-BAM (HC) Salvador Martin Rocha v. James D Hartley, No. 1:2011cv01721 - Document 10 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus be DISMISSED without leave to amend for failure to state facts entitling Petitioner to relief; Court DECLINE to ISSUE a CERTIFICATE OF APPEALABILITY;Clerk of the Co urt be DIRECTED to CLOSE the action; re 1 Petition for Writ of Habeas Corpus, filed by Salvador Martin Rocha ; referred to Judge Ishii,signed by Magistrate Judge Barbara A. McAuliffe on 10/25/2011. Objections to F&R due by 12/1/2011 (Martin-Gill, S)
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-BAM (HC) Salvador Martin Rocha v. James D Hartley Doc. 10 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 SALVADOR MARTIN ROCHA, 11 Petitioner, 12 v. 13 JAMES D. HARTLEY, Warden, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 16 1:11-cv—01721–AWI-BAM-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE FACTS ENTITLING THE PETITIONER TO RELIEF PURSUANT TO 28 U.S.C. § 2254 (Doc. 1) FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO CLOSE THE CASE 17 Petitioner is a state prisoner proceeding pro se and in 18 forma pauperis with a petition for writ of habeas corpus pursuant 19 to 28 U.S.C. § 2254. The matter has been referred to the 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 21 Rules 302 through 304. Pending before the Court is the petition, 22 which was filed on September 30, 2011, and transferred to this 23 division of this Court on October 17, 2011. 24 I. Screening the Petition 25 Rule 4 of the Rules Governing § 2254 Cases in the United 26 States District Courts (Habeas Rules) requires the Court to make 27 a preliminary review of each petition for writ of habeas corpus. 28 1 Dockets.Justia.com 1 The Court must summarily dismiss a petition "[i]f it plainly 2 appears from the petition and any attached exhibits that the 3 petitioner is not entitled to relief in the district court....” 4 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 5 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 6 1990). 7 grounds of relief available to the Petitioner; 2) state the facts 8 supporting each ground; and 3) state the relief requested. 9 Notice pleading is not sufficient; rather, the petition must Habeas Rule 2(c) requires that a petition 1) specify all 10 state facts that point to a real possibility of constitutional 11 error. 12 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 13 Allison, 431 U.S. 63, 75 n.7 (1977)). 14 that are vague, conclusory, or palpably incredible are subject to 15 summary dismissal. 16 Cir. 1990). 17 Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 18 corpus either on its own motion under Habeas Rule 4, pursuant to 19 the respondent's motion to dismiss, or after an answer to the 20 petition has been filed. 21 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 22 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 23 A petition for habeas corpus should not be dismissed without 24 leave to amend unless it appears that no tenable claim for relief 25 can be pleaded were such leave granted. 26 F.2d 13, 14 (9th Cir. 1971). 27 28 Jarvis v. Nelson, 440 Here, Petitioner alleges that he is an inmate of the Avenal State Prison serving a sentence imposed in 2010 in the Fresno 2 1 County Superior Court for driving under the influence of alcohol, 2 causing injury, and leaving the scene of an accident. 3 Petitioner’s sole claim is that his Fifth and Fourteenth 4 Amendment right to counsel was violated when, after his nolo 5 contendere plea and before sentencing, he was interviewed by a 6 probation officer without the presence of counsel and without 7 being advised of his right to have counsel present. 8 6.) 9 II. (Pet. 2.) (Id. at 5- 10 Failure to State Facts Entitling Petitioner to Relief with Respect to the Absence of Counsel at the Pre-sentence Probation Interview 11 The Sixth and Fourteenth Amendments guarantee the right to 12 counsel only at critical stages of the criminal proceedings, 13 which are the points where substantial rights of the accused may 14 be affected. 15 v. Rhay, 389 U.S. 128, 134 (1967). 16 Fourteenth Amendment right to counsel can result in reversal only 17 if the absence of counsel occurs at a critical stage in the 18 adversary proceedings; if the stage is not critical, then there 19 can be no constitutional violation. 20 U.S. 586, 587-88 (1982) (no deprivation of the effective 21 assistance of counsel could have occurred because there was no 22 constitutional right to counsel in proceedings for discretionary 23 state post-conviction review). 24 has not provided a definitive list of the critical stages of a 25 criminal prosecution. 26 1228, 1232 (9th Cir. 2009). 27 28 Kirby v. Illinois, 406 U.S. 682, 690 (1972); Mempa A denial of the Sixth and Wainwright v. Torna, 455 The United States Supreme Court See, United States v. Benford, 574 F.3d Generally, with respect to sentencing, the assistance of counsel is guaranteed only when the defendant is confronted by 3 1 agents of the prosecution who have an adversarial role in the 2 sentencing process; in contrast, in pre-sentence interviews, a 3 probation officer is not an agent of the prosecution, has no 4 adversarial role in the sentencing proceedings, and acts as a 5 neutral gatherer of information for the court. 6 Leonti, 326 F.3d 1111, 1119-20 (9th Cir. 2003) (distinguishing 7 probation interviews from the process of an accused’s rendering 8 substantial assistance to the prosecution). 9 held that a post-guilty plea, pre-sentence interview in a non- United States v. Thus, it has been 10 capital case is not a critical stage of adversary criminal 11 proceedings. 12 Cir. 1995) (noting that the issue was effectively waived in the 13 case before the court, but confirming the vitality of the pre- 14 guidelines holding of Baumann v. United States, 692 F.2d 565 (9th 15 Cir. 1982) that a routine, pre-sentence interview of a person 16 convicted of a non-capital federal offense is not a critical 17 stage at which counsel’s presence or advice is necessary to 18 protect the defendant’s right to a fair trial); but see United 19 States v. Herrera-Figueroa, 918 F.2d 1430, 1433 (9th Cir. 1991) 20 (declining to decide whether pre-sentence interviews were a 21 critical stage for Sixth Amendment purposes but exercising the 22 court’s supervisory power to require probation officers to permit 23 defense counsel to accompany federal defendants to all pre- 24 sentence interviews). 25 United States v. Benlian, 63 F.3d 824, 827-28 (9th Further, if a pre-sentence interview is not a critical stage 26 for Sixth Amendment purposes, it follows that the probation 27 officer’s failure to advise Petitioner of a non-existent right to 28 counsel could not have constituted a violation of the Sixth and 4 1 Fourteenth Amendments. 2 that because a probation interview was not inherently coercive, a 3 probation officer need not give Miranda warnings). Cf. Baumann, 692 F.2d at 577 (concluding 4 Here, Petitioner alleges that as a defendant in a non- 5 capital case, he was subjected to a post-plea, pre-sentence 6 probation interview without the assistance of counsel and without 7 having been advised of his right to counsel. 8 was not entitled to counsel at the interview, which was not a 9 critical stage of the adversary proceedings. However, Petitioner Therefore, 10 Petitioner has not stated specific facts that entitle him to 11 relief in a proceeding pursuant to 28 U.S.C. § 2254. 12 Because the defect in the claim concerns the nature of the 13 claim and not the absence of any specific facts, granting leave 14 to Petitioner to amend to state more specific facts would be 15 futile. 16 dismissed without leave to amend. Therefore, it will be recommended that the petition be 17 III. 18 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 19 appealability, an appeal may not be taken to the Court of Appeals 20 from the final order in a habeas proceeding in which the 21 detention complained of arises out of process issued by a state 22 court. 23 U.S. 322, 336 (2003). 24 only if the applicant makes a substantial showing of the denial 25 of a constitutional right. 26 petitioner must show that reasonable jurists could debate whether 27 the petition should have been resolved in a different manner or 28 that the issues presented were adequate to deserve encouragement 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). 5 Under this standard, a 1 to proceed further. 2 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 3 certificate should issue if the Petitioner shows that jurists of 4 reason would find it debatable whether the petition states a 5 valid claim of the denial of a constitutional right and that 6 jurists of reason would find it debatable whether the district 7 court was correct in any procedural ruling. 8 529 U.S. 473, 483-84 (2000). 9 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 10 the claims in the habeas petition, generally assesses their 11 merits, and determines whether the resolution was debatable among 12 jurists of reason or wrong. 13 applicant to show more than an absence of frivolity or the 14 existence of mere good faith; however, it is not necessary for an 15 applicant to show that the appeal will succeed. 16 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 17 A district court must issue or deny a certificate of 18 appealability when it enters a final order adverse to the 19 applicant. 20 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 21 debate whether the petition should have been resolved in a 22 different manner. 23 of the denial of a constitutional right. 24 25 Petitioner has not made a substantial showing Therefore, it will be recommended that the Court decline to issue a certificate of appealability. 26 IV. 27 Accordingly, it is RECOMMENDED that: 28 1) Recommendations The petition for writ of habeas corpus be DISMISSED 6 1 without leave to amend for failure to state facts entitling 2 Petitioner to relief pursuant to 28 U.S.C. § 2254; and 3 4 5 2) The Court DECLINE to issue a certificate of appealability; and 3) The Clerk of the Court be DIRECTED to close the action 6 because dismissal would terminate the proceeding in its entirety. 7 These findings and recommendations are submitted to the 8 United States District Court Judge assigned to the case, pursuant 9 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 10 the Local Rules of Practice for the United States District Court, 11 Eastern District of California. 12 being served with a copy, any party may file written objections 13 with the Court and serve a copy on all parties. 14 should be captioned “Objections to Magistrate Judge’s Findings 15 and Recommendations.” 16 and filed within fourteen (14) days (plus three (3) days if 17 served by mail) after service of the objections. 18 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 19 § 636 (b)(1)(C). 20 objections within the specified time may waive the right to 21 appeal the District Court’s order. 22 1153 (9th Cir. 1991). Within thirty (30) days after Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 23 24 25 26 27 IT IS SO ORDERED. Dated: 1c20kb October 25, 2011 /s/ Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE 28 7
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