Allen v. Biter
Filing
15
FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Writ of Habeas Corpus for Failing to State Cognizable Claim; ORDER DIRECTING Clerk of Court to Assign District Judge to the Present Matter signed by Magistrate Judge Michael J. Seng on 4/28/2015. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 6/1/2015. (Sant Agata, S)
1
2
3
4
5
6
7
8
9
IN THE UNITED STATES DISTRICT COURT
10
FOR THE EASTERN DISTRICT OF CALIFORNIA
11
12
13
Case No. 1:15-cv-00135 MJS (HC)
EUGENE A. ALLEN,
14
15
v.
FINDINGS AND RECOMMENDATION TO
Petitioner, DISMISS PETITION FOR WRIT OF
HABEAS CORPUS FOR FAILING TO
STATE COGNIZABLE CLAIM
16
17
ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT COURT JUDGE TO
THE PRESENT MATTER
MARTIN BITER,
18
Respondent.
19
20
21
22
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
corpus under the authority of 28 U.S.C. § 2254.
23
Petitioner filed the instant petition for writ of habeas corpus on December 15,
24
2014. (Pet., ECF No. 1.) In the petition, Petitioner alleges that a new state law was
25
passed directing the release of prisoners who are over the age of sixty and served at
26
least twenty-five years of their sentence. (See generally, Pet.) Petitioner asserts that he
27
is entitled for release because he is 61 years old and has been incarcerated for 42
28
years. (Id.)
1
1
On January 27, 2015, the Court issued an order to show cause why the petition
2
should not be dismissed for failure to state a cognizable claim. (ECF No. 6.) After
3
requesting an extension of time, Petitioner filed a timely response on March 25, 2015.
4
(ECF No. 13.)
5
I.
DISCUSSION
6
A.
7
Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:
If it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss
the petition and direct the clerk to notify the petitioner.
8
9
Procedural Grounds for Summary Dismissal
The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a
10
petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the
11
respondent’s motion to dismiss, or after an answer to the petition has been filed. A
12
petition for habeas corpus should not be dismissed without leave to amend unless it
13
appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis
14
v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
15
B.
Failure to State Cognizable Claim
16
A federal court may only grant a petition for writ of habeas corpus if the petitioner
17
can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. §
18
2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the
19
“legality or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir.
20
1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee
21
Notes to Rule 1 of the Rules Governing Section 2254 Cases.
22
In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method
23
for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500
24
U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory
25
Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.
26
Petitioner seeks release from confinement. Therefore, his claims implicate the fact
27
or duration of his confinement, and are properly presented by way of a habeas corpus
28
2
1
petition. However, a district court may entertain a petition for a writ of habeas corpus by
2
a state prisoner only on the ground that the custody is in violation of the Constitution,
3
laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v.
4
Taylor, 529 U.S. 362, 375 n.7, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000); Wilson v.
5
Corcoran, 131 S. Ct. 13, 16, 178 L. Ed. 2d 276 (2010).
6
Federal habeas relief is not available to retry a state issue that does not rise to the
7
level of a federal constitutional violation. Wilson v. Corcoran, 131 S.Ct. at 16 (2010);
8
Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991).
9
Alleged errors in the application of state law are not cognizable in federal habeas
10
corpus. Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002) (an ex post facto claim
11
challenging state court's discretionary decision concerning application of state
12
sentencing law presented only state law issues and was not cognizable in a proceeding
13
pursuant to 28 U.S.C. § 2254); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
14
The Court accepts a state court's interpretation of state law. Langford, 110 F.3d at 1389.
15
In a habeas corpus proceeding, this Court is bound by the California Supreme Court's
16
interpretation of California law unless the interpretation is deemed untenable or a veiled
17
attempt to avoid review of federal questions. Murtishaw v. Woodford, 255 F.3d 926, 964
18
(9th Cir. 2001).
19
In this case, Petitioner argues that the state courts improperly denied his release
20
under California parole laws, but does not raise any federal challenges to the application
21
of the state laws. The Court does not dispute that the state of California has instituted
22
initiatives to help reduce prison overcrowding, including renewed parole review for older
23
prisoners. However, without alleging a federal basis for his claims, Petitioner has not
24
presented claims entitled to relief by way of federal habeas.
25
C.
Cruel and Unusual Punishment
26
In his response to the order to show cause, Petitioner alleges a federally
27
cognizable claim – cruel and unusual punishment under the Fifth and Eighth
28
Amendments of the Constitution. While this is a proper federal claim, as explained
3
1
below, there is no possibility that Petitioner is entitled to relief on this claim.
2
The Supreme Court has held, in the context of AEDPA review that the relevant,
3
clearly established law regarding the Eighth Amendment's proscription against cruel and
4
unusual punishment is a "gross disproportionality" principle, the precise contours of
5
which are unclear and applicable only in the "exceedingly rare" and "extreme" case.
6
Lockyer v. Andrade, 538 U.S. 63, 73-76 (2003) (discussing decisions in Harmelin v.
7
Michigan, 501 U.S. 957 (1991), Solem v. Helm, 463 U.S. 277 (1983), and Rummel v.
8
Estelle, 445 U.S. 263 (1980)); Ewing v. California, 538 U.S. 11, 23 (2003). "Successful
9
challenges to the proportionality of particular sentences will be exceedingly rare." Solem,
10
463 U.S. at 289-90.
11
Generally, the Supreme Court has upheld prison sentences challenged as cruel
12
and unusual, and in particular, has approved recidivist punishments similar to or longer
13
than Petitioner's life sentence for offenses of significantly lesser severity than Petitioner's
14
crime of conviction. See Andrade, 538 U.S. at 77 (denying habeas relief on Eighth
15
Amendment disproportionality challenge to Three Strikes sentence of two consecutive
16
terms of 25 years to life for stealing $150.00 in videotapes when petitioner had a lengthy
17
but nonviolent criminal history); Harmelin, 501 U.S. at 1008-09 (mandatory life sentence
18
without parole for first offense of possession of more than 650 grams of cocaine is not so
19
disproportionate as to violate the Eighth Amendment); Hutto v. Davis, 454 U.S. 370, 374-
20
75 (1982) (per curiam) (upholding non-recidivist sentence of two consecutive 25 prison
21
terms for possession of nine ounces of marijuana and distribution of marijuana); cf.
22
Solem, 463 U.S. at 280-81 (sentence of life imprisonment without possibility of parole for
23
seventh nonviolent felony violates Eighth Amendment). In Petitioner's case, he was
24
convicted of first degree murder. First degree murder is an extremely serious crime; a
25
crime for which a life sentence is not considered grossly disproportionate.
26
For all of the above reasons, and in light of controlling jurisprudence, this Court
27
cannot find that Petitioner's sentence is grossly disproportionate to his commitment
28
offense. Thus, the state court's rejection of this claim was not contrary to or an
4
1
unreasonable application of federal law. Accordingly, Petitioner's claim should be
2
rejected.
3
A petition for habeas corpus should not be dismissed without leave to amend
4
unless it appears that no tenable claim for relief can be pleaded were such leave
5
granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). As it is not possible that a
6
federal relief could be granted, it is recommended that petition for writ of habeas corpus
7
be dismissed.
8
II.
9
10
RECOMMENDATION
Accordingly, it is hereby recommended that the petition for a writ of habeas
corpus be DISMISSED with prejudice.
11
This Findings and Recommendation is submitted to the assigned District Judge,
12
pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days after
13
being served with the Findings and Recommendation, any party may file written
14
objections with the Court and serve a copy on all parties. Such a document should be
15
captioned "Objections to Magistrate Judge's Findings and Recommendation." Any reply
16
to the objections shall be served and filed within fourteen (14) days after service of the
17
objections. The parties are advised that failure to file objections within the specified time
18
may waive the right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d
19
834, 839 (9th Cir. 2014).
20
21
22
23
IT IS SO ORDERED.
Dated:
April 28, 2015
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
24
25
26
27
28
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?