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)

Petitioner, 8 ORDER TO SHOW CAUSE v. 9

10 JOSIE GASTELO, Dkt. Nos. 13 and 14 Respondent. 11

12 13 INTRODUCTION 14 Petitioner John Henry Lee seeks federal habeas relief from his state convictions. 15 The first amended petition for such relief is now before the Court for review pursuant to 28 16 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases. 17 The first amended petition states cognizable claims. Accordingly, on or before 18 September 1, 2021, respondent shall file an answer or a dispositive motion in response to 19 the operative habeas petition. 20 This habeas action appears to be untimely. Petitioner was convicted in 2015, but he 21 did not file his federal petition until 2020. If respondent concludes that this habeas action 22 is untimely, he may wish to file a motion to dismiss the action on such grounds, though he 23 is not required to do so. 24 BACKGROUND 25 According to the petition, in 2015 Lee pleaded nolo contendere in the Alameda 26 County Superior Court to a charge of second degree robbery. (Pet., Dkt. No. 1 at 1-2.) His 27 sentence was enhanced under Cal. Penal Code §§ 667.5 and 1192.7. (Id. at 2.) Lee filed 1 courts. (Id. at 2-3.) This federal habeas petition followed those denials. 2 DISCUSSION 3 i. Standard of Review 4 This Court may entertain a petition for writ of habeas corpus “in behalf of a person 5 in custody pursuant to the judgment of a State court only on the ground that he is in 6 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 7 § 2254(a). A district court considering an application for a writ of habeas corpus shall 8 “award the writ or issue an order directing the respondent to show cause why the writ 9 should not be granted, unless it appears from the application that the applicant or person 10 detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate 11 only where the allegations in the petition are vague or conclusory, palpably incredible, or 12 patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 13 ii. Original Petition 14 In his original petition, Lee claimed (i) “the California robberies were prosecuted 15 under two conflicting statutes”; and (ii) the rule of lenity should apply to him because of 16 this conflict. (Pet., Dkt. No. 1 at 5.) These claims were dismissed with leave to amend. 17 Because he pleaded guilty, only two habeas claims are available to Lee. The only 18 challenges left open on federal habeas corpus review after a defendant has entered a plea 19 of guilty concern the (i) voluntary and intelligent character of the plea; and (ii) adequacy of 20 the advice of counsel. Womack v. Del Papa, 497 F.3d 998, 1002 (9th Cir. 2007) (quoting 21 Hill v. Lockhart, 474 U.S. 52, 56-57 (1985)).1 22 Lee was instructed that his petition may be untimely and that he would need to 23 exhaust the two claims available to him. 24 25 1 Lee was told that there were exceptions to this general bar. For example, a defendant 26 who pleads guilty still may raise in habeas corpus proceedings the very power of the state to bring him into court to answer the charge brought against him, see Haring v. Prosise, 27 462 U.S. 306, 320 (1983) (citing Blackledge v. Perry, 417 U.S. 21, 30 (1974)), and may 1 iii. First Amended Petition 2 In his first amended petition, Lee claims (i) the state had no power to bring him into 3 court to answer the charges against him;2 (ii) he is factually innocent of the charges he was 4 convicted of; and (iii) he received ineffective assistance of counsel. (First Am. Pet., Dkt. 5 No. 15 at 6.) When liberally construed, claims (i) and (iii) are cognizable and shall 6 proceed. 7 Claim (ii) is DISMISSED. It is really a sentencing claim, that there was insufficient 8 evidence his crimes were violent and serious under California’s Three Strikes Law. (Id. at 9 12.) Despite dismissal of Claim (ii), his allegations will be addressed because they form 10 part of Claim (i). 11 MOTIONS 12 Lee’s motion for an extension of time to file his amended petition is GRANTED. 13 (Dkt. No. 13.) 14 Lee’s motion to proceed in forma pauperis is DENIED as moot, his prior such 15 motion having been granted. (Dkt. Nos. 12 and 14.) 16 CONCLUSION 17 1. The Clerk shall serve electronically a copy of this order upon the respondent and 18 the respondent’s attorney, the Attorney General of the State of California, at the following 19 email address: SFAWTParalegals@doj.ca.gov. The petition and the exhibits thereto are 20 available via the Electronic Case Filing System for the Northern District of California. 21 The Clerk shall serve by mail a copy of this order on petitioner. 22 2. On or before September 1, 2021, respondent shall file with the Court and serve 23 on petitioner, an answer conforming in all respects to Rule 5 of the Rules Governing 24 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted 25 based on petitioner’s cognizable claims. Respondent shall file with the answer and serve 26 on petitioner a copy of all portions of the state trial record that previously have been 27 1 || transcribed and that are relevant to a determination of the issues presented by the petition. 2 3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse 3 || with the Court and serving it on respondent’s counsel within thirty (30) days of the date the 4 || answer is filed. 5 4. In lieu of an answer, respondent may file, on or before September 1, 2021, a 6 || motion to dismiss on procedural grounds, as set forth in the Advisory Committee Notes to 7 || Rule 4 of the Rules Governing Section 2254 Cases. If respondent files such a motion, 8 || petitioner shall file with the Court and serve on respondent an opposition or statement of 9 || non-opposition within thirty (30) days of the date the motion is filed, and respondent shall 10 || file with the Court and serve on petitioner a reply within fifteen (15) days of the date any 11 || opposition is filed. 2 5. Petitioner is reminded that all communications with the Court must be served on 5 13 || respondent by mailing a true copy of the document to respondent’s counsel. 14 6. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the 15 || Court and respondent informed of any change of address and must comply with the a 16 || Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this

17 || action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 18 7. Upon a showing of good cause, requests for a reasonable extension of time will 19 || be granted provided they are filed on or before the deadline they seek to extend. 20 8. The Clerk shall terminate all pending motions. 21 IT IS SO ORDERED. 22 || Dated: May 28, 2021 io M.Qe 23 IAM H. ORRICK 24 United States District Judge 25 26 27 28