United States District Court, E.D. California
TIMOTHY P. FRANKLIN, Petitioner,
v.
R. FISHER, JR., Warden, Respondent.
ORDER AND FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE.
Petitioner,
a state prisoner proceeding pro se, has filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. §2254.
Petitioner has not, however, filed an in forma pauperis
affidavit or paid the required filing fee ($5.00). See 28
U.S.C. §§ 1914(a); 1915(a). Nevertheless, the
undersigned will recommend summary dismissal of the pending
petition based on a failure to raise a federal cognizable
claim.
Petitioner
requests in his habeas petition resentencing pursuant to
California Senate Bill 136. ECF No. 1 at 2, 4. Petitioner was
convicted and sentenced in Sacramento County Superior Court
for sexual battery, rape, lewd act on a child, and received
sentencing enhancements for prior violent and non-violent
felonies pursuant to Cal. Pen. Code §§ 667(a),
667.5(b). Id. at 9. The petition, however, is
directed to the Sacramento County Superior Court.
Id. at 1. It appears that the petition may have been
misfiled in the incorrect court. On the contrary, if
petitioner intended to file in this court, the petition
nevertheless fails to raise a federal cognizable claim.
A writ
of habeas corpus is available under 28 U.S.C.§ 2254(a)
only on the basis of some transgression of federal law
binding on the state courts. Middleton v. Cupp, 768
F.2d 1083, 1085 (9th Cir. 1985); Gutierrez v.
Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). It is
unavailable for alleged error in the interpretation or
application of state law. Middleton, 768 F.2d at
1085; see also Lincoln v. Sunn, 807 F.2d 805, 814
(9th Cir. 1983); Givens v. Housewright, 786 F.2d
1378, 1381 (9th Cir. 1986). “In conducting habeas
review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of
the United States.” Estelle v. McGuire, 502
U.S. 62, 67-68 (1991). “Senate Bill 136 amends the
circumstances under which a one-year sentence enhancement may
be imposed under [California Pen. Code] section 667.5,
subdivision (b).” People v. Lopez, 254
Cal.Rptr.3d 883, 885 (Ct. App. 2019). Petitioner asks only
that he be resentenced “in absentia.”
Accordingly, petitioner's claim that his sentence should
be reduced pursuant to Senate Bill 136 is not a cognizable
federal claim.
Rule 4
of the Rules Governing Habeas Corpus Cases Under Section 2254
provides for summary dismissal of a habeas petition
“[i]f it plainly appears from the face of the petition
and any exhibits annexed to it that the petitioner is not
entitled to relief in the district court.” The Advisory
Committee Notes to Rule 8 also indicates that the court may
deny a petition for writ of habeas corpus, either on its own
motion under Rule 4, pursuant to the respondent's motion
to dismiss, or after an answer to the petition has been
filed. In the instant case, it is plain from the petition and
the exhibit provided that petitioner is not entitled to
federal habeas relief. Therefore, the petition should be
summarily dismissed.
Pursuant
to Rule 11 of the Federal Rules Governing Section 2254 Cases,
this court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant. A
certificate of appealability may issue only “if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). For
the reasons set forth in these findings and recommendations,
a substantial showing of the denial of a constitutional right
has not been made in this case.[1]
In
accordance with the above, IT IS HEREBY ORDERED that the
Clerk of the Court assign a district judge to this action.
Further,
IT IS HEREBY RECOMMENDED that:
1. Petitioner's application for a writ of habeas corpus
be summarily dismissed; and
2. This court decline to issue the certificate of
appealability referenced in 28 U.S.C. § 2253.
These
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 twenty-one
days after being served with these findings and
recommendations, petitioner may file written objections with
the court. The 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. Martinez v. Ylst, 951 F.2d 1153
(9th Cir.1991).
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Notes:
[1] Nothing in this Findings and
Recommendations precludes petitioner from seeking review in
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