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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 STEVEN A. THORESON, Petitioner, 8 vs. 9 ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION WITH LEAVE TO AMEND RANDY GROUNDS Warden, Respondent. 11 For the Northern District of California United States District Court 10 No. C 12-4782 PJH (PR) / 12 13 Petitioner, a California prisoner currently incarcerated at the Correctional Training 14 Facility has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 15 He also applied for leave to proceed in forma pauperis. 16 17 Petitioner was convicted in Sonoma County, which is in this district, so venue is proper here. See 28 U.S.C. § 2241(d). 18 BACKGROUND 19 Petitioner was found guilty at trial of continuous sexual abuse of a child and was 20 sentenced to twelve years in prison. He says he has exhausted the claims he raises in this 21 petition. DISCUSSION 22 23 24 A. Standard of Review This court may entertain a petition for writ of habeas corpus "in behalf of a person in 25 custody pursuant to the judgment of a State court only on the ground that he is in custody 26 in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 27 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet 28 heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An 1 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 2 pursuant to a judgment of a state court must “specify all the grounds for relief available to 3 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 4 Governing § 2254 Cases, 28 U.S.C. foll. § 2254. “‘[N]otice’ pleading is not sufficient, for the 5 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 6 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 7 1970)). “Habeas petitions which appear on their face to be legally insufficient are subject to 8 summary dismissal.” Calderon v. United States Dist. Court (Nicolaus), 98 F.3d 1102, 1108 9 (9th Cir. 1996) (Schroeder, J., concurring). 11 For the Northern District of California United States District Court 10 B. Legal Claims As grounds for federal habeas relief, petitioner asserts that he has been denied pre- 12 sentence credits pursuant to California Penal Code § 4019. Petitioner was sentenced on 13 April 24, 2006. Petitioner states that a new pre-sentence credit law was enacted in 2010 14 and he wants it to be applied retroactively to him. 15 Generally, a claim of state sentencing error does not raise a federal constitutional 16 question cognizable on federal habeas review. See Lewis v. Jeffers, 497 U.S. 764, 783 17 (1990). If, however, the state arbitrarily deprives the petitioner of a state law entitlement in 18 sentencing him, such as denying him credits, he may be able to state a claim under the due 19 process clause. See Hicks v. Oklahoma, 447 U.S. 343, 346 (1980). Thus, if California law 20 mandated that a prisoner be given certain credits in a given situation, the arbitrary denial of 21 those credits may constitute a due process violation. Haygood v. Younger, 769 F.2d 1350, 22 1355-58 (9th Cir. 1985). 23 California Penal Code § 4019 offers prisoners in local custody the opportunity to 24 earn “conduct credit” against their sentences for good behavior. People v. Brown, 54 Cal. 25 4th 314, 317 (2012). For eight months during 2010, a now-superseded version of § 4019 26 that was enacted during a state fiscal emergency temporarily increased the rate at which 27 local prisoners could earn conduct credits. Id. at 317–18. It appears that petitioner argues 28 he is entitled to conduct credits under the now-superseded version of § 4019. 2 1 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 4 became effective. People v. Brown, 54 Cal.4th 314, 318 (2012). The California Supreme 5 Court held that the now-superseded version of § 4019 applies prospectively to qualified 6 prisoners in local custody on the statute's operative date. Id. Because it does not appear 7 that petitioner was in local custody on the statute's operative date, as petitioner was 8 sentenced on April 24, 2006, he is not entitled to credits pursuant to the now-superseded 9 version of § 4019. If this is in fact petitioner’s argument, it is based on an alleged violation 10 of state law and would not set forth a federal habeas claim. The petition is dismissed, but 11 For the Northern District of California version of § 4019 does not apply retroactively to prisoners who served time in local custody 3 United States District Court 2 petitioner will be provided an opportunity to amend. 12 CONCLUSION 13 1. Leave to proceed in forma pauperis (Docket No. 5) is GRANTED. 14 2. Petitioner’s motion to amend the state court judgment (Docket No. 2) is DENIED. 15 3. The petition is DISMISSED with leave to amend in accordance with the standards 16 set forth above. The amended petition must be filed no later than February 4, 2013. The 17 amendment must be on the court’s form for section 2254 habeas petitions, include the 18 caption and civil case number used in this order, and carry the words AMENDED 19 PETITION on the first page. Failure to amend within the designated time will result in the 20 dismissal of these claims. 21 4. Petitioner must keep the court informed of any change of address and must 22 comply with the court's orders in a timely fashion. Failure to do so may result in the 23 dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 24 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable 25 in habeas cases). 26 27 IT IS SO ORDERED. Dated: January 4, 2013 PHYLLIS J. HAMILTON United States District Judge 28 G:\PRO-SE\PJH\HC.12\Thoreson4782.dwlta.wpd 3

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