Opinion
Case No. CV 14-04639-VAP (KK)
07-11-2014
ANGEL OLIVERA, Petitioner, v. JEFFREY BEARD, Respondent.
ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED AS BARRED BY TOLLETT V. HENDERSON
Petitioner, who currently is confined at North Fork Correctional Facility, lodged for filing a Petition for Writ of Habeas Corpus by a Person in State Custody herein on June 17, 2014. The Petition purports to be directed to a judgment of conviction sustained by Petitioner in Los Angeles County Superior Court on February 20, 2010, following Petitioner's nolo contendere plea to second degree robbery with gang enhancement in violation of California Penal Code §§ 211 and 186.22(b)(1)(c).
After reviewing the Petition, it appears to the Court that most, if not all, of Petitioner's claims are barred by the principles enunciated in Tollett v. Henderson, 411 U.S. 258, 266-67, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973). In Tollett, the Supreme Court held that, "[w]hen 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." See also Menna v. New York, 423 U.S. 61, 62 n.2, 96 S. Ct. 241, 46 L. Ed. 2d 195 (1975) (emphasis added); United States v. Foreman, 329 F.3d 1037, 1038-39 (9th Cir. 2003) (precluding pre-plea motion for substitute counsel claim); Moran v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994) (as amended) (foreclosing pre-plea ineffective assistance of counsel claim), cert. denied, 516 U.S. 976 (1995).
Here, Petitioner's claims are premised upon errors allegedly committed by defense counsel prior to the entry of his plea. As such, it appears to this Court that most, if not all, of Petitioner's claims directed to the legality of his conviction are barred under the foregoing authorities.
Accordingly, Petitioner is ORDERED TO SHOW CAUSE, within fourteen (14) days of the date of this Order, why this action should not be dismissed. Petitioner may discharge this Order by filing a declaration, signed under penalty of perjury, establishing that his claims are not barred by Tollett v. Henderson.
Alternatively, Petitioner may request a voluntary dismissal of this action without prejudice pursuant to Federal Rule of Civil Procedure 41(a). A Notice of Dismissal form is attached for petitioner's convenience. The court advises Petitioner, however, that if Petitioner should later attempt to again raise any dismissed claims in subsequent habeas petition, those claims may be time-barred under the statute of limitations in 28 U.S.C. § 2244(d)(1) ("A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court."). Such dismissal request must also be filed on or before July 25, 2014.
The court warns Petitioner that failure to timely file and serve a response as directed in this order will result in a recommendation that this action be dismissed without prejudice as barred under Tollett v. Henderson, for failure to prosecute, and/or for failure to obey court orders. DATED: July 11, 2014
/s/__________
KENLY KIYA KATO
UNITED STATES MAGISTRATE JUDGE