Parker v. Baca et al

Filing 12

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)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 ANTHONY PARKER, 10 11 12 13 Case No. 3:17-cv-00442-MMD-WGC Petitioner, ORDER v. ISIDRO BACA, et al., Respondents. 14 15 Before the Court is respondents’ motion to dismiss (ECF No. 8). Petitioner has not 16 filed a response within the time allotted by Local Rule LR 7-2, and thus is deemed to 17 consent to the granting of the motion. LR 7-2(d). After reviewing the motion and the 18 supporting exhibits, the Court grants the motion. 19 Pursuant to a plea agreement, petitioner was convicted in state district court of 20 second-degree murder. (Exh. 40 (ECF No. 10-9).) Petitioner appealed, and the Nevada 21 Supreme Court affirmed. (Exh. 61 (ECF No. 11).) 22 Petitioner then commenced post-conviction proceedings in the state district court. 23 The state district court denied his petition. (Exh. 79 (ECF No. 11-18).) Petitioner appealed, 24 and the Nevada Court of Appeals affirmed. (Exh. 94 (ECF No. 11-33).) 25 Petitioner then commenced this action. 26 Respondents argue correctly that ground 3 of the petition is not cognizable in 27 federal habeas corpus. Petitioner alleges in ground 3 that counsel failed to challenge the 28 propriety of the charge of second-degree murder. This is a claim of a pre-plea 1 1 constitutional violation, and petitioner is barred from raising it in federal habeas corpus. 2 Tollett v. Henderson, 411 U.S. 258, 267 (1973).1 3 Respondents also argue correctly that ground 4 of the petition is not cognizable in 4 federal habeas corpus. Petitioner alleges in ground 4 that the state district court erred in 5 admitting evidence at the post-conviction evidentiary hearing. “[A] petition alleging errors 6 in the state post-conviction review process is not addressable through habeas corpus 7 proceedings.” Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989); see also Gerlaugh 8 v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997). 9 10 It is therefore ordered that respondents’ motion to dismiss (ECF No. 8) is granted. Grounds 3 and 4 of the petition are dismissed. 11 It is further ordered that respondents will have forty-five (45) days from the date of 12 entry of this order to file and serve an answer, which must comply with Rule 5 of the Rules 13 Governing Section 2254 Cases in the United States District Courts. Petitioner will have 14 forty-five (45) days from the date on which the answer is served to file a reply. 15 DATED THIS 4th day of January 2018. 16 17 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 1Petitioner 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. 2

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