(HC) Proby v. Ross ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM DEON PROBY, No. 2:21-cv-0852 DB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 TAMMY ROSS, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. Petitioner paid the filing fee. (ECF No. 1 at 1.) Plaintiff seeks 19 modification of the sentence imposed by the Sacramento County Superior Court in 1996. 20 Presently before the court is the petition for screening. For the reasons set forth below, the court 21 will recommend that the petition be dismissed without leave to amend. 22 SCREENING 23 I. Screening Requirement 24 Under Rule 4 of the Rules Governing Section 2254 Cases, this court is required to conduct 25 a preliminary review of all petitions for writ of habeas corpus filed by state prisoners. Pursuant to 26 Rule 4, this court must summarily dismiss a petition if it “plainly appears from the petition and 27 any attached exhibits that the petitioner is not entitled to relief in the district court.” 28 //// 1 II. The Petition 2 Petitioner was convicted of first-degree murder with special circumstances, robbery, 3 assault with a deadly weapon, and eluding a police officer on August 19, 1996. (ECF No. 1 at 1.) 4 He was sentenced to life without the possibility of parole plus 38 years in prison. (Id.) Petitioner 5 argues he is entitled to a reduction of his sentence based on California Senate Bill 1437. (Id. at 6 5.) 7 III. Sole Ground Alleged is not Cognizable in Federal Habeas 8 “Senate Bill 1437 made statutory changes altering the definitions of malice and first and 9 second degree murder.” People v. Martinez, 31 Cal.App.5th 719, 722 (2019). Senate Bill 1437 10 amends several sections of the California Penal Code and adds language to Penal Code § 1170.95, 11 “which provides a procedure by which those convicted of murder can seek retroactive relief if the 12 changes in law would affect their previously sustained convictions.” Id. 13 Petitioner’s sole allegation in the petition is that the state court erred when it failed to 14 grant his petition for resentencing. (ECF No. 1 at 5.) Such a claim is not cognizable on federal 15 habeas review because whether petitioner is entitled to relief under the change to Penal Code § 16 1170.95 et seq. is solely a matter of state law. See Smith v. Phillps, 455 U.S. 209, 221 (1982) (“A 17 federally issued writ of habeas corpus reaches only convictions obtained in violation of some 18 provisions of the United States Constitution.”); see also Estelle v. McGuire, 502 U.S. 62, 67-68 19 (1991) (“In conducting habeas review, a federal court is limited to deciding whether a conviction 20 violated the Constitution laws or treaties of the United States.”). 21 A petitioner may seek federal habeas relief from a state court conviction or sentence “only 22 on the ground that he is in custody in violation of the Constitution or laws or treaties of the United 23 States.” 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam). A 24 mere error by a state court in the interpretation or application of its own state’s sentencing laws, 25 without more, is not a cognizable ground for relief in a federal habeas corpus proceeding. See, 26 e.g., Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“federal habeas corpus relief does not lie for 27 errors of state law”); Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993) (rejecting federal 28 habeas claim that sentencing court erred when it failed to “merge” multiple convictions under 1 state law because “[t]here is no federal Constitutional right to merger of convictions for purposes 2 of sentencing,” and Petitioner’s claim was “exclusively concerned with state law and therefore 3 [was] not cognizable in a federal habeas corpus proceeding” (bracketed material added)); Miller 4 v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (whether assault with deadly weapon was 5 serious felony under state enhancement statue was state law question not cognizable on federal 6 habeas review). Petitioner may not “transform a state-law issue” into a federal one merely by 7 labeling it a constitutional violation. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 199) (as 8 amended Apr. 14, 1997). 9 The court finds that the allegations in the petition are not cognizable in federal habeas 10 proceedings because the sole ground alleges nothing more than an error in the application of state 11 law. Petitioner’s allegation that he is entitled to relief based on Senate Bill 1437 which amended 12 California Penal Code § 1170.95 is not cognizable in federal habeas. See Cole v. Sullivan, 480 F. 13 Supp. 3d 1089, 1097 (C.D. Cal. 2020) (finding claim that denial of petition for resentencing under 14 § 1170.95 was not cognizable in federal habeas proceeding); Matlock v. Kibler, No. 2:21-cv-0271 15 GGH P, 2021 WL 1566467 at *1 (E.D. Cal. Mar. 22, 2021) (dismissing petition alleging state 16 court error in denying petition for resentencing pursuant to § 1170.95) findings and 17 recommendations adopted, No. 2:21-cv-0271 WBS GGH P, 2021 WL 1561954 (E.D. Cal. Apr. 18 21, 2021). Accordingly, the court will recommend that the petition be dismissed without leave to 19 amend. 20 CONCLUSION 21 For the reasons set forth above, the Clerk of the Court is ORDERED to randomly assign 22 this action to a District Judge. 23 IT IS HEREBY RECOMMENDED that the petition be dismissed without leave to amend. 24 These findings and recommendations will be submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty (20) days 26 after being served with these findings and recommendations, petitioner may file written 27 objections with the court and serve a copy on all parties. The document should be captioned 28 “Objections to Magistrate Judge's Findings and Recommendations.” In his objections, petitioner 1 | may address whether a certificate of appealability should issue in the event he files an appeal of 2 | the judgment in this case. See 28 U.S.C. § 2253(c) (absent a certificate of appealability, an 3 | appeal may not be taken from the final decision of a district judge in a habeas corpus proceeding 4 | ora proceeding under 28 U.S.C. § 2255). Failure to file objections within the specified time may 5 | result in waiver of the right to appeal the district court's order. Martinez v. YIst, 951 F.2d 1153 6 | (9th Cir. 1991). 7 8 | Dated: September 27, 2021 Mliaad™>_ 10 ll ORAH BARNES UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 DB:12 18 || DB/DB Prisoner Inbox/Habeas/$/prob0852.scrn fr 19 20 21 22 23 24 25 26 27 28