Opinion
No. CIV S-07-1476 GEB KJM P.
August 10, 2007
FINDINGS AND RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He has paid the filing fee.
Petitioner challenges his 1996 Sacramento County Superior Court conviction for possession of heroin by an inmate in violation of California Penal Code § 4573.6 and the finding that he had suffered three prior strikes. He raises a single challenge to the conviction:
At sentencing the court failed to exercise fair discretion in applying P. C. 1385 and correctly dismiss allegations (priors) and accordingly sentence petitioner.
Pet. at 6.
A court may dismiss a habeas petition without issuing an order to show cause if it appears the petitioner is not entitled to relief. Harris v. Nelson, 394 U.S. 286, 298-99 (1969); Hunt v. Eyman, 429 F.2d 1318, 1319 (9th Cir. 1970).
Under California Penal Code § 1385, a trial court has discretion to strike one or more prior convictions in the furtherance of justice. People v. Carmony, 33 Cal. 4th 367, 375 (2004). Absent fundamental unfairness, federal habeas relief is not available for a state court's misapplication of its own sentencing laws. Ely v. Terhune, 125 F.Supp.2d 403, 411 (C.D. Cal. 2000) (holding claim that state court erred by refusing to strike a prior strike conviction did not state a federal question). The exhibits attached to petitioner's habeas petition show that the superior court considered the question and declined to exercise its discretion to strike any of petitioner's prior convictions. Pet., Exs. B C. Accordingly, the petition does not present a federal question.
Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.
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)(1). Within twenty 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).