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Nfn Infinity v. E. G. Brown

June 26, 2012

NFN INFINITY,
PETITIONER,
v.
E. G. BROWN, JR., GOVERNOR,
RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DIRECTING THE CLERK TO SEND PETITIONER A HABEAS PETITION FORM AND A CIVIL RIGHTS COMPLAINT FORM

ORDER REQUIRING PETITIONER TO FILE A PETITION OR, ALTERNATIVELY, A COMPLAINT WITHIN THIRTY (30) DAYS

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a civil action of an uncertain type. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303. Pending before the Court is a document filed by Petitioner on May 29, 2012, which was docketed as a petition for writ of habeas corpus.

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; 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 at 491.

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. Petitioner's Allegations

Petitioner, an inmate of Pleasant Valley State Prison, labels his document as a civil rights complaint for a declaratory judgment pursuant to 28 U.S.C. § 2201. Petitioner names as the Respondent Governor E. G. Brown, Jr. (Doc. 1, 1l.) Petitioner does not set forth any facts concerning his own commitment offense or the sentence pursuant to which he presumably is incarcerated. He instead refers to the civil rights of "all California prisoners" who agreed to a plea bargain while in custody, indigent, in an informal setting involving a psychologically-induced atmosphere of duress, and with the representation of a public defender who was working with the prosecutor without the supervision of a judge. (Id. at 2.)

Petitioner alleges that the consequences of such a plea agreement, namely, a sentence of twenty-five years to life in prison imposed pursuant to California's Three Strikes Law in a later prosecution for a different offense, are not stated in the agreement itself. Defendants are threatened with the prospect of longer incarceration if they do not enter guilty pleas; no reasonable person would accept a plea bargain if it were known that in a later, separate proceeding, the conviction could be counted as a "strike" warranting a sentence of twenty-five years to life in prison. Petitioner alleges that this violates the First, Sixth, Eighth, and Fourteenth Amendments; further, appointed defense counsel is ineffective in such circumstances, which excuses any procedural default.

In light of new rulings of the United States Supreme Court that establish that defendants have a right to an attorney during plea negotiations, Petitioner seeks a declaration that pleas cannot be counted as "strikes" under the First, Sixth, Eight, and Fourteenth Amendments if they were taken pursuant to plea bargains without the defendant's being informed of the possibility that the conviction might be considered as a prior conviction warranting a sentence of twenty-five years to life. (Id. at 1-8.)

III. Dismissal with Leave to File an Amended Petition or

Complaint

In light of the requirements for a petition for writ of habeas corpus, it is not clear that Petitioner is challenging the legality or duration of his confinement.

A federal court may only grant a state prisoner's petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution or laws or treaties ...


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