Thoreson v. Grounds

Filing 6

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION WITH LEAVE TO AMEND by Judge Phyllis J. Hamilton granting 5 Motion for Leave to Proceed in forma pauperis; denying 2 Motion to Amend/Correct State Court Judgment. Amended Petition due by 2/4/2013. (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 1/4/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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STEVEN A. THORESON,
Petitioner,

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vs.

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ORDER GRANTING LEAVE
TO PROCEED IN FORMA
PAUPERIS AND DISMISSING
PETITION WITH LEAVE TO
AMEND

RANDY GROUNDS Warden,
Respondent.

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For the Northern District of California

United States District Court

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No. C 12-4782 PJH (PR)

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Petitioner, a California prisoner currently incarcerated at the Correctional Training

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Facility has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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He also applied for leave to proceed in forma pauperis.

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Petitioner was convicted in Sonoma County, which is in this district, so venue is
proper here. See 28 U.S.C. § 2241(d).

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BACKGROUND

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Petitioner was found guilty at trial of continuous sexual abuse of a child and was

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sentenced to twelve years in prison. He says he has exhausted the claims he raises in this

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petition.
DISCUSSION

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A.

Standard of Review
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

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in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §

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2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet

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heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An

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application for a federal writ of habeas corpus filed by a prisoner who is in state custody

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pursuant to a judgment of a state court must “specify all the grounds for relief available to

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the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules

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

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petition is expected to state facts that point to a ‘real possibility of constitutional error.’”

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Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.

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1970)). “Habeas petitions which appear on their face to be legally insufficient are subject to

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summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102, 1108

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(9th Cir. 1996) (Schroeder, J., concurring).

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For the Northern District of California

United States District Court

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B.

Legal Claims
As grounds for federal habeas relief, petitioner asserts that he has been denied pre-

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sentence credits pursuant to California Penal Code § 4019. Petitioner was sentenced on

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April 24, 2006. Petitioner states that a new pre-sentence credit law was enacted in 2010

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and he wants it to be applied retroactively to him.

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Generally, a claim of state sentencing error does not raise a federal constitutional

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question cognizable on federal habeas review. See Lewis v. Jeffers, 497 U.S. 764, 783

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(1990). If, however, the state arbitrarily deprives the petitioner of a state law entitlement in

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sentencing him, such as denying him credits, he may be able to state a claim under the due

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process clause. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980). Thus, if California law

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mandated that a prisoner be given certain credits in a given situation, the arbitrary denial of

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those credits may constitute a due process violation. Haygood v. Younger, 769 F.2d 1350,

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1355-58 (9th Cir. 1985).

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California Penal Code § 4019 offers prisoners in local custody the opportunity to

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earn “conduct credit” against their sentences for good behavior. People v. Brown, 54 Cal.

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4th 314, 317 (2012). For eight months during 2010, a now-superseded version of § 4019

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that was enacted during a state fiscal emergency temporarily increased the rate at which

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local prisoners could earn conduct credits. Id. at 317–18. It appears that petitioner argues

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he is entitled to conduct credits under the now-superseded version of § 4019.
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On June 12, 2012, the California Supreme Court decided that the now-superseded

before January 25, 2010, i.e., the date the on which the now-superseded version of § 4019

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became effective. People v. Brown, 54 Cal.4th 314, 318 (2012). The California Supreme

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Court held that the now-superseded version of § 4019 applies prospectively to qualified

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prisoners in local custody on the statute's operative date. Id. Because it does not appear

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that petitioner was in local custody on the statute's operative date, as petitioner was

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sentenced on April 24, 2006, he is not entitled to credits pursuant to the now-superseded

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version of § 4019. If this is in fact petitioner’s argument, it is based on an alleged violation

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of state law and would not set forth a federal habeas claim. The petition is dismissed, but

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For the Northern District of California

version of § 4019 does not apply retroactively to prisoners who served time in local custody

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United States District Court

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petitioner will be provided an opportunity to amend.

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CONCLUSION

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1. Leave to proceed in forma pauperis (Docket No. 5) is GRANTED.

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2. Petitioner’s motion to amend the state court judgment (Docket No. 2) is DENIED.

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3. The petition is DISMISSED with leave to amend in accordance with the standards

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set forth above. The amended petition must be filed no later than February 4, 2013. The

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amendment must be on the court’s form for section 2254 habeas petitions, include the

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caption and civil case number used in this order, and carry the words AMENDED

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PETITION on the first page. Failure to amend within the designated time will result in the

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dismissal of these claims.

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4. Petitioner must keep the court informed of any change of address and must

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comply with the court's orders in a timely fashion. Failure to do so may result in the

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dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure

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41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable

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in habeas cases).

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IT IS SO ORDERED.
Dated:

January 4, 2013
PHYLLIS J. HAMILTON
United States District Judge

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