Barnes v. Carter

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 ANTOINE DESHAWN BARNES, Case No. 22-cv-00882-WHO (PR)

Petitioner, 12 ORDER DISMISSING PETITION v. 13 WITH LEAVE TO AMEND

14 PATRICK COVELLO, Respondent. 15

16 17 The amended petition is dismissed with leave to file an amended petition by 18 December 1, 2023 because petitioner Antoine Deshawn Barnes has failed to adhere to my 19 instructions. In the Order to Show Cause, I found cognizable two claims: (1) illegal 20 sentencing enhancements were imposed; and (2) under new laws he is entitled to 21 resentencing. (OSC, Dkt. No. 9 at 2.) In response to the OSC, respondent filed a motion 22 to dismiss because claims under the state statutes Barnes cited are state law claims, and 23 therefore are not cognizable on federal habeas review. (Dkt. No. 10.) I granted the motion 24 and dismissed the petition with leave to file an amended petition. (Dkt. No. 11.) 25 In the dismissal order, I reminded Barnes that because he entered into a plea 26 agreement and because his sentencing claims were dismissed, the only claims he can raise 27 are that (1) his “‘counsel’s representation fell below an objective standard of 1 errors, he would not have pleaded guilty and would have insisted on going to trial.’” 2 Womack v. Del Papa, 497 F.3d 998, 1002 (9th Cir. 2007) (quoting Hill v. Lockhart, 474 3 U.S. 52, 56-57).1 (Id. at 5.) He was also informed of two difficulties. Any claims he 4 raises might be untimely, and that if he could establish that they are timely, he would have 5 to exhaust the above claims in state court before they could proceed here in federal court. 6 (Id.) He was also informed that if he wishes to exhaust his claims, he should include with 7 his amended petition a motion to stay the pending federal action so that he can exhaust his 8 claims in state court. (Id.) In order to qualify for a stay, he must also show good cause for 9 why this claim was not previously exhausted and that it is “potentially meritorious” under 10 Rhines v. Webber, 544 U.S. 269 (2005). (Id.) 11 Rather than follow these instructions, Barnes has filed an amended petition that is 12 difficult to read and understand, but which appears to raise claims regarding discovery 13 motions, the district attorney, and a conflict of interest, none of which are cognizable. 14 (Am. Pet., Dkt. No. 12 at 5.) 15 The amended petition is DISMISSED with leave to amend. On or before 16 December 1, 2023, Barnes must file an amended petition that complies with my 17 instructions. He can raise only the two claims mentioned above, and, if these claims are 18 unexhausted, he must file a motion to stay federal proceedings so that he can exhaust his 19 claims in state court. The issue of timeliness can be addressed after the claims are 20 exhausted. The amended petition must include the caption and civil case number used in 21 this order (22-00882 WHO (PR)) and the words SECOND AMENDED PETITION must 22 appear on the first page. The petition must appear on this Court’s form. The amended 23 petition will completely replace any previous petition. 24

25 1 Through a claim that counsel was not competent, a defendant can raise a claim that his plea was not knowing and voluntary. Tollett, 411 U.S. at 267. A plea is “involuntary” if it 26 is the product of threats, improper promises, or other forms of wrongful coercion, Brady v. 27 United States, 397 U.S. 742, 754-55 (1970), and is “unintelligent” if the defendant is 1 Failure to file a proper amended petition by December 1, 2023 likely will result in 2 the dismissal of this habeas action under Federal Rule of Civil Procedure 41(b) for failure 3 to prosecute. 4 IT IS SO ORDERED. 5 Dated: October 17, 2023 . MQe □ 6 ILLIAM H. ORRICK 7 United States District Judge 8 9 10 11 e 12

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