United States District Court, N.D. California
May 5, 2004.
MUWAKKIL D.S. AL-HIZBULLAHI, aka TIM R. TYSON, Petitioner, V. BOARD OF PRISON TERMS, Respondent
The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER OF DISMISSAL
Muwakkil D.S. Al-Hizbullahi, aka Tim R. Tyson ("petitioner") is a
California prisoner who filed this pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. He has applied for leave to
proceed in forma pauperis.
In 1986, following his first degree murder conviction in state court,
petitioner was sentenced to 27 years to life in state prison. According
to petitioner, after he was sentenced, he was given "low term", "middle
term" and "high term" potential release dates for parole. Petitioner
claims that the Board of Prison Terms did not consider him eligible for
parole after the low and middle terms, but is instead waiting until he
has served 80% of his sentence on the murder charge, the high term.
Petitioner filed unsuccessful habeas petitions in which he raised this
claim in the state superior court, the California Court of Appeal and the
Supreme Court of California. DISCUSSION
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in
behalf of a person in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of the Constitution
or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v.
Hodges, 423 U.S. 19, 21 (1975). A district court shall "award the writ or
issue an order directing the respondent to show cause why the writ should
not be granted, unless it appears from the application that the applicant
or person detained is not entitled thereto." 28 U.S.C. § 2243. Summary
dismissal is appropriate only where the allegations in the petition are
vague or conclusory, palpably incredible, or patently frivolous or
false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990)
(quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)).
B. Legal Claims
Petitioner claims that under state law, the Board of Prison Terms
should have selected a low or middle term parole eligibility date. This
claim is not cognizable in federal district court because petitioner does
not allege the violation of any federal law, as is required for habeas
relief. Rose v. Hodges, 423 U.S. 19, 21 (1975). A federal court may
vacate a state sentencing decision only on the basis of some
transgression of federal law, not state law. See Walker v. Endell,
850 F.2d 470, 476 (9th Cir. 1987). Although the federal right to due
process may be violated when a sentence exceeds that permitted under state
law, see id., petitioner does not claim that the high term the Board of
Prison Terms selected was not authorized under the relevant California
state law. Accordingly, petitioner does not set forth a cognizable claim
for federal habeas relief.
In light of the foregoing, the petition for a writ of habeas corpus is
DISMISSED for failure to state a cognizable claim for relief. The
application to proceed in forma pauperis is GRANTED. This order terminates docket number 2.
IT IS SO ORDERED. JUDGMENT IN A CIVIL CASE
 Jury Verdict. This action came before the Court for a trial by
jury. The issues have been tried and the jury has rendered its verdict.
[X] Decision by Court. This action came to trial or hearing before the
Court. The issues have been tried or heard and a decision has been
IT IS ORDERED AND ADJUDGED the petition for a writ of habeas corpus is
DISMISSED for failure to state a cognizable claim for relief.
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