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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DARIUS GAINES,

Petitioner, No. CIV S-04-0018 FCD GGH P

vs.

DARRELL ADAMS, et al., 

Respondent. FINDINGS AND RECOMMENDATIONS

 /

I. Introduction

Petitioner is a state prisoner proceeding through counsel with a petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254. On January 3, 2000, petitioner plead guilty to the

following offenses: 1) carjacking (Cal. Penal Code § 215(a)); 2) robbery (Cal. Penal Code §

212.5(b)); 3) assault with force likely to produce great bodily injury (Cal. Penal Code §

245(a)(1)); 4) kidnapping (Cal. Penal Code § 207); 5) false imprisonment (Cal. Penal Code §

236); 6) dissuading a witness (3 counts) (Cal. Penal Code § 136.1); 7) personal use of a firearm

during the carjacking (Cal. Penal Code § 12022.5(a)(1)); 8) personal use of a firearm during the

robbery (Cal. Penal Code § 12022.5(a)(1)); 9) personal use of a firearm during the kidnapping

(Cal. Penal Code § 12022.5(a)(1)). Petitioner was sentenced to 29 years 4 months.

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26 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966). 1

2

This action is proceeding on the original petition filed January 5, 2003. On June

20, 2004, petitioner’s counsel filed a supplemental points and authorities. Petitioner raises the

following claims: 1) the trial court failed to obtain a factual basis for petitioner’s plea prior to its

entry; 2) the trial court failed to advise petitioner of the consequences of his plea bargain; 3) the

trial court erred in permitting petitioner to enter a plea bargain which violated the prohibition

against double jeopardy; 4) petitioner’s sentence violated the prohibition against double

jeopardy; 5) ineffective assistance of counsel (3 claims); 6) Miranda violation. 1

After carefully considering the record, the court recommends that the petition be

denied as to the claim that counsel was ineffective for grossly misadvising petitioner as to the

terms of his plea, and further denied in all other respects.

II. Antiterrorism and Effective Death Penalty Act

The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this

petition for habeas corpus which was filed after the AEDPA became effective. The AEDPA

“worked substantial changes to the law of habeas corpus,” establishing more deferential

standards of review to be used by a federal habeas court in assessing a state court’s adjudication

of a criminal defendant’s claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263

(9th Cir. 1997). 

In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000), the Supreme

Court defined the operative review standard set forth in § 2254(d). Justice O’Connor’s opinion

for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy

between “contrary to” clearly established law as enunciated by the Supreme Court, and an

“unreasonable application of” that law. Id. at 1519. “Contrary to” clearly established law applies

to two situations: (1) where the state court legal conclusion is opposite that of the Supreme

Court on a point of law, or (2) if the state court case is materially indistinguishable from a

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3

Supreme Court case, i.e., on point factually, yet the legal result is opposite.

“Unreasonable application” of established law, on the other hand, applies to

mixed questions of law and fact, that is, the application of law to fact where there are no factually

on point Supreme Court cases which mandate the result for the precise factual scenario at issue. 

Williams (Terry), 529 U.S. at 407-08, 120 S. Ct. at 1520-1521 (2000). It is this prong of the

AEDPA standard of review which directs deference to be paid to state court decisions. While the

deference is not blindly automatic, “the most important point is that an unreasonable application

of federal law is different from an incorrect application of law....[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. Rather,

that application must also be unreasonable.” Williams (Terry), 529 U.S. at 410-11, 120 S. Ct. at

1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the

objectively unreasonable nature of the state court decision in light of controlling Supreme Court

authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002).

The state courts need not have cited to federal authority, or even have indicated

awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.

Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is

contrary to, or an unreasonable application of, established Supreme Court authority. Id. An

unreasonable error is one in excess of even a reviewing court’s perception that “clear error” has

occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S. Ct. 1166, 1175 (2003). Moreover, the

established Supreme Court authority reviewed must be a pronouncement on constitutional

principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules

binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S. Ct. at 366.

However, where the state courts have not addressed the constitutional issue in

dispute in any reasoned opinion, the federal court will independently review the record in

adjudication of that issue. “Independent review of the record is not de novo review of the

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26 People v. Wende, 25 Cal. 3d 436, 158 Cal. Rptr. 839 (1979). 2

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constitutional issue, but rather, the only method by which we can determine whether a silent state

court decision is objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.

2003).

On direct appeal, petitioner’s appellate counsel filed a Wende brief. Petitioner 2

himself filed a supplemental brief raising three of the claims raised in this action: 1) the trial

court failed to obtain a factual basis for petitioner’s plea; 2) double jeopardy violation; and 3) the

trial court failed to advise petitioner of the consequences of his plea. Answer, Exhibit A, pp. 2-3. 

The California Court of Appeal found that petitioner waived these claims by pleading guilty. Id.,

pp. 3-4. The California Supreme Court denied the petition for review without comment or

citation. Answer, Exhibit E.

Petitioner then filed a habeas corpus petition in the California Supreme Court

raising all of the claims raised in the instant petition. Answer, Exhibit F. The California

Supreme Court denied this petition without comment or citation. Answer, Exhibit G. 

Accordingly, with the exception of the ineffective assistance claim regarding involuntary plea,

because the California Supreme Court did not issue a reasoned opinion addressing the merits of

petitioner’s claims, this court will conduct an independent review of the record to determine

whether the denial of these claims was objectively unreasonable. 

No state court held a hearing and found facts with respect to petitioner’s claim

that his counsel so grossly misadvised petitioner concerning the terms of a plea agreement that

the resultant plea was involuntary. Therefore, the ordinary rule that state factual findings are

presumed correct and can only be overcome by clear and convincing evidence, see Lambert v.

Blodgett, 393 F.3d 943, 972 (9th Cir. 2004), does not apply here. Rather the court engages in de

novo fact finding. Killian v. Poole, 282 F.3d 1204, 1207 (9th Cir. 2002).

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III. Background

The court will summarize the undisputed background information below. 

On May 25, 1999, petitioner, who was 16 years old, and two associates, accosted

a woman in the parking lot of her Stockton apartment complex, kidnapping and carjacking her at

gunpoint. CT 1-20; 129-137. The victim was forced to obtain money from an ATM machine

and then was abandoned on a nearby levee. Id. The victim was also threatened with retaliation

if she reported the crimes. Id.

During the criminal proceedings petitioner was represented by Gregory

Davenport. Following a fitness hearing, it was determined that petitioner would be prosecuted as

an adult rather than a juvenile. August 2, 2005, hearing; Transcript II, pp. 10-12. 

IV. Discussion

A. Claims 5, 6, 7: Ineffective Assistance of Counsel

Standards for Ineffective Assistance of Counsel

The test for demonstrating ineffective assistance of counsel is set forth in 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). First, a petitioner must show

that, considering all the circumstances, counsel’s performance fell below an objective standard of

reasonableness. Strickland, 466 U.S. at 688, 104 S. Ct. at 2065. To this end, the petitioner must

identify the acts or omissions that are alleged not to have been the result of reasonable

professional judgment. Id. at 690, 104 S. Ct. at 2066. The federal court must then determine

whether in light of all the circumstances, the identified acts or omissions were outside the wide

range of professional competent assistance. Id., 104 S. Ct. at 2066. “We strongly presume that

counsel’s conduct was within the wide range of reasonable assistance, and that he exercised 

acceptable professional judgment in all significant decisions made.” Hughes v. Borg, 898 F.2d

695, 702 (9th Cir. 1990) (citing Strickland at 466 U.S. at 689, 104 S. Ct. at 2065). 

Second, a petitioner must affirmatively prove prejudice. Strickland, 466 U.S. at

693, 104 S. Ct. at 2067. Prejudice is found where “there is a reasonable probability that, but for

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 Again, to the extent that this court held an evidentiary hearing on an issue, only the 3

Strickland paradigm is utilized.

6

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at

694, 104 S. Ct. at 2068. A reasonable probability is “a probability sufficient to undermine

confidence in the outcome.” Id., 104 S. Ct. at 2068.

In extraordinary cases, ineffective assistance of counsel claims are evaluated

based on a fundamental fairness standard. Williams v. Taylor , 529 U.S. 362, 391-93, 120 S. Ct.

1495, 1512-13 (2000), (citing Lockhart v. Fretwell, 113 S. Ct. 838, 506 U.S. 364 (1993)).

The Supreme Court has recently emphasized the importance of giving deference

to trial counsel’s decisions, especially in the AEDPA context:3

In Strickland we said that “[j]udicial scrutiny of a counsel’s

performance must be highly deferential” and that “every effort

[must] be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and

to evaluate the conduct from counsel’s perspective at the time.”

466 U.S., at 689, 104 S.Ct. 2052. Thus, even when a court is

presented with an ineffective-assistance claim not subject to §

2254(d)(1) deference, a [petitioner] must overcome the

“presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’” Ibid. (quoting Michel

v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955)).

For [petitioner] to succeed, however, he must do more than show

that he would have satisfied Strickland’s test if his claim were

being analyzed in the first instance, because under § 2254(d)(1), it

is not enough to convince a federal habeas court that, in its

independent judgment, the state-court decision applied Strickland 

incorrectly. See Williams, supra, at 411, 65 S. Ct. 363. Rather, he

must show that the [ ]Court of Appeals applied Strickland to the

facts of his case in an objectively unreasonable manner. 

Bell v. Cone, 535 U.S. 685, 698-699, 122 S. Ct. 1843,1852 (2002).

Claim 5

In claim 5, petitioner argues that his counsel was ineffective

because he, failed to advise petitioner that the plea bargain required

petitioner to plead guilty to charges which were without factual

basis. As petitioner was 16 years old at the time of the offense,

counsel acting as petitioner’s advocate was grossly ineffective for

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failing in his duty to 1) investigate carefully; 2) adequately research

the facts and law of the negotiated plea, and 3) by not evaluating

and analyzing the nature of each charge in which he advised

petitioner to plead guilty to. As petitioner would not taken the plea

bargain if not for counsel’s advisement. 

Petition, 8.

Much of claim five is a restatement of petitioner’s other ineffective assistance of

counsel claims. To the extent claim five raises different grounds, these claims are vague and

unsupported. For example, petitioner does not discuss the investigation counsel allegedly failed

to undertake. Nor does petitioner provide any support for his claim that counsel was ineffective

for failing to analyze the nature of each charge. For these reasons, these claims are without

merit. James v. Borg, 24 F.3d 20, 26 (9 Cir. 1994) (“conclusory allegations which are not th

supported by a statement of specific facts do not warrant habeas relief.”).

In any event, all pre-plea allegations of trial court or attorney “mistake” or

“failure” are waived, including allegations of ineffective assistance of counsel, when a guilty plea

is entered, with the exception of ineffective assistance of counsel directly related to the decision

to enter a guilty plea. United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992).

After independently reviewing the record, the court finds that the denial of this

claim by the California Supreme Court was not an unreasonable application of clearly established

Supreme Court authority. Accordingly, this claim should be denied. 

Claim 6 (Evidentiary Hearing Claim)

In claim 6 petitioner alleges that his counsel misadvised him that, if he accepted

the second plea offer, he would serve his sentence at the California Youth Authority (CYA) and

be released at the age of 25. Petitioner argues that had he known that he would actually be

required to serve his entire sentence in state prison, he would not have pled guilty.

At the outset, the court observes that petitioner’s sentence of 29 years 4 months

precluded him from being sent to the CYA 9 (even before the passage of Proposition 21). At the

time he entered his plea, Cal. Welf. & Inst. Code § 1732.6 provided, in relevant part,

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 The legislative history confirms that the above wording was in effect at the time of 4

petitioner’s plea: 2000 Legislation Proposition 21 rewrote the section, which formerly read:

“No minor shall be committed to the Youth Authority when he or she is convicted in a criminal

action for an offense described in Section 667.5 or subdivision (c) of Section 1192.7 of the Penal

Code and is sentenced to incarceration for life, an indeterminate period to life, or a determinate

period of years such that the maximum number of years of potential confinement when added to

the minor’s age would exceed 25 years. In all other cases in which the minor has been convicted

in a criminal action, the court shall retain discretion to sentence the minor to the Department of

Corrections or to commit the minor to the Youth Authority. Notwithstanding any other provision

of law, no person under the age of 16 years shall be housed in any facility under the jurisdiction

of the Department of Corrections.”

Legislative Comment to § 1732.6.

Certainly, petitioner’s sentence plus his age would exceed 25.

The parties do not argue that Cal. Penal Code § 1170.17, 1170.19 are applicable here in

the sense that petitioner could have received a juvenile law outcome.

 On March 8, 2000, Cal. Wel. & Inst. Code § 1732.6 and Cal. Penal Code § 667.5 5

amended. Under these amendments, petitioner would be ineligible to be sentenced to the CYA. 

8

No minor shall be committed to the Youth Authority when he or

she is convicted in a criminal action for an offense described in

Section 667.5 or subsection (c) of Section 1192.7 of the Penal

Code and is sentenced to incarceration for life, an indeterminate

period to life, or a determinate period of years such that the

maximum number of years of potential confinement when added to

the minor’s age would exceed 25. In all other cases in which the

minor has been convicted in a criminal action, the court shall retain

discretion to sentence the minor to the Department of Corrections

or to commit the minor to the Youth Authority. Notwithstanding

any other provision of law, no person under the age of 16 years

shall be housed in any facility under the jurisdiction of the

Department of Corrections.

4

At the time of his plea, Cal. Penal Code § 667.5 provided that kidnapping in

violation of Cal. Penal Code § 207(b) was a violent felony. Therefore, petitioner was eligible to

be sentenced to the CYA only if his determinate sentence was 9 years. The sentence to which

petitioner pled pursuant to his plea bargain, i.e. 29 years 4 months, precluded him being

sentenced to the CYA.5

To establish that Davenport acted unreasonably, petitioner must show that he

grossly mischaracterized the likely outcome of his plea. Doganiere v. United States, 914 F.2d

165, 168 (9 Cir. 1990); Iaea v. Sunn, 800 F.2d 861, 865 (9 Cir. 1986). To establish prejudice, th th

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 Evidently, petitioner’s mother was the one confused. Petitioner had already told his 6

attorney that he would not accept a life plea.

9

petitioner must show that “there is a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474

U.S. 52, 58, 106 S. Ct. 366, 370 (1985).

If true, a representation by Davenport to petitioner that he would serve his

sentence at the CYA and be released at the age of 25 would be a gross mischaracterization of the

likely outcome of petitioner’s plea. As discussed above, the court held an evidentiary hearing

addressing this issue. The court will summarize the relevant evidence below.

Pre-Plea Negotiations

The pre-plea negotiations which ensued give an important context with which to

assess petitioner’s state of mind at the time he finally accepted the plea bargain and pled guilty.

During pretrial proceedings, the prosecution offered petitioner a plea bargain of 16

years to life. Id., p. 7. On November 9, Davenport related to the court that his client was

considering the offer. Id. at 148. At a November 10, 1999, pretrial hearing, Mr. Davenport

stated that petitioner was willing to accept the offer. Reporter’s Augmented Transcript, p. 152. 

At a November 15, 1999, pretrial hearing, Mr. Davenport stated that petitioner now indicated that

he would not accept the offer. Id., pp. 159, 166. After this statement, petitioner’s mother stood

up in court and said that petitioner did not know what was going on:

Davenport: My client has indicated to me it’s his position now that

he would not accept the offer. Previously he indicated he didn’t

want it. We talked to him at length, and he indicated—

Mrs. Gaines [petitioner’s mother]: Excuse me, I’m Darius’ mother. 

I would like–need to discuss this with my son because what

Davenport tells Darius does not–Darius is not understanding what

is going on. I need to talk to Darius what is going on. He’s not

knowing from what Davenport is telling him.

Id.6

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The court instructed respondent to ascertain whether any record of petitioner’s visits by 7

his lawyer existed. According to respondent’s information, such records no longer exist. 

10

Acceptance of the Plea

The record is completely uninformative about what transpired from the day the

life plea was rejected to petitioner’s next appearance in court. On January 3, 2000, petitioner 7

appeared for what was labeled “jury trial assignment.” However, this also appears to have been a

last ditch effort to determine if a defendant was willing to plead by accepting a plea bargain. The

record does not indicate when petitioner was first made aware of the 29 year, four month

opportunity for a plea bargain. The only record made of the proceedings occurred after petitioner

indicated that he would accept the plea.

At the January 3, 2000, change of plea hearing the court advised petitioner

regarding the terms of his plea:

The Court: You understand you’re going to be entering pleas of

guilty to Count 5, carjacking, for a nine year term plus the use of a

weapon for 10 years–that’s 19 years–you’re going to plead to

Count 4, robbery, for one year four months consecutive plus the

use of a gun for one year four months; you’re going to plead to a

245 at the levee for one year, a 207 kidnapping for one year eight

months plus a 12022.5(a) use of a gun for one year four months

and you’re going to plead to 236, false imprisonment for eight

months consecutive and three counts of 136.1(c)(1), and that would

for an additional three years consecutive, for a total of 29 years

four months.

Is that your understanding of the plea negotiations?

[Petitioner]: Yes, sir.

The Court: Now, other than what I have just stated have any other

promises been made to you or any threats to make you enter these

pleas?

[Petitioner]: No, sir. 

RT at 2-3.

The Court: Have you had sufficient time to discuss the facts of the

case and the consequence of the entry of the pleas with your

attorney?

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[Petitioner] Yes, sir.

Sentencing

Perhaps not wanting the pled “fish” to jump off the line, prior to entry of

judgment, all agreed to immediate sentencing on January 3. Right after the pleas were taken, the

Court stated:

Technically, Darius, you’re entitled to a probation report. We

know exactly what’s going to happen. Do you waive referral to the

probation office?

The Defendant: Yes.

RT 9.

During sentencing, the trial judge mentioned no less than nine times that petitioner would be

sentenced to “state prison.” Petitioner did not say anything on the record. 

Petitioner’s Testimony

Petitioner testified that between the November 15, 1999, hearing, and the January

3, 2000, hearing, Davenport did not visit him at the juvenile facility and discuss the new plea

offer. July 26, 2005, evidentiary hearing transcript, p. 28. Immediately prior to the January 3,

2000, hearing, petitioner was taken into a conference room in the courthouse where Davenport

presented him with the plea offer. Id., p. 29. Petitioner’s girlfriend, Lawanda Jordan, was also

present. Id., p. 30. At that time, she and petitioner had a baby daughter together. Id., pp. 29-30. 

Petitioner testified that Davenport told him that if he accepted the offer of 29 years 4 months, he

would go to CYA and he could be released by the time he was 18, but that he would be released

by the time he was 25. Id., p. 30. Jordan told petitioner the same thing. Id. Jordan told

petitioner that they had a daughter together and that he would be out by the time he was 25. Id. 

They discussed the plea for 30 to 45 minutes. Id., p. 51. This was the first time petitioner was

aware of the offer. Id. 

Petitioner was sentenced the same day he accepted the plea bargain. After the

judge sentenced him to 29 years 4 months in state prison, petitioner asked Davenport what the

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judge was talking about. Id., p. 32. Davenport told him that he would still go to CYA and that if

they had not picked him up within the next month, petitioner would come back to court. Id., p.

33. 

Regarding the first offer of 16 to life, petitioner testified that Davenport told him 

that he would serve 16 years and then be paroled. Id., p. 41. Petitioner’s stepfather advised him

that a life term meant that he would spend the rest of his life in prison. Id., p. 42. Petitioner told

this to Davenport, but he again told petitioner that he would only serve 16 years. Id., p. 42. 

Petitioner testified that he was prepared to accept the offer of 16 to life until his mother stood up

in court and said that he did not understand the terms of the plea. Id., p. 43. [However, the court

record demonstrates to the contrary.] At some point, Davenport explained to petitioner that if he

went to trial and was found guilty, the maximum sentence he could receive was life. Id., p. 57. 

Petitioner testified that prior to this time, Davenport told him that anywhere from 5 to 6 years

would be a good deal. Id., p. 24. 

Cassandra Moore’s Testimony

Petitioner’s mother, Cassandra Moore, testified that she attended all of

petitioner’s hearings except for the January 3, 2000, hearing. Id., p. 66. Moore did not attend the

January 3, 2000, hearing because she was on the verge of losing her job. Id., p. 66. She did not

know that petitioner was going to accept a plea offer on that date. Id., p. 67. 

Mrs. Moore testified that in November, Davenport told her that petitioner would

serve his time in the CYA. Id., p. 69. After the January 3, 2000, hearing, petitioner’s girlfriend

informed Mrs. Moore that petitioner had been sentenced. Id., p. 71. When Mrs. Moore

discovered that petitioner had been sent to state prison, she called Davenport. Id., p. 72. 

Davenport did not return her calls. Id. However, she overheard her husband have a heated

discussion with Davenport after petitioner was sentenced regarding him being sent to state

prison. Id., p. 73. 

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Lawanda Jordan’s Testimony

Petitioner’s former girlfriend, Lawanda Jordan, testified that on January 3, 2000,

she was standing outside the courtroom when Davenport approached her. Id., at 92. In January

2000 she was 15 years old. Id., p. 88. Davenport asked her if she told petitioner to take a deal,

would he take it. Id. Jordan told him that if the deal involved life, petitioner was not going to

take it. Id. Earlier that day, Jordan had heard the attorneys discussing a life sentence for

petitioner in the courtroom. Id. Davenport asked her if she thought petitioner would take a deal

for less than life. Id., p. 93. Jordan said she thought petitioner would accept such an offer. Id. 

Davenport told her to wait while he spoke with the judge. Id. When Davenport returned, he told

her that petitioner would not have a life sentence, and he would make sure that petitioner got out

by the time he was 25. Id., pp. 93-94. Davenport told Jordan that petitioner would be out to help

raise their daughter. Id., p. 94. 

Davenport then told Jordan that petitioner would have to plead to 29 years but he

would be out by the time he was 25. Id. Davenport told Jordan to tell petitioner that she would

marry him and that she would stick by him and that they would stay in contact. Id. Jordan and

Davenport went into a room where petitioner was sitting at a table. Id., p. 95. Jordan told

petitioner to take the 29 years, and that he was going to a youth program and would be out by the

time he was 25. Id. Jordan told petitioner that she would marry him and that he was going to

help raise the baby. Id. Petitioner began to cry. Id. Jordan could not remember what Davenport

said during this meeting. Id. A bailiff was sitting by the door. Id. 

A few months after January 3, 2000, Jordan learned that petitioner had been sent

to state prison. Id., p. 96. She lost contact with petitioner and moved to Indianapolis, which is

where she traveled from for the evidentiary hearing. Id., pp. 96-97.

Gregory Davenport’s Testimony

At the evidentiary hearing, Davenport testified that the January 3, 2000, plea offer

was for petitioner to serve a sentence of 29 years 4 months. Transcript from August 2, 2005,

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hearing, p. 4. With respect to where petitioner would serve his sentence, Davenport testified that

there was some question as to where petitioner would initially serve his sentence because he was

under 18 years old. Id. Davenport told petitioner that because he was a juvenile, he did not

believe that he would be immediately placed in an adult facility. Id. Once petitioner reached 18,

there was no proscription against putting him in state prison. Id., pp. 4-5. Davenport told

petitioner that he would have to serve around 85% of his sentence before being released. Id. He

told petitioner that he would not be released until he was 35 to 40 years old. Id. 

Davenport testified that the prosecutor always took the position that the charges

against petitioner were very serious. Id., p. 6. Prior to the offer of 29 years 4 months, the

prosecutor did not make an offer for less than a life sentence. Id. With respect to the initial offer

of 16 to life, Davenport told petitioner that he would have to serve 16 years before becoming

eligible for parole. Id., p. 7. It was Davenport’s understanding then that people with life terms

almost never got parole. Id. Davenport testified that he would not have described the 16 to life

sentence to petitioner as meaning that he would serve 16 years and then be out of prison. Id. 

At some point during his representation of petitioner, Davenport told him that he

did not have a good chance of prevailing at a jury trial due to the strength of the evidence against

him. Id., p. 8. Davenport initially advised petitioner that if he were found guilty, it was probable

that he would receive a life sentence. Id., p. 9. Davenport never conveyed a plea offer or a

personal evaluation of a possible sentence to petitioner that involved a sentence where he would

be released at the age of 18 or 25. Id., p. 11. Davenport testified that if petitioner had been found

fit to be prosecuted as a juvenile, the longest sentence he could have received was incarceration

in CYA until he was 25 years old. Id., p. 13. 

Davenport testified that when he discussed the offer of 29 years 4 months with

petitioner, he could not recall Jordan being present. Id., p. 23. Davenport denied asking Jordan

to tell petitioner that she would marry him if he accepted the offer. Id., p. 24. Davenport 

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testified that did not recall “enlisting the help of anybody to coerce” petitioner into doing

anything. Id. 

At the evidentiary hearing, petitioner’s counsel questioned Davenport regarding

the law in effect on January 3, 2000, regarding petitioner’s eligibility to be sentenced to the CYA. 

It appears that both petitioner’s counsel here and Davenport had a misunderstanding of that law. 

Petitioner’s counsel and Davenport seemed to agree that the court in this case could have

sentenced petitioner to CYA, despite the terms of the agreement. Id., p. 51. As discussed above,

the length of petitioner’s sentence precluded the judge from exercising any discretion to send 

petitioner to the CYA for any portion of his sentence. Cal. Welf. & Inst. Code § 1732.6 (1999).

Davenport had a very vague recollection of discussing the offer of 29 years 4

months with petitioner in the juvenile facility where petitioner was housed as well as in the court

house. August 2, 2005, evidentiary hearing transcript, p. 76. Davenport also could not recall

telling petitioner’s mother that he would be committed to the CYA. Id., p. 49. 

Davenport did not recall asking Jordan to go into a jury room to talk to petitioner

about the plea offer. Id., p. 69. Davenport testified that this was not something that the bailiffs

of San Joaquin County, in his experience, would have allowed. Id., p. 70. The bailiffs would

have allowed such a conversation in open court near a jury box but would not have permitted it

in an unmonitored jury room. Id. However, according to Davenport, the bailiffs “routinely”

allowed such conversations if they were allowed to go into the room also. Id. 

Following the evidentiary hearing, the court ordered respondent to contact the jail

officials in an attempt to obtain records to corroborate Davenport’s testimony regarding his visits

with petitioner. Respondent was unable to obtain these records. In the alternative, respondent

submitted a time sheet from Davenport. This document does not contain specific information

regarding Davenport’s jail visits.

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 However, this court is also mindful that petitioner was only 16 years old at the time he 8

entered his plea. Petitioner’s youth casts doubt on this presumption. See Haley v. Ohio, 332

U.S. 596, 599, 68 S.Ct. 302 (1949) (“when, as here, a mere child–an easy victim of the law–is

before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult

age for a boy of any race. He cannot be judged by the more exacting standards of maturity.”). 

However, the record does not indicate immaturity on petitioner’s part.

 The facts, including petitioner’s confession to the police, were four square against

9

petitioner. The case was as acquittal proof as any case could be.

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Discussion

If petitioner and Jordan are to be believed, on January 3, 2000, Davenport told

petitioner that if he pled to 29 years 4 months he would be sent to CYA and released at the age of

25. If Davenport is to be believed, he told petitioner that the offer was for a determinate term of

29 years 4 months in state prison, with the possibility that petitioner would serve his sentence in

the CYA until his eighteenth birthday. 

Petitioner’s statement to the court that he understood that he would be sentenced

to 29 years 4 months, with no mention of CYA, or even a lesser term, carries a strong

presumption of veracity. Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621 (1977). It stands

to reason that anyone who had his life being played out for him would have insisted that there be

some comment about the “real time” to be served. Yet, petitioner hesitated not a whit when

asked if he understood that he would be sentenced to 29 years. Petitioner affirmed that he had

been given sufficient time to consider the consequences of the plea. Petitioner had himself 8

exercised control when he refused to enter into a life plea that he had previously accepted. 

Petitioner knew what the stakes were, knew that the prosecution had a strong case, and knew

that the prosecution had no reason to “cave” on their strong position.9

In order to find for petitioner, the court would have to find that Davenport

deliberately misrepresented to petitioner what the sentence would actually be. While there may

have been some confusion over the potential in the law for a discretionary sentence to CYA

following trial, no confusion existed that the prosecution had not offered such in a plea deal even

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if it were technically available. Davenport would have to possess a state of mind that he so

desperately sought a plea that he would actually misrepresent to his client the fact that the real

sentence was 29 years. Davenport would have had to know that petitioner would answer the

court’s questions so clearly and without hesitation such that his malfeasance would not be

discovered. The undersigned does not find from the record or the testimony that Davenport

possessed such a state of mind, or that Davenport was capable of doing such a thing to his client.

Moreover, under petitioner’s theory, from what Davenport told him, he would

have to be savvy enough to understand that a sentence to CYA meant that he would serve no

more than nine years. Yet, petitioner made not a squeak on the record (only to his lawyer) when

he did not hear that he was being sentenced to CYA. This is not probable.

The undersigned does not reach his conclusion without some doubts. Lawanda

Jordan had no apparent stake in the outcome of these proceedings. Although she and petitioner

had a child together, shortly after his incarceration, they lost contact and she moved to

Indianapolis. Her testimony at the evidentiary hearing appeared credible and uncoached. Jordan

testified that she, petitioner and Davenport discussed the plea offer in a room while a bailiff

stood by, a practice which Davenport testified happened routinely. She clearly testified that

Davenport told her to tell petitioner that he would be released at the age of 25 so that they could

raise their baby together. According to Jordan, this offer was made on January 3, 2000, after

Davenport informed the judge that petitioner would not accept a term less than life. This

testimony also supported petitioner’s claim that Davenport had not discussed this offer with him

prior to that date.

Perhaps confusion was caused by discussion about where petitioner might be

initially housed, as opposed to sentenced to. But the point is, there could be no realistic

expectation or confusion that the prosecution, which was holding out for the longest time for a

life term, would cut their position so radically. Jordan made the evidentiary hearing close, but

“close” does not cross over the preponderance hurdle. 

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 Petitioner acknowledges that in McCarthy v. United States, 394 U.S. 459, 89 S.Ct.

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1166 (1969), the Supreme Court explained that the Federal Rules of Criminal Procedures, Rule

11, requiring a factual recitation sufficient to sustain a conviction prior to acceptance of a guilty

plea, “has not been held to be constitutionally mandated, [but] is designed to assist the district

judge in making the constitutionally required determined that a defendant’s plea is truly

voluntary.” June 30, 2004, supplemental brief, pp. 14-15. Pursuant to McCarthy v. United

States, this court would find no clearly established Supreme Court authority holding that pleas

are involuntary and unknowing if the trial court failed to recite the factual basis of the plea. 

18

The claim should be denied.

Claim 7

In claim 7, petitioner alleges that counsel failed to file a motion to suppress based

on a violation of Miranda. In Tollett v. Henderson, 411 U.S. 258, 93 S. Ct. 1602 (1973), the

Supreme Court held that a defendant who pleads guilty may not thereafter raise claims relating to

the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. 411

U.S. at 267, 93 S. Ct. at 1608. A criminal defendant may only attack the voluntary and

intelligent character of the guilty plea by showing that the advice he received from counsel was

constitutionally inadequate. Id. Pursuant to Tollett, petitioner’s claim alleging ineffective

assistance of counsel based on counsel’s failure to file a motion to suppress is barred because it

does not implicate the voluntariness of his plea. See also United States v. Bohn, supra.

After independently reviewing the record, the court finds that the denial of this

claim by the California Supreme Court was not an unreasonable application of clearly established

Supreme Court authority. Accordingly, this claim should be denied. 

B. Claim 1: Trial Court’s Failure to Obtain Factual Basis for Plea

Petitioner argues that the trial court failed to recite a factual basis for his plea,

rendering his plea involuntary and uninformed. This claim is barred pursuant to Tollett, supra, as

it does not implicate the voluntariness of petitioner’s plea based on ineffective assistance of

counsel.10

After independently reviewing the record, the court finds that the denial of this

claim by the California Supreme Court was not an unreasonable application of clearly established

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Supreme Court authority. Accordingly, this claim should be denied.

C. Claim 2: Trial Court Failed to Adequately Advise Petitioner of his Sentence

Petitioner argues that the trial court failed to advise him that he would serve his

sentence at the California Youth Authority. This claim begs the issue already adjudicated after

evidentiary hearing. There was no reason for the trial court to advise petitioner about a sentence

at CYA because the plea bargain did not envision such – and the judge knew it. To the extent

that petitioner is simply claiming that he should have been informed that he would be initially

housed at CYA, petitioner does not cite any authority that such advisement is necessary for a

constitutionally valid guilty plea.

After independently reviewing the record, the court finds that the denial of this

claim by the California Supreme Court was not an unreasonable application of clearly established

Supreme Court authority. Accordingly, this claim should be denied.

D. Claim 3, 4: Double Jeopardy

Petitioner argues that his conviction for both kidnapping and the lesser included

offense of false imprisonment violated the Double Jeopardy Clause because both charges were

based on the same uninterrupted period of detention. Petitioner also argues that his convictions

for three separate counts of dissuading a victim violated the Double Jeopardy Clause because the

record showed that several threats were made with the single aim of dissuading the victim.

When a defendant’s double jeopardy claim depends on an undeveloped factual

record, it is waived by a guilty plea. United States v. Broce, 488 U.S. 563, 575, 109 S. Ct. 757,

765 (1989). A guilty plea does not waive a claim that the charge, judged on its face, is one which

the state may not constitutionally prosecute. Id. 

Both of petitioner’s claims require an examination of the factual record. In other

words, these claims are not based on an argument that the charges, on their face, violated the

Double Jeopardy Clause. Accordingly, petitioner’s guilty plea waives these claims.

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After independently reviewing the record, the court finds that the denial of this

claim by the California Supreme Court was not an unreasonable application of clearly established

Supreme Court authority. Accordingly, this claim should be denied.

E. Claim 8: Miranda Violation

Petitioner argues that his rights pursuant to Miranda were violated during an

interrogation. Because this claim does not implicate the voluntariness of petitioner’s plea based

on ineffective assistance of counsel, it is barred pursuant to Tollett, supra.

After independently reviewing the record, the court finds that the denial of this

claim by the California Supreme Court was not an unreasonable application of clearly established

Supreme Court authority. Accordingly, this claim should be denied.

Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for

writ of habeas corpus be denied in all respects.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: 9/18/06

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

ggh:kj

gaines.157

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