United States District Court, N.D. California
February 4, 2004.
RITA LYNN KITTLESON, Petitioner
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.
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.
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
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 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).
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
The Clerk shall enter judgment in favor of respondent and close the
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
IT IS SO ORDERED AND ADJUDGED that judgment is entered in favor of