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Gonzales v. Asuncion

United States District Court, E.D. California

March 30, 2017

RALPH G. GONZALES, Petitioner,
v.
DEBBIE ASUNCION, Warden, Respondent.

          ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE TO CASE FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR FAILURE TO STATE A CLAIM [TWENTY-ONE DAY OBJECTION DEADLINE]

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.

         Petitioner has filed a habeas petition challenging his 2008 judgment and sentence. Following a preliminary review of the petition, it appears that the petition fails to present a prima facie claim for relief. Therefore, the Court will recommend that the petition be SUMMARILY DISMISSED.

         I. PROCEDURAL HISTORY

         On October 30, 2008, Petitioner was convicted in the Merced County Superior Court of driving under the influence, driving with a suspended license, and failure to provide financial responsibility. (Doc. 1.) Three prior strikes were also found true. (Doc. 1.) He was sentenced under California's Three Strikes law (Cal. Penal Code §§ 667(b)-(i) and 1170.12(a)-(d)) to a term of 28-years-to-life. Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”), and the appeal was denied on October 29, 2012. It further appears that he petitioned for review to the California Supreme Court but the petition was denied.

         Years later, Petitioner filed a petition for writ of habeas corpus in the Merced County Superior Court. (Doc. 1.) The superior court denied the petition on October 28, 2015. (Doc. 1.) He then filed a petition in the Fifth DCA, and the petition was denied on March 6, 2016. (Doc. 1.) Finally, he filed a petition for writ of habeas corpus in the California Supreme Court, and the petition was denied on November 7, 2016. (Doc. 1.)

         Petitioner filed his initial federal petition in this Court on March 6, 2017. (Doc. 1). He raises five claims for relief which he states he presented in his state habeas proceedings: 1) The sentence was illegal and unauthorized in violation of his constitutional rights because the state court violated prior plea agreements in his 1979, 1985, and 1992 convictions; 2) The prosecutor committed misconduct by using the 1979, 1985, and 1992 convictions by plea agreement as strikes; 3) The trial court went outside its judicial discretion and violated the plea agreements by sentencing him under new statutes; 4) Defense counsel was ineffective in failing to raise the issue of unauthorized sentence; and 5) Defense counsel failed to adhere to Petitioner's warnings concerning the breach of his prior plea agreements.

         II. DISCUSSION

         A. Preliminary Review of Petition

         Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[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; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed.

         B. Failure to State a Prima Facie Claim for Relief

         The foundation for all of Petitioner's grounds for relief is his claim that his federal constitutional right to due process was violated by the use of his three prior convictions to enhance his current sentence. He states he entered into plea agreements in 1979, 1985, and 1992, wherein he was advised that in addition to his sentence, if he sustained another serious felony conviction in the future, he would be subject to a one or five year enhancement to run consecutively to any other sentence. When he sustained his 2008 conviction, he was sentenced under California's Three Strikes law (Cal. Penal Code §§ 667(b)-(i) and 1170.12(a)-(d)) to a term of 28-years-to-life. He argues that this sentence violated the terms of his prior plea agreements.

         In Santobello v. New York, 404 U.S. 257, 262 (1971), the Supreme Court held that, “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” This rule has been regularly and consistently invoked and applied in the Ninth Circuit. See, e.g., United States v. Camper, 66 F.3d 229, 232 (9th Cir.1995); United States v. De La Fuente, 8 F.3d 1333, 1340 (9th Cir.1993); United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir.1979).

         Here, however, no such promise or agreement is at issue. Although Petitioner was advised that he may face collateral consequences in the future for any future conviction, the use of his prior convictions to enhance his 2008 sentence did not violate the terms of his prior plea agreements. The use of the 1979, 1985, and 1992 convictions to enhance the petitioner's 2008 sentence did not alter or increase his punishment for the prior convictions because such enhancement was not punishment for the prior offenses but rather a stiffened penalty for Petitioner's subsequent 2008 offense. See Monge v. California, 524 U.S. 721, 728 (1998).

         Moreover, the prospective use of the prior convictions to enhance the sentence for future convictions cannot be deemed a bargained-for term of those prior plea agreements because they were not matters subject to negotiation. Rather, the prospective use of the prior convictions to enhance the sentence for future convictions was merely a collateral consequence of those prior convictions, and Petitioner did not have a due process right to be advised of all the possible collateral consequences on entering into his guilty plea. See Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir.1988); see also United States v. Delgado-Ramos, 635 F.3d 1237, ...


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