Smith v. Lewis
Filing
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ORDER TO SHOW CAUSE and granting 2 MOTION for Leave to Proceed in forma pauperis filed by Andre Smith. Habeas Answer due by 3/8/2013. Signed by Judge Charles R. Breyer on 1/4/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 1/7/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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Petitioner,
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vs.
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ANDRE SMITH, T16447,
GREG LEWIS, Warden,
Respondent.
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No. C 12-4011 CRB (PR)
ORDER TO SHOW CAUSE
(Docket # 2)
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Petitioner, a state prisoner incarcerated at Pelican Bay 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 Alameda County Superior Court. He also seeks to
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proceed in forma pauperis under 28 U.S.C. § 1915.
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BACKGROUND
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On or about July 13, 2010, petitioner pleaded guilty to attempted murder
and was sentenced to 18 years in state prison.
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Petitioner did not appeal, but unsuccessfully challenged his conviction in
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the state courts by filing several petitions for a writ of habeas corpus. The
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Supreme Court of California denied his final state petition on June 13, 2012.
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DISCUSSION
A.
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.
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Claims
Petitioner seeks federal habeas corpus relief on grounds of suppression of
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evidence and prosecutorial misconduct. He also claims the suppression of
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evidence rendered his plea involuntary.
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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. Petitioner's pre-plea claims of suppression of evidence and prosecutorial
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misconduct accordingly are DISMISSED. See id. But liberally construed, his
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claim that his plea was not voluntary appears cognizable under § 2254 and merits
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an 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 habeas petitions liberally).
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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 # 2) is
GRANTED.
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The clerk shall serve a copy of this order and the petition and all
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 must serve and file an opposition or statement of non-opposition not
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more than 28 days after the motion is served and filed, and respondent must serve
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and file a reply to an opposition not more than 14 days after the opposition is
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served and filed.
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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: Jan. 4, 2013
CHARLES R. BREYER
United States District Judge
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G:\PRO-SE\CRB\HC.12\Smith, A.12-4011.osc.wpd
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