Llompart v. Shaffer

Filing 6

ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Magistrate Judge Jacqueline Scott Corley on 11/15/2016. (ahm, COURT STAFF) (Filed on 11/15/2016)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 ROBERTO A. LLOMPART, 9 Plaintiff, 10 v. 11 United States District Court Northern District of California Case No.16-cv-05497-JSC JENNIFER SHAFFER, 12 Defendant. 13 ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS Re: Dkt. No. 2 INTRODUCTION 14 Petitioner, a prisoner of the State of California proceeding pro se, has filed a habeas corpus 15 16 petition pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his continued 17 confinement.1 He has applied for leave to proceed in forma pauperis. In light of Petitioner’s lack 18 of funds, his application to proceed in forma pauperis is GRANTED. For the reasons discussed 19 below, the petition is DISMISSED. BACKGROUND 20 In 1990, Petitioner was convicted in Sonoma County Superior Court of second degree 21 22 murder. He was sentenced to a term of 15 years to life in state prison plus one year. The Board of 23 Parole Hearings has found him unsuitable for parole on multiple occasions, most recently on 24 February 4, 2016. He challenged that decision in petitions for a writ of habeas corpus in the 25 Sonoma County Superior Court and the California Court of Appeal, and in a petition for review in 26 the California Supreme Court. Those petitions were denied. Thereafter, Petitioner filed the 27 1 28 Petitioner has consented to the jurisdiction of a Magistrate Judge over his case under 28 U.S.C. § 636(c). (ECF No. 5.) 1 instant federal petition. DISCUSSION 2 3 I Standard of Review This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in 4 5 custody pursuant to the judgment of a State court only on the ground that he is in custody in 6 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). It 7 shall “award the writ or issue an order directing the respondent to show cause why the writ should 8 not be granted, unless it appears from the application that the applicant or person detained is not 9 entitled thereto.” Id. § 2243. 10 II. Discussion United States District Court Northern District of California 11 Petitioner claims that the length of his confinement --- at this point for 26 years --- is 12 “constitutionally disproportionate” to his culpability, and as such is cruel and unusual punishment. 13 The Eighth Amendment’s prohibition on cruel and unusual punishment does not require strict 14 proportionality between crime and sentence. Rather, it forbids only extreme sentences that are 15 “grossly disproportionate to the crime.” Ewing v. California, 538 U.S. 11, 23 (2003). A life 16 sentence is not grossly disproportionate to the crime of second-degree murder. Cf. Ewing v. 17 California, 538 U.S. 11 (2003) (sentence of 25 years to life for grand theft did not violate Eighth 18 Amendment's prohibition against cruel and unusual punishment); Harmelin v. Michigan, 501 U.S. 19 957 (1991) (life sentence for cocaine possession does not violate Eighth Amendment because not 20 “grossly disproportionate” to crime); Hutto v. Davis, 454 U.S. 370 (1982) (rejecting an Eighth 21 Amendment challenge to a prison term of 40 years and a fine of $20,000 for possession and 22 distribution of approximately nine ounces of marijuana). The petition does not state a valid claim 23 that the length of his confinement violates the Eighth Amendment. 24 CONCLUSION 25 In light of the foregoing, the petition for a writ of habeas corpus is DISMISSED. 26 Rule 11(a) of the Rules Governing Section 2254 Cases requires a district court to rule on 27 whether a petitioner is entitled to a certificate of appealability in the same order in which the 28 petition is dismissed. Petitioner has failed to make a substantial showing that a reasonable jurist 2 1 would find the denial of his claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 2 (2000). Consequently, no certificate of appealability is warranted in this case. 3 The clerk shall enter judgment and close the file. 4 IT IS SO ORDERED. 5 Dated: November 15, 2016 6 7 JACQUELINE SCOTT CORLEY United States Magistrate Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERTO A. LLOMPART, Case No. 16-cv-05497-JSC Plaintiff, 8 v. CERTIFICATE OF SERVICE 9 10 JENNIFER SHAFFER, Defendant. United States District Court Northern District of California 11 12 13 14 15 16 17 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on November 15, 2016, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 18 19 20 21 Roberto A. Llompart ID: E-87937 Correctional Training Facility CA State Prison-Calipatria P.O. Box 689 X-232-L Soledad, CA 93960 22 23 Dated: November 15, 2016 24 25 Susan Y. Soong Clerk, United States District Court 26 27 28 By:________________________ Ada Means, Deputy Clerk to the Honorable JACQUELINE SCOTT CORLEY 4

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