(HC) West v. Cates ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY WEST, JR., Case No. 2:21-cv-00410-KJM-JDP (HC) 12 Petitioner, ORDER FINDING THAT THE PETITION DOES NOT STATE A COGNIZABLE 13 v. FEDERAL CLAIM AND GIVING LEAVE TO AMEND WITHIN SIXTY DAYS 14 BRIAN CATES, ECF No. 1 15 Respondent. 16 17 18 Petitioner Jerry West, Jr., a state prisoner proceeding without counsel, seeks a writ of 19 habeas corpus under 28 U.S.C. § 2254. ECF No. 1. The petition is before me for preliminary 20 review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge 21 assigned to the habeas proceeding must examine the habeas petition and order a response to the 22 petition unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. 23 Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th 24 Cir. 1998). For the reasons stated below, it plainly appears that petitioner is not entitled to relief. 25 I will give petitioner an opportunity to amend before recommending that the petition be 26 dismissed. 27 28 1 Petitioner raises two claims. First, he argues that the state appellate court should have 2 || remanded his case so that the trial court could exercise its discretion, under California state law, 3 | to strike a five-year prior serious felony sentencing enhancement. ECF No. | at 2. Buta state 4 | court’s interpretation of state sentencing laws is not reviewable by a federal habeas court. See 5 | Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (rejecting claim that a state court misapplied its own 6 | aggravating circumstance because “federal habeas corpus relief does not lie for errors of state law 7 | ...."); see also Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In conducting habeas review, a 8 | federal court is limited to deciding whether a conviction violated the Constitution, laws, or 9 | treaties of the United States.”). 10 Second, petitioner argues that the trial court violated his due process rights by imposing 11 mandatory fees without assessing whether he had the ability to pay for them. The Supreme Court 12 | has held that a state may not impose a fine as a sentence and then convert it into a jail term solely 13 || because of a defendant’s indigency. Bearden v. Georgia, 461 U.S. 660, 667-68 (1983). But the 14 | brief attached to the petition concedes that petitioner is not incarcerated because of his indigency. 15 | □□□ □□□ | at 39. The Ninth Circuit has held that petitions that attack restitution but would not 16 | directly impact a petitioner’s liberty are not cognizable on federal habeas review. See Bailey v. 17 | Hill, 599 F.3d 976, 981 (9th Cir. 2010). 18 I will allow petitioner to amend his petition before I recommend that it be dismissed. 19 It is ORDERED that: 20 1. Petitioner may file an amended petition within sixty days of this order’s entry. If 21 | he does not, I will recommend that the current petition be dismissed for the reasons stated in this 22 | order. 23 2. The Clerk of Court is directed to send petitioner a federal habeas form. 24 95 IT IS SO ORDERED. 26 | q Sty — Dated: _ April 26, 2021 □□ 27 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE