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Cheung v. California Attorney General

United States District Court, C.D. California, Western Division

September 16, 2019

KELVIN CHEUNG, Petitioner,
v.
CALIFORNIA ATTORNEY GENERAL, et al., Respondents.

          ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          HONORABLE PHILIP S. GUTIERREZ UNITED STATES DISTRICT JUDGE

         On August 27, 2019, the United States Magistrate Judge issued a Second Report and Recommendation ("Second R&R"), recommending that the Petition be dismissed on the merits with prejudice. (ECF No. 37). On September 10, 2019, petitioner filed Objections to the Second R&R. (ECF No. 38).

         Petitioner raises thirty-four separate objections, and the Court finds that a substantial number pertain to state law issues, such as alleged violations of procedures regarding state court competency hearings. (See ECF No. 38 at 10-20). Habeas relief, however, is available only to state prisoners who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. In a federal habeas proceeding, a court is limited to deciding whether a prisoner's conviction violated the Constitution, laws or treaties of the United States, as habeas relief does not lie for errors of state law. Estellev. McGuire, 502 U.S. 62, 67, 112S.Ct. 475, 116 L.Ed.2d 385 (1991). Accordingly, to the extent petitioner in his objections asserts violations of state law, his claims are not cognizable in this habeas proceeding.

         Petitioner also directs objections at the California Court of Appeal's factual findings. (See ECF No. 38 at 9). Although petitioner cites examples of what he believes to be factual inaccuracies in the court of appeal's opinion, the purported inaccuracies that he identifies are not material to any of his grounds for relief. Moreover, with respect to his plea hearing, the Magistrate Judge in the Second R&R conducted an independent review of the record when determining that petitioner's plea was voluntary and intelligent. Accordingly, the Court finds no merit to these objections.

         Next, petitioner in his Objections attacks the validity of his plea by pointing out that, just before the plea colloquy commenced, his counsel and the trial court discussed where petitioner might be placed to serve his 180-day term in a residential mental health treatment program. In particular, the transcript reflects the following exchange:

[The Court]: So that's where we are today. So he's your lawyer. And, at this point, the question is would you like to accept the offer or not? And that's really the only issue we have to resolve.
The only other question I have is that, [defense counsel], in the event there is ... a desire to resolve the matter, what is contemplated as far as the six month live-in program?
[Defense Counsel]: We have a program[ ] called Hillsman. Hillsman has a mental health component in it. There is a letterfrom AIR in the court file.
[The Court]: Okay.
[Defense Counsel]: They have a bed ready for him. That's just a matter of authorizing AIR to pick him up and deliver him there.
[The Court]: Okay. All right.

(ECF No. 19-1 at 188-89).

         Petitioner asserts that after his sentencing on March 10, 2016, he was not transferred to his residential treatment program until sometime in May 2016, and that he "was never transferred or enrolled in any Hillsman Program." (ECF No. 38 at 27).

         The Court notes that during the plea colloquy, the trial court explained to petitioner the ...


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