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Brodsky v. Baca

United States District Court, District of Nevada

April 23, 2015

JOSHUA BRODSKY, Petitioner,
v.
WARDEN BACA, et al., Respondents.

ORDER

MRANDA M. DU UNITED STATES DISTRICT JUDGE

Petitioner Joshua Brodsky has submitted a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (dkt. no. 1-1). Petitioner’s application to proceed in forma pauperis (dkt. no. 1) is granted. As discussed below, the petition must be dismissed for failure to state claims cognizable in federal habeas proceedings.

As a preliminary matter, on the face of his petition, petitioner indicates that his state judgment of conviction was entered on March 24, 2014, and that he did not file a direct appeal or a state postconviction habeas petition. Thus, it appears that petitioner has failed to exhaust state remedies.[1]

Moreover, in count one, petitioner states that his due process rights were violated because there was no proof of force and, without such proof, he should have been convicted of a misdemeanor only (dkt. no. 1-1, p. 3). However, petitioner pled guilty to coercion. (Id. at 2.) “[W]hen a criminal defendant has solemnly admitted in open court that he is, in fact, guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v. Floyd, 108 F.3d 202, 204 (9th Cir.1997) (overruled on other grounds in U.S. v. Castillo, 496 F.3d 947 (9th Cir.2007)). When a petitioner pled guilty, under Tollett, the only federally cognizable habeas claims he or she may raise are claims of ineffective assistance of counsel with respect to the advice to plead guilty or the voluntariness of that plea. Tollett, 411 U.S. at 267. Accordingly, ground one is not cognizable.

Of the remaining two grounds in the petition, the first alleges that petitioner was not placed in a permanent medical ward in contravention of the state sentencing judge’s order (dkt. no. 1-1, p. 5). This is not a habeas claim and, in fact, petitioner raised this claim in a 42 U.S.C. § 1983 civil rights action in this court, case no. 2:14-cv-01064-RFB-CWH. The last ground, also not a habeas claim, asserts that Clark County Detention Center (“CCDC”) personnel discriminated against petitioner in violation of the Americans with Disabilities Act (“ADA”) (dkt. no. 1-1, p. 7). Petitioner alleges that he is disabled, was unable to work at CCDC, and other inmates who worked there received up to ten days of work credit each month. Neither ground is cognizable in federal habeas proceedings.[2] Bogovich v. Sandoval, 189 F.3d 999, 1003-1004 (9th Cir. 1999); Heck v. Humphrey, 512 U.S. 477, 481-83 (1994); see also Harper v. Board of Prison Com’r, 2015 WL 268803 (D. Nev. January 20, 2015).

As petitioner has set forth no federally cognizable grounds, the petition is dismissed.

It is therefore ordered that petitioner’s application to proceed in forma pauperis (dkt. no. 1) is granted.

It is further ordered that the Clerk shall detach and file the petition (dkt. no. 1-1).

It is further ordered that the petition is dismissed with prejudice for failure to state claims cognizable in federal habeas corpus.

It is further ordered that a certificate of appealability is denied, as jurists of reason would not find the Court’s dismissal of this petition to be debatable or incorrect.

It is further ordered that the Clerk shall enter judgment accordingly and close this case.


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