United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT
JUDGE FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR
LACK OF HABEAS JURISDICTION [TWENTY-ONE DAY OBJECTION
JENNIFER L. THURSTONB UNITED STATES MAGISTRATE JUDGE
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.
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.
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
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 ...