(HC) Solomon v. United States District Court ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY SOLOMON, Case No. 2:21-cv-00718-JDP (HC) 12 Petitioner, ORDER GRANTING PETITIONER’S APPLICATION TO PROCEED IN FORMA 13 v. PAUPERIS 14 UNITED STATES DISTRICT COURT, ECF No. 4 15 Respondent. ORDER FINDING THAT THE PETITION DOES NOT STATE A COGNIZABLE 16 FEDERAL CLAIM AND GIVING LEAVE TO AMEND WITHIN SIXTY DAYS 17 ECF No. 1 18 19 Petitioner is a state prisoner seeking a writ of habeas corpus under 28 U.S.C. § 2254. ECF 20 No. 1. The petition is before me for preliminary review under Rule 4 of the Rules Governing 21 Section 2254 Cases. Under this rule, the assigned judge must examine the habeas petition and 22 order a response unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez 23 v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th 24 Cir. 1998). Here, it plainly appears that petitioner is not entitled to relief. I will give petitioner an 25 opportunity to amend before recommending that the petition be dismissed. I will also grant his 26 application to proceed in forma pauperis. ECF No. 4. 27 Petitioner argues that he is entitled to sentencing relief under California Senate Bill No. 28 136. ECF No. 1 at 3, 7. This claim is not cognizable for at least two reasons. First, the 1 | application of state sentencing law generally does not present a federal question. Lewis v. Jeffers, 2 | U.S. 764, 780 (1990). Such a claim is only cognizable where the state law sentencing error 3 | was “so arbitrary or capricious as to constitute an independent due process” violation. Richmond 4 | v. Lewis, 506 U.S. 40 (1992). Petitioner has not alleged facts showing that California’s refusal to 5 | extend him the benefits of SB 136 meets that high standard. 6 Second, petitioner admits that he has not exhausted his claim by presenting it to the 7 | California Supreme Court. ECF No. 1 at 5; McQuown v. McCartney, 795 F.2d 807, 809 (9th Cir. 8 | 1986). Exhaustion is required unless petitioner can show that no state remedies remain available 9 | tohim. 7d. Given that petitioner’s claim centers on the application of state sentencing law, it 10 | appears that the California Supreme Court could offer him relief. 11 I will give petitioner an opportunity to amend his petition and to explain why his claim 12 | should proceed. 13 It is ORDERED that: 14 1. Petitioner’s application to proceed in forma pauperis, ECF No. 4, is granted. 15 2. Petitioner may file an amended petition within sixty days of this order’s entry. If 16 | he does not, I will recommend that the current petition be dismissed for the reasons stated in this 17 | order. 18 3. The Clerk of Court is directed to send petitioner a federal habeas form. 19 20 IT IS SO ORDERED. 21 ( ‘tity — Dated: _ June 22, 2021 22 JEREMY D. PETERSON 74 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28