Wheeler v. Lizarraga
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 12/3/2018 RECOMMENDING that this action be summarily dismissed for failure to state a claim upon which relief may be granted. Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Huang, H)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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WILLIE WHEELER,
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Petitioner,
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No. 2:15-cv-1629 MCE DB P
v.
FINDINGS AND RECOMMENDATIONS
JOE LIZARRAGA, WARDEN,
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Respondent.
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Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed an
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application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to
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a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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I.
PROCEDURAL HISTORY
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On July 30, 2015, petitioner filed a petition for writ of habeas corpus. (ECF No. 1).
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Thereafter, the matter was reassigned to the undersigned on August 2, 2016. (ECF No. 12). The
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petition was screened, and on May 23, 2017, after finding that the petition was overly vague and
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did not state a cognizable claim (see ECF No. 14 at 3), petitioner was directed to file a first
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amended petition. (ECF No. 14). On June 15, 2017, petitioner filed an amended petition. (ECF
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No. 17). The court screens it herein.
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II.
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RELEVANT FACTS
In the first amended petition, petitioner states the following: On November 6, 2012, he
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was convicted of conspiracy to bring a controlled substance into prison in violation of California
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Penal Code §§ 182(a)(1) and 4573. (See generally ECF No. 17 at 1). As a result, he was
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sentenced to thirty-two months in prison, pursuant to California Penal Code §§ 1170.12(a)-(d)
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and 667(b)-(i). (See ECF No. 17 at 6).
On September 28, 2014, California’s Fair Sentencing Act was approved by Governor
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Brown and filed with the Secretary of State. (See ECF No. 17 at 8). The Act, petitioner argues,
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prohibits a grant of probation or the suspension of sentence of someone who was convicted of
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either possessing for sale or of selling a substance containing 28.5 grams of a controlled
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substance. (See ECF No. 17 at 8). However, because petitioner was convicted of violating
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Section 4573 with only 24.09 grams of heroin – which is less than the Act’s new 28.5-gram level
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cap – he contends that he is eligible for either a grant of probation or for a suspension of his
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sentence. (See ECF No. 17 at 8).
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III.
LEGAL STANDARDS
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Rule 4 of the Habeas Rules Governing Section 2254 Cases requires the court to
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summarily dismiss a habeas petition “[i]f it plainly appears from the petition and any attached
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exhibits that the petitioner is not entitled to relief in the district court.” A person in custody
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pursuant to the judgment of a state court can obtain a federal writ of habeas corpus “only on the
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ground that he is in custody in violation of the Constitution or laws or treaties of the United
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States.” 28 U.S.C. § 2254(a). Federal habeas relief is not available for alleged errors of state law.
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28 U.S.C. § 2254(a); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985); Lewis v. Jeffers,
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497 U.S. 764, 780 (1990).
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It is not the province of a federal habeas court to re-examine state-court determinations on
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state-law questions. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Absent a showing of
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fundamental unfairness, a state court’s misapplication of its own sentencing laws does not justify
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federal habeas relief. Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994).
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III.
DISCUSSION
Petitioner contends that under California’s Fair Sentencing Act, his sentence is
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unconstitutional, and that as a result, he should be resentenced. (ECF No. 17 at 6-8). It appears
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that he has appealed his sentence, that he has made these arguments in the state appellate courts,
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and that all of his state appeals have been denied. (See generally ECF No. 17 at 2) (petitioner’s
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state appellate history). Although petitioner uses the word “unconstitutional” in the instant
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petition, the use of that word alone does not transport his claim, which solely questions the
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propriety of the application of state law, into the realm of claims properly subject to federal
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habeas review. See, e.g., Hill v. Lizzaraga, No. 15-cv-6132 BRO AJW, 2015 WL 8923107, at *2
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(C.D. Cal. Nov. 2, 2015) (addressing petitioner’s claims related to state application of
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California’s Fair Sentencing Act and finding state sentencing issues generally not cognizable in
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federal habeas action). Furthermore, petitioner has not shown that the state court misapplied its
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own sentencing laws and that any application of the law was fundamentally unfair. See generally
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Christian, 42 F.3d at 469.
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In sum, the petition is not properly before this court, and it fails to state a claim upon
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which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). When it is clear that a petition
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lacks merit, the court may dismiss it. See O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.
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1990), cert. denied, 48 U.S. 1096 (1991) (stating Rule 4 of Rules Governing Section 2254
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explicitly allows district court to summarily dismiss petition on merits when no claim for relief
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stated) (citation omitted).
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Accordingly, IT IS HEREBY RECOMMENDED that this action be summarily dismissed
for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii).
These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days
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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.” Failure to file objections within the specified time
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may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455
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(9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may
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address whether a certificate of appealability should issue in the event he files an appeal of the
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judgment in this case. See 28 U.S.C. § 2253(c)(2).
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Dated: December 3, 2018
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DLB:13
DB/ORDERS/ORDERS.PRISONER.HABEAS/whee1629.scrn.fap.f&r
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