(HC) Lopez v. Sherman, No. 1:2018cv01528 - Document 7 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus (Doc. 1 ) be DISMISSED for Failure to State a Cognizable Federal Habeas Claim signed by Magistrate Judge Stanley A. Boone on 11/26/2018. Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JUAN MIGUEL LOPEZ, 12 Petitioner, 13 14 15 Case No. 1:18-cv-01528-AWI-SAB-HC FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS v. STU SHERMAN, Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 I. 20 DISCUSSION 21 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 22 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 23 to file a response, if it “plainly appears from the petition and any attached exhibits that the 24 petitioner is not entitled to relief in the district court.” 25 By statute, federal courts “shall entertain an application for a writ of habeas corpus in 26 behalf of a person in custody pursuant to the judgment of a State court only on the ground that he 27 is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 28 § 2254(a). “[T]he second use of ‘in custody’ in the statute requires literally that the person 1 1 applying for the writ is contending that he is ‘in custody’ in violation of the Constitution or other 2 federal laws.” Bailey v. Hill, 599 F.3d 976, 979 (9th Cir. 2010) (emphasis added). See Dickerson 3 v. United States, 530 U.S. 428, 439 n.3 (2000). In the instant petition, Petitioner asserts that his sentence violates California Penal Code 4 5 section 1170.1 and should be recalled pursuant to California Penal Code section 1170.126 6 because recent cases have held that second-degree robbery is not a violent felony. (ECF No. 1 at 7 6).1 Whether Petitioner’s sentence is lawful under the California Penal Code is an issue of state 8 law, and errors of state law do not warrant federal habeas corpus relief. See Wilson v. Corcoran, 9 562 U.S. 1, 5 (2010) (per curiam) (“[I]t is only noncompliance with federal law that renders a 10 State’s criminal judgment susceptible to collateral attack in the federal courts.”); Estelle v. 11 McGuire, 502 U.S. 62, 67–68 (1991) (“We have stated many times that ‘federal habeas corpus 12 relief does not lie for errors of state law.’ Today, we reemphasize that it is not the province of a 13 federal habeas court to reexamine state-court determinations on state-law questions.” (citations 14 omitted)). Accordingly, Petitioner’s challenge of his sentence is not cognizable in federal habeas 15 corpus, and the petition should be dismissed. 16 II. 17 RECOMMENDATION Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of 18 19 habeas corpus be DISMISSED for failure to state a cognizable federal habeas claim. This Findings and Recommendation is submitted to the assigned United States District 20 21 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 22 Rules of Practice for the United States District Court, Eastern District of California. Within 23 THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 24 written objections with the court and serve a copy on all parties. Such a document should be 25 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 26 United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 27 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 28 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 2 1 time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 2 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. 5 Dated: November 26, 2018 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 3

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