Contreras v. People

          ORDER TO SHOW CAUSE RE: DISMISSAL FOR UNEXHAUSTION AND NONCOGNIZABILITY

          GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE

         On July 11, 2016, Petitioner filed a 28 U.S.C. § 2254 habeas petition in this district (“Petition”). The Petition stems from Petitioner’s March 4, 2015 conviction in Los Angeles County Superior Court Case No. NA100573 (the “State Conviction”). Petitioner sustained the State Conviction following his nolo contendere plea to five counts of violating California Health & Safety Code § 11379(a). He was sentenced on March 27, 2015.

         Petitioner did not appeal the State Conviction. (Petition at 3-5.) He filed a motion in the trial court on or about September 4, 2015, to recall his felony sentence and reduce it, which the trial court denied on September 18, 2015. He may have filed another such trial court motion on or about November 17, 2015, although the record is unclear. It is clear, however, that Petitioner has not filed any habeas petitions or other post-conviction filings in the California Court of Appeal or the California Supreme Court.^[1]

         The Petition bears a signature date of June 21, 2016, but it was not received by the Clerk’s Office until July 8, 2016. For the sake of argument, pursuant to the “mailbox rule, ” the Court will deem the Petition to have been “filed” on June 21, 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 two grounds. In Ground One, Petitioner complains that he is not receiving a proper application of good-time credits to his sentence. In Ground Two, Petitioner disputes his guilt with respect to the crime of which he was convicted (transportation or sale of methamphetamine). He alleges that he purchased the drugs involved for his own consumption, not for sale as charged, that the quantities are too small for conviction, and that mitigating factors exist. Petitioner asks the Court to review whether he is guilty of the five counts to which he pled guilty.

         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 as set forth below.

         GROUND TWO OF THE PETITION IS NOT COGNIZABLE

         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, 488 U.S. 563, 569 (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, 411 U.S. 258 (1973) established this bar on federal habeas claims based on pre-plea constitutional violations:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent nature of the plea by showing that the advice he received from counsel was [inadequate].

Id. at 267.

         Since Tollett, the Supreme Court has recognized that the bar on attacking pre-plea constitutional errors does not apply when the pre-plea error is “jurisdictional, ” i.e., it implicates the government’s power to prosecute the defendant. United States v. Johnston, 199 F.3d 1015, 1019 n.3 (9th Cir. 1999); see, e.g., Menna v. New York, 432 U.S. 61, 62 (1975) (per curiam) (double jeopardy claim); Blackledge v. Perry, 417 U.S. 21, 30-31 (1974) (vindictive prosecution claim); and United States v. Garcia-Valenzuela, 232 F.3d 1003, 1006 (9th Cir. 2000) (unconstitutional/vague statute claim). Critically, however, the Supreme Court “has subsequently limited the scope of these exceptions to include only those claims in which, judged on the ...