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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROBERTO A. LLOMPART,

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Plaintiff,

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v.

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United States District Court
Northern District of California

Case No.16-cv-05497-JSC

JENNIFER SHAFFER,

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Defendant.

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ORDER OF DISMISSAL;
GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS
Re: Dkt. No. 2
INTRODUCTION

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Petitioner, a prisoner of the State of California proceeding pro se, has filed a habeas corpus

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petition pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his continued

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confinement.1 He has applied for leave to proceed in forma pauperis. In light of Petitioner’s lack

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of funds, his application to proceed in forma pauperis is GRANTED. For the reasons discussed

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below, the petition is DISMISSED.
BACKGROUND

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In 1990, Petitioner was convicted in Sonoma County Superior Court of second degree

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murder. He was sentenced to a term of 15 years to life in state prison plus one year. The Board of

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Parole Hearings has found him unsuitable for parole on multiple occasions, most recently on

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February 4, 2016. He challenged that decision in petitions for a writ of habeas corpus in the

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Sonoma County Superior Court and the California Court of Appeal, and in a petition for review in

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the California Supreme Court. Those petitions were denied. Thereafter, Petitioner filed the

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Petitioner has consented to the jurisdiction of a Magistrate Judge over his case under 28 U.S.C. §
636(c). (ECF No. 5.)

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instant federal petition.
DISCUSSION

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I

Standard of Review
This Court may entertain a petition for a 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). It

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shall “award the writ or issue an order directing the respondent to show cause why the writ should

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not be granted, unless it appears from the application that the applicant or person detained is not

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entitled thereto.” Id. § 2243.

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II.

Discussion

United States District Court
Northern District of California

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Petitioner claims that the length of his confinement --- at this point for 26 years --- is

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“constitutionally disproportionate” to his culpability, and as such is cruel and unusual punishment.

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The Eighth Amendment’s prohibition on cruel and unusual punishment does not require strict

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proportionality between crime and sentence. Rather, it forbids only extreme sentences that are

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“grossly disproportionate to the crime.” Ewing v. California, 538 U.S. 11, 23 (2003). A life

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sentence is not grossly disproportionate to the crime of second-degree murder. Cf. Ewing v.

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California, 538 U.S. 11 (2003) (sentence of 25 years to life for grand theft did not violate Eighth

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Amendment's prohibition against cruel and unusual punishment); Harmelin v. Michigan, 501 U.S.

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957 (1991) (life sentence for cocaine possession does not violate Eighth Amendment because not

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“grossly disproportionate” to crime); Hutto v. Davis, 454 U.S. 370 (1982) (rejecting an Eighth

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Amendment challenge to a prison term of 40 years and a fine of $20,000 for possession and

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distribution of approximately nine ounces of marijuana). The petition does not state a valid claim

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that the length of his confinement violates the Eighth Amendment.

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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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Rule 11(a) of the Rules Governing Section 2254 Cases requires a district court to rule on

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

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petition is dismissed. Petitioner has failed to make a substantial showing that a reasonable jurist
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would find the denial of his claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484

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(2000). Consequently, no certificate of appealability is warranted in this case.

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The clerk shall enter judgment and close the file.

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IT IS SO ORDERED.

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Dated: November 15, 2016

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ROBERTO A. LLOMPART,

Case No. 16-cv-05497-JSC

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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JENNIFER SHAFFER,
Defendant.

United States District Court
Northern District of California

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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.

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Roberto A. Llompart ID: E-87937
Correctional Training Facility CA State Prison-Calipatria
P.O. Box 689
X-232-L
Soledad, CA 93960

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Dated: November 15, 2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Ada Means, Deputy Clerk to the
Honorable JACQUELINE SCOTT CORLEY
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