Brinkley v. Yuba County Superior Court

Filing 11

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 6/19/12: ORDERING that the Clerk of Court assign a district judge to this action. RECOMMENDING that the First Amended Petition 10 be summarily dismissed pursuant to Rule 4 and this case closed. F&R referred to Judge Garland E. Burrell, Jr.. Objections to F&R due within fourteen days. (Kaminski, H)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES A. BRINKLEY,

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Petitioner,

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No. 2:12-cv-0386 CKD P

vs.
YUBA COUNTY SUPERIOR COURT,

ORDER &

Respondent.

FINDINGS AND RECOMMENDATIONS
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Petitioner is a state prisoner proceeding pro se and in forma pauperis. Petitioner

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commenced this proceeding by filing a petition for writ of mandate, which was dismissed with

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leave to file a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. Nos. 1, 7.)

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Petitioner instead filed a motion for injunctive relief. (Dkt. No. 9.) On May 31, 2012, this court

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denied petitioner’s motion for injunctive relief and again granted him leave to file an amended

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petition. (Dkt. No. 9.) On June 14, 2012, petitioner filed a First Amended Petition seeking relief

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under 28 U.S.C. § 2254 . (Dkt. No. 10.)

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Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254

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provides for summary dismissal of a habeas petition “[i]f it plainly appears from the face of the

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petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district

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court.” In the instant case, it is plain from the petition and attached exhibit that petitioner is not
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entitled to federal habeas relief. He complains that “the court of Yuba County will not properly

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rule on petitioner’s habeas application[,]” and seeks an order “directing and compelling” the

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superior court to correct its “null” decision on the state petition. (Dkt. No. 10 at 1, 13.)

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Petitioner asserts that the Yuba County Superior Court violated California Rule of Court Rule

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4.551 et seq. (governing state habeas corpus proceedings) and California Penal Code § 1473 et

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seq. (same). (Id. at 12.) He states: “At this point I am challenging the lack of state procedure in

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my habeas corpus filing.” (Id. at 2.) And: “Petitioner is not, in this petition, challenging his

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conviction, he is challenging the lack of corrective process in the state courts.” (Id. at 48.)

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Among other things, petitioner argues that the state court judge who ruled on his amended habeas

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petition was biased. Petitioner claims this constituted a denial of due process of law. (Id. at 8.)
This court may “entertain an application for a writ of habeas corpus on behalf of a

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person in custody pursuant to the judgment of a State Court only on the ground that he is in

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custody in violation of the Constitution or laws and treaties of the United States.” 28 U.S.C.

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

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some transgression of federal law binding on the state courts. Middleton v. Cupp, 768 F.2d

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1083, 1085 (9th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). It is

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unavailable for alleged error in the interpretation or application of state law. Middleton, 768

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F.2d at 1085; see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v.

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Housewright, 786 F.2d 1378, 1381 (9th Cir. 1986). Insofar as petitioner is arguing that his state

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post-conviction proceedings were procedurally defective under state law, he does not assert a

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claim for federal habeas relief.

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To the extent petitioner bases his claim on the federal Constitution, federal habeas

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relief is not available to redress procedural errors in the state collateral review process. Ortiz v.

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Stewart, 149 F.3d 923, 939 (9th Cir. 1998) (claim concerning the alleged bias of a judge in post-

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conviction proceeding for relief). See also Martinez v. Hartley, 2011 WL 3319550 at *3 (E.D.

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Cal. Aug. 1, 2011) (“In summary, Petitioner’s claims that are based on state law and that concern
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the state post-conviction process are not cognizable in this proceeding and must be dismissed

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without leave to amend.”) As petitioner has been given two opportunities to amend to state a

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claim for federal relief, and has failed to do so, the petition should be summarily dismissed

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pursuant to Rule 4.
Accordingly, IT IS HEREBY ORDERED that the Clerk of Court assign a district

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judge to this action.
IT IS HEREBY RECOMMENDED that the First Amended Petition (Dkt. No. 10)

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be summarily dismissed pursuant to Rule 4 and this case closed.
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 fourteen

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days after being served with these findings and recommendations, petitioner may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).
If petitioner files objections, he shall also address if a certificate of appealability

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should issue and, if so, as to which issues. A certificate of appealability may issue under 28

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U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a

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constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate

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which specific issue or issues satisfy” the requirement. 28 U.S.C. § 2253(c)(3).

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Dated: June 19, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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brin0386.R4_2

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