Pedroza v. Figueroa

Filing 4

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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 JAIRO BRAVO PEDROZA, G40867, 12 Petitioner, 13 14 vs. FRED FIGUEROA, Warden, 15 Respondent. ) ) ) ) ) ) ) ) ) ) No. C 12-4702 CRB (PR) ORDER TO SHOW CAUSE (Docket # 3) 16 17 Petitioner, a California state prisoner incarcerated at Tallahatchie County 18 Correctional Facility (TCCF) in Tutwiler, Mississippi, has filed a pro se petition 19 for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a conviction and 20 sentence from Santa Clara County Superior Court. He also seeks to proceed in 21 forma pauperis under 28 U.S.C. § 1915. 22 BACKGROUND 23 On May 12, 2008, petitioner pleaded no contest to attempted first degree 24 burglary and admitted that he had suffered two prior strike convictions and two 25 prior serious felony convictions in order to avoid a possible life sentence under 26 California's Three Strikes Law. On November 14, 2008, the court struck one of 27 the prior strikes and sentenced petitioner to 14 years in state prison. Petitioner 28 appealed. 1 On December 7, 2009, the California Court of Appeal affirmed the 2 judgment of the trial court. Petitioner did not seek review from the Supreme 3 Court of California, but instead filed a petition for a writ of habeas corpus in the 4 state high court allegedly raising the same claims raised here. 5 On October 19, 2011, the Supreme Court of California denied the petition 6 for a writ of habeas corpus with citations to People v. Duvall, 9 Cal. 4th 464, 474 7 (1995), and In re Swain, 34 Cal. 2d 300, 304 (1949). On September 7, 2012, petitioner filed the instant federal habeas petition.1 8 DISCUSSION 9 10 A. Standard of Review This court may entertain a petition for a writ of habeas corpus "in behalf 11 12 of a person in custody pursuant to the judgment of a State court only on the 13 ground that he is in custody in violation of the Constitution or laws or treaties of 14 the United States." 28 U.S.C. § 2254(a). 15 It shall "award the writ or issue an order directing the respondent to show 16 cause why the writ should not be granted, unless it appears from the application 17 that the applicant or person detained is not entitled thereto." Id. § 2243. 18 B. 19 Claims Petitioner seeks federal habeas corpus relief on the basis of various pre- 20 plea and post-plea violations. Among other things, he claims improper denials of 21 his motions to change his plea, substitute counsel and to represent himself, as 22 well ineffective assistance of trial and appellate counsel. 23 24 A defendant who pleads guilty (or no contest) cannot later raise in federal habeas corpus proceedings independent claims relating to the deprivation of 25 26 27 28 1 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. 2 1 constitutional rights that occurred before the plea of guilty (or no contest). See 2 Haring v. Prosise, 462 U.S. 306, 319-20 (1983) (guilty plea forecloses 3 consideration of pre-plea constitutional deprivations); Tollett v. Henderson, 411 4 U.S. 258, 266-67 (1973) (same). The only challenges left open in federal habeas 5 corpus after a plea of guilty (or no contest) is the voluntary and intelligent 6 character of the plea and the nature of the advice of counsel to plead. Hill v. 7 Lockhart, 474 U.S. 52, 56-57 (1985); Tollett, 411 U.S. at 267. Petitioner's pre- 8 plea claims accordingly are DISMISSED. See id. But liberally construed, his 9 post-plea claims and claims implicating the validity of his plea appear cognizable 10 under § 2254 and merit an answer from respondent. See Zichko v. Idaho, 247 11 F.3d 1015, 1020 (9th Cir. 2001) (federal courts must construe pro se habeas 12 petitions liberally). CONCLUSION 13 14 For the foregoing reasons and for good cause shown, 15 1. 16 17 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 18 attachments thereto on respondent and respondent's attorney, the Attorney 19 General of the State of California. The clerk also shall serve a copy of this order 20 on petitioner. 21 3. Respondent shall file with the court and serve on petitioner, within 22 60 days of the issuance of this order, an answer conforming in all respects to Rule 23 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of 24 habeas corpus should not be granted. Respondent shall file with the answer and 25 serve on petitioner a copy of all portions of the state trial record that have been 26 transcribed previously and that are relevant to a determination of the issues 27 28 3 1 2 presented by the petition. If petitioner wishes to respond to the answer, he shall do so by filing a 3 traverse with the court and serving it on respondent within 30 days of his receipt 4 of the answer. 5 4. Respondent may file a motion to dismiss on procedural grounds in 6 lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the 7 Rules Governing Section 2254 Cases. If respondent files such a motion, 8 petitioner must serve and file an opposition or statement of non-opposition not 9 more than 28 days after the motion is served and filed, and respondent must serve 10 and file a reply to an opposition not more than 14 days after the opposition is 11 served and filed. 12 5. Petitioner is reminded that all communications with the court must 13 be served on respondent by mailing a true copy of the document to respondent's 14 counsel. Petitioner must also keep the court and all parties informed of any 15 change of address. 16 SO ORDERED. 17 DATED: Feb. 1, 2013 CHARLES R. BREYER United States District Judge 18 19 20 21 22 23 24 25 26 G:\PRO-SE\CRB\HC.12\Pedroza, J.12-4702.osc.wpd 27 28 4

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