The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
It is difficult to unravel petitioner's challenge(s) herein. Petitioner appears to be currently serving a twenty-seven-year-to-life sentence (Case No. 02F4257)*fn1 to be followedconsecutively by a twenty-five-year-to-life sentence imposed in Shasta County Superior Court on March 1, 2005, as the result of a plea entered on January 24, 2005 (Case No.00F991),*fn2 but he brings this petition to enforce what he contends were terms of an unrelated 1991 plea agreement (to two robbery counts for which he received a five-year sentence) in Los Angeles County Court (Case No. PA005725),*fn3 pursuant to which he believes he should have been sentenced, in both Case No. 02F4527 and Case No.00F991, to an additional five years for prior strikes and not to, respectively, 27 years to life and 25 years to life. Petition, pp. 1, 19-20, Docket # 1-1, Exhibit F, copy of 1991 plea colloquy transcript, pp. 19-29. He predicates this claim on one particular aspect of what the district attorney in 1991 cautioned him:
It's important to note that I believe Count 1 and Count 2 are serious felonies, and what that means is if after you're released from state prison you are arrested again on a serious felony, these charges can be used against you and add five years.
Petition, Dkt. # 1, p. 4, Dkt. # 1-1, p. 27.
Notwithstanding, petitioner concedes that on January 24, 2005, he entered a guilty plea to Count 11 of a 12-count amended information, admitted two strike priors and agreed to a prison term of 25-years-to-life (Case No.00F991) to run consecutive to the 27-year-to-life sentence in (Case No. 02F4257). Petition, p. 19. It appears that petitioner is seeking to challenge both life sentences on the following grounds: 1) his due process rights were violated when what there was not specific performance of what he contends were terms of the plea bargain; 2) petitioner received ineffective assistance of counsel when his counsel failed to seek and secure specific performance of the 1991 plea bargain.*fn4 Petition, pp. 4, 51-68.
Petitioner may not proceed in a single federal habeas petition to
challenge two convictions/sentences. See Fed. Rules Governing Section
2254 Cases, Rule 2(e);*fn5 see also, Magwood v.
Patterson, __ S. Ct. ___, 2010 WL 2518374 *9, n. 9 (June 24, 2010);
v. Arpaio, 2009 WL 1456858 *1 n. 1 (D. Ariz. May 21, 2009). That the
state appellate and supreme courts may have consolidated and
considered the convictions/sentences together does not abrogate the
fact that each conviction/sentence constitutes a separate adjudication
of different offenses with which petitioner was charged, which
petitioner does not dispute. This petition will be dismissed with
leave granted to file an amended petition challenging only one
conviction/sentence, either the one he is currently serving or the one
to which he is sentenced but not yet serving time for.*fn6
Should petitioner seek to challenge both
convictions/sentences, he may challenge the other life sentence only
by filing a new petition identifying the separate case.
To clarify, to the extent petitioner may seek to challenge the conviction and/or sentence of the consecutive sentence he is not yet serving, he may do so, albeit he must, as noted, challenge each conviction/sentence in separate petitions. See Maleng v. Cook, 490 U.S. 488, 493, 109 S. Ct. 1923 (1989)(prisoner may challenge sentences imposed upon him by state even though not presently serving them), citing Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549 (1968) (holding that petitioner serving two consecutive sentences can challenge second sentence not yet being served). Thus, petitioner herein may challenge the sentence imposed in Case No. 00F991, the case giving rise to his second, yet-to-be-served sentence, and he may challenge Case No. 02F4257, for which he is currently serving a sentence, but he may not do so within the same petition. Nor does petitioner appear to frame a cognizable claim in any putative challenge to either sentence by predicating it upon the alleged terms of a 1991 plea agreement resulting in a term of imprisonment for which petitioner has quite evidently not been in custody for a number of years.
A challenge by petitioner to the validity of the 1991 underlying state court conviction may not be raised in this action. Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 403-04, 121 S. Ct. 1567 (2001) (a defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained). Petitioner's challenge to the state court conviction does not raise a cognizable claim.
[O]nce a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. See Daniels, post, at 382, 121 S.Ct. 1578. If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained.
Lackawanna, at 403-404, 121 S. Ct. at 1574.
In Daniels v. U.S., 532 U.S. 374, 121 S. Ct. 1578 (2001), cited internally, supra, a movant convicted in federal court of being a felon in possession of a firearm sought to challenge by way of a § 2255 motion the constitutionality of state convictions used to sentence him pursuant to the Armed Career Criminal Act. The Supreme Court held therein that a federal defendant could challenge a prior conviction used to enhance a federal sentence only if the earlier conviction was "obtained in violation of the right to counsel...." Daniels, at 382, 121 S. Ct. at 1583. The Supreme Court noted that "a defendant convicted in state court" is afforded "numerous opportunities to challenge the constitutionality of the conviction" by way of direct appeal, in state court habeas petitions, and in a petition in federal court pursuant to 28 U.S.C. § 2254. Id. at 381, 121 S. Ct. at 1582-83. Therefore, a prior conviction at the time of federal sentencing is presumptively valid and may be used to enhance a federal sentence. Daniels, at 382, 121 S. Ct. at 1583, citing Custis v. U.S., 511 U.S. 485, 497, 114 S. Ct. 1732 (1994).
Petitioner herein challenges the prior plea agreement on the basis that he believes a cautionary admonition from a district attorney constituted a term which he believes his counsel in later cases could have had enforced in subsequent criminal convictions/sentences (notably, including one to which petitioner has conceded having agreed by entering a plea) arising from criminal activity in which he engaged long after his 1991 plea bargain sentence had been served. The court finds that petitioner simply fails to frame any claim whatsoever; however, petitioner will be given leave to amend. The undersigned notes that petitioner has recognized other infirmities that may plague this filing. See, e.g., petitioner's ...