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SMITH v. TAYLOR

United States District Court, N.D. California


December 6, 2005.

DAVID ALAN SMITH, Petitioner,
v.
Lieutenant DEREK TAYLOR, Camp Commander, Respondent.

The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge

ORDER OF DISMISSAL

Petitioner, a California prisoner currently incarcerated at the La Cima Conservation Camp in Julian, California, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has paid the filing fee.

Venue is proper in this district because the conviction was obtained in Sonoma County, which is in this district. 28 U.S.C. § 2241(d).

  BACKGROUND

  Petitioner pled guilty to four counts of second degree robbery. He was sentenced to eight years in prison.

  DISCUSSION

  A. Standard of Review

  A district 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 habeas petition may be dismissed summarily "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. . . ." Rule 4, Rules Governing Section 2254 Cases; Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. Id. (quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)).

  B. Legal Claims

  Petitioner contends that his sentence was based on a number of facts in aggravation which were decided by the sentencing court, rather than a jury. He contends that this violated Apprendi v. New Jersey, 530 U.S. 466, 488-90 (2000), and Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004). However, both those cases announced a new constitutional rule of criminal procedure that does not apply retroactively on habeas review. United States v. Sanchez-Cervantes, 282 F.3d 664, 665 (9th Cir. 2002) (Apprendi); Schardt v. Payne, 414 F.3d 1025, 1038 (9th Cir. 2005) (Blakely). This means that petitioner's sole argument cannot be grounds for federal habeas relief. Because of this, he case will be dismissed.

  CONCLUSION

  For the foregoing reasons, the petition is DISMISSED. See Rule 4, Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254.

  The clerk shall close the file.

  IT IS SO ORDERED.

20051206

© 1992-2005 VersusLaw Inc.



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