United States District Court, N.D. California
PARTIAL DISMISSAL ORDER; ORDER TO SHOW CAUSE
MARIA-ELENA JAMES, United States Magistrate Judge.
a prisoner currently incarcerated at Chuckawalla Valley State
Prison, has filed a pro se amended petition for a writ of
habeas corpus under 28 U.S.C. § 2254 challenging a
conviction from Monterey County Superior Court. For the
reasons state below, the court dismisses one claim and orders
respondent to show cause why a writ of habeas corpus should
not be granted as to the others.
to the petition, in early 2011, Petitioner was convicted of
one count of forcible rape and one count of forcible oral
copulation. He was sentenced to sixteen years in state
prison. On December 17, 2013, the California Court of Appeal
affirmed his conviction. His petition for review was denied
by the California Supreme Court. The United States Supreme
Court denied certiorari. The instant action was filed on
October 26, 2016.
Standard of Review
court may entertain a petition for 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);
Rose v. Hodges, 423 U.S. 19, 21 (1975).
district court 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.” 28 U.S.C. § 2243.
grounds for federal habeas relief, Petitioner claims that:
(1) both the trial court and state appellate court misapplied
state law on Petitioner's mistake of fact defense
regarding consent; (2) trial counsel rendered ineffective
assistance by failing to object to the above error; and (3)
there was insufficient evidence of force or fear to support
Petitioner's conviction for forcible oral copulation.
first claim is not cognizable because it does not allege a
violation of federal law. A writ of habeas corpus is
available under 28 U.S.C. § 2254(a) “only on the
basis of some transgression of federal law binding on the
state courts.” Middleton v. Cupp, 768 F.2d
1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac,
456 U.S. 107, 119 (1982)). It is unavailable for violations
of state law or for alleged error in the interpretation or
application of state law. Estelle v. McGuire, 502
U.S. 62, 67-68 (1991); Engle, 456 U.S. at 119.
Accordingly, Claim 1 is DISMISSED without leave to amend.
Liberally construed, Petitioner's remaining claims are
sufficient to require a response. The Court orders Respondent
to show cause why the amended petition should not be granted
as to Claims 2 and 3.
Clerk shall serve by mail a copy of this order and the
amended petition and all attachments thereto (Docket No. 8),
as well as a magistrate judge jurisdiction consent form, upon
the Respondent and the Respondent's attorney, the
Attorney General of the State of California. The Clerk shall
also serve a copy of this order on Petitioner.
Respondent shall file with the Court and serve on Petitioner,
within sixty (60) days of the issuance of
this order, an answer conforming in all respects to Rule 5 of
the Rules Governing Section 2254 Cases, showing cause why a
writ of habeas corpus should not be granted based on the
claims found cognizable herein. Respondent shall file with
the answer and serve on Petitioner a copy of all portions of
the state trial record ...