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Smith v. Kernan

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


August 1, 2005

DARREL LEE SMITH, PETITIONER,
v.
SCOTT KERNAN, RESPONDENT.

The opinion of the court was delivered by: Susan Illston United States District Judge

ORDER OF DISMISSAL

Darrel Lee Smith, an inmate at the California State Prison - Sacramento, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court reviewed the petition and dismissed it with leave to amend because the court could not understand the petition. In its Order Of Dismissal With Leave To Amend, the court instructed Smith that he should explain what particular federal constitutional right was violated and explain what happened (or failed to happen) in the proceedings during which he pled nolo contendere or during the appeal that caused the violation of his federal constitutional rights. On July 15, 2005, Smith filed an amended petition. The amended petition is now before the court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases.

This court may entertain a petition for 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).

The amended petition filed by Smith does not contain any claim for a violation of Smith's rights under the Constitution or laws or treaties of the United States. The amended petition describes the ground for relief as one "to reduce the felony to a misdemeanor." Amended Petition, p. 4. The claim is at most a claim for a violation of state law, but federal habeas corpus relief is unavailable for violations of state law or for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

Smith apparently attempts to allege a federal claim by writing that his "became a federal question because the state court decision was base[d] on [an] unreasonable determination of the facts in light of the evidence presented in the state court proceedings." Amended Petition, p. 8. This appears to be a reference to the standards for relief found in 28 U.S.C. § 2254, but § 2254 does not itself provide any basis for a claim for relief. That is, § 2254 provides the standard of review to govern the court's consideration of claims of violations of a petitioner's federal rights, but does not provide a right that could be the source of habeas relief.

The amended petition does not state a claim and therefore must be dismissed. Further leave to amend will not be granted because it would be futile. The court identified the deficiencies in the petition and Smith was unable to cure them in his amended petition.

IT IS SO ORDERED.

20050801

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