(HC) Anderson v. Sherman

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA HEATHER G. ANDERSON, Case No. 2:21-cv-00120-KJM-JDP (HC) 12 Petitioner, ORDER FINDING THAT THE PETITION DOES NOT STATE A COGNIZABLE 13 v. FEDERAL CLAIM AND GIVING LEAVE TO AMEND WITHIN SIXTY DAYS STEWARD SHERMAN, GRANTING PETITIONER’S APPLICATION 15 Respondent. TO PROCEED IN FORMA PAUPERIS 16 ECF Nos. 1, 6 18 Petitioner Heather G. Anderson, a state prisoner proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. The petition is before me for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine the habeas petition and order a response to the petition unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). Here and for the reasons stated below, it plainly appears that petitioner is not entitled to relief. I will give petitioner an opportunity to amend before recommending that the petition be dismissed. I will also grant the application to proceed in forma pauperis, ECF No.6.

1 Petitioner alleges that she1 is entitled to sentencing relief under Proposition 57, a California measure enacted by voters in 2016. ECF No. 1 at 4-5. She alleges that, under this proposition, her state convictions should be classified as “non-violent” and she should be eligible for resentencing. Id. at 5. Petitioner states that she has filed two habeas petitions addressing these claims in state court and both were denied. Id. at 3-4. The application of Proposition 57 to petitioner’s convictions is a matter of state law; it does not present a federal question. Other district courts in this circuit have found as much. See Moore v. Matteson, No. CV 20-04516-JGB (DFM), 2020 WL 6363953, at *2 (C.D. Cal. Oct. 28, 2020) (claims arising under Proposition 57 are issues of state law not cognizable in federal habeas corpus); Sherman v. Dir. of Corr., No. 2:19-cv-10827-SVW-JC, 2020 WL 6083670, at *3 (C.D. Cal. Aug. 17, 2020) (same). I cannot recommend granting relief where no federal question is presented. See Estelle v. McGuire, 502 12 U.S. 62, 68 (1991) (“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”). And a petitioner cannot, as she attempts to do here, convert a state claim into a federal one by alleging a violation of her federal due process rights. See Langford v. Day, 110 F. 3d 1380, 1389 (9th Cir. 1997) (petitioner may not “transform a state-law issue into a federal one merely by asserting a violation of due process.”). As stated above, I will give petitioner a chance to amend and explain why her claims present a federal question before I recommend dismissal.

19 It is ORDERED that: 20 1. Petitioner’s application to proceed in forma pauperis, ECF No. 6, is GRANTED.

21 2. Petitioner may file an amended petition within sixty days of this order’s entry. If she does not, I will recommend that the current petition be dismissed for the reasons stated in this order.

24 3. The Clerk of Court is directed to send petitioner a federal habeas form.

27 1 The court is using female pronouns to refer to the petitioner. In the petition, she states that she formerly went by “Matthew.” ECF No. 1 at 1. If this is not petitioner’s preference, she should not hesitate to advise the court of the correct pronouns to use in future filings. | 1718 SO ORDERED.

3 ( — Dated: _ March 22, 2021 Jess Vote 4 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE ul