McClellan v. Valenzuela
| Decision Date | 19 December 2016 |
| Docket Number | No. 1:13-cv-01602-LJO-SKO HC,1:13-cv-01602-LJO-SKO HC |
| Parties | GREGORY McCLELLAN, Petitioner, v. E. VALENZUELA, Warden, Respondent. |
| Court | U.S. District Court — Eastern District of California |
Petitioner Gregory McClellan, a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, presents multiple grounds for relief from his convictions for failing to update his sex-offender registration and resisting arrest. The undersigned finds the claims to have little merit and recommends that the Court deny the petition.
On April 28, 1987, Petitioner was convicted of burglary (Cal. Penal Code § 460(A)). On September 7, 1990, Petitioner was convicted of assault to commit rape (Cal. Penal Code §§ 220 and 261(a)). Petitioner served a separate prison term for each of these felony convictions. On
///February 6, 2003, Petitioner was convicted of the crime of petty theft with a prior jail term for theft (Cal. Penal Code § 666), a felony, and again sentenced to prison.
As a requirement of his release on parole in July 2009,2 Petitioner's location was electronically monitored using a GPS device. On August 5, 2009, the California Department of Corrections and Rehabilitation (CDCR) declared Petitioner to be a parolee at large when the monitor stopped broadcasting Petitioner's location. (Officers later discovered that Petitioner had removed and disabled the monitor.) On August 17, 2009, Parole Agent Michael Pitcher went to Petitioner's last known address, the Sunset Hotel at 1108 South Union Avenue in Bakersfield, and learned that Petitioner had checked out of his room (room 3) on July 11, 2009. On the same day, Parole Agent Lozano saw Petitioner in the 1100 block of Union Avenue. When Agent Lozano attempted to arrest Petitioner, Petitioner fled on foot. Following pursuit on foot, Lozano arrested Petitioner.
On February 19, 2010, a criminal complaint (BF131041A) filed against Petitioner in Kern County Superior Court alleged his (1) failure to update sex offender registration upon change of address (Cal. Penal Code § 290.13(a)); (2) failure to register as a sex offender (Cal. Penal Code § 290(b)); and (3) delaying, resisting, or obstructing a peace officer (Cal. Penal Code § 148(a)(1)), and sought sentencing enhancement based on Petitioner's prior record, specifically that (4) he suffered two prior felony convictions that subjected him to enhanced punishment under the Three Strikes Law (Cal. Penal Code §§ 667(b)-(i), 1170.12) and (5) had served three prior prison terms for felony convictions (Cal. Penal Code § 667.5(b)).3 Petitioner was arraigned the same day. The Court's minute order noted:
Following his arraignment, Petitioner filed four motions: (1) a demurrer to the criminal complaint; (2) a motion to strike his prior conviction (Cal. Penal Code §§ 220 and 261); (3) a motion to strike an unspecified prior conviction for which Petitioner was sentenced on October 16, 1990; and (4) a motion for discovery. On March 4, 2010, the trial court granted the discovery motion and overruled the demurrer. The trial court negotiated a plea, which Petitioner rejected. The following day, March 5, 2010, the court conducted a preliminary hearing and found sufficient cause to proceed on the complaint.
On March 16, 2010, Petitioner appeared and represented himself at his arraignment, pleading not guilty on all counts.
On April 30, 2010, Petitioner rejected an offer of plea bargain. On May 5, 2010, Petitioner moved to reduce the pending charges to misdemeanors.
On April 26, 2011, Petitioner, proceeding pro se, pleaded no contest to the charges and executed an "Advisement of Rights, Waiver, and Plea Form for Felonies" (plea waiver form). The appellate court explained:
Following Petitioner's execution of the plea waiver form, the trial court conducted a hearing to accept Petitioner's pleas and admissions. The trial court asked Petitioner, Id. Petitioner responded, "Correct." Id.
On June 9, 2010, Petitioner filed a petition for writ of habeas corpus in Kern County Superior Court alleging that the trial court violated Petitioner's rights under the Speedy Trial Act (Cal. Penal Code § 1381). The superior court denied the petition on August 10, 2010.
On October 21, 2010, Petitioner filed a petition for writ of habeas corpus in Kern County Superior Court contending that his due process rights were violated when he was not timely served with a copy of the complaint. The superior court found the petition factually inaccurate and denied the petition on November 17, 2010.
On November 17, 2010, Petitioner filed a petition for writ of habeas corpus in Kern County Superior Court, alleging discovery violations by the California Department of Corrections and Rehabilitation (CDCR). On December 10, 2010, the superior court found that CDCR had complied with the subpoena for records of Petitioner's previous parole violations and denied the petition as moot.
On November 17, 2010, Petitioner also filed a petition for writ of habeas corpus in Kern County Superior Court, seeking an MRI for injuries allegedly incurred in a jail assault. On December 10, 2010, the superior court denied the petition as outside habeas jurisdiction and directed Petitioner to seek civil remedies.
On December 14, 2010, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal alleging that his due process rights were violated when the People did not timely serve him with a copy of the complaint against him. The Court of Appeal summarily denied the petition on March 17, 2011.
On January 25, 2011, Petitioner moved to withdraw his plea, contending he was not properly advised of his right to counsel. The trial court denied the motion and sentenced Petitioner to an aggregate prison term of eight years.
On June 15, 2011, the trial court appointed counsel for Petitioner at Petitioner's request. On August 23, 2011, Petitioner, represented by counsel, moved to withdraw his pleas, contending that the trial court did not adequately advise him of his right to counsel before accepting his plea. The court denied the motion, struck one of Petitioner's strikes, and sentenced him to eight years' imprisonment.
On October 3, 2011, Petitioner filed a petition for writ of error coram nobis in the Kern County Superior Court contending that his sentence was improperly enhanced by two prior unconstitutional convictions and that April 2011 guilty plea was not entered knowingly. On November 16, 2011, the superior court denied the petition, characterizing the claims as procedurally and substantively invalid.
Petitioner filed a direct appeal to the California Court of Appeal contending that because the trial court did not fully inform him (Cal. Penal Code §1018) of his right to counsel before accepting his no contest pleas, the trial court erred in denying Petitioner's motion to withdraw his pleas. The Court of Appeal affirmed. On November 26, 2012, Petitioner filed a petition for review in the California Supreme Court, which summarily denied review on January 3, 2013.
On February 22, 2012, Petitioner filed a petition for writ of habeas corpus in the Court of Appeal alleging that he had pleaded guilty to an illegal prior prison term. On Mach 22, 2012, the appellate court denied the petition without prejudice, stating that Petitioner had failed to establish that he suffered any present custodial restraints associated with the prior conviction.
On April 12, 2012, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal alleging that (1) he pleaded guilty to an illegal prior prison term and (2) the plea was not entered knowingly. On May 10, 2012, the appellate court denied the petition without prejudice, noting that Petitioner had not established that he continued to suffer custody restrictions related to the allegedly illegal prior term.
In a habeas petition filed in the Court of Appeal on June 20, 2012, Petitioner contended that (1) his 2003 conviction was illegally classified as a felony and (2) he would not have pleaded guilty had he known that the 2003 conviction was illegal. On August 24, 2012, the Court of Appeal summarily denied the petition.
On June 20, 2012, Petitioner filed a petition for habeas corpus in the Kern County Superior Court, alleging an equal protection claim and seeking one-half time credit for his out-of-court time. On July 26, 2012, the superior court denied the petition. On November 27,...
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