United States District Court, C.D. California
ORDER TO SHOW CAUSE
ALEXANDER F. MacKINNON, UNITED STATES MAGISTRATE JUDGE
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.
1996, petitioner pled guilty to two counts of second-degree
robbery. Petitioner and an associate had entered a store and
robbed two employees.
was sentenced to five years in state prison. (ECF No. 1 at
145, 154, 170-71.)
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.)
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
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.)
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.)
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 In an unpublished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).
to the California courts’ website, petitioner filed a
habeas petition in the California Supreme Court in December
2015. It was denied in April 2016.
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:
Petitioner’s trial counsel for the 1996 robberies was
ineffective for allowing petitioner to plead ...