(HC) Reed v. State of California

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA BERNARD K. REED, Case No. 2:24-cv-3524-JDP (P) 12 Petitioner, 13 v. ORDER STATE OF CALIFORNIA, 15 Respondent.

18 Petitioner brings this action under section 2254. ECF No. 2. After review of the petition, I find that it fails to state a cognizable federal habeas claim. I will dismiss the petition with leave to amend. Additionally, I will grant petitioner’s application to proceed in forma pauperis, ECF No. 5, and deny his motion for default judgment, ECF No. 6.

22 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).

27 Petitioner raises several claims, most of which sound only in state law. First, he claims that the state court erred in applying the special circumstance law under penal code § 190.2. ECF No. 2 at 5. This question of state law does not give rise to a federal habeas claim. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”) (citation omitted); see also Rodriguez v. Biter, No. EDCV 13-01082 ODW (AN), 2013 U.S. Dist. LEXIS 182652, *23 (C.D.

6 Cal. Nov. 13, 2013) (argument that state court erred in application of §190.2 not cognizable on federal habeas review). Second, petitioner argues that the state court failed to apply the standards set forth by the California Supreme Court in People v. Banks, 61 Cal. 4th 788, 189 Cal. Rptr. 3d 9 208, 351 P.3d 330 (2015) and People v. Clark, 63 Cal. 4th 522, 203 Cal. Rptr. 3d 407, 372 P.3d 10 811 (2016). These claims, insofar as they rest on state court holdings, are also non-cognizable because they sound entirely in state law. Similarly, petitioner’s claim that the state court violated the California Supreme Court’s holding in People v. Strong, 13 Cal. 5th 698, 708, 296 Cal. Rptr. 13 3d 686, 514 P.3d 265 (2022) is also foreclosed. Third, petitioner argues that the state court violated his rights under penal code § 1172.6 by denying his resentencing petition without an evidentiary hearing. Again, violation or misapplication of this state law provision does not give rise to a federal habeas claim. See Nieber v. Macomber, No.: 23-cv-0174-LL-DEB, 2024 U.S. 17 Dist. LEXIS 123225, *7 (S.D. Cal. Jul. 12, 2024) (collecting cases on this point). Fourth and finally, petitioner argues that his counsel was ineffective, presumably during his resentencing hearings, since his original conviction occurred in 2012. ECF No. 2 at 6. There is no entitlement to counsel in post-conviction proceedings, however. Coleman v. Thompson, 501 U.S. 722, 752 (1991) (“There is no constitutional right to an attorney in state post-conviction proceedings.”).

22 Rather than recommending dismissal of the case, I will dismiss the petition with leave to amend. Petitioner may file a new petition that addresses these deficiencies and explains why, if at all, his claims should proceed. Given that the operative petition does not present a cognizable claim, I will deny petitioner’s motion for default judgment. ECF No. 6.

26 Accordingly, it is ORDERED that: 27 1. Petitioner’s application to proceed in forma pauperis, ECF No. 5, is GRANTED.

28 2. The petition, ECF No. 2, is DISMISSED with leave to amend.

1 3. Within thirty days from service of this order, petitioner shall file either (1) an amended | petition or (2) notice of voluntary dismissal of this action without prejudice.

3 4. Failure to timely file either an amended petition or notice of voluntary dismissal may | result in the imposition of sanctions, including a recommendation that this action be dismissed | with prejudice pursuant to Federal Rule of Civil Procedure 41(b).

6 5. The Clerk of Court shall send petitioner a habeas petition form with this order.

7 6. Petitioner’s motion for default judgment, ECF No. 6, is DENIED.

9 IT IS SO ORDERED.

10 ( 1 ow — Dated: _ April 28, 2025 q——— 11 JEREMY D. PETERSON 10 UNITED STATES MAGISTRATE JUDGE