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

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 TIMOTHY SOLOMON, Case No. 2:21-cv-00718-JDP (HC) 10 Petitioner, ORDER THAT THE CLERK OF COURT ASSIGN A DISTRICT JUDGE TO RULE ON 11 v. THESE FINDINGS AND RECOMMENDATIONS 12 UNITED STATES DISTRICT COURT, FINDINGS AND RECOMMENDATIONS 13 Respondent. THAT THIS ACTION BE DISMISSED FOR FAILURE TO STATE A COGNIZABLE 14 FEDERAL HABEAS CLAIM 15 ECF No. 10 16 17 Petitioner, proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. 18 § 2254. I previously found that his first petition did not state a cognizable claim and offered him 19 leave to amend. ECF No. 7. He has now filed an amended petition that, for the reasons stated 20 below, also does not state a cognizable claim. ECF No. 10. 21 The amended petition is before me for preliminary review under Rule 4 of the Rules 22 Governing Section 2254 Cases. Under Rule 4, the assigned judge must examine the habeas 23 petition and order a response to the petition unless it “plainly appears” that the petitioner is not 24 entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. 25 Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 26 As in his initial petition, petitioner argues that he is entitled to sentencing relief under 27 California Senate Bill No. 136. ECF No. 10 at 4, 6. That claim invokes only a question of state 28 sentencing law and is not cognizable on federal habeas review. See Lewis v. Jeffers, 497 U.S. 1 764, 780 (1990). Exceptions exist where the alleged error of state sentencing law is “so arbitrary 2 or capricious as to constitute an independent due process” violation, Richmond v. Lewis, 506 U.S. 3 40 (1992), but nothing in the petition indicates that this high bar has been met. Instead, petitioner 4 argues only that he meets the criteria for relief under Senate Bill No. 136. Whether that is the 5 case is a question of state law that the California courts must decide. 6 Separately, petitioner claims that he is entitled to additional state sentencing relief by way 7 of California Assembly Bill No. 1618, which provides, in relevant part, that “a plea bargain that 8 requires a defendant to generally waive future benefits of legislative enactments, initiatives, 9 appellate decisions, or other changes in the law that may retroactively apply after the date of the 10 plea is void as against public policy.” See Cal. Penal Code § 1016.8(b). This claim also relates 11 only to state sentencing law and so fails for the same reasons as does petitioner’s claim based on 12 Senate Bill No. 136. 13 Petitioner has already been afforded one opportunity to amend, and he is no closer to 14 stating a cognizable federal habeas claim. I will, therefore, recommend that this action be 15 dismissed. 16 It is ORDERED that the Clerk of Court shall assign a district judge to rule on these 17 findings and recommendations. 18 It is RECOMMENDED that petitioner’s amended petition, ECF No. 10, be dismissed 19 without leave to amend for failure to state a cognizable federal habeas claim. 20 These findings and recommendations are submitted to the U.S. District Court Judge 21 presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of 22 Practice for the United States District Court, Eastern District of California. Within fourteen days 23 of service of the findings and recommendations, petitioner may file written objections to the 24 findings and recommendations with the court. That document must be captioned “Objections to 25 Magistrate Judge’s Findings and Recommendations.” The District Judge will then review the 26 findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 27 28 1 > IT IS SO ORDERED. 3 | { Wine Dated: _ October 20, 2021 Q_—_—. 4 JEREMY D. PETERSON 5 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28