Cancino v. Craven

• Decision Date: 17 October 1969
• Docket Number: Civ. No. 69-881.
• Court: U.S. District Court — Central District of California
• Parties: Jess CANCINO, Petitioner, v. Walter E. CRAVEN, Respondent.

305 F. Supp. 539

Jess CANCINO, Petitioner, v. Walter E. CRAVEN, Respondent.

Civ. No. 69-881.

United States District Court C. D. California.

October 17, 1969.

Jess Cancino, in pro. per.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Mark L. Christiansen, Deputy Atty. Gen., Los Angeles, Cal., for respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

HAUK, District Judge.

Petitioner Jess Cancino is incarcerated at Folsom Penitentiary, Represa, California. On February 9, 1962, after a plea of guilty in the California Superior Court for a violation of the California Health and Safety Code, § 11500 (West, 1964), possession of heroin, Petitioner was sentenced to the term prescribed by law, not less than five nor more than twenty years, an augmented term due to a prior Federal conviction for violation of 26 U.S.C. §§ 4742(a) (1967), transfer of marijuana without the Federal order form.

This is Petitioner's nineteenth attempt at postconviction relief and this opinion is the second written decision rendered by a Federal Court. Judge Leon R. Yankwich of our Central District of California denied a similar petition on December 19, 1967, Civil No. 67-476-Y.

The present petition is based on the following grounds:

(1) That Petitioner's guilty plea in the California State case was not voluntarily given because the police had procured overwhelming evidence of his guilt by unlawful means; because the prosecution threatened to bring charges against Petitioner's wife if he did not plead guilty; and because the defense counsel had assured Petitioner that various public officials had been bribed so he would be given a reduced sentence.

(2) That the sentence was improperly augmented by the prior Federal conviction because the original State Information did not contain a showing or charge of the prior Federal conviction; because the State's Amended Information showing and charging the prior Federal conviction failed to specify the Federal statute pursuant to which the Petitioner was previously convicted with the result that Petitioner allegedly was denied an opportunity to defend against the use of this prior conviction; and finally, because the prior Federal conviction was invalid in that it was obtained pursuant to an unconstitutional statute.

After reviewing the Petition for the Writ of Habeas Corpus, the Response, the Traverse, the arguments and authorities set forth by the parties and the previous order of Judge Yankwich denying a Writ of Habeas Corpus, this Court is fully advised in the premises and denies the Writ of Habeas Corpus for the following reasons.

Petitioner's first contention that his guilty plea was not voluntarily given was considered on the merits and denied by Judge Yankwich, and must be denied now on the basis of 28 U.S.C. § 2244(b) (Supp., 1967):

"When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law, a person in custody pursuant to the judgment of a State court has been denied by a court of the United States or a justice or judge of the United States release from custody or other remedy on an application for a writ of habeas corpus, a subsequent application for a writ of habeas corpus in behalf of such person need not be entertained by a court of the United States or a justice or judge of the United States unless the application alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ."

The one new ground Petitioner alleges for this first contention, namely, that his defense counsel had assured him that various public officials had been bribed, does not have any factual support in the petition. Further, in view of the numerous previous attempts for postconviction relief and the substantial amount of money involved in the alleged bribes, the Court believes that the belated presentation of this new ground shows that he deliberately withheld the newly asserted ground and otherwise abused the Writ of Habeas Corpus, 28 U.S.C. § 2244(b) (Supp., 1967); Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).

The similar belated presentation of the second contention, namely that the prior Federal conviction was improperly used, can and should be disposed of as a deliberate withholding of this ground in earlier applications and as further abuse of the Writ. 28 U.S.C. § 2244(b) (Supp., 1967).

Not content with this facile disposition of the matter, we go to the merits and still find that the second contention does not support the granting of a writ of habeas corpus. The burden of proof is on Petitioner to demonstrate that he has a right to habeas corpus relief. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Schlette v. People of State of California, 284 F. 2d 827 (9th Cir., 1966); and Sampsell v. People of State of California, 191 F.2d 721 (9th Cir., 1951). And he must allege specific facts that show a Federal right is involved. 28 U.S.C. § 2241(c) (1959); In re Burrus, 136 U.S. 586, 10 S.Ct. 850, 34 L.Ed. 500 (1890); and Martinez v. Wilson, 357 F.2d 173 (9th Cir., 1966).

It is true, as Petitioner alleges, that the original information did not contain any showing of the prior Federal conviction. It also is true, as Petitioner alleges, that the Amended Information, while containing the charge of the prior Federal conviction, did not specify by United States Code title and section the Federal statute pursuant to which Petitioner was previously convicted. But these facts do not demonstrate a deprivation of "fundamental rights" which would constitute a denial of "due process". Alexander v. Fogliani, 375 F. 2d 733 (9th Cir., 1967). The allegation that Petitioner was denied "due process" because he was not advised of the specific Code title and section of the Federal statute pursuant to which he was previously convicted is frivolous. Surely Petitioner was aware of the offense for which he was previously convicted, since the charge of the prior Federal conviction contained in Count II of the Amended Information in clear and concise language shows the conviction as follows:

"That before the commission of the offenses hereinbefore set forth in this information, said defendant, JESS CANCINO, was in the District Court of the United States, in and for the Southern District of California, convicted of the crime of ILLEGALLY TRANSFERRING MARIJUANA, a felony, and the judgment of said court against said defendant in said connection was on or about 19th day of November, 1956, pronounced and rendered and said defendant served a term of imprisonment therefor in the Federal Prison." Case No. 67-476-Y, Opposition to Petition for Writ of Habeas Corpus, Appendix A, p. 5.

Further, there is no indication that Petitioner requested or otherwise attempted to ascertain the specific Code title and section of the statute before admitting the prior conviction.

The Court can and does take judicial notice of the prior Federal conviction from the Court's own files, U. S. A. v. Jess Cancino, Criminal Case No. 25,105 (C.D.Cal., 1956). Petitioner was indicted and convicted by a jury for violating 26 U.S.C. § 4742(a) (1967):

"It shall be unlawful for any person, whether or not required to pay a special tax and register under sections 4751 to 4753, inclusive, to transfer marihuana, except in pursuance of a written order of the person to whom such marihuana is transferred, on a form to be issued in blank for that purpose by the Secretary or his delegate."

This prior Federal conviction for illegal transfer of marijuana was properly used to augment Petitioner's...