Morales v. Hartley

Filing 6

ORDER TO SHOW CAUSE. Habeas Answer due by 4/5/2013. Signed by Judge Phyllis J. Hamilton on 2/4/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 2/4/2013)

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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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EFRAIN MORALES,
Petitioner,

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vs.

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ORDER FOR RESPONDENT
TO SHOW CAUSE

JAMES HARTLET, Warden,
Respondent.

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For the Northern District of California

United States District Court

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No. C 12-5311 PJH (PR)

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This is a habeas case brought pursuant to 28 U.S.C. § 2254 by a state prisoner.

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Petitioner was convicted in Monterey County, which is in this district, so venue is proper

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here. See 28 U.S.C. § 2241(d). Petitioner was ordered to show cause why the petition

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should not be dismissed for failure to exhaust and he has sufficiently demonstrated

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exhaustion, therefore the court will review the claims.

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BACKGROUND

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Petitioner pleaded guilty to attempted second degree murder and was sentenced to
twenty-one years in prison.

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DISCUSSION
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).

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B.

As grounds for federal habeas relief, petitioner asserts that: (1) his upper term

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For the Northern District of California

United States District Court

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Legal Claims

sentence violated his due process rights pursuant to Cunningham v. California, 549 U.S.

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270 (2007), as he had no prior conviction; (2) ineffective assistance of counsel on appeal;

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and (3) denial of Sixth Amendment right to counsel during a probation interview. The first

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two claims are sufficient to require a response, however, petitioner’s third claim will be

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dismissed.

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Petitioner alleges that after he pleaded guilty he was interviewed by a probation

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officer but was not informed of his right to counsel. The Sixth and Fourteenth Amendments

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guarantee the right to counsel only at critical stages of the criminal proceedings, which are

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the points where substantial rights of the accused may be affected. Kirby v. Illinois, 406

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U.S. 682, 690 (1972). A denial of the Sixth and Fourteenth Amendment right to counsel

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can result in reversal only if the absence of counsel occurs at a critical stage in the

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adversary proceedings; if the stage is not critical, then there can be no constitutional

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violation. Wainwright v. Torna, 455 U.S. 586, 587–88 (1982) (no deprivation of the

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effective assistance of counsel could have occurred because there was no constitutional

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right to counsel in proceedings for discretionary state post-conviction review). The United

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States Supreme Court has not provided a definitive list of the critical stages of a criminal

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prosecution, so there can be no violation of established Supreme Court authority. See

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United States v. Benford, 574 F.3d 1228, 1232 (9th Cir. 2009).
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Generally, with respect to sentencing, the assistance of counsel is guaranteed only

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when the defendant is confronted by agents of the prosecution who have an adversarial

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role in the sentencing process; in contrast, in pre-sentence interviews, a probation officer is

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not an agent of the prosecution, has no adversarial role in the sentencing proceedings, and

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acts as a neutral gatherer of information for the court. United States v. Leonti, 326 F.3d

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1111, 1119–20 (9th Cir. 2003) (distinguishing probation interviews from the process of an

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accused's rendering substantial assistance to the prosecution). Thus, it has been held that

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a post-guilty plea, pre-sentence interview in a non-capital case is not a critical stage of

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adversary criminal proceedings. United States v. Benlian, 63 F.3d 824, 827–28 (9th Cir.
1995) (noting that the issue was effectively waived in the case before the court, but

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For the Northern District of California

United States District Court

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confirming the vitality of the pre-guidelines holding of Baumann v. United States, 692 F.2d

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565 (9th Cir. 1982) that a routine, pre-sentence interview of a person convicted of a

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non-capital federal offense is not a critical stage at which counsel's presence or advice is

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necessary to protect the defendant's right to a fair trial). This claim is dismissed.

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CONCLUSION
1. 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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2. 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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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.
3. Respondent may file a motion to dismiss on procedural grounds in lieu of an
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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4. Petitioner is reminded that all communications with the court must be served on

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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For the Northern District of California

respondent by mailing a true copy of the document to respondent’s counsel. Petitioner

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United States District Court

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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 4, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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