Breceda v. Hartley

Filing 10

ORDER DISMISSING The Petition WITH LEAVE to File a First Amended Petition No Later Than Thirty (30) Days After Service of This Order 1 ; DEADLINE: THIRTY (30) DAYS; ORDER DIRECTING The Clerk to Send Petitioner a Blank Petition for Writ of Habeas Corpus 1 , signed by Magistrate Judge Sandra M. Snyder on 5/26/11. (Attachments: # 1 2254 Petition (blank form))(Hellings, J)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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AARON BRECEDA,

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Petitioner,

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v.
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JAMES D. HARTLEY,
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Respondent.
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1:11-cv—00752–SMS-HC
ORDER DISMISSING THE PETITION
WITH LEAVE TO FILE A FIRST
AMENDED PETITION NO LATER THAN
THIRTY (30) DAYS AFTER SERVICE OF
THIS ORDER (Doc. 1)
DEADLINE:

THIRTY (30) DAYS

ORDER DIRECTING THE CLERK TO SEND
PETITIONER A BLANK PETITION FOR
WRIT OF HABEAS CORPUS
(Doc. 1)

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Petitioner is a state prisoner proceeding pro se and in

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forma pauperis with a petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2254.

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Petitioner has consented to the jurisdiction of the United States

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Magistrate Judge to conduct all further proceedings in the case,

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including the entry of final judgment, by manifesting consent in

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a signed writing filed by Petitioner on May 17, 2011 (doc. 7).

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Pending before the Court is the petition, which was filed on

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April 28, 2011, and transferred to this division on May 11, 2011.

Pursuant to 28 U.S.C. § 636(c)(1),

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I.

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Rule 4 of the Rules Governing § 2254 Cases in the United

Screening the Petition

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States District Courts (Habeas Rules) requires the Court to make

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a preliminary review of each petition for writ of habeas corpus.

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The Court must summarily dismiss a petition "[i]f it plainly

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appears from the petition and any attached exhibits that the

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petitioner is not entitled to relief in the district court....”

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Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.

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1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.

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1990).

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grounds of relief available to the Petitioner; 2) state the facts

Habeas Rule 2(c) requires that a petition 1) specify all

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supporting each ground; and 3) state the relief requested.

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Notice pleading is not sufficient; rather, the petition must

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state facts that point to a real possibility of constitutional

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error.

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O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v.

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Allison, 431 U.S. 63, 75 n. 7 (1977)).

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that are vague, conclusory, or palpably incredible are subject to

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summary dismissal.

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Cir. 1990).

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Rule 4, Advisory Committee Notes, 1976 Adoption;

Allegations in a petition

Hendricks v. Vasquez, 908 F.2d 490, 491 (9th

Further, the Court may dismiss a petition for writ of habeas

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corpus either on its own motion under Habeas Rule 4, pursuant to

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the respondent's motion to dismiss, or after an answer to the

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petition has been filed.

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8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43

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(9th Cir. 2001).

Advisory Committee Notes to Habeas Rule

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A petition for habeas corpus should not be dismissed without

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leave to amend unless it appears that no tenable claim for relief

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can be pleaded were such leave granted.

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F.2d 13, 14 (9th Cir. 1971).
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Jarvis v. Nelson, 440

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II.

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Petitioner alleges that he is an inmate of the Avenal State

The Allegations of the Petition

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Prison serving a sentence of five (5) years imposed in the Tulare

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County Superior Court for having been convicted of violating Cal.

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Pen. Code §§ 288A and 288.

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of nolo contendere to the charges.

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(Pet. 1.)

Petitioner entered a plea

(Pet. 1.)

Petitioner admits that he did not appeal from the judgment

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of conviction, but he did file a petition for writ of habeas

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corpus in the California Supreme Court.

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(Pet. 1.)

Petitioner alleges that his Sixth and Fourteenth Amendment

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right to counsel and his rights protected by the Equal Protection

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clause of the Fourteenth Amendment were violated when Petitioner,

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who had not been advised of his right to counsel, was interviewed

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without counsel by a probation officer at a “Probation Report

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Interview” pursuant to Cal. Pen. Code 1203.

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Petitioner alleges that he had informed the officer that he did

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not want to continue the interview without counsel; further,

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Petitioner did not waive his right to counsel.

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probation officer continued the interview and documented and

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completed a probation report.

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conviction is void for want of jurisdiction.

(Pet. 5.)

However, the

Petitioner contends that the

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III.

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Because the petition was filed after April 24, 1996, the

Failure to State a Cognizable Claim

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effective date of the Antiterrorism and Effective Death Penalty

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Act of 1996 (AEDPA), the AEDPA applies in this proceeding.

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v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008

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(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

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A district court may entertain a petition for a writ of
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Lindh

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habeas corpus by a person in custody pursuant to the judgment of

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a state court only on the ground that the custody is in violation

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of the Constitution, laws, or treaties of the United States. 28

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U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,

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375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,

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16 (2010) (per curiam).

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Petitioner alleges denial of the right to counsel based on

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either the absence of counsel, or an effective waiver thereof, at

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an interview with a probation officer that resulted in a report.

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Petitioner does not identify the point of the criminal

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proceedings at which the interview occurred.

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The Sixth and Fourteenth Amendments guarantee the right to

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counsel only at critical stages of the criminal proceedings,

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which are the points where substantial rights of the accused may

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be affected.

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v. Rhay, 389 U.S. 128, 134 (1967).

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Fourteenth Amendment right to counsel can result in reversal only

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if the absence of counsel occurred at a critical stage in the

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adversary proceedings; if the stage was not critical, then there

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can be no constitutional violation.

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U.S. 586, 587-88 (1982) (no deprivation of the effective

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assistance of counsel could have occurred because there was no

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constitutional right to counsel in proceedings for discretionary

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state post-conviction review).

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Kirby v. Illinois, 406 U.S. 682, 690 (1972); Mempa
A denial of the Sixth and

Wainwright v. Torna, 455

A post-guilty plea, pre-sentence interview in a non-capital

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case has been held not to be a critical stage of trial.

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States v. Benlian, 63 F.3d 824, 827-28 (9th Cir. 1995) (citing

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cases from other circuits).
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United

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Petitioner has not stated specific facts concerning the

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stage of the proceedings in the instant case or other

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circumstances that would indicate that the absence of counsel

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occurred at a critical stage of the proceedings.

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Further, in order to demonstrate the absence of effective

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assistance of counsel, it is generally required that the

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petitioner show that the absence of counsel resulted in prejudice

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to the petitioner.

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92 (1984); United States v. Cronic, 466 U.S. 648, 658 (1984).

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The exceptional cases involve a complete denial of counsel, an

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entire failure of counsel to subject the prosecution’s case to

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meaningful adversarial testing, or circumstances such that no

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attorney could provide effective assistance.

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Cronic, 466 U.S. 648, 659-60.

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Strickland v. Washington, 466 U.S. 668, 691-

United States v.

Here, Petitioner has not stated any specific facts

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indicating any prejudice to Petitioner or any exceptional

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circumstances that would render inapplicable the requirement of

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showing that prejudice resulted from the absence of counsel.

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Accordingly, Petitioner has failed to state specific facts

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that would entitle him to relief in a proceeding pursuant to 28

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U.S.C. § 2254.

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However, it is logically possible that Petitioner could

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state specific facts that, if true, would entitle him to relief.

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Therefore, the petition will be dismissed with leave to file a

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first amended petition.

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IV.

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The instant petition must be dismissed for the reasons

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Amendment of the Petition

stated above.

Petitioner will be given an opportunity to file a
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first amended petition to cure the deficiencies.

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advised that failure to file a petition in compliance with this

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order (i.e., a completed petition with cognizable federal claims

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clearly stated and with exhaustion of state remedies clearly

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stated) within the allotted time will result in a recommendation

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that the petition be dismissed and the action be terminated.

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Petitioner is advised that the amended petition should be

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entitled, “First Amended Petition,” and it must refer to the case

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number in this action.

Petitioner is

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V.

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Accordingly, it is ORDERED that:

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1) The petition for writ of habeas corpus is DISMISSED with

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Disposition

leave to amend; and

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2) Petitioner is GRANTED thirty (30) days from the date of

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service of this order to file an amended petition in compliance

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with this order; and

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3) The Clerk of the Court is DIRECTED to send Petitioner a
form petition pursuant to 28 U.S.C. § 2254.

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IT IS SO ORDERED.

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Dated:
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May 26, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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