(HC) Cruz v. On Habeas Corpus, No. 1:2010cv02207 - Document 5 (E.D. Cal. 2010)

Court Description: ORDER GRANTING Petitioner Leave to File a Motion to Amend the Petition to Name a Proper Respondent; FINDINGS and RECOMMENDATIONS recommending that Petitioner's State Law Claim be DISMISSED and to Require a Response With Respect to Petitioner's Other Claim re 1 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Sheila K. Oberto on 12/6/2010. Referred to Judge O'Neill. Objections to F&R due by 1/10/2011. Motion to Amend due by 1/10/2011. (Jessen, A)
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(HC) Cruz v. On Habeas Corpus Doc. 5 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ANIBAL ALONSO CRUZ, 11 Petitioner, 12 13 14 v. (UNNAMED), 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 17 18 1:10-cv—02207-LJO-SKO-HC ORDER GRANTING PETITIONER LEAVE TO FILE A MOTION TO AMEND THE PETITION TO NAME A PROPER RESPONDENT NO LATER THAN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER FINDINGS AND RECOMMENDATION TO DISMISS STATE LAW CLAIM AND TO REQUIRE A RESPONSE WITH RESPECT TO PETITIONER’S OTHER CLAIM (DOC. 1) OBJECTIONS DEADLINE: THIRTY (30) DAYS 19 20 Petitioner is a state prisoner proceeding pro se and in 21 forma pauperis with a petition for writ of habeas corpus pursuant 22 to 28 U.S.C. § 2254. 23 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 24 Rules 302 through 304. 25 which was filed on November 29, 2010. The matter has been referred to the Pending before the Court is the petition, 26 I. 27 Rule 4 of the Rules Governing § 2254 Cases in the United 28 Screening the Petition States District Courts (Habeas Rules) requires the Court to make 1 Dockets.Justia.com 1 a preliminary review of each petition for writ of habeas corpus. 2 The Court must summarily dismiss a petition "[i]f it plainly 3 appears from the petition and any attached exhibits that the 4 petitioner is not entitled to relief in the district court....” 5 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 6 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 7 1990). 8 grounds of relief available to the Petitioner; 2) state the facts 9 supporting each ground; and 3) state the relief requested. Habeas Rule 2(c) requires that a petition 1) specify all 10 Notice pleading is not sufficient; rather, the petition must 11 state facts that point to a real possibility of constitutional 12 error. 13 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 14 Allison, 431 U.S. 63, 75 n. 7 (1977)). 15 that are vague, conclusory, or palpably incredible are subject to 16 summary dismissal. 17 Cir. 1990). 18 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 19 corpus either on its own motion under Habeas Rule 4, pursuant to 20 the respondent's motion to dismiss, or after an answer to the 21 petition has been filed. 22 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 23 (9th Cir. 2001). 24 Advisory Committee Notes to Habeas Rule Here, Petitioner, an inmate of the Lancaster State Prison, 25 is serving consecutive indeterminate life sentences imposed on 26 January 22, 2008, in the Kern County Superior Court for forcible 27 sexual offenses. 28 conviction, which was suffered within the Eastern District of (Pet. 1.) Petitioner challenges his 2 1 California. 2 II. 3 In this case, Petitioner did not name anyone as the Petitioner’s Failure to Name a Proper Respondent 4 Respondent. 5 Prison at Los Angeles County (LAC) located in Lancaster, 6 California. 7 Petitioner is incarcerated at the California State The warden at that facility is Brenda Cash. A petitioner seeking habeas corpus relief under 28 U.S.C. 8 § 2254 must name the state officer having custody of him as the 9 respondent to the petition. Habeas Rule 2(a); Ortiz-Sandoval v. 10 Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California 11 Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). 12 person having custody of an incarcerated petitioner is the warden 13 of the prison in which the petitioner is incarcerated because the 14 warden has "day-to-day control over" the petitioner and thus can 15 produce the petitioner. 16 378, 379 (9th Cir. 1992); see also, Stanley v. California Supreme 17 Court, 21 F.3d 359, 360 (9th Cir. 1994). 18 officer in charge of state penal institutions is also 19 appropriate. 20 Normally, the Brittingham v. United States, 982 F.2d However, the chief Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Petitioner’s failure to name a proper respondent requires 21 dismissal of his habeas petition for lack of jurisdiction. 22 Stanley, 21 F.3d at 360. 23 However, the Court will give Petitioner the opportunity to 24 cure this defect by amending the petition to name a proper 25 respondent, such as the warden of his facility. 26 Morris, 363 F.3d 891, 893-94 (9th Cir. 2004). 27 judicial economy, Petitioner need not file an amended petition. 28 Instead, Petitioner may file a motion entitled "Motion to Amend 3 See, In re In the interest of 1 the Petition to Name a Proper Respondent" wherein Petitioner may 2 name the proper respondent in this action. 3 III. Order Granting Leave to File a Motion to Amend the Petition 4 Accordingly, Petitioner is GRANTED thirty (30) days from the 5 date of service of this order in which to file a motion to amend 6 the instant petition and name a proper respondent. Failure to 7 amend the petition and state a proper respondent will result in a 8 recommendation that the petition be dismissed for lack of 9 jurisdiction. 10 IV. 11 12 Findings and Recommendation to Dismiss Petitioner’s Claim concerning California Penal Code § 654 Petitioner raises two claims concerning his convictions: 1) 13 Petitioner was denied his right pursuant to the Fifth, Sixth, and 14 Fourteenth Amendments to put on a defense when information 15 concerning Petitioner’s previous relationship with the victim was 16 excluded at argument; and 2) because there was only a single 17 assault, sentences on multiple counts violate Cal. Pen. Code § 18 654, which imposes limits on multiple punishments for multiple 19 crimes. 20 Federal habeas relief is available to state prisoners only 21 to correct violations of the United States Constitution, federal 22 laws, or treaties of the United States. 23 Federal habeas relief is not available to retry a state issue 24 that does not rise to the level of a federal constitutional 25 violation. 26 Alleged errors in the application of state law are not cognizable 27 in federal habeas corpus. 28 Cir. 2002) (a claim challenging state court’s discretionary 28 U.S.C. § 2254(a). Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Souch v. Schiavo, 289 F.3d 616 (9th 4 1 decision concerning application of state sentencing law presented 2 only state law issues and was not cognizable in a proceeding 3 pursuant to 28 U.S.C. § 2254); Langford v. Day, 110 F.3d 1380, 4 1389 (9th Cir. 1996). 5 interpretation of state law. 6 1389 (9th Cir. 1996). 7 is bound by the California Supreme Court’s interpretation of 8 California law unless it is determined that the interpretation is 9 untenable or a veiled attempt to avoid review of federal 10 questions. 11 The Court accepts a state court's Langford v. Day, 110 F.3d 1380, In a habeas corpus proceeding, this Court Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001). 12 Application of Cal. Pen. Code § 654 presents a question of 13 state law, and not federal law. 14 685, 687 (9th Cir. 1989). 15 unfairness, a state court’s sentencing decisions, including a 16 decision whether to impose sentences concurrently or 17 consecutively, are generally a matter of state criminal procedure 18 and thus do not justify federal habeas corpus relief. 19 v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994); Cacoperdo v. 20 Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994). 21 Watts v. Bonneville, 879 F.2d Absent a showing of fundamental Christian In the petition before the Court, with respect to 22 Petitioner’s second claim concerning a violation of § 654, it 23 does not appear that Petitioner alleged fundamental unfairness in 24 the state courts. 25 application of state sentencing laws. 26 concerning sentencing error is not cognizable in a proceeding 27 pursuant to § 2254. 28 Petitioner instead claimed an error in the Therefore, it must be dismissed. 5 Petitioner’s second claim 1 However, Petitioner’s first claim, when liberally read, 2 appears to allege a cognizable claim of an absence of fundamental 3 fairness in connection with the trial process. 4 V. Recommendation 5 Accordingly, it is RECOMMENDED that: 6 1) Petitioner’s second claim, concerning the application of 7 Cal. Pen. Code § 654, be DISMISSED because it is a claim 8 concerning state law that is not cognizable in a proceeding 9 pursuant to 28 U.S.C. § 2254; and 10 2) Insofar as Petitioner claims a violation of his right to 11 a fundamentally fair trial and to due process of law based on 12 exclusion of evidence or limitation of argument concerning the 13 Petitioner’s relationship with the victim, the Respondent should 14 be ordered to file a response to the petition. 15 These findings and recommendations are submitted to the 16 United States District Court Judge assigned to the case, pursuant 17 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 18 the Local Rules of Practice for the United States District Court, 19 Eastern District of California. 20 being served with a copy, any party may file written objections 21 with the Court and serve a copy on all parties. 22 should be captioned “Objections to Magistrate Judge’s Findings 23 and Recommendations.” 24 and filed within fourteen (14) days (plus three (3) days if 25 served by mail) after service of the objections. 26 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 27 § 636 (b)(1)(C). 28 objections within the specified time may waive the right to Within thirty (30) days after Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file 6 1 appeal the District Court’s order. 2 1153 (9th Cir. 1991). Martinez v. Ylst, 951 F.2d 3 IT IS SO ORDERED. 4 5 Dated: ie14hj December 6, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7