1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARCUS D. JOHNSON, No. 2:22-cv-1412 TLN AC P 12 Petitioner, 13 v. ORDER AND FINDINGS &

RECOMMENDATIONS

14 ST. ANDLE, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 I. Procedural History 20 By order filed January 9, 2023, the undersigned screened the petition and, after finding 21 that it did not state any cognizable claims for relief, granted petitioner leave to file an amended 22 petition. ECF No. 7. After petitioner failed to file an amended petition within the time for doing 23 so, he was given a final opportunity to amend the petition. ECF No. 8. Petitioner’s first amended 24 petition was received by the court on March 15, 2023. ECF No. 9. The first amended petition 25 also failed to state a cognizable habeas claim and it was recommended that the petition be 26 dismissed without further leave to amend. ECF No. 10. Before the district judge could rule on 27 the findings and recommendations, it came to the undersigned’s attention that petitioner had 28 initiated a separate action on January 27, 2023, which challenged the same conviction at issue in 1 this case. See Johnson v. San Joaquin Superior Court (Johnson II), No. 2:23-cv-0157 AC (E.D. 2 Cal.). Considering the date the petition in Johnson II was signed and when it was received by the 3 court, it appears that it may have originally been intended as an amended petition in this case that 4 was misfiled as a new action because it did not bear this case’s name or case number. 5 Accordingly, on July 7, 2023, the petition in Johnson II was ordered filed in this case as a motion 6 to amend. Johnson II, ECF No. 8. Given this unique procedural posture, the pending findings 7 and recommendations will be withdrawn and the claims in both the motion to amend and first 8 amended petition will be assessed below. 9 II. Background 10 In both the motion to amend and the first amended petition, petitioner challenges 2020 11 convictions for robbery that included a ten-year gun enhancement arising from San Joaquin 12 County Superior Court cases STK-CR-2020-13511 and STK-CR-2020-13898; there is substantial 13 overlap in the substance of the claims. ECF No. 9 at 1; ECF No. 11 at 1. In both the motion and 14 petition, petitioner appears to argue that sentencing enhancements should have been stricken 15 under various amendments made to the California Penal Code, that his sentence is now 16 unauthorized due to changes in the sentencing laws, and that his crime did not constitute a serious 17 felony. ECF No. 9 at 4-5; ECF No. 11 at 5, 7-8. The motion to amend, like the original petition, 18 also asserts that petitioner was subject to an illegitimate plea bargain and double jeopardy, and 19 that he was denied a sentencing investigation due to the ineffective assistance of counsel.1 ECF 20 No. 11 at 5, 7-8. 21 III. Discussion 22 Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts 23 (Habeas Rules) requires the court to summarily dismiss a habeas petition, “[i]f it plainly appears 24 from the petition and any attached exhibits that the petitioner is not entitled to relief in the district 25 court.” As set forth below, the petition fails to state any cognizable claim for relief. 26 //// 27 1 In the original petition, petitioner alleged that the court violated his rights by not ordering an 28 investigation. ECF No. 1 at 5, 22. 1 Although the first amended petition represents that petitioner has not presented his claim 2 to the California Supreme Court (ECF No. 9 at 1-3), the motion to amend appears to assert that 3 petitioner exhausted his claims by filing a petition for writ of habeas corpus with the California 4 Supreme Court (ECF No. 11 at 3, 5). Assuming the petition is exhausted as represented in the 5 motion to amend, it nonetheless fails to state a cognizable claim for relief. 6 Petitioner’s conclusory claims that he was subject to an illegitimate plea bargain and 7 double jeopardy, and that he was denied a sentencing investigation due to the ineffective 8 assistance of counsel, fail for the same reasons outlined by the court in screening the original 9 petition: “petitioner has failed to provide any factual basis for his claims, making it unclear 10 whether any grounds for relief exist.” ECF No. 7 at 1 (citing Habeas Rule 2). Moreover, any 11 claim that the sentencing enhancements constituted double jeopardy fails as a matter of law. Id. 12 at 2 (quoting United States v. Kaluna, 192 F.3d 1188, 1198-99 (9th Cir. 1999)). 13 With respect to petitioner’s other claims, a petitioner may seek federal habeas relief from 14 a state-court conviction or sentence “only on the ground that he is in custody in violation of the 15 Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Habeas relief is not 16 available for state law errors of any kind. Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 17 1985). Matters relating solely to the interpretation or application of state law are not cognizable 18 on federal habeas review. Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus 19 relief does not lie for errors of state law.” (citations omitted)). 20 Petitioner contends that he is eligible to, and therefore should, have sentencing 21 enhancements struck under amendments made by various state laws, but such claims are not 22 cognizable in federal habeas because they are purely questions of state law interpretation and 23 application. Similarly, any challenge to petitioner’s sentence based upon the state court’s 24 determination that his crime constituted a serious felony is purely a question of state law. Any 25 question as to the applicability of any state sentencing reform to petitioner, or as to whether 26 petitioner’s crime constituted a serious felony, does not and cannot state a claim for federal 27 habeas relief because challenges to a state court’s interpretation or application of state sentencing 28 laws does not give rise to a federal question cognizable in federal habeas. Estelle v. McGuire, 1 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state- 2 court determinations on state-law questions.” (citation omitted)); Middleton, 768 F.2d at 1085 3 (habeas relief “is unavailable for alleged error in the interpretation or application of state law” 4 (citation omitted)); Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (declining to 5 address “[w]hether assault with a deadly weapon qualifies as a ‘serious felony’ under California’s 6 sentence enhancement provisions [because it] is a question of state sentencing law” (citation 7 omitted)). The exception is if “the state court’s finding was so arbitrary or capricious as to 8 constitute an independent due process or Eighth Amendment violation.” Lewis, 497 U.S. at 780 9 (citation omitted). However, petitioner makes no showing in either the first amended petition or 10 the motion to amend that the state court acted in an arbitrary or capricious manner. 11 IV. Conclusion 12 Petitioner has already been given an opportunity to amend the petition and was cautioned 13 that to state a claim for relief he must provide a factual basis for his claims and that to state a 14 claim based on a sentencing error he must show that the error was sufficiently arbitrary or 15 capricious to constitute a due process violation. ECF No. 7. Both the amended petition and 16 motion to amend fail to provide any additional factual basis for petitioner’s claims or to support a 17 finding that the state error was arbitrary or capricious. It therefore appears that further 18 amendment would not result in a cognizable claim and the motion to amend should be denied and 19 the amended petition dismissed without further leave to amend. 20 Accordingly, IT IS HEREBY ORDERED that the March 21, 2023 findings and 21 recommendations (ECF No. 10) are WITHDRAWN. 22 IT IS FURTHER RECOMMENDED that: 23 1. Petitioner’s motion for leave to amend (ECF No. 11) be DENIED; and 24 2. The first amended petition for writ of habeas corpus (ECF No. 9) be dismissed without 25 leave to amend. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 28 after being served with these findings and recommendations, petitioner may file written 1 | objections with the court. The objections should be captioned “Objections to Magistrate Judge’s 2 || Findings and Recommendations.” If petitioner files objections, he shall also address whether a 3 || certificate of appealability should issue and if so, why and as to which issues. See 28 U.S.C. 4 | § 2253(c)(2). Petitioner is advised that failure to file objections within the specified time may 5 || waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 6 | 1991). 7 || DATED: July 14, 2023 ~ 8 Httven— Lhar—e_

ALLISON CLAIRE

9 UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28