Perkins v. Price

Filing 6

ORDER signed by Magistrate Judge Carolyn K. Delaney on 9/27/2017 GRANTING petitioner's 5 motion to proceed IFP and SUMMARILY DISMISSING petitioner's application for a writ of habeas corpus. The court DECLINES to issue a certificate of appealability and the Clerk shall enter judgment and close this case. CASE CLOSED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTRON PERKINS,

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No. 2:17-cv-01589 CKD P

Petitioner,

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v.

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J. PRICE,

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ORDER

Respondent.

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

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corpus pursuant to 28 U.S.C. § 2254, together with a motion to proceed in forma pauperis. ECF

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Nos. 1, 5. Examination of the in forma pauperis application reveals that petitioner is unable to

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afford the costs of suit. Accordingly, the motion to proceed in forma pauperis will be granted.

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See 28 U.S.C. § 1915(a).
On August 10, 2017, petitioner filed his consent to have the undersigned magistrate judge

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conduct all further proceedings and enter judgment in this case. See 28 U.S.C. § 636(c); ECF No.

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4.

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I.

Background

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Petitioner was convicted of Assault with a Semi-Automatic Firearm in the Sacramento

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County Superior Court in 1999 following a jury trial. ECF No. 1 at 1. He was sentenced to a

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determinate term of twenty five years and four months in prison. Id. In his federal habeas
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application petitioner raises a single claim for relief based on California Senate Bill No. 261

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which provides a youthful offender parole hearing for inmates who committed their crimes when

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they were under 23 years of age. Petitioner complains about the Board of Parole Hearings’ delay

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in scheduling him for a youthful offender parole hearing which will not take place until after his

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earliest possible release date.

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II.

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Screening Standards
Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 provides for

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summary dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and

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any attached exhibits that the petitioner is not entitled to relief in the district court….” See also

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O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (“[R]ule 4 ... ‘explicitly allows a district

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court to dismiss summarily the petition on the merits when no claim for relief is stated’”), quoting

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Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983). A petition for habeas corpus should

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not be dismissed without leave to amend unless it appears that no tenable claim for relief can be

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pleaded were such leave to be granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

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III.

Discussion

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In the instant case, it is plain from the petition and the attached exhibits that petitioner is not

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entitled to federal habeas relief. Petitioner’s claim is not cognizable in federal habeas corpus

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proceedings because it only raises a question of state law concerning the Board of Parole

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Hearings’ implementation of Senate Bill 261. See 28 U.S.C. § 2254(a) (stating that habeas

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corpus relief is available only on the ground that petitioner “is in custody in violation of the

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Constitution or laws or treaties of the United States.”); Lewis v. Jeffers, 497 U.S. 764, 783

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(1990). Therefore, the petition should be summarily dismissed. Additionally, there is no tenable

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federal claim for relief that can be pleaded in an amended federal habeas petition so leave to

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amend will not be granted.

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IV.

Certificate of Appealability

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There is no right of appeal from a district court's final order in a habeas corpus proceeding

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without first obtaining a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P.

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22(b). Where, as here, the petition was dismissed on procedural grounds, a certificate of
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appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it

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debatable whether the district court was correct in its procedural ruling’; and (2) ‘that jurists of

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reason would find it debatable whether the petition states a valid claim of the denial of a

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constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v.

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McDaniel, 529 U.S. 473, 484 (2000)). Since the petition fails to facially allege the denial of a

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constitutional right and jurists of reason would not find the district court’s procedural ruling

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debatable, a certificate of appealability is not warranted. See Morris v. Woodford, 229 F.3d 775,

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780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

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Accordingly, IT IS HEREBY ORDERED that:
Petitioner’s motion to proceed in forma pauperis, ECF No. 5, is granted;

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1.

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2. Petitioner’s application for a writ of habeas corpus is summarily dismissed;

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3. The court declines to issue a certificate of appealability; and

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4. The Clerk of Court is directed to enter judgment and close this case.

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Dated: September 27, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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12/Perk1589.156b

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