United States District Court, E.D. California
CHAYNE E. IRVIN, Petitioner,
JOE A. LIZARRAGA, Respondent.
FINDINGS AND RECOMMENDATIONS
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se on a
petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. For the reasons stated below, his
petition must be dismissed.
court must dismiss a habeas petition or portion thereof if
the prisoner raises claims that are legally “frivolous
or malicious” or fail to state a basis on which habeas
relief may be granted. 28 U.S.C. § 1915A(b)(1), (2).
Further, a habeas petition must be dismissed “[i]f it
plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief[.]” Rule
4 Governing Section 2254 Cases.
states that on February 2, 1996, pursuant to the terms of a
plea agreement, the Trinity County Superior Court sentenced
him to one year in county jail and three years of probation.
ECF No. 1 at 3. After completing his term in county jail, he
was released on probation. Id. at 4. While on
probation, petitioner was arrested in Humboldt County for his
“current offenses.” Id. at 5. On March
20, 1998, the Humboldt County Superior Court sentenced
petitioner to a state prison term of twenty-three years to
life. Id. That conviction triggered a parole
revocation hearing in Trinity County, which resulted in an
unspecified state prison sentence “added consecutively
to his current sentence.” Id. Petitioner
brings this petition on the alleged basis that the Trinity
County Superior Court, in revoking his probation, gave him an
illegal sentence and produced a factually incorrect abstract
of judgment. Id. at 3, 6-8. He asks the court to 1)
correct the probation report; 2) correct the reporter's
transcript; 3) modify the reporter's transcript; and 4)
issue a new amended abstract of judgment. Id. at 9.
this court appears to lack subject matter jurisdiction over
petitioner's claims. Petitioner is not yet in custody
pursuant to the revocation of parole sentence that he now
challenges. See Id. at 5 (alleging he is currently
serving a twenty-three years to life sentence imposed on
March 20, 1998 by the Humboldt County Superior Court, and
that the Trinity County revocation of parole sentence is to
run “consecutively”); see also Woodall v.
Beauchamp, 450 Fed.Appx. 655, 657 (9th Cir. 2011)
(habeas petitioner must be in custody as a result of the
challenged conviction, not on unrelated charges).
however, that petitioner's claims are ripe for review,
they fail insofar as they involve only an application of
state sentencing laws and, thus, do not give rise to a
federal question. See Waddington v. Sarausad, 555
U.S. 179, 192 n.5 (2009) (“[W]e have repeatedly held
that it is not the province of a federal habeas court to
reexamine state-court determinations on state-law
questions.”); Rivera v. Illinois, 556 U.S.
148, 158 (2009) (“[A] mere error of state law . . . is
not a denial of due process”) (quoting Engle v.
Isaac, 456 U.S. 107, 121, n.21 (1982); Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (“[W]e
reemphasize that it is not the province of a federal habeas
court to reexamine state-court determinations on state-law
questions.”). The court recognizes that petitioner
claims that his sentence is illegal not only under state law,
but also pursuant to the U.S. Constitution. He does not,
however, satisfactorily explain how his state claims
intersect with the U.S. Constitution. And the mere invocation
of the U.S. Constitution is insufficient to convert claims
based on state law - as the immediate ones clearly are - into
federal ones. See Langford v. Day, 110 F.3d
1380, 1389 (9th Cir. 1997) ("[A claimant] may not,
however, transform a state-law issue into a federal one
merely by asserting a violation of due process . . . .")
it is RECOMMENDED that the petition (ECF No. 1) be dismissed
and the Clerk be directed to close the case.
findings and recommendations are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within fourteen
days after being served with these findings and
recommendations, any party may file written objections with
the court and serve a copy on all parties. Such a document
should be captioned "Objections to Magistrate
Judge's Findings and Recommendations." Failure to
file objections within the specified time may waive the right
to appeal the District Court's order. Turner v.
Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez
v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his
objections petitioner may address whether a certificate of
appealability should issue in the event he files an appeal of
the judgment in this case. See Rule 11, Rules
Governing § 2254 Cases (the district court must issue or
deny a certificate of appealability when it enters a final
order adverse to the applicant).
 Petitioner subsequently filed a
“supplemental memorandum” to his petition. ECF
No. 6. Although the supplemental memorandum is not complete
without necessitating reference to the original petition, in
violation of Local Rule 220, the court has ...