United States District Court, E.D. California
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 modification or resentencing
pursuant to California Assembly Bill 1618. ECF No. 1 at 3.
Petitioner was convicted and sentenced in Sacramento County
Superior Court for corporal punishment on a spouse and
received sentencing enhancements for prior felonies.
Id. at 2. The petition, however, is directed to the
California Supreme Court. Id. at 1; see
also ECF No. 1-1. 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). “[R]ecently enacted Assembly
Bill No. 1618 amended the Penal Code to provide, in relevant
part, that a plea bargain ‘that requires a defendant to
generally waive future benefits of legislative enactments,
initiatives, appellate decisions, or other changes in the law
that may retroactively apply after the date of the plea is
void as against public policy.' ([California Pen. Code]
§ 1016.8, subd. (b).)” People v. Ellis,
No. F076421, 2019 WL 7161342, at *5 (Ct. App. 2019).
Accordingly, petitioner's claim that his sentence should
be reduced pursuant to Assembly Bill 1618 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
addition, petitioner has requested the appointment of
counsel. There currently exists no absolute right to
appointment of counsel in habeas proceedings. See Nevius
v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However,
18 U.S.C. § 3006A authorizes the appointment of counsel
at any stage of the case “if the interests of justice
so require.” See Rule 8(c), Fed. R. Governing
§ 2254 Cases. In the present case, the court does not
find that the interests of justice would be served by the
appointment of counsel at the present time.
In
accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's motion for appointment of counsel (ECF
No. 2) is denied without prejudice to a renewal of the motion
at a later stage of the proceedings; and
2. The Clerk of the Court is directed to 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
...