Rios v. Frauenheim ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 ULYSSES ALEXANDER RIOS, 11 Case No. 15-01357 BLF (PR) Petitioner, 12 ORDER DENYING MOTION FOR v. STAY; DEEMING MATTER 13 SUBMITTED 14 SCOTT FRAUENHEIM, Warden, 15 Respondent. 16 (Docket No. 56) 17 18 Petitioner, a state prisoner proceeding pro se, filed a writ of habeas corpus pursuant 19 to 28 U.S.C. § 2254, challenging his state conviction out of Santa Clara County. 20 Respondent filed an answer on June 15, 2020. Dkt. No. 44. Since then, Petitioner has 21 been granted four generous extensions of time to file a traverse, such that the final deadline 22 was set for June 27, 2021. Dkt. Nos. 47, 50, 52, 54. 23 Petitioner has filed a motion for a stay in order to exhaust an additional “subclaim” 24 of ineffective assistance of counsel based on counsel’s alleged failure to request a 25 severance. Dkt. No. 56 at 1. However, Petitioner entered a no contest plea in the 26 underlying conviction, which in California is the functional equivalent of a guilty plea. 27 United States v. Anderson, 625 F.3d 1219, 1220 (9th Cir. 2010). A defendant who pleads 1 || deprivation of constitutional rights that occurred before the plea of guilty. See Haring v. 2 || Prosise, 462 U.S. 306, 319-20 (1983) (guilty plea forecloses consideration of pre-plea 3 || constitutional deprivations). The only challenges left open in federal habeas corpus after a 4 || guilty plea is the voluntary and intelligent character of the plea and the nature of the advice 5 || of counsel to plead. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985); Tollett v. Henderson, 411 6 || U.S. 258, 267 (1973). A defendant who pleads guilty upon the advice of counsel may only 7 || attack the voluntary and intelligent character of the guilty plea by showing that the advice 8 || he received from counsel was not within the range of competence demanded of attorneys g || criminal cases. /d.; Lambert v. Blodgett, 393 F.3d 943, 979 (9th Cir. 2004). This is 10 || precisely the claim that was raised in this action, and to which Respondent has answered 11 || onthe merits. Dkt. No. 44. Accordingly, the motion for a stay is DENIED as the 2 proposed claim which Petitioner seeks to exhaust is not cognizable. E 13 Petitioner was clearly advised that his fourth extension of time to file a traverse S 14 || would be his last. Dkt. No. 54. The deadline of June 27, 2021 has passed. Accordingly, 3 15 || the matter is deemed submitted. 16 This order terminates Docket No. 56. IT IS SO ORDERED 19 || Dated: _ June 28,2021. heh harmon 50 BETH LABSON F REEMAN United States District Judge 21 22 23 24 25 || order Denying Stay; Deeming Matter Submitted P:\PRO-SE\BLF\HC.15\01357Rios_deny-stay.submitted.docx 26 27