In re Lucas CA5

Filed 5/1/15 In re Lucas CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

In re F070962

JD DWAINE LUCAS, (Stanislaus Super. Ct. Nos. 1458227, 1454017 & 1454471) On Habeas Corpus. OPINION

THE COURT* ORIGINAL PROCEEDING; petition for writ of habeas corpus. JD Dwaine Lucas, in pro. per., for Petitioner. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Respondent. -ooOoo- Petitioner seeks permission to file a belated appeal by way of a petition for writ of habeas corpus. We grant petitioner’s request for a belated appeal. Petitioner’s additional habeas claims are denied without prejudice for consideration in the appeal.

* Before Gomes, A.P.J., Poochigian, J., and Smith, J.

STATEMENT OF CASE On September 11, 2014, petitioner was sentenced to 8 years 8 months for evading a peace officer, grand theft auto, and having a prior prison term. Petitioner claims his sentence was illegally enhanced because the prior prison term imposed belonged to his codefendant, not petitioner. Petitioner alleges he told counsel of this error, but counsel stated the district attorney was correct in assigning the prior prison term to petitioner. Petitioner claims he was discharged from parole on February 27, 2012, yet his home was searched without a warrant on February 1, 2013. Petitioner presented this information to counsel, but counsel said there was no violation of his rights. On September 11, 2014, the day of sentencing, petitioner “asked [his] attorney to file an appeal based on the prison prior being not mine. He said he would.” On December 20, 2014, over three months later, “[petitioner] made the assumption it hadn’t been filed” and inquired of different law schools and the Central California Appellate Program for help on how to file a notice of appeal. Petitioner does not claim he made any effort to contact his attorney regarding the status of his appeal during those three months. On February 17, 2015, petitioner filed a petition for writ of habeas corpus and request to file a notice of appeal under the constructive filing doctrine in this court. On March 4, 2015, this court sent a letter to petitioner’s trial counsel, Stanislaus County Public Defender Greg Spiering, giving him 30 days to respond to petitioner’s ineffective assistance of counsel claims. Mr. Spiering has not responded.1 On March 5, 2015, this court issued an order considering granting the petition for writ of habeas corpus and allowed the Attorney General leave to respond.