Chandler v. McComver

Filing 23

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 02/12/16 recommending that respondent's motion to dismiss 13 be granted. MOTION to DISMISS 13 referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, 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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GREGORY A. CHANDLER,

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Petitioner,

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No. 2:14-CV-1753-GEB-CMK-P

vs.

FINDINGS AND RECOMMENDATIONS

J. McCOVER,

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Respondent.

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/

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Petitioner, a state prisoner 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 respondent’s motion to

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dismiss (Doc. 13).

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In his petition, petitioner raises one claim – that the state court committed errors

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of state law with respect to prior convictions and sentencing. Specifically, petitioner claims that

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the state court misapplied the California Three Strikes Reform Act of 2012 in denying

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resentencing in April 2013. Respondent argues that this claim is not cognizable on federal

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habeas review. The court agrees.

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

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transgression of federal law binding on the state courts. See Middleton v. Cupp, 768 F.2d 1083,

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1085 (9th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). It is not

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available for alleged error in the interpretation or application of state law. Middleton, 768 F.2d at

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1085; see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786

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F.2d 1378, 1381 (9th Cir. 1986). Habeas corpus cannot be utilized to try state issues de novo.

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See Milton v. Wainwright, 407 U.S. 371, 377 (1972).

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In this case, petitioner’s claim relates to the manner in which petitioner’s sentence
was determined under state law. Similar claims have been found to be non-cognizable. “The

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decision whether to impose sentences consecutively or concurrently is a matter of state criminal

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procedure and is not within the purview of federal habeas corpus.” Cacoperdo v. Demosthenes,

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37 F.3d 504, 507 (9th Cir. 1994); see also Markey v. Brown, 2008 WL 552438 (E.D. Cal. May 7,

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2008). Similarly, whether a prior offense constitutes a “strike” under California’s repeat offender

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law is not cognizable on federal habeas review. See Miller v. Vasquez, 868 F.2d 1116, 1118-19

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(9th Cir. 1989) (holding that whether a prior conviction constitutes a “strike” under California

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Penal Code § 667(a) is a question of state law and does not state a federal question); see also

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Cooper v. Supreme Court of California, 2014 WL 198708 (C.D. Cal. Jan. 16, 2014) (rejecting

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petitioner’s due process challenge to state court’s denial of application for resentencing under the

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California Three Strikes Reform Act).

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Based on the foregoing, the undersigned recommends that respondent’s motion to
dismiss (Doc. 13) be granted.

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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: February 12, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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