(HC) West v. Cates

Filing 6

ORDER signed by Magistrate Judge Jeremy D. Peterson on 4/26/2021 ORDERING petitioner may file an amended petition within 60 days. The Clerk shall send petitioner a federal habeas form. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JERRY WEST, JR.,

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Petitioner,

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v.

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Case No. 2:21-cv-00410-KJM-JDP (HC)
ORDER FINDING THAT THE PETITION
DOES NOT STATE A COGNIZABLE
FEDERAL CLAIM AND GIVING LEAVE TO
AMEND WITHIN SIXTY DAYS

BRIAN CATES,
ECF No. 1

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Respondent.

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Petitioner Jerry West, Jr., a state prisoner proceeding without counsel, seeks a writ of

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habeas corpus under 28 U.S.C. § 2254. ECF No. 1. The petition is before me for preliminary

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review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge

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assigned to the habeas proceeding must examine the habeas petition and order a response to the

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petition unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v.

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Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th

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Cir. 1998). For the reasons stated below, it plainly appears that petitioner is not entitled to relief.

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I will give petitioner an opportunity to amend before recommending that the petition be

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dismissed.

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Petitioner raises two claims. First, he argues that the state appellate court should have

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remanded his case so that the trial court could exercise its discretion, under California state law,

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to strike a five-year prior serious felony sentencing enhancement. ECF No. 1 at 2. But a state

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court’s interpretation of state sentencing laws is not reviewable by a federal habeas court. See

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Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (rejecting claim that a state court misapplied its own

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aggravating circumstance because “federal habeas corpus relief does not lie for errors of state law

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. . . .”); see also Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In conducting habeas review, a

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federal court is limited to deciding whether a conviction violated the Constitution, laws, or

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treaties of the United States.”).

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Second, petitioner argues that the trial court violated his due process rights by imposing

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mandatory fees without assessing whether he had the ability to pay for them. The Supreme Court

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has held that a state may not impose a fine as a sentence and then convert it into a jail term solely

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because of a defendant’s indigency. Bearden v. Georgia, 461 U.S. 660, 667-68 (1983). But the

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brief attached to the petition concedes that petitioner is not incarcerated because of his indigency.

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ECF No. 1 at 39. The Ninth Circuit has held that petitions that attack restitution but would not

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directly impact a petitioner’s liberty are not cognizable on federal habeas review. See Bailey v.

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Hill, 599 F.3d 976, 981 (9th Cir. 2010).

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I will allow petitioner to amend his petition before I recommend that it be dismissed.

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It is ORDERED that:

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1.

Petitioner may file an amended petition within sixty days of this order’s entry. If

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he does not, I will recommend that the current petition be dismissed for the reasons stated in this

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order.

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2.

The Clerk of Court is directed to send petitioner a federal habeas form.

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IT IS SO ORDERED.

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Dated:
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April 26, 2021
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE
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