-SKO (HC) Martinez v. Hartley, No. 1:2011cv00215 - Document 10 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sheila K. Oberto on 7/29/2011 recommending to dismiss without leave to amend claims based on State Law and State's post-conviction process re 9 Amended Petition for Writ of Habeas Corpus and to refer remaining claims back to Magistrate Judge. Referred to Judge Oliver W. Wanger; Objections to F&R due by 9/6/2011. (Lundstrom, T)
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-SKO (HC) Martinez v. Hartley Doc. 10 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ISAAC MARTINEZ, 11 Petitioner, 12 13 14 v. JAMES D. HARTLEY, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 17 1:11-cv—00215-OWW-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS WITHOUT LEAVE TO AMEND PETITIONER’S CLAIMS IN THE FIRST AMENDED PETITION BASED ON STATE LAW AND CONCERNING THE STATE POST-CONVICTION PROCESS (DOC. 9) FINDINGS AND RECOMMENDATIONS TO REFER THE REMAINING CLAIMS BACK TO THE MAGISTRATE JUDGE OBJECTIONS DEADLINE: THIRTY (30) DAYS 18 19 Petitioner is a state prisoner proceeding pro se and in 20 forma pauperis with a petition for writ of habeas corpus pursuant 21 to 28 U.S.C. § 2254. 22 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 23 Rules 302 and 304. 24 petition (FAP), which was filed on April 25, 2011. The matter has been referred to the Pending before the Court is the first amended 25 I. 26 Rule 4 of the Rules Governing § 2254 Cases in the United Screening the Petition 27 States District Courts (Habeas Rules) requires the Court to make 28 a preliminary review of each petition for writ of habeas corpus. 1 Dockets.Justia.com 1 The Court must summarily dismiss a petition "[i]f it plainly 2 appears from the petition and any attached exhibits that the 3 petitioner is not entitled to relief in the district court....” 4 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 5 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 6 1990). 7 grounds of relief available to the Petitioner; 2) state the facts 8 supporting each ground; and 3) state the relief requested. 9 Notice pleading is not sufficient; rather, the petition must Habeas Rule 2(c) requires that a petition 1) specify all 10 state facts that point to a real possibility of constitutional 11 error. 12 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 13 Allison, 431 U.S. 63, 75 n.7 (1977)). 14 that are vague, conclusory, or palpably incredible are subject to 15 summary dismissal. 16 Cir. 1990). 17 Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 18 corpus either on its own motion under Habeas Rule 4, pursuant to 19 the respondent's motion to dismiss, or after an answer to the 20 petition has been filed. 21 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 22 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 23 II. 24 Here, Petitioner alleges that he is an inmate of the Allegations of the First Amended Petition 25 California State Prison at Avenal, California, serving a sentence 26 of ten (10) years to life imposed in 1993 by the Los Angeles 27 Superior Court in case number VAO24361. 28 challenges his sentence as well as the Superior Court’s handling 2 (FAP 7.) Petitioner 1 of a petition for writ of habeas corpus filed by Petitioner in 2 that court in 2009. 3 claims: 4 Amendment protection against double jeopardy as well as the 5 constitution of California; and 2) his rights under federal law 6 and unspecified portions of the Constitution were violated by the 7 California Superior Court’s failure to respond in a timely manner 8 to Petitioner’s habeas petition in 2009. 9 III. 1) (Id.) Petitioner raises the following his conviction and sentence violated his Fifth (Id.) Failure to State a Cognizable Double Jeopardy Claim Based on the California Constitution 10 Petitioner argues that his sentence to life plus ten years 11 for kidnaping for the purpose of robbery, and the enhancement of 12 his sentence for a prior conviction, prior prison term, arming, 13 and for use of a handgun violated both federal and state 14 constitutional provisions concerning double jeopardy. (FAP 7, 15 11.) Petitioner contends that the enhancement of his sentence 16 constituted punishment for the same offense because the 17 enhancements constituted lesser offenses that were necessarily 18 included in the offense of kidnaping for robbery. 19 Because the petition was filed after April 24, 1996, the 20 effective date of the Antiterrorism and Effective Death Penalty 21 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh 22 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 23 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 24 To the extent that Petitioner relies on the constitution of 25 the state of California, Petitioner has failed to state a claim 26 cognizable in a proceeding pursuant to 28 U.S.C. § 2254. 27 /// 28 3 1 Federal habeas relief is available to state prisoners only 2 to correct violations of the United States Constitution, federal 3 laws, or treaties of the United States. 4 Federal habeas relief is not available to retry a state issue 5 that does not rise to the level of a federal constitutional 6 violation. 7 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 8 errors in the application of state law are not cognizable in 9 federal habeas corpus. 10 28 U.S.C. § 2254(a). Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 Alleged Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002). 11 A petition for habeas corpus should not be dismissed without 12 leave to amend unless it appears that no tenable claim for relief 13 can be pleaded were such leave granted. 14 F.2d 13, 14 (9th Cir. 1971). 15 Jarvis v. Nelson, 440 Here, Petitioner’s claim is deficient not from the absence 16 of facts, but rather because violations of the constitution of 17 the state of California are not subject to this Court’s review 18 under 28 U.S.C. § 2254. 19 court concludes that granting further leave to amend would be 20 futile. 21 dismissed without leave to amend. 22 IV. Given the nature of the defect, the Accordingly, it will be recommended that the claim be Failure to State a Cognizable Claim concerning California’s Post-Conviction Processes 23 Petitioner alleges that after filing a petition for writ of 24 habeas corpus in the Superior Court concerning denial of a parole 25 release date, the court failed to respond to the petition in a 26 timely manner because the petition remained pending for five 27 months. (FAP 7.) Petitioner argues that his constitutional 28 4 1 rights under state and federal law to appeal the denial of parole 2 were violated. 3 As set forth above, to the extent that Petitioner bases his 4 claim on state law, Petitioner has failed to state facts that 5 would entitle him to relief in this proceeding because violations 6 of state law are not in themselves cognizable in a proceeding 7 pursuant to 28 U.S.C. § 2254. 8 9 Further, to the extent that Petitioner bases his claim on the Federal Constitution, federal habeas relief is not available 10 to redress procedural errors in the state collateral review 11 process. 12 (claim concerning the alleged bias of a judge in a second post- 13 conviction proceeding for relief); Carriger v. Stewart, 95 F.3d 14 755, 763 (9th Cir. 1996), vacated on other grounds, Carriger v. 15 Stewart, 132 F.3d 463 (1997) (Brady claim in post-conviction 16 proceedings); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 17 1989) (claim that a state court’s delay in deciding a petition 18 for post-conviction relief violated due process rights). 19 Further, there is no clearly established federal law, as 20 determined by the Supreme Court of the United States, recognizing 21 a due process right to a speedy appeal. 22 500, 523 (9th Cir. 2011). 23 Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998) Hayes v. Ayers, 632 F.3d Accordingly, Petitioner’s claim concerning the five-month 24 delay by the state court in processing Petitioner’s habeas 25 petition is not cognizable in this proceeding. 26 of a cognizable claim results from the nature of the claim, and 27 not from the absence of factual allegations, granting leave to 28 amend the claim would be futile. Because the lack It will, therefore, be 5 1 2 recommended that the claim be dismissed without leave to amend. In summary, Petitioner’s claims that are based on state law 3 and that concern the state post-conviction process are not 4 cognizable in this proceeding and must be dismissed without leave 5 to amend. 6 petition, it will be recommended that upon the District Judge’s 7 disposition of these findings and recommendations, the action be 8 referred back to the Magistrate Judge for further proceedings. 9 V. With respect to the remaining claim or claims in the Recommendations 10 Accordingly, it is RECOMMENDED that: 11 1) Petitioner’s claims based on state law and his claim 12 concerning delay in the post-conviction processes of the state 13 court be DISMISSED without leave to amend; and 14 2) Upon dismissal of the claims that are not cognizable, 15 the proceeding be REFERRED back to the Magistrate Judge for 16 further proceedings. 17 These findings and recommendations are submitted to the 18 United States District Court Judge assigned to the case, pursuant 19 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 20 the Local Rules of Practice for the United States District Court, 21 Eastern District of California. 22 being served with a copy, any party may file written objections 23 with the Court and serve a copy on all parties. 24 should be captioned “Objections to Magistrate Judge’s Findings 25 and Recommendations.” 26 and filed within fourteen (14) days (plus three (3) days if 27 served by mail) after service of the objections. 28 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § Within thirty (30) days after Such a document Replies to the objections shall be served 6 The Court will 1 636 (b)(1)(C). 2 objections within the specified time may waive the right to 3 appeal the District Court’s order. 4 1153 (9th Cir. 1991). The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 5 6 IT IS SO ORDERED. 7 Dated: ie14hj July 29, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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