The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
In December 2004 Ximenez was convicted of assault with a deadly weapon, kidnapping, making criminal threats, and child endangerment. That same day, the court held a bench trial and found that Ximenez had suffered a prior serious felony conviction within the meaning of California Penal Code §§ 667(b)-(I) and 1170.12 and that he had also served a prior term within the meaning of California Penal Code § 66705(b). The court imposed a "prior strike" enhancement and sentenced Ximenez to an aggregate term of 28 years.
On October 6, 1997, in the Sacramento County Superior Court, Ximenez pleaded guilty to one count of committing a lewd and lascivious act with a minor. This conviction became the basis for Ximenez's "prior strike" enhancement in the instant proceedings. In claims nine through fourteen to this Court, Ximenez raises various challenges to the validity of his 1997 conviction. Apparently, Ximenez hopes to reduce his current sentence by attacking his previous conviction, thereby eliminating his "prior strike" enhancement. One of the claims Ximenez raises is that he was denied the right to counsel during the 1997 proceedings. He explains that three public defenders were appointed to represent him, but that each one refused to assist him given the nature of the crime he was accused of. According to Ximenez, after the trial court discharged the third public defender, the court refused to appoint new counsel or to allow Ximenez to represent himself. Although Ximenez does not attach any records or evidence in support of these allegations, he claims that he does not have access to the 1997 court records and transcript.
In Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394 (2001) the Supreme Court held:
[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. 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.*fn1 However, the Court recognized "an exception to the general rule for § 2254 petitions that challenge an enhanced sentence on the basis that the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)."*fn2
If Ximenez is able to show that he was denied his Sixth Amendment right to counsel in the 1997 proceedings, he may be entitled to relief from this Court. However, since Ximenez has not attached any evidence or records in support of his allegations and Respondent has not addressed the merits of this specific claim, this Court will order supplemental briefing.*fn3
IT IS HEREBY ORDERED THAT no later than May 6, 2011, the Petitioner, Christopher Ximenez, shall submit documentation and a brief not to exceed 15 pages in support of his claim that he was denied counsel during the 1997 proceedings. The Respondent shall respond to Ximenez, in a response not to exceed 15 pages, by no later than May 27, 2011.*fn4 At that time, this Court will review the parties' briefs and, if necessary, set an evidentiary hearing on the matter.