Lucero v. McDonald

Filing 41

FINDINGS and RECOMMENDATION to Dismiss as Moot Petitioner's Request for Reconsideration of Dismissal of State Law Claims 32 ; Objection Deadline: Thirty (30) Days After Service of This Order, signed by Magistrate Judge Sheila K. Oberto on 4/12/12: Matter referred to Judge Ishii. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALBERT ANDREW LUCERO,
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Petitioner,
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v.
MIKE D. McDONALD,
Respondent.

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1:10-cv—01714-AWI-SKO-HC
FINDINGS AND RECOMMENDATION TO
DISMISS AS MOOT PETITIONER’S
REQUEST FOR RECONSIDERATION OF
DISMISSAL OF STATE LAW CLAIMS
(DOC. 32)
OBJECTIONS DEADLINE:
THIRTY (30) DAYS AFTER SERVICE
OF THIS ORDER

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Petitioner is a state prisoner proceeding pro se and in
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forma pauperis with a petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2254.

Before Respondent was directed to respond

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to the petition, Petitioner had consented to the jurisdiction of
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the United States Magistrate Judge pursuant to 28 U.S.C.
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§ 636(c)(1) to conduct all further proceedings in the case,
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including the entry of final judgment, by manifesting consent in
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a signed writing filed by Petitioner on December 2, 2010 (doc.
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8), and entered on the docket on December 10, 2010.

Respondent

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subsequently declined to consent to the jurisdiction of the
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Magistrate Judge.

Pending before the Court is Petitioner’s

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request for reconsideration of the dismissal of two state law

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claims from his first amended petition (FAP).

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I.

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On August 24, 2011, Petitioner’s initial petition was

Background

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dismissed with leave to amend.

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petition (FAP) on September 29, 2011.

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Petitioner alleged a violation of his right to confrontation

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based on state and federal law.

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alleged that insufficiency of the evidence resulted in a

Petitioner filed a first amended
In the second claim,

In the third claim, Petitioner

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violation of his due process rights based on both state and

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federal law.

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claims in part without leave to amend, but the dismissal was only

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as to those claims that rested on state law.

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ordered Respondent to respond to the FAP.

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On December 8, 2011, the Court dismissed the two

The Court further

On February 1, 2012, Petitioner filed a motion for

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reconsideration of the dismissal of the second and third claims

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in the FAP.

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based on federal law, and thus should not have been dismissed.

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He therefore asks the Court to reconsider the dismissal of the

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claims so that their federal basis will be before the Court.

Petitioner contends that these claims were actually

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Petitioner’s second and third claims still stand in the FAP

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to the extent that they are based on federal law, and Respondent

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has in effect been ordered to respond to the federal claims.

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Federal habeas relief is available to state prisoners only to

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correct violations of the United States Constitution, federal

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laws, or treaties of the United States.

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Federal habeas relief is not available to retry a state issue

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that does not rise to the level of a federal constitutional
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28 U.S.C. § 2254(a).

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violation.

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(2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

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errors in the application of state law are not cognizable in

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federal habeas corpus.

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Cir. 2002).

Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16
Alleged

Souch v. Schaivo, 289 F.3d 616, 623 (9th

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Because Petitioner’s second and third claims, which are

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based on federal law, remain in the FAP, the claims already enjoy

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the status which Petitioner seeks for them.

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be done by the Court to bring about the circumstances which

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Nothing remains to

Petitioner seeks by his request for reconsideration.
The Court, therefore, concludes that Petitioner’s request
for reconsideration is moot.

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II.

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Accordingly, it is RECOMMENDED that Petitioner’s request for

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Recommendation

reconsideration be dismissed as moot.

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These findings and recommendations are submitted to the

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United States District Court Judge assigned to the case, pursuant

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to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of

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the Local Rules of Practice for the United States District Court,

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Eastern District of California.

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being served with a copy, any party may file written objections

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with the Court and serve a copy on all parties.

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should be captioned “Objections to Magistrate Judge’s Findings

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and Recommendations.”

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and filed within fourteen (14) days (plus three (3) days if

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served by mail) after service of the objections.

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then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.

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§ 636 (b)(1)(C).

Within thirty (30) days after

Such a document

Replies to the objections shall be served

The Court will

The parties are advised that failure to file
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objections within the specified time may waive the right to

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appeal the District Court’s order.

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1153 (9th Cir. 1991).

Martinez v. Ylst, 951 F.2d

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IT IS SO ORDERED.

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Dated:
ie14hj

April 12, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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