ORDER TO SHOW CAUSE AND DENYING MOTION FOR APPOINTMENT OF COUNSEL (Docket no. 9)
The opinion of the court was delivered by: Claudia Wilken United States District Judge
Petitioner Larry James Henson, a State prisoner incarcerated at the California State Prison at Corcoran, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and an application for in forma pauperis status. Venue is proper because Petitioner was convicted in Monterey County Superior Court, which is located in this judicial district. See 28 U.S.C. § 2241(d).
In an Order dated November 9, 2004, the Court granted Petitioner leave to proceed in forma pauperis. However, after conducting a preliminary review of the petition the Court's was not able to discern clearly the nature of Petitioner's claim for relief. Accordingly, the Court dismissed the petition with leave to amend. Thereafter, Petitioner filed an amendment to the petition which clarifies his habeas claim (docket no. 8). The Court now summarizes the background and legal claims based on the information contained in the original petition and the amendment thereto.
On May 20, 2003, Petitioner pled guilty in Monterey County Superior Court to one count of possession of a controlled substance and one count of driving under the influence of alcohol. He received a sixteen month determinate term for possession of a controlled substance. The term was then doubled to thirty-two months under California's Three Strikes Law because Petitioner had suffered a prior second degree robbery conviction in 1970.
Petitioner filed an appeal and a petition for a writ of habeas corpus with the California Court of Appeal claiming that the trial court abused its discretion and denied Petitioner his right to due process when it failed to dismiss his prior felony conviction. The court affirmed the conviction and denied the habeas petition on January 13, 2004.
Petitioner filed a petition for review raising the same claim to the California Supreme Court. The court denied the petition for review on March 24, 2004.
Petitioner filed the present petition on April 21, 2004, in the United States District Court for the Eastern District of California. Because the petition challenges a conviction suffered in Monterey County, the district court transferred the action to this Court, where it was filed on May 10, 2004.
Petitioner alleges that after his guilty plea was taken, and in a subsequent proceeding to dismiss his prior robbery conviction, his federal constitutional rights to equal protection and due process were violated when the trial court abused its discretion under California Penal Code section 1385 by failing to strike the prior conviction. He claims that the trial court considered only his prior criminal history and failed to consider any mitigating factors in Petitioner's favor. Petitioner maintains that section 1385 creates a protected liberty interest in having the court follow certain procedures.
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. Federal courts have a duty to construe pro se petitions for writs of habeas corpus liberally. Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001).
State sentencing courts must be accorded wide latitude in their decisions as to punishment. See Walker v. Endell, 850 F.2d 470, 476 (9th Cir. 1987), cert. denied, 488 U.S. 926, and cert. denied, 488 U.S. 981 (1988). Generally, therefore, a federal court may not review a State sentence that is within statutory limits. See id. However, State law may guarantee a defendant certain procedural rights at sentencing which may not be arbitrarily denied without due process. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980) (defendant may not be arbitrarily denied State-created liberty interest in sentencing procedure); Fetterly v. Paskett, 997 F.2d 1295, 1300 (9th Cir. 1993) (when State provides specific method for determining whether certain sentence shall be imposed, "'it is not correct to say that the defendant's interest' in merely having that method adhered to 'is merely a matter of state procedural law'") (citation omitted), cert. denied, 513 U.S. 914 (1994). For example, the Ninth Circuit has determined that Nevada's requirement that a State judge find that it is "just and proper" for a particular defendant to be adjudged a habitual criminal and Washington's requirement that the Washington Supreme ...