United States District Court, N.D. California
WILLIE L. BOLDS, Plaintiff,
D. ASUNCION, Defendant.
ORDER OF DISMISSAL
JACQUELINE SCOTT CORLEY JUDGE
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. He has paid the filing fee.
Because the petition does not state a cognizable claim for
relief, it is DISMISSED.
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.)
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.) 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because it was based on a repealed section of the California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.)
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.)
Standard of Review
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.
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.
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 ...