Urbina v. Grower

Filing 7

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS; ORDER TO SHOW CAUSE. Signed by Judge Lucy H. Koh on 7/13/13. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 7/15/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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IRVIN R. URBINA,
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Petitioner,
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vs.
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WARDEN R. GROWER,
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Respondent.
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____________________________________)

No. C 13-2299 LHK (PR)
ORDER GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS;
ORDER TO SHOW CAUSE

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Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to
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28 U.S.C. § 2254. Petitioner is GRANTED leave to proceed in forma pauperis. For the reasons
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that follow, the Court orders Respondent to show cause why the petition should not be granted.
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BACKGROUND
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According to the petition, on May 25, 2011, Petitioner pleaded guilty to robbery and
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possession of a firearm in Humboldt County Superior Court. On July 6, 2011, Petitioner was
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sentenced to a term of 9 years, 8 months in state prison. On April 13, 2012, the California Court
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of Appeal affirmed. On June 20, 2012, the California Supreme Court then denied the petition for
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review. Petitioner filed the instant federal petition on April 29, 2013, in the Eastern District of
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California. On May 23, 2013, the Eastern District of California transferred the action to the
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Northern District of California.
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Order Granting Leave to Proceed In Forma Pauperis; Order to Show Cause
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DISCUSSION
A.

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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); Rose

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v. Hodges, 423 U.S. 19, 21 (1975).

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A district court 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 the

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applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. Summary dismissal is

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appropriate only where the allegations in the petition are vague or conclusory, palpably

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incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir.

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1990) (quoting Blackledge v. Allison, 431 U.S. 63, 75-76 (1977)).

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B.

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Petitioner’s Claims
Petitioner claims that counsel rendered ineffective assistance because he failed to

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investigate, produce, and present mitigating circumstances at sentencing. Liberally construed,

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this claim is cognizable for federal habeas review.

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Petitioner also alleges that the trial court failed to orally state its reasons for imposing the

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upper term in sentencing Petitioner, in violation of the Fifth and Fourteenth Amendments.

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However, the requirement for California courts to do so is a state law requirement. Petitioner

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does not allege that the sentence was improper, but only that the state court failed to state the

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reasons for its imposition. State sentencing courts must be accorded wide latitude in their

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decisions as to punishment. See Walker v. Endell, 850 F.2d 470, 476 (9th Cir. 1987). Generally,

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therefore, a federal court may not review a state sentence that is within statutory limits. See id.

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“[I]t is only noncompliance with federal law that renders a State’s criminal judgment susceptible

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to collateral attack in the federal courts.” Wilson v. Corcoran, 131 S. Ct. 13, 16 (2010)

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(emphasis in original). The Supreme Court has repeatedly held that federal habeas writ is

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unavailable for violations of state law or for alleged error in the interpretation or application of

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state law. See Swarthout v. Cooke, 131 S. Ct. 859, 861-62 (2011). A petitioner may not
Order Granting Leave to Proceed In Forma Pauperis; Order to Show Cause
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“transform a state-law issue into a federal one merely by asserting a violation of due process.”

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Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). Accordingly, this claim is DISMISSED

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with prejudice for failure to state a claim.

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The Court orders Respondent to show cause why the petition should not be granted as to
Petitioner’s ineffective assistance of counsel claim.

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CONCLUSION

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1.

Petitioner’s motion for leave to proceed in forma pauperis is GRANTED.

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2.

The Clerk shall serve by mail a copy of this order and the petition and all

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attachments thereto (docket no. 1) upon the Respondent and the Respondent’s attorney, the

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Attorney General of the State of California. The Clerk shall also serve a copy of this order on

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Petitioner.

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3.

Respondent shall file with the Court and serve on Petitioner, within sixty days of

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the date this order is filed, an answer conforming in all respects to Rule 5 of the Rules Governing

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Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted.

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Respondent shall file with the answer and serve on Petitioner a copy of all portions of the

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underlying state criminal record that have been transcribed previously and that are relevant to a

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determination of the issues presented by the petition. If Petitioner wishes to respond to the

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answer, he shall do so by filing a traverse with the Court and serving it on Respondent within

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thirty days of the date the answer is filed.

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4.

Respondent may file a motion to dismiss on procedural grounds in lieu of an

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answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section

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2254 Cases within sixty days of the date this order is filed. If Respondent files such a motion,

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Petitioner shall file with the court and serve on Respondent an opposition or statement of non-

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opposition within twenty-eight days of the date the motion is filed, and Respondent shall file

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with the court and serve on Petitioner a reply within fourteen days of the date any opposition is

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filed.

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5.

It is Petitioner’s responsibility to prosecute this case. Petitioner is reminded that

all communications with the Court must be served on Respondent by mailing a true copy of the
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document to Respondent’s counsel. Petitioner must keep the court and all parties informed of

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any change of address by filing a separate paper captioned “Notice of Change of Address.” He

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must 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).

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IT IS SO ORDERED.
DATED:

7/13/13

LUCY H. KOH
United States District Judge

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