Filed: Aug. 25, 2016
Latest Update: Aug. 25, 2016
Summary: ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE ANDR BIROTTE, Jr. , District Judge . Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. After having made a de novo determination of the portions of the Report and Recommendation to which Objection were directed. The Court concurs with and accepts the findings and conclusion
Summary: ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE ANDR BIROTTE, Jr. , District Judge . Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. After having made a de novo determination of the portions of the Report and Recommendation to which Objection were directed. The Court concurs with and accepts the findings and conclusions..
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ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
ANDRÉ BIROTTE, Jr., District Judge.
Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. After having made a de novo determination of the portions of the Report and Recommendation to which Objection were directed. The Court concurs with and accepts the findings and conclusions of the Magistrate Judge in the Report and Recommendation. However, the Court addresses certain arguments raised in the Objections below.
Petitioner contends that he is also entitled to habeas relief on his conviction and sentence for first degree burglary because one of the four prior prison terms that were used to enhance his sentence (by one year) has since been reduced to a misdemeanor as a result of Proposition 47.1 (Petitioner's Second Supplemental Lodgment; Docket Entry No. 38). However, because this claim was not raised in the petition, and is unexhausted, it is not properly before the Court. "A federal court may not grant habeas relief to a state prisoner unless the prisoner has first exhausted his state court remedies by fully and fairly presenting each claim to the highest court." Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009) (citation and internal quotation marks omitted); 28 U.S.C. § 2254(b)(1)(A(A). The Court also notes that this claim presents only a state law issue not cognizable on federal habeas review. Federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Matters relating to sentencing and serving of a sentence generally are governed by state law and do not raise a federal constitutional question. See Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (whether a particular prior conviction qualifies for sentence enhancement under California law is not cognizable on federal habeas corpus).
Petitioner's remaining objections to the Report and Recommendation are a reiteration of the arguments made in the Petition and have been addressed in the Report and Recommendation. Accordingly, the Court concurs with and accepts the findings and conclusions of the Magistrate Judge.
IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on counsel for Petitioner and counsel for Respondent.
LET JUDGMENT BE ENTERED ACCORDINGLY.
