Mendez v. Warden

Filing 7

ORDER TO SHOW CAUSE Habeas Answer or Dispositive Motion due by 1/23/2017. Signed by Chief Magistrate Judge Joseph C. Spero on 11/28/16. (klhS, COURT STAFF) (Filed on 11/28/2016)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 MANUEL MENDEZ, 11 United States District Court Northern District of California Petitioner, Case No. 16-cv-05120-JCS (PR) 12 v. ORDER TO SHOW CAUSE 13 KIMBERLY A. SEIBEL, 14 Respondent. 15 Docket Nos. 2, 5 and 6 16 INTRODUCTION 17 18 Petitioner seeks federal habeas relief under 28 U.S.C. § 2254 from his state 19 convictions.1 The petition for such relief is here for review under 28 U.S.C. § 2243 and 20 Rule 4 of the Rules Governing Section 2254 Cases. The petition appears both unexhausted and untimely. Petitioner admits he did not 21 22 file for direct or collateral review in state court. If he did not pursue his state judicial 23 remedies, his claims are unexhausted. If available state remedies have not been exhausted 24 as to all claims, the district court must dismiss the petition. See Rose v. Lundy, 455 U.S. 25 509, 510 (1982). It appears untimely because petitioner was sentenced in 2011 but he filed 26 1 27 28 Petitioner consented to magistrate judge jurisdiction. (Docket No. 3.) The magistrate judge, then, has jurisdiction to issue this order, even though respondents have not been served or consented to magistrate judge jurisdiction. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995). 1 the instant petition 5 years later, which is outside the one-year statute of limitations period 2 for filing a federal habeas petition. See 28 U.S.C. § 2244(d)(1). 3 In light of this record, respondent shall file a motion to dismiss on grounds of 4 untimeliness and/or failure to exhaust (or other dispositive motion), or file a notice 5 that respondent declines to file such a motion. If respondent declines to file a 6 dispositive motion, he shall file an answer addressing the merits of the petition. The 7 deadline for filing a motion or answer is January 23, 2017, unless an extension is 8 granted. BACKGROUND 9 10 According to the petition, in 2011, in the Santa Clara Superior Court, petitioner United States District Court Northern District of California 11 pleaded guilty to committing lewd and lascivious acts on a child. The petition does not 12 state how long his sentence is. DISCUSSION 13 14 This Court may entertain a petition for writ of habeas corpus “in behalf of a person 15 in custody pursuant to the judgment of a State court only on the ground that he is in 16 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 17 § 2254(a). A district court considering an application for a writ of habeas corpus shall 18 “award the writ or issue an order directing the respondent to show cause why the writ 19 should not be granted, unless it appears from the application that the applicant or person 20 detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate 21 only where the allegations in the petition are vague or conclusory, palpably incredible, or 22 patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 23 As grounds for federal habeas relief, petitioner claims that (1) the police violated his 24 Fifth Amendment rights; (2) counsel rendered ineffective assistance; and (3) his sentence 25 is unconstitutional. 26 Only Claim 2 is cognizable and shall proceed in this action. When he pleaded 27 guilty, petitioner narrowed the possible claims he could bring on federal habeas review. 28 First, a defendant who pleads guilty cannot later raise in habeas corpus proceedings 2 1 independent claims relating to the deprivation of constitutional rights that occurred before 2 the plea of guilty, such as the police’s alleged violation of petitioner’s Fifth Amendment 3 rights. See Haring v. Prosise, 462 U.S. 306, 319-20 (1983) (guilty plea forecloses 4 consideration of pre-plea constitutional deprivations). 5 Second, after a defendant has entered a plea of guilty, the only challenges left open 6 on federal habeas corpus review concern the voluntary and intelligent character of the plea 7 and the adequacy of the advice of counsel.2 Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); 8 Tollett v. Henderson, 411 U.S. 258, 267 (1973). Under these restrictions, only the 9 ineffective assistance of counsel claim can proceed here. Such a claim necessarily includes a challenge to the adequacy of counsel’s advice regarding the possible prison 11 United States District Court Northern District of California 10 sentence petitioner faced if he pleaded guilty. 12 CONCLUSION 13 1. The Clerk shall serve a copy of this order, the petition and all attachments 14 thereto, and a Magistrate Judge jurisdiction consent or declination to consent form on 15 respondent and respondent’s counsel, the Attorney General for the State of California. The 16 Clerk shall also serve a copy of this order on petitioner. 17 2. Respondent shall file with the Court and serve on petitioner, within sixty (60) 18 days of the date this order is filed, an answer conforming in all respects to Rule 5 of the 19 Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should 20 not be granted based on petitioner’s cognizable claims. Respondent shall file with the 21 answer and serve on petitioner a copy of all portions of the state trial record that previously 22 have been transcribed and that are relevant to a determination of the issues presented by 23 the petition. 24 25 26 27 28 2 There are exceptions to this general bar. For example, a defendant who pleads guilty still may raise in habeas corpus proceedings the very power of the state to bring him into court to answer the charge brought against him, see Haring v. Prosise, 462 U.S. 306, 320 (1983) (citing Blackledge v. Perry, 417 U.S. 21, 30 (1974)), and may raise a double jeopardy claim, see id. (citing Menna v. New York, 423 U.S. 61 (1975)). 3 1 3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse 2 with the Court and serving it on respondent’s counsel within thirty (30) days of the date the 3 answer is filed. 4 4. In lieu of an answer, respondent may file, within sixty (60) days of the date this 5 order is filed, a motion to dismiss on procedural grounds, as set forth in the Advisory 6 Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. If respondent 7 files such a motion, petitioner shall file with the Court and serve on respondent an 8 opposition or statement of non-opposition within thirty (30) days of the date the motion is 9 filed, and respondent shall file with the Court and serve on petitioner a reply within fifteen 10 United States District Court Northern District of California 11 12 13 (15) days of the date any opposition is filed. 5. Petitioner is reminded that all communications with the Court must be served on respondent by mailing a true copy of the document to respondent’s counsel. 6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the 14 Court and respondent informed of any change of address and must comply with the 15 Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this 16 action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 17 18 19 20 21 22 23 24 7. Upon a showing of good cause, requests for a reasonable extension of time will be granted provided they are filed on or before the deadline they seek to extend. 8. Petitioner’s motion to proceed in forma pauperis (Docket Nos. 2, 5 and 6) is GRANTED. 9. The Clerk shall terminate Docket Nos. 2, 5 and 6. 10. The Clerk shall enter Kimberly A. Seibel as the name of the respondent. IT IS SO ORDERED. Dated: November 28, 2016 _________________________ JOSEPH C. SPERO Chief Magistrate Judge 25 26 27 28 4 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MANUEL MENDEZ, Case No. 16-cv-05120-JCS Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 10 WARDEN, Defendant. United States District Court Northern District of California 11 12 13 14 15 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on November 28, 2016, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 Manuel Mendez ID: ID: AK3019 Chuckawalla Valley State Prison P.O. Box 2349 Blythe, CA 92226 19 20 21 Dated: November 28, 2016 22 23 Susan Y. Soong Clerk, United States District Court 24 25 26 By:________________________ Karen Hom, Deputy Clerk to the Honorable JOSEPH C. SPERO 27 28 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?