(HC) Lovell v. McDowell ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID ANTHONY LOVELL, II, No. 2:20-cv-194 EFB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 N. McDOWELL, 15 Respondent. 16 17 Petitioner is a state prisoner who, proceeding pro se, seeks a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. He has filed an application to proceed in forma pauperis (ECF No. 19 3) which makes the required showing and will be granted. However, his petition (ECF No. 1), for 20 the reasons stated below, does not state a viable claim. 21 I. Legal Standards 22 The court must dismiss a habeas petition or portion thereof if the prisoner raises claims 23 that are legally “frivolous or malicious” or fail to state a basis on which habeas relief may be 24 granted. 28 U.S.C. § 1915A(b)(1),(2). The court must dismiss a habeas petition “[i]f it plainly 25 appears from the petition and any attached exhibits that the petitioner is not entitled to relief[.]” 26 Rule 4, Rules Governing Section 2254 Cases. 27 ///// 28 ///// wOAOe 2 UVM ET RSE □□□ PIA Nee PAY eI 1 Il. Analysis 2 Petitioner raises only a single claim in his petition: that a felony for which he was 3 || convicted in California state court should, under section 17(b) of the California Penal Code, have 4 | been classified as a misdemeanor. ECF No. | at 1,5. This claim necessarily fails. It sounds only 5 || in state law. “Absent a showing of fundamental unfairness, a state court’s misapplication of its 6 || own sentencing law does not justify federal habeas relief.” Christian v. Rhode, 41 F.3d 461, 469 7 | (9th Cir. 1994). Petitioner has not articulated any facts indicating that his sentence was 8 | fundamentally unfair. Thus, this petition must be dismissed. 9 Il. Conclusion 10 Accordingly, it is ORDERED that: 11 1. Petitioner’s application to proceed in forma pauperis (ECF No. 3) is GRANTED; and 12 2. The Clerk of Court shall randomly assign a United States District Judge to this case. 13 Further, it is RECOMMENDED that the petition (ECF No. 1) be DISMISSED for failure 14 | to state a cognizable claim. 15 These findings and recommendations are submitted to the United States District Judge 16 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 17 || after being served with these findings and recommendations, any party may file written 18 || objections with the court and serve a copy on all parties. Such a document should be captioned 19 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 20 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 21 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). In 22 || his objections petitioner may address whether a certificate of appealability should issue in the 23 || event he files an appeal of the judgment in this case. See Rule 11, Rules Governing § 2254 Cases 24 | (the district court must issue or deny a certificate of appealability when it enters a final order 25 || adverse to the applicant). 26 || DATED: April 23, 2020. Yy Vi, / □ 4 in 4 27 EDMUND F. BRENNAN 3g UNITED STATES MAGISTRATE JUDGE