Langston v. Swarthout
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 3/21/13 ORDERING that Petitioners motion to proceed in forma pauperis is GRANTED. Petitioners instant petition for a writ of habeas corpus is construed as a motionto amend his habeas petition cu rrently pending in Langston v. Swarthout, Case No. 2:12-cv- 01633 JFM. The Clerk of Court is directed to file, in Langston v. Swarthout, Case No. 2:12-cv-01633 JFM, a copy of this order together with the petition in the instant case on February 2, 2013 (Dkt. No. 1 ). Finally, the Clerk of Court is directed to close this case. CASE CLOSED(Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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WALTER SHANE LANGSTON,
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Petitioner,
vs.
GARY SWARTHOUT,
Respondent.
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No. 2:13-cv-0197 KJN P
ORDER
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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma
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pauperis. Petitioner has consented to the jurisdiction of the undersigned magistrate judge for all
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purposes. (Dkt. No. 5.) See 28 U.S.C. § 636(c); Local Rule 305(a).
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Examination of the in forma pauperis application reveals that petitioner is unable
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to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be
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granted. See 28 U.S.C. § 1915(a).
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Petitioner challenges his May 21, 2010 conviction and sentence, pursuant to a plea
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of no contest, on charges of residential burglary (Cal. Pen. Code § 459), vehicle theft (Cal. Veh.
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Code §10851(a)), possession of a stolen vehicle (Cal. Pen. Code § 496d (a)), and misdemeanor
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resisting a peace officer (Cal. Pen. Code §148 (a)(1)), on the ground that the trial court, on
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December 21, 2009, improperly denied petitioner’s request to withdraw his no-contest plea.
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Petitioner previously entered in state court a no-contest plea in these matters,
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which resulted in a 2008 conviction. On August 10, 2009, the conviction was overturned on
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appeal, on the ground that petitioner had been induced to enter his plea, at least in part, by the
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trial court’s misrepresentation of petitioner’s appeal rights. See People v. Langston, 2009 WL
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2450525 (Cal. App. 2009) (“Langston I”). Thereafter, on remand, petitioner was convicted and
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sentenced in May 2010, described by the appellate court as follows:
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On remand, defendant, represented by counsel, moved to withdraw
his plea and the trial court granted his motion. Thereafter, on the
fourth day of trial after the jury was sworn, defendant entered a
straight-up no contest plea to all counts and allegations; a sentence
was not indicated or negotiated. Defense counsel wrote to the
probation department after defendant entered his plea: “It is my
position that [defendant] is still entitled to the sentence imposed by
Judge Orr [14 years four months]. The rationale is that he should
not be punished, by being sentenced to additional time, because of
what was essentially a mistake by the Court.” Instead, the trial
court imposed a state prison sentence of an aggregate term of 17
years four months, three years longer than was imposed in
Langston I. The court also imposed a $3,400 restitution fine and a
$3,400 parole revocation restitution fine, $600 more for each than
was imposed in Langston I. Defendant was awarded presentence
credits of 976 actual days and 488 conduct days, a total of 1,464
days.
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People v. Langston, 2011 WL 4839069 (Cal. App. 2011) (“Langston II”). The trial judgment
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was affirmed on appeal, and the California Supreme Court denied review.
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Petitioner thereafter sought collateral relief by challenging his May 2010
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conviction and sentence through state petitions for writs of habeas corpus based on five claims:
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double jeopardy, untimeliness of respondent’s briefing, unlawful arrest, alleged discovery
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violation by appointed counsel, and ineffective assistance of counsel for failing to obtain all
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material evidence. After exhausting his state court remedies, petitioner filed, on June 19, 2012,
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a petition for writ of habeas corpus in the federal district court; that action remains pending for
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decision in this court. See Langston v. Swarthout, Case No. 2:12-cv-01633 JFM.
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On February 1, 2013, petitioner filed the instant action, which asserts one claim
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challenging his May 2010 conviction and sentence, viz., that, on December 21, 2009, the trial
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court erred in denying petitioner’s motion to withdraw his no-contest plea.
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Two problems beset the instant petition. First, petitioner concedes that he hasn’t
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exhausted his new claim in the state courts (“[h]avent exhaust[ed] Appellate level yet”). (Dkt.
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No. 1 at 5.) Exhaustion of state court remedies is a prerequisite to filing a federal petition for
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writ of habeas corpus. 28 U.S.C. § 2254(b)(1). Picard v. Connor, 404 U.S. 270, 276 (1971);
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Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).
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Second, this court is required to construe the instant petition as a motion to amend
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petitioner’s first-filed petition. If a new petition is filed in the district court when a previous
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habeas petition is still pending for decision, then the new petition must be construed as a motion
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to amend the pending petition. Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). So
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construed, petitioner may, in his first-filed action, seek leave to “stay and abey” that action
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pending the state court exhaustion of his new claim. See Rhines v. Weber, 544 U.S. 269 (2005).
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Accordingly, IT IS HEREBY ORDERED that:
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1. Petitioner’s motion to proceed in forma pauperis is granted.
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2. Petitioner’s instant petition for a writ of habeas corpus is construed as a motion
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to amend his habeas petition currently pending in Langston v. Swarthout, Case No. 2:12-cv-
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01633 JFM.
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3. The Clerk of Court is directed to file, in Langston v. Swarthout, Case No. 2:12-
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cv-01633 JFM, a copy of this order together with the petition in the instant case on February 2,
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2013 (Dkt. No. 1).
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4. Finally, the Clerk of Court is directed to close this case.
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SO ORDERED.
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DATED: March 21, 2013
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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