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Mack A. West, Jr v. Kathleen Dickinson

October 26, 2012

MACK A. WEST, JR., PETITIONER,
v.
KATHLEEN DICKINSON, WARDEN, RESPONDENT.



ORDER

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 27, 2006, petitioner pleaded no contest in the Solano County Superior Court to second degree murder and second degree robbery and admitted the use of a deadly weapon in connection with those offenses. Pursuant to that plea, he was sentenced to sixteen years to life in state prison. Presently before the court is petitioner's motion for leave to file a third amended federal habeas petition. For the following reasons, petitioner's motion will be granted.

I. BACKGROUND

On August 12, 2008, the California Court of Appeal for the First Appellate District affirmed petitioner's judgment of conviction on appeal. On November 19, 2008, the California Supreme Court denied the petition for review filed on behalf of petitioner.

Petitioner then filed a state habeas petition in the California Court of Appeal for the First Appellate District on August 20, 2009. That court denied petitioner's state habeas petition on September 3, 2009. Petitioner then filed a state habeas petition in the California Supreme Court on September 5, 2009.*fn1 (See Resp't's Lodged Doc. Ex. D.) The California Supreme Court denied that state habeas petition on March 24, 2010. (See id.)

On November 1, 2010, petitioner filed another state habeas petition in the California Supreme Court. On May 18, 2011, the state high court denied that habeas petition stating as follows, "The petition for writ of habeas corpus is denied. (See In re Robbins (1998) 18 Cal.4th 770, 780; In re Clark (1993) 5 Cal.4th 750, 767-769; People v. Duvall (1995) 9 Cal.4th 464, 474; In re Swain (1949) 34 Cal.2d 300, 304; In re Miller (1941) 17 Cal.2d 734, 735.)" (Resp't's Lodged Doc. Ex. E.)

In November 2009, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court. That original federal habeas petition presented five claims; specifically: (1) the trial court abused its discretion and violated petitioner's constitutional rights by not ordering a competency evaluation based on both changed circumstances and previously unassessed psychological features involving brain injury and retardation; (2) trial counsel's failure to seek a certificate of probable cause and to develop an adequate record for appellate review deprived petitioner of effective assistance in perfecting his appeal and obtaining judicial review; (3) trial counsel rendered ineffective assistance in negotiating an illusory plea bargain that provided no tangible or meaningful benefit to petitioner in exchange for his no contest plea and in failing to explain this to petitioner prior to his entry of the no contest plea which violated his due process rights; (4) the plea bargain failed to establish an adequate factual basis for petitioner's plea and is statutorily and constitutionally flawed; and (5) the underlying error is structural in that the manner in which the trial court induced petitioner to waive his right to jury trial rendered his waiver in that regard involuntary. (See Dkt. No. 1.) Approximately one week after filing his original federal habeas petition, petitioner filed his first amended federal habeas petition which raised the same five claims.*fn2 (See Dkt. No. 5.)

On July 18, 2010, petitioner filed a second amended federal habeas petition after receiving permission from the court to do so. In his second amended federal habeas petition, petitioner raised the following claims for relief:

1. Conviction obtained by no contest plea which was unlawfully induced and not made voluntarily with understanding the nature of the charges, plea agreement, and the consequences of the no contest plea, through trial counsel's misrepresentation rendering trial counsel ineffective.

2. Trial counsel ineffective assistance by misrepresenting petitioner in his request for withdrawal of the plea.

3. Failure of the trial court to record the proceedings constituted a violation of petitioner's due process rights.

4. Prosecutorial misconduct by concealing evidence.

5. The California Supreme Court abused its discretion by failing to give petitioner his presentence credits.

6. Trial court abused its discretion and violated petitioner's constitutional rights by not ordering a competency evaluation based on a change of circumstances and previously unassessed psychological features involving brain injury and retardation.

7. Ineffective assistance of counsel in negotiating an illusory plea bargain and failing to explain the ...


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