Fickes v. Gower

Filing 5

ORDER FOR RESPONDENT TO SHOW CAUSE. Habeas Answer due by 7/22/2013. Signed by Judge Phyllis J. Hamilton on 5/22/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 5/22/2013)

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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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DAVID FICKES,
Petitioner,

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vs.

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ORDER FOR RESPONDENT
TO SHOW CAUSE

R. GOWER,
Respondent.

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For the Northern District of California

United States District Court

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No. C 13-1445 PJH (PR)

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Petitioner, a California prisoner has filed a pro se petition for a writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. He has paid the filing fee. Petitioner was convicted in Santa
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Clara County, which is in this district, so venue is proper here. See 28 U.S.C. § 2241(d).
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BACKGROUND
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Petitioner pleaded nolo contendere to first degree burglary and was sentenced to
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seventeen years in prison. Petitioner’s appeal history is quite extensive as the California
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Court of Appeal first reversed his conviction and then following petitioner’s plea, reversed
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and remanded for re-sentencing. The re-sentencing was later upheld and petitioner also
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filed several state habeas petitions that were denied.
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DISCUSSION
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A.

Standard of Review

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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: (1) he was denied a full and

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For the Northern District of California

United States District Court

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Legal Claims

fair hearing on the issue of probable case; (2) there was no probable cause to arrest

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petitioner; (3) the state court’s refusal to review due process claims regarding the probable

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cause hearing is contrary to established supreme court authority; (4) there was a prejudicial

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delay in filing charges against petitioner; (5) petitioner was denied a hearing on a motion to

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dismiss due to the delay in filing charges; and (6) the trial court violated his open plea by

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not hearing the motion to dismiss.

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Petitioner’s first three claims involve a probable cause hearing prior to his guilty plea.

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However, there is no constitutional right to a preliminary hearing to determine probable

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cause. Gerstein v. Pugh, 420 U.S. 103, 119 (1975) (“a conviction will not be vacated on

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the ground that the defendant was detained without a determination of probable cause”).

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Petitioner is in custody as a result of his conviction after pleading guilty. Whether the trial

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court erred regarding the probable cause hearing is purely an issue of state law, and

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cannot provide a basis for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-

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68 (1991) (federal habeas unavailable for violations of state law or for alleged error in

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the interpretation or application of state law).

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In claim four, petitioner alleges a due process violation from a long delay in filing

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charges that led to the police discarding evidence such as 911 tapes and bicycle repair

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records. This claim is sufficient to require a response.
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Claim five alleges a due process violation in that the trial court refused to hold a

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hearing regarding the delay in filing charges. This claim is similar to claim four and will be

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incorporated into that claim and is therefore dismissed.

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In claim six, petitioner argues that he pleaded guilty under the assumption that a

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motion to dismiss regarding the delay in filing would be considered after the plea, but the

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trial court failed to hold a hearing. Liberally construed, this claim is also sufficient to

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proceed.

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CONCLUSION

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1. All claims are dismissed except claims four and six, which are sufficient to

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For the Northern District of California

United States District Court

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proceed.
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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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.
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:

May 22, 2013.
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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