United States District Court, E.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY CLERK TO
ENTER JUDGMENT AND CLOSE CASE
Michael J. Seng, UNITED STATES MAGISTRATE JUDGE
is a county inmate proceeding pro se with a petition for writ
of habeas corpus under 28 U.S.C. § 2254. Xavier Becerra,
the Attorney General of California, is hereby substituted as
the proper named respondent pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure. Respondent is represented by
Charity Seraph Whitney of the Office of the California
Attorney General. Both parties have consented to Magistrate
Judge jurisdiction for all purposes pursuant to 28 U.S.C.
§ 636(c). (ECF Nos. 4, 11.)
is challenging a November 8, 2013 judgment of the Superior
Court of California, County of Fresno, entered pursuant to
Petitioner's plea of no contest to being a felon in
possession of a firearm and admission of a prior strike
conviction. Petitioner was sentenced to a negotiated prison
term of two years eight months. (Lodged Doc. 1 at 107.)
October 6, 2015, the California Court of Appeal, Fifth
District, affirmed the judgment of conviction in a reasoned
opinion. People v. Berna, No. F068377, 2015 WL
5826963 (Cal.Ct.App. Oct. 6, 2015). (Lodged Doc. 17.)
filed a Petition for Review in the California Supreme Court
on November 6, 2015, which was denied summarily on December
14, 2015. (Lodged Docs. 18-19.)
filed the instant federal habeas petition on January 5, 2016.
(ECF No. 1.) Respondent filed an answer to the petition on
April 27, 2016. (Answer, ECF No. 18.) Petitioner did not file
a traverse and the time for doing so has passed.
[Petitioner] was arrested for being a felon in possession of
a firearm after agents from the Department of Justice
searched the trailer where he lived and found a Mossberg
12-gauge pump action shotgun and a box of 12-gauge shotgun
shells. [Petitioner] had a prior felony conviction, which
prohibited him from possessing a firearm.
[Petitioner] filed a motion to suppress the evidence and
argued the search of his trailer was unconstitutional. After
an evidentiary hearing, the court found [Petitioner]
consented to the search and denied the suppression motion.
Thereafter, [Petitioner] pleaded no contest to being a felon
in possession of a firearm (Pen.Code, § 29800, subd.
(a)(1)), admitted one prior strike conviction, and was
sentenced to two years eight months in prison based on a
People v. Berna, No. F068377, 2015 WL 5826963, at *1
(Cal.Ct.App. Oct. 6, 2015). (Lodged Doc. 17.)
by way of a writ of habeas corpus extends to a prisoner under
a judgment of a state court if the custody violates the
Constitution, laws, or treaties of the United States. 28
U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3);
Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000).
Petitioner asserts that he suffered a violation of his rights
under the Fourth Amendment of the U.S. Constitution.
Petitioner was convicted in Fresno County in the ...