Grant v. Bitter

Filing 7

ORDER TO SHOW CAUSE, Order granting 3 MOTION for Leave to Proceed in forma pauperis filed by Chris Grant. Signed by Judge Charles R. Breyer on 11/3/2011. (Attachments: # 1 Certificate of Service)(beS, COURT STAFF) (Filed on 11/8/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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CHRIS JOSEPH GRANT, G-60747,

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Petitioner,

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vs.
M. BITER, Acting Warden,
Respondent.

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No. C 11-3346 CRB (PR)
ORDER TO SHOW CAUSE
(Docket # 3)

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Petitioner, a state prisoner incarcerated at Kern Valley State Prison, has

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filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254

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challenging a conviction from Santa Clara County Superior Court. He also seeks

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to proceed in forma pauperis under 28 U.S.C. § 1915.

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BACKGROUND
Petitioner pleaded guilty to a variety of charges related to two separate

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bank robberies and admitted various priors and enhancement allegations. On or

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about March 27, 2009, he was sentenced to 40 years to life in state prison.

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Petitioner did not appeal, but unsuccessfully sought habeas relief from the

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state courts. On February 23, 2011, the Supreme Court of California denied his

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final petition for state habeas relief.

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DISCUSSION
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Standard of Review
This court may entertain a petition for a writ of habeas corpus "in behalf

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of a person in custody pursuant to the judgment of a State court only on the

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ground that he is in custody in violation of the Constitution or laws or treaties of

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the United States." 28 U.S.C. § 2254(a).

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It shall "award the writ or issue an order directing the respondent to show

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cause why the writ should not be granted, unless it appears from the application

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that the applicant or person detained is not entitled thereto." Id. § 2243.

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B.

Claims

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Petitioner seeks federal habeas corpus relief under § 2254 on the ground

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that the state courts lacked jurisdiction over the bank robbery offenses. Among

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other things, petitioner claims that the federal bank robbery act preempts the

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California bank robbery statute and that robbery of federally insured banks is the

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exclusive province of the federal courts.

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A defendant who pleads guilty cannot later raise in habeas corpus

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proceedings independent claims relating to the deprivation of constitutional rights

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that occurred before the plea of guilty. See Haring v. Prosise, 462 U.S. 306, 319-

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20 (1983) (guilty plea forecloses consideration of pre-plea constitutional

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deprivations); Tollett v. Henderson, 411 U.S. 258, 266-67 (1973) (same). The

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only challenges left open in federal habeas corpus after a guilty plea is the

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voluntary and intelligent character of the plea and the nature of the advice of

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counsel to plead. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Tollett, 411 U.S.

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at 267. But the Supreme Court has recognized a notable exception to this general

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bar – a defendant who pleads guilty still may challenge in habeas corpus

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proceedings the very power of the state to bring him into court to answer the

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charge brought against him. See Haring, 462 U.S. at 320. Liberally construed,

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petitioner's claims appear to fall within this notable exception and merit an

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answer from respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir.

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2001) (federal courts must construe pro se petitions for writs of habeas corpus

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liberally).
CONCLUSION

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For the foregoing reasons and for good cause shown,

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1.

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Petitioner's request to proceed in forma pauperis (docket # 3) is

GRANTED.
2.

The clerk shall serve a copy of this order and the petition and all

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attachments thereto on respondent and respondent's attorney, the Attorney

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General of the State of California. The clerk also shall serve a copy of this order

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on petitioner.

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3.

Respondent shall file with the court and serve on petitioner, within

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60 days of the issuance of this order, an answer conforming in all respects to Rule

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5 of the Rules Governing Section 2254 Cases, showing cause why a writ of

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habeas corpus should not be granted. Respondent shall file with the answer and

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serve on petitioner a copy of all portions of the state trial record that have been

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transcribed previously and that are relevant to a determination of the issues

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presented by the petition.

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If petitioner wishes to respond to the answer, he shall do so by filing a

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traverse with the court and serving it on respondent within 30 days of his receipt

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of the answer.

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4.

Respondent may file a motion to dismiss on procedural grounds in

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lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the

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Rules Governing Section 2254 Cases. If respondent files such a motion,

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petitioner shall file with the court and serve on respondent an opposition or

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statement of non-opposition within 30 days of receipt of the motion, and

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respondent shall file with the court and serve on petitioner a reply within 15 days

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of receipt of any opposition.

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5.

Petitioner is reminded that all communications with the court must

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be served on respondent by mailing a true copy of the document to respondent’s

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counsel. Petitioner must also keep the court and all parties informed of any

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change of address.

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SO ORDERED.

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DATED: Nov. 3, 2011
CHARLES R. BREYER
United States District Judge

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