The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER SUBSTITUTING CYNTIA Y. TAMPKINS AS RESPONDENT
ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1)
AND DIRECTING THE CLERK TO ENTER JUDGMENT FOR RESPONDENT
ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
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), the parties have 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 signed writings filed by Petitioner on February 12, 2010 (doc. 3), and filed on behalf of Respondent on December 27, 2010 (doc. 9). Pending before the Court is the petition filed on February 1, 2010. Respondent filed an answer and supporting documentation on March 23, 2011; Petitioner filed a traverse on August 10, 2011.
I. Subject Matter Jurisdiction
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 in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
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. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam). Petitioner claims that in the course of the proceedings resulting in his conviction, he suffered violations of his Constitutional rights. Further, the challenged judgment was rendered by the Kings County Superior Court (KCSC), which is located within the territorial jurisdiction of this Court. 28 U.S.C. §§ 84(b), 2254(a), 2241(a), (d).
An answer was filed on behalf of Respondent Gary Sandor, who at the time the petition and answer were filed was the warden of the California Rehabilitation Center (CRC) at Norco, California, where Petitioner has been incarcerated during the course of this proceeding. Petitioner thus named as a respondent a person who has had custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
Accordingly, this Court has jurisdiction over the subject matter of this action and over the person of Respondent.
II. Order to Substitute Respondent
Fed. R. Civ. P. 25(d) provides that an action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending; rather, the officer's successor is automatically substituted as a party. The rule further provides that a court may at any time order substitution, but the absence of such an order does not affect the substitution.
Petitioner initially named as Respondent Gary Sandor, who was the warden of CRC -- where Petitioner was confined -- when the petition was filed. However, the official website of the California Department of Corrections and Rehabilitation (CDCR) reflects that Cynthia Y. Tampkins is presently acting as warden of CRC.*fn1 Accordingly, it will be ordered that Cynthia Y. Tampkins be substituted as Respondent.
Upon his plea of guilty in case number 07CM9004 in the KCSC, Petitioner was convicted of assault by a prisoner likely to produce great bodily injury in violation of Cal. Pen. Code § 4501. Petitioner admitted a great bodily injury (GBI) enhancement pursuant to Cal. Pen. Code § 12022.7(a). Petitioner was sentenced on January 17, 2008, to a determinate term of five years in state prison. (LD 9, 1.)*fn2 Petitioner did not appeal his sentence. (Ans., doc. 14, 2.)
Petitioner filed four state habeas petitions. The first petition, which was filed in the Court of Appeal of the State of California, Fifth Appellate District (CCA), was denied summarily. (LD 1-2.) Petitioner's next petition was filed in the KCSC and was denied in a decision dated April 21, 2009. (LD 3-4.) His third and fourth petitions were filed in the CCA and the California Supreme Court (CSC), and each was denied summarily on June 5, 2009, and December 2, 2009, respectively. (LD 5-8.)
Petitioner appeared with counsel in the KCSC on January 17, 2008, to enter a guilty plea. His counsel explained on the record that Petitioner would be pleading guilty to the assault charge and the allegation that he had personally inflicted GBI. The plea was made pursuant to an offer in which 1) the prosecutor agreed to dismiss allegations of a prior prison term pursuant to Cal. Pen. Code § 667.5(b); and 2) the parties stipulated to a two-year mitigated term plus three years for the GBI enhancement for a total of five years to run consecutively to the sentence Petitioner was already serving, no penal fine, and a minimum state restitution fine. (RT 2-3; LD 1, Exh. D.)*fn3 When Petitioner's counsel asked Petitioner if that was his understanding of the agreement, he responded affirmatively.
The Court informed Petitioner that if he entered a guilty plea pursuant to the agreement, he would be sentenced to a five-year term consecutive to the term Petitioner was then serving; he would be ordered to pay a $20 court restitution fee and a $200 restitution fine; the court would order a separate $200 restitution fine that would be paid only if Petitioner violated parole; Petitioner would be subject to parole for three years with potential twelve-month terms for any violations and extension of the parole period to four years; and, if Petitioner were not a citizen, the result would be deportation and other limitations on immigration. When the court asked Petitioner if he understood all those consequences of pleading guilty, Petitioner responded affirmatively. (Id. at 3-4.)
The court explained to Petitioner the rights he was giving up if he pled guilty. The proceedings included the following colloquy:
[THE COURT]: First, you have the right to a preliminary hearing at which time the District Attorney would have to present sufficient evidence to show that there is a reasonable basis to believe that you committed the crimes that you are charged with.
Do you understand that right?
THE DEFENDANT: Yes, sir. . . .
THE COURT: You are giving up your right to a preliminary hearing?
THE COURT: Now, at a preliminary hearing or at a trial, you would have the right to see and hear and have your lawyer ask questions of the witnesses who would testify against you.
Do you understand that right?
THE COURT: Do you give up that right?
THE COURT: You have the right to use the Court's power to subpoena witnesses or things in order to require their presence in court for your defense and that's available at no cost to you. You have that right at the preliminary hearing and the trial.
Do you understand that right?
THE COURT: Do you give up ...