(HC) Glass v. Covello

6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA DANIEL AVERY GLASS, JR., Case No. 2:22-cv-01383-JDP (HC) 10 Petitioner, ORDER FINDING THAT THE PETITION DOES NOT STATE A COGNIZABLE 11 v. SECTION 2254 CLAIM AND GRANTING LEAVE TO AMEND WITHIN THIRTY PATRICK COVELLO, DAYS 13 Respondent. ECF No. 1 15 Petitioner, proceeding without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. His sole claim is that the trial court erred under California state law when it imposed a ten-year enhancement. ECF No. 1 at 3. This claim implicates only state sentencing laws and is not cognizable. I will grant petitioner leave to amend and explain why this claim should proceed.

19 The amended 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 it 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).

24 Claims based on a state’s misapplication of its own sentencing laws generally do not give rise to cognizable federal habeas claims. See 28 U.S.C. § 2254(a) (federal habeas relief available only where a person is “in custody in violation of the Constitution or laws or treaties of the United States”); see also Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have stated many times that federal habeas corpus relief does not lie for errors of state law.”) (internal quotation | marks omitted). Petitioner’s sole claim that the trial court erred in imposing an enhancement does | not give rise to any alleged violation of the Constitution or the laws of the United States. In rare | circumstances, a misapplication of state sentencing law can be “‘so arbitrary or capricious as to | constitute an independent due process” violation. Richmond v. Lewis, 506 U.S. 40, 50 (1992).

5 | Here, petitioner has not alleged facts or made argument establishing those circumstances. He | may attempt to do so if he elects to file an amended petition.

7 It is ORDERED that: 8 1. Petitioner may file an amended § 2254 petition within thirty days of this order’s | entry. If he does not, I will recommend that the current petition be dismissed for the reasons || stated in this order.

11 2. The Clerk of Court is directed to send petitioner a federal habeas form with this | order.

4 IT IS SO ORDERED.

15 ( 1 ow — Dated: _ August 11, 2022 Q_—— 16 JEREMY D. PETERSON 7 UNITED STATES MAGISTRATE JUDGE