Gonzales v. Asuncion

Filing 5

ORDER DIRECTING Clerk of Court to Assign District Judge to Case; FINDINGS and RECOMMENDATION to Dismiss Petition for Failure to State a Claim, signed by Magistrate Judge Jennifer L. Thurston on 3/30/17: 21-Day Objection Deadline; CASE ASSIGNED to District Judge Anthony W. Ishii and Magistrate Judge Jennifer L. Thurston, New Case No. 1:17-cv-00318 AWI JLT (HC). (Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RALPH G. GONZALES, 12 Petitioner, 13 v. 14 15 DEBBIE ASUNCION, Warden, 16 Respondent. ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-00318-JLT (HC) ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE TO CASE FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR FAILURE TO STATE A CLAIM [TWENTY-ONE DAY OBJECTION DEADLINE] 17 18 Petitioner has filed a habeas petition challenging his 2008 judgment and sentence. Following a 19 preliminary review of the petition, it appears that the petition fails to present a prima facie claim for 20 relief. Therefore, the Court will recommend that the petition be SUMMARILY DISMISSED. 21 I. 22 PROCEDURAL HISTORY On October 30, 2008, Petitioner was convicted in the Merced County Superior Court of driving 23 under the influence, driving with a suspended license, and failure to provide financial responsibility. 24 (Doc. 1.) Three prior strikes were also found true. (Doc. 1.) He was sentenced under California’s 25 Three Strikes law (Cal. Penal Code §§ 667(b)-(i) and 1170.12(a)-(d)) to a term of 28-years-to-life. 26 Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”), and the 27 appeal was denied on October 29, 2012. It further appears that he petitioned for review to the 28 California Supreme Court but the petition was denied. 1 1 Years later, Petitioner filed a petition for writ of habeas corpus in the Merced County Superior 2 Court. (Doc. 1.) The superior court denied the petition on October 28, 2015. (Doc. 1.) He then filed 3 a petition in the Fifth DCA, and the petition was denied on March 6, 2016. (Doc. 1.) Finally, he filed 4 a petition for writ of habeas corpus in the California Supreme Court, and the petition was denied on 5 November 7, 2016. (Doc. 1.) Petitioner filed his initial federal petition in this Court on March 6, 2017. (Doc. 1). He raises 6 7 five claims for relief which he states he presented in his state habeas proceedings: 1) The sentence was 8 illegal and unauthorized in violation of his constitutional rights because the state court violated prior 9 plea agreements in his 1979, 1985, and 1992 convictions; 2) The prosecutor committed misconduct by 10 using the 1979, 1985, and 1992 convictions by plea agreement as strikes; 3) The trial court went 11 outside its judicial discretion and violated the plea agreements by sentencing him under new statutes; 12 4) Defense counsel was ineffective in failing to raise the issue of unauthorized sentence; and 5) 13 Defense counsel failed to adhere to Petitioner’s warnings concerning the breach of his prior plea 14 agreements. 15 II. DISCUSSION 16 A. Preliminary Review of Petition 17 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary 18 review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it 19 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 20 the district court . . . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory 21 Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, 22 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 23 answer to the petition has been filed. 24 B. Failure to State a Prima Facie Claim for Relief 25 The foundation for all of Petitioner’s grounds for relief is his claim that his federal 26 constitutional right to due process was violated by the use of his three prior convictions to enhance his 27 current sentence. He states he entered into plea agreements in 1979, 1985, and 1992, wherein he was 28 advised that in addition to his sentence, if he sustained another serious felony conviction in the future, 2 1 he would be subject to a one or five year enhancement to run consecutively to any other sentence. 2 When he sustained his 2008 conviction, he was sentenced under California’s Three Strikes law (Cal. 3 Penal Code §§ 667(b)-(i) and 1170.12(a)-(d)) to a term of 28-years-to-life. He argues that this 4 sentence violated the terms of his prior plea agreements. 5 In Santobello v. New York, 404 U.S. 257, 262 (1971), the Supreme Court held that, “when a 6 plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said 7 to be part of the inducement or consideration, such promise must be fulfilled.” This rule has been 8 regularly and consistently invoked and applied in the Ninth Circuit. See, e.g., United States v. 9 Camper, 66 F.3d 229, 232 (9th Cir.1995); United States v. De La Fuente, 8 F.3d 1333, 1340 (9th 10 11 Cir.1993); United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir.1979). Here, however, no such promise or agreement is at issue. Although Petitioner was advised that 12 he may face collateral consequences in the future for any future conviction, the use of his prior 13 convictions to enhance his 2008 sentence did not violate the terms of his prior plea agreements. The 14 use of the 1979, 1985, and 1992 convictions to enhance the petitioner's 2008 sentence did not alter or 15 increase his punishment for the prior convictions because such enhancement was not punishment for 16 the prior offenses but rather a stiffened penalty for Petitioner's subsequent 2008 offense. See Monge 17 v. California, 524 U.S. 721, 728 (1998). 18 Moreover, the prospective use of the prior convictions to enhance the sentence for future 19 convictions cannot be deemed a bargained-for term of those prior plea agreements because they were 20 not matters subject to negotiation. Rather, the prospective use of the prior convictions to enhance the 21 sentence for future convictions was merely a collateral consequence of those prior convictions, and 22 Petitioner did not have a due process right to be advised of all the possible collateral consequences on 23 entering into his guilty plea. See Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir.1988); see also United 24 States v. Delgado–Ramos, 635 F.3d 1237, 1239 (9th Cir.2011); United States v. Brownlee, 915 F.2d 25 527, 528 (9th Cir.1990); Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, 484 26 U.S. 870 (1987). 27 28 Therefore, Petitioner fails to demonstrate how the state court rejection of his claims concerning his prior plea agreements could be contrary to or involved an unreasonable application of clearly 3 1 established federal law, as determined by the United States Supreme Court. Because he fails to state a 2 cognizable claim for relief, and amendment of the claim would be futile, the Court recommends that 3 the petition be summarily dismissed. 4 III. The Clerk of Court is DIRECTED to assign a District Judge to this case. 5 6 7 8 9 ORDER IV. RECOMMENDATION Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus be SUMMARILY DISMISSED with prejudice for failure to state a claim. This Findings and Recommendation is submitted to the United States District Court Judge 10 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the 11 Local Rules of Practice for the United States District Court, Eastern District of California. Within 12 twenty-one days after being served with a copy, Petitioner may file written objections with the court 13 and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate 14 Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling 15 pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the 16 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 17 1153 (9th Cir. 1991). 18 19 20 21 IT IS SO ORDERED. Dated: March 30, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 4

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