Harris v. Lewis

Filing 7

ORDER TO SHOW CAUSE, ORDER re 2 Granting Leave to Proceed In Forma Pauperis filed by Earnest S. Harris. Habeas Answer due by 5/28/2013. Signed by Judge William Alsup on 2/27/13. (Attachments: # 1 Certificate/Proof of Service)(dt, COURT STAFF) (Filed on 2/28/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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For the Northern District of California

United States District Court

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ORDER TO SHOW CAUSE;
GRANTING LEAVE TO PROCEED
IN FORMA PAUPERIS

Petitioner,

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No. C 12-6536 WHA (PR)

EARNEST S. HARRIS,

v.
LEWIS, Warden,

(Docket No. 2)

Respondent.
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INTRODUCTION

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Petitioner, a California prisoner incarcerated at Pelican Bay State Prison, filed this pro

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se petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254 challenging the calculation of

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his time credits and the validity of his sentence. For the reasons discussed below, respondent is

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ordered to show cause why the petition should not be granted based on petitioner’s two

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cognizable claims, and his other three claims are dismissed. He is also granted leave to proceed

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in forma pauperis.

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STATEMENT
Petitioner was convicted in Del Norte County Superior Court of battery upon a non-

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prisoner, attempted battery upon a non-prisoner and other related offenses. He was sentenced to

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a term of two years and eight months in state prison. The California Court of Appeal and the

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California Supreme Court denied his appeals. His habeas petitions in the state courts also did

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not succeed.

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ANALYSIS
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
of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state

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For the Northern District of California

United States District Court

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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.

LEGAL CLAIMS

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Petitioner states that pursuant to a new California law, California Bill Number SBX3-18

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he no longer earns credits against his sentence at the rate he previously earned them. He claims

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that this violates: (1) his rights under the Ex Post Facto Clause, and (2) his plea agreement.

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When liberally construed, these claims are cognizable.

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Petitioner’s third claim is that the trial court “abused its discretion” by sentencing him to

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six months on each of two counts of attempted battery because California law does not make

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attempted battery a crime. His fourth claim is that the trial court “abused its discretion” by

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failing to sentence him to “one third the middle term,” as required by state sentencing

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guidelines. The federal habeas writ is unavailable for violations of state law or for alleged error

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in the interpretation or application of state law. See Swarthout v. Cooke, 131 S. Ct. 859, 861-62

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(2011). Claims three and four are not cognizable because they assert a violation of state law
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and do not claim any violation of federal law. Petitioner’s fifth claim is that the superior court

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erred in failing to rule on the merits of his habeas petition. Errors in the state post-conviction

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review process are not addressable through federal habeas corpus proceedings, however. Ortiz

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v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998). Consequently, petitioner’s fifth claim is also not

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cognizable.

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CONCLUSION

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1. Petitioner’s third, fourth and fifth claims, as described above, are DISMISSED.

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2. The clerk shall mail a copy of this order and the petition with all attachments to the

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respondent and the respondent's attorney, the Attorney General of the State of California. The

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For the Northern District of California

United States District Court

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clerk shall also serve a copy of this order on the petitioner.
3. Respondent shall file with the court and serve on petitioner, within ninety days of the

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issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing

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Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on

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the claims found cognizable herein. Respondent shall file with the answer and serve on

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petitioner a copy of all portions of the state trial record that have been transcribed previously

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and that are relevant to a determination of the issues presented by the petition.

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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
court and serving it on respondent within thirty days of the date the answer is filed.
4. Respondent may file, within ninety days, a motion to dismiss on procedural grounds

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in lieu of an answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules

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Governing Section 2254 Cases. If respondent files such a motion, petitioner shall file with the

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court and serve on respondent an opposition or statement of non-opposition within thirty days

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of the date the motion is filed, and respondent shall file with the court and serve on petitioner a

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reply within fifteen days of the date any opposition is filed.

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5. Petitioner is reminded that all communications with the court must be served on

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respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must

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keep the court informed of any change of address and must comply with the court's orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute
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pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772

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(5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

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5. The application for leave to proceed in forma pauperis (docket number 2) is
GRANTED in light of petitioner’s lack of funds.
IT IS SO ORDERED.

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Dated: February

27 , 2013.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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