Mouzon v. Ahlin

Filing 13

ORDER DISMISSING PETITION WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 10/12/11. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 10/12/2011)

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*E-Filed 10/12/11*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

United States District Court
For the Northern District of California

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ALFONSO MOUZON,

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Petitioner,

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No. C 11-2907 RS (PR)
ORDER DISMISSING PETITION
WITH LEAVE TO AMEND

v.
PAM ALIN,
Respondent.
/
INTRODUCTION
This is a federal habeas corpus action filed pursuant to 28 U.S.C. § 2254 by a pro se

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state prisoner. The petition is now before the Court for review pursuant to 28 U.S.C. § 2243

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and Rule 4 of the Rules Governing Section 2254 Cases. Petitioner has paid the filing fee.

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DISCUSSION

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This Court may entertain a petition for writ of habeas corpus “in behalf of a person in

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

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

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A district court considering an application for a writ of habeas corpus shall “award the writ

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or issue an order directing the respondent to show cause why the writ should not be granted,

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No. C 11-2907 RS (PR)
ORDER DISMISSING PETITION

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unless it appears from the application that the applicant or person detained is not entitled

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thereto.” 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in

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the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See

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Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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Petitioner challenges his detention imposed by a 2006 determination by the Alameda

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County Superior Court that he is a sexually violent predator (“SVP”) under California law, a

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determination upheld by the state supreme court against petitioner’s 2010 challenge to his

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on-going detention. As grounds for federal habeas relief, petitioner claims that (1) the SVP

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evaluators’ handbook was adopted in violation of state laws and regulations; (2) his SVP

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determination is void because the handbook was illegally adopted; (3) the evaluations in

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support of SVP charges were invalid because the handbook was illegally adopted; (4) his

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detention pursuant to the illegal regulations violates his right to due process; and (5) his civil

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commitment pursuant to the invalid protocol violates his right to due process.

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The petition is DISMISSED with leave to amend because it fails to state grounds for

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federal habeas relief. Petitioner’s claims are predicated on the theory that the handbook was

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adopted in violation of state law. State law claims are not remediable on federal habeas

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review, even if state law was erroneously interpreted or applied. See Swarthout v. Cooke,

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131 S. Ct. 859, 861–62 (2011). It is also unavailable merely because “something in the state

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proceedings was contrary to general notions of fairness or violated some federal procedural

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right unless the Constitution or other federal law specifically protects against the alleged

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unfairness or guarantees the procedural right in state court.” Middleton v. Cupp, 768 F.2d

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1083, 1085 (9th Cir. 1985). Furthermore, a petitioner may not “transform a state-law issue

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into a federal one merely by asserting a violation of due process.” Longford v. Day, 110 F.3d

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1380, 1389 (9th Cir. 1996). Rather, a petitioner must show that the state court’s

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determination infringes upon a specific federal constitutional or statutory provision or by

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depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley

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v. Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919–20 (9th Cir.

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No. C 11-2907 RS (PR)
ORDER DISMISSING PETITION

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1991);

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put forth claims alleging specific facts that his federal constitutional or statutory rights were

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violated.

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Middleton, 768 F.2d at 1085. Therefore, in his amended petition, petitioner must

Accordingly, the petition is DISMISSED with leave to amend. Petitioner shall file an

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amended petition addressing the concerns detailed above within 30 days from the date this

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order is filed. The first amended petition must include the caption and civil case number

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used in this order (11-2907 RS (PR)) and the words FIRST AMENDED PETITION on the

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first page. Because an amended petition completely replaces the previous petitions,

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petitioner must include in his first amended petition all the claims he wishes to present.

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Petitioner may not incorporate material from the prior petition by reference. Failure to file an

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amended petition in accordance with this order will result in dismissal of this action, pursuant

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to Fed. R. Civ. P. 41(b), for failure to prosecute.

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IT IS SO ORDERED.
DATED: October 12, 2011
RICHARD SEEBORG
United States District Judge

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No. C 11-2907 RS (PR)
ORDER DISMISSING PETITION