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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RALPH G. GONZALES,

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Petitioner,

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v.

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DEBBIE ASUNCION, Warden,

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Respondent.

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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]

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Petitioner has filed a habeas petition challenging his 2008 judgment and sentence. Following a

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preliminary review of the petition, it appears that the petition fails to present a prima facie claim for

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relief. Therefore, the Court will recommend that the petition be SUMMARILY DISMISSED.

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I.

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PROCEDURAL HISTORY
On October 30, 2008, Petitioner was convicted in the Merced County Superior Court of driving

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under the influence, driving with a suspended license, and failure to provide financial responsibility.

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(Doc. 1.) Three prior strikes were also found true. (Doc. 1.) He was sentenced under California’s

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Three Strikes law (Cal. Penal Code §§ 667(b)-(i) and 1170.12(a)-(d)) to a term of 28-years-to-life.

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Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”), and the

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appeal was denied on October 29, 2012. It further appears that he petitioned for review to the

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California Supreme Court but the petition was denied.
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Years later, Petitioner filed a petition for writ of habeas corpus in the Merced County Superior

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Court. (Doc. 1.) The superior court denied the petition on October 28, 2015. (Doc. 1.) He then filed

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a petition in the Fifth DCA, and the petition was denied on March 6, 2016. (Doc. 1.) Finally, he filed

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a petition for writ of habeas corpus in the California Supreme Court, and the petition was denied on

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November 7, 2016. (Doc. 1.)
Petitioner filed his initial federal petition in this Court on March 6, 2017. (Doc. 1). He raises

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five claims for relief which he states he presented in his state habeas proceedings: 1) The sentence was

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illegal and unauthorized in violation of his constitutional rights because the state court violated prior

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plea agreements in his 1979, 1985, and 1992 convictions; 2) The prosecutor committed misconduct by

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using the 1979, 1985, and 1992 convictions by plea agreement as strikes; 3) The trial court went

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outside its judicial discretion and violated the plea agreements by sentencing him under new statutes;

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4) Defense counsel was ineffective in failing to raise the issue of unauthorized sentence; and 5)

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Defense counsel failed to adhere to Petitioner’s warnings concerning the breach of his prior plea

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agreements.

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II.

DISCUSSION

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A. Preliminary Review of Petition

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Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary

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review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it

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plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in

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the district court . . . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory

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Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus,

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either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an

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answer to the petition has been filed.

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B. Failure to State a Prima Facie Claim for Relief

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The foundation for all of Petitioner’s grounds for relief is his claim that his federal

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constitutional right to due process was violated by the use of his three prior convictions to enhance his

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current sentence. He states he entered into plea agreements in 1979, 1985, and 1992, wherein he was

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advised that in addition to his sentence, if he sustained another serious felony conviction in the future,
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he would be subject to a one or five year enhancement to run consecutively to any other sentence.

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When he sustained his 2008 conviction, he was sentenced under California’s Three Strikes law (Cal.

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Penal Code §§ 667(b)-(i) and 1170.12(a)-(d)) to a term of 28-years-to-life. He argues that this

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sentence violated the terms of his prior plea agreements.

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In Santobello v. New York, 404 U.S. 257, 262 (1971), the Supreme Court held that, “when a

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plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said

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to be part of the inducement or consideration, such promise must be fulfilled.” This rule has been

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regularly and consistently invoked and applied in the Ninth Circuit. See, e.g., United States v.

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Camper, 66 F.3d 229, 232 (9th Cir.1995); United States v. De La Fuente, 8 F.3d 1333, 1340 (9th

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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

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he may face collateral consequences in the future for any future conviction, the use of his prior

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convictions to enhance his 2008 sentence did not violate the terms of his prior plea agreements. The

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use of the 1979, 1985, and 1992 convictions to enhance the petitioner's 2008 sentence did not alter or

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increase his punishment for the prior convictions because such enhancement was not punishment for

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the prior offenses but rather a stiffened penalty for Petitioner's subsequent 2008 offense. See Monge

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v. California, 524 U.S. 721, 728 (1998).

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Moreover, the prospective use of the prior convictions to enhance the sentence for future

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convictions cannot be deemed a bargained-for term of those prior plea agreements because they were

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not matters subject to negotiation. Rather, the prospective use of the prior convictions to enhance the

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sentence for future convictions was merely a collateral consequence of those prior convictions, and

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Petitioner did not have a due process right to be advised of all the possible collateral consequences on

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entering into his guilty plea. See Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir.1988); see also United

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States v. Delgado–Ramos, 635 F.3d 1237, 1239 (9th Cir.2011); United States v. Brownlee, 915 F.2d

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527, 528 (9th Cir.1990); Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, 484

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U.S. 870 (1987).

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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
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established federal law, as determined by the United States Supreme Court. Because he fails to state a

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cognizable claim for relief, and amendment of the claim would be futile, the Court recommends that

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the petition be summarily dismissed.

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III.

The Clerk of Court is DIRECTED to assign a District Judge to this case.

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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

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assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California. Within

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twenty-one days after being served with a copy, Petitioner may file written objections with the court

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and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling

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pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

March 30, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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