Perry v. Robertson

Background

Joshua Lee Perry, an incarcerated person at Pelican Bay State Prison, filed a self-represented petition under 28 U.S.C. § 2254 seeking federal review of his state-court conviction. According to the petition, he was sentenced in 2015 by the Contra Costa County Superior Court to 22 years to life after pleading no contest to voluntary manslaughter. Perry said he had unsuccessfully appealed, but the court could not determine whether he had asked the California Supreme Court to review the case. He alleged that he had been convicted of a homicide even though he was not the killer and that the eyewitnesses from the state-court case could support that allegation.

Court’s analysis

The court reviewed the petition under 28 U.S.C. § 2243 and Rule 4, which require an initial review of a federal petition challenging state custody. Federal habeas relief is available only when a person is held in violation of the federal Constitution, federal laws, or treaties. The court found that Perry had not identified such a violation.

The court gave additional reasons why the allegation did not state a cognizable federal habeas claim. First, a guilty plea generally prevents later federal habeas claims based on constitutional violations that occurred before the plea. The court applied that reasoning to Perry’s no-contest plea and explained that the remaining types of plea-related challenges generally concern whether the plea was voluntary and informed, including whether counsel’s advice was legally inadequate. Second, the court explained that a freestanding claim of actual innocence—one not tied to an independent constitutional violation—generally does not provide a basis for federal habeas relief. Third, a state prisoner ordinarily must present each federal claim to the highest available state court before seeking federal habeas relief. If Perry had not presented this claim to the California Supreme Court, the claim would be unexhausted and the federal court could not consider it.

Disposition

The court dismissed the petition with leave to amend to address the identified deficiencies, if Perry could truthfully do so. It ordered him to file an amended petition within 28 days, using the case caption and number and placing the words “AMENDED PETITION” on the first page. The amended petition had to include every claim he wished to pursue because it would replace the earlier petition, and it could not incorporate the earlier petition by reference. The court stated that failure to comply could result in dismissal for failure to prosecute under Federal Rule of Civil Procedure 41(b) or for failure to state a cognizable federal habeas claim. Judge Haywood S. Gilliam, Jr. signed the order.