No. 22-7808

Elroy Pedro Gomez v. William Joe Sullivan, Warden

Lower Court: Ninth Circuit
Docketed: 2023-06-16
Status: Denied
Type: IFP
Response WaivedIFP
Tags: California-Supreme-Court criminal-procedure Due-process Equal-protection Habeas-corpus ineffective-assistance plea-bargain Sentencing-enhancements Sixth-Amendment
Latest Conference: 2023-09-26
Question Presented (from Petition)

1. In the fi rst pl ace, was Peti tioner deni ed hi s Sixth Amendment
right to the effecti ve assi stance of counsel when hi s court-appoi nted
trial attorney fai led to advi se hi m that he had no defense to the
ADW charge or the sentenci ng enhancements and was certai n to be
found gui lty of those charges and to be sentenced to a l onger term
than the prosecuti on was offeri ng, and, therefore, had no rati onal
choice but to accept the offer, but, i nstead, advi sed hi m that they
were goi ng to beat the case?

2. Was Peti tioner deni ed hi s Fifth and Fourteenth Amendment
rights to due process and eq ual protecti on when, on habeas corpus
in the C aliforni a Court of Appeal and Supreme C ourt, those courts
failed to fol low C aliforni a Supreme C ourt deci sional law (see, e.g.,
Peopl e v. Duval l, 9 C al.4th 464, 474-475 (1995); Peopl e v. Pope, 23
Cal.3d 412, 426 (1979)), whi ch req uires the courts, when a peti tioner
alleges facts whi ch make out a pri ma faci e case of an unl awful
convi ction, to i ssue an order to show case, and i f those factual
allegati ons are contested, to conduct an evi denti ary heari ng in order
to resol ve them?

3. Were the summary deni als of Peti tioner's state-court habeas
petitions – without i ssuance of an order to show cause, an
evidenti ary heari ng, and a statement of reasons – per se
unreasonabl e and, therefore, not enti tled to deference on habeas
corpus i n the federal courts under 28 U.S.C . § 2254 (d)(2) because
those state courts resol ved factual issues and Peti tioner's credi bility
without affordi ng hi m an evi denti ary heari ng, as hel d in Nunes v.
Muel ler, 350 F.3d 1045, 1054 (9th Cir. 2003) and other deci sions of the
Ninth C ircuit Court of Appeal s?

4. Was Peti tioner deni ed hi s Fifth Amendment ri ght to due
process when, on habeas corpus i n the Uni ted States Di strict Court,
the court i ssued an order to show cause, and Peti tioner made the
showi ng stated i n Paragraph E bel ow (p. v) – speci fically that hi s
attorney fai led to gi ve hi m competent advi ce to accept the
prosecuti on's offer of a pl ea bargai n and that, wi th such advi ce, he
woul d have accepted i t – but the court not onl y deni ed an
evidenti ary heari ng to determi ne the truth of the factual showi ng
and the credi bility of Peti tioner, as req uired by Ni nth C ircuit law
(e.g. Nunes v. Muel

Question Presented (AI Summary)

Ineffective-assistance-of-counsel

Docket Entries

2023-10-02
Petition DENIED.
2023-06-22
DISTRIBUTED for Conference of 9/26/2023.
2023-06-16
Waiver of right of respondent William Sullivan to respond filed.
2023-05-09
Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due July 17, 2023)

Attorneys

Elroy Gomez
William Richard SuchRichard Such, Attorney at Law, Petitioner
William Sullivan
Michele Joette SwansonCalifornia Attorney General's Office, Respondent