Bolds v. Asuncion

          ORDER OF DISMISSAL

          JACQUELINE SCOTT CORLEY JUDGE

         INTRODUCTION

         Petitioner, a prisoner of the State of California proceeding pro se, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his sentence.^[1] He has paid the filing fee. Because the petition does not state a cognizable claim for relief, it is DISMISSED.

         BACKGROUND

         In 1988, Petitioner was convicted of attempted first-degree murder and other related offenses in San Francisco County Superior Court. He received a sentence of life in prison without the possibility of parole. The California Court of Appeal affirmed the judgment in 1990. Petitioner indicates that he did not file an appeal with the California Supreme Court. (Petition at 3.)

         Petitioner filed a number of post-conviction petitions. (See, e.g., id. at 3-4.) As relevant to the claims raised in the instant petition, on April 18, 2014, he filed a petition for a writ of mandate to the California Court of Appeal, which was construed as a petition for a writ of habeas corpus and summarily denied on April 23, 2014. (See ECF No. 2 Exh. B at Exh. B.)^[2] The California Court of Appeal explained that it was construed as a petition for a writ of habeas corpus because a petition for a writ of habeas corpus is the only means for a prisoner to challenge the lawfulness of his restraint, and that it lacked merit because it was based on a repealed section of the California Penal Code. (See id.) Petitioner thereafter filed several petitions in the California Court of Appeal challenging the April 23, 2014, Order, all of which were denied, including two petitions for a writ of error coram vobis denied on July 24, 2014, and August 20, 2014, respectively. (See Id. at Exhs. A & B.) Presiding Judge Humes was on the panel that denied both of these petitions. (See id.)

         On March 2, 2016, Petitioner filed a petition for a writ of mandate in the California Supreme Court. (See ECF No. 2 Exh. B.) He argued that under California Penal Code Section 170.1, Judge Humes should have been disqualified from denying the second petition for a writ of error coram vobis because he had also participated in denying the first one. The California Supreme Court summarily denied the petition for a writ of mandate on April 13, 2016. (See ECF No. 2 Exh. A.)

         DISCUSSION

         I. Standard of Review

         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.

         II. Legal Claims

         In his first claim, Petitioner argues that his right to due process was violated because Presiding Judge Humes participated in denying both petitions for a writ of error coram vobis. The Court is aware of no authority prohibiting Judge Humes from doing so, let alone that doing so violates Petitioner's constitutional right to due process. In any event, errors in the state post-conviction review process are not addressable through federal habeas corpus proceedings. Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997). Such errors generally do not represent an attack on the prisoner's detention and therefore are not proper grounds for habeas relief. Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989). They instead generally pertain to the review process itself and not to the constitutionality of a state conviction. See, e.g., 28 U.S.C. § 2254(i) (claims of ineffective assistance of counsel during state or federal collateral post-conviction proceedings not cognizable on federal habeas review); Franzen, 877 F.2d at 26 (delay in state habeas proceeding not addressable in federal habeas); Hopkinson v. Shillinger, 866 F.2d 1185, 1218-20 (10th Cir. 1989) (state court's summary denial of petition for post-conviction relief is procedural deficiency in review process that does no violence to federal constitutional rights); Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir. 1987) (denial of hearing on state collateral proceedings not addressable in federal habeas), cert. denied, 484 U.S. 838 (1987); see also Application of Gordon, 157 F.2d 659, 660 (9th Cir. 1946) (allegation that state court decided appeal improperly not enough to state claim in federal habeas). Because Petitioner's first claim asserts an error in the state's post-conviction review process, it does not present cognizable grounds for federal habeas relief.

         Petitioner's second claim also asserts an error in the state's post-conviction review process. He argues that under California Penal Code Section 170.1 the California Supreme Court was required to grant his petition for a writ of mandate because Judge Humes participated in denying both petitions for a writ of coram vobis. He claims that the failure to grant the petition violated his liberty interest protected by the federal constitutional guarantee of due process. Because ...