1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AMOUGH BONTON, No. 2:19-cv-1602 EFB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 SACRAMENTO COUNTY SUPERIOR

COURT,

15 Respondent. 16

17 18 Petitioner is a state prisoner who seeks a writ of habeas corpus pursuant to 28 U.S.C. 19 § 2254. He has filed an application to proceed in forma pauperis (“IFP”). ECF No. 5. That 20 application is granted, however, his petition must be dismissed for the reasons stated below. 21 I. Legal Standards 22 The court must dismiss a habeas petition or portion thereof if the prisoner raises claims 23 that are legally “frivolous or malicious” or fail to state a basis on which habeas relief may be 24 granted. 28 U.S.C. § 1915A(b)(1),(2). The court must dismiss a habeas petition “[i]f it plainly 25 appears from the petition and any attached exhibits that the petitioner is not entitled to relief[.]” 26 Rule 4, Rules Governing Section 2254 Cases. 27 ///// 28 ///// 1 II. Analysis 2 Petitioner states that he plead no contest and was convicted of: (1) possession of heroin 3 for sale in violation of California Health and Safety Code § 1135; and (2) an enhancement for a 4 prior drug conviction pursuant to Health and Safety Code § 11370.2. ECF No. 1 at 2. His 5 petition raises a single claim: that his enhancement was illegally imposed in light of California 6 Senate Bill 1393, which restored state trial courts’ discretion to strike five-year enhancements 7 under California Penal § Code 667, subdivision (a)(1). ECF No. 1 at 5, 9-10. 8 Assuming without deciding that petitioner’s characterization of state law is correct, this 9 claims still fails insofar as it implicates only an error of state law and does not otherwise give rise 10 to a federal question. See Waddington v. Sarausadfp, 555 U.S. 179, 192 n.5 (2009) (“[W]e have 11 repeatedly held that it is not the province of a federal habeas court to reexamine state-court 12 determinations on state-law questions.”); Rivera v. Illinois, 556 U.S. 148, 158 (2009) (“[A] mere 13 error of state law . . . is not a denial of due process”) (quoting Engle v. Isaac, 456 U.S. 107, 121, 14 n.21 (1982)); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[W]e reemphasize that it is not the 15 province of a federal habeas court to reexamine state-court determinations on state-law 16 questions.”). Nor is the court persuaded, to the extent petitioner seeks to raise the argument, that 17 the state courts’ decision not to rescind his enhancement violated his federal due process rights. 18 He has not explained how the foregoing error of state law intersects with the Constitution. And 19 the mere invocation of the Constitution is insufficient to convert a claim based on state law – as 20 the immediate one clearly is – into a federal one.1 See Langford v. Day, 110 F.3d 1380, 1389 (9th 21 Cir. 1997) (“[A claimant] may not, however, transform a state-law issue into a federal one merely 22 by asserting a violation of due process. . . .”) (as modified). 23 ///// 24 /////

25 1 The U.S. Court of Appeals for the Ninth Circuit has carved out a potential exception for 26 showings of “fundamental unfairness.” See Christian v. Rhode, 41 F.3d 461, 469 (9th Cir.1994) (“Absent a showing of fundamental unfairness, a state court's misapplication of its own 27 sentencing laws does not justify federal habeas relief.”) (emphasis added). Suffice it to say, petitioner has not shown that the state courts’ decision not to revisit his gun enhancement is 28 “fundamentally unfair.” 1 Il. Conclusion 2 Accordingly, it is ORDERED that: 3 1. The Clerk of Court shall randomly assign a United States District Judge to this case; 4 | and 5 2. Petitioner’s application to proceed in forma pauperis (ECF No. 5) is GRANTED. 6 Further, it is RECOMMENDED that the petition (ECF No. 1) be DISMISSED for failure 7 || to state a cognizable federal claim. 8 These findings and recommendations are submitted to the United States District Judge 9 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 10 | after being served with these findings and recommendations, any party may file written 11 || objections with the court and serve a copy on all parties. Such a document should be captioned 12 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 13 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 14 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). In 15 || his objections petitioner may address whether a certificate of appealability should issue in the 16 || event he files an appeal of the judgment in this case. See Rule 11, Rules Governing § 2254 Cases 17 | (the district court must issue or deny a certificate of appealability when it enters a final order 18 || adverse to the applicant). 19 | DATED: April 6, 2020. tid, PDEA 20 EDMUND F. BRENNAN

UNITED STATES MAGISTRATE JUDGE

21 22 23 24 25 26 27 28