(HC) Glass v. Covello ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 DANIEL AVERY GLASS, JR., Case No. 2:22-cv-01383-JDP (HC) 10 Petitioner, ORDER FINDING THAT THE PETITION DOES NOT STATE A COGNIZABLE 11 v. SECTION 2254 CLAIM AND GRANTING LEAVE TO AMEND WITHIN THIRTY 12 PATRICK COVELLO, DAYS 13 Respondent. ECF No. 1 14 15 Petitioner, proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. 16 § 2254. His sole claim is that the trial court erred under California state law when it imposed a 17 ten-year enhancement. ECF No. 1 at 3. This claim implicates only state sentencing laws and is 18 not cognizable. I will grant petitioner leave to amend and explain why this claim should proceed. 19 The amended petition is before me for preliminary review under Rule 4 of the Rules 20 Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must 21 examine the habeas petition and order a response to it unless it “plainly appears” that the 22 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); 23 Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 24 Claims based on a state’s misapplication of its own sentencing laws generally do not give 25 rise to cognizable federal habeas claims. See 28 U.S.C. § 2254(a) (federal habeas relief available 26 only where a person is “in custody in violation of the Constitution or laws or treaties of the 27 United States”); see also Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have stated many 28 times that federal habeas corpus relief does not lie for errors of state law.”) (internal quotation 1 | marks omitted). Petitioner’s sole claim that the trial court erred in imposing an enhancement does 2 | not give rise to any alleged violation of the Constitution or the laws of the United States. In rare 3 | circumstances, a misapplication of state sentencing law can be “‘so arbitrary or capricious as to 4 | constitute an independent due process” violation. Richmond v. Lewis, 506 U.S. 40, 50 (1992). 5 | Here, petitioner has not alleged facts or made argument establishing those circumstances. He 6 | may attempt to do so if he elects to file an amended petition. 7 It is ORDERED that: 8 1. Petitioner may file an amended § 2254 petition within thirty days of this order’s 9 | entry. If he does not, I will recommend that the current petition be dismissed for the reasons 10 || stated in this order. 11 2. The Clerk of Court is directed to send petitioner a federal habeas form with this 12 | order. 13 4 IT IS SO ORDERED. 15 ( 1 ow — Dated: _ August 11, 2022 Q_—— 16 JEREMY D. PETERSON 7 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28