(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 FINDING THAT THE PETITION DOES NOT STATE A COGNIZABLE CLAIM 13 v. AND GIVING LEAVE TO AMEND WITHIN SIXTY DAYS 14 UNITED STATES DISTRICT COURT, ECF No. 8 15 Respondent. 16 17 Timothy Solomon, a state prisoner proceeding without counsel, seeks a writ of habeas 18 corpus under 28 U.S.C. § 2254. His initial petition argued only that he was entitled to sentencing 19 relief under California Senate Bill No. 136. ECF No. 1 at 3,7. I screened that petition and 20 advised him that the claim was non-cognizable because it implicated only questions of state law. 21 See Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In conducting habeas review, a federal court is 22 limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United 23 States.”). I did not recommend dismissal after the first screening order, however, and gave 24 petitioner a chance to file an amended petition explaining why his claims implicated a federal 25 question. After review of the amended petition, ECF No. 8, I find that I cannot tell whether the 26 newly added federal claims have been exhausted by being presented to the California Supreme 27 28 1 Court.1 Additionally, the new claims are too vaguely pled to proceed. I will give petitioner one 2 final chance to amend in order to address these issues. 3 The amended petition is before me for preliminary review under Rule 4 of the Rules 4 Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must 5 examine the habeas petition and order a response to the petition unless it “plainly appears” that 6 the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 7 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 8 In the amended petition, petitioner states that his conviction was finalized in the Shasta 9 County Superior Court in 2017. ECF No. 8 at 1. Curiously, he indicates that he waited to pursue 10 a direct appeal until 2021. Id. at 2. That direct appeal proceeded first to the Shasta County 11 Superior Court, then to the California Appellate Court for the Third District, and finally to the 12 United States Supreme Court. Id. at 2. He states that other than these direct appeals, he has not 13 filed any other cases attacking his conviction. Id. Thus, it appears that petitioner did not properly 14 exhaust his claims by presenting them to the California Supreme Court.2 See, e.g., 28 U.S.C. 15 § 2254(b)(1)(A); Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam). 16 Unlike the original, the amended petition contains new, constitutional claims relating to 17 petitioner’s conviction. ECF No. 8 at 4. These newly added federal claims are too vague to 18 proceed. Petitioner argues that the trial court violated his rights by admitting a recording of a 911 19 call without requiring the victim—who presumably made the call—to testify. ECF No. 8 at 4. 20 Petitioner does not describe the content of the 911 call or how he was prejudiced by its admission. 21 Separately, he argues that his rights were violated when the victim was treated as an unavailable 22 witness because of her invocation of the Fifth Amendment. Id. But again, he does not describe 23 how the victim’s failure to testify prejudiced him. These claims must be described in greater 24 detail so that the respondent, if they are ultimately served, has notice of their content. 25 1 I also flagged this issue for petitioner in my previous order. ECF No. 7 at 2. 26 2 Petitioner did check the box indicating that he appealed a habeas petition to the highest 27 state court. ECF No. 8 at 3. However, this “check the box” is at odds with a separate “check the box” that confirms that he did not file any habeas petitions, aside from this federal one, attacking 28 his conviction. Id. at 2. 1 I will give petitioner a final opportunity to file an amended petition that explains the issues 2 | identified above. If petitioner does not file another amended petition, I will recommend that this 3 | action be dismissed. 4 It is therefore ORDERED that: 5 1. Petitioner may file an amended petition within sixty days of this order’s entry. If 6 | he does not, I will recommend that the current petition be dismissed for the reasons stated in this 7 | order. 8 2. The Clerk of Court is directed to send petitioner a federal habeas form. 9 10 IT IS SO ORDERED. ( ie - Dated: _ August 5, 2021 Q_—— 12 JEREMY D. PETERSON 3 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28