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Heriberto Botello v. Tim Virga

October 26, 2012

HERIBERTO BOTELLO,
PETITIONER,
v.
TIM VIRGA, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER DISMISSING STATE LAW CLAIMS WITHOUT LEAVE TO AMEND ) AND DISMISSING UNCERTAIN CLAIMS ) WITH LEAVE TO AMEND (DOC. 1) ORDER GRANTING LEAVE TO FILE A ) FIRST AMENDED PETITION NO LATER ) THAN THIRTY (30) DAYS AFER THE ) DATE OF SERVICE OF THIS ORDER ) ORDER DIRECTING THE CLERK TO SEND A PETITION FORM TO PETITIONER FILING DEADLINE: THIRTY (30) DAYS

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 October 24, 2012 (doc. 7).

Pending before the Court is the petition, which was filed on October 4, 2012, and transferred to this Court on October 17, 2012.

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 at 491.

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. Background

Petitioner alleges that he is an inmate of the California State Prison at Sacramento (CSP-SAC) serving a sentence of ten years and fifteen years to life for convictions suffered on or about May 20, 2009, in the Superior Court of the State of California, County of Tulare, for kidnaping for the purpose of robbery with gun and gang enhancements, assault with a deadly weapon, and a criminal threat. (Pet., doc. 1, 1.)

Petitioner alleges the following claims in the petition: 1) conviction of kidnaping for robbery in the absence of sufficient evidence to prove beyond a reasonable doubt an intent to rob formulated prior to the kidnaping, considered in light of the prosecutor's misstatements of evidence and the law, violated Petitioner's right to due process of law under the Fourteenth Amendment and the state constitution (id. at 4, 15-21); 2) re-sentencing Petitioner to eight additional years beyond the original sentence based on an inapplicable statute and with a dual use of facts violated Petitioner's right to due process of law (id. at 4, 21-23); 3) conviction of a gang enhancement without proof of a specific intent to benefit a street gang except based on expert testimony violated Petitioner's right to due process of law (id. at 5, 16, 23-24); 4) a life sentence for a juvenile who did not commit murder or attempted murder or have a record of convictions that would qualify as three strikes was cruel and unusual punishment under the state and federal constitutions (id. at 5, 24, 29-31); 5) Petitioner's right under the Fourteenth Amendment to the effective assistance of appellate counsel was violated by counsel's failure to raise the grounds raised in this petition (id. at 6, 31); and 6) the evidence was insufficient to establish that the group was a criminal street gang (id. at 6).

III. State Law Claims

A. Legal Standards

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 to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).

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. ยงยง 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 ...


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