United States District Court, N.D. California, San Francisco Division
ORDER TO SHOW CAUSE RE: ECF NOS. 1, 8
BEELER, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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.
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
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).
foregoing reasons, 1. The petition warrants a response.
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
clerk also shall serve a copy of the “consent or
declination to magistrate judge jurisdiction” form upon
the respondent and the respondent's ...