United States District Court, E.D. California
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
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.
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
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.)
Preliminary Review of Petition
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.
Failure to State a Cognizable Federal Claim
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).
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 ...