Baxter v. Valenzuela
Filing
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ORDER FOR RESPONDENT TO SHOW CAUSE. Habeas Answer due by 4/15/2013. Signed by Judge Phyllis J. Hamilton on 2/13/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 2/13/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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JAMES PAUL BAXTER,
Petitioner,
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vs.
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ORDER FOR RESPONDENT
TO SHOW CAUSE
E. VALENZUELA Warden,
Respondent.
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For the Northern District of California
United States District Court
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No. C 12-5143 PJH (PR)
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Petitioner, a California prisoner currently incarcerated at the California Men’s Colony
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has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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Petitioner was convicted in Contra Costa County, which is in this district, so venue is proper
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here. See 28 U.S.C. § 2241(d). The original petition was dismissed with leave to amend
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and petitioner has filed an amended petition.
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BACKGROUND
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Petitioner pled guilty to second degree robbery and due to an enhancement for a
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prior serious felony was sentenced to seven years in prison. He says he has exhausted
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the claims he raises here by way of a state habeas petition.
DISCUSSION
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A.
Standard of Review
This court may entertain a petition for writ of habeas corpus "in behalf of a person in
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custody pursuant to the judgment of a State court only on the ground that he is in custody
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in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §
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2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet
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heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An
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application for a federal writ of habeas corpus filed by a prisoner who is in state custody
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pursuant to a judgment of a state court must “specify all the grounds for relief available to
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the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules
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Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the
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petition is expected to state facts that point to a ‘real possibility of constitutional error.’”
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Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.
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1970)). “Habeas petitions which appear on their face to be legally insufficient are subject
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to summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102,
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1108 (9th Cir. 1996) (Schroeder, J., concurring).
B.
Legal Claims
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For the Northern District of California
United States District Court
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As grounds for federal habeas relief, petitioner asserts that: (1) The trial court
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accepted his guilty plea without informing him of the full consequences of how credits are in
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earned in prison in violation of state law; (2) the trial court’s sentence violated the plea
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agreement; and (3) ineffective assistance of counsel.
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Liberally construed, petitioner’s second and third claims are sufficient to require a
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response. However, the first claim fails to state a cognizable federal habeas claim.
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Petitioner argues that his plea was invalid as the trial court failed to advise him that there
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would be a limitation to his earned credits while in prison as he would be sentenced as a
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violent offender. Petitioner only describes state statutes that were violated, and petitioner
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admits he pled guilty to having a prior serious felony. Petitioner objects to the state
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statutes that require him to serve a majority of his sentence and not earn credits to leave
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prison early. This claim will be dismissed as it only involves state law and how credits are
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earned in state prisons. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (federal habeas
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unavailable for violations of state law or for alleged error in the interpretation or application
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of state law).
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CONCLUSION
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1. Claims one is DISMISSED. Claims two and three are sufficient to proceed.
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///
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2. The clerk shall serve by regular mail a copy of this order and the petition and all
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attachments thereto on respondent and respondent's attorney, the Attorney General of the
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State of California. The clerk also shall serve a copy of this order on petitioner.
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3. Respondent shall file with the court and serve on petitioner, within sixty days of
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the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules
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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be
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granted. Respondent shall file with the answer and serve on petitioner a copy of all
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portions of the state trial record that have been transcribed previously and that are relevant
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to a determination of the issues presented by the petition.
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For the Northern District of California
United States District Court
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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with
the court and serving it on respondent within thirty days of his receipt of the answer.
4. Respondent may file a motion to dismiss on procedural grounds in lieu of an
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answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing
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Section 2254 Cases. If respondent files such a motion, it is due fifty-six (56) days from the
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date this order is entered. If a motion is filed, petitioner shall file with the court and serve
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on respondent an opposition or statement of non-opposition within twenty-eight (28) days of
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receipt of the motion, and respondent shall file with the court and serve on petitioner a reply
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within fourteen days of receipt of any opposition.
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5. Petitioner is reminded that all communications with the court must be served on
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respondent by mailing a true copy of the document to respondent’s counsel. Petitioner
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must keep the court informed of any change of address and must comply with the court's
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orders in a timely fashion. Failure to do so may result in the dismissal of this action for
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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v.
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Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).
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IT IS SO ORDERED.
Dated: February 13, 2013.
PHYLLIS J. HAMILTON
United States District Judge
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