United States District Court, N.D. California
December 6, 2005.
DAVID ALAN SMITH, Petitioner,
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).
Petitioner pled guilty to four counts of second degree robbery.
He was sentenced to eight years in prison.
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
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
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.
For the foregoing reasons, the petition is DISMISSED. See
Rule 4, Rules Governing Section 2254 Cases, 28 U.S.C. foll. §
The clerk shall close the file.
IT IS SO ORDERED.
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