United States District Court, N.D. California
ORDER FOR RESPONDENT TO SHOW CAUSE
Phyllis J. Hamilton United States District Judge.
a California probationer, filed a pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. The
amended petition was dismissed with leave to amend and
petitioner has filed a second amended petition.
states that after being found guilty of driving while under
the influence, he was sentenced to 20 days jail time, nine
months in DUI school, 116 hours of community service and
three years of probation. Second Amended Petition
(“SAP”) at 2. Petitioner further contends that
the California Court of Appeal and California Supreme Court
denied his appeals. Id.
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);
Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas
corpus petitions must meet heightened pleading requirements.
McFarland v. Scott, 512 U.S. 849, 856 (1994). An
application for a federal writ of habeas corpus filed by a
prisoner who is in state custody pursuant to a judgment of a
state court must “specify all the grounds for relief
available to the petitioner ... [and] state the facts
supporting each ground.” Rule 2(c) of the Rules
Governing § 2254 Cases, 28 U.S.C. § 2254.
“‘[N]otice' pleading is not sufficient, for
the petition is expected to state facts that point to a
‘real possibility of constitutional error.'”
Rule 4 Advisory Committee Notes (quoting Aubut v.
Maine, 431 F.2d 688, 689 (1st Cir. 1970)).
construing the second amended petition, petitioner asserts
that: (1) he was falsely arrested due to an unauthorized
traffic stop; (2) the trial court lacked jurisdiction because
the accusatory pleading was void; (3) his speedy trial rights
were violated; and (4) the trial judge erred by failing to
recuse himself. SAP at 1-2. Petitioner's third and
fourth claims are sufficient to require a response. The
remaining claims are dismissed.
first claim regarding the unauthorized stop and false arrest
pursuant to the Fourth Amendment, fails to present a federal
habeas claim. In Stone v. Powell, 428 U.S. 465,
481-82, 494 (1976), the Supreme Court held that federal
habeas review of Fourth Amendment claims is barred unless the
state did not provide an opportunity for full and fair
litigation of those claims. Even if the state courts'
determination of the Fourth Amendment issues is improper, it
will not be remedied in federal habeas corpus actions so long
as the petitioner was provided a full and fair opportunity to
litigate the issue. See Locks v. Sumner, 703 F.2d
403, 408 (9th Cir. 1983). California state procedure provides
an opportunity for full litigation of any Fourth Amendment
claim. To the extent that petitioner argues a violation of
state law, that does not state a federal habeas claim.
See Estelle v. McGuire, 502 U.S. 62, 68
(1991) (“We have stated many times that federal habeas
corpus relief does not lie for errors of state law.”)
second claim, petitioner argues that pursuant to state law
too much time elapsed between his arrest and the filing of
charges, therefore the trial court lacked jurisdiction.
Petitioner again only describes violations of state procedure
and law and this fails to state a federal claim. See
Estelle, 502 U.S. at 68.
first two claims are dismissed, and this petition continues
with claims three and four regarding a speedy trial violation
and the failure of the trial judge to recuse himself.
clerk shall serve by regular mail a copy of this order and
the petition (Docket No. 10) and all attachments thereto on
respondent and respondent's attorney, the Lake County
Probation Department. The clerk shall also send a courtesy
copy to the Attorney General of the ...