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Dianne Buu Lin v. Javier Cavazos

November 7, 2011

DIANNE BUU LIN, PETITIONER,
v.
JAVIER CAVAZOS, WARDEN, RESPONDENT.



The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge

MEMORANDUM OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS PROCEEDINGS

On May 9, 2011, Dianne Buu Lin ("Petitioner") lodged a Petition for Writ of Habeas Corpus By a Person in State Custody ("Petition"), which was filed in this Court on May 17, 2011.*fn1 On September 28, 2011, Respondent filed a Motion to Dismiss. On October 20, 2011, Petitioner filed an Opposition. On October 26, 2011, Respondent filed a Reply. The matter is now ready for decision. For the reasons set forth below, the Court grants Respondent's Motion to Dismiss the Petition.

BACKGROUND

On January 11, 2005, in Los Angeles County Superior Court, Petitioner pleaded no contest to one count of second degree murder (Cal. Penal Code § 187(a)). She was sentenced to state prison for a term of 15 years to life. (Pet. at 2-3; Respondent's Lodged Documents ("LD") 1 & 2.) Petitioner did not file a direct appeal.

On June 9, 2005, Petitioner constructively filed a letter in Los Angeles County Superior Court, claiming that she was not competent at the time she entered her plea and that she received ineffective assistance of counsel. Petitioner requested to change her plea to "guilty on insanity" without making a court appearance and sought a transfer to Patton State Hospital. (LD 3; see LD 4.) On August 1, 2005, the letter was construed as a habeas petition and denied. (LD 4.)

Thereafter, Petitioner submitted an undated letter to the Superior Court, again claiming that she was incompetent at the time she entered her plea and had received ineffective assistance of counsel. Petitioner again requested that she be "resentenced to Patton State Hospital." (LD 5.) Petitioner has failed to establish when the letter was submitted to the Superior Court. Her request was denied on October 29, 2009. (LD 6.)

On March 23, 2010, Petitioner filed a petition for modification/recall of sentence in the Superior Court. (LD 7.) Petitioner requested that her sentence be recalled based on ineffective assistance of counsel and mental incompetence. Ultimately, Petitioner did not ask to withdraw her plea, but again asked the trial court to order her to be transferred to "a mental facility, preferably at Patton State Hospital." (Id.) On March 29, 2010, the Superior Court received another letter from Petitioner reiterating the request in her petition that she be housed in "a state mental hospital, preferably at Patton State Hospital." (LD 8.) There is no indication when the petition for modification/recall of sentence was denied.

On March 26, 2010, Petitioner mailed a letter to the Superior Court requesting that she be resentenced and "ordered to Patton State Hospital." (LD 9.)

On April 27, 2010, Petitioner filed a habeas petition in the Superior Court. (LD 10.) The petition was denied on September 29, 2010. (LD 11.)

On November 9, 2010, Petitioner filed a habeas petition in the California Court of Appeal (LD 12), which was denied on January 27, 2011. (LD 13.)

On March 11, 2011, Petitioner filed a habeas petition in the California Supreme Court (LD 14), which was denied on April 20, 2011. (LD 15.)

Petitioner lodged the instant Petition on May 9, 2011.

PETITIONER'S CLAIMS

1. The trial court's recommendation that Petitioner be housed at a medical facility has not been carried out, violating Petitioner's Fourteenth Amendment due process rights. (Pet. at 5, Exh. C at 1-2.)

2. The failure to be housed at a medical facility pursuant to the trial court's recommendation violated the terms of Petitioner's plea agreement. (Pet. at 5, Exh. C at 1-2.)

3. Petitioner's plea was invalid because she was not mentally competent at the time she entered her plea. (Pet. at 5-6, Exh. C at 3.)

4. Petitioner was unlawfully denied mental health expert witnesses at the time she entered her plea. (Pet. at 6, Exh. D.)

5. The trial court erred in failing to order a competency hearing. (Pet. at 6, Exhs. G & H.)

6. Petitioner has been denied adequate mental health care at a mental health facility, in violation of the Eighth Amendment. (Pet. at 7, Exh. I.)

7. Petitioner's right to equal protection has been violated in connection with her request for placement in a ...


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