(HC) Rollarson v. On Habeas Corpus

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA CLEVELAND ROLLARSON, ) Case No.: 1:24-cv-01536-SKO (HC) ) 12 Petitioner, ) ORDER TO ASSIGN DISTRICT JUDGE TO CASE ) 13 v. ) FINDINGS AND RECOMMENDATION TO ) DISMISS PETITION ) UNNAMED, ) [21-DAY OBJECTION DEADLINE] ) 16 Respondent. ) ) 20 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

22 Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (“CDCR”) serving a sentence of life without possibility of parole for his 1986 convictions in Merced County for first degree murder, robbery, and kidnapping. (Doc. 1.) Petitioner challenges the state courts’ process and determination that he is not entitled to resentencing pursuant to California Penal Code § 1170. Upon review of the petition, it is clear that Petitioner is not entitled to habeas relief. Therefore, the Court recommends that the petition be SUMMARILY DISMISSED.

1 DISCUSSION 2 A. Preliminary Review of Petition 3 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001).

10 B. Failure to State a Cognizable Federal Claim 11 The petition fails to state a cognizable habeas claim. Petitioner claims the California Supreme Court erred by denying his petition for resentencing by finding it untimely. Petitioners seeking federal habeas relief must allege that they are in custody “pursuant to the judgment of a State court . . . in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). “[F]ederal habeas corpus relief does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (citations omitted). “[E]rrors of state law do not concern us unless they rise to the level of a constitutional violation.” Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989).

18 The Supreme Court has held that “the essence of habeas corpus is an attack by a person in custody upon the legality of that custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). To succeed in a petition pursuant to Section 2254, a petitioner must demonstrate that the adjudication of his claim in state court “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1), (2). Petitioner may only seek habeas relief if the nature or duration of his imprisonment violates federal constitutional provisions.

26 Here, Petitioner claims that the California Supreme Court erred by denying his petition for resentencing pursuant to California Penal Code § 1170. He further claims the state court wrongly found his petition to be untimely. Petitioner is challenging the state court’s application of state sentencing laws. Such a claim does not give rise to a federal question cognizable on federal habeas review. Lewis v. Jeffers, 497 U.S. 764 (1990); Sturm v. California Youth Authority, 395 F.2d 446, 448 (9th Cir. 1967) (“a state court's interpretation of its [sentencing] statute does not raise a federal question.”) Petitioner’s claim that the California Supreme Court erred in state court procedure likewise fails to state a cognizable ground for relief. This Court does not function as an appellate court to the state courts for purpose of ensuring state court procedures were properly followed. Thus, Petitioner fails to state a cognizable federal habeas claim, and it should be dismissed. Petitioner seeks to challenge the California state courts’ interpretation and application of California state law, but this Court has no authority in habeas to address such a challenge.

10 C. Failure to Name a Respondent 11 Petitioner does not name a respondent. A petitioner seeking habeas corpus relief under 28 12 U.S.C. § 2254 must name the state officer having custody of him as the respondent to the petition.

13 Rule 2 (a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Generally, the person having custody of an incarcerated petitioner is the warden of the prison in which the petitioner is incarcerated because the warden has "day-to-day control over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also Stanley, 21 F.3d at 360. However, the chief officer in charge of state penal institutions is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360.

19 Where a petitioner is on probation or parole, the proper respondent is his probation or parole officer and the official in charge of the parole or probation agency or state correctional agency. Id. 21 Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 1326 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd Cir. 1976).

24 ORDER 25 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a District Judge to the case.

27 ///// ///// 1 RECOMMENDATION 2 The Court HEREBY RECOMMENDS that the petition be SUMMARILY DISMISSED with prejudice.

4 This Findings and Recommendation is submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within twenty- one (21) days after being served with a copy of this Findings and Recommendation, a party may file written objections with the Court and serve a copy on all parties. Id. The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendation” and shall not exceed fifteen (15) pages, except by leave of court with good cause shown. The Court will not consider exhibits attached to the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise reference the exhibit with specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by the District Judge when reviewing these Findings and Recommendations pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014). This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.

22 IT IS SO ORDERED.

23 Dated: December 19, 2024 /s/ Sheila K. Oberto .

24 UNITED STATES MAGISTRATE JUDGE