United States District Court, N.D. California
KENNETH L. MOORE, Petitioner,
E. ARNOLD, Warden, Respondent.
ORDER OF DISMISSAL
J. DAVILA United States District Judge
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
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.)
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.)
filed the instant federal habeas petition on April 1, 2016.
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).
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.
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.)
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).
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 ...