The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS WITHOUT LEAVE TO AMEND PETITIONER'S CLAIMS IN THE FIRST AMENDED PETITION BASED ON STATE LAW AND CONCERNING THE STATE POST-CONVICTION PROCESS (DOC. 9)
FINDINGS AND RECOMMENDATIONS TO REFER THE REMAINING CLAIMS BACK TO THE MAGISTRATE JUDGE OBJECTIONS DEADLINE: THIRTY (30) DAYS
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. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the first amended petition (FAP), which was filed on April 25, 2011.
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. Allegations of the First Amended Petition Here, Petitioner alleges that he is an inmate of the California State Prison at Avenal, California, serving a sentence of ten (10) years to life imposed in 1993 by the Los Angeles Superior Court in case number VAO24361. (FAP 7.) Petitioner challenges his sentence as well as the Superior Court's handling of a petition for writ of habeas corpus filed by Petitioner in that court in 2009. (Id.) Petitioner raises the following claims: 1) his conviction and sentence violated his Fifth Amendment protection against double jeopardy as well as the constitution of California; and 2) his rights under federal law and unspecified portions of the Constitution were violated by the California Superior Court's failure to respond in a timely manner to Petitioner's habeas petition in 2009. (Id.)
III. Failure to State a Cognizable Double Jeopardy Claim
Based on the California Constitution Petitioner argues that his sentence to life plus ten years for kidnaping for the purpose of robbery, and the enhancement of his sentence for a prior conviction, prior prison term, arming, and for use of a handgun violated both federal and state constitutional provisions concerning double jeopardy. (FAP 7, 11.) Petitioner contends that the enhancement of his sentence constituted punishment for the same offense because the enhancements constituted lesser offenses that were necessarily included in the offense of kidnaping for robbery.
Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
To the extent that Petitioner relies on the constitution of the state of California, Petitioner has failed to state a claim cognizable in a proceeding pursuant to 28 U.S.C. § 2254.
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. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002).
A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. ...