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).
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
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 ...