Thoreson v. Grounds

Filing 8

ORDER DISMISSING PETITION; DENYING CERTIFICATE OF APPEALABILITY, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 4/2/13. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 4/2/2013)

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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 DISMISSING PETITION; DENYING CERTIFICATE OF APPEALABILITY 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 Petitioner was convicted in Sonoma County, which is in this district, so venue is proper 16 here. See 28 U.S.C. § 2241(d). The original petition was dismissed with leave to amend 17 and petitioner has filed an amended petition. 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 2 version of § 4019 does not apply retroactively to prisoners who served time in local custody 3 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 of state law and would not set forth a federal habeas claim. 11 For the Northern District of California United States District Court 10 Petitioner also argues a violation of the equal protection clause as he alleges that 12 those convicted of misdemeanors receive pre-sentence credits while felons are denied the 13 credits. The Fourteenth Amendment's equal protection clause “is essentially a direction 14 that all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living 15 Center, 473 U.S. 432, 439 (1985). Thus, equal protection does not require that things that 16 are different in fact be treated the same in law. Rostker v. Goldberg, 453 U.S. 57, 79 17 (1981). Rather, to raise an equal protection violation, a criminal defendant must allege he 18 was similarly situated to others who received preferential treatment, Cleburne, 473 U.S. at 19 439, and also must allege discriminatory motive or intent. McLean v. Crabtree, 173 F.3d 20 1176, 1185 (9th Cir. 1999). As those convicted of misdemeanors and felonies are not 21 similarly situated, there is no constitutional violation, nor has he demonstrated 22 discriminatory motive or intent. 23 CONCLUSION 24 The petition is DISMISSED for the reasons set out above. Because reasonable 25 jurists would not find the result here debatable, a certificate of appealability (“COA”) is 26 DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) (standard for COA). The 27 clerk shall close the file. 28 /// 3 1 2 IT IS SO ORDERED. Dated: April 2, 2013. PHYLLIS J. HAMILTON United States District Judge 3 4 G:\PRO-SE\PJH\HC.12\Thoreson4782.dis.wpd 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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