The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO DISMISS PETITIONER'S SECOND, THIRD, AND FOURTH CLAIMS WITHOUT LEAVE TO AMEND (DOC. 10)
FINDINGS AND RECOMMENDATIONS TO REFER THE PROCEEDING BACK TO THE
MAGISTRATE JUDGE TO DIRECT THE FILING OF A RESPONSE TO THE
REMAINING CLAIM 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 petition, which was filed on August 16, 2012.
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 at 491.
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). 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. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
Here, Petitioner alleges that he is an inmate of the Coalinga State Hospital serving a sentence or term of commitment pursuant to California's Sexually Violent Predators Act (SVPA) imposed on February 12, 2012, in the Superior Court of the State of California for the County of Tulare (TCSC). Petitioner alleges that he pled no contest to a single count of sexual battery in violation of Cal. Pen. Code § 243.3 in Tulare County Superior Court case number VCF233965. Petitioner challenges his commitment and the proceedings leading to his commitment that were undertaken pursuant to the SVPA as contrary to his plea agreement in the sexual battery case.
Petitioner raises the following claims in the petition: 1) the prosecution's filing of the SVPA petition was a breach of Petitioner's plea agreement in the sexual battery case; 2) the SVPA petition could not have been filed had Petitioner not been incarcerated in his case because the SVPA requires one to be incarcerated; 3)the SVPA proceeding was untimely under California's statutory scheme; and 4) contrary to its ruling, the trial court (TCSC), which dismissed Petitioner's habeas corpus petition challenging the SVPA proceeding, had the authority to dismiss the SVPA petition.
Petitioner alleges that he raised all his claims in the TCSC, the California Court of Appeal, and the Supreme Court of California, all of which denied his claims.
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 to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).
A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam). 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. at 16; Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Thus, 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). In a habeas 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 (9th Cir. 2001).
Here, in his second claim, Petitioner argues that the SVPA petition could not have been filed if Petitioner had not been incarcerated on the sexual battery conviction because the SVPA requires such incarceration. Petitioner's claim rests upon an assertion concerning the state law that sets forth the requirements for filing a petition pursuant to the SVPA. This Court is bound by the state courts' application and interpretation of state law. ...