Smith v. Lewis

Filing 5

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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