Withers v. Rackley

          ORDER TO SHOW CAUSE

          ALEXANDER F. MacKINNON, UNITED STATES MAGISTRATE JUDGE

         Petitioner, who currently is confined at Folsom State Prison, constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody (28 U.S.C. § 2254) on May 16, 2016. The Petition is directed to a judgment of conviction sustained by petitioner in the Los Angeles County Superior Court in 1996. The crux of the Petition is that his 1996 conviction should not have been used to later impose a “third strike” sentence upon him. For the reasons discussed below, petitioner is ordered to show cause why this action should not be summarily dismissed.

         BACKGROUND

         In 1996, petitioner pled guilty to two counts of second-degree robbery. Petitioner and an associate had entered a store and robbed two employees.

         Petitioner was sentenced to five years in state prison. (ECF No. 1 at 145, 154, 170-71.)

         In 2002, petitioner was convicted by a Los Angeles County Superior Court jury of assault with a firearm. His 1996 robbery convictions were counted as two “strike” convictions. He was sentenced to a “third strike” sentence of 30 years to life. (ECF No. 1 at 172.)

         In 2011, petitioner’s federal habeas petition directed to his 2002 conviction was denied and dismissed with prejudice. See Withers v. Giurbino, Case No. CV 05-6800 JHN (JC).

         In August 2014, petitioner filed a petition to recall his Three Strikes sentence under Cal. Penal Code § 1170.126. Petitioner argued that his two 1996 robbery convictions should not have counted as two separate strikes. In November 2014, the Los Angeles County Superior Court denied the petition. (ECF No. 1 at 173, 208-09.)

         Petitioner then filed a petition for writ of mandate in the California Court of Appeal. In February 2015, the Court of Appeal denied the petition, reasoning that petitioner’s 1996 convictions involved robberies against two separate victims and therefore, they were properly counted as two separate “strikes.” (ECF No. 1 at 177.)

         Petitioner also appealed the Los Angeles County Superior Court’s denial of his petition to recall his sentence. In March 2015, petitioner’s appellate counsel filed an appellate brief identifying no issues, pursuant to People v. Wende, 25 Cal.3d 436 (1979). (ECF No. 1 at 144.) In an unpublished decision filed in July 2015, the California Court of Appeal found no arguable issues and affirmed the Superior Court’s order. See People v. Withers, 2015 WL 4515550 (July 27, 2015).

         According to the California courts’ website, petitioner filed a habeas petition in the California Supreme Court in December 2015. It was denied in April 2016.

         Petitioner constructively filed the instant Petition on May 16, 2016. The Petition was transferred to the undersigned Magistrate Judge on August 1, 2016. The Petition raises the following six grounds for federal habeas relief:

         1. Petitioner’s trial counsel for the 1996 robberies was ineffective for allowing petitioner to plead ...