Perez v. Bitter

Filing 10

FINDINGS and RECOMMENDATIONS to Dismiss 1 Petitioner's State Law Claims without Leave to Amend signed by Magistrate Judge Sheila K. Oberto on 11/14/2011. Referred to Judge O'Neill; Objections to F&R due by 12/19/2011. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CESAR MELGOZA PEREZ,
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Petitioner,
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v.
M. D. BITTER, Warden,

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Respondent.

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1:11-cv—01766-LJO-SKO-HC
FINDINGS AND RECOMMENDATIONS TO
DISMISS PETITIONER’S STATE LAW
CLAIMS WITHOUT LEAVE TO AMEND
(DOC. 1)
OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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

The

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matter has been referred to the Magistrate Judge pursuant to 28
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U.S.C. § 636(b)(1) and Local Rules 302 through 304.

Pending

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before the Court is the petition, which was filed on October 24,
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2011.
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I.

Screening the Petition

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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).

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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.

Habeas Rule 2(c) requires that a petition 1) specify all

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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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1990).

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Rule

Allegations in a petition that are vague,

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

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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///
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Jarvis v. Nelson, 440

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Here, Petitioner alleges that he is an inmate of the Kern

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Valley State Prison (KVSP) located in Delano, California, serving

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a sentence imposed in the Superior Court of the State of

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California for the County of Stanislaus pursuant to Petitioner’s

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conviction on March 11, 2009, of murder and assault by means of

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force likely to produce great bodily injury with gang

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enhancements.

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4.)

Petitioner challenges his convictions.

(Pet. 1-

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Petitioner raises the following claims as to which he

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alleges that state court remedies have been exhausted: 1) denial

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of Petitioner’s right to a fair trial in violation of the due

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process protections of the Fifth and Fourteenth Amendments by

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admission of the testimony of four witnesses who testified

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pursuant to a plea agreement that coerced them to testify for the

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prosecution; 2) denial of Petitioner’s Sixth and Fourteenth

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Amendment right to a fair trial resulting from prejudicial error

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in the giving of an incorrect instruction concerning

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corroboration of accomplice testimony, and denial of Petitioner’s

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Sixth and Fourteenth Amendment right to the effective assistance

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of counsel if counsel failed to preserve the issue for appeal; 3)

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violation of Petitioner’s Sixth and Fourteenth Amendment right to

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confrontation by admission of an autopsy report; 4) denial of

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Petitioner’s Fourteenth Amendment right to due process resulting

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from the trial court’s compound errors of giving an incomplete

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instruction concerning flight after being accused of a crime in

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the absence of evidence to support providing the instruction in

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the first instance; and 5) violation of Petitioner’s Eighth

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Amendment protection against the imposition of cruel and unusual
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punishment under the Constitution and the constitution of the

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State of California by imposing a sentence of fifty years to

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life.

(Pet. 4-6, 21-22, 24, 53-55, 63.)

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Petitioner raises the following additional claims which

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Petitioner describes as newly discovered, unexhausted grounds: 6)

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denial of Petitioner’s rights to the effective assistance of

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counsel guaranteed both by the Sixth Amendment and by state law

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resulting from trial counsel’s failure to request that a

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detective and a prosecutorial investigator who were also

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principal witnesses against Petitioner be excluded from sitting

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at the counsel table throughout the trial; 7) denial of

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Petitioner’s rights to the effective assistance of counsel

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guaranteed by both state law and the Sixth Amendment by trial

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counsel’s failure to object to and to exclude photographs of the

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deceased; 8) denial of Petitioner’s rights under the Sixth

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Amendment and state law to the effective assistance of counsel by

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trial counsel’s failure to object to the prosecutor’s a) vouching

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for the credibility of witnesses and b) improper remarks

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concerning Petitioner’s guilt before and during argument; and 9)

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denial of Petitioner’s rights under the Fourteenth Amendment and

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state law resulting from the insufficiency of the evidence to

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support convictions for enhancements of discharging a firearm and

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being armed with a firearm.

(Pet. 6-7.)

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II.

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Because the petition was filed after April 24, 1996, the

Dismissal of State Law Claims without Leave to Amend

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effective date of the Antiterrorism and Effective Death Penalty

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Act of 1996 (AEDPA), the AEDPA applies in this proceeding.

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v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008
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Lindh

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(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

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A district court may entertain a petition for a writ of

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habeas corpus by a person in custody pursuant to the judgment of

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a state court only on the ground that the custody is in violation

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of the Constitution, laws, or treaties of the United States.

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U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,

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375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,

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16 (2010) (per curiam).

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In his fifth claim concerning cruel and unusual punishment,

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his sixth, seventh, and eighth claims concerning the alleged

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ineffective assistance of counsel, and in his ninth claim

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concerning the alleged insufficiency of the evidence to support

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two enhancements, Petitioner relies on both federal and state

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law.

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they are not cognizable on federal habeas corpus.

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relief is not available to retry a state issue that does not rise

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to the level of a federal constitutional violation.

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Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v.

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McGuire, 502 U.S. 62, 67-68 (1991).

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application of state law are not cognizable in federal habeas

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corpus.

To the extent that Petitioner’s claims rest on state law,
Federal habeas

Wilson v.

Alleged errors in the

Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002).

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Because the defects in the state claims are due to the

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nature of the claims and not due to the absence of specific

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factual allegations, the Court concludes that granting leave to

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amend the state claims would be futile.

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recommended that Petitioner’s state claims be dismissed without

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leave to amend.

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///
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Accordingly, it will be

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Pending further order of the Court, Petitioner’s motion for

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stay and abeyance of unexhausted claims will be addressed by the

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Magistrate Judge after the District Judge’s consideration of

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these findings and recommendations.

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III.

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Accordingly, it is RECOMMENDED that:

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1)

Recommendations

Petitioner’s state law claims, including his fifth claim

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concerning cruel and unusual punishment, his sixth, seventh, and

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eighth claims concerning the alleged ineffective assistance of

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counsel, and his ninth claim concerning the alleged insufficiency

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of the evidence to support two enhancements, be DISMISSED without

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leave to amend to the extent that such claims rest on state law;

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and

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2)

The matter be referred back to the Magistrate Judge for

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further screening, including consideration of Petitioner’s motion

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for a stay of the proceedings to permit exhaustion of state court

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remedies with respect to some claims.

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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.

Within thirty (30) days after

Such a document

Replies to the objections shall be served

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The Court will

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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).

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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).

The parties are advised that failure to file

Martinez v. Ylst, 951 F.2d

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IT IS SO ORDERED.

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Dated:
ie14hj

November 14, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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