(HC) Davis v. Neuschmid, No. 2:2018cv02682 - Document 7 (E.D. Cal. 2021)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 4/7/2021 GRANTING 2 Motion to Proceed IFP; ORDERING Clerk to randomly assign a U.S. District Judge to this action; and RECOMMENDING 1 Petition for Writ of Habeas Corpus be dismissed. Assigned and referred to Judge John A. Mendez. Objections due within 21 days after being served with these findings and recommendations. (Henshaw, R)

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(HC) Davis v. Neuschmid Doc. 7 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DORIAN DAVIS, 12 Petitioner, 13 14 No. 2:18-cv-2682 AC v. ORDER AND FINDINGS AND RECOMMENDATIONS ROBERT NEUSCHMID, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 17 18 corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. Examination of the in forma pauperis application reveals that petitioner is unable to afford 19 20 the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 21 28 U.S.C. § 1915(a). Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts 22 23 (Habeas Rules) requires the court to summarily dismiss a habeas petition, “[i]f it plainly appears 24 from the petition and any attached exhibits that the petitioner is not entitled to relief in the district 25 court.” Petitioner, who was convicted of crimes including robbery and assault in 1997 and 26 sentenced to more than 40 years imprisonment, challenges a decision by the California 27 Department of Corrections and Rehabilitation that he is not eligible for early parole consideration 28 //// 1 Dockets.Justia.com 1 under Proposition 57.1 He contends that he is eligible for such consideration because his primary 2 offense is second degree robbery, which does not constitute a “violent offense.” Petitioner 3 administratively grieved the matter, and unsuccessfully sought habeas relief in the California 4 courts. 5 Federal habeas relief is available to state inmates who are “in custody in violation of the 6 Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Habeas relief is not 7 available for state law errors of any kind. Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 8 1985). “Absent a showing of fundamental unfairness, a state court’s misapplication of its own 9 sentencing laws does not justify federal habeas relief.” Christian v. Rhode, 41 F.3d 461, 469 (9th 10 Cir. 1994). A habeas petitioner must show that an alleged state sentencing error was “so arbitrary 11 or capricious as to constitute an independent due process violation.” Richmond v. Lewis, 506 12 U.S. 40, 50 (1992). Proposition 57 addresses parole rather than sentencing per se, and the U.S. 13 Constitution establishes no substantive right to parole or consideration for parole. Swarthout v. 14 Cooke, 562 U.S. 216, 220 (2011). 15 Petitioner's Proposition 57 claim is not cognizable on federal habeas review because it 16 presents a question of state law that does not implicate federal rights. Petitioner cannot transform 17 a state law issue into a federal one by merely invoking due process. Langford v. Day, 110 F.3d 18 1380, 1389 (9th Cir. 1996). The California courts rejected petitioner’s bid for Proposition 57 19 consideration, ECF No. 1 at 23-27, and their interpretation of state law is not reviewable in this 20 court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam) (state court's interpretation 21 of state law is binding on federal habeas court). The superior court concluded in a reasoned 22 decision that petitioner is not eligible for early parole consideration under Proposition 57, as a 23 matter of state law; the California appellate and Supreme Court agreed. ECF No. 1 at 23-27. 24 Because petitioner’s application was considered and rejected by CDCR according to the 25 1 26 27 28 Proposition 57 added Article 1, Section 32 to the California Constitution. It states in relevant part: “Parole consideration: Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term of his or her primary offense,” defined for these purposes as "the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.” Cal. Const., art. I, § 32, subds. (a)(1), (a)(1)(A). 2 1 procedures established by Proposition 57, and the result has been upheld as correct under state 2 law, the denial of parole consideration cannot have been arbitrary or capricious. 3 “[I]t is not the province of a federal habeas court to reexamine state-court determinations 4 on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Because it plainly 5 appears that the petitioner is not entitled to relief in the district court, the petition should be 6 summarily dismissed. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Petitioner’s application to proceed in forma pauperis, ECF No. 2, is granted. 9 2. The Clerk of the Court shall randomly assign a United States District Judge to this 10 11 12 13 action. IT IS FURTHER RECOMMENDED that petitioner’s application for a writ of habeas corpus be dismissed. These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 15 after being served with these findings and recommendations, petitioner may file written 16 objections with the court. Such a document should be captioned “Objections to Magistrate 17 Judge’s Findings and Recommendations.” If petitioner files objections, he shall also address 18 whether a certificate of appealability should issue and, if so, why and as to which issues. See 28 19 U.S.C. § 2253(c)(2). Petitioner is advised that failure to file objections within the specified time 20 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 21 Cir. 1991). 22 DATED: April 7, 2021 23 24 25 26 27 28 3

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