Black v. Vasquez

          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) ...