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Berna v. Becerra

United States District Court, E.D. California

April 7, 2017

BRUCE BERNA, Petitioner,
v.
XAVIER BECERRA, Respondent.

          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

         Petitioner 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.[1] 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.)

         I. Procedural History

         Petitioner 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.)

         On 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.)

         Petitioner 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.)

         Petitioner 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.

         II. Factual Background[2]

[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 negotiated disposition.

People v. Berna, No. F068377, 2015 WL 5826963, at *1 (Cal.Ct.App. Oct. 6, 2015). (Lodged Doc. 17.)

         III. Discussion

         A. Jurisdiction

         Relief 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 ...


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