Hickman v. County of Butte

Filing 34

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 5/12/11 RECOMMENDING that 28 MOTION to DISMISS be granted; and all other pending motions be denied as moot. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CLARENCE B. HICKMAN, SR.,

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No. CIV S-10-2925-GEB-CMK-P

Petitioner,
vs.

FINDINGS AND RECOMMENDATIONS

DOLLY MATTEUCCE, et al.,

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Respondents.

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/
Petitioner, a state prisoner1 proceeding pro se, brings this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondents’ motion to

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dismiss (Doc. 28).

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This action proceeds on petitioner’s first amended petition in which petitioner

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raises four claims. First, petitioner alleges “gross negligence.” Specifically, he claims that “[t]he

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Butte County Superior Court Judge Hon. Robert A. Glusman neglected my petition and

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motioning to the court for my release and a discharge.” Second, petitioner claims that unnamed

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doctors who prepared a report to the Butte County Superior Court relating to petitioner’s

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Petitioner is incarcerated pursuant to civil commitment under California’s
Mentally Disordered Offender Act.
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continued civil commitment failed to “do a good job.” Third, petitioner claims that the unnamed

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staff at Harper Medical Group also failed to “do a good report for my release. . . .” Fourth,

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petitioner asserts that he is, in fact, “in remission” and no longer a mentally disordered offender

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under California law.
Respondents argue that petitioner’s claims are not cognizable under § 2254.2 A

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writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of a transgression of

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federal law binding on the state courts. See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.

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1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). It is not available for alleged

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error in the interpretation or application of state law. Middleton, 768 F.2d at 1085; see also

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Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786 F.2d 1378, 1381

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(9th Cir. 1986). Habeas corpus cannot be utilized to try state issues de novo. See Milton v.

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Wainwright, 407 U.S. 371, 377 (1972).

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The court agrees with respondents that none of petitioner’s claims is cognizable.

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As to the first claim, petitioner’s assertion that the state court judge hearing his criminal case

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demonstrated “gross negligence” fails to raise any issue of constitutional magnitude.

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Specifically, petitioner does not state what he contends the state court judge did that violated a

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constitutional right. Similarly, as to petitioner’s second and third claims, which relate to the

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medical reports prepared incident to petitioner’s involuntary commitment, petitioner’s allegation

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that the reports were not “good” does not implicate any constitutional right. As with the first

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claim, petitioner does not state in the second or third claims how the reports were not “good.”

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Finally, as to petitioner’s fourth claim that he is, in fact, not a dangerous person, petitioner fails

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to make any factual allegations to support this contention.

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Respondents also argue that petitioner’s claims are not exhausted.
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Based on the foregoing, the undersigned recommends that:

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Respondents’ motion to dismiss (Doc. 28) be granted; and

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All other pending motions be denied as moot.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: May 12, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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