Sermeno v. Sherman

Filing 9

ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 1/5/17 ORDERING that petitioner's 2 request to proceed in forma pauperis is GRANTED; and it is RECOMMENDED that this action be dismissed without prejudice. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY A. SERMENO,

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No. 2:16-cv-2423 JAM KJN P

Petitioner,

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v.

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STU SHERMAN,

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ORDER AND FINDINGS AND
RECOMMENDATIONS
Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.
Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford

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the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See

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28 U.S.C. § 1915(a).
Petitioner challenges his 2012 conviction in Butte County, and claims that the attorney

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appointed to represent him in the juvenile court proceedings was ineffective, and such

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ineffectiveness renders the subsequent proceedings void and unenforceable. While not entirely

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clear, it appears that petitioner contends he should have been allowed to argue that his son, Noah,

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served as a strong mitigating circumstance that would require a more lenient determination of

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fitness, entitling petitioner to be rehabilitated in the juvenile justice system, rather than tried as an

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adult.
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Petitioner appears to allege state law violations by the state juvenile court arising from his

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juvenile fitness hearing. However, a federal court, in conducting habeas review, is limited to

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deciding whether a state court decision violates the Constitution, laws or treaties of the United

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States. 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam); Estelle

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v. McGuire, 502 U.S. 62, 67-68 (1991). Federal habeas corpus relief “does not lie for errors of

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state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990); McGuire, 502 U.S. at 67; see also Wilson

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v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (“[I]t is only noncompliance with federal law that

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renders a State’s criminal judgment susceptible to collateral attack in the federal courts.”).

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Accordingly, it appears that petitioner’s claims are not cognizable in this proceeding.
Nor is this result changed by petitioner’s reference to due process. (ECF No. 1 at 33.)

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Petitioner “may not transform a state-law issue into a federal one merely by asserting a violation

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of due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997); see also Little v.

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Crawford, 449 F.3d 1075, 1083 n.6 (9th Cir. 2006) (“‘We cannot treat a mere error of state law, if

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one occurred, as a denial of due process; otherwise, every erroneous decision by a state court on

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state law would come here as a federal constitutional question.’” (citation omitted)).
Moreover, petitioner’s claims appear to be unexhausted. The exhaustion of state court

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remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C.

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§ 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent’s counsel.

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28 U.S.C. § 2254(b)(3).1 A waiver of exhaustion, thus, may not be implied or inferred. A

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petitioner satisfies the exhaustion requirement by providing the highest state court with a full and

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fair opportunity to consider all claims before presenting them to the federal court. Picard v.

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Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert.

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denied, 478 U.S. 1021 (1986). Here, petitioner states that his claims are pending in the California

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Supreme Court. (ECF No. 1 at 15.)

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Finally, the instant habeas petition was filed with the court on October 11, 2016. The
court’s own records reveal that on November 20, 2014, petitioner filed a habeas petition
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A petition may be denied on the merits without exhaustion of state court remedies. 28 U.S.C.
§ 2254(b)(2).
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challenging his 2012 conviction, which is presently pending. Sermeno v. Spearman, No. 2:14-cv-

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2729 DB (E.D. Cal.).2 In order to avoid the dismissal of a subsequent habeas petition as

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successive, 28 U.S.C. § 2244(b)(3), petitioner must raise all challenges to his 2012 criminal

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conviction in one federal habeas petition. Thus, petitioner may seek leave to amend his petition

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in Case No. 2:14-cv-2729 DB. Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (if a new

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petition is filed when a previous habeas petition is still pending before the district court without a

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decision having been rendered, then the new petition should be construed as a motion to amend

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the pending petition). However, court records reflect that petitioner filed an amended petition on

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September 16, 2015; therefore, petitioner must seek leave of court in Case No. 2:14-cv-2729 DB

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to file any amended petition challenging the 2012 conviction. Fed. R. Civ. P. 15(a).

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For all of the above reasons, the undersigned recommends that this action be dismissed
without prejudice.
Accordingly, IT IS HEREBY ORDERED that petitioner’s request to proceed in forma

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pauperis is granted; and

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IT IS RECOMMENDED that this action be dismissed without prejudice. See Fed. R. Civ.
P. 41(b).

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These findings and recommendations are submitted to the District Judge assigned to this

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case pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served

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with these findings and recommendations, petitioner may file written objections with the court.

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The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Petitioner is advised that failure to file objections within the specified time

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

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Cir. 1991).

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Dated: January 5, 2017

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serm2423.114

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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d
500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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