Opinion
Nos. C 02-3503 CRB (PR), C 03-3094 CRB (PR).
July 8, 2003
ORDER
Per order filed on October 1, 2002, the court found that the petition for a writ of habeas corpus under 28 U.S.C. § 2254 filed in case number C 02-3503 CRB (PR) stated two cognizable claims for relief — (1) the admission of a second degree robbery prior conviction for sentencing enhancement purposes was not voluntary and intelligent, and (2) the second degree robbery did not qualify as a "strike" for sentencing enhancement purposes — and ordered respondent to show cause why a writ of habeas corpus should not be granted.
Respondent instead moved to dismiss the petition on the ground that petitioner had failed to exhaust state judicial remedies as to claim (2). The court agreed and granted the motion, and, pursuant to the law of the circuit, gave petitioner three options: (1) dismiss the petition and return to state court to exhaust the unexhausted claim; (2) delete the unexhausted claim and proceed with the exhausted claim only; or (3) amend the petition to dismiss the unexhausted claim, move to stay the amended petition, exhaust the unexhausted claim and then move to amend the stayed petition to add the newly-exhausted claim. Apr. 28, 2003 Order at 2 (citing Ford v. Hubbard, 305 F.3d 875, 882-86 (9th Cir. 2002)).
Petitioner elected option (2), stating that he wished to delete the unexhausted claim and proceed with the exhausted claim only. Per order filed on May 7, 2003, the court accordingly struck the unexhausted claim (2) and reinstated its earlier order to show cause as to claim (1). May 7, 2003 Order at 2.
Only days before respondent's answer to the order to show cause was due, petitioner submitted a motion to amend his petition to add a new claim — the state trial court failed to obtain petitioner's express waiver of his right to cross-examination, right to a jury trial and privilege against self-incrimination in connection with his admission that he suffered a one-year prison term prior. The motion was inadvertently filed as a new case and assigned case number C 03-3094 CRB (PR), however.
In the interest of expediting these proceedings, the clerk is instructed to file a copy of the motion into case number C 02-3503 CRB (PR) and to close case number C 03-3094 CRB (PR). In addition, the motion to amend is DENIED because it is well-established that due process does not require a state court to enumerate all the rights a defendant waives when he enters a guilty plea. It only requires that the plea be entered voluntarily and understandingly. See Rodriguez v. Ricketts, 798 F.2d 1250, 1254 (9th Cir. 1986); Wilkins v. Erickson, 505 F.2d 761, 763 (9th Cir. 1974).
The clerk shall file a copy of this order in both C 02-3503 CRB (PR) and C 03-3094 CRB (PR), and close C 03-3094 CRB (PR).
SO ORDERED.