Free Order - District Court of California - California

Case 3:08-cv-02880-PJH

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 8 9 10 v. ORDER TO SHOW CAUSE 11
For the Northern District of California

ALEX MONETTE, Petitioner, No. C 08-2880 PJH

United States District Court

NICK DAWSON, Warden, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondent. _______________________________/ Petitioner Alex Monette ("Monette"), a state prisoner currently incarcerated at the Avenal State Prison in Avenal, California, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. BACKGROUND In March 1990, Monette was convicted of second degree murder, along with a weapons use enhancement, in the Los Angeles County Superior Court. He was subsequently sentenced to fifteen years to life. While Monette was incarcerated at the Correctional Training Facility at Soledad, California, prison officials conducted an investigation into a marijuana trafficking scheme by which drugs were allegedly brought in through the prison's medical department. In May 2004, Monette's cell was searched as part of the investigation, and officials discovered an excess of 10.96 grams of marijuana in a cap hanging near Monette's bunk. Monette was charged with, and after a hearing by a California Department of Corrections ("CDC") officer, convicted of a CDC-115 serious rule violation. Monette was also charged with one count of being in possession of a controlled

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substance in prison, and entered a plea of nolo contendre in the Monterey County Superior Court. Monette subsequently filed a petition for writ of habeas corpus with the Monterey County Superior Court, which the court denied on October 23, 2006. In denying his petition, the superior court noted that Monette had not exhausted his administrative remedies and thus could not appeal the CDC's rule violation conviction. However, the court denied on the merits petitioner's claims related to his conviction in the Monterey County Superior Court for being in possession of a controlled substance in prison. The California Supreme Court then denied Monette state habeas relief on January 4, 2007, and the California Supreme Court similarly denied Monette habeas relief on June 27, 2007. Monette subsequently filed a petition for federal habeas relief with the United States District Court for the Eastern District of California on October 9, 2007. On June 6, 2008, the case was transferred to this district because the conviction challenged was entered in the Monterey County Superior Court, and on June 9, 2008, the case was assigned to the undersigned. DISCUSSION A. Legal Standard This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). It shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. B. Petitioner's Legal Claims Monette raises two claims for federal habeas relief: (1) that he received ineffective assistance of counsel and would not have entered into his plea agreement had he received competent advice; and (2) that his plea agreement violated his right to due process. Liberally construed, the claims appear colorable under 28 U.S.C. § 2254 and merit an

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answer from respondent. CONCLUSION For the foregoing reasons and for good cause shown, 1. 2. Petitioner is ordered to pay the filing fee required in habeas cases. The clerk shall serve by certified mail a copy of this order and the petition and

all attachments thereto upon respondents. The clerk shall also serve a copy of this order on petitioner. 3. Respondents shall file with the court and serve on petitioner, within 60 days of

the date of this order, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent shall file with the answer and serve on petitioner a copy of all portions of the administrative record that are relevant to a determination of the issues presented by the petition. 4. If the petitioner wishes to respond to the answer, he shall do so by filing a

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traverse with the court and serving it on respondent within 30 days of his receipt of the answer. Dated: June 17, 2008 ______________________________ PHYLLIS J. HAMILTON United States District Judge

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