The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE
TO STATE FACTS ENTITLING THE PETITIONER TO RELIEF PURSUANT 28 U.S.C. § 2254 (Doc. 1)
TO FINDINGS AND RECOMMENDATIONS TO
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY AND TO DIRECT 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. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the petition, which was filed on September 30, 2011, and transferred to this division of this Court on October 17, 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).
Here, Petitioner alleges that he is an inmate of the Avenal State Prison serving a sentence imposed in 2010 in the Fresno County Superior Court for driving under the influence of alcohol, causing injury, and leaving the scene of an accident. (Pet. 2.) Petitioner's sole claim is that his Fifth and Fourteenth Amendment right to counsel was violated when, after his nolo contendere plea and before sentencing, he was interviewed by a probation officer without the presence of counsel and without being advised of his right to have counsel present. (Id. at 5-6.)
II. Failure to State Facts Entitling Petitioner to Relief with Respect to the Absence of Counsel at the Pre-sentence Probation Interview
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 occurs at a critical stage in the adversary proceedings; if the stage is 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). The United States Supreme Court has not provided a definitive list of the critical stages of a criminal prosecution. See, United States v. Benford, 574 F.3d 1228, 1232 (9th Cir. 2009).
Generally, with respect to sentencing, the assistance of counsel is guaranteed only when the defendant is confronted by agents of the prosecution who have an adversarial role in the sentencing process; in contrast, in pre-sentence interviews, a probation officer is not an agent of the prosecution, has no adversarial role in the sentencing proceedings, and acts as a neutral gatherer of information for the court. United States v. Leonti, 326 F.3d 1111, 1119-20 (9th Cir. 2003) (distinguishing probation interviews from the process of an accused's rendering substantial assistance to the prosecution). Thus, it has been held that a post-guilty plea, pre-sentence interview in a non-capital case is not a critical stage of adversary criminal proceedings. United States v. Benlian, 63 F.3d 824, 827-28 (9th Cir. 1995) (noting that the issue was effectively waived in the case before the court, but confirming the vitality of the pre-guidelines holding of Baumann v. United States, 692 F.2d 565 (9th Cir. 1982) that a routine, pre-sentence interview of a person convicted of a non-capital federal offense is not a critical stage at which counsel's presence or advice is necessary to protect the defendant's right to a fair trial); but see United States v. Herrera-Figueroa, 918 F.2d 1430, 1433 (9th Cir. 1991) (declining to decide whether pre-sentence interviews were a critical stage for Sixth Amendment purposes but exercising the court's supervisory power to require probation officers to permit defense counsel to accompany federal defendants to all presentence interviews).
Further, if a pre-sentence interview is not a critical stage for Sixth Amendment purposes, it follows that the probation officer's failure to advise Petitioner of a non-existent right to counsel could not have constituted a violation of the Sixth and Fourteenth Amendments. Cf. Baumann, 692 F.2d at 577 (concluding that because a probation interview was not inherently coercive, a probation officer need not give Miranda warnings).
Here, Petitioner alleges that as a defendant in a non-capital case, he was subjected to a post-plea, pre-sentence probation interview without the assistance of counsel and without having been advised of his right to counsel. However, Petitioner was not entitled to counsel at the interview, which was not a critical stage of the adversary proceedings. Therefore, Petitioner has not stated specific facts that entitle him to relief in a proceeding pursuant to 28 U.S.C. § 2254.
Because the defect in the claim concerns the nature of the claim and not the absence of any specific facts, granting leave to Petitioner to amend to state more specific facts would be futile. Therefore, it will be ...