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KITTLESON v. MITCHELL

United States District Court, N.D. California


February 4, 2004.

RITA LYNN KITTLESON, Petitioner
v.
G. MITCHELL, Warden, Respondent

The opinion of the court was delivered by: VAUGHN WALKER, District Judge

ORDER OF DISMISSAL(Doc # 2)

Petitioner, a state prisoner incarcerated at the Central California Women's Facility in Chowchilla, has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254.

Petitioner seeks to proceed in forma pauperis under 28 U.S.C. § 1915.

  BACKGROUND

  Petitioner pleaded no contest in the Superior Court of the State of California in and for the County of Santa Clara to multiple drug-related charges arising out of an encounter with police in a public park. On or about May 23, 2001, she was sentenced to six years in state prison.

  Petitioner appealed on the ground that her pre-plea motion to suppress evidence should have been granted because the police subjected her to an unlawful arrest. The California Court of Appeal disagreed and affirmed the judgment of conviction in an opinion filed on November 12, 2002. The Supreme Court of California denied review on January 29, 2003. Page 2

  DISCUSSION

 A. Standard of Review

  This court may entertain a petition for a 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).

  It shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." Id. § 2243.

 B. Legal Claims

  Petitioner seeks federal habeas corpus relief on the ground that her pre-plea motion to suppress evidence should have been granted because her arrest was unlawful under the Fourth Amendment. Petitioner's claim is not cognizable under § 2254 and must be dismissed.

  "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). A criminal defendant who pleads guilty (or no contest, which in California is the equivalent of a plea of guilty) "may only attack the voluntary and intelligent character of the guilty plea by showing that the advice [s]he received from counsel was [inadequate]." Tollett v. Henderson, 411 U.S. 258, 267 (1973).

  Here, petitioner does not attack the voluntary and intelligent character of her plea by alleging that the advice she received from defense counsel was not within the range of competence demanded of attorneys in criminal cases. Her allegations instead involve a pre-plea motion to suppress she claims should have Page 3 been granted because her arrest was unlawful under the Fourth Amendment. Petitioner's plea precludes federal habeas relief for the pre-plea violation 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

  Petitioner's unlawful arrest claim is also barred by Stone v. Powell, 428 U.S. 465, 481-82, 494 (1976), which bars federal habeas review of Fourth Amendment claims unless the state did not provide an opportunity for full and fair litigation of those claims. Even if the state courts' determination of petitioner's Fourth Amendment issues is improper, it cannot be remedied in federal habeas because petitioner was provided a full and fair opportunity to litigate the issues in the state courts. See Locks v. Sumner, 703 F.2d 403, 408 (9th Cir. 1983).

  CONCLUSION

  For the foregoing reasons, petitioner's request to proceed in forma pauperis (doc # 2) is DENIED and the petition for a writ of habeas corpus is DISMISSED.

  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 that judgment is entered in favor of respondent.


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