(HC) Boswell v. Foss ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BUCK EDWARD BOSWELL, No. 2:20-cv-00798-CKD P 12 Petitioner, 13 v. ORDER AND 14 FOSS, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis 19 pursuant to 28 U.S.C. § 1915. Examination of the request to proceed in forma pauperis reveals 20 that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed 21 in forma pauperis will be granted. See 28 U.S.C. § 1915(a). 22 I. Factual and Procedural History 23 Petitioner was convicted in the Tehama County Superior Court on five counts of drug 24 offenses in violation of various provisions of California’s Health and Safety Code. ECF No. 1 at 25 2. On May 5, 2006, petitioner was sentenced to 22 years in prison. Id. In his federal habeas 26 application, petitioner contends that Senate Bills 180 and 136, which repealed two specific 27 sentencing enhancements, violate the equal protection clause of the Fourteenth Amendment 28 because they were not retroactively applied to his sentence. ECF No. 1 at 5, 7. Petitioner seeks 1 to have the two sentencing enhancements stricken from his sentence thereby reducing his total 2 sentence by 9 years. ECF No. 1 at 11. 3 II. Analysis 4 Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all 5 petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the 6 petitioner is not entitled to relief. The court has conducted that review and determined that 7 petitioner’s habeas application raises only challenges to state sentencing laws that are not 8 cognizable in a federal habeas corpus action. See Estelle v. McGuire, 502 U.S. 62, 67 (1991) 9 (emphasizing that “[w]e have stated many times that ‘federal habeas corpus relief does not lie for 10 errors of state law’”) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). 11 A petitioner may seek federal habeas relief from a state-court conviction or sentence “only 12 on the ground that he is in custody in violation of the Constitution or laws or treaties of the United 13 States.” 28 U.S.C. § 2254(a). Here, petitioner is merely challenging the California Legislature’s 14 failure to apply recent sentencing law changes retroactively to his 2006 sentence. See Swarthout 15 v. Cooke, 562 U.S. 216, 222 (2011) (emphasizing that it is not the federal courts role to determine 16 whether California applied its state laws and regulations correctly). Although petitioner attempts 17 to cloak his state law claims in equal protection terms, merely placing an “equal protection” label 18 on a claim does not transform it into a federal one. See Langford v. Day, 110 F.3d 1380, 1389 19 (9th Cir. 1997) (“[A petitioner] may not ... transform a state-law issue into a federal one merely 20 by asserting a violation of due process.”). Petitioner’s claims are solely concerned with the 21 application of state sentencing laws and are therefore not cognizable in this federal habeas action. 22 Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Miller v. Vasquez, 868 F.2d 1116, 1118–19 (9th 23 Cir. 1989) (declining to address whether assault with a deadly weapon qualifies as a “serious 24 felony” under California's sentence enhancement provisions because it is a question of state 25 sentencing law, for which habeas relief is unavailable). For these reasons, the court will 26 recommend that petitioner’s petition for writ of habeas corpus be summarily dismissed with 27 prejudice. 28 ///// WwOOe 6 OU YEE EAINIT NS INES MMOL ZOO Ce VU VIG 1 Accordingly, IT IS HERBY ORDERED that: 2 1. Petitioner’s request for leave to proceed in forma pauperis (ECF No. 7) is granted. 3 2. The Clerk of Court is directed to randomly assign this matter to a district court judge. 4 IT IS FURTHER RECOMMENDED that: 5 1. Petitioner’s petition for writ of habeas corpus be summarily dismissed with prejudice; 6 and 7 2. This case be closed. 8 These findings and recommendations are submitted to the United States District Judge 9 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 10 | after being served with these findings and recommendations, petitioner may file written 11 | objections with the court and serve a copy on all parties. Such a document should be captioned 12 | “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 13 | he may also address whether a certificate of appealability should issue and, if so, why and as to 14 | which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 15 | applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 16 | 2253(c)(3). Petitioner is advised that failure to file objections within the specified time may 17 | waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 18 | 1991). 19 | Dated: September 21, 2020 Ci ide f | fe 20 CAROLYN K. DELANEY : 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 12/bosw0798.summdismiss.docx 28