(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-KJM-JDP (HC) 10 Petitioner, FINDINGS AND RECOMMENDATIONS THAT THE PETITION BE DISMISSED FOR 11 v. FAILURE TO STATE A COGNIZABLE CLAIM 12 PATRICK COVELLO, ECF Nos. 1 & 10 13 Respondent. 14 15 Petitioner, proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. 16 § 2254. He argues that the state court erred when it imposed a ten-year sentencing enhancement 17 under state law. ECF No. 1 at 3. I previously screened his petition and found that this claim 18 implicated only state law and was, therefore, non-cognizable on federal habeas review. ECF No. 19 7. I offered plaintiff an opportunity to amend his complaint and to explain why his claim should 20 proceed. Id. Rather than file a new petition, petitioner has filed a short response arguing that the 21 enhancement violates his federal due process rights. ECF No. 10 at 2. I find this argument 22 unpersuasive and now recommend that the petition be dismissed. 23 The petition is before me for preliminary review under Rule 4 of the Rules Governing 24 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine 25 the habeas petition and order a response to it unless it “plainly appears” that the petitioner is not 26 entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. 27 Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 28 As I explained in my previous screening order, errors of state law do not generally give 1 || rise to cognizable federal habeas claims. See 28 U.S.C. § 2254(a) (federal habeas relief available 2 | only where a person is “in custody in violation of the Constitution or laws or treaties of the 3 | United States”); Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have stated many 4 | times that federal habeas corpus relief does not lie for errors of state law.”) (internal quotation 5 | omitted); see also Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (“Whether assault 6 | with a deadly weapon qualifies as a ‘serious felony’ under California's sentence enhancement 7 || provisions is a question of state sentencing law.”). And petitioner cannot, as he attempts in the 8 || response here, turn a state law claim into a federal one simply by alleging a violation of his 9 | federal due process rights. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). 10 Accordingly, it is RECOMMENDED that the petition, ECF No. 1, be DISMISSED 11 | without leave to amend for failure to state a cognizable federal habeas claim. 12 These findings and recommendations are submitted to the U.S. District Court Judge 13 | presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of 14 | Practice for the United States District Court, Eastern District of California. Within fourteen days 15 | of service of the findings and recommendations, petitioner may file written objections to the 16 | findings and recommendations with the court and serve a copy on all parties. That document 17 | must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 18 || District Judge will then review the findings and recommendations under 28 U.S.C. 19 | § 636(b)1)(C). 20 IT IS SO ORDERED. 22 ( q Sty - Dated: _ November 3, 2022 Q_-——_ 23 JEREMY D,. PETERSON UNITED STATES MAGISTRATE JUDGE 25 26 27 28