The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
) ORDER DISMISSING STATE LAW CLAIMS ) WITHOUT LEAVE TO AMEND (Doc. 1) ) ORDER TO PETITIONER TO SHOW CAUSE ) IN THIRTY (30) DAYS WHY THE ) PETITION SHOULD NOT BE DISMISSED ) FOR PETITIONER'S FAILURE TO ) EXHAUST STATE COURT REMEDIES ) (Doc. 1)
Petitioner is a state prisoner proceeding pro se 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 February 8, 2013 (doc. 5). Pending before the Court is the petition, which was filed on January 25, 2013, and transferred to this Court on January 29, 2013.
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; 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).
Petitioner alleges he is an inmate of the High Desert State Prison (HDSP) serving a sentence of thirty (30) years to life imposed on or about March 9, 2010, in the Merced County Superior Court upon Petitioner's conviction of attempted murder, shooting at an occupied vehicle, and participating in a criminal street gang. Petitioner raises the following claims concerning his convictions: 1) instructing the jury pursuant to CALCRIM 4.00 concerning natural and probable consequences without explaining the special circumstances that result in vicarious accomplice liability for additional crimes violated Petitioner's rights to a jury trial and due process of law protected by the Sixth and Fourteenth Amendments; 2) instructing the jury that a perpetrator and an aider and abettor were equally guilty removed the intent element from the jury's consideration and violated Petitioner's federal right to a jury trial; 3) admission of the victim's lay testimony concerning Petitioner's movement being a signal to attack was erroneous and an abuse of direction; 4) the evidence was insufficient to support the conviction of attempted murder, which in turn violated Petitioner's right to due process under the Fifth and Fourteenth Amendments; 5) the evidence was insufficient to support the conviction of shooting an occupied vehicle; 6) admission of improper gang expert testimony violated Petitioner's right to a jury trial, fair trial, and due process in violation of the Fifth, Sixth, and Fourteenth Amendments; and 7) Petitioner's sentence on the third count concerning participation in a criminal street gang should be stayed pursuant to Cal. Pen. Code § 654.
II. Dismissal of State Law Claims
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); 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 at 1389. 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 (9th Cir. 2001).
Here, Petitioner alleges in the third claim that admission of lay opinion testimony was erroneous and an abuse of discretion. (Pet., doc. 1, 20-22.) Petitioner cites only state cases and characterizes the gravamen of the claim as a misapplication of the rules applicable to lay opinion testimony.
It is well-settled that allegedly incorrect evidentiary rulings are not a basis for federal habeas relief. Tinsley v. Borg, 895 F.2d 520, 530 (9th Cir. 1990) (incorrect state court evidentiary rulings, in and of themselves, cannot serve as a basis for habeas relief unless federal constitutional rights are affected), cert. denied, 498 U.S. 1091, 111 S.Ct. 974 (1991). Consequently, in § 2254 proceedings, a state prisoner may not challenge an evidentiary ruling based on a violation of the state's evidence code because the state court's failure to comply with a state evidentiary rule is generally irrelevant and is not a sufficient basis for granting federal habeas relief. Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991).
Because the defect in Petitioner's evidentiary claim results from the nature of the claim and not from a dearth of factual allegations, granting leave to amend would be futile. Therefore, it will be ordered that the claim concerning an error in the application of state evidentiary law be dismissed without leave to amend.
Petitioner's seventh claim that his sentence on the street gang participation count should be stayed pursuant to Cal. Pen. Code § 654 is also a claim based solely on state law. A claim alleging misapplication of state sentencing law involves a question of state law which is not cognizable in a proceeding pursuant to 28 U.S.C. § 2254. See, Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (rejecting a claim that a state court misapplied state statutes concerning aggravating circumstances on the ground that federal habeas corpus relief does not lie for errors of state law); Souch v. Schaivo, 289 F.3d at 623 (dismissing as not cognizable claims alleging only that the trial court abused its discretion in selecting consecutive sentences and erred in failing to state reasons for choosing consecutive terms); Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (dismissing as not cognizable a claim concerning whether a prior conviction qualified as a sentence enhancement under state law).
Here, the defect in the claim stems from its essential nature as a claim based solely on state law; thus, granting Petitioner leave to amend the claim would be futile. Therefore, it will be ordered that the claim be dismissed without leave to amend.
III. Exhaustion of State Court Remedies A petitioner who is in state custody and wishes to challenge collaterally a conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. ...