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Moore v. Arnold

United States District Court, N.D. California

July 26, 2016

KENNETH L. MOORE, Petitioner,
v.
E. ARNOLD, Warden, Respondent.

          ORDER OF DISMISSAL

          EDWARD J. DAVILA United States District Judge

         Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction. Petitioner has paid the filing fee.

         BACKGROUND

         According to the petition, Petitioner was found guilty of first degree murder with special circumstances by a jury in Alameda County Superior Court. (Pet. at 2.) Petitioner was sentenced in May 1980 to life without parole. (Id.)

         Petitioner appealed his conviction to the state appellate court and then to the state high court without success. (Pet. at 3.) More recently, Petitioner filed a habeas petition in the California Supreme Court challenging the state superior court’s denial of his motion for new DNA testing. (Pet. at 4-5.) The petition was denied on February 17, 2016. (Id. at 5.)

         Petitioner filed the instant federal habeas petition on April 1, 2016.

         DISCUSSION

         A. 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.

         B. Legal Claims

         Petitioner raise the following grounds for federal habeas relief: (1) recent changes in state law entitles him to new post-conviction DNA testing, and the state superior court erred in denying his motion for new DNA testing; (2) the superior court’s denial was contrary to state and federal law as the DNA test results would constitute “newly discovered evidence” and establish his innocence; and (3) the superior court’s order construing Petitioner’s motion as a writ of habeas corpus violated due process. (Pet. at 6.)

         Petitioner’s first and third claims fail to state a cognizable claim for federal habeas relief. A person in custody pursuant to the judgment of a state court can obtain a federal writ of habeas corpus 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). In other words, “it is only noncompliance with federal law that renders a State’s criminal judgment susceptible to collateral attack in the federal courts.” Wilson v. Corcoran, 562 U.S. 1, 5 (2010). The Supreme Court has repeatedly held that federal habeas writ is unavailable for violations of state law or for alleged error in the interpretation or application of state law. See Swarthout v. Cooke, 131 S.Ct. 859, 861-62 (2011); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Engle v. Isaac, 456 U.S. 107, 119 (1982); Peltier v. Wright, 15 F.3d 860, 861-62 (9th Cir. 1994); see, e.g., Little v. Crawford, 449 F.3d 1075, 1082 (9th Cir. 2006) (claim that state supreme court misapplied state law or departed from its earlier decisions does not provide a ground for habeas relief); Moore v. Rowland, 367 F.3d 1199, 1200 (9th Cir. 2004) (per curiam) (state’s violation of its separation-of-powers principles does not give rise to a federal due process violation); Stanton v. Benzler, 146 F.3d 726, 728 (9th Cir. 1998) (state law determination that arsenic trioxide is a poison as a matter of law and not an element of the crime for jury determination is not open to challenge on federal habeas review); Franklin v. Henry, 122 F.3d 1270, 1272-73 (9th Cir. 1997) (court was bound by state court finding that a violation of state law had occurred, but still had to consider whether the violation amounted to a federal constitutional error). It is unavailable merely because “something in the state proceedings was contrary to general notions of fairness or violated some federal procedural right unless the Constitution or other federal law specifically protects against the alleged unfairness or guarantees the procedural right in state court.” Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). It also is unavailable for alleged error in the state post-conviction review process, Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989), cert. denied, 493 U.S. 1012 (1989), or violations of the state constitution, Hinman v. McCarthy, 676 F.2d 343, 349 & n.2 (9th Cir. 1982).

         Here, Petitioner’s first claim is based purely on a change in state law of which the interpretation or application is not cognizable in federal habeas. See Swarthout, 131 S.Ct. at 861-62; Estelle, 502 U.S. at 67-68. Neither is Petitioner’s third claim alleging a due process violation cognizable in federal habeas because it is, like the first claim, essentially challenging the state superior court’s interpretation and application of state law. Furthermore, Petitioner fails to point to a specific federal law that protects against the state superior court’s actions, i.e., in construing his motion as a habeas petition and not affording him an opportunity to state “a prima facie claim for relief” before denying his motion, (Pet. Attach. at 4b). See Middleton, 768 F.2d at 1085. Lastly, Petitioner may not “transform a ...


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