(HC) Sermeno v. Sherman, No. 2:2016cv02423 - Document 9 (E.D. Cal. 2017)

Court Description: ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 1/5/17 ORDERING that petitioner's 2 request to proceed in forma pauperis is GRANTED; and it is RECOMMENDED that this action be dismissed without prejudice. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)
Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY A. SERMENO, 12 No. 2:16-cv-2423 JAM KJN P Petitioner, 13 v. 14 STU SHERMAN, 15 ORDER AND FINDINGS AND RECOMMENDATIONS Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 17 18 corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis. Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford 19 20 the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See 21 28 U.S.C. § 1915(a). Petitioner challenges his 2012 conviction in Butte County, and claims that the attorney 22 23 appointed to represent him in the juvenile court proceedings was ineffective, and such 24 ineffectiveness renders the subsequent proceedings void and unenforceable. While not entirely 25 clear, it appears that petitioner contends he should have been allowed to argue that his son, Noah, 26 served as a strong mitigating circumstance that would require a more lenient determination of 27 fitness, entitling petitioner to be rehabilitated in the juvenile justice system, rather than tried as an 28 adult. 1 1 Petitioner appears to allege state law violations by the state juvenile court arising from his 2 juvenile fitness hearing. However, a federal court, in conducting habeas review, is limited to 3 deciding whether a state court decision violates the Constitution, laws or treaties of the United 4 States. 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam); Estelle 5 v. McGuire, 502 U.S. 62, 67-68 (1991). Federal habeas corpus relief “does not lie for errors of 6 state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990); McGuire, 502 U.S. at 67; see also Wilson 7 v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (“[I]t is only noncompliance with federal law that 8 renders a State’s criminal judgment susceptible to collateral attack in the federal courts.”). 9 Accordingly, it appears that petitioner’s claims are not cognizable in this proceeding. Nor is this result changed by petitioner’s reference to due process. (ECF No. 1 at 33.) 10 11 Petitioner “may not transform a state-law issue into a federal one merely by asserting a violation 12 of due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997); see also Little v. 13 Crawford, 449 F.3d 1075, 1083 n.6 (9th Cir. 2006) (“‘We cannot treat a mere error of state law, if 14 one occurred, as a denial of due process; otherwise, every erroneous decision by a state court on 15 state law would come here as a federal constitutional question.’” (citation omitted)). Moreover, petitioner’s claims appear to be unexhausted. The exhaustion of state court 16 17 remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. 18 § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent’s counsel. 19 28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may not be implied or inferred. A 20 petitioner satisfies the exhaustion requirement by providing the highest state court with a full and 21 fair opportunity to consider all claims before presenting them to the federal court. Picard v. 22 Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. 23 denied, 478 U.S. 1021 (1986). Here, petitioner states that his claims are pending in the California 24 Supreme Court. (ECF No. 1 at 15.) 25 26 27 28 Finally, the instant habeas petition was filed with the court on October 11, 2016. The court’s own records reveal that on November 20, 2014, petitioner filed a habeas petition 1 A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C. § 2254(b)(2). 2 1 challenging his 2012 conviction, which is presently pending. Sermeno v. Spearman, No. 2:14-cv- 2 2729 DB (E.D. Cal.).2 In order to avoid the dismissal of a subsequent habeas petition as 3 successive, 28 U.S.C. § 2244(b)(3), petitioner must raise all challenges to his 2012 criminal 4 conviction in one federal habeas petition. Thus, petitioner may seek leave to amend his petition 5 in Case No. 2:14-cv-2729 DB. Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (if a new 6 petition is filed when a previous habeas petition is still pending before the district court without a 7 decision having been rendered, then the new petition should be construed as a motion to amend 8 the pending petition). However, court records reflect that petitioner filed an amended petition on 9 September 16, 2015; therefore, petitioner must seek leave of court in Case No. 2:14-cv-2729 DB 10 to file any amended petition challenging the 2012 conviction. Fed. R. Civ. P. 15(a). 11 12 For all of the above reasons, the undersigned recommends that this action be dismissed without prejudice. Accordingly, IT IS HEREBY ORDERED that petitioner’s request to proceed in forma 13 14 pauperis is granted; and 15 16 IT IS RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ. P. 41(b). 17 These findings and recommendations are submitted to the District Judge assigned to this 18 case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served 19 with these findings and recommendations, petitioner may file written objections with the court. 20 The document should be captioned “Objections to Magistrate Judge’s Findings and 21 Recommendations.” Petitioner is advised that failure to file objections within the specified time 22 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 23 Cir. 1991). 24 Dated: January 5, 2017 25 serm2423.114 26 27 28 2 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 3