Parker v. Baca et al
ORDER granting ECF No. 8 Motion to Dismiss; Grounds 3 and 4 are dismissed; respondents answer to petition due 2/19/2018; petitioner will have 45 days from day of service of answer to file reply. Signed by Judge Miranda M. Du on 1/4/2018. (Copies have been distributed pursuant to the NEF - KW)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Case No. 3:17-cv-00442-MMD-WGC
ISIDRO BACA, et al.,
Before the Court is respondents’ motion to dismiss (ECF No. 8). Petitioner has not
filed a response within the time allotted by Local Rule LR 7-2, and thus is deemed to
consent to the granting of the motion. LR 7-2(d). After reviewing the motion and the
supporting exhibits, the Court grants the motion.
Pursuant to a plea agreement, petitioner was convicted in state district court of
second-degree murder. (Exh. 40 (ECF No. 10-9).) Petitioner appealed, and the Nevada
Supreme Court affirmed. (Exh. 61 (ECF No. 11).)
Petitioner then commenced post-conviction proceedings in the state district court.
The state district court denied his petition. (Exh. 79 (ECF No. 11-18).) Petitioner appealed,
and the Nevada Court of Appeals affirmed. (Exh. 94 (ECF No. 11-33).)
Petitioner then commenced this action.
Respondents argue correctly that ground 3 of the petition is not cognizable in
federal habeas corpus. Petitioner alleges in ground 3 that counsel failed to challenge the
propriety of the charge of second-degree murder. This is a claim of a pre-plea
constitutional violation, and petitioner is barred from raising it in federal habeas corpus.
Tollett v. Henderson, 411 U.S. 258, 267 (1973).1
Respondents also argue correctly that ground 4 of the petition is not cognizable in
federal habeas corpus. Petitioner alleges in ground 4 that the state district court erred in
admitting evidence at the post-conviction evidentiary hearing. “[A] petition alleging errors
in the state post-conviction review process is not addressable through habeas corpus
proceedings.” Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989); see also Gerlaugh
v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997).
It is therefore ordered that respondents’ motion to dismiss (ECF No. 8) is granted.
Grounds 3 and 4 of the petition are dismissed.
It is further ordered that respondents will have forty-five (45) days from the date of
entry of this order to file and serve an answer, which must comply with Rule 5 of the Rules
Governing Section 2254 Cases in the United States District Courts. Petitioner will have
forty-five (45) days from the date on which the answer is served to file a reply.
DATED THIS 4th day of January 2018.
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
does claim in ground 1 that counsel provided ineffective assistance in
advising him to plead guilty. That claim is distinct from the claim that counsel should have
challenged the propriety of a charge to which petitioner later pleaded guilty.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?