United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner who, represented by counsel, seeks a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. He has
filed a petition (ECF No. 1) which, for the reasons stated
below, does not state a viable federal claim.
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). The
court must dismiss a habeas petition “[i]f it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief[.]” Rule 4, Rules
Governing Section 2254 Cases.
states that he was convicted in 2012 of: (1) conspiracy to
commit first degree murder; (2) a gang enhancement; and (3) a
gun enhancement. ECF No. 1 at 8. He was sentenced to life
without parole on conspiracy to commit murder and twenty-five
to life on the gun enhancement (to run consecutively).
Id. He brings this petition on the basis that
California Senate Bill 620, signed into law in 2017, provides
a sentencing court with discretion as to the imposition of
the twenty-five to life firearm enhancement. Id. at
9. Pursuant to the bill, the California Penal Code was
changed to provide that:
The court may, in the interest of justice pursuant to Section
1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.
The authority provided by this subdivision applies to any
resentencing that may occur pursuant to any other law.
Cal. Penal Code § 12022.53(h). Given that the sentencing
court lacked such discretion in 2012, petitioner requests
that his habeas petition be granted and his case referred
back to the San Joaquin Superior Court. Id.
claim fails insofar as it involves only an application of
state sentencing laws and, thus, does 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 invalid not only under state law,
but also pursuant to the Fifth and Sixth Amendments to the
U.S. Constitution. He does not, however, satisfactorily
explain how his state claims intersect with the Constitution.
And the mere invocation of the Constitution is insufficient
to convert a claim based on state law – as the
immediate one clearly is – into a federal
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 . . . .”) (as
it is ORDERED that the Clerk of Court shall randomly assign a
United States District Judge to this case.
it is hereby RECOMMENDED that the petition (ECF No. 1) be
DISMISSED for failure to state a cognizable federal claim.
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 ...