UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
January 31, 2011
GEORGE ROBERT CASTANEDA,
WARDEN KATHLEEN ALLISON, RESPONDENT.
The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISMISSING PETITIONER'S STATE LAW CLAIM CONCERNING AN UNAUTHORIZED SENTENCE (Doc. 1) ORDER REQUIRING RESPONDENT TO FILE A RESPONSE TO PETITIONER'S CLAIM CONCERNING THE INSUFFICIENCY OF THE EVIDENCE TO SUPPORT HIS CONVICTION ORDER SETTING A BRIEFING SCHEDULE ORDER DIRECTING THE CLERK TO SERVE DOCUMENTS ON THE ATTORNEY GENERAL
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on November 22, 2010 (doc. 5). Pending before the Court is the petition, which was filed on November 3, 2010.
I. Screening the Petition
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, advisory committee notes, 1976 adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory committee notes to Habeas Rule 8, 1976 adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).
II. The Petition
Petitioner, an inmate of the California Substance Abuse Treatment Facility at Corcoran, California (CSATF), is serving a sentence of eighteen years to life for attempted murder that was imposed in the Tulare County Superior Court on October 25, 2008. (Pet. 1, 9.) Petitioner did not complete the portion of the habeas corpus petition form that requested a statement of grounds and facts, but he attached as the middle portion of his petition a copy of what appears to have been an appellate brief. (Pet. 4-42.) The Court thus understands that Petitioner intends to raise as claims in this proceeding the same claims that he raised in the brief, namely 1) Petitioner's conviction of attempted murder violated his right to due process of law guaranteed by the Fourteenth Amendment because the evidence was insufficient to establish the requisite intent to kill (Pet. 23-37), and 2) the trial court lacked statutory authority to impose a fifteen-year determinate sentencing enhancement pursuant to Pen. Code § 186.22(b)(4) for commission of the offense in furtherance of a criminal street gang's criminal conduct (Pet. 38-41).
III. Sentencing Claim Involving Only State Law
A. Legal Standards
Federal habeas relief is available to state prisoners only to correct violations of the United States Constitution, federal laws, or treaties of the United States. 28 U.S.C. § 2254(a). Federal habeas relief is not available to retry a state issue that does not rise to the level of a federal constitutional violation. Wilson v. Corcoran, 562 U.S. - , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Alleged errors in the application of state law are not cognizable in federal habeas corpus. Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002) (a claim challenging state court's discretionary decision concerning application of state sentencing law presented only state law issues and was not cognizable in a proceeding pursuant to 28 U.S.C. § 2254); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). The Court accepts a state court's interpretation of state law. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). In a habeas corpus proceeding, this Court is bound by the California Supreme Court's interpretation of California law unless it is determined that the interpretation is untenable or a veiled attempt to avoid review of federal questions. Murtishaw v. Woodford, 255 F.3d 926, 964 (9 th Cir. 2001).
B. Analysis of Petitioner's Claims
Insofar as Petitioner challenges the statutory authority of the sentencing court to impose a gang enhancement, Petitioner is raising issues that involve the interpretation and application of California's statutory law concerning sentencing. The issue of whether a sentence enhancement was properly applied to the facts of a petitioner's case is not a cognizable federal habeas corpus claim. See, Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989).
Therefore, Petitioner's claim concerning the sentence enhancement must be dismissed without leave to amend.
IV. Response to Petitioner's Due Process Claim Petitioner's due process claim concerning the insufficiency of the evidence to support his conviction constitutes a cognizable claim of a violation of due process of law.
Further, the Court takes judicial notice of the docket of the California Supreme Court in People v. Castaneda, case number S177547, which reflects Petitioner's petition for review of the appellate decision of the intermediate state appellate court, and the Supreme Court's subsequent denial of the petition on December 17, 2009. *fn1 The materials before the Court warrant an inference that Petitioner presented his insufficiency of the evidence claim to the California Supreme Court.
With respect to Petitioner's claim concerning the insufficiency of the evidence, the Court has conducted a preliminary review of the petition. It is not clear from the face of the petition whether Petitioner is entitled to relief.
28 U.S.C. § 2243.
Accordingly, it is ORDERED that:
1) Petitioner's petition is DISMISSED without leave to amend insofar as Petitioner challenges the state sentencing court's imposition of a gang enhancement because this claim is premised solely on state law and thus is not a claim cognizable pursuant to 28 U.S.C. § 2254; and
2) Insofar as Petitioner claims that the evidence was insufficient to support his conviction, pursuant to Rule 4 of the Rules Governing Section 2254 Cases and Rule 16 of the Federal Rules of Civil Procedure, *fn2 the Court hereby ORDERS:
1. Respondent SHALL FILE a RESPONSE to the petition *fn3 within SIXTY (60) days of the date of service of this order. See Rule 4, Rules Governing Section 2254 Cases; Cluchette v. Rushen, 770 F.2d 1469, 1473-1474 (9 th Cir. 1985) (court has discretion to fix time for filing a response). A response can be made by filing one of the following:
A. An ANSWER addressing the merits of the petition. Respondent SHALL INCLUDE with the ANSWER any and all transcripts or other documents necessary for the resolution of the issues presented in the petition. See Rule 5, Rules Governing Section 2254 Cases. Any argument by Respondent that a claim of Petitioner has been procedurally defaulted SHALL BE MADE in the ANSWER, but must also address the merits of the claim asserted.
B. A MOTION TO DISMISS the petition. A motion to dismiss SHALL INCLUDE copies of all Petitioner's state court filings and dispositive rulings. See Rule 5, Rules Governing Section 2254 Cases. *fn4
2. If Respondent files an answer to the petition, Petitioner MAY FILE a traverse within THIRTY (30) days of the date Respondent's answer is filed with the Court. If no traverse is filed, the petition and answer are deemed submitted at the expiration of the thirty (30) days.
3. If Respondent files a motion to dismiss, Petitioner SHALL FILE
an opposition or statement of non-opposition within
TWENTY-ONE (21) days of the date Respondent's motion is
filed with the Court. If no opposition is filed, the motion to dismiss
is deemed submitted at the expiration of the thirty (30) days. Any
reply to an opposition to the motion to dismiss SHALL BE FILED within
SEVEN (7) days after the opposition is served.
4. Unless already submitted, both Respondent and Petitioner SHALL
COMPLETE and RETURN to the Court within THIRTY (30) days
a consent/decline form indicating whether the party consents
or declines to consent to the jurisdiction of the United States
Magistrate Judge pursuant to Title 28 U.S.C. § 636(c)(1).
5. The Clerk of the Court is DIRECTED to SERVE a copy of this order on the Attorney General or his representative.
All motions shall be submitted on the record and briefs filed without oral argument unless otherwise ordered by the Court. Local Rule 230(l). Requests for extensions of time will only be granted upon a showing of good cause. All provisions of Local Rule 110 are applicable to this order.
IT IS SO ORDERED.