Martini v. Sheriff, Los Angeles County

• Decision Date: 09 March 1971
• Docket Number: Civ. No. 70-1676.
• Citation: 325 F. Supp. 649
• Court: U.S. District Court — Central District of California
• Parties: Lawrence D. MARTINI, Petitioner, v. SHERIFF, LOS ANGELES COUNTY et al., Respondent.

325 F. Supp. 649

Lawrence D. MARTINI, Petitioner, v. SHERIFF, LOS ANGELES COUNTY et al., Respondent.

Civ. No. 70-1676.

United States District Court, C. D. California.

March 9, 1971.

Lawrence D. Martini, in pro. per.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Laurence M. Sarnoff, Deputy Atty. Gen., Los Angeles, Cal., for respondent.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

HAUK, District Judge.

Petitioner, a California State prisoner, is presently incarcerated in the Los Angeles County Jail awaiting trial on charges of battery upon a police officer (Penal Code, § 242). He here seeks to attack a sentence of 5 years to life imposed on him October 25, 1957, in Orange County Superior Court following his plea of guilty to violating Penal Code, § 211 (First Degree Robbery) for which he served time in a State prison before his parole January 5, 1962. The record indicates that he has been sentenced twice subsequently as a parole violator in addition to the current pending charges.

Petitioner did not appeal his sentence, stating that he did not know how to appeal. His petition alleges that he sought post-conviction relief by seeking writ of error coram nobis in Orange County Superior Court, denied March 25, 1970; error coram vobis or alternative writ of habeas corpus in the Court of Appeal, Fourth Appellate District, denied May 7, 1970; error coram vobis or alternative writ of habeas corpus, Supreme Court, denied July 1, 1970. He then filed the instant Petition on July 30, 1970.

Petitioner contends that he spoke to appointed counsel only once, discussed no defenses, and was told by counsel that an arrangement had been made with the District Attorney that he would receive a light jail sentence and probation if he pled guilty to one count of armed robbery with a dangerous weapon. He further claims that he was ignorant of his rights, and his free will and clear judgment were "over reached" by the deal.

After reviewing the Petition, the Response, the points and authorities presented by both parties, and the Petition in the California Supreme Court based on these same grounds, this Court is fully advised in the premises and orders that the Petition for Writ of Habeas Corpus be denied for the following reasons.

It is apparent that Petitioner did not exhaust his state remedies. He did not attempt to file notice of belated appeal under California Rule of Court 31(a), Still v. Fitzharris, 413 F.2d 977 (9th Cir. 1969), nor does he present a plausible reason for failing to attack his conviction for 13 years. This is a reasonable requirement in California, and has long been required. In re Swain, 34 Cal.2d 300, 209 P.2d 793 (1949). Habeas Corpus is no substitute for appeal and will be precluded in the absence of showing of an attempt to seek relief as indicated. Lembke v. Field, 380 F.2d 383 (9th Cir. 1967).

There is an additional remedy available. If Petitioner is attempting to claim that his guilty plea was involuntary, he may apply to the trial Court to vacate the judgment and set aside the plea. Gardella v. Field, 291 F.Supp. 107 (C.D.Cal.1968). Denial of such a motion is also appealable in the State to the District Court of Appeal or the Supreme Court. Holley v. Cheubront, 351 F.2d 615 (9th Cir. 1965). The plea was entered prior to the effective date of Penal Code, § 1237.5, providing for withdrawal of guilty plea, but Petitioner has still failed to meet the test then required, namely, that the claimed error must be substantially equivalent to fundamental constitutional deficiencies which would nullify the plea of guilty. People v. Laudermilk, 67 Cal.2d 272, 61 Cal.Rptr. 644, 431 P.2d 228 (1967).

Here, although there is a bare statement to the effect that Petitioner's will was overborne, no facts support it. It is not alleged that petitioner was not in fact guilty, and...