Lee v. Gastelo

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOHN HENRY LEE, Case No. 20-cv-05387-WHO (PR)

Plaintiff, 8 ORDER DISMISSING PETITION v. 9 WITH LEAVE TO AMEND

10 JOSIE GASTELO, 11 Defendant. Dkt. Nos. 2, 6, 7 and 11

12 13 INTRODUCTION 14 Petitioner John Henry Lee seeks federal habeas relief from his state convictions. 15 The claims in the petition for such relief cannot proceed. Accordingly, the petition is 16 DISMISSED with leave to file an amended petition on or before January 18, 2021. 17 Failure to file an amended petition that complies with the instructions in this Order will 18 result in the dismissal of the suit and entry of judgment in favor of respondent. 19 BACKGROUND 20 According to the petition, in 2015 Lee pleaded nolo contendere in the Alameda 21 County Superior Court to a charge of second degree robbery. (Pet., Dkt. No. 1 at 1-2.) His 22 sentence was enhanced under Cal. Penal Code sections 667.5 and 1192.7. (Id. at 2.) Lee 23 filed no appeals, but in 2019 and 2020 he sought, but was denied, collateral relief in the 24 state courts. (Id. at 2-3.) This federal habeas petition followed those denials. 25 DISCUSSION 26 This court may entertain a petition for writ of habeas corpus “in behalf of a person 27 in custody pursuant to the judgment of a State court only on the ground that he is in 1 § 2254(a). A district court considering an application for a writ of habeas corpus shall 2 “award the writ or issue an order directing the respondent to show cause why the writ 3 should not be granted, unless it appears from the application that the applicant or person 4 detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate 5 only where the allegations in the petition are vague or conclusory, palpably incredible, or 6 patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 7 As grounds for federal habeas relief, Lee claims that (i) “the California robberies 8 were prosecuted under two conflicting statutes” and (ii) the rule of lenity should apply to 9 him because of this conflict. (Pet., Dkt. No. 1 at 5.) Neither claim can proceed and the 10 petition will be dismissed with leave to file an amended petition. 11 After a defendant has entered a plea of guilty, the only challenges left open on 12 federal habeas corpus review concern the (i) voluntary and intelligent character of the plea; 13 and (ii) adequacy of the advice of counsel. Womack v. Del Papa, 497 F.3d 998, 1002 (9th 14 Cir. 2007) (quoting Hill v. Lockhart, 474 U.S. 52, 56-57 (1985)).1 Because Lee pleaded 15 guilty, these are the only two habeas claims available to him, but neither claim appears in 16 the petition. Accordingly, the petition will be dismissed with leave to file an amended 17 petition that contains these two claims if appropriate. 18 Prisoners in state custody who wish to challenge either the fact or length of their 19 confinement collaterally in federal habeas proceedings are first required to exhaust state 20 judicial remedies, either on direct appeal or through collateral proceedings, by presenting 21 the highest state court available with a fair opportunity to rule on the merits of each and 22 every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c); Rose v. 23 Lundy, 455 U.S. 509, 515-16 (1982). Because Lee has not exhausted the two claims 24 discussed above in state court, he may wish to file a motion to stay habeas proceedings 25

26 1 There are exceptions to this general bar. For example, a defendant who pleads guilty still may raise in habeas corpus proceedings the very power of the state to bring him into court 27 to answer the charge brought against him, see Haring v. Prosise, 462 U.S. 306, 320 (1983) 1 while he exhausts his claims. If he proceeds with unexhausted claims, respondent will 2 likely file a motion to dismiss on grounds of nonexhaustion. 3 Lee must also be aware of the following. If he exhausts his claims and if the court 4 allows them to proceed here, respondent will likely file a motion to dismiss the petition as 5 untimely. He was convicted in 2015 but did not file this habeas action until 2020. Federal 6 habeas petitions must be filed within one year of the latest of the date on which: (A) the 7 judgment became final after the conclusion of direct review or the time passed for seeking 8 direct review; (B) an impediment to filing an application created by unconstitutional state 9 action was removed, if such action prevented petitioner from filing; (C) the constitutional 10 right asserted was recognized by the Supreme Court, if the right was newly recognized by 11 the Supreme Court and made retroactive to cases on collateral review; or (D) the factual 12 predicate of the claim could have been discovered through the exercise of due diligence. 13 See 28 U.S.C. § 2244(d)(1). 14 To successfully challenge such a motion, Lee will have to demonstrate that he is 15 entitled to equitable tolling. A federal habeas petitioner is entitled to equitable tolling if he 16 can show “‘(1) that he has been pursuing his rights diligently, and (2) that some 17 extraordinary circumstance stood in his way’ and prevented timely filing.” Holland v. 18 Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 19 (2005)). 20 MOTIONS 21 Lee’s motion to withdraw his consent to magistrate judge jurisdiction is DENIED as 22 moot because his suit was reassigned to a district judge. (Dkt. No. 6.) The district judge 23 alone will oversee his suit. His motion for clarification on his withdrawal motion is 24 DENIED as moot. (Dkt. No. 11.) 25 Lee’s motion to proceed in forma pauperis is GRANTED. (Dkt. Nos. 2 and 7.) 26 CONCLUSION 27 The petition is DISMISSED with leave to file an amended petition on or before 1 || petition. 2 The amended petition must include the caption and civil case number used in this 3 || order (20-05387 WHO (PR)) and the words FIRST AMENDED PETITION on the first 4 || page. Because an amended petition completely replaces the previous petitions, petitioner 5 || must include in his amended petition all the claims he wishes to present. See Ferdik v. 6 || Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Petitioner may not incorporate material 7 || from the prior petition by reference. Failure to file an amended petition in accordance with 8 || this order will result in dismissal of this action without further notice to petitioner. 9 It is petitioner’s responsibility to prosecute this case. Petitioner must keep the court 10 || informed of any change of address by filing a separate paper with the Clerk headed 11 || “Notice of Change of Address.” He must comply with the court’s orders in a timely 2 fashion or ask for an extension of time to do so. Failure to comply may result in the 13 dismissal of this action pursuant to Federal Rule of Civil Procedure 41(b). S 14 The Clerk shall terminate all pending motions. 3 15 || ITISSO ORDERED. a 16 || Dated: December 8, 2020 . \f . C0 7 LIAM H. ORRICK 18 United States District Judge 19 20 21 22 23 24 25 26 27 28