1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOSHUA LEE PERRY, Case No. 21-cv-08311-HSG

8 Petitioner, ORDER OF DISMISSAL WITH LEAVE TO AMEND 9 v.

10 JAMES ROBERTSON, 11 Respondent.

12 13 Petitioner, an inmate at Pelican Bay State Prison, filed this pro se action seeking a writ of 14 habeas corpus pursuant to

, challenging his state court conviction. His petition is 15 now before the Court for review pursuant to

and Rule 4 of the Rules Governing 16 Section 2254 Cases in the United States District Courts. Petitioner has paid the filing fee. Dkt. 17 No. 4. 18 BACKGROUND 19 According to the petition, in 2015, Petitioner was sentenced to 22 years to life in Contra 20 Costa County Superior Court, after pleading nolo contendere to voluntary manslaughter. Dkt. No. 21 1 at 1-2. Petitioner reports unsuccessfully appealing his conviction, but is unclear whether he filed 22 a petition for review with the California Supreme Court. Dkt. No. 1 at 3. 23 DISCUSSION 24 A. Standard of Review 25 This court may entertain a petition for writ of habeas corpus “in behalf of a person in 26 custody pursuant to the judgment of a state court only on the ground that he is in custody in 27 violation of the Constitution or laws or treaties of the United States.”

(a); Rose v. 1 the respondent to show cause why the writ should not be granted, unless it appears from the 2 application that the applicant or person detained is not entitled thereto.”

. 3 B. Petition 4 Petitioner alleges that he was convicted of a homicide in a situation in which he was not 5 the killer, and that all eyewitnesses in the underlying state court proceeding can support this 6 allegation. Dkt. No. 1 at 5. This allegation fails to state a cognizable federal habeas claim for 7 several reasons. 8 First, federal habeas relief may only be granted if the petitioner is in custody in violation of 9 the Constitution or laws or treaties of the United States. Petitioner has not identified any violation 10 of either the federal Constitution or federal law. 11 Second, a defendant who pleads guilty cannot later raise in habeas corpus proceedings 12 independent claims relating to the deprivation of constitutional rights that occurred before the plea 13 of guilty. See Haring v. Prosise,

(1983) (guilty plea forecloses 14 consideration of pre-plea constitutional deprivations). The only challenges left open in federal 15 habeas corpus after a guilty plea are the voluntary and intelligent character of the plea and the 16 nature of the advice of counsel to plead. Hill v. Lockhart,

(1985); Tollett v. 17 Henderson,

(1973). A defendant who pleads guilty upon the advice of counsel 18 may only attack the voluntary and intelligent character of the guilty plea by showing that the 19 advice he received from counsel was not within the range of competence demanded of attorneys in 20 criminal cases.

Petitioner reports that he pled nolo contendere to voluntary manslaughter. 21 This plea precludes him from seeking federal habeas relief for independent claims relating to the 22 deprivation of constitutional rights that occurred before the nolo contendere plea. 23 Third, generally speaking, a freestanding claim of actual innocence alone fails to state a 24 cognizable federal habeas relief. In 1993, the Supreme Court noted that “[c]laims of actual 25 innocence based on newly discovered evidence have never been held to state a ground for federal 26 habeas relief absent an independent constitutional violation occurring in the underlying state 27 criminal proceeding.” Herrera v. Collins,

, (1993). Petitioner’s claim that he is 1 relief. 2 Finally, prisoners in state custody who wish to challenge collaterally in federal habeas 3 || proceedings either the fact or length of their confinement are first required to exhaust state judicial 4 || remedies, either on direct appeal or through collateral proceedings, by presenting the highest state 5 court available with a fair opportunity to rule on the merits of each and every claim they seek to 6 raise in federal court. See

(b), (c); Rose v. Lundy,

(1982). 7 || A district court may not grant federal habeas relief unless state court remedies are exhausted or 8 || exhaustion there is either “an absence of available state corrective process” or such process has 9 been “rendered ineffective.” See

(b)(1)(A)-(B). If Petitioner did not present this 10 claim to the California Supreme Court, it would be unexhausted and this Court would be unable to 11 consider it. 12 The Court DISMISSES this petition with leave to amend to address the above identified 13 deficiencies, if Petitioner can truthfully do so. CONCLUSION 3 15 For the foregoing reasons, the Court DISMISSES the petition with leave to amend. Within a 16 || twenty-eight (28) days of the date of this order, Petitioner shall file an amended petition. The 3 17 amended petition must include the caption and civil case number used in this order (21-cv-08311 18 || HSG) and the words “AMENDED PETITION” on the first page. Because an amended petition 19 completely replaces the previous petitions, Petitioner must include in his amended petition all the 20 || claims he wishes to present. Petitioner may not incorporate material from the prior petition by 21 reference. Failure to file an amended petition in accordance with this order will result in dismissal 22 || of this action either for failure to prosecute under Federal Rule of Civil Procedure 41(b) or for 23 || failure to state a cognizable claim for federal habeas relief. 24 IT IS SO ORDERED. 25 || Dated: 2/11/2022 26 Appr 3 bbl). HAYWOOD S. GILLIAM, JR. 27 United States District Judge 28