United States District Court, N.D. California
October 6, 2005.
HAROLD SINCLAIR ENGLISH, Petitioner,
JOHN MARSHALL, Warden, Respondent.
The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
DENIAL OF LEAVE TO PROCEED IN FORMA PAUPERIS; ORDER OF DISMISSAL
Petitioner, a California prisoner currently incarcerated at
California Men's Colony in San Luis Obispo, has filed a pro se
petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. He also requests leave to proceed in forma pauperis.
Petitioner pleaded no contest in Monterey County to two counts
of possession of cocaine base for sale and one count of
transportation of cocaine base. He was sentenced to eleven years
and four months in prison. He unsuccessfully appealed his
conviction to the California Court of Appeal and the Supreme
Court of California denied review. His state habeas petitions
also were denied.
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
As grounds for federal habeas relief, petitioner asserts that:
(1) Counsel was ineffective in failing to raise several
additional grounds for a motion to suppress; (2) the search of
his car was "illegal;" (3) his Fourth Amendment rights were
violated in that he was detained longer than necessary to
effectuate the purpose of the investigative stop; and (4) the
detention was no longer justified once the identities of
petitioner and his passenger had been established.
Rule four of the Rules Governing Section 2254 Cases in the
United States District Courts provides, in part, that "[i]f it
plainly appears from the face of the petition and any exhibits
attached thereto that the petitioner is not entitled to relief in
the district court, the judge must enter an order summarily
dismissing the petition. . . ." It plainly appears from the face
of this petition that petitioner is not entitled to relief.
As to issue one, a defendant who pleads guilty cannot later
raise in habeas corpus proceedings independent claims relating to
the deprivation of constitutional rights that occurred before the
plea of guilty. Haring v. Prosise, 462 U.S. 306, 319-20 (1983)
(guilty plea forecloses consideration of pre-plea constitutional
deprivations); Tollett v. Henderson, 411 U.S. 258, 266-67
(1973) (same); Moran v. Godinez, 57 F.3d 690, 700 (9th Cir.
1994) (refusing to consider contention that petitioner's
attorneys were ineffective because they failed to obtain
suppression of confession). A nolo contendere plea, as here, is
the same as a plea of guilty for purposes of this analysis. See
Tamayo-Reyes v. Keeney, 926 F.2d 1492, 1494 n. 3 (9th Cir.
1991), rev'd on other grounds, 504 U.S. 1 (1992); see also
Cal. Penal Code § 1016 (nolo plea has same effect as guilty
plea). Any ineffectiveness of petitioner's counsel in the
pre-plea proceedings on the suppression motion was waived by the
plea. This issue cannot be grounds for federal habeas relief. In issue two petitioner contends that a police search of his
car violated Rule 41(e) of the Federal Rules of Criminal
Procedure. The federal rules, of course, do not apply to state
court proceedings, so it is evident that this claim presents no
basis for habeas relief.
Issues three and four are based on petitioner's Fourth
Amendment right to be free of unreasonable searches and seizures.
Such claims are not cognizable in federal collateral proceedings.
Stone v. Powell, 428 U.S. 465, 481-82, 494 (1976). This would
also apply to issue two, to whatever extent it might be based on
the Fourth Amendment as well as the cited federal rule.
Therefore, issues two, three and four also provide no basis for
federal habeas relief.
It thus plainly appears from the petition and exhibits that
petitioner is not entitled to relief, so the case must be
dismissed. See Rule 4, Rules Governing Section 2254 Cases In
the United States District Courts, 28 U.S.C. foll. 2254.
1. In view of petitioner's account balance, leave to proceed in
forma pauperis (doc 2) is DENIED. Petitioner shall pay the five
dollar filing fee to the clerk of this court within thirty days
of the date this order is entered.
2. For the reasons set out above, this case is DISMISSED. The
clerk shall notify petitioner of this dismissal, and serve a copy
of this order and the petition on the respondent and the Attorney
General of California. See id. The clerk shall close the
IT IS SO ORDERED.
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