FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS

[Doc. 8]

MICHAEL J. SENG, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent, Debbie Asuncion, Warden of California State Prison, Los Angeles, is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented in this action by Tami Krenzin, of the Office of the Attorney General for the State of California.

I. Background

Petitioner is currently in the custody of the California Department of Corrections pursuant to an October 5, 1990 judgment of the Superior Court of California, County of Fresno, upon being convicted of two counts of first degree murder and various enhancements. (Lodged Doc. 1.) Petitioner was sentenced to an indeterminate prison sentence of life without the possibility of parole. Id. Petitioner filed an appeal with the Fifth District Court of Appeal. It was denied on August 13, 1992. (Lodged Doc. 2.) Ten years later, in 2003, Petitioner sought review from the California Supreme Court. The California Supreme Court denied review on November 19, 2003. (Lodged Doc. 3.)

On September 15, 2015, Petitioner filed a petition for sentence reduction under California law with the Fresno County Superior Court. (Lodged Doc. 4.) On September 30, 2015, the court denied the request finding Petitioner was not eligible or resentencing. (Lodged Doc. 5.) Petitioner sought review from the Fifth District Court of Appeal. On May 31, 2016, the Court dismissed the petition for review, holding that the superior court's order was not appealable. (Lodged Doc. 7.) Petition filed a petition for writ of prohibition on July 7, 2016 with the California Supreme Court. (Lodged Doc. 8.) It was denied on July 27, 2016.

On August 31, 2016, Petitioner filed the instant petition requesting this Court grant his motion for resentencing. (Pet.) On November 22, 2016, Respondent filed a motion to dismiss asserting that Petitioner has not presented federally cognizable claims. (ECF No. 8.) Petitioner did not file an opposition to the motion. Accordingly, the matter stands ready for adjudication.

II. Discussion

A. Procedural Grounds for Motion to Dismiss

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases.

The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.

B. Legal Standard of Review

On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L. Ed. 2d 481 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997). The instant petition was filed after the enactment of the AEDPA; thus, it is governed by its provisions.

Under AEDPA, an application for a writ of habeas corpus by a person in custody under a judgment of a state court may be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a); Williams v. Taylor, 529 U.S. at 375 n. 7 (2000). Federal habeas corpus relief is available for any claim decided on the merits in state court proceedings if the state court's adjudication of the claim:

C. Petitioner's Federal Claims Are Without Merit

Here, Petitioner asserts that his federal Due Process and equal protection rights were violated by the state's denial of Petitioner's petition for writ of prohibition. Petitioner sought relief in the state courts to have his sentence modified, specifically to have the special circumstances stricken so that he might become eligible for parole. (See Lodged Doc. 5.) The court informed Petitioner that he was not entitled to the relief sought under People v. Williams, 30 Cal.3d 470 (1981), because California Penal Code § 1385.1, when enacted on June 6, 1990, precluded relief under Williams. (Id.) Accordingly, the court denied Petitioner's writ of prohibition requesting to modify his sentence. (Id.)

A claim of state sentencing error does not raise a federal constitutional question. Lewis v. Jeffers, 497 U.S. 764, 783, 110 S.Ct. 3092, 111 L. Ed. 2d 606 (1990). The Ninth Circuit has refused to consider state law errors in the application of state sentencing law. Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002); Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994); Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993); Miller v. Vasquez, 868 F.2d 1116 (9th Cir. 1989) (refusing to examine state's determination that a prior was a serious felony); Johnson v. Arizona, 462 F.2d 1352, 1353-54 (9th Cir. 1972) (rules of sentencing adopted by state court do not raise constitutional issues which may be reached by habeas corpus); Adams v. Eyman, 418 F.2d 911 (9th Cir. 1969); Sturm v. California Adult Authority, 395 F.2d 446, 448 (9th Cir. 1967). Therefore, to the extent that Petitioner claims that there was a violation of California law relating to sentencing, he does not state a cognizable federal question. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L. Ed. 2d 385 (1991).

Petitioner claims that the state court decisions violated his federal Due Process rights. (See, Pet.) "As for the Due Process Clause, standard analysis under that provision proceeds in two steps: We first ask whether there exists a liberty or property interest of which a person has been deprived, and if so we ask whether the procedures followed by the State were constitutionally sufficient. Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011); Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L. Ed. 2d 506 (1989).

In order to state a due process claim, Petitioner must show that a constitutionally protected liberty interest is implicated. Baumann v. Arizona Dept. of Corrections, 754 F.2d 841, 844 (9th Cir. 1985). A state may create a constitutionally protected liberty interest if it establishes regulatory measures that impose substantive limitations on the exercise of official discretion. Hewitt v. Helms, 459 U.S. 460, 470-72, 103 S.Ct. 864, 74 L. Ed. 2d 675 (1983), overruled in part by Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L. Ed. 2d 418 (1995).

However, a state prisoner does not have a liberty interest in a classification status under the Fourteenth Amendment. Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir. 1987); see Moody v. Daggett, 429 U.S. 78, 88 n.9, 97 S.Ct. 274, 50 L. Ed. 2d 236 (1976) (Due Process Clause not implicated by federal prisoner classification and eligibility for rehabilitative programs, even where inmate suffers "grievous loss").

To the extent Petitioner might attempt to base a due process claim on having a liberty interest violated by the state court's abuse of discretion, the source of any liberty interest is state law. Cf. Swarthout v. Cooke, 131 S.Ct. 859 at 861-62 (characterizing as reasonable a decision of the Ninth Circuit Court of Appeals that California law creates a liberty interest in parole protected by the Due Process Clause of the Fourteenth Amendment). Here, after affording Petitioner due process and considering the pertinent factors, the state court determined it lacked jurisdiction under state law to modify his sentence. (Lodged Doc. 5.) Thus, Petitioner has not shown there was a violation of a liberty interest protected by the Due Process Clause. Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief. Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). Petitioner has not shown any fundamental unfairness.

Therefore, the state court's denial of Petitioner's due process claim was neither contrary to, nor an unreasonable application of, clearly established law. See 28 U.S.C. § 2254(d).

III. Conclusion

In sum, Petitioner has not presented cognizable claims. Further, to the extent that this Court construed Petitioner's claims as potentially cognizable claims, the state court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established law. See 28 U.S.C. § 2254(d). The Court therefore recommends that Respondent's motion to dismiss be granted and the petition for writ of habeas corpus be dismissed.

IV. Recommendation

Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss for Petitioner's failure to state a federally cognizable claim be GRANTED.

This Findings and Recommendation is submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after the date of service of this Findings and Recommendation, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the Objections shall be served and filed within fourteen (14) days after service of the Objections. The Finding and Recommendation will then be submitted to the District Court for review of the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(c). Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).

IT IS SO ORDERED.