1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10

ROOSEVELT HOGG, JR.,

11 Case No. 20-03082 EJD (PR) Petitioner, 12 ORDER OF DISMISSAL v. 13

14 GREGORY J. AHERN, et al., 15 Respondents.

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17 18 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction.1 Dkt. No. 1. 20 Petitioner paid the filing fee after the Court denied his motion for leave to proceed in 21 forma pauperis. Dkt. Nos. 17, 20. 22 23 BACKGROUND 24 Petitioner pleaded nolo contendere to the charge of possession of a firearm by a 25 felon in Alameda County Superior Court. Dkt. No. 1 at 1-2. Petitioner was sentenced on 26 January 26, 2018, to “1 year county, 5 years probation.” Id. at 1. As of his last filing with 27 1 the Court on December 23, 2020, Petitioner remains in custody at the Santa Rita County 2 Jail in Dublin. Dkt. No. 23. 3 Petitioner did not appeal the matter. Id. at 3. Petitioner indicates that he sought 4 relief by filing a “Marsden Motion” in Alameda County Superior Court which was denied 5 on the same date that he was sentenced. Id. at 3-4. No other collateral review was sought 6 in either the state appellate or high courts. 7 Petitioner filed this federal habeas action on May 5, 2020. 8 9 DISCUSSION 10 A. Exhaustion 11 Prisoners in state custody who wish to challenge collaterally in federal habeas 12 proceedings either the fact or length of their confinement are first required to exhaust state 13 judicial remedies, either on direct appeal or through collateral proceedings, by presenting 14 the highest state court available with a fair opportunity to rule on the merits of each and 15 every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b)-(c). If available 16 state remedies have not been exhausted as to all claims, the district court must dismiss the 17 petition. Duckworth v. Serrano, 454 U.S. 1, 3-5 (1981). Before he may challenge either 18 the fact or length of his confinement in a habeas petition in this Court, petitioner must 19 present to the California Supreme Court any claims he wishes to raise in this court. See 20 Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding every claim raised in federal habeas 21 petition must be exhausted). If available state remedies have not been exhausted as to all 22 claims, the district court must dismiss the petition. See id., 455 U.S. at 510; Guizar v. 23 Estelle, 843 F.2d 371, 372 (9th Cir. 1988). 24 According to the petition, Petitioner pleaded nolo contendere and was sentenced on 25 January 26, 2018. See supra at 1. Petitioner indicates that he did not seek direct review, 26 and other than filing a Marsden motion in the state superior court, he did not seek 27 collateral review in the state appellate and high courts. Dkt. No. 3-4. 1 petition to the California Supreme Court, either on direct appeal or in a state habeas action, 2 before filing this action. Therefore, the petition is not ripe for federal review because 3 Petitioner has still not exhausted his state remedies. See Rose, 455 U.S. at 522. 4 Accordingly, this petition should be dismissed without prejudice to Petitioner filing a new 5 federal habeas corpus petition once state remedies have been exhausted. 6 But even if Petitioner had exhausted the claims raised herein, none of the claims are 7 cognizable in federal habeas. Petitioner claims the following: (1) ineffective assistance of 8 counsel for failing to challenge a prior conviction; (2) illegal search and seizure; and (3) 9 search warrants were not obtained until after the illegal search. Dkt. No. 1 at 5. However, 10 Petitioner’s nolo contendere plea, which in California is the equivalent of a guilty plea,2 11 means that he cannot later raise in habeas corpus proceedings independent claims relating 12 to the deprivation of constitutional rights that occurred before the plea of guilty. See 13 Haring v. Prosise, 462 U.S. 306, 319-20 (1983) (guilty plea forecloses consideration of 14 pre-plea constitutional deprivations); Tollett v. Henderson, 411 U.S. 258, 266-67 (1973) 15 (same); Moran v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994) (refusing to consider 16 contention that petitioner’s attorneys were ineffective because they failed to attempt to 17 prevent the use of his confession as pre-plea constitutional violation). All the claims he 18 raises in the instant petition relate to the deprivation of constitutional rights that occurred 19 before his plea and are therefore are not cognizable in federal habeas. See Haring, 462 20 U.S. at 319-20. 21 If Petitioner still desires to challenge the underlying conviction in a federal habeas 22 action, the only claim available to him is with respect to the voluntary and intelligent 23 character of the plea and the nature of the advice of counsel to plead. Hill v. Lockhart, 474 24 U.S. 52, 56-57 (1985); Tollett v. Henderson, 411 U.S. 258, 267 (1973). A defendant who 25 pleads guilty upon the advice of counsel may only attack the voluntary and intelligent 26

27 2 Under California law, a “plea of nolo contendere ‘is the functional equivalent of a guilty 1 character of the guilty plea by showing that the advice he received from counsel was not 2 within the range of competence demanded of attorneys in criminal cases. Id.; Lambert v. 3 Blodgett, 393 F.3d 943, 979 (9th Cir. 2004); United States v. Signori, 844 F.2d 635, 638 4 (9th Cir. 1988); Hudson, 760 F.2d at 1030. 5 B. Timeliness 6 From the face of the petition, there also appears to be an issue of timeliness. The 7 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) became law on April 8 24, 1996, and imposed for the first time a statute of limitations on petitions for a writ of 9 habeas corpus filed by state prisoners. Petitions filed by prisoners challenging non-capital 10 state convictions or sentences must be filed within one year of the latest of the date on 11 which: (1) the judgment became final after the conclusion of direct review or the time 12 passed for seeking direct review; (2) an impediment to filing an application created by 13 unconstitutional state action was removed, if such action prevented petitioner from filing; (3) the constitutional right asserted was recognized by the Supreme Court, if the right was 14 newly recognized by the Supreme Court and made retroactive to cases on collateral 15 review; or (4) the factual predicate of the claim could have been discovered through the 16 exercise of due diligence. See 28 U.S.C. § 2244(d)(1). Time during which a properly filed 17 application for state post-conviction or other collateral review is pending is excluded from 18 the one-year time limit. See id. § 2244(d)(2). 19 Petitioner states that he was sentenced on January 26, 2018. See supra at 1. 20 Petitioner had sixty days thereafter to file an appeal. See Mendoza v. Carey, 449 F.3d 21 1065, 1067 (9th Cir. 2006) (because California prisoner did not appeal his conviction, 22 process of direct review became final 60 days after conviction); Cal. Rule of Court 23 8.308(a) (providing that appeal from criminal judgment must be filed within 60 days after 24 rendition of judgment or making of order being appealed) (formerly Cal. Rule of Court 25 31). Because Petitioner did not seek direct review, the judgment became final on March 26 27, 2018. Id. Nor did Petitioner seek any collateral review to be entitled to statutory 27 1 action. However, Petitioner did not file this action until May 5, 2020, well after the 2 || limitations period had expired. Accordingly, Petitioner is advised that even if he were to 3 || return after exhausting state judicial remedies, the habeas petition may be subject to 4 || dismissal as untimely. 5 6 CONCLUSION 7 For the foregoing reasons, the petition for writ of habeas corpus is DISMISSED for 8 || failure to exhaust state remedies. See Rose, 455 U.S. at 510. The dismissal is without 9 || prejudice to Petitioner refiling once he has exhausted state judicial remedies with respect 10 || to any cognizable claims raised. 11 IT IS SO ORDERED. a 12 Dated: 1/5/2021

EDWARD J. DAVILA

United States District Judge

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