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IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

CEDRIC CHESTER JOHNSON, AX8353, 

Petitioner, 

v. 

SHAWN HATTON, Warden, 

Respondent. 

Case No. 17-cv-00872-CRB (PR) 

ORDER DENYING PETITION FOR 

A WRIT OF HABEAS CORPUS AND 

DENYING A CERTIFICATE OF 

APPEALABILITY 

Petitioner Cedric Chester Johnson, a state prisoner incarcerated at the Correctional 

Training Facility (CTF) in Soledad, California, seeks a writ of habeas corpus under 28 

U.S.C. § 2254 invalidating three consolidated criminal convictions from Monterey County 

Superior Court on the ground that he received ineffective assistance from both trial and 

appellate counsel. For the reasons set forth below, the petition will be denied. 

I. STATEMENT OF THE CASE 

On February 17, 2015, the Monterey County District Attorney filed a complaint in 

case number SS150250A accusing petitioner of transportation of a controlled substance 

(Cal. Health & Safety Code § 11379(a)), possession for sale of a controlled substance (id. 

§ 11378), possession of marijuana for sale (id. § 11359), receiving stolen property (Cal. 

Penal Code § 243(b)), and misdemeanor resisting a peace officer (id. § 148(a)(1)) with two 

prior prison term sentencing enhancements (id. § 667.5(b)). 
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On that same day, the district attorney also filed a complaint in case number 

SS150256A accusing petitioner of corporal injury to a spouse or cohabitant with a prior 

domestic violence battery conviction (Cal. Penal Code § 273.5(f)(1)) and false 

imprisonment (id. § 236) with two prior prison term enhancements. 

On May 1, 2015, the district attorney filed a complaint in case number SS150683A 

accusing petitioner of criminal threats (Cal. Penal Code § 422(a)), stalking (id. § 646.9(b)) 

and dissuading a witness (id. § 136.1(b)(2)), and of six misdemeanor counts of violation of 

a criminal protective order (id. § 166(c)(1)). 

On May 21, 2015, after petitioner waived a preliminary hearing on some of the 

charges and the court ordered that he be held to answer the others, the district attorney 

filed an information charging petitioner with all the above charges except criminal threats. 

On May 28, 2015, the district attorney filed a motion to consolidate the above three 

cases and, on June 11, 2015, the motion was heard and granted. 

 On June 25, 2015, pursuant to a negotiated plea agreement, petitioner pled no 

contest to transportation of a controlled substance, misdemeanor battery on a peace officer 

and misdemeanor resisting a peace officer, as alleged in case number SS150250A; 

corporal injury to a spouse or cohabitant with a prior domestic violence battery conviction, 

as alleged in case number SS150256A; and dissuading a witness, as alleged in case 

number SS150683A. In exchange for his plea, petitioner would be sentenced to six years 

in state prison – four years for corporal injury to a spouse or cohabitant with a prior 

conviction, two years for dissuading a witness, and a concurrent three-year term for 

transportation of a controlled substance and concurrent 180-day terms for misdemeanor 

battery on a peace officer and resisting a peace officer – and all other charges would be 
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dismissed. 

But when petitioner learned that his first two attorneys – Maribel Ferreira and Jan 

Lindberg – had engaged in plea negotiations with Deputy District Attorney Elaine 

McCleaf and that his current attorney – Evan George – did not know that the earlier 

negotiations had included a promise by the prosecutor to keep open a plea offer for a 

concurrent sentence for the transportation of a controlled substance and misdemeanor 

resisting a peace officer charges in exchange for petitioner’s waiver of a preliminary 

hearing in case number SS150250A, petitioner informed George that he wished to 

withdraw his pleas. Petitioner objected to the fact that George had advised him to accept 

the prosecutor’s six-year global plea offer, which included not only a plea to the 

transportation of a controlled substance and misdemeanor resisting a peace officer charges 

in the earlier promise to petitioner’s former attorney(s), but also a plea to misdemeanor 

battery on a peace officer. 

On August 6, 2015, George filed a motion to withdraw petitioner’s pleas. The court 

heard and denied the motion. It also heard and denied petitioner’s motions for substitution 

of counsel on August 19 and on August 27, after it denied the motion to withdraw 

petitioner’s pleas. 

On August 27, 2015, the court sentenced petitioner to six years in state prison 

pursuant to the terms of the plea agreement – four years for corporal injury to a spouse or 

cohabitant with a prior conviction, two years for dissuading a witness, and a concurrent 

three-year term for transportation of a controlled substance and concurrent 180-day terms 

for misdemeanor battery on a peace officer and resisting a peace officer. The remaining 

charges and allegations were dismissed. 
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/ 

On September 2 and 8, 2015, petitioner filed notices of appeal and requests for 

certificates of probable cause to appeal, which the trial court denied. New appellate 

counsel Nerrissa Kunakemakorn then filed petitions for a writ of mandate and for a writ of 

habeas corpus in the California Court of Appeal. 

On December 17, 2015, the California Court of Appeal denied the petition for writ 

of mandate and, on September 28, 2016, affirmed the judgment of the trial court and 

denied the petition for a writ of habeas corpus. The appellate court noted that appellate 

counsel had filed an opening brief summarizing the case but raising no issues, and that 

petitioner had filed a supplemental brief on his own behalf. Pursuant to People v. Wende, 

25 Cal. 3d 436 (1979), and People v. Kelley, 40 Cal. 4th 106 (2006), the court reviewed 

the appellate records in their entirely and found no arguable issues on appeal. 

On October 13, 2016, petitioner filed a petition for a writ of habeas corpus, and, on 

October 31, 2016, a petition for review, in the Supreme Court of California. The state high 

court denied both petitions on December 14, 2016. 

On February 22, 2017, petitioner filed the instant petition for a writ of habeas 

corpus under 28 U.S.C. § 2254. Per the order filed on April 26, 2017, the court found that 

the petition appeared to state arguably cognizable claims under § 2254 and ordered 

respondent to show cause why a writ of habeas corpus should not be granted. Respondent 

filed a response to the order to show cause, but petitioner did not file a traverse or reply 

despite being afforded an opportunity to do so. 
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II. STATEMENT OF FACTS 

The California Court of Appeal summarized the relevant facts of three consolidated 

cases as follows: 

1. Superior Court Case No. SS150256A 

 In January 2015, defendant physically injured his 

girlfriend of seven months (Doe) during an argument at his 

residence. Doe testified at the preliminary hearing in March 

2015 that defendant head butted her, grabbed her, threw her to 

the floor, and hit her face with a clenched fist. When Doe tried 

to leave, defendant blocked the door and pushed her away. 

Defendant finally opened the door and pushed her out. Doe 

sustained a knot on her head and lacerations under her eye. 

Defendant was charged with felony corporal injury to a spouse 

or cohabitant with a prior conviction (§ 273.5, subds. (a), (f); 

count 1), and felony false imprisonment (§ 236; count 2). The 

information alleged two prior prison terms (§ 667.5, subd. (b)). 

2. Superior Court Case No. SS150250A 

 According to the probation report, in February 2015 

police initiated a traffic stop on defendant’s vehicle after 

receiving a tip that defendant, who was on probation, was 

using and possibly selling drugs, and had been involved in a 

domestic violence incident. Defendant resisted an officer’s 

attempt to restrain him, hitting the officer in the face and 

walking away. Defendant aggressively resisted arrest. It took 

four officers to handcuff him, and one officer fell to the ground 

injuring his knee during the struggle. Defendant was found in 

possession of 6 grams of methamphetamine and 7.2 grams of 

marijuana. Defendant’s passenger (Doe) gave the police a bag 

containing 27.1 grams of methamphetamine when asked 

whether defendant had given her anything to hide during the 

traffic stop. 

 A probation search of defendant’s home uncovered a 

digital scale with what appeared to be traces of 

methamphetamine, glass smoking pipes, and a laptop computer 

reported stolen. Police found several small baggies near 77 

grams of marijuana, suggesting that the marijuana was being 

prepared for sale. Neighbors informed the officers searching 

the residence that there had been constant pedestrian traffic in 

and out of defendant’s home day and night, and text messages 

on defendant’s phone suggested defendant was selling 

methamphetamine. 

 Defendant was charged with felony counts of 

transportation of methamphetamine (Health & Saf. Code, § 

11379, subd. (a); count 1), possession for sale of 

methamphetamine (Health & Saf. Code, § 11378; count 2), 

possession of marijuana for sale (Health & Saf. Code, § 11359; 

count 3), receiving stolen property (§ 496, subd. (a); count 4), 
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and misdemeanor counts of battery on a peace officer (§ 243, 

subd. (b); count 5) and resisting an officer (§ 148, subd. (a)(1); 

count 6). The complaint also alleged two prior prison terms. (§ 

667.5, subd. (b).) 

3. Superior Court Case No. SS150683A 

 According to the probation report, 11 days after the 

preliminary hearing in case No. SS150256A, Doe reported to 

police that she had received several letters from defendant, 

who was in custody at the county jail. The letters contained 

threatening remarks, causing Doe to fear for her safety and the 

safety of her daughter. Doe also reported having received 

phone calls from strangers asking her to put money in 

defendant's account at the jail. Defendant was charged with 

felony counts of making criminal threats (§ 422, subd. (b); 

count 1), stalking (§ 646.9, subd. (b); count 2), dissuading a 

witness from prosecuting a crime (§ 136.1, subd. (b)(2); count 

3), and six misdemeanor counts of violating a criminal 

protective order (§ 166, subd. (c)(1); counts 4–9). 

People v. Johnson, No. H042761, slip op. at 3-4 (Cal. Ct. App. Sept. 28, 2016) (ECF No. 

12-1 at 275-76). 

III. STANDARD OF REVIEW 

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). 

 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.” Id. § 2254(d). 

 “Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state 
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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] Court has on a set of 

materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412–13 (2000). 

“Under the ‘reasonable application clause,’ a federal habeas court may grant the writ if the 

state court identifies the correct governing legal principle from [the] Court’s decisions but 

unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. 

 “[A] federal habeas court may not issue the writ simply because the 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.” 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. 

 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; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). 

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. Id. 

IV. DISCUSSION 

 Petitioner claims he received ineffective assistance from both trial and appellate 

counsel. Petitioner specifically claims that: (1) George rendered ineffective assistance by 

advising petitioner to accept the prosecutor’s six-year global plea offer while unaware of 
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the prosecutor’s earlier promise to petitioner’s first defense attorney; (2) Ferreira and 

Lindberg, who represented him before George, rendered ineffective assistance on a 

number of grounds, including waiving a preliminary hearing and allowing the cases to be 

consolidated; and (3) Kunakemakorn rendered ineffective assistance on appeal by filing a 

brief summarizing the cases but raising no issues, and by failing to raise the ineffective 

assistance of counsel claims regarding George, Ferreira and Lindberg. 

 A claim of ineffective assistance of counsel is cognizable as a claim of denial of the 

Sixth Amendment right to counsel, which guarantees not only assistance, but effective 

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to 

prevail on a claim of ineffective assistance of counsel, petitioner must establish two things. 

First, he must establish that counsel’s performance was deficient, i.e., that it fell below an 

“objective standard of reasonableness” under prevailing professional norms. Id. at 687-88. 

Second, he must establish that he was prejudiced by counsel’s deficient performance, i.e., 

that “there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” Id. at 694. A reasonable probability 

is a probability sufficient to undermine confidence in the outcome. Id. 

 A court considering a claim of ineffective assistance “must indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable professional 

assistance.” Id. at 689. The relevant inquiry is not what counsel could have done, but 

whether the choices counsel made were reasonable. See Babbitt v. Calderon, 151 F.3d 

1170, 1173 (9th Cir. 1998). In evaluating the reasonableness of counsel’s conduct, a 

reviewing court must consider the circumstances at the time of counsel’s conduct and 

cannot “second-guess” counsel’s decisions or view them under the “fabled twenty-twenty 
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vision of hindsight.” Edwards v. Lamarque, 475 F.3d 1121, 1127 (9th Cir. 2007) (en banc) 

(internal quotation marks and citations omitted). 

 Under 28 U.S.C. § 2254(d), the “pivotal question is whether the state court’s 

application of the Strickland standard was unreasonable. This is different from asking 

whether defense counsel’s performance fell below Strickland’s standard . . . . A state court 

must be granted a deference and latitude that are not in operation when the case involves 

review under the Strickland standard itself.” Harrington v. Richter, 562 U.S. 86, 101 

(2011). A federal habeas court therefore must use “a ‘doubly deferential’ standard of 

review that gives both the state court and the defense attorney the benefit of the doubt.” 

Burt v. Titlow, 134 S. Ct. 10, 13 (2013). 

A. Ineffective Assistance Claim Regarding George 

 Petitioner claims George rendered ineffective assistance by advising 

petitioner to accept the prosecutor’s six-year global plea offer while unaware of the 

prosecutor’s earlier promise to petitioner’s first defense attorney. The claim is without 

merit. 

1. Factual Background 

 Petitioner was represented by Ferreira and by Lindberg before George 

was appointed to represent him. Ferreira represented petitioner first, and secured a 

promise from the prosecutor to keep open a plea offer for a concurrent sentence for the 

transportation of a controlled substance and misdemeanor resisting a peace officer charges 

in exchange for petitioner’s waiver of a preliminary hearing in case number SS150250A. 

On February 24, 2015, petitioner waived his right to a preliminary hearing. But shortly 

thereafter he filed a motion for substitution of counsel under People v. Marsden, 2 Cal. 3d 
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118 (1970), that was heard and denied on March 27, 2015. On May 12, 2015, Ferreira was 

relieved due to a conflict and new defense counsel – Lindberg – was appointed. 

Lindberg continued plea negotiations with the prosecutor and presented petitioner 

with a four-year global plea offer, consisting of two years for the corporal injury to a 

spouse or cohabitant with a prior conviction charge in case number SS150256A and two 

years for the dissuading a witness charge in case number SS150683A, with the drug case 

(case number SS150250A) running concurrent. Petitioner refused the offer, and filed a 

second Marsden motion that was heard and denied on June 9, 2015. Shortly thereafter, 

Lindberg declared a conflict of interest and new counsel – George – was appointed. 

On June 24, 2015, the prosecutor conveyed a new six-year global plea offer to 

George consisting of four years for the corporal injury to a spouse or cohabitant with a 

prior conviction charge in case number SS150256A and two years for the dissuading a 

witness charge in case number SS150683A, with a concurrent three-year term for the 

transportation of a controlled substance charge and concurrent 180-day terms for the 

misdemeanor battery on a peace officer and resisting a peace officer charges in case 

number SS150250A. George presented the offer to petitioner, who accepted it and entered 

a corresponding plea the next day, June 25, 2015. 

But a few days after entering the plea, petitioner notified George that he wished to 

withdraw it. One of the issues petitioner raised was that he did not believe he had waived 

a preliminary hearing in the drug case (case number SS150250A). George ordered the 

pertinent transcript and found that the prosecutor had promised to keep open a plea offer 

for a concurrent sentence for the transportation of a controlled substance and misdemeanor 

resisting a peace officer charges in exchange for petitioner’s waiver of a preliminary 
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hearing, but under the six-year global plea offer petitioner had just accepted he had to 

plead to transportation of a controlled substance, misdemeanor resisting a peace officer 

and misdemeanor battery on a peace officer for a concurrent sentence with his other cases. 

George explained to petitioner that he did not believe the issue was a good one because 

petitioner had been charged with multiple additional misdemeanors and felonies 

“subsequent to the preliminary hearing waiver,” but in order to protect petitioner’s rights, 

George “put that into a motion [to withdraw the plea] and filed it on his behalf” on August 

6, 2015. Pet. Ex. PP (ECF No. 1-7) at 1219. 

On August 19, 2015, before the court held a hearing on the motion to withdraw the 

plea, it held a hearing on petitioner’s Marsden motion alleging that George had rendered 

ineffective assistance of counsel. At the hearing, George explained that he did not believe 

he had been ineffectively assisting petitioner and that he had included the ineffective 

assistance claim in the motion to withdraw the plea in order to protect petitioner’s rights. 

On the day George was appointed to represent petitioner, June 23, 2015, George spoke 

with the prosecutor and Lindberg, who stated that the most recent plea offer was for “an 

eight year top with a four year minimum.” Id. at 1214. George contacted his investigator 

and set up an interview with petitioner for the next day. That night, George spent seven 

hours reviewing petitioner’s file. The next day, George met with the prosecutor and 

negotiated a “six-year stipulated sentence.” Id. at 1215. George and his investigator met 

with petitioner, who said, “‘I’ve never wanted to go to trial, I don’t want to go to trial, I 

want the best offer.’” Id. at 1216. George explained the most recent offer and that it would 

require an “appellate waiver.” Id. Petitioner continued to instruct George to try to get the 

best offer. After spending more than an hour with petitioner and the investigator, George 
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returned to the prosecutor’s office to try to get a better offer, but the prosecutor would not 

change her offer. The next morning, George met with petitioner and petitioner agreed to 

take the six-year global plea offer. 

George further explained that a few days after entering his plea, petitioner notified 

George that he wished to withdraw it. George then discovered that the prosecutor had 

promised to keep open a plea offer for a concurrent sentence for the transportation of a 

controlled substance and misdemeanor resisting a peace officer charges in exchange for 

petitioner’s waiver of a preliminary hearing, whereas under the six-year global plea offer 

petitioner had just accepted, he had to plead to transportation of a controlled substance, 

misdemeanor resisting a peace officer and misdemeanor battery on a peace officer for a 

concurrent sentence with his other cases. But George explained to petitioner that he did 

not believe the issue was a good one because petitioner had been charged with multiple 

additional misdemeanors and felonies “subsequent to the preliminary hearing waiver,” id. 

at 1219, and petitioner was now facing a maximum sentence of “forty-five years, eight 

months.” id. at 1220. Furthermore, the prosecutor “could be adding new charges based on 

a number of new factors, one of which is in the probation report, [and] the continuous 

contact with the victim.” Id. 

The state court denied petitioner’s Marsden motion: 

At this time I do believe Mr. George has been properly 

representing you and will continue to do so. In fact, the 

amount of research and time he put into this case . . . in the 

short amount of time he’s had the case, I actually find 

exceedingly substantial. Everything that he did in that amount 

of time, it appears to the Court he must have just been working 

on your case and no other case. . . . To have committed that 

sort of time to representing you and investigating the case, 

even discussing with someone he considers an expert on 

eviden[ce]. . . . I certainly feel that he has properly represented 

you and I deny the Marsden motion. 
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Id. at 1225–26. 

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At the hearing on the motion to withdraw the plea held on August 27, 2015, the 

court summarized the motion as follows: 

And it’s – just so I’m sure I understand the grounds, it’s that he 

ended up pleading to a deal which is different than the DA had 

offered at the time that he waived his rights to have a 

preliminary hearing in one matter. But subsequent to that 

waiver of preliminary hearing, he committed some other 

offenses which were charged so that the People no longer made 

that offer; is that correct? 

Resp. Ex. 2 (ECF. No. 12-1) at 1503. George and the prosecutor agreed with the court’s 

summary and the court ruled as follows: 

So based on the fact there has been a change in circumstances, 

I don’t believe that any contract principles would hold the 

People obligated to keep that offer open. And I did, again, 

consider the motion . . . . [T]he motion to withdraw plea is 

denied at this time. 

Id. at 1504. 

2. Strickland and Guilty Pleas 

 The two-part Strickland test applies to challenges to guilty pleas based 

on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). In the 

context of guilty pleas, the first Strickland requirement is nothing more than a restatement 

of the standard of attorney competence – it asks whether counsel’s advice was within the 

range of competence demanded of attorneys in criminal cases. See id. at 57; McMann v. 

Richardson,397 U.S. 759, 771 (1970). But the second “prejudice” requirement asks 

whether “counsel’s constitutionally ineffective performance affected the outcome of the 

plea process.” Hill, 474 U.S. at 59. In order to satisfy the ‘prejudice’ requirement, a 
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petitioner who pleaded guilty “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.” Id. The petitioner “must convince the court that a decision to reject the plea bargain 

would have been rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 

372 (2010). 

Strict adherence to the Strickland standard is essential when reviewing the choices 

an attorney made at the plea bargain stage. Premo v. Moore, 562 U.S. 115, 125 (2011). 

Federal habeas relief is unavailable unless the petitioner demonstrates that the state court’s 

rulings on both the performance and prejudice prongs “involved an unreasonable 

application of clearly established federal law.” Id. at 121. 

3. Analysis 

 Petitioner is not entitled to federal habeas relief on his claim that 

George rendered ineffective assistance by advising petitioner to accept the prosecutor’s 

six-year global plea offer while unaware of the prosecutor’s earlier promise to petitioner’s 

first defense attorney, Ferreira. 

Petitioner has not shown that George’s advice to accept the six-year global plea 

offer was not within the range of competence demanded of attorneys in criminal cases. 

See Hill, 474 U.S. at 57; McMann, 397 U.S. at 771. The record instead suggests that 

George’s advice was reasonable because petitioner faced a much longer sentence than six 

years had he been convicted of the myriad felony and misdemeanor charges against him. 

And it further suggests that George’s advice was reasonable even if he had known about 

the prosecutor’s earlier offer to Ferreira because, as the state court noted in denying the 
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motion to withdraw petitioner’s plea, the prosecutor had no obligation to hold open the 

earlier offer after petitioner committed and was charged with additional offenses. See 

Resp. Ex. 2 at 1503-04. 

Nor has petitioner demonstrated that he was prejudiced by George’s advice to 

accept the six-year global plea offer by showing 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, 474 U.S. at 59. There is no indication that petitioner would not have 

accepted the six-year global plea offer, and would have insisted on going to trial, if he had 

known that the misdemeanor battery on a peace officer charge in the offer was inconsistent 

with the prosecutor’s earlier promise to Ferreira. First, nothing in the record suggests that 

petitioner would not have accepted the six-year global plea offer if he had known about the 

earlier promise to Ferreira. Although petitioner lamented at the August 19, 2015 hearing 

on his Marsden motion turning down the prosecutor’s prior four-year global plea offer to 

his second defense attorney, Lindberg, he did not state at that hearing or at the August 27, 

2015 hearing on his motion to withdraw his plea that he would not have accepted the 

prosecutor’s subsequent six-year global offer to George if he had known that the 

misdemeanor battery on a peace officer charge in the offer was inconsistent with the 

prosecutor’s earlier promise to Ferreira. Second, petitioner made clear to the court and to 

George that he wanted to take a plea and not go to trial. As George testified, petitioner had 

previously stated “‘I’ve never wanted to go to trial, I don’t want to go to trial, I want the 

best offer.’” Pet. Ex. PP at 1216. Third, the six-year global plea agreement George 

negotiated for petitioner was far better than the forty-five plus year sentence petitioner 

could have received if he lost at trial. Under the circumstances, it cannot be said that 
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petitioner was prejudiced by George’s advice to accept the six-year global plea offer 

because it cannot be said that a decision to reject the six-year global plea offer “would 

have been rational.” Padilla, 559 U.S. at 372. 

Petitioner is not entitled to federal habeas relief on his ineffective assistance claim 

regarding George because he has not satisfied both the performance and prejudice prongs 

of Strickland, and demonstrated that the state courts’ rejection of the claim amounted to an 

unreasonable application of the Strickland standard under 28 U.S.C. § 2254(d). See 

Harrington, 562 U.S. at 101. 

B. Ineffective Assistance Claim Regarding Ferreira and Lindberg 

 Petitioner claims Ferreira and Lindberg, who represented him before George, 

rendered ineffective assistance on a number of grounds, including waiving a preliminary 

hearing without his consent, violating his speedy trial rights, allowing the cases to be 

consolidated and failing to file a potential motion to suppress evidence. But respondent 

correctly argues that the claims are barred by petitioner’s subsequent plea. 

 The Supreme Court has explained that: 

a guilty plea represents a break in the chain of events which 

has preceded it in the criminal process. When a criminal 

defendant has solemnly admitted in open court that he is in fact 

guilty of the offense with which he is charged, he may not 

thereafter raise independent claims relating to the deprivation 

of constitutional rights that occurred prior to the entry of the 

guilty plea. He may only attack the voluntary and intelligent 

character of the guilty plea by showing that the advice he 

received from counsel was not within the standards set forth in 

McMann. 

Tollett v. Henderson, 411 U.S. 258, 267 (1973). Put simply, parties “who voluntarily and 

intelligently plead[] guilty to a criminal charge may not subsequently seek federal habeas 

corpus relief on the basis of pre-plea constitutional violations.” Hudson v. Moran, 760 
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F.2d 1027, 1029–30 (9th Cir. 1985). Because petitioner’s ineffective assistance claims 

against Ferreira and Lindberg relate to conduct that took place before petitioner entered his 

plea upon George’s advice, the claims are barred under the rationale of Tollet. 

The Ninth Circuit recently held that the rationale of Tollett does not apply if 

counsel’s incompetence “prevents petitioner from making an informed choice whether to 

plead.” Mahrt v. Beard, 849 F.3d 1164, 1170 (9th Cir. 2017). But Mahrt is 

distinguishable because petitioner’s instant ineffective assistance claims do not regard 

George, upon whose advice petitioner entered his plea, but rather petitioner’s former 

defense attorneys who had no role in his choice whether to plead. 

In any event, petitioner’s ineffective assistance claims regarding Ferreira and 

Lindberg would fail on the merits because petitioner has not shown that there is a 

reasonable probability that, but for Ferreira’s and/or Lindberg’s errors, he would not have 

accepted the six-year global plea offer negotiated by George and would have insisted on 

going to trial. See Hill, 474 U.S. at 58-59. 

C. Ineffective Assistance Claim Regarding Kunakemakorn 

 Petitioner claims Kunakemakorn rendered ineffective assistance on appeal 

by filing an appellate brief summarizing the case but raising no issues, and by failing to 

raise the ineffective assistance of counsel claims regarding George, Ferreira and Lindberg. 

The claim is without merit. 

 Under California’s procedure established in People v. Wende, 25 Cal. 3d 436 

(1979), appellate counsel, upon concluding that an appeal would be frivolous, files a brief 

with the appellate court that summarizes the procedural and factual history of the case. 

She also attests that she has reviewed the record, explained her evaluation of the case to 
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her client, provided the client with a copy of the brief, and informed the client of his right 

to file a pro se supplemental brief. She further requests that the appellate court 

independently examine the record for arguable issues. Smith v. Robbins, 528 U.S. 259, 

265 (2000) (discussing People v. Wende). The appellate court, upon receiving a “Wende 

brief,” conducts a review of the entire record and affirms if it finds the appeal to be 

frivolous.1

 If, however, it finds an arguable (i.e., nonfrivolous) issue, it orders briefing on 

that issue. Id. at 266. 

 California’s Wende procedure does not violate the Fourteenth Amendment because 

it provides indigent criminal defendants sufficient safeguards to make their appeal 

adequate and effective. Id. at 276. It “reasonably ensures that an indigent’s appeal will be 

resolved in a way that is related to the merit of that appeal.” Id. at 278-79. 

 Here, Kunakemakorn filed a “Wende brief” summarizing the case but raising no 

issues, and petitioner filed a supplemental brief on his own behalf. Pursuant to People v. 

Wende and People v. Kelley, the California Court of Appeal reviewed the appellate record 

in its entirety and found no arguable issues on appeal. Petitioner cannot show that 

Kunakemakorn was ineffective simply because she invoked and used California’s Wende 

procedure. See Smith, 528 U.S. at 284-85. 

 But petitioner can show that appellate counsel was ineffective if she unreasonably 

failed to discover nonfrivolous issues and did not file a merits brief raising them. See id.; 

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 The Supreme Court of California added in People v. Kelly, 40 Cal. 4th 106 (2006), that 

the appellate court must issue a written decision in a Wende appeal, and must address any claims 

made by the defendant if he has filed a supplemental brief to appellate counsel’s Wende brief. See 

Kelly, 40 Cal. 4th at 124 (“[I]n affirming the judgment rendered in a Wende appeal, the Court of 

Appeal must prepare a written opinion that describes the contentions personally raised by the 

defendant and the reasons those contentions fail. In addition, the Court of Appeal must provide a 

brief description of the underlying facts, the procedural history, the crimes of which the defendant 

was convicted, and the punishment imposed.”). 
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Delgado v. Lewis, 223 F.3d 976, 980-81 (9th Cir. 2000). The proper standard for 

evaluating such a claim is that enunciated in Strickland. See Smith, 528 U.S. at 285. 

Petitioner must first show that counsel was objectively unreasonable in failing to find 

arguable issues to appeal, i.e., unreasonably failed to discover nonfrivolous issues and 

failed to file a merits brief raising them. See id. If he succeeds in that showing, he must 

then demonstrate prejudice, i.e., he must show a reasonable probability that, but for 

counsel’s unreasonable failure to file a merits brief, petitioner would have prevailed on 

appeal. See id. at 285-86. 

 Unfortunately for petitioner, he makes no such showing. The court already has 

found that none of his claims of ineffective assistance regarding George, Ferreira or 

Lindgberg have merit, and petitioner has not shown that there is a reasonable probability 

that, but for appellate counsel’s failure to raise those claims or any other claims in a merits 

brief, petitioner would have prevailed on appeal. See id.; see also Wildman v. Johnson, 

261 F.3d 832, 840 (9th Cir. 2001) (“appellate counsel’s failure to raise issues on direct 

appeal does not constitute ineffective assistance of counsel when appeal would not have 

provided grounds for reversal”). 

Petitioner is not entitled to federal habeas relief on his ineffective assistance claim 

regarding Kunakemakorn because he has not satisfied both the performance and prejudice 

prongs of Strickland, and demonstrated that the state court’s rejection of the claim 

amounted to an unreasonable application of the Strickland standard under 28 U.S.C. § 

2254(d). See Harrington, 562 U.S. at 101. 

V. CONCLUSION 

For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. 
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Northern District of California 

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