United States District Court, N.D. California
ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS (Docket No. 2)
JEFFREY S. WHITE, District Judge.
Petitioner, a prisoner of the State of California proceeding pro se, has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 challenging the denial of his habeas petitions in all three levels of the California courts. The application to proceed in forma pauperis is GRANTED.
This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). It shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." Id. § 2243.
Petitioner's state court petitions sought transcripts of pretrial hearings from his criminal proceedings. Petitioner claims: (1) that the superior court violated his right to due process by denying his request for transcripts, which denial was based on petitioner's inadvertently indicating on the request form that he sought transcripts of the trial, not of the pretrial proceedings; (2) that the state courts should have given him leave to amend his petition; and (3) that the California Supreme Court erred in denying the petition on procedural grounds.
The latter two claims are not cognizable because they simply assert errors in the state courts' collateral review process. Errors in the state post-conviction review process are not addressable through federal habeas corpus proceedings. See Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998). The first claim is also not cognizable. Petitioner states that in his habeas petition to the superior court, he checked the wrong box on the form. Specifically, he checked the box for trial transcripts, instead of the box for transcripts of pretrial hearings. While an indigent prisoner, such as petitioner, has a constitutionally protected right to transcripts for use in an appeal or post-conviction challenge to his or her conviction, see Britt v. North Carolina, 404 U.S. 226, 227 (1971); Long v. Dist. Court of Iowa, 385 U.S. 192, 194-95 (1966) (per curium), petitioner can file another habeas petition in the superior court with the proper box checked. Until he does so, seeking federal habeas relief for the denial of transcripts is premature. If the superior court denies his request for pretrial transcripts with the form properly filled out, and that denial is subsequently upheld by the higher state courts, petitioner can then file a new federal habeas petition. The instant petition is, therefore, DISMISSED without prejudice.
Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to rule on whether a Petitioner is entitled to a certificate of appealability in the same order in which the petition is decided. Petitioner has failed to make a substantial showing that a reasonable jurist would find this Court's denial of his claim on procedural grounds debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is warranted in this case.
The Clerk shall enter judgment and ...