Joseph R. Morales, Jr. v. Avenal State Prison

Filing 4

ORDER to SHOW CAUSE why the Petition should not be Dismissed for Failure to State a Cognizable Claim signed by Magistrate Judge Michael J. Seng on 05/06/2015. Show Cause Response due by 6/9/2015.(Flores, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:15-cv-00669 MJS (HC)
JOSEPH R. MORALES, JR.,

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v.

ORDER TO SHOW CAUSE WHY THE
Petitioner, PETITION SHOULD NOT BE DISMISSED
FOR FAILURE TO STATE A COGNIZABLE
CLAIM
[Doc. 1]

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AVENAL STATE PRISON,
Respondent.

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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.

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Petitioner filed the instant petition for writ of habeas corpus on May 1, 2015. (Pet.,

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ECF No. 1.), Petitioner was convicted of first degree burglary on November 19, 2010 in

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Tulare County, but contends that the crime should have been reduced to a lesser

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charge. (Id. at 1.) Petitioner also alleges that his sentence was improperly calculated as

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six years rather than four years, and that he should have been released on June 28,

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2014. (Id. at 5.) While Petitioner asserts that he is entitled to relief, he does not contend

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that any federal laws were violated during the imposition of his sentence.

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I.

DISCUSSION

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A.

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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.

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Procedural Grounds for Summary Dismissal

The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a
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petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the
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respondent’s motion to dismiss, or after an answer to the petition has been filed. A

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petition for habeas corpus should not be dismissed without leave to amend unless it
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appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis
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v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
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B.

Failure to State Cognizable Claim

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A federal court may only grant a petition for writ of habeas corpus if the petitioner
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can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. §
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2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the
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“legality or duration” of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir.

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1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee
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Notes to Rule 1 of the Rules Governing Section 2254 Cases.
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In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method
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for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500
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U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory
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Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.
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Petitioner seeks release from confinement. Therefore, his claims implicate the fact
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or duration of his confinement, and are properly presented by way of a habeas corpus
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petition. However, a district court may entertain a petition for a writ of habeas corpus by
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a state prisoner only on the ground that the custody is in violation of the Constitution,
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laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v.
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Taylor, 529 U.S. 362, 375 n.7, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000); Wilson v.
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Corcoran, 131 S. Ct. 13, 16, 178 L. Ed. 2d 276 (2010).

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

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level of a federal constitutional violation. Wilson v. Corcoran, 131 S.Ct. at 16 (2010);

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Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991).

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Alleged errors in the application of state law are not cognizable in federal habeas

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corpus. Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002) (an ex post facto claim

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challenging state court's discretionary decision concerning application of state

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

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pursuant to 28 U.S.C. § 2254); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).

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The Court accepts a state court's interpretation of state law. Langford, 110 F.3d at 1389.

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In a habeas corpus proceeding, this Court is bound by the California Supreme Court's

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interpretation of California law unless the interpretation is deemed untenable or a veiled

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attempt to avoid review of federal questions. Murtishaw v. Woodford, 255 F.3d 926, 964

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(9th Cir. 2001).

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In this case, Petitioner argues that the state courts improperly calculated his

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sentence and that he is currently entitled to release. However, he has not cited to any

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federal authority or otherwise raised any federal challenges to the application of the state

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laws to support his claims for relief. Without alleging a federal basis for his claims,

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Petitioner has not presented claims entitled to relief by way of a federal petition for writ of

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habeas corpus.

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A petition for habeas corpus should not be dismissed without leave to amend

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unless it appears that no tenable claim for relief can be pleaded were such leave

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granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). As it is possible that a federal

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claim could be stated, Petitioner is provided the opportunity to file an amended petition

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to attempt to state a cognizable claim.

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II.

ORDER

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Petitioner is ORDERED TO SHOW CAUSE why the petition should not be

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dismissed for Petitioner's failure to state cognizable federal claims Petitioner is
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ORDERED to file an amended petition for writ of habeas corpus within thirty (30) days of

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the date of service of this order.

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Petitioner is forewarned that failure to follow this order will result in dismissal of
the petition pursuant to Local Rule 110.

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IT IS SO ORDERED.
Dated:

May 6, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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