Johnson v. Harrington

Filing 14

ORDER GRANTING Respondent's Motion to Dismiss the Instant Petition for Failure to State a Cognizable Claim 12 , DIRECTING Clerk of Court to Terminate Action, and DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, signed by District Judge Lawrence J. O'Neill on 6/17/10. (CASE CLOSED) (Hellings, J)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 KELLY HARRINGTON, 13 Respondent. 14 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2254. 17 BACKGROUND 18 Petitioner filed the instant petition for writ of habeas corpus on February 22, 2010. 19 (Court Doc. 1.) Respondent filed the instant motion to dismiss on April 23, 2010, for lack of 20 subject matter jurisdiction. (Court Doc. 12.) Petitioner did not file an opposition. 21 DISCUSSION 22 I. 23 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 24 petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not 25 entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases. 26 /// 27 28 1 Procedural Grounds for Motion to Dismiss / [Doc. 12] v. SHAWN P. JOHNSON, Petitioner, 1:10-cv-00300-LJO-DLB (HC) ORDER GRANTING RESPONDENT'S MOTION TO DISMISS THE INSTANT PETITION FOR FAILURE TO STATE A COGNIZABLE CLAIM, DIRECTING CLERK OF COURT TO TERMINATE ACTION, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

UNITED STATES DISTRICT COURT

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II.

Failure to State a Cognizable Claim In the instant petition, Petitioner's sole claim for relief challenges a 2007 amendment to

California Penal Code section 2085.5 as a violation of the Ex Post Facto Clause. A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the "legality or duration" of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. In this instance, Petitioner's challenge to the collection of his restitution fine does not implicate the legality or duration of his conviction. Therefore, section 2254 is not the proper avenue for presenting this claim. Moreover, Petitioner's challenge arises solely under California law. Under the plain language of section 2254, a prisoner is not entitled to federal habeas corpus relief if he can demonstrate he is in custody in violation of the United States Constitution or federal laws. 28 U.S.C. § 2254(a). Therefore, a claim arising strictly under state law is not cognizable in a federal habeas corpus proceeding. Pulley v. Harris, 465 U.S. 37, 41 (1984) ("A federal court may not issue the writ on the basis of a perceived error of state law."); Gutierrez v. Griggs, 695 F.2d 1195, 1197-1198 (9th Cir. 1983). In this instance, Petitioner challenges only the 2007 amendment to section 2085.5 and it relates only to California law regarding the policy of victim restitution. Petitioner cannot convert his state law claims into federal questions merely by labeling it as a federal due process violation. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). Accordingly, Petitioner's claim is not cognizable as it raises purely a state law question, and the petition must be dismissed. ORDER Based on the foregoing, it is HEREBY ORDERED that: 1. Respondent's motion to dismiss the instant petition for failure to state a cognizable claim is GRANTED; 2. The Clerk of Court is directed to terminate the action; and 2

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3.

The court declines to issue a Certificate of Appealability. 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (in order to obtain a COA, petitioner must show: (1) that jurists of reason would find it debatable whether the petition stated a valid claim of a denial of a constitutional right; and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the present case, the Court does not find that jurists of reason would not find it debatable whether the petition was properly dismissed for failure to state a cognizable claim 28 U.S.C. § 2254. Petitioner has not made the required substantial showing of the denial of a constitutional right. IT IS SO ORDERED. June 17, 2010 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

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