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Herrera v. Sexton

United States District Court, N.D. California, San Francisco Division

November 9, 2017

ANDY HERRERA, Petitioner,
v.
SEXTON, Respondent.

          ORDER TO SHOW CAUSE RE: ECF NOS. 1, 8

          LAUREL BEELER, UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Andy Herrera, a prisoner housed at the California State Prison in Corcoran, filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He consented to proceed before a magistrate judge. (ECF No. 7.)[1] His petition is now before the court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. This order requires the respondent to respond to the petition.

         STATEMENT

         Mr. Herrera provides the following information in his petition and attachments thereto: Mr. Herrera was charged with assault with a firearm and being a felon in possession of a firearm, with a sentence enhancement allegation that he had personally used a firearm in the commission of the assault. See Cal. Penal Code §§ 245(a)(2), 12022.5(a), 29800(a)(1). On April 15, 2015, he pled guilty and was sentenced that day to a total of fourteen years, eight months in prison. His sentence was comprised of four years for the assault, eight months for being a felon in possession of a firearm, and ten years for the firearm enhancement.

         Mr. Herrera states that he appealed. The California Court of Appeal “denied” his appeal on August 9, 2017. ECF No. 1 at 5. He does not allege that he has filed a petition for review or a petition for writ of habeas corpus in the California Supreme Court.

         ANALYSIS

         This court may entertain a petition for writ of habeas corpus “in behalf of a person in custody pursuant to the 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.” 28 U.S.C. § 2254(a). A district court considering an application for a writ of habeas corpus shall “award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243.

         The federal petition for writ of habeas corpus presents two claims. First, petition alleges that the trial court acted in excess of its jurisdiction in imposing a ten-year enhancement for the personal use of a firearm because “personally using a firearm is an element of Penal Code section 245(a)(2).” (ECF No. 1 at 9.) This unauthorized sentence allegedly violated Mr. Herrera's Fourteenth Amendment rights to due process and equal protection. (Id. at 8.) Second, the petition alleges that Mr. Herrera's Sixth Amendment right to effective assistance of counsel was violated when defense counsel failed to object to the imposition of the sentence enhancement. Liberally construed, the claims are cognizable in a federal habeas action.

         Mr. Herrera also urges that the sentence enhancement and counsel's performance violated his rights under state law. The state law claims are dismissed because “it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts.” Wilson v. Corcoran, 562 U.S. 1, 5 (2010). The Supreme Court has repeatedly held that federal habeas writ is unavailable for violations of state law or for alleged error in the interpretation or application of state law. See Swarthout v. Cooke, 562 U.S. 216, 220 (2011).

         CONCLUSION

         For the foregoing reasons, 1. The petition warrants a response.

         2. The clerk shall serve by mail a copy of this order and the petition upon the respondent and the respondent's attorney, the Attorney General of the State of California. The clerk also shall serve a copy of this order on the petitioner.

         3. The clerk also shall serve a copy of the “consent or declination to magistrate judge jurisdiction” form upon the respondent and the respondent's ...


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