Pedroza v. Figueroa
Filing
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ORDER TO SHOW CAUSE and Order granting 3 MOTION for Leave to Proceed in forma pauperis filed by Jairo Bravo Pedroza. Habeas Answer due by 4/5/2013.. Signed by Judge Charles R. Breyer on 2/1/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 2/4/2013)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JAIRO BRAVO PEDROZA, G40867,
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Petitioner,
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vs.
FRED FIGUEROA, Warden,
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Respondent.
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No. C 12-4702 CRB (PR)
ORDER TO SHOW CAUSE
(Docket # 3)
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Petitioner, a California state prisoner incarcerated at Tallahatchie County
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Correctional Facility (TCCF) in Tutwiler, Mississippi, has filed a pro se petition
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for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a conviction and
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sentence from Santa Clara County Superior Court. He also seeks to proceed in
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forma pauperis under 28 U.S.C. § 1915.
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BACKGROUND
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On May 12, 2008, petitioner pleaded no contest to attempted first degree
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burglary and admitted that he had suffered two prior strike convictions and two
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prior serious felony convictions in order to avoid a possible life sentence under
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California's Three Strikes Law. On November 14, 2008, the court struck one of
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the prior strikes and sentenced petitioner to 14 years in state prison. Petitioner
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appealed.
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On December 7, 2009, the California Court of Appeal affirmed the
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judgment of the trial court. Petitioner did not seek review from the Supreme
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Court of California, but instead filed a petition for a writ of habeas corpus in the
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state high court allegedly raising the same claims raised here.
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On October 19, 2011, the Supreme Court of California denied the petition
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for a writ of habeas corpus with citations to People v. Duvall, 9 Cal. 4th 464, 474
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(1995), and In re Swain, 34 Cal. 2d 300, 304 (1949).
On September 7, 2012, petitioner filed the instant federal habeas petition.1
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DISCUSSION
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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 the basis of various pre-
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plea and post-plea violations. Among other things, he claims improper denials of
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his motions to change his plea, substitute counsel and to represent himself, as
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well ineffective assistance of trial and appellate counsel.
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A defendant who pleads guilty (or no contest) cannot later raise in federal
habeas corpus proceedings independent claims relating to the deprivation of
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On October 15, 2012, petitioner filed a petition for a writ of habeas corpus in
the California Court of Appeal. It was denied on December 26, 2012.
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constitutional rights that occurred before the plea of guilty (or no contest). See
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Haring v. Prosise, 462 U.S. 306, 319-20 (1983) (guilty plea forecloses
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consideration of pre-plea constitutional deprivations); Tollett v. Henderson, 411
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U.S. 258, 266-67 (1973) (same). The only challenges left open in federal habeas
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corpus after a plea of guilty (or no contest) is the voluntary and intelligent
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character of the plea and the nature of the advice of counsel to plead. Hill v.
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Lockhart, 474 U.S. 52, 56-57 (1985); Tollett, 411 U.S. at 267. Petitioner's pre-
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plea claims accordingly are DISMISSED. See id. But liberally construed, his
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post-plea claims and claims implicating the validity of his plea appear cognizable
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under § 2254 and merit an answer from respondent. See Zichko v. Idaho, 247
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F.3d 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se habeas
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petitions 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.
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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.
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: Feb. 1, 2013
CHARLES R. BREYER
United States District Judge
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G:\PRO-SE\CRB\HC.12\Pedroza, J.12-4702.osc.wpd
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