1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ORRIN TYLER COLBOURN, No. 2:20-cv-0550 DB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 UNKNOWN, 15 Respondent. 16 17 Petitioner is a county inmate proceeding pro se with an application for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Petitioner claims his 2018 conviction and sentence in the 19 Butte County Superior Court. For the reasons set forth below, the court will recommend that the 20 petition be dismissed. 21 IN FORMA PAUPERIS 22 Petitioner has not filed an in forma pauperis affidavit or paid the required filing fee 23 ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). However, because the court will recommend that 24 the petition be summarily dismissed, the court will not require petitioner to submit an in forma 25 pauperis application or pay the filing fee. 26 //// 27 //// 28 //// 1 SCREENING 2 I. Legal Standards – Screening 3 The court is required to screen all actions brought by prisoners who seek any form of 4 relief, including habeas relief, from a governmental entity or officer or employee of a 5 governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a habeas petition or portion 6 thereof if the prisoner raises claims that are legally “frivolous or malicious” or fail to state a basis 7 on which habeas relief may be granted. 28 U.S.C. § 1915A(b)(1), (2). This means the court must 8 dismiss a habeas petition “[i]f it plainly appears from the petition and any attached exhibits that 9 the petitioner is not entitled to relief[.]” Rule 4 Governing Section 2254 Cases. 10 Rule 11 of the Rules Governing Section 2254 Cases provides that “[t]he Federal Rules of 11 Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these 12 rules, may be applied to a proceeding under these rules.” Drawing on the Federal Rules of Civil 13 Procedure, when considering whether a petition presents a claim upon which habeas relief can be 14 granted, the court must accept the allegations of the petition as true, Erickson v. Pardus, 551 U.S. 15 89, 94 (2007), and construe the petition in the light most favorable to the petitioner, see Scheuer 16 v. Rhodes, 416 U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than 17 those drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), but “[i]t is well-settled that 18 ‘[c]onclusory allegations which are not supported by a statement of specific facts do not warrant 19 habeas relief.’” Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (quoting James v. Borg, 24 20 F.3d 20, 26 (9th Cir. 1994)). See also Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir. 2002) (“Pro 21 se habeas petitioners may not be held to the same technical standards as litigants represented by 22 counsel.”); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“[T]he petitioner is not entitled 23 to the benefit of every conceivable doubt; the court is obligated to draw only reasonable factual 24 inferences in the petitioner’s favor.”). 25 II. The Petition 26 Upon review of the petition (ECF No. 1) and petitioner’s other filings (ECF Nos. 4, 5, 6, 27 7) in this action, it appears that the sole ground for relief alleged in this action is that petitioner’s 28 sentence should be reduced based on a change in California law. Petitioner challenges his 2018 1 conviction for carrying a concealed dirk or dagger in violation of California Penal Code § 21310 2 in the Butte County Superior Court. (ECF No. 1 at 3.) The trial court also found true four prior 3 prison term enhancements pursuant to California Penal Code § 667.5. The court sentenced 4 petitioner to three years for the underlying offense, stayed one of the enhancements, and imposed 5 a one-year prison term as to each of the remaining three enhancements. 6 III. Habeas Relief is not Available for Errors of State Law 7 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes “a highly 8 deferential standard for evaluating state-court rulings,” requiring “that state-court decisions be 9 given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 9, 24 (2002) (quoting Lindh v. 10 Murphy, 521 U.S. 320, 333 n.7 (1997)). Section 2241(c) provides that habeas corpus shall not 11 extent to a prisoner unless he is “in custody in violation of the Constitution.” 28 U.S.C. § 2254(a) 12 states, “a district court shall entertain an application for a writ of habeas corpus in behalf of a 13 person in custody pursuant to a judgment of a State court only on the ground that he is in custody 14 in violation of the Constitution or laws or treaties of the United States.” See also Rule 1 to the 15 Rules Governing Section 2254 Cases in the United States District Court. “[F]ederal habeas 16 corpus relief does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) 17 (citations omitted). “[E]rrors of state law do not concern us unless they rise to the level of a 18 constitutional violation.” Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989). 19 The Supreme Court has held that “the essence of habeas corpus is an attack by a person in 20 custody upon the legality of that custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). To 21 succeed in a petition pursuant to Section 2254, a petitioner must demonstrate that the adjudication 22 of his claim in state court “resulted in a decision that was contrary to, or involved an unreasonable 23 application of, clearly established Federal law, as determined by the Supreme Court of the United 24 States; or resulted in a decision that was based on an unreasonable determination of the facts in 25 light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). A 26 federal court can grant habeas relief only if the petitioner has demonstrated that the state court 27 violated the United States constitution or federal law. Swarthout v. Cooke, 562 U.S. 216, 219 28 (2011). 1 “Absent a showing of fundamental unfairness, a state court’s misapplication of its own 2 sentencing laws does not justify federal habeas relief.” Christian v. Rhode, 41 F.3d 461 ,469 (9th 3 Cir. 1994) (citation omitted). To state a cognizable federal habeas claim based on a claimed state 4 sentencing error, a petitioner must show that such an alleged state sentencing error was “‘so 5 arbitrary or capricious as to constitute an independent due process’” violation. Richmond v. 6 Lewis, 506 U.S. 40, 50 (1992) (quoting Lewis v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ORRIN TYLER COLBOURN, No. 2:20-cv-0550 DB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 UNKNOWN, 15 Respondent. 16 17 Petitioner is a county inmate proceeding pro se with an application for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Petitioner claims his 2018 conviction and sentence in the 19 Butte County Superior Court. For the reasons set forth below, the court will recommend that the 20 petition be dismissed. 21 IN FORMA PAUPERIS 22 Petitioner has not filed an in forma pauperis affidavit or paid the required filing fee 23 ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). However, because the court will recommend that 24 the petition be summarily dismissed, the court will not require petitioner to submit an in forma 25 pauperis application or pay the filing fee. 26 //// 27 //// 28 //// 1 SCREENING 2 I. Legal Standards – Screening 3 The court is required to screen all actions brought by prisoners who seek any form of 4 relief, including habeas relief, from a governmental entity or officer or employee of a 5 governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a habeas petition or portion 6 thereof if the prisoner raises claims that are legally “frivolous or malicious” or fail to state a basis 7 on which habeas relief may be granted. 28 U.S.C. § 1915A(b)(1), (2). This means the court must 8 dismiss a habeas petition “[i]f it plainly appears from the petition and any attached exhibits that 9 the petitioner is not entitled to relief[.]” Rule 4 Governing Section 2254 Cases. 10 Rule 11 of the Rules Governing Section 2254 Cases provides that “[t]he Federal Rules of 11 Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these 12 rules, may be applied to a proceeding under these rules.” Drawing on the Federal Rules of Civil 13 Procedure, when considering whether a petition presents a claim upon which habeas relief can be 14 granted, the court must accept the allegations of the petition as true, Erickson v. Pardus, 551 U.S. 15 89, 94 (2007), and construe the petition in the light most favorable to the petitioner, see Scheuer 16 v. Rhodes, 416 U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than 17 those drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), but “[i]t is well-settled that 18 ‘[c]onclusory allegations which are not supported by a statement of specific facts do not warrant 19 habeas relief.’” Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (quoting James v. Borg, 24 20 F.3d 20, 26 (9th Cir. 1994)). See also Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir. 2002) (“Pro 21 se habeas petitioners may not be held to the same technical standards as litigants represented by 22 counsel.”); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“[T]he petitioner is not entitled 23 to the benefit of every conceivable doubt; the court is obligated to draw only reasonable factual 24 inferences in the petitioner’s favor.”). 25 II. The Petition 26 Upon review of the petition (ECF No. 1) and petitioner’s other filings (ECF Nos. 4, 5, 6, 27 7) in this action, it appears that the sole ground for relief alleged in this action is that petitioner’s 28 sentence should be reduced based on a change in California law. Petitioner challenges his 2018 1 conviction for carrying a concealed dirk or dagger in violation of California Penal Code § 21310 2 in the Butte County Superior Court. (ECF No. 1 at 3.) The trial court also found true four prior 3 prison term enhancements pursuant to California Penal Code § 667.5. The court sentenced 4 petitioner to three years for the underlying offense, stayed one of the enhancements, and imposed 5 a one-year prison term as to each of the remaining three enhancements. 6 III. Habeas Relief is not Available for Errors of State Law 7 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes “a highly 8 deferential standard for evaluating state-court rulings,” requiring “that state-court decisions be 9 given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 9, 24 (2002) (quoting Lindh v. 10 Murphy, 521 U.S. 320, 333 n.7 (1997)). Section 2241(c) provides that habeas corpus shall not 11 extent to a prisoner unless he is “in custody in violation of the Constitution.” 28 U.S.C. § 2254(a) 12 states, “a district court shall entertain an application for a writ of habeas corpus in behalf of a 13 person in custody pursuant to a judgment of a State court only on the ground that he is in custody 14 in violation of the Constitution or laws or treaties of the United States.” See also Rule 1 to the 15 Rules Governing Section 2254 Cases in the United States District Court. “[F]ederal habeas 16 corpus relief does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) 17 (citations omitted). “[E]rrors of state law do not concern us unless they rise to the level of a 18 constitutional violation.” Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989). 19 The Supreme Court has held that “the essence of habeas corpus is an attack by a person in 20 custody upon the legality of that custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). To 21 succeed in a petition pursuant to Section 2254, a petitioner must demonstrate that the adjudication 22 of his claim in state court “resulted in a decision that was contrary to, or involved an unreasonable 23 application of, clearly established Federal law, as determined by the Supreme Court of the United 24 States; or resulted in a decision that was based on an unreasonable determination of the facts in 25 light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). A 26 federal court can grant habeas relief only if the petitioner has demonstrated that the state court 27 violated the United States constitution or federal law. Swarthout v. Cooke, 562 U.S. 216, 219 28 (2011). 1 “Absent a showing of fundamental unfairness, a state court’s misapplication of its own 2 sentencing laws does not justify federal habeas relief.” Christian v. Rhode, 41 F.3d 461 ,469 (9th 3 Cir. 1994) (citation omitted). To state a cognizable federal habeas claim based on a claimed state 4 sentencing error, a petitioner must show that such an alleged state sentencing error was “‘so 5 arbitrary or capricious as to constitute an independent due process’” violation. Richmond v. 6 Lewis, 506 U.S. 40, 50 (1992) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)); see also 7 Moore v. Chrones, 687 F.Supp.2d 1005, 1041 (C.D. Cal. 2010) (claim of state sentencing error 8 not cognizable unless error so arbitrary and capricious as to rise to level of due process violation 9 (citing Richmond, 506 U.S. at 50)). 10 IV. Petitioner’s Claim is Moot and Non-Cognizable 11 After petitioner was sentenced, but before his conviction became final, California 12 amended Penal Code § 667.5, subdivision (b) to eliminate the one-year prior prison term 13 enhancement for most prior convictions. See People v. Blinn, No. A156447, 2020 WL 4462155, 14 at *1 (Cal. Ct. App. Aug. 4, 2020) (“[E]ffective January 1, 2020, that statute was amended to 15 make the one-year enhancement available only if the prior prison term was served for a sexually 16 violent offense.”). Additionally, after petitioner filed the instant petition, the Third District Court 17 of Appeal issued a ruling on petitioner’s direct appeal. 1 People v. Colbourn, C087423, 2020 WL 18 2028303, (Cal. Ct. App. Apr. 28, 2020). In ruling on petitioner’s appeal, the Third District Court 19 of Appeal, held that petitioner’s enhancements must be stricken because the amended law applied 20 to his case. Id. at *2. 21 Petitioner has alleged that due to a change in California law his sentence should be 22 reduced. A mere error by a state court in the interpretation or application of its own state’s 23 sentencing laws, without more, is not a cognizable ground for relief in a federal habeas corpus 24 proceeding. See, e.g., Lewis, 497 U.S. at 780 (“federal habeas corpus relief does not lie for errors 25 of state law”); Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993) (rejecting federal habeas 26 1 Court records indicate that petitioner’s direct appeal was still pending before the California 27 Court of Appeal for the Third Appellate District when he filed the instant petition. Thus, it appears that petition is unexhausted. However, because the court has determined that the sole 28 ground alleged in the petition is not cognizable, it does not need to address exhaustion. 1 claim that sentencing court erred when it failed to “merge” multiple convictions under state law 2 because “[t]here is no federal Constitutional right to merger of convictions for purposes of 3 sentencing,” and Petitioner's claim was “exclusively concerned with state law and therefore [was] 4 not cognizable in a federal habeas corpus proceeding” (bracketed material added) ); Miller v. 5 Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (whether assault with deadly weapon was 6 serious felony under state enhancement statute was state law question not cognizable on federal 7 habeas review).. Petitioner may not “transform a state-law issue” into a federal one merely by 8 labeling it a constitutional violation. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (as 9 amended Apr. 14, 1997). The court finds that allegations in the petition are not cognizable in 10 federal habeas proceedings because the sole ground alleged states nothing more than a state law 11 error. 12 Additionally, California Appellate Court records2 show that the Third District Court of 13 Appeals granted petitioner such relief. Because petitioner has already been granted the relief he 14 requested, this case is now moot and the court does not have jurisdiction. Iron Arrow Honor 15 Society v. Heckler, 464 U.S. 67, 70 (1983) (“Federal courts lack jurisdiction to decide moot 16 cases”). Because petitioner alleged only an error of state law and he has already been granted the 17 relief sought the court will recommend that the petition be dismissed. 18 V. Conclusion 19 Accordingly, the Clerk of the Court is ORDERED to randomly assign this action to a 20 District Judge. 21 IT IS HEREBY RECOMMENDED that the petition be dismissed for the reasons set forth 22 above. 23 These findings and recommendations will be submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty days after 25 being served with these findings and recommendations, petitioner may file written objections 26
27 2 A court may take judicial notice of its own records and the records of other courts. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 28 118, 119 (9th Cir. 1980). wOAOe 2 OYE SUEY AINE MMO OO POO OPE Ie TOYS VV
1 | with the court and serve a copy on all parties. The document should be captioned “Objections to 2 | Magistrate Judge's Findings and Recommendations.” Petitioner is advised that failure to file 3 | objections within the specified time may result in waiver of the right to appeal the district court’s 4 | order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 | Dated: August 11, 2020
g ORAH BARNES UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 DB ‘owtenPs soner/Habeas/colb0550.serm 17 18 19 20 21 22 23 24 25 26 27 28