Bontemps v. People of the State of California

Filing 5

ORDER signed by Magistrate Judge Allison Claire on 6/29/2017 GRANTING petitioner's 3 application to proceed IFP. Within 30 days, petitioner shall SHOW CAUSE, in writing, why his petition should not be dismissed for failure to state a cognizable federal claim. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY C. BONTEMPS,

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Petitioner,

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v.

No. 2:16-cv-02993 AC P

ORDER

PEOPLE OF THE STATE OF
CALIFORNIA,
Respondent.

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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to

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28 U.S.C. § 2254. He has filed a petition (ECF No. 1) which, for the reasons stated below, does

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not state any viable federal claim. Petitioner has also filed an application to proceed in forma

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pauperis, which will be granted. ECF No. 3.

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I.

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Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford

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Application to Proceed In Forma Pauperis

the costs of suit and his application will be granted.

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II.

Legal Standards

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The court must dismiss a habeas petition or portion thereof if the prisoner raises claims

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that are legally “frivolous or malicious” or fail to state a basis on which habeas relief may be

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granted. 28 U.S.C. § 1915A(b)(1),(2). The court must dismiss a habeas petition “[i]f it plainly
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appears from the petition and any attached exhibits that the petitioner is not entitled to relief[.]”

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Rule 4 Governing Section 2254 Cases.

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III.

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The conviction underlying this petition occurred on May 14, 2010 in the Sacramento

Background

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County Superior Court. ECF No. 1 at 1. Petitioner was sentenced as a “three-striker” (Cal. Penal

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Code §§ 667(b)-(i), 1170.12(a)-(d)) and given twenty-five years to life. ECF No. 1 at 1. The

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petition indicates that, on September 2, 2016, the state court of appeal declined to address the

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merits of his petition for resentencing after determining that it was untimely. Id. at 23-27. The

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California Supreme Court then denied his petition for review of that decision. Id. at 34.

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He now argues that the California Supreme Court’s 2015 decision in People v. Johnson, 61

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Cal.4th 674, 681-82 (2015) entitles him to a merits decision from this court on his petition for

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sentencing relief. ECF No. 1 at 5-8.

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IV.

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This petition fails to state a cognizable federal habeas claim. Petitioner is not entitled to

Analysis

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habeas relief unless his detention violates the Constitution, a federal statute, or a treaty. 28

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U.S.C. § 2241(c)(3). The immediate challenge is most appropriately construed as a challenge to

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the state’s post-conviction review process. Federal habeas relief is not available for petitions

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alleging only error in the state post-conviction review process. See Estelle v. McGuire, 502 U.S.

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62, 67-68 (1991) (holding that habeas court will not review state law questions); see also Franzen

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v. Brinkman, 877 F.2d 26 (9th Cir. 1989).

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The same is true even if the petition is construed as a challenge to petitioner’s state

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sentence itself – another issue that sounds purely in state law. “[I]t is not the province of a federal

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habeas court to reexamine state court determinations on state law questions.” Wilson v.

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Corcoran, 562 U.S. 1, 5 (2010); see also Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994)

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(“Absent a showing of fundamental unfairness, a state court’s misapplication of its own

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sentencing laws does not justify federal habeas relief.”). Petitioner has not made a prima facie, or

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indeed alleged any facts, showing that his sentence is fundamentally unfair or that it is “so

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arbitrary or capricious” that it constitutes an independent due process violation. See Richmond v.

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Lewis, 506 U.S. 40, 50 (1992).

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Petitioner has consented to the magistrate judge’s jurisdiction (ECF No. 4) and,

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consequently, will not have an opportunity to object to the dismissal of this petition on screening.

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Accordingly, the court will afford petitioner an opportunity to show cause why his petition should

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not be dismissed with prejudice. Petitioner’s response to this order should explain why his

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petition may be construed to state a cognizable federal habeas claim.

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V.

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It is HEREBY ORDERED that:

Conclusion

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1.

Petitioner’s application to proceed in forma pauperis (ECF No. 3) is granted; and

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2.

Within thirty days from the date of this order’s entry, petitioner shall show cause,

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in writing, why his petition should not be dismissed for failure to state a cognizable federal claim.

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DATED: June 29, 2017

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