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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARIO TORRES,
Petitioner,

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ORDER DISMISSING PETITION WITH
LEAVE TO AMEND

v.

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Case No. 17-cv-04332-PJH

SHAWN HATTON,
Respondent.

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United States District Court
Northern District of California

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Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. Petitioner was convicted in Contra Costa County which is

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in this district, so venue is proper here. See 28 U.S.C. § 2241(d). He has paid the filing

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fee.
BACKGROUND

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The petition is 384 pages and quite confusing. Petitioner states he was sentenced

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to ten years and eight months in prison on February 5, 2015. Petition at 1. Petitioner

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pled guilty on that date to three different cases. Petition at 278-81. It does not appear

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that he filed a direct appeal of his conviction. Petition at 85. Petitioner did file more than

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twenty state habeas petitions and writs of mandate. Petition at 37-39. A few of the

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petitions were to the California Supreme Court, though it is not clear what claims were

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presented to that court.
DISCUSSION

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STANDARD OF REVIEW

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This court may entertain a petition for writ of habeas corpus “in behalf of a person
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in custody pursuant to the judgment of a State court only on the ground that he is in
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custody 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. § 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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United States District Court
Northern District of California

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1970)).
LEGAL CLAIMS

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The petition appears to assert that: (1) he received ineffective assistance of
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counsel; (2) the plea bargain was altered; (3) court staff violated California Penal Law; (4)
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there was no probable cause for the criminal charges; (5) he was denied access to the
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courts; and (6) he did not receive discovery.
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Petitioner’s third, fourth, fifth and sixth claims fail to present cognizable federal
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claims. Petitioner is informed that a defendant who pleads guilty cannot later raise in
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habeas corpus proceedings independent claims relating to the deprivation of
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constitutional rights that occurred before the plea of guilty. See Haring v. Prosise, 462
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U.S. 306, 319-20 (1983) (guilty plea forecloses consideration of pre-plea constitutional
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deprivations); Tollett v. Henderson, 411 U.S. 258, 266-67 (1973) (same); United States v.
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Jackson, 697 F.3d 1141, 1144 (9th Cir. 2012) (by pleading guilty defendant waived right
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to challenge pre-plea violation of Speedy Trial Act).
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The only challenges left open in federal habeas corpus after a guilty plea is the
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voluntary and intelligent character of the plea and the nature of the advice of counsel to
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plead. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Tollett, 411 U.S. at 267. A defendant
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who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent
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character of the guilty plea by showing that the advice he received from counsel was not

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within the range of competence demanded of attorneys in criminal cases. Id. “[W]hen a

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plea rests in any significant degree on a promise or agreement of the prosecutor, so that

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it can be said to be a part of the inducement or consideration, such promise must be

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fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971); Cuero v. Cate, 827 F.3d

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879, 882-83, 891 (9th Cir. 2016) (granting habeas where state trial court erroneously

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allowed prosecutor to amend the complaint to allege an additional prior strike after plea

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agreement had already been entered and accepted by the court).

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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

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United States District Court
Northern District of California

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petition in this court, he must present to the California Supreme Court any claims he

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wishes to raise in this Court. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding

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every claim raised in federal habeas petition must be exhausted). The general rule is

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that a federal district court must dismiss a federal habeas petition containing any claim as

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to which state remedies have not been exhausted. Id. If petitioner has not exhausted all

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of the claims he may also seek to stay the petition while he exhausts the remaining

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claims.

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The petition is dismissed with leave to amend to identify what claims have been

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exhausted. The amended petition may be no longer than 75 pages, including exhibits.
CONCLUSION

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1.

The petition is DISMISSED with leave to amend in accordance with the

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standards set forth above. The amended petition must be filed no later than September

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26, 2017, and must include the caption and civil case number used in this order and the

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words AMENDED PETITION on the first page. It may be no longer than 75 pages.

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2.

Petitioner is reminded that all communications with the court must be

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

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Petitioner must keep the court informed of any change of address and must comply with

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the court’s orders in a timely fashion. Failure to do so may result in the dismissal of this
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act
tion for failu to prose
ure
ecute pursu
uant to Federal Rule o Civil Proc
of
cedure 41(b See
b).

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Ma
artinez v. Jo
ohnson, 104 F.3d 769, 772 (5th C 1997) (Rule 41(b) applicable in habeas
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Cir.

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cas
ses).

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IT IS SO ORDER
S
RED.
Da
ated: Augus 24, 2017
st

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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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ndoak.cand.circ9
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2017\2017_04332
2_Torres_v_Hatt
ton_(PSP)\17-cv
v-04332-PJH-dwlta.docx

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United States District Court
Northern District of California

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UNITED STATES D
D
DISTRICT C
COURT

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NORTHER DISTRIC OF CALI
RN
CT
IFORNIA

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MARIO TOR
M
RRES,

Case No. 1
17-cv-04332
2-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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SH
HAWN HAT
TTON,
.
Defendant.

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United States District Court
Northern District of California

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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.

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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.
.

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ario Torres ID: CDC #A
I
AR3573
Ma
P.O Box 705 LA 222
O.
L
Sol
ledad, CA 93960-0705

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Da
ated: August 24, 2017

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usan Y. Soon
ng
Su
Cl
lerk, United States Distr Court
d
rict

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By
y:_________
___________
_______
K
Kelly Collins, Deputy Cle to the
,
erk
H
Honorable PH
HYLLIS J. H
HAMILTON
N

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