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AL-HIZBULLAHI v. BOARD OF PRISON TERMS

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.

BACKGROUND

  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.

  CONCLUSION

  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 rendered.

  IT IS ORDERED AND ADJUDGED the petition for a writ of habeas corpus is DISMISSED for failure to state a cognizable claim for relief.

20040505

© 1992-2004 VersusLaw Inc.



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