented by Davis, Mahrt pleaded guilty to both charges pursuant to an open plea agreement. Mahrt's signed waiver form has a circle around "no contest" rather than "guilty," but Mahrt unambiguously pleaded "guilty" during his change of plea hearing, and the state trial court record says that he pleaded guilty. Under an "open plea" in California, the defendant pleads guilty without any promises from the government. People v. Cuevas , 44 Cal.4th 374, 79 Cal.Rptr.3d 303, 187 P.3d 30, 34–35 (2008). Mahrt faced a maximum prison sentence of seven years and four months. He received a six-year sentence.

On appeal, Mahrt's appointed counsel did not raise any issues. Instead, his counsel filed a " Wende " brief, the California analogue to an Anders brief. A Wende brief is filed when a California appellate attorney concludes that an appeal would be frivolous. See Smith v. Robbins , 528 U.S. 259, 265, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) ; People v. Wende , 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, 1074–75 (1979). On November 27, 2013, the California Court of Appeal affirmed Mahrt's conviction.

With the assistance of counsel, Mahrt filed a state habeas petition in the Court of Appeal. The petition alleged that the warrantless search of Mahrt's room violated the Fourth Amendment and that defense counsel provided ineffective assistance of counsel by failing to move to suppress the firearms and ammunition recovered during the search. The Court of Appeal summarily denied Mahrt's habeas petition. The California Supreme Court also summarily denied his petition.

On April 11, 2014, Mahrt filed a federal habeas petition pursuant to 28 U.S.C. § 2254(d). The petition alleged that Mahrt's Sixth Amendment right to effective assistance of counsel was violated by his trial counsels' failure to move to suppress the firearms and ammunition found in his room. A magistrate judge, sitting by consent, granted Mahrt's petition. See 28 U.S.C. § 636(c). The State timely appealed.

III. Standard of Review

We review de novo the district court's grant of habeas corpus. Lambert v. Blodgett , 393 F.3d 943, 964 (9th Cir. 2004). We review factual findings for clear error. Id.

Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104–132, 110 Stat. 1214 (1996), we may not grant Mahrt's application for a writ of habeas corpus with respect to any claim adjudicated on the merits in state court unless the state adjudication "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," 28 U.S.C. § 2254(d)(1), or "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," id . § 2254(d)(2).

"A state court decision is ‘contrary to’ clearly established Supreme Court precedent if the state court applies a...