Esparza v. Sherman

Filing 7

FINDINGS and RECOMMENDATION to Dismiss Petition for Lack of Habeas Jurisdiction, signed by Magistrate Judge Jennifer L. Thurston on 7/13/17. Objections to F&R Due Within Twenty-One Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CASIMIRO ESPARZA,

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Petitioner,

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v.

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STU SHERMAN, Warden,

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Respondent.

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Case No.: 1:17-cv-00848-JLT (HC)
ORDER DIRECTING CLERK OF COURT TO
ASSIGN DISTRICT JUDGE
FINDINGS AND RECOMMENDATION TO
DISMISS PETITION FOR LACK OF HABEAS
JURISDICTION
[TWENTY-ONE DAY OBJECTION DEADLINE]

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Petitioner filed the instant federal habeas petition challenging his state conviction. Upon

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conducting a preliminary screening of the petition, it appears that the petition fails to present any

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cognizable grounds for relief. Therefore, the Court will recommend that the petition be

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SUMMARILY DISMISSED.

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I.

PROCEDURAL HISTORY

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On April 16, 2013, Petitioner was convicted in the Fresno County Superior Court of carjacking

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and second degree robbery with true findings that he personally used a firearm as to each count. (Doc.

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No. 1.) He was sentenced to a total term of 33 years in prison. Petitioner appealed to the California

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Court of Appeal, Fifth Appellate District (“Fifth DCA”). On December 1, 2015, the Fifth DCA

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affirmed the judgment in a reasoned opinion. People v. Esparza, 2015 WL 7736853, at *1 (Cal. Ct.

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App. Dec. 1, 2015). He then filed a petition for review in the California Supreme Court, and the

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California Supreme Court denied review on February 17, 2016. Id.
Petitioner filed his federal petition in this Court on June 26, 2017. (Doc. No. 1). As for his

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grounds for relief, he refers the Court to the petition for review he filed in the California Supreme

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Court. The claims presented in the petition for review are as follows: 1) Petitioner’s jail phone call

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was improperly admitted as an adoptive admission by silence, or as an admission of a party opponent;

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2) The current charges did not involve domestic violence so as to allow the admission of evidence of

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prior domestic violence under Cal. Evidence Code § 1109; and 3) The appellate court erred under

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California law in finding Petitioner had procedurally defaulted his instructional error claim by failing

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to object at trial.

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II.

DISCUSSION

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A. Preliminary Review of Petition

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Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary

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review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it

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plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in

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the district court . . . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory

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Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus,

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either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an

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answer to the petition has been filed.

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B. Failure to State a Cognizable Federal Claim

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The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2254(a) states:

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The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain
an application for a writ of habeas corpus in behalf of a person in custody pursuant to a
judgment of a State court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.

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(emphasis added). See also Rule 1 to the Rules Governing Section 2254 Cases in the United States

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District Court. The Supreme Court has held that “the essence of habeas corpus is an attack by a

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person in custody upon the legality of that custody . . .” Preiser v. Rodriguez, 411 U.S. 475, 484

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(1973).
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Furthermore, in order to succeed in a petition pursuant to 28 U.S.C. § 2254, Petitioner must

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demonstrate that the adjudication of his claim in state court
(1) resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.

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28 U.S.C. § 2254(d)(1),(2).
It is well-settled that federal habeas relief is not available to state prisoners challenging state

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law. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have stated many times that federal habeas

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corpus relief does not lie for errors of state law); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir.

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1997) (“alleged errors in the application of state law are not cognizable in federal habeas corpus”

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proceedings). In this case, Petitioner’s claims are entirely premised on state law. He does not claim a

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violation of the Constitution or Federal law, nor does he argue that he is in custody in violation of the

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Constitution or Federal law. Petitioner does not allege that the adjudication of his claims in state court

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“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

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established Federal law, . . . or resulted in a decision that was based on an unreasonable determination

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of the facts . . . .” 28 U.S.C. § 2254. Accordingly, the petition must be dismissed for failure to state a

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claim.

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III.

The Court hereby DIRECTS the Clerk of Court to assign a District Judge to the case.

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ORDER

IV.

RECOMMENDATION
Accordingly, the Court RECOMMENDS that the instant petition be SUMMARILY

DISMISSED with prejudice for failure to state a claim.
This Findings and Recommendation is submitted to the United States District Court Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California. Within

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twenty-one days after being served with a copy, Petitioner may file written objections with the court

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and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling
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pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

July 13, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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