Carlilev.Davis

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIAMar 8, 2016
No. 2:16-cv-0261 MCE CKD P (E.D. Cal. Mar. 8, 2016)

No. 2:16-cv-0261 MCE CKD P

03-08-2016

DAVID WESLEY CARLILE, Petitioner, v. RON DAVIS, Respondent.


ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Examination of the request to proceed in forma pauperis reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

Under Rule 4 of the Rules Governing Section 2254 Cases, the court must review all petitions for writ of habeas corpus and summarily dismiss any petition if it is plain that the petitioner is not entitled to relief. The court has conducted that review.

Petitioner takes issue with the Superior Court of Sacramento County's denial of his petition for resentencing under California's "Three Strikes Reform Act of 2012," Cal. Penal Code § 1170.126. However, a petition for writ of habeas corpus in this court can only be granted for a violation of federal law, 28 U.S.C. § 2254(a), and petitioner has no federal right to be resentenced under Cal. Penal Code § 1170.126. While petitioner asserts the manner in which his superior court petition was denied violates both the Due Process and Equal Protection Clauses of the Fourteenth Amendment, he fails to allege any facts which even suggest as much. See e.g. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (habeas petitioner cannot transform a state law claim into a federal claim by merely asserting a violation of due process).

For these reasons, the court will recommend that petitioner's petition for writ of habeas corpus be summarily dismissed.

Accordingly, IT IS HERBY ORDERED that petitioner's request for leave to proceed in forma pauperis (ECF No. 2 & 8) is granted.

IT IS HEREBY RECOMMENDED that:

1. Petitioner's petition for writ of habeas corpus be summarily dismissed; and

2. This case be closed.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: March 8, 2016

/s/_________


CAROLYN K. DELANEY


UNITED STATES MAGISTRATE JUDGE 1
carl0261.dis