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Johnson v. David

United States District Court, E.D. California

March 30, 2017

ARIAN DAVID JOHNSON, Petitioner,
v.
RON DAVID, Warden, Respondent.

          ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

          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. Because his claims are based solely on state law, the Court is without habeas jurisdiction. Therefore, the Court will recommend the petition be DISMISSED.

         I. PROCEDURAL HISTORY

         Petitioner is currently serving a sentence of 25-years-to-life under California's Three Strikes law for his conviction of two counts of battery with serious bodily injury. (Doc. No. 1 at 1.) On February 19, 2013, Petitioner petitioned for recall of his sentence in the Fresno County Superior Court pursuant to Cal. Penal Code § 1170.126(b). (Doc. No. 1 at 42.) The Fresno County Superior Court summarily denied the petition on March 8, 2013, finding Petitioner ineligible for resentencing, as a matter of state law, because his current convictions constituted serious felonies. (Doc. No. 1 at 42-43.)

         Petitioner appealed to the California Court of Appeal, Fifth District Court, which affirmed the judgment in a reasoned decision January 28, 2016. People v. Johnson, 244 Cal.App.4th 384, 388 (2016), review denied (Apr. 20, 2016). Petitioner then filed a petition for review in the California Supreme Court. The petition was summarily denied on April 20, 2016. (Doc. No. 1 at 2.) Petitioner filed this federal petition in this Court on March 20, 2017. (Doc. No. 1.)

         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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