McAtee v. Hartley

Filing 5

ORDER DISMISSING CASE. Signed by Judge William Alsup on 1/27/12. (Attachments: # 1 Certificate of Service)(dt, COURT STAFF) (Filed on 1/27/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL S. McATEE,

No. C 11-6695 WHA (PR)

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For the Northern District of California

United States District Court

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Petitioner,

ORDER OF DISMISSAL

v.

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JAMES HARTLEY, Warden,
(Docket No. 2)
Respondent.

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/

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INTRODUCTION

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

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corpus pursuant to 28 U.S.C. 2254 challenging the constitutionality of his state court sentence.

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He has applied for leave to proceed in forma pauperis. For the reasons stated below, the

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petition is DISMISSED for failure to state a cognizable claim for relief.
ANALYSIS

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A.

STANDARD OF REVIEW

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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); Rose

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v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading

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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ

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of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state
court must “specify all the grounds for relief which are available to the petitioner ... and shall

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set forth in summary form the facts supporting each of the grounds thus specified.” Rule 2(c) of

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the Rules Governing Section 2254 Cases, 28 U.S.C. foll. 2254. “‘[N]otice’ pleading is not

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sufficient, for the petition is expected to state facts that point to a ‘real possibility of

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constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d

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688, 689 (1st Cir. 1970)).

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B.

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LEGAL CLAIMS

Petitioner claims that his attorney provided ineffective assistance of counsel at

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sentencing. Specifically, he complains that she failed to research a legal issue that would

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have prevented the sentencing judge from recusing himself and petitioner from being

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For the Northern District of California

United States District Court

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sentenced by a different judge.
A district court may not grant a petition challenging a state conviction or sentence on the

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basis of a claim that was reviewed on the merits in state court unless the state court's

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adjudication of the claim: “(1) resulted in a decision that was contrary to, or involved an

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unreasonable application of, clearly established Federal law, as determined by the Supreme

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Court of the United States; or (2) resulted in a decision that was based on an unreasonable

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determination of the facts in light of the evidence presented in the State court proceeding.” 28

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U.S.C. 2254(d).

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The Supreme Court has not decided what standard should apply to counsel's

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performance in non-capital sentencing proceedings. Cooper-Smith v. Palmateer,

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397 F.3d 1236, 1244 (9th Cir. 2005). Strickland declined to "'consider the role of counsel in an

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ordinary sentencing, which . . . may require a different approach to the definition of

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constitutionally effective assistance,'" and no later Supreme Court decision has done so, either.

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Ibid. (quoting Strickland, 466 U.S. at 686). Consequently, there is no “clearly established”

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Supreme Court precedent governing ineffective assistance of counsel claims in the noncapital

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sentencing context, and federal habeas relief is not available under Section 2254(d)(1) on the

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basis of such claims. See Davis v. Grigas, 443 F.3d 1155, 1158-59 (9th Cir. 2006); Cooper-

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Smith, 397 F.3d at 1244-45. Petitioner’s claim does not implicate Section 2254(d)(2).

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Accordingly, petitioner’s claim does not present any cognizable basis for federal habeas relief.
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CONCLUSION

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In light of the foregoing, the petition for a writ of habeas corpus is DISMISSED.

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Petitioner’s application to proceed in forma pauperis is GRANTED.
Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to

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rule on whether a petitioner is entitled to a certificate of appealability in the same order in

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which the petition is dismissed. Petitioner has failed to make a substantial showing that a

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reasonable jurist would find this court’s denial of his claim debatable or wrong. Slack v.

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McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is warranted

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in this case.
The clerk shall enter judgment and close the file.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: January

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, 2012.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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