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Diaz v. Biter

United States District Court, E.D. California

May 7, 2015

ANGEL A. DIAZ, Petitioner,
v.
MARTIN BITER, Respondent.

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS (Doc. 14) ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING THE CLERK OF THE COURT TO ENTER JUDGMENT AND CLOSE THE FILE ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

JENNIFER L. THURSTON, Magistrate Judge.

In connection with a plea agreement, in 2011, Petitioner was convicted on two charges and sentenced to imprisonment. When he was processed into prison, he was found to be attempting to smuggle drugs into the facility and was convicted of this offense in 2012. When he was sentenced on this latter charge, he asserts he learned that the charges in the 2011 case were treated as two separate strikes. Thus, with the new 2012 conviction, he was sentenced under California's "three strikes" law.

Respondent moved to dismiss the petition and argued that if the petition was seeking to attack on the 2011 conviction, the petition was barred.[1] (Doc. 14). Alternatively, he argued that if the petition sought to attack the 2012 conviction, the petition is unexhausted and fails to raise a cognizable federal claim. (Doc. 16) The Court agrees and will GRANT the motion to dismiss.

I. Factual History

On March 9, 2011, following a plea of guilty, Petitioner was convicted in the Kings County Superior Court of one count of unlawfully carrying a concealed weapon and one count of participation in a criminal street gang (both "strikes" under California law). (Lodged Documents ("LD") 2). Pursuant to the plea agreement, he was sentenced to a determinate term of three years and four months (the "2011 conviction"). (Id.). It does not appear that Petitioner appealed the 2011 conviction.

When Petitioner was remanded into custody to serve this sentence, he was found to have secreted on his body three bindles, two of which were marijuana and methamphetamine. (Doc. 1, p. 26). Petitioner was charged with one count of bringing a controlled substance into a jail. (Id.). The information also alleged the two prior strikes from Petitioner's 2011 conviction. (Id.). Following a jury trial, Petitioner was convicted and sentenced to an aggregate term of 30-years-to-life pursuant to California's Three Strikes law (the "2012 conviction"). (Id., p. 27).

Petitioner filed a direct appeal of the 2012 conviction and sentence, contending that the two substantive convictions from the 2011 conviction should have been considered as one strike because they arose out of the same incident and facts, and that the trial court violated state law by refusing to strike one of the two predicate strikes from his 2011 conviction. The California Court of Appeal, Fifth Appellate District ("5th DCA") rejected Petitioner's argument, holding that the record was insufficient to determine whether the two strikes from the 2011 conviction arose from the same act and affirmed the sentence. (Doc. 1, pp. 25-29; LD 3). Petitioner filed a petition for review in the California Supreme Court that was summarily denied. (LD 4; 5). The only issue presented to the state high court was whether "the trial court [was] required to dismiss one of appellant's two prior convictions under the Three Strikes law, when they arose from the same prior incident and were based upon the same act." (Doc. 1, p. 7; LD 4).

October 27, 2014, Petitioner filed the instant federal habeas petition, containing a single claim for relief:

Conviction obtained by plea of guilty which was unlawfully induced and not made voluntarily w/understanding of the nature of the charge and the consequences of the plea. I took a deal in 2011 w/ 2 strikes on one case. I was never explained that in doing so, I was giving up my right to ever motion to strike a strike. The fact is that I took a deal on a case and one act for 2 strikes and somehow it got turned into two separate acts.

(Doc. 1, p. 4).

II. Discussion

A. Procedural Grounds for Motion to Dismiss

As mentioned, Respondent has filed a motion to dismiss the petition because it does not challenge the conviction for which Petitioner is now in custody. Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court...." Rule 4 of the Rules Governing Section 2254 Cases.

The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, Respondent may file a motion to dismiss after the court orders a response, and the Court will apply Rule 4 standards to review it. See Hillery, 533 F.Supp. at 1194 & n. 12.

B. Challenging Petitioner's 2011 Conviction Is Barred.

Respondent's original motion to dismiss contends that Petitioner is barred from seeking federal review for his 2011 conviction based on Lackawanna County Dist. Attorney ...


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