The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISMISSING THE FIRST
AMENDED PETITION WITHOUT LEAVE TO ) AMEND (DOC. 11)
ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND
DIRECTING THE CLERK TO CLOSE THE CASE
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on May 17, 2011 (doc. 7). Pending before the Court is the first amended petition (FAP), which was filed on June 24, 2011.
I. Screening the Petition
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).
A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). II. The Allegations of the First Amended Petition Petitioner alleges that he is an inmate of the Avenal State Prison serving a sentence of five (5) years imposed in the Tulare County Superior Court for having been convicted of violating Cal. Pen. Code § 288(a). (FAP 1.) Petitioner entered a plea of nolo contendere to the charges. (Id.) Petitioner alleges that his Sixth and Fourteenth Amendment right to counsel and his rights protected by the Equal Protection Clause of the Fourteenth Amendment were violated when Petitioner, who had not been advised of his right to counsel, was interviewed without counsel by a probation officer at a "Probation Report Interview" pursuant to Cal. Pen. Code 1203. (Id. at 5.) Petitioner alleges that he had informed the officer that he did not want to continue the interview without counsel; further, Petitioner did not waive his right to counsel. However, the probation officer continued the interview and documented and completed a probation report. Petitioner contends that the conviction is void for want of jurisdiction. (Id.) Petitioner does not allege any facts concerning the content or effect of the probation report on his sentence.
III. Failure to State a Cognizable Claim Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam).
Petitioner alleges denial of the right to counsel based on either the absence of counsel, or an effective waiver thereof, at an interview with a probation officer that resulted in a report. Petitioner states that the interview occurred after he entered his plea but before sentencing. (FAP 3, 5-6.)
The Sixth and Fourteenth Amendments guarantee the right to counsel only at critical stages of the criminal proceedings, which are the points where substantial rights of the accused may be affected. Kirby v. Illinois, 406 U.S. 682, 690 (1972); Mempa v. Rhay, 389 U.S. 128, 134 (1967). A denial of the Sixth and Fourteenth Amendment right to counsel can result in reversal only if the absence of counsel occurred at a critical stage in the adversary proceedings; if the stage was not critical, then there can be no constitutional violation. Wainwright v. Torna, 455 U.S. 586, 587-88 (1982) (no deprivation of the effective assistance of counsel could have occurred because there was no constitutional right to counsel in proceedings for discretionary, state post-conviction review).
A post-guilty plea, pre-sentence interview in a non-capital case has been held not to be a critical stage of trial. United States v. Benlian, 63 F.3d 824, 827-28 (9th Cir. 1995) (citing cases from other circuits). Thus, absence or denial of counsel at a post-plea, pre-sentence probation interview in Petitioner's case cannot constitute a violation of Petitioner's right to counsel.
Further, in order to demonstrate the absence of effective assistance of counsel, it is generally required that the petitioner show that the absence of counsel resulted in prejudice to the petitioner. Strickland v. Washington, 466 U.S. 668, 691-92 (1984); United States v. Cronic, 466 U.S. 648, 658 (1984). The exceptional cases involve a complete denial of counsel, an entire failure of counsel to subject the prosecution's case to meaningful adversarial testing, or circumstances such that no attorney could provide effective assistance. United States v. Cronic, 466 U.S. 648, 659-60.
Here, Petitioner has not stated any specific facts indicating any prejudice to Petitioner or any exceptional circumstances that would render inapplicable the requirement of showing that prejudice resulted from the absence of counsel.
Petitioner relies on federal court authority recognizing a right to counsel at pre-sentence probation interviews as a matter of federal courts' supervisory powers over federal criminal cases. See, e.g., United States v. Herrera-Figueroa, 918 F.2d 1430 (9th Cir. 1992). However, holdings based on federal supervisory power which do not purport to interpret any provision of the Constitution do not set forth rules applicable to state court proceedings; thus, ...