Wilkes v. McDonald

Filing 33

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 6/28/12 RECOMMENDING that 24 motion for relief from judgment be granted; 26 MOTION to AMEND be granted; the claims raised in the first amended petition be dismissed; and the district court decline to issue a certificate of appealability. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 21 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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LENNI WILKES,

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Petitioner,

No. 2:10-cv-2997 GEB DAD (HC)

vs.
M. D. MCDONALD,
Respondent.

FINDINGS AND RECOMMENDATIONS
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Petitioner is a state prisoner proceeding pro se with an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court on petitioner’s

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motions for relief from judgment and for leave to file an amended petition.

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On May 19, 2011, this action was dismissed without prejudice due to petitioner’s

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failure to exhaust his claims in state court. Judgment was entered on the same day. On

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December 12, 2011, petitioner filed a document which, by order filed January 6, 2012, the court

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construed as a motion for relief judgment pursuant to Fed. R. Civ. P. 60(b). In the January 6,

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2012 order, petitioner was granted thirty days to supplement that motion by filing a proposed

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amended habeas petition with this court. On January 25, 2012, petitioner filed a motion for leave

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to amend the petition, and on February 6, 2012, he filed a proposed first amended petition. In

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that first amended petition, petitioner now claims that the trial court erred in failing to strike two
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prior convictions at the time of his sentencing. By order filed March 12, 2012, respondent was

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directed to file a response to the motion for relief from judgment.

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On March 26, 2012, respondent filed a response to both motions. Respondent

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raised no objection to either petitioner’s request for relief from the judgment or his request to

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amend his petition, but does argue that the claims now raised by petitioner are not cognizable in

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this federal habeas corpus proceeding because they are based solely on alleged errors of state law.

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Petitioner filed a reply on May 17, 2012.

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Because respondent has no opposition either to the motion for relief from
judgment or to the motion to amend the petition, the court will recommend that those motions be

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granted. However, the court will also recommend that the claims raised in the first amended

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petition be dismissed because they are based solely on alleged errors of state sentencing law.

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Federal habeas corpus relief is unavailable for such errors. See Estelle v. McGuire, 502 U.S. 62,

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67 (1991); Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989); Speer v. Lopez, 2012 WL

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1569628, at * 19 (C.D. Cal. Mar. 6, 2012) (“[A] claim that the state court erred by refusing to

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grant Petitioner’s Romero motion and striking one of Petitioner’s prior strikes only concerns state

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sentencing law and does not implicate a federal constitutional right.”)

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Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United

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States District Courts, “[t]he district court must issue or a deny a certificate of appealability when

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it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. A certificate of

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appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either

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issue a certificate of appealability indicating which issues satisfy the required showing or must

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state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). For the reasons

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set forth in these findings and recommendations, petitioner has not made a substantial showing of

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the denial of a constitutional right. Accordingly, no certificate of appealability should issue.

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In accordance with the above, IT IS HEREBY RECOMMENDED that:

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1. Petitioner’s December 12, 2011 motion for relief from judgment (Doc. No. 24)

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be granted;

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2. Petitioner’s January 25, 2012 motion to amend (Doc. No. 26) be granted;

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3. The claims raised in the first amended petition be dismissed; and

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4. The district court decline to issue a certificate of appealability.

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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 twenty-

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

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: June 28, 2012.

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DAD:12
wilk2997.60bfr

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