(HC)Sepeda v. Fresno County, California ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TONY SEPEDA, Case No. 1:22-cv-00522-SAB-HC 12 Petitioner, FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF 13 v. PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE 14 FRESNO COUNTY, CALIFORNIA, ORDER DIRECTING CLERK OF COURT 15 Respondent. TO RANDOMLY ASSIGN DISTRICT JUDGE 16 17 Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 18 U.S.C. § 2254. 19 I. 20 BACKGROUND 21 On May 3, 2022, Petitioner filed the instant petition for writ of habeas corpus challenging 22 his 2008 Fresno County Superior Court convictions and sentence. (ECF No. 1). On May 13, 23 2022, the Court granted Petitioner leave to file an amended petition given that the petition did 24 not name a proper respondent, failed to specify all grounds for relief and state the facts 25 supporting each ground, failed to state a cognizable federal habeas claim, and indicated that the 26 claims raised were not exhausted. The order was served on Petitioner and contained notice that 27 an amended petition should be filed within thirty days of the date of service of the order. (ECF No. 4). Petitioner has not filed an amended petition, and the time for doing so has passed. 1 II. 2 DISCUSSION 3 Rule 4 of the Rules Governing Section 2254 Cases (“Habeas Rules”) requires preliminary 4 review of a habeas petition and allows a district court to dismiss a petition before the respondent 5 is ordered to file a response, if it “plainly appears from the petition and any attached exhibits that 6 the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 7 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 8 A. Failure to State a Cognizable Federal Habeas Claim 9 Habeas Rule 2 provides in pertinent part that a petition must “specify all the grounds for 10 relief available to the petitioner” and “state the facts supporting each ground.” Habeas Rule 11 2(c)(1)–(2). “A prime purpose of Rule 2(c)’s demand that habeas petitioners plead with 12 particularity is to assist the district court in determining whether the State should be ordered to 13 ‘show cause why the writ should not be granted.’” Mayle v. Felix, 545 U.S. 644, 656 (2005) 14 (quoting 28 U.S.C. § 2243). Here, the petition merely states “Senate Bill No. 1393” as a ground 15 for relief and does not contain supporting factual allegations of any kind. (ECF No. 1 at 3). 16 California Senate Bill 1393 “allow[s] a trial court to dismiss a serious felony 17 enhancement in furtherance of justice.” People v. Stamps, 9 Cal. 5th 685, 693 (2020). By statute, 18 federal courts “shall entertain an application for a writ of habeas corpus in behalf of a person in 19 custody pursuant to the judgment of a State court only on the ground that he is in custody in 20 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 21 “[T]he second use of ‘in custody’ in the statute requires literally that the person applying for the 22 writ is contending that he is ‘in custody’ in violation of the Constitution or other federal laws.” 23 Bailey v. Hill, 599 F.3d 976, 979 (9th Cir. 2010) (emphasis added). See Dickerson v. United 24 States, 530 U.S. 428, 439 n.3 (2000). Here, however, the petition does not allege a constitutional 25 violation. Whether a serious felony enhancement should be dismissed pursuant to Senate Bill 26 1393 is an issue of state law, and errors of state law do not warrant federal habeas corpus relief. 27 See Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (“[I]t is only noncompliance with 1 courts.”); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“We have stated many times that 2 ‘federal habeas corpus relief does not lie for errors of state law.’ Today, we reemphasize that it is 3 not the province of a federal habeas court to reexamine state-court determinations on state-law 4 questions.” (citations omitted)). As the petition fails to state a cognizable claim for federal 5 habeas relief, it should be dismissed. 6 B. Exhaustion 7 It also appears that Petitioner failed to exhaust the claim that he raises in the instant 8 petition. A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 9 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 10 on comity to the state court and gives the state court the initial opportunity to correct the state’s 11 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 12 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 13 providing the highest state court with a full and fair opportunity to consider each claim before 14 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 15 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 16 The petition states that Petitioner did not seek review in the California Supreme Court 17 and has not filed any petitions, applications, or motions with respect to this conviction in any 18 court other than direct appeal. (ECF No. 1 at 5–6). As it appears Petitioner has not sought relief 19 in the California Supreme Court, the Court cannot proceed to the merits of his claims. 28 U.S.C. 20 § 2254(b)(1). Accordingly, the Court finds that Petitioner’s claim is unexhausted and should be 21 dismissed. 22 III. 23 RECOMMENDATION & ORDER 24 Based on the foregoing, the Court HEREBY RECOMMENDS that the petition for writ of 25 habeas corpus be DISMISSED without prejudice. 26 Further, the Clerk of Court is DIRECTED to randomly assign this action to a District 27 Judge. 1 This Findings and Recommendation is submitted to the United States District Court 2 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 3 | of the Local Rules of Practice for the United States District Court, Eastern District of California. 4 | Within THIRTY (30) days after service of the Findings and Recommendation, Petitioner may 5 | file written objections with the Court and serve a copy on all parties. Such a document should be 6 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 7 | District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 8 | § 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified time may 9 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 10 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 10 IT IS SO ORDERED. FA. ee 13 | Dated: _ July 12, 2022 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28