(HC) Thomas v. Covello ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT EARL THOMAS, Case No. 2:21-cv-01121-WBS-JDP (HC) 12 Petitioner, ORDER GRANTING PETITIONER’S APPLICATION TO PROCEED IN FORMA 13 v. PAUPERIS 14 PATRICK COVELLO, ECF No. 2 15 Respondent. ORDER FINDING THAT THE PETITION DOES NOT STATE A COGNIZABLE CLAIM 16 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 Rule 4, the judge assigned to the habeas proceeding must examine 22 the habeas petition and order a response to the petition unless it “plainly appears” that the 23 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); 24 Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). The petition cannot proceed because the 25 single claim at issue is not adequately described. 26 Petitioner states that he accepted a plea bargain and pled guilty to voluntary manslaughter 27 in San Joaquin Superior Court in 2015. ECF No. 1 at 1. He was sentenced in 2016 and now, 28 more than five years later, alleges that his sentence is “illegal.” Id. at 16. Petitioner vaguely 1 | argues that “[o]n the face of the record presented to the State courts it appears a breach in a plea 2 | agreement has occurred ....” Jd. at 18. The petition never provides the specifics of the 3 | agreement or explains how it was breached, however.! Cursory and vague claims, like that here, 4 | cannot support habeas relief. See Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011). I will 5 || give petitioner leave to amend so that he may describe his claim in greater detail. 6 It is ORDERED that: 7 1. Petitioner’s application to proceed in forma pauperis, ECF No. 2, is granted. 8 2. Petitioner may file an amended petition within sixty days of this order’s entry. If 9 | he does not, I will recommend that the current petition be dismissed for the reasons stated in this 10 | order. 11 3. The Clerk of Court is directed to send petitioner a federal habeas form. 12 3 IT IS SO ORDERED. 14 ( ! — Dated: _ August 5, 2021 Q_—— 15 JEREMY D. PETERSON 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 ' Petitioner does state that, after accepting the plea agreement, the trial court used one of 24 | the dismissed enhancements to add four years to his sentence. ECF No. | at 14-15. I cannot tell > if this is the crux of his habeas petition or an ancillary claim. Regardless, state law sentencing 5 issues, absent an extraordinary circumstance, do not give rise to a federal habeas question. See, 26 || ¢-8-» Makal v. Arizona, 544 F.2d 1030, 1035 (9th Cir. 1976) (“So long as the type of punishment is not based upon any proscribed federal grounds such as being cruel and unusual, racially or 27 | ethnically motivated, or enhanced by indigency, the penalties for violations of state statutes are matters of state concern.”). In any event, petitioner may address why this claim should proceed in 28 | his amended petition, if he chooses to file one.