Opinion
No. C 02-3718 SI (pr)
January 2, 2003
JUDGMENT
The petition for writ of habeas corpus is dismissed for failure to state a claim upon which relief maybe granted.
ORDER OF DISMISSAL INTRODUCTION
Clyde N. Slaughter, a prisoner incarcerated at Pelican Bay State Prison, filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court reviewed his petition and dismissed it with leave to amend. Slaughter's amended petition is now before the court for review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases.
BACKGROUND
Slaughter was convicted of first degree murder and attempted robbery and was sentenced to a term of life in prison without the possibility of parole. He appealed. The California Court of Appeal affirmed his conviction and the California Supreme Court denied his petition for review. Slaughter then filed this action.
DISCUSSION
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). A district court shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
Slaughter's petition contains three claims. His first claim is that he received ineffective assistance of counsel on appeal. Slaughter does not state any understandable facts in support of this conclusory allegation. This repeats the problem with Slaughter's original petition. When the court dismissed the original petition with leave to amend, it explained that it was "unable to understand enough of Slaughter's petition for writ of habeas corpus to determine whether any claim for habeas relief exists. The words are legible, but most of the sentences make no sense. Slaughter will be given leave to amend to state each of his claims more clearly. For each claim, Slaughter should explain what particular federal constitutional right was violated and explain what happened (or failed to happen) at trial or during the appeal that caused the violation of his federal constitutional rights." Order of Dismissal With Leave To Amend, p. 2. The amended petition does not cure the deficiency earlier identified by the court. The court will not grant leave to amend because it would be futile: the court has already explained what Slaughter needs to do to plead a claim and he has failed to do it. Summary dismissal is appropriate for this claim.
The second and third claims in Slaughter's petition are that his life-without-parole sentence for the crimes of felony murder and attempted robbery violated the Eighth Amendment's prohibition of cruel and unusual punishment. The claim has no legal merit. Life imprisonment without parole is not so disproportionate to the crime of felony murder that there is any possibility that it amounted to cruel and unusual punishment. See Solem v. Helm, 463 U.S. 277, 290 n. 15 (1983) ("no sentence of imprisonment would be disproportionate" to felony murder);Harris v. Wright, 93 F.3d 581, 583 (9th Cir. 1996). In Slaughter's case, Slaughter pointed a shotgun at a person he was robbing and killed him when the shotgun (according to Slaughter) accidentally discharged. Life imprisonment without parole for that killing (i.e., a killing done by the adult defendant during the commission of a robbery at gunpoint) would not be cruel and unusual punishment. Summary dismissal is appropriate for these Eighth Amendment claims.
CONCLUSION
For the foregoing reasons, the petition is dismissed for failure to state a claim upon which relief may be granted. The clerk shall close the file.