(HC) Johnson v. St. Andle ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARCUS D. JOHNSON, No. 2:22-cv-1412 TLN AC P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 ST. ANDRE, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an amended petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. 19 I. Background 20 Petitioner challenges 2020 convictions for robbery that included a ten-year gun 21 enhancement, though he does not identify the court in which the conviction took place. ECF No. 22 9 at 1. He appears to argue that the gun enhancement should have been stricken under 23 amendments made to the California Penal Code under Senate Bill (SB) 620 and SB 1893, and that 24 his crime did not constitute a serious felony. Id. at 4-5. 25 II. Discussion 26 Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts 27 (Habeas Rules) requires the court to summarily dismiss a habeas petition, “[i]f it plainly appears 28 from the petition and any attached exhibits that the petitioner is not entitled to relief in the district 1 court.” As set forth below, the petition appears to be unexhausted and fails to state a cognizable 2 claim for relief. 3 As an initial matter, because petitioner represents that he has not presented his claim to the 4 California Supreme Court (ECF No. 9 at 1-3), the petition is unexhausted on its face and should 5 be dismissed. 28 U.S.C. § 2254(b)(1) (a petition for writ of habeas corpus “shall not be granted 6 unless it appears that the applicant has exhausted the remedies available in the courts of the State; 7 or there is an absence of available State corrective process” or circumstances render the process 8 ineffective); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985) (the exhaustion requirement 9 is met by providing the highest state court with a full and fair opportunity to consider all claims 10 before presenting them to the federal court). However, even if the petition were exhausted, 11 dismissal would be proper because if fails to state a cognizable claim for relief. 12 A petitioner may seek federal habeas relief from a state-court conviction or sentence “only 13 on the ground that he is in custody in violation of the Constitution or laws or treaties of the United 14 States.” 28 U.S.C. § 2254(a). Habeas relief is not available for state law errors of any kind. 15 Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). Matters relating solely to the 16 interpretation or application of state law are not cognizable on federal habeas review. Lewis v. 17 Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie for errors of state 18 law.” (citations omitted)). 19 Petitioner’s apparent claims that he is eligible to, and therefore should, have his firearm 20 enhancement struck under amendments made by SB 620 and SB 1893 are not cognizable in 21 federal habeas because they are purely questions of state law interpretation and application. 22 Similarly, any challenge to petitioner’s sentence based upon the state court’s determination that 23 his crime constituted a serious felony is purely a question of state law. Any question as to the 24 applicability of either SB 620 or SB 1893 to petitioner, or as to whether petitioner’s crime 25 constituted a serious felony, does not and cannot state a claim for federal habeas relief because 26 challenges to a state court’s interpretation or application of state sentencing laws does not give 27 rise to a federal question cognizable in federal habeas. Estelle v. McGuire, 502 U.S. 62, 67-68 28 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations 1 on state-law questions.” (citation omitted)); Middleton, 768 F.2d at 1085 (habeas relief “is 2 unavailable for alleged error in the interpretation or application of state law” (citation omitted)); 3 Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (declining to address “[w]hether 4 assault with a deadly weapon qualifies as a ‘serious felony’ under California’s sentence 5 enhancement provisions [because it] is a question of state sentencing law” (citation omitted)). 6 The exception is if “the state court’s finding was so arbitrary or capricious as to constitute an 7 independent due process or Eighth Amendment violation.” Lewis, 497 U.S. at 780 (citation 8 omitted). However, petitioner makes no showing that the state court acted in an arbitrary or 9 capricious manner. 10 Petitioner has already been given an opportunity to amend the petition and was cautioned 11 that to state a claim based on a sentencing error he “must show that an alleged state sentencing 12 error was ‘so arbitrary or capricious as to constitute an independent due process violation.’” ECF 13 No. 7 at 2 (quoting Richmond v. Lewis, 506 U.S. 40, 50 (1992)). In amending the petition, 14 petitioner has not provided any additional facts to support such a finding and it therefore appears 15 that further amendment would not result in a cognizable claim. 16 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of 17 habeas corpus be dismissed. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 20 after being served with these findings and recommendations, petitioner may file written 21 objections with the court. Such a document should be captioned “Objections to Magistrate 22 Judge’s Findings and Recommendations.” If petitioner files objections, he shall also address 23 whether a certificate of appealability should issue and, if so, why and as to which issues. See 28 24 U.S.C. § 2253(c)(2). Petitioner is advised that failure to file objections within the specified time 25 //// 26 //// 27 //// 28 //// 1 || may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th 2 | Cir. 1991). 3 || DATED: March 20, 2023 ~ 4 Chthtenr— LMhane_ ALLISON CLAIRE 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28