Jacobs v. Hubbard

Filing 18

ORDER DEEMING Petitioner's 17 Status Report to be a Motion to Withdraw the First Amended Petition and to Proceed on the Claims Stated in the Original Petition; ORDER DISSOLVING the Stay of the Proceedings and GRANTING Petitioner's 17 Mo tion to Proceed on the Original Petition; ORDER DISMISSING Petitioner's State Law Claims; ORDER REQUIRING Respondent to File a Response to the 1 Petition; ORDER SETTING a Briefing Schedule; ORDER DIRECTING Clerk to Serve Documents on the Attorney General signed by Magistrate Judge Sheila K. Oberto on 3/27/2012. Clerk to serve a copy of this order, a copy of the Petition and the Order re Consent on the Attorney General. Consent or Decline due by 6/1/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GEORGE JACOBS IV,

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Petitioner,
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v.
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SUSAN HUBBARD, Warden, et al.,)
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Respondents.
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1:11-cv—00934-SKO-HC
ORDER DEEMING PETITIONER’S STATUS
REPORT TO BE A MOTION TO WITHDRAW
THE FIRST AMENDED PETITION AND TO
PROCEED ON THE CLAIMS STATED IN
THE ORIGINAL PETITION (DOCS. 17,
16, 1)
ORDER DISSOLVING THE STAY OF THE
PROCEEDINGS (DOC. 14) AND
GRANTING PETITIONER’S MOTION TO
PROCEED ON THE ORIGINAL PETITION
(DOC. 17)

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ORDER DISMISSING PETITIONER’S
STATE LAW CLAIMS (DOC. 1)

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ORDER REQUIRING RESPONDENT TO
FILE A RESPONSE TO THE PETITION

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ORDER SETTING A BRIEFING SCHEDULE
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ORDER DIRECTING THE CLERK TO
SERVE DOCUMENTS ON THE ATTORNEY
GENERAL

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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.

Pursuant to 28 U.S.C. § 636(c)(1),

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Petitioner has consented to the jurisdiction of the United States
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Magistrate Judge 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 June 17, 2011 (doc. 5).

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Pending before the Court is Petitioner’s “30-DAY STATUS

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REPORT,” filed on February 17, 2012, which the Court DEEMS to be

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a request to 1) withdraw the first amended petition (FAP) (doc.

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petition filed on June 9, 2011, which Petitioner represents

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contains only fully exhausted claims.

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I.

Background

Because Petitioner had not exhausted his state court

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remedies as to some of the claims set forth in the original

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petition, Petitioner withdrew the unexhausted claims from the

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original petition in order to exhaust state court remedies with

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respect to those claims.

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the proceedings on the exhausted claims pending Petitioner’s

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exhaustion of state court remedies as to the remaining claims.

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On January 27, 2012, while state court remedies were being

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exhausted, Petitioner filed the FAP, which contained only the

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claims that appeared to be fully exhausted when the original

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petition was filed.

On December 12, 2011, the Court stayed

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On February 17, 2012, Petitioner filed a status report

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stating that the California Supreme Court had denied Petitioner’s

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petition for writ of habeas corpus on February 1, 2012.

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Petitioner seeks to withdraw the FAP and to proceed on the

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original petition.

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I.

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Whether styled as a motion to withdraw the FAP or a motion

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Motion to Withdraw the FAP and Dissolution of the Stay

to amend the petition to restate the claims that are now
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exhausted, Petitioner’s request will be granted.

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purposes of additional screening of the petition by the Court and

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obtaining a response to the petition from the Respondent,

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Petitioner may proceed on the claims set forth in the original

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petition.

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For the

Further, although Petitioner does not expressly request that

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the stay of the proceedings be lifted, the relief Petitioner

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requests necessarily requires that the stay of the instant

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proceeding be dissolved.

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Accordingly, the Court will order that

the stay of the proceedings be dissolved.

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II.

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Petitioner alleges that with respect to count 6, the trial

Dismissal of Petitioner’s State Law Claims

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court abused its discretion in imposing a consecutive sentence

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instead of a concurrent term.

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alleges that the sentence of an indeterminate term of 104 years

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to life and a determinate term of eighty (80) years to life

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constitutes cruel and unusual punishment under the state

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constitution as well as the Federal Constitution.

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A.

(Pet. 8-9.)

Petitioner further

(Id.)

Legal Standards

Rule 4 of the Rules Governing § 2254 Cases in the United

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States District Courts (Habeas Rules) requires the Court to make

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a preliminary review of each petition for writ of habeas corpus.

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The Court must summarily dismiss a petition "[i]f it plainly

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appears from the petition and any attached exhibits that the

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petitioner is not entitled to relief in the district court....”

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Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.

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1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.

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1990).

Habeas Rule 2(c) requires that a petition 1) specify all
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grounds of relief available to the Petitioner; 2) state the facts

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supporting each ground; and 3) state the relief requested.

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Notice pleading is not sufficient; the petition must state facts

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that point to a real possibility of constitutional error.

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4, Advisory Committee Notes, 1976 Adoption; O’Bremski v. Maass,

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915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75

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n.7 (1977)).

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conclusory, or palpably incredible are subject to summary

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dismissal.

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Rule

Allegations in a petition that are vague,

Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir.

1990).
Further, the Court may dismiss a petition for writ of habeas

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corpus either on its own motion under Habeas Rule 4, pursuant to

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the respondent's motion to dismiss, or after an answer to the

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petition has been filed.

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8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43

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(9th Cir. 2001).

Advisory Committee Notes to Habeas Rule

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A petition for habeas corpus should not be dismissed without

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leave to amend unless it appears that no tenable claim for relief

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can be pleaded were such leave granted.

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F.2d 13, 14 (9th Cir. 1971).

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Jarvis v. Nelson, 440

Federal habeas relief is available to state prisoners only

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to 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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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

28 U.S.C. § 2254(a).

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

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Alleged

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federal habeas corpus.

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Cir. 2002) (an ex post facto claim challenging state court’s

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discretionary decision concerning application of state sentencing

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law presented only state law issues and was not cognizable in a

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proceeding pursuant to 28 U.S.C. § 2254); Langford v. Day, 110

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F.3d 1380, 1389 (9th Cir. 1996).

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court's interpretation of state law.

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1380, 1389 (9th Cir. 1996).

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Court is bound by the California Supreme Court’s interpretation

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

The Court accepts a state
Langford v. Day, 110 F.3d

In a habeas corpus proceeding, this

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of California law unless the interpretation is untenable or a

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veiled attempt to avoid review of federal questions.

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v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001).

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B.

Murtishaw

Analysis

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Here, Petitioner’s claim that the sentencing court’s choice

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of a consecutive term was an abuse of discretion under state law

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is based solely on state sentencing law.

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is not cognizable in this proceeding brought pursuant to 28

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U.S.C. § 2254.

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Accordingly, this claim

To the extent that Petitioner’s claim that his sentence was

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cruel and unusual punishment is based on the state constitution

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or other provisions of state law, the claim is a state law claim

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and thus is not cognizable in a proceeding for federal habeas

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corpus relief.

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punishment under the Federal Constitution can be considered in

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this proceeding, to the extent that the claim rests on state law,

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it must be dismissed.

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Although Petitioner’s claim of cruel and unusual

In summary, Petitioner’s state law claims will be dismissed
because they are not subject to review in this proceeding.
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III.

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The Court has conducted a preliminary review of the

Response to the Petition

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petition.

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Petitioner is entitled to relief.

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Accordingly, pursuant to Rule 4 of the Rules Governing Section

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2254 Cases and Rule 16 of the Federal Rules of Civil Procedure,1

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the Court will direct Respondent to file a response and will

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issue a scheduling order.

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IV.

It is not clear from the face of the petition whether
28 U.S.C. § 2243.

Disposition

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Accordingly, it is ORDERED that:

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1)

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The stay of this proceeding that issued on December 12,

2011, is DISSOLVED; and
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Petitioner’s request to withdraw the first amended

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petition and to proceed on the claims in the original petition is

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GRANTED; and

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3)

Petitioner’s claim that the sentencing court’s choice of

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a consecutive term was an abuse of discretion under state law,

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and Petitioner’s claim that his sentence was cruel and unusual

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punishment under the state constitution are DISMISSED as not

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cognizable in a proceeding brought pursuant to 28 U.S.C.

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§ 2254; and

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4)

The Court hereby ORDERS:

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The Federal Rules of Civil Procedure “apply to proceedings for habeas
corpus ... to the extent that the practice in those proceedings (A) is not
specified in a federal statute, the Rules Governing Section 2254 Cases, or the
Rules Governing Section 2255 Cases; and (B) has previously conformed to the
practice in civil actions.” Fed. R. Civ. P. 81(a)(4). Rule 12 also provides
“[t]he Federal Rules of Civil Procedure, to the extent that they are not
inconsistent with any statutory provisions or these rules, may be applied to a
proceeding under these rules.” Rule 12, Rules Governing Section 2254 Cases.

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a) Respondent SHALL FILE a RESPONSE to the petition2 within

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SIXTY (60) days of the date of service of this order.

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4, Rules Governing Section 2254 Cases; Cluchette v. Rushen, 770

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F.2d 1469, 1473-1474 (9th Cir. 1985) (court has discretion to fix

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time for filing a response).

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one of the following:

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See Rule

A response can be made by filing

i. An ANSWER addressing the merits of the petition.

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Respondent SHALL INCLUDE with the ANSWER any and all transcripts

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or other documents necessary for the resolution of the issues

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presented in the petition.

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2254 Cases.

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Petitioner has been procedurally defaulted SHALL BE MADE in the

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ANSWER, but must also address the merits of the claim asserted.

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See Rule 5, Rules Governing Section

Any argument by Respondent that a claim of

ii. A MOTION TO DISMISS the petition.

A motion to

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dismiss SHALL INCLUDE copies of all Petitioner’s state court

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filings and dispositive rulings.

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Section 2254 Cases.3

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b.

See Rule 5, Rules Governing

If Respondent files an answer to the petition,

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Petitioner MAY FILE a traverse within THIRTY (30) days of the

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date Respondent’s answer is filed with the Court.

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is filed, the petition and answer are deemed submitted at the

If no traverse

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Respondent is advised that a scanned copy of the petition is available
in the Court’s electronic case filing system (CM/ECF).
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Rule 4 of the Rules Governing Section 2254 Cases provides that upon the
Court’s determination that summary dismissal is inappropriate, the “judge must
order the respondent to file an answer, motion, or other response within a
fixed time, or to take other action the judge may order.” Rule 4, Rules
Governing Section 2254 Cases; see also Advisory Committee Notes to Rules 4 and
5 of Rules Governing Section 2254 Cases (stating that a dismissal may obviate
the need for filing an answer on the substantive merits of the petition and
that the respondent may file a motion to dismiss for failure to exhaust);
White v. Lewis , 874 F.2d 599, 602-03 (9th Cir. 1989) (providing that a motion
to dismiss pursuant to Rule 4 is proper in a federal habeas proceeding).

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expiration of the thirty (30) days.

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c.

If Respondent files a motion to dismiss, Petitioner

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SHALL FILE an opposition or statement of non-opposition within

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TWENTY-ONE (21) days of the date Respondent’s motion is filed

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with the Court.

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is deemed submitted at the expiration of the thirty (30) days.

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Any reply to an opposition to the motion to dismiss SHALL BE

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FILED within SEVEN (7) days after the opposition is served.

If no opposition is filed, the motion to dismiss

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d. Unless already submitted, both Respondent and Petitioner

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SHALL COMPLETE and RETURN to the Court within THIRTY (30) days a

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consent/decline form indicating whether the party consents or

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declines to consent to the jurisdiction of the United States

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Magistrate Judge pursuant to Title 28 U.S.C. § 636(c)(1).

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e. The Clerk of the Court is DIRECTED to SERVE a copy of
this order on the Attorney General or his representative.

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All motions shall be submitted on the record and briefs

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filed without oral argument unless otherwise ordered by the

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Court.

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granted upon a showing of good cause.

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Rule 110 are applicable to this order.

Local Rule 230(l).

Extensions of time will only be
All provisions of Local

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IT IS SO ORDERED.

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Dated:
ie14hj

March 27, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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