Ewing v. Lizarraga

Filing 3

ORDER TO SHOW CAUSE, granted : 2 MOTION for Leave to Proceed in forma pauperis filed by DeWayne Lamont Ewing. Habeas Answer or Dispositive Motion due by 12/19/2016.. Signed by Judge Charles R. Breyer on 10/14/2016. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 10/18/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DeWAYNE L. EWING, AI4771,
Petitioner,

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vs.
J. A. LIZARRAGA, Warden,
Respondent.

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No. C 16-5875 CRB (PR)
ORDER TO SHOW CAUSE
(ECF No. 2)

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Petitioner, a state prisoner incarcerated at Mule Creek 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 and sentence from Alameda County Superior Court. He

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also seeks to proceed in forma pauperis under 28 U.S.C. § 1915.

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BACKGROUND
On or about September 12, 2011, petitioner pleaded no contest to two

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counts of kidnaping and one count of carjacking pursuant to a negotiated plea

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agreement, and was sentenced to 25 years in state prison.

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On September 17, 2012, petitioner filed a petition for a writ of habeas

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corpus in Alameda County Superior Court challenging his presentence time

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credits and his counsel’s advice to enter a plea of no contest. It was denied in a

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reasoned opinion on November 15, 2012, and a subsequent petition to the

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California Court of Appeal was summarily denied on April 11, 2013.

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On April 1, 2015, petitioner filed another petition for a writ of habeas

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corpus in Alameda County Superior Court challenging his counsel’s advice to

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enter a plea of no contest. It was denied in a reasoned opinion on May 28, 2015,

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and subsequent petitions to the California Court of Appeal and California

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Supreme Court were summarily denied on September 3, 2015 and April 20, 2016.

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DISCUSSION

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A.

This court may entertain a petition for a writ of habeas corpus “in behalf

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Standard of Review

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).
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.

Claims

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Petitioner seeks federal habeas corpus relief on the ground that defense

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counsel was constitutionally ineffective in advising him to plead no contest to

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two counts of kidnaping and one count of carjacking in exchange for a sentence

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of 25 years in state prison. Among other things, petitioner claims that counsel

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advised him to plead no contest to charges that had expired under the applicable

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statutes of limitations, incorrectly informed him that he faced life in prison if he

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went to trial, and failed to investigate the evidence (including DNA evidence)

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and petitioner’s competency to stand trial.

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It is well established that the only challenges left open in federal habeas

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corpus after a plea of guilty (or a plea of no contest) is the voluntary and

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intelligent character of the plea and the nature of the advice of counsel to plead.

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Hill v. Lockhart, 474 U.S. 52, 56-57 (1985). Liberally construed, petitioner’s

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claim that counsel’s advice to plead no contest amounted to ineffective assistance

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of counsel appears cognizable under § 2254 and merits an answer from

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respondent. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (federal

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courts must construe pro se petitions for writs of habeas corpus 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 (ECF No. 2) is

GRANTED.
2.

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.

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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: Oct. 14, 2016
CHARLES R. BREYER
United States District Judge

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