(HC) Wheeler v. Lizarraga, No. 2:2015cv01629 - Document 19 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 12/3/2018 RECOMMENDING that this action be summarily dismissed for failure to state a claim upon which relief may be granted. Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Huang, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIE WHEELER, 12 Petitioner, 13 14 No. 2:15-cv-1629 MCE DB P v. FINDINGS AND RECOMMENDATIONS JOE LIZARRAGA, WARDEN, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed an 17 application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to 18 a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 I. PROCEDURAL HISTORY 20 On July 30, 2015, petitioner filed a petition for writ of habeas corpus. (ECF No. 1). 21 Thereafter, the matter was reassigned to the undersigned on August 2, 2016. (ECF No. 12). The 22 petition was screened, and on May 23, 2017, after finding that the petition was overly vague and 23 did not state a cognizable claim (see ECF No. 14 at 3), petitioner was directed to file a first 24 amended petition. (ECF No. 14). On June 15, 2017, petitioner filed an amended petition. (ECF 25 No. 17). The court screens it herein. 26 //// 27 //// 28 1 1 II. 2 RELEVANT FACTS In the first amended petition, petitioner states the following: On November 6, 2012, he 3 was convicted of conspiracy to bring a controlled substance into prison in violation of California 4 Penal Code §§ 182(a)(1) and 4573. (See generally ECF No. 17 at 1). As a result, he was 5 sentenced to thirty-two months in prison, pursuant to California Penal Code §§ 1170.12(a)-(d) 6 and 667(b)-(i). (See ECF No. 17 at 6). On September 28, 2014, California’s Fair Sentencing Act was approved by Governor 7 8 Brown and filed with the Secretary of State. (See ECF No. 17 at 8). The Act, petitioner argues, 9 prohibits a grant of probation or the suspension of sentence of someone who was convicted of 10 either possessing for sale or of selling a substance containing 28.5 grams of a controlled 11 substance. (See ECF No. 17 at 8). However, because petitioner was convicted of violating 12 Section 4573 with only 24.09 grams of heroin – which is less than the Act’s new 28.5-gram level 13 cap – he contends that he is eligible for either a grant of probation or for a suspension of his 14 sentence. (See ECF No. 17 at 8). 15 III. LEGAL STANDARDS 16 Rule 4 of the Habeas Rules Governing Section 2254 Cases requires the court to 17 summarily dismiss a habeas petition “[i]f it plainly appears from the petition and any attached 18 exhibits that the petitioner is not entitled to relief in the district court.” A person in custody 19 pursuant to the judgment of a state court can obtain a federal writ of habeas corpus “only on the 20 ground that he is in custody in violation of the Constitution or laws or treaties of the United 21 States.” 28 U.S.C. § 2254(a). Federal habeas relief is not available for alleged errors of state law. 22 28 U.S.C. § 2254(a); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985); Lewis v. Jeffers, 23 497 U.S. 764, 780 (1990). 24 It is not the province of a federal habeas court to re-examine state-court determinations on 25 state-law questions. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Absent a showing of 26 fundamental unfairness, a state court’s misapplication of its own sentencing laws does not justify 27 federal habeas relief. Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). 28 2 1 2 III. DISCUSSION Petitioner contends that under California’s Fair Sentencing Act, his sentence is 3 unconstitutional, and that as a result, he should be resentenced. (ECF No. 17 at 6-8). It appears 4 that he has appealed his sentence, that he has made these arguments in the state appellate courts, 5 and that all of his state appeals have been denied. (See generally ECF No. 17 at 2) (petitioner’s 6 state appellate history). Although petitioner uses the word “unconstitutional” in the instant 7 petition, the use of that word alone does not transport his claim, which solely questions the 8 propriety of the application of state law, into the realm of claims properly subject to federal 9 habeas review. See, e.g., Hill v. Lizzaraga, No. 15-cv-6132 BRO AJW, 2015 WL 8923107, at *2 10 (C.D. Cal. Nov. 2, 2015) (addressing petitioner’s claims related to state application of 11 California’s Fair Sentencing Act and finding state sentencing issues generally not cognizable in 12 federal habeas action). Furthermore, petitioner has not shown that the state court misapplied its 13 own sentencing laws and that any application of the law was fundamentally unfair. See generally 14 Christian, 42 F.3d at 469. 15 In sum, the petition is not properly before this court, and it fails to state a claim upon 16 which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). When it is clear that a petition 17 lacks merit, the court may dismiss it. See O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 18 1990), cert. denied, 48 U.S. 1096 (1991) (stating Rule 4 of Rules Governing Section 2254 19 explicitly allows district court to summarily dismiss petition on merits when no claim for relief 20 stated) (citation omitted). 21 22 23 Accordingly, IT IS HEREBY RECOMMENDED that this action be summarily dismissed for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 25 after being served with these findings and recommendations, petitioner may file written 26 objections with the court. Such a document should be captioned “Objections to Magistrate 27 Judge’s Findings and Recommendations.” Failure to file objections within the specified time 28 may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 3 1 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may 2 address whether a certificate of appealability should issue in the event he files an appeal of the 3 judgment in this case. See 28 U.S.C. § 2253(c)(2). 4 Dated: December 3, 2018 5 6 7 8 9 DLB:13 DB/ORDERS/ORDERS.PRISONER.HABEAS/whee1629.scrn.fap.f&r 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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