Hall v. Fox

Filing 10

ORDER signed by Magistrate Judge Deborah Barnes on 6/22/2017 GRANTING 2 Motion to Proceed IFP; DENYING 6 Motion to Appoint Counsel; and DISMISSING with leave to amend 1 Petition. Petitioner to file amended petition within 30 days of the date of this order. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES EARL HALL,

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No. 2:16-cv-2628 DB P

Petitioner,

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v.

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ROBERT FOX,

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ORDER

Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus

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under 28 U.S.C. § 2254. Before the court is petitioner’s petition, motion to proceed in forma

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pauperis (“IFP”), and motion to appoint counsel. (ECF Nos. 1; 2; 6.) For the reasons set for the

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below, this court will grant petitioner’s request to proceed IFP, dismiss the petition, provide

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petitioner an opportunity to amend the petition, and deny petitioner’s motion to appoint counsel.

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BACKGROUND

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Petitioner initiated this action in November of 2016 by filing a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Therein, petitioner challenges his

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1998 conviction and sentence rendered by the Placer County Superior Court.

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APPLICATION TO PROCEED IFP
Examination of the affidavit accompanying petitioner’s motion to proceed IFP reveals he

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is unable to afford the costs of this action. Accordingly, leave to proceed IFP is granted. 28

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U.S.C. § 1915(a).

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SCREENING
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Legal Standards
The court is required to screen all actions brought by prisoners who seek any form of

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relief, including habeas relief, from a governmental entity or officer or employee of a

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governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a habeas petition or portion

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thereof if the prisoner raises claims that are legally “frivolous or malicious” or fail to state a basis

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on which habeas relief may be granted. 28 U.S.C. § 1915A(b)(1),(2). This means the court must

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dismiss a habeas petition “[i]f it plainly appears from the petition and any attached exhibits that

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the petitioner is not entitled to relief[.]” Rule 4 Governing Section 2254 Cases.

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Rule 11 of the Rules Governing Section 2254 Cases provides that “[t]he Federal Rules of

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Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these

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rules, may be applied to a proceeding under these rules.” Drawing on the Federal Rules of Civil

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Procedure, when considering whether a petition presents a claim upon which habeas relief can be

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granted, the court must accept the allegations of the petition as true, Erickson v. Pardus, 551 U.S.

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89, 94 (2007), and construe the petition in the light most favorable to the petitioner, see Scheuer

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v. Rhodes, 416 U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than

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those drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), but “[i]t is well-settled that

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‘[c]onclusory allegations which are not supported by a statement of specific facts do not warrant

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habeas relief.’” Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (quoting James v. Borg, 24

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F.3d 20, 26 (9th Cir. 1994)). See also Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir. 2002) (“Pro

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se habeas petitioners may not be held to the same technical standards as litigants represented by

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counsel.”); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“[T]he petitioner is not entitled

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to the benefit of every conceivable doubt; the court is obligated to draw only reasonable factual

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inferences in the petitioner's favor.”)
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Rule 2(c) of the Rules Governing § 2254 Cases requires every habeas petition to (1)

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specify all the grounds for relief available to the petitioner; (2) state the facts supporting each

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ground; and (3) state the relief requested. Although, as stated above, pro se petitions receive less

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scrutiny for precision than those drafted by lawyers, a petitioner must give fair notice of his

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claims by stating the factual and legal elements of each claim in a short, plain, and succinct

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manner. See Mayle v. Felix, 545 U.S. 644, 648 (2005) (“In ordinary civil proceedings ... Rule 8

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of the Federal Rules of Civil Procedure requires only 'a short and plain statement[.] ... Rule 2(c)

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of the Rules Governing Habeas Corpus Cases requires a more detailed statement.”) Allegations

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in a petition that are vague, conclusory, or palpably incredible, and that are unsupported by a

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statement of specific facts, are insufficient to warrant relief and are subject to summary dismissal.

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Jones v. Gomez, 66 F.3d 199, 204–05 (9th Cir.1995); James v. Borg, 24 F.3d 20, 26 (9th

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Cir.1994).

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II.

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Discussion
Petitioner claims two grounds for habeas relief in his petition: (1) That two prior

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convictions arising out of a single act do not constitute two strikes under the three strikes law; and

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(2) That the great bodily injury sentence enhancements as to counts 2 and 7 were applied

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unlawfully. (ECF No. 1.)
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes “a highly

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deferential standard for evaluating state-court rulings,” requiring “that state-court decisions be

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given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (quoting Lindh v.

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Murphy, 521 U.S. 320, 333 n. 7 (1997)). Section 2241(c) provides that habeas corpus shall not

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extend to a prisoner unless he is “in custody in violation of the Constitution.” 28 U.S.C. §

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2254(a) states, “[A] district court shall entertain an application for a writ of habeas corpus in

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

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in custody in violation of the Constitution or laws or treaties of the United States.” See also Rule

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1 to the Rules Governing Section 2254 Cases in the United States District Court. “[F]ederal

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habeas corpus relief does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67

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(1991) (citations omitted). “[E]rrors of state law do not concern us unless they rise to the level of

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a constitutional violation.” Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989).

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The Supreme Court has held that “the essence of habeas corpus is an attack by a person in

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custody upon the legality of that custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). To

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succeed in a petition pursuant to Section 2254, a petitioner must demonstrate that the adjudication

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of his claim in state court “resulted in a decision that was contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined by the Supreme Court of the United

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States; or resulted in a decision that was based on an unreasonable determination of the facts in

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light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2).

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Petitioner may only seek habeas relief if the nature or duration of his imprisonment violates

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federal constitutional provisions.

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A.

Ground One

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As stated above, ground one of the petition asserts that the sentencing court erred in

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construing two prior convictions arising out of a single act to constitute two strikes under the

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three strikes law. (ECF No. 1 at 7-12.) A federal court can grant habeas relief only if the

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petitioner has demonstrated that the state court violated the United States constitution or federal

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law. Swarthout v. Cooke, 562 U.S. 216, 219 (2011). “‘[F]ederal habeas corpus relief does not lie

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for errors of state law.’” McGuire, 502 U.S. at 67 (quoting Lewis v. Jeffers, 497 U.S. 764, 780

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(1990)).

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Because this ground only alleges a violation of California state sentencing law, this claim

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is not recognized in a federal habeas proceeding. Accordingly, this claim is dismissed. However,

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petitioner may file an amended petition that attempts to challenge a decision that is “contrary to,

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or involved an unreasonable application of, clearly established Federal law[.]” 28 U.S.C. §

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2254(d)(1) (emphasis supplied).

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B.

Ground Two

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As with the first ground, petitioner’s second claim for relief challenges the application of

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California sentencing law. Specifically, petitioner challenges the sentencing court’s application

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of the “great bodily injury” enhancement, arguing that “[t]he state Court criteria were
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improper[ly] applied, and [the trial court] made [an] incorrect legal assumption in Petitioner’s

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case.” (ECF No. 1 at 13-18.) This challenge to petitioner’s sentence thus sounds solely in state

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sentencing law and does not attempt to demonstrate that the state court violated the United States

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constitution or federal law. As the explained above, a state court's violation of the state penal

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code does not constitute a cognizable claim in federal habeas review. See Swarthout, 562 U.S. at

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219; McGuire, 502 U.S. at 67. Accordingly, ground two would not state a claim cognizable in

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federal habeas proceedings.

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For these reasons, this claim is dismissed. However, petitioner may file an amended
petition that attempts to challenge a decision that is “contrary to, or involved an unreasonable
application of, clearly established Federal law[.]” 28 U.S.C. § 2254(d)(1) (emphasis supplied).
MOTION TO APPOINT COUNSEL
Petitioner has requested the appointment of counsel. (ECF No. 6.) There currently exists

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no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105

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F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of

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counsel at any stage of the case “if the interests of justice so require.” See Rule 8(c), Fed. R.

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Governing § 2254 Cases. In the present case, the court does not find that the interests of justice

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would be served by the appointment of counsel at the present time. While the court has found the

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petition to not state cognizable federal claims, the undersigned finds that the claims stated are

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articulated clearly and presented with substantial underlying support in case law.

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Accordingly, petitioner’s request for appointment of counsel (ECF No. 6) is denied
without prejudice to a renewal of the motion at a later stage of the proceedings.
CONCLUSION

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For the foregoing reasons, IT IS HEREBY ORDERED as follows:

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1. Petitioner’s application to proceed IFP (ECF No. 2) is granted.

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2. Petitioner’s motion to appoint counsel (ECF No. 6) is denied.

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3. Petitioner’s petition (ECF No. 1) is dismissed with leave to amend.

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4. Within thirty days of the date of this order, petitioner shall file an amended petition.

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The amended petition shall include the case number assigned to this action and shall
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be titled “First Amended Petition.” Petitioner is warned that the court cannot refer to

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his prior petition to make his First Amended Petition complete. Petitioner must

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include all claims for habeas corpus relief in his first amended petition.

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5. The Clerk of the Court is directed to send petitioner a copy of the form used in this
district for pursuing a writ of habeas corpus under 28 U.S.C. § 2254.
6. Petitioner is warned that his failure to comply with this order may result in dismissal
of this action.
Dated: June 22, 2017

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TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.HABEAS / hall.2628.scrn.110

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