United States District Court, N.D. California
RAY A. JACKSON, Petitioner,
DAVID BAUGHMAN, Warden, Respondent.
ORDER OF DISMISSAL
TIGAR, UNITED STATES DISTRICT JUDGE.
an inmate at California State Prison-Sacramento, filed this
pro se action seeking a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. 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.
to the petition, in 2011 in Alameda County Superior Court,
petitioner pled guilty to manslaughter. ECF No. 6
(“Pet.”) at 2. Petitioner was sentenced to a term
of 31 years, which consisted of an 11-year sentence for
manslaughter, a 10-year sentence enhancement for personal use
of a firearm in the commission of the crime pursuant to
California Penal Code § 12022.5(a), and a 10-year
sentence enhancement for committing the crime for the benefit
of a criminal street gang pursuant to California Penal Code
§ 186.22(b)(1)(C). Id. Petitioner did not file
a direct appeal, but he filed habeas petitions in the state
superior, appellate, and supreme courts, all of which were
denied as untimely. Pet. at 3-4.
instant action was filed on December 18, 2017.
Standard of Review
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.
grounds for federal habeas relief, petitioner claims that it
was unlawful for the state sentencing court to impose
separate and concurrent sentences for the Section 12022.5(a)
enhancement and the Section 186.22(b)(1)(C) enhancement.
Petitioner's claim alleges that the state court
improperly or erroneously applied state laws. On federal
habeas corpus review, a court's review is limited to
deciding whether a conviction violated the Constitution,
laws, or treaties of the United States. 28 U.S.C. §
2254(a); Estelle v. McGuire, 502 U.S. 62, 68 (1991)
(no federal habeas relief for alleged errors in
interpretation or application of state law). Issues of state
law sentencing errors are not cognizable on federal habeas
unless the petitioner claims a constitutional violation due
to the misapplication of the sentencing law. See Fetterly
v. Paskett, 997 F.2d 1295, 1300 (9th Cir. 1993);
Featherstone v. Estelle, 948 F.2d 1497, 1500 (9th
Cir. 1991). Petitioner's claim only concerns state
sentencing law and does not implicate a federal
constitutional right. “Absent a showing of fundamental
unfairness, a state court's misapplication of its own
sentencing laws does not justify federal habeas
relief.” Christian v. Rhode, 41 F.3d 461, 469
(9th Cir. 1994).
does not assert a separate constitutional claim and has not
made a showing of any fundamental unfairness.
Petitioner's only argument is that the concurrent
sentence enhancements violates California Penal Code §
1170.1(f). Pet. at 5. Section 1170.1(f) states:
When two or more enhancements may be imposed for being armed
with or using a dangerous or deadly weapon or a firearm in
the commission of a single offense, only the greatest of
those enhancements shall be imposed for that offense. This
subdivision shall not limit the imposition of any other
enhancements applicable to that offense, including an
enhancement for the infliction of great bodily injury.
Cal. Penal Code § 1170.1(f). Here, only one of
petitioner's enhancements-his Section 12022.5(a)
enhancement-was for the use of a dangerous or deadly weapon
or firearm. California Penal Code § 186.22(b)(1)(C),
under which his separate gang enhancement was imposed, does
not include use of a weapon or firearm as a required element.
Therefore, petitioner's sentencing did not ...