Escarcega v. Grounds

Filing 8

ORDER OF DISMISSAL: Granting 6 Motion to dismiss. A certificate of appealability will not issue. Petitioner may seek a certificate of appealability from the Court of Appeals. (Illston, Susan) (Filed on 1/12/2012) Modified on 1/12/2012 (ysS, COURT STAFF). (Additional attachment(s) added on 1/12/2012: # 1 Certificate/Proof of Service) (tf, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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RAUL ESCARCEGA,

No. C 10-5703 SI (PR)

Petitioner,

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v.

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ORDER OF DISMISSAL

R. GROUNDS,

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Respondent.
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INTRODUCTION

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This is a federal habeas corpus action filed by a pro se state prisoner pursuant to 28

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U.S.C. § 2254. For the reasons set forth below, respondent’s motion to dismiss is GRANTED,

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and the action is hereby DISMISSED.

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BACKGROUND

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In 1984, petitioner was convicted in a Los Angeles County Superior Court of kidnapping

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for the purpose of committing robbery, and was sentenced to a term of seven years to life in

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prison, plus ten years. In 2009, the Board of Parole Hearings denied petitioner parole for a

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period of three years pursuant to California Penal Code § 3041.5, also known as “Marsy’s Law.”

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As grounds for federal habeas relief, petitioner claims that the application of this 2008-created

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law to his 1984-imposed sentence violates the Ex Post Facto Clause.

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DISCUSSION

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Marsy’s Law increased the minimum deferral period between parole hearings from one

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to three years, and the maximum deferral period from five to fifteen years. Gilman v.

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Schwarzenegger, 638 F.3d 1101, 1104 (9th Cir. 2011). Advance hearings can be held by the

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Board sua sponte, or at the request of a prisoner, though the inmate is limited to one such request

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every three years. Id. at 1105.

United States District Court
For the Northern District of California

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Petitioner’s challenge to Marsy’s Law does not state a claim remediable on federal habeas

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review. The Ninth Circuit recently reversed the grant of a preliminary injunction against

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enforcement of Marsy’s Law, holding that the plaintiffs were not likely to prevail on the merits

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of their claim that Marsy’s Law violates the Ex Post Facto Clause. Id. Gilman’s holding that

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the plaintiffs there were not likely to prevail on the merits makes clear that the state courts’

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rejections of petitioner’s Marsy’s Law claim could not have been unreasonable. Petitioner thus

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cannot obtain habeas relief on this claim. See 28 U.S.C. § 2254(d) (district court may not grant

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§ 2254 petition unless state court’s adjudication of the claim: “(1) resulted in a decision that was

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contrary to, or involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States; or (2) resulted in a decision that was

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based on an unreasonable determination of the facts in light of the evidence presented in the

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State court proceeding.”). To the extent petitioner presents a claim that state law was violated,

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such claim is dismissed. Violations of state law are not remediable on federal habeas review,

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even if state law were erroneously applied or interpreted. See Swarthout v. Cooke, 131 S. Ct.

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859, 861–62 (2011).

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“Habeas petitions which appear on their face to be legally insufficient are subject to

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summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102, 1108 (9th

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Cir. 1996) (Schroeder, J., concurring). That is the case here. Accordingly, the action is hereby

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DISMISSED.

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CONCLUSION

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For the reasons stated herein, respondent’s motion to dismiss (Docket No. 6) is

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GRANTED, and the petition DISMISSED. A certificate of appealability will not issue.

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Petitioner has not shown “that jurists of reason would find it debatable whether the petition states

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a valid claim of the denial of a constitutional right and that jurists of reason would find it

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debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529

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U.S. 473, 484 (2000). Petitioner may seek a certificate of appealability from the Court of

United States District Court
For the Northern District of California

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Appeals.
The Clerk shall terminate Docket No. 6, enter judgment in favor of respondent, and close
the file.
IT IS SO ORDERED.
DATED: January 12, 2012
SUSAN ILLSTON
United States District Judge

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