Torres v. Hatton

Filing 6

ORDER DISMISSING PETITION WITH LEAVE TO AMEND. Signed by Judge Phyllis J. Hamilton on 8/24/17. (Certificate of Service attached) (kcS, COURT STAFF) (Filed on 8/24/2017)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 MARIO TORRES, Petitioner, 7 ORDER DISMISSING PETITION WITH LEAVE TO AMEND v. 8 9 Case No. 17-cv-04332-PJH SHAWN HATTON, Respondent. 10 United States District Court Northern District of California 11 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus 12 13 pursuant to 28 U.S.C. § 2254. Petitioner was convicted in Contra Costa County which is 14 in this district, so venue is proper here. See 28 U.S.C. § 2241(d). He has paid the filing 15 fee. BACKGROUND 16 17 The petition is 384 pages and quite confusing. Petitioner states he was sentenced 18 to ten years and eight months in prison on February 5, 2015. Petition at 1. Petitioner 19 pled guilty on that date to three different cases. Petition at 278-81. It does not appear 20 that he filed a direct appeal of his conviction. Petition at 85. Petitioner did file more than 21 twenty state habeas petitions and writs of mandate. Petition at 37-39. A few of the 22 petitions were to the California Supreme Court, though it is not clear what claims were 23 presented to that court. DISCUSSION 24 25 STANDARD OF REVIEW 26 This court may entertain a petition for writ of habeas corpus “in behalf of a person 27 in custody pursuant to the judgment of a State court only on the ground that he is in 28 1 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 2 § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet 3 heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An 4 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 5 pursuant to a judgment of a state court must “specify all the grounds for relief available to 6 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 7 Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ pleading is not sufficient, for the 8 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 9 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 10 United States District Court Northern District of California 11 1970)). LEGAL CLAIMS 12 The petition appears to assert that: (1) he received ineffective assistance of 13 counsel; (2) the plea bargain was altered; (3) court staff violated California Penal Law; (4) 14 there was no probable cause for the criminal charges; (5) he was denied access to the 15 courts; and (6) he did not receive discovery. 16 Petitioner’s third, fourth, fifth and sixth claims fail to present cognizable federal 17 claims. Petitioner is informed that a defendant who pleads guilty cannot later raise in 18 habeas corpus proceedings independent claims relating to the deprivation of 19 constitutional rights that occurred before the plea of guilty. See Haring v. Prosise, 462 20 U.S. 306, 319-20 (1983) (guilty plea forecloses consideration of pre-plea constitutional 21 deprivations); Tollett v. Henderson, 411 U.S. 258, 266-67 (1973) (same); United States v. 22 Jackson, 697 F.3d 1141, 1144 (9th Cir. 2012) (by pleading guilty defendant waived right 23 to challenge pre-plea violation of Speedy Trial Act). 24 The only challenges left open in federal habeas corpus after a guilty plea is the 25 voluntary and intelligent character of the plea and the nature of the advice of counsel to 26 plead. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Tollett, 411 U.S. at 267. A defendant 27 who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent 28 2 1 character of the guilty plea by showing that the advice he received from counsel was not 2 within the range of competence demanded of attorneys in criminal cases. Id. “[W]hen a 3 plea rests in any significant degree on a promise or agreement of the prosecutor, so that 4 it can be said to be a part of the inducement or consideration, such promise must be 5 fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971); Cuero v. Cate, 827 F.3d 6 879, 882-83, 891 (9th Cir. 2016) (granting habeas where state trial court erroneously 7 allowed prosecutor to amend the complaint to allege an additional prior strike after plea 8 agreement had already been entered and accepted by the court). 9 Aspects of the first and second claims appear to present proper claims. However, before petitioner may challenge either the fact or length of his confinement in a habeas 11 United States District Court Northern District of California 10 petition in this court, he must present to the California Supreme Court any claims he 12 wishes to raise in this Court. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding 13 every claim raised in federal habeas petition must be exhausted). The general rule is 14 that a federal district court must dismiss a federal habeas petition containing any claim as 15 to which state remedies have not been exhausted. Id. If petitioner has not exhausted all 16 of the claims he may also seek to stay the petition while he exhausts the remaining 17 claims. 18 The petition is dismissed with leave to amend to identify what claims have been 19 exhausted. The amended petition may be no longer than 75 pages, including exhibits. CONCLUSION 20 21 1. The petition is DISMISSED with leave to amend in accordance with the 22 standards set forth above. The amended petition must be filed no later than September 23 26, 2017, and must include the caption and civil case number used in this order and the 24 words AMENDED PETITION on the first page. It may be no longer than 75 pages. 25 2. Petitioner is reminded that all communications with the court must be 26 served on respondent by mailing a true copy of the document to respondent’s counsel. 27 Petitioner must keep the court informed of any change of address and must comply with 28 the court’s orders in a timely fashion. Failure to do so may result in the dismissal of this 3 1 act tion for failu to prose ure ecute pursu uant to Federal Rule o Civil Proc of cedure 41(b See b). 2 Ma artinez v. Jo ohnson, 104 F.3d 769, 772 (5th C 1997) (Rule 41(b) applicable in habeas 4 Cir. 3 cas ses). 4 5 IT IS SO ORDER S RED. Da ated: Augus 24, 2017 st 6 7 PH HYLLIS J. H HAMILTON N Un nited States District Ju s udge 8 9 \\can ndoak.cand.circ9 9.dcn\data\users\PJHALL\_psp\2 2017\2017_04332 2_Torres_v_Hatt ton_(PSP)\17-cv v-04332-PJH-dwlta.docx 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 1 2 UNITED STATES D D DISTRICT C COURT 3 NORTHER DISTRIC OF CALI RN CT IFORNIA 4 5 MARIO TOR M RRES, Case No. 1 17-cv-04332 2-PJH Plaintiff, 6 v. CERTIFIC CATE OF S SERVICE 7 8 SH HAWN HAT TTON, . Defendant. 9 10 United States District Court Northern District of California 11 I, the un ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S. ee ice Dis strict Court, Northern Di istrict of Cal lifornia. 12 13 14 15 16 That on August 24, 2017, I SER n RVED a true and correct copy(ies) o the attache by e t of ed, pla acing said co opy(ies) in a postage paid envelope a d addressed to the person(s hereinafte listed, by s) er dep positing said envelope in the U.S. Mail, or by pla d n M acing said co opy(ies) into an inter-off delivery o ffice y rec ceptacle loca in the Cl ated lerk's office. . 17 18 19 ario Torres ID: CDC #A I AR3573 Ma P.O Box 705 LA 222 O. L Sol ledad, CA 93960-0705 20 21 Da ated: August 24, 2017 22 23 24 usan Y. Soon ng Su Cl lerk, United States Distr Court d rict 25 26 27 By y:_________ ___________ _______ K Kelly Collins, Deputy Cle to the , erk H Honorable PH HYLLIS J. H HAMILTON N 28 5

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