Quilling v. Swartout

Filing 7

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/15/2013 RECOMMENDING that the 1 petition be dismissed pursuant to Rule 4 of the Rules Governing Habeas Cases Under Section 2254. Referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN M. QUILLING,

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Petitioner,

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vs.

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No. 2:13-cv-0384 KJM CKD P

G. SWARTOUT,

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Respondent.

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

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his fifteen-year sentence,

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imposed in September 2009 following a conviction in the Sacramento County Superior Court for

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assault with a firearm and threatening a public officer, along with firearm enhancements. (Dkt.

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No. 1 at 1, 15-16.) Petitioner claims that the trial court erred in failing to stay a portion of his

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sentence pursuant to California Penal Code section 654. (Id. at 26-33.)

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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 exhibits that petitioner is not

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

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of 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). Habeas corpus cannot be utilized to try state

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issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972). “So long as the type of

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punishment is not based upon any proscribed federal grounds such as being cruel and unusual,

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racially or ethnically motivated, or enhanced by indigency, the penalties for violations of state

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statutes are matters of state concern.” Makal v. Arizona, 544 F.2d 1030, 1035 (9th Cir. 1976).

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In challenging the trial court’s application of state sentencing law, petitioner has

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not raised a claim upon which federal habeas relief may be granted. Thus the undersigned will

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recommend that the petition be summarily dismissed pursuant to Rule 4.

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Accordingly, IT IS HEREBY RECOMMENDED THAT the petition be dismissed
pursuant to Rule 4 of the Rules Governing Habeas Cases Under Section 2254.

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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 fourteen

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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." In his objections petitioner

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may address whether a certificate of appealability should issue in the event he files an appeal of

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the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district

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court must issue or deny a certificate of appealability when it enters a final order adverse to the

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applicant). Petitioner is advised that failure to file objections within the specified time may

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/////

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

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1991).

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Dated: April 15, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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quil0384.Rule4

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