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Johnson v. Borders

United States District Court, E.D. California

March 30, 2017

LARRY JOHNSON, Petitioner,
v.
DEAN BORDERS, Warden, Respondent.

          ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE CASE ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         Petitioner has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming he should be resentenced pursuant to Cal. Penal Code §§ 1170.126 and 1170.18. Because his claims are based solely on state law, the Court is without habeas jurisdiction. Therefore, the petition will be DISMISSED.

         I. PROCEDURAL HISTORY

         On April 12, 1996, Petitioner was convicted in the Fresno County Superior Court of first degree burglary and possession of stolen property. (Doc. No. 1 at 1.) He was sentenced under California's Three Strikes law to a term of 25-years-to-life.

         In 2014, Petitioner petitioned for recall of his sentence in the Fresno County Superior Court under Cal. Penal Code §§ 1170.126(b) and 1170.18. (Doc. No. 1 at 3.) The Fresno County Superior Court denied the petition on December 11, 2014, finding Petitioner ineligible for resentencing, as a matter of state law, since Petitioner could not prove his crime of receiving stolen property qualified for reduction to a misdemeanor. (Doc. No. 1 at 19-20.) Petitioner appealed to the California Court of Appeal, Fifth District Court, which affirmed the judgment on October 31, 2016. (Doc. No. 1 at 17.) Petitioner then filed a petition for review in the California Supreme Court. The petition was summarily denied on January 11, 2017. (Doc. No. 1 at 24.)

         Petitioner filed his initial federal petition in this Court on March 10, 2017. (Doc. No. 1). He consented to the jurisdiction of the Magistrate Judge on March 27, 2017.

         II. DISCUSSION

         A. Preliminary Review of Petition Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed.

         B. Failure to State a Cognizable Federal Claim The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2254(a) states:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to a 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.

(emphasis added). See also Rule 1 to the Rules Governing Section 2254 Cases in the United States District Court. The Supreme Court has held that “the essence of habeas corpus is an attack by a person in custody upon the legality of that custody . . .” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).

         Furthermore, in order to succeed in a petition pursuant to 28 U.S.C. § 2254, Petitioner must demonstrate that the adjudication of his claim in state court

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts ...

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