United States District Court, N.D. California
December 9, 2005.
DONNA M.B. ANDERSON, Petitioner,
R. KERNAN, warden, Respondent.
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER OF DISMISSAL
Donna M.B. Anderson, an inmate at the Central California
Women's Facility in Chowchilla, California, filed this pro se
action seeking a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Her petition is now before the court for review pursuant to
28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254
Anderson states in her petition that, upon her guilty plea, she
was convicted in the San Mateo County Superior Court of first
degree murder and attempted second degree murder and
circumstances supporting sentence enhancements were found true.
On July 5, 2002, she was sentenced to a term of 37 years to life
in prison. She attempted to appeal, but her request for a
certificate of probable cause was denied by the San Mateo County
Superior Court and therefore could not pursue an appeal. She also
filed unsuccessful state habeas petitions. She then filed this
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 district court considering an application for
a writ of habeas corpus 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."
28 U.S.C. § 2243. Summary dismissal is appropriate only where the
allegations in the petition are vague or conclusory, palpably
incredible, or patently frivolous or false. See Hendricks v.
Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
The petition contains three claims. First, Anderson contends
she was denied her Fifth Amendment right to indictment by a grand
jury. She had no such right. The Fifth Amendment to the
U.S. Constitution provides that, except for certain military cases,
"[n]o person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand
Jury." The Bill of Rights, including the Fifth Amendment, applies
directly only to the federal government. See Barron v.
Baltimore, 32 U.S. (7 Pet.) 243 (1833). Individual provisions in
the Bill of Rights only apply to the states if the Due Process
Clause of the Fourteenth Amendment so requires. Due process
requires the incorporation of only those protections fundamental
to the American scheme of justice. See Duncan v. Louisiana,
391 U.S. 145, 148-50 (1968) (trial by jury in criminal case is
fundamental to the American scheme of justice and therefore
required of the states by the Fourteenth Amendment). Prosecution
by indictment has long been held not to be required of the
states by the Due Process Clause. See Hurtado v. California,
110 U.S. 516, 538 (1884) (grand jury indictment not necessary for
California because adequate procedural protection existed under
system which permitted proceeding by information after
examination and commitment by a magistrate certifying to the
probable guilt of defendant); Jeffries v. Blodgett,
5 F.3d 1180, 1188 (9th Cir. 1993), cert. denied, 510 U.S. 1191 (1994).
The first claim is dismissed without leave to amend because the
absence of an indictment violated no right for which federal habeas relief is available.
Second, Anderson claims that her plea bargain violated her
right to due process because she had no arraignment and made the
plea in pro per. Neither of these facts support habeas relief.
Any potential challenge to the alleged lack of an
arraignment*fn1 is foreclosed by the rule that 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. See Tollett v.
Henderson, 411 U.S. 258, 266-67 (1973); see also Haring v.
Prosise, 462 U.S. 306, 319-21 (1983). Anderson's guilty plea
bars her from challenging her conviction based on the alleged
lack of an arraignment.
The fact that Anderson entered the plea while representing
herself was not constitutionally impermissible.*fn2 A
defendant may not collaterally attack her plea's validity merely
because she "made what turned out, in retrospect, to be a poor
deal." Bradshaw v. Stumpf, 125 S. Ct. 2398, 2407 (2005); cf.
Faretta, 422 U.S. 835 n. 46 ("[A] defendant who elects to
represent himself cannot thereafter complain that the quality of
his own defense amounted to a denial of `effective assistance of
counsel.'") In view of the absence of any challenge to the
decision to allow Anderson to represent herself, the fact that
she pled guilty while representing herself was not
Anderson's third claim is that her plea bargain violated due
process because she was "denied explicit waiver of appeal without
a certificate of probable cause, denied explicit waiver of AEDPA
timeline for habeas corpus relief, and denied explicit waiver of
trial by jury at restitution (civil suit) proceedings." Petition, p. 8. She has not stated a claim
cognizable in a federal habeas action because she had no
constitutional right to be advised of any of those three points.
A defendant pleading guilty must be advised of direct
consequences of a guilty plea but need not be advised of all the
collateral consequences. "The distinction between a direct and
collateral consequence of a plea `"turns on whether the result
represents a definite, immediate and largely automatic effect on
the range of the defendant's punishment."'" Torrey v. Estelle,
842 F.2d 234, 236 (9th Cir. 1988). The three points of which
Anderson was not informed i.e., the procedural requirements for
an appeal from a guilty plea, the existence of a statute of
limitations for a federal habeas petition, and the alleged
absence of a jury trial in restitution proceedings had no
definite, immediate and largely automatic effect on the range of
her punishment. They were collateral consequences and therefore
did not have to be brought to Anderson's attention before she
entered her plea to make that plea constitutional. Because she
did not have to be informed of those points, it follows that she
did not have to "waive" those points, despite her assertion to
None of Anderson's claims have any legal merit. Leave to amend
will not be granted because the claims are legally meritless and
are not curable by amendment The court may dismiss the petition
at this initial review stage because "it plainly appears from the
petition and . . . attached exhibits that the petitioner is not
entitled to relief in the district court." Rule 4 of the Rules
Governing Section 2254 Cases In The United States District
Courts. In light of the dismissal of this action, the request for
an evidentiary hearing is denied.
For the foregoing reasons, the petition is DISMISSED because it
fails to state a claim upon which relief may be granted in a
federal habeas action. The clerk shall close the file.
IT IS SO ORDERED.
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