Gonzalez v. Gipson

Filing 23

ORDER Re 21 by Judge Edward M. Chen. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 10/6/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MIGUEL A. GONZALEZ
(CDCR # G-29258),

No. C-13-0964 EMC (pr)

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Petitioner,
ORDER
v.
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For the Northern District of California

United States District Court

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CONNIE GIPSON, Warden,
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Respondent.
___________________________________/

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This action was filed more than eighteen months ago to challenge a conviction in Santa Cruz

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County Superior Court Case No. F16220 for assault committed while released on own recognizance.

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See Docket # 1 at 2. The Court has denied Respondent’s motion to dismiss the petition as untimely,

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and set a deadline of November 14, 2014 for Respondent to file an answer to the petition.

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Petitioner recently has filed an “application in request to file writ of error coram nobis/or

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consolidate review with pending habeas corpus” in an effort to add to this action a challenge a

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separate conviction, i.e., Santa Cruz County Superior Court Case No. WF00200 for assault resulting

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in great bodily injury. Docket # 21. The convictions in Case No. C16220 and WF00200 were

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resolved in a “bundled” plea bargain that resolved five cases against Petitioner. Docket # 21 at 1.

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For the reasons discussed below, Petitioner must file a new habeas action to challenge the conviction

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in WF00200.

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The writ of error coram nobis is not an available remedy for petitioner. A federal district

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court may not entertain a petition for a writ of coram nobis to challenge a state conviction because

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that writ can only issue to aid the jurisdiction of the court in which the conviction occurred. See

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United States v. Monreal, 301 F.3d 1127, 1130-31 (9th Cir. 2002) (writ of error coram nobis

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attacking Iowa sentence had to be sought in Iowa court); Madigan v. Wells, 224 F.2d 577, 578 n.2

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(9th Cir. 1955) (writ of error coram nobis can only issue to aid jurisdiction of court in which

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conviction was had). This court lacks authority to issue a writ of error coram nobis because

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Petitioner was not convicted in this court.

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Petitioner also suggests that relief may be available under Federal Rule of Criminal

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Procedure 35 to correct his sentence. See Docket # 21 at 2. He is wrong. The Federal Rules of

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Criminal Procedure apply to persons being criminally prosecuted in federal court but do not apply to

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persons seeking relief from state court convictions. See Fed. R. Crim. P. 1(a)(1).
The exclusive remedy in federal court for a prisoner seeking to challenge the lawfulness of

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For the Northern District of California

United States District Court

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his conviction is a petition for writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500

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(1973). Thus, the only way for Petitioner to challenge the conviction in Santa Cruz County Superior

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Court Case No. WF00200 in federal court is by way of a petition for writ of habeas corpus.

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Although the only way for Petitioner to challenge the state court conviction is by way of a

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petition for writ of habeas corpus, he cannot have two habeas petitions considered in a single action.

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Petitioner cannot “consolidate” his new habeas petition with his existing habeas petition in a single

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action because the new petition would supersede the old petition. Each conviction must be

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challenged in a separate habeas action because each conviction presents distinct legal issues. Each

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petition challenging a conviction also often presents different procedural concerns, such as problems

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related to exhaustion of administrative remedies, timeliness, procedural default and custody. For

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example, Petitioner’s new habeas petition likely has some timeliness concerns that are different from

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those for his petition filed eighteen months ago. If the Court finds it to be in the interests of justice,

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it can consolidate two habeas actions for consideration at the same time, but that does not mean that

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a petitioner can do it himself.

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For the foregoing reasons, the “application in request to file writ of error coram nobis/or

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consolidate review with pending habeas corpus” is DENIED. Docket # 21. If Petitioner wants to

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challenge the conviction or sentence imposed in Santa Cruz County Superior Court Case No.

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WF00200, he must file a new action for writ of habeas corpus.

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IT IS SO ORDERED.

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Dated: October 6, 2014

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_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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