LaFlamme v. Evans

Filing 16

ORDER OF PARTIAL DISMISSAL; GRANTING PETITIONER LEAVE TO FILE THIRD AMENDED PETITION. For the foregoing reasons, the petition is DISMISSED with leave to amend. Petitioner must, within thirty (30) days of the date this order is filed, file a third ame nded petition challenging the lawfulness of the state conviction for which he is currently incarcerated. The third amended petition must include the caption and civil case number used in this order, No. C 11-02718 EJD (PR), and must include the words THIRD AMENDED PETITION on the first page. Failure to file a timely response in accordance with this order will result in the dismissal of this action without prejudice and without further notice to Petitioner. Petitioner is advised that this being t he third dismissal with leave to amend, he should be careful to plead sufficient facts to support his claim and avoid making the same deficiencies as in his prior amended petitions. The Clerk shall include two copies of the court's form petition with a copy of this order to Petitioner. Amended Petition due by 8/19/2012. Signed by Judge Edward J. Davila on 7/18/2012. (Attachments: # 1 Form Habeas Petition)(ecg, COURT STAFF) (Filed on 7/19/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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DON LAFLAMME,
Petitioner,

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vs.

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EVANS, Warden,
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Respondent.
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No. C 11-02718 EJD (PR)
ORDER OF PARTIAL DISMISSAL;
GRANTING PETITIONER LEAVE TO
FILE THIRD AMENDED PETITION

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Petitioner, a state prisoner incarcerated at the Salinas Valley State Prison

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(“SVSP”), filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254,

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challenging his state conviction. The Court twice dismissed the petition with leave

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to amend, finding the complaints failed to state cognizable claims. (See Docket Nos.

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5 & 10.) Petitioner has filed a second amended petition (“SAC”) and a

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memorandum of points and authorities in support thereof. (Docket Nos. 11 & 13.)

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BACKGROUND
According to the SAC, Petitioner pleaded guilty in San Francisco County

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Superior Court to second degree murder and the use of a knife. (SAC. 2.) On

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September 1, 1982, Petitioner was sentenced to sixteen years to life in state prison.
Order of Partial Dismissal; Leave to File Third Amended Petition
02718LaFlamme_dwlta3.wpd

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(Id.)

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According to the SAC, Petitioner appealed the conviction; the state appellate

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court affirmed the conviction and the state high court denied review in 2011. (Id. at

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3.) Petitioner also alleges that he filed a petition for a writ of certiorari in the United

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Sates Supreme Court raising good time credits and parole claims. (Id. at 4.)

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Petitioner initiated the instant federal habeas action on June 6, 2011.

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DISCUSSION

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A.

This court may entertain a petition for a writ of habeas corpus “in behalf of a

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For the Northern District of California

United States District Court

Standard of Review

person in custody pursuant to the judgment of a State court only on the ground that

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he is in custody in violation of the Constitution or laws or treaties of the United

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States.” 28 U.S.C. § 2254(a).
It shall “award the writ or issue an order directing the respondent to show

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cause why the writ should not be granted, unless it appears from the application that

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the applicant or person detained is not entitled thereto.” Id. § 2243.

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B.

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Legal Claims
The Court found that Petitioner failed to correct the deficiencies from his

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original petition in his amended petition. Petitioner cited to state regulations and

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case law without giving specific facts showing how those regulations and case law

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apply, or have been incorrectly applied, to his specific conviction and sentence such

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that his continued confinement is unconstitutional. (Am. Pet. at 6.) Petitioner was

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provided a second opportunity to file an amended petition to attempt to state

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cognizable claims and correct these deficiencies.

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In the SAC, Plaintiff claims “new evidence allowing Petitioner release from

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prison” pursuant to In re Honesto, 130 Cal.App.4th 81 (2005), in which a prisoner

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filed a petition for a writ of habeas corpus on the grounds that the denial of parole

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was a violation of his plea agreement. (SAC 6.) Again, this claim is deficient
Order of Partial Dismissal; Leave to File Third Amended Petition
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because Petitioner fails to allege sufficient facts showing that the denial of parole

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was a breach of his plea agreement, specifically, he fails to describe the specific

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promise or agreement that induced his plea and how the denial of parole breached

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that agreement. Petitioner has been given two opportunities to correct this

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deficiency and has failed to do so. Accordingly, this plea agreement claim is

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DISMISSED for failure to state a claim.

federal courts, such that the state has “failed to treat him similarly as any petitioner”

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under Plyer v. Doe, 457 U.S. 202 (1982). The Equal Protection Clause prohibits the

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arbitrary and unequal application of state law by the same court. A state court may

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For the Northern District of California

Petitioner’s second claim is that his petition was never entertained by state or

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United States District Court

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not, for example, afford one person (other than litigant whose case is vehicle for

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promulgation of new rule) the retroactive effect of a ruling on state constitution's

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right to impartial jury while denying it to another. See Myers v. Ylst, 897 F.2d 417,

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421 (9th Cir.) (California Supreme Court simultaneously afforded one petitioner

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retroactive effect of a ruling while denying that benefit to another petitioner with

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nearly identical evidence and facts), cert. denied, 498 U.S. 879 (1990). Myers v.

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Ylst concerns arbitrary and unequal application of state law by the same court (and

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panel) and should not undermine, however, settled precedent that mere error in

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application of state law does not give rise to a federal habeas claim. See Alford v.

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Rolfs, 867 F.2d 1216, 1219 (9th Cir. 1989). Here, Petitioner only makes general

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allegations and fails to allege facts showing specifically how and when the state

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courts treated him unequally from other litigants. For example, he claims “his

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petition was never entertained” but does not specify what petition or where it was

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filed, or how or which state court acted to deprive him of equal protection.

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Accordingly, this claim is DISMISSED WITH LEAVE TO AMEND.

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Plaintiff’s third claim alludes to the “November 7, 1978 Voter Initiative,” and

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appears to allege that his sentence is not being properly executed under state

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regulations. (Docket No. 13 at 3-4.) However, Petitioner fails to allege how this
Order of Partial Dismissal; Leave to File Third Amended Petition
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alleged violation of state law violates his rights under the Constitution or federal law

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to be a cognizable claim under § 2254. Accordingly, this claims DISMISSED

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WITH LEAVE TO AMEND.

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CONCLUSION

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For the foregoing reasons, the petition is DISMISSED with leave to amend.

amended petition challenging the lawfulness of the state conviction for which he is

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currently incarcerated. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509,

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515-16 (1982). The third amended petition must include the caption and civil case

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For the Northern District of California

Petitioner must, within thirty (30) days of the date this order is filed, file a third

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United States District Court

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number used in this order, No. C 11-02718 EJD (PR), and must include the words

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THIRD AMENDED PETITION on the first page.

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Failure to file a timely response in accordance with this order will result

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in the dismissal of this action without prejudice and without further notice to

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Petitioner. Petitioner is advised that this being the third dismissal with leave to

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amend, he should be careful to plead sufficient facts to support his claim and

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avoid making the same deficiencies as in his prior amended petitions.

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The Clerk shall include two copies of the court’s form petition with a copy of
this order to Petitioner.

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DATED:

7/18/2012

EDWARD J. DAVILA
United States District Judge

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Order of Partial Dismissal; Leave to File Third Amended Petition
02718LaFlamme_dwlta3.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

DON LAFLAMME,

Case Number: CV11-02718 EJD

Petitioner,

CERTIFICATE OF SERVICE

v.
EVANS, Warden,
Respondent.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
7/19/2012
That on
, 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.

Don LaFlamme C-52818
Salinas Valley State Prison
P.O. Box 1020
Soledad, CA 93960
Dated:

7/19/2012
Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk