United States District Court, C.D. California
ORDER TO SHOW CAUSE RE: DISMISSAL FOR UNTIMELINESS
AND NONCOGNIZABILITY
GAIL
J. STANDISH UNITED STATES MAGISTRATE JUDGE
On July
6, 2016, Petitioner filed a 28 U.S.C. § 2254 habeas
petition in this district (“Petition”). The
Petition stems from Petitioner’s March 19, 2014
conviction in Los Angeles County Superior Court Case No. TA
128154 (the “State Conviction”). (Petition at 2,
Ex. B.) Petitioner sustained the State Conviction pursuant to
a guilty plea to counts of attempted murder and robbery and
his admission to enhancement allegations relating to personal
use of a firearm, causation of great bodily injury, and prior
convictions. (Id.)
Petitioner
did not appeal the State Conviction. (Petition at
2-3.)[1]
Over a
year and a half passed following the State Conviction. On or
about December 1, 2015, Petitioner mailed a motion to the
trial court seeking to vacate his sentence. (Attachment, Ex.
C.) On December 18, 2015, the trial court denied the motion,
finding that there was no legal basis for relief.
(Id.)
On or
about April 4, 2016, Petitioner mailed a habeas petition to
the trial court, which was formally filed on April 6, 2016.
(Petition at 3, attached copy of trial court habeas petition
(“Attachment”).) At the portion of the form
petition directing habeas petitioners to explain any delay in
discovering and/or raising their claims, Petitioner stated
that an “error of fact[2] existed before judgment was
rendered, which could not have been discovered in the
exercise of reasonable diligence; also Petitioner’s
ignorance of the law.” (Id. at 13.) On April
12, 2016, the trial court denied the habeas petition on
procedural grounds and on its merits. (Attachment, Ex. H.)
On or
about April 20, 2016, Petitioner mailed a habeas petition to
the California Court of Appeal, which was formally filed on
April 25, 2016. On April 27, 2016, the California Court of
Appeal denied the petition on the ground that Petitioner had
failed to allege sufficient facts to justify relief.
(Petition at 4, Ex. H.) On or about May 5, 2016, Petitioner
filed a petition for review in the California Supreme Court,
which was denied summarily on June 22, 2016. (Id. at
4-5, Ex. H.)
On June
29, 2016, Petitioner mailed the Petition to the Court, and
the Clerk’s Office received it on July 5, 2016.
Pursuant to the “mailbox rule, ” the Court will
deem the Petition to have been “filed” on June
29, 2016. See Campbell v. Henry, 614 F.3d 1056,
1058-59 (9th Cir. 2010); Rule 3(d) of the Rules Governing
Section 2254 Cases in the United States District Courts.
THE
PETITION
The
Petition raises nine grounds. Ground One asserts that the
trial court should have granted Petitioner’s motion to
vacate his sentence on the theory that it violates California
Penal Code § 654. Grounds Two, Three, Five, Six, Eight,
and Nine attack Petitioner’s attempted murder
conviction under various theories (insufficiency of the
evidence, due process, no consideration for plea, ineffective
assistance of counsel, prosecutorial misconduct, fundamental
miscarriage of justice, etc.), each of which rest on the
“error of fact” noted on the prior page, namely,
that Petitioner assertedly is not guilty of attempted murder
due to a lack of premeditation and deliberation and, thus, a
lack of any intent to kill. In Ground Four, Petitioner
contends that his conviction pursuant to his plea bargain was
arbitrary and capricious, because he did not commit attempted
murder and, further, he was under the impression he would be
sentenced to 15 years, rather than the 34-year sentence he
received. In Ground Seven, Petitioner complains that counsel
failed to “litigate mitigating factors as well as
accurately apply the career offender provision of the
guidelines when determining the sentencing range.”
Rule 4
of the Rules Governing Section 2254 Cases in the United
States District Courts (“Habeas Rules”) requires
summary dismissal of Section 2254 petitions “[i]f it
plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the district
court . . . .” Rule 4, 28 U.S.C. foll. § 2254. For
the reasons set forth below, it is plain from the face of the
Petition that summary dismissal is warranted, for two
distinct reasons.
THE
PETITION IS NONCOGNIZABLE
As
noted above, the State Conviction stems from
Petitioner’s guilty plea. When a defendant who was
convicted pursuant to a guilty plea later seeks collateral
relief based on asserted constitutional errors that occurred
before that plea was entered, he is barred, with few
exceptions, from obtaining such relief.
A plea of guilty and the ensuing conviction comprehend all of
the factual and legal elements necessary to sustain a
binding, final judgment of guilt and a lawful sentence.
Accordingly, when the judgment of conviction upon a guilty
plea has become final and the offender seeks to reopen the
proceeding, the inquiry is ordinarily confined to whether the
underlying plea was both counseled and voluntary. If the
answer is in the affirmative, then the conviction and the
plea, as a general rule, foreclose the collateral attack.
United States v. Broce, 109 S.Ct. 757, 762 (1989);
see also, e.g., Mitchell v. Superior Court, 632 F.2d
767, 769 (9th Cir. 1980) (“As a general rule, one who
has voluntarily and intelligently pled guilty to a criminal
charge may not subsequently seek federal habeas relief on the
basis of pre-plea constitutional violations.”). The
Supreme Court’s decision in Tollett v.
Henderson, 93 S.Ct. 1602 (1973) ...