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Esparza v. Sherman

United States District Court, E.D. California

July 13, 2017

CASIMIRO ESPARZA, Petitioner,
v.
STU SHERMAN, Warden, Respondent.

          ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR LACK OF HABEAS JURISDICTION [TWENTY-ONE DAY OBJECTION DEADLINE]

          JENNIFER L. THURSTONB UNITED STATES MAGISTRATE JUDGE

         Petitioner filed the instant federal habeas petition challenging his state conviction. Upon conducting a preliminary screening of the petition, it appears that the petition fails to present any cognizable grounds for relief. Therefore, the Court will recommend that the petition be SUMMARILY DISMISSED.

         I. PROCEDURAL HISTORY

         On April 16, 2013, Petitioner was convicted in the Fresno County Superior Court of carjacking and second degree robbery with true findings that he personally used a firearm as to each count. (Doc. No. 1.) He was sentenced to a total term of 33 years in prison. Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). On December 1, 2015, the Fifth DCA affirmed the judgment in a reasoned opinion. People v. Esparza, 2015 WL 7736853, at *1 (Cal.Ct.App. Dec. 1, 2015). He then filed a petition for review in the California Supreme Court, and the California Supreme Court denied review on February 17, 2016. Id.

         Petitioner filed his federal petition in this Court on June 26, 2017. (Doc. No. 1). As for his grounds for relief, he refers the Court to the petition for review he filed in the California Supreme Court. The claims presented in the petition for review are as follows: 1) Petitioner's jail phone call was improperly admitted as an adoptive admission by silence, or as an admission of a party opponent; 2) The current charges did not involve domestic violence so as to allow the admission of evidence of prior domestic violence under Cal. Evidence Code § 1109; and 3) The appellate court erred under California law in finding Petitioner had procedurally defaulted his instructional error claim by failing to object at trial.

         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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