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ROBERTSON v. CAREY

United States District Court, Northern District of California


April 9, 2003

KEIR ROBERTSON, PETITIONER, VS. TOM CAREY, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Charles R. Breyer, United States District Judge

ORDER OF DISMISSAL

Petitioner, a state prisoner currently incarcerated at California State Prison, Solano, has filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. He also has filed a motion to proceed in forma pauperis under 28 U.S.C. § 1915 (doc #2), which is GRANTED.

BACKGROUND

Petitioner faced charges in an information filed in the Superior Court of the State of California in and for the County of Sonoma alleging that, on November 27, 1999, he committed robbery and false imprisonment, and alleging nine prior prison term and prior "strike" conviction enhancements.

On April 26, 2000, petitioner file a motion to suppress evidence. A hearing was held on May 2, 2000, and the motion was denied.

On May 9, 2000, petitioner pled guilty to robbery and admitted three of the nine prior prison term and prior "strike" conviction enhancement allegations. On November 15, 2000, he was sentenced to 16 years in state prison. (On January 3, 2001, the sentence was reduced by the agreement of the parties and the trial court to 12 years.

Petitioner unsuccessfully appealed his conviction to the California Court of Appeal and Supreme Court of California, which denied review per order filed on June 12, 2002.

The instant petition for a federal writ of habeas corpus followed.

DISCUSSION

A. Standard of Review

This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

A petition for a writ of habeas corpus may be dismissed if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

B. Legal Claims

Petitioner claims he is entitled to federal habeas relief because the trial court erroneously denied his motion to suppress evidence and because defense counsel provided him with ineffective assistance of counsel at the hearing on the motion to suppress evidence.

"As a general rule, one who voluntarily and intelligently pleads guilty to a criminal charge may not subsequently seek federal habeas relief on the basis of pre-plea constitutional violations." Hudson v. Moran, 760 F.2d 1207, 1029-30 (9th Cir. 1985) (citations omitted). As the Supreme Court put it,

a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was [inadequate]. . . .
Tollett v. Henderson, 411 U.S. 258, 267 (1973).

Petitioner does not attack the voluntary and intelligent character of his plea in his federal petition by alleging that the advice he received from defense counsel was not within the range of competence demanded of attorneys in criminal cases. His allegations instead involve a pre-plea motion to suppress and defense counsel's performance at the hearing on the motion. Petitioner's plea precludes federal habeas relief for the pre-plea violations alleged here. See id.; Hudson, 760 F.2d at 1030; see also Moran v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994) (holding that petitioner's contention that his attorneys were ineffective because they failed to attempt to prevent the use of his confession was the assertion of an alleged pre-plea constitutional violation which was waived by petitioner's plea).*fn1

CONCLUSION

For the foregoing reasons, the petition for a writ of habeas corpus is DISMISSED and petitioner's request for appointment of counsel (doc #4) is denied as moot.

The clerk shall enter judgment in favor of respondent and close the file.

SO ORDERED.

JUDGMENT IN A CIVIL CASE

Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

(X) Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

IT IS SO ORDERED AND ADJUDGED.


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