(HC) Roberson v. People of the State of CA ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARLON ROBERSON, Case No. 2:22-cv-01557-JDP (HC) 12 Petitioner, ORDER THAT THE CLERK OF COURT ASSIGN A DISTRICT JUDGE TO THIS 13 v. ACTION 14 PEOPLE OF THE STATE OF FINDINGS AND RECOMMENDATIONS CALIFORNIA & S. PEERY, THAT THE FIRST AMENDED PETITION BE 15 DISMISSED FOR FAILURE TO STATE A Respondents. COGNIZABLE CLAIM 16 ECF No. 8 17 18 Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus 19 under 28 U.S.C. § 2254. I reviewed the initial petition, ECF No. 1, and found that it did not state 20 a claim. ECF No. 7. I gave petitioner leave to amend, and he has done so. ECF No. 8. The 21 amended petition, like its predecessor, also fails to state a claim. Accordingly, I recommend that 22 it 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 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 1 Petitioner alleges that, in 2016, he was sentenced to six years in prison for an unspecified 2 | crime. ECF No. 8 at 4. Then, in 2018, he was convicted of a different crime and, during 3 | sentencing, the court added one year and four months to the 2016 sentence. Jd. Petitioner claims 4 | that this addition was a violation of the Fifth Amendment’s Double Jeopardy Clause. Id. The 5 | Supreme Court has deemed double jeopardy protection inapplicable to sentencing proceedings. 6 | See Monge v. Cal., 524 U.S. 721, 728 (1998) (noting that “[h]istorically, we have found double 7 || jeopardy protections inapplicable to sentencing proceedings ....”). It has also held that “the 8 | Double Jeopardy Clause does not require that a sentence be given a degree of finality that 9 | prevents its later increase.” United States vy. DiFrancesco, 449 U.S. 117, 137 (1980). Thus, the 10 || petition fails to state a cognizable federal claim. 11 Accordingly, it is ORDERED that the Clerk of Court shall assign a district judge to this 12 | action. 13 Further, it is RECOMMENDED that the amended petition, ECF No. 8, be DISMISSED 14 | without leave to amend for failure to state a cognizable federal habeas claim. 15 These findings and recommendations are submitted to the U.S. District Court Judge 16 | presiding over this case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of 17 | Practice for the United States District Court, Eastern District of California. Within fourteen days 18 | of service of the findings and recommendations, petitioner may file written objections to the 19 | findings and recommendations with the court and serve a copy on all parties. That document 20 | must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 21 | District Judge will then review the findings and recommendations under 28 U.S.C. 22 | § 636(b))(C). 23 IT IS SO ORDERED. 25 ( q oy — Dated: _ January 23, 2023 ow—— 26 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 28