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Lee v. Shepherd

September 13, 2009

ROBERT E. LEE, PETITIONER,
v.
MARK SHEPHERD, WARDEN, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prison inmate proceeding with counsel with a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his Sacramento County conviction for burglary with its twenty-six year sentence.

I. Procedural History

Proceeding pro se, petitioner filed a petition for a writ of habeas corpus on October 20, 2003. The court appointed counsel and granted leave to file an amended petition, but respondent filed a motion to dismiss before the amended petition was filed, arguing the petition was untimely. Docket Nos. 4, 10, 11.

On August 5, 2004, this court recommended that the motion to dismiss be denied, a recommendation adopted by the district court on September 9, 2004. Docket Nos. 25, 30. Thereafter, counsel for petitioner filed an amended petition and a request for a stay of proceedings to allow him to exhaust state remedies. Docket Nos. 32, 33.

On November 15, 2004, the court granted the motion to stay, but directed petitioner to file a second amended petition containing only the then-exhausted claims. Docket No. 35.

On February 3, 2006, the court lifted the stay and directed petitioner to file his third amended petition. Docket No. 46. Thereafter, respondent filed a motion to dismiss, again arguing the petition was not timely. Docket No. 56. The court recommended that this motion be denied as well, a recommendation adopted by the district court. Docket Nos. 62, 63.

Respondent filed an answer and petitioner filed a traverse. Docket Nos. 65, 70.

II. Background

Petitioner was charged with four counts of first degree burglary and was alleged to have suffered four prior strike convictions. CT*fn1 22-25.

On March 8, 2001, a doubt was declared as to petitioner's competence to stand trial and two doctors were appointed to evaluate him. CT 9. On March 29, 2001, the court found petitioner incompetent to stand trial and suspended proceedings. CT 10. On August 2, 2001, the court found petitioner competent and ordered the criminal proceedings reinstated. CT 12.

On September 7, 2001, defendant was in court for a hearing on the prosecutor's motion to amend the information, which was granted. 9/7/01 RT*fn2 1-2. The court then asked defense counsel if petitioner was prepared to accept the proposed disposition counsel had discussed with the court. 9/7/01 RT 2. Counsel said that petitioner wanted to contact his family first. Id. The court told petitioner that if he were going to accept the offer, he had to do so then, though sentencing could be continued for two weeks. 9/7/01 RT 3. When petitioner demurred, saying he wanted to contact his family before agreeing to anything, the court said it would just confirm the case for trial. Id. Petitioner then said he would take the twenty-two years. 9/7/01 RT 4. The prosecutor voiced his opposition to the disposition. Id.

The court then began the plea colloquy:

Mr. Lee, the agreement is that you will plead to your charges, which are four counts of burglary. You will admit your prior serious felony convictions. You will receive a total of twenty-two years in state prison. And you will have to serve eighty-five percent of the time. 9/7/01 RT 4.

The prosecutor then provided the factual basis of the charges, as outlined in the complaint and the court elicited petitioner's waivers of his rights to a jury trial, to confront and cross-examine the witnesses against him, to remain silent, to present a defense and present witnesses in his behalf. 9/7/01 RT 5-7.

When the court asked if anyone had threatened petitioner, he responded "Yeah. You all threatened me." 9/7/01 RT 8. The colloquy continued:

THE COURT: . . . .other than additional time in custody, has anybody threatened you. . . in order to get you to plead?

THE DEFENDANT: Like I said, you all threatened me. You all ain't given me no time to do ---

THE COURT: That's not a threat.

THE DEFENDANT: I know. It's a promise, ain't it?

THE COURT: Mr. Lee, I got a long calendar. You're going to plead today or you're going to go to trial next month.

THE DEFENDANT: I already said I plead.

THE COURT: All right. Then answer my questions. Have you or anybody else been threatened in any way in order to get you to plea?

THE DEFENDANT: No.

THE COURT: Are you currently under the influence of any alcohol, drug, narcotic or medication.

THE DEFENDANT: Yes, I am under ...


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