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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ANTHONY PARKER,

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Case No. 3:17-cv-00442-MMD-WGC
Petitioner,

ORDER

v.
ISIDRO BACA, et al.,
Respondents.

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Before the Court is respondents’ motion to dismiss (ECF No. 8). Petitioner has not

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filed a response within the time allotted by Local Rule LR 7-2, and thus is deemed to

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consent to the granting of the motion. LR 7-2(d). After reviewing the motion and the

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supporting exhibits, the Court grants the motion.

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Pursuant to a plea agreement, petitioner was convicted in state district court of

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second-degree murder. (Exh. 40 (ECF No. 10-9).) Petitioner appealed, and the Nevada

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Supreme Court affirmed. (Exh. 61 (ECF No. 11).)

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Petitioner then commenced post-conviction proceedings in the state district court.

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The state district court denied his petition. (Exh. 79 (ECF No. 11-18).) Petitioner appealed,

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and the Nevada Court of Appeals affirmed. (Exh. 94 (ECF No. 11-33).)

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Petitioner then commenced this action.

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Respondents argue correctly that ground 3 of the petition is not cognizable in

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federal habeas corpus. Petitioner alleges in ground 3 that counsel failed to challenge the

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propriety of the charge of second-degree murder. This is a claim of a pre-plea
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constitutional violation, and petitioner is barred from raising it in federal habeas corpus.

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Tollett v. Henderson, 411 U.S. 258, 267 (1973).1

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Respondents also argue correctly that ground 4 of the petition is not cognizable in

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federal habeas corpus. Petitioner alleges in ground 4 that the state district court erred in

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admitting evidence at the post-conviction evidentiary hearing. “[A] petition alleging errors

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in the state post-conviction review process is not addressable through habeas corpus

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proceedings.” Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989); see also Gerlaugh

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v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997).

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It is therefore ordered that respondents’ motion to dismiss (ECF No. 8) is granted.
Grounds 3 and 4 of the petition are dismissed.

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It is further ordered that respondents will have forty-five (45) days from the date of

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entry of this order to file and serve an answer, which must comply with Rule 5 of the Rules

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Governing Section 2254 Cases in the United States District Courts. Petitioner will have

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forty-five (45) days from the date on which the answer is served to file a reply.

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DATED THIS 4th day of January 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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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.
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