“[W]e are bound by the Nevada Supreme Court’s determination that state law 12 | permitted conviction for both grand larceny and robbery within the context of a single trial... .”
How later courts described this case
- “[W]e are bound by the Nevada Supreme Court’s determination that state law 12 | permitted conviction for both grand larceny and robbery within the context of a single trial... .”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 MARLON ROBERSON, Case No. 2:22-cv-01557-JDP (HC)
12 Petitioner, ORDER GRANTING APPLICATION TO
PROCEED IN FORMA PAUPERIS AND
13 v. FINDING THAT THE PETITION DOES NOT
STATE A COGNIZABLE SECTION 2254
14 PEOPLE OF THE STATE OF CLAIM AND GRANTING LEAVE TO
CALIFORNIA & S. PEERY, AMEND WITHIN THIRTY DAYS
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Respondents. ECF Nos. 1 & 6
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18 Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus
19 under 28 U.S.C. § 2254. After reviewing the petition, I find that it fails to state a viable federal
20 claim. I will give petitioner a chance to amend before recommending that this action be
21 dismissed. I will also grant his application to proceed in forma pauperis, ECF No. 6.
22 The petition is before me for preliminary review under Rule 4 of the Rules Governing
23 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine
24 the habeas petition and order a response to the petition unless it “plainly appears” that the
25 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019);
26 Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998).
27 Petitioner alleges that the state sentencing court wrongfully ordered that “a prior sentence
28 be imposed consecutively to a second of subsequent sentence.” ECF No. 1 at 1. He contends that
1 | this sentencing structure violates the Double Jeopardy clause. There is, however, no
2 | constitutional prohibition on consecutive sentences. See Cacoperdo v. Demosthenes, 37 F.3d
3 | 504, 507 (9th Cir. 1994). And the Supreme Court has held that “administering multiple sentences
4 | has long been considered the prerogative of state legislatures.” Oregon v. Ice, 555 U.S. 160, 168
5 | (2009). Ultimately, where multiple sentences are jointly imposed, the Double Jeopardy
6 || protection guarantees only that “the court does not exceed its legislative authorization by
7 | imposing multiple punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165 (1977).
8 | Here, according to petitioner, the state courts considered and rejected his claims. This may
9 | suggest that they considered the intent of the state legislature as to the offenses he was convicted
10 | of; Iam bound by the state courts’ determinations. See Downs v. Vare, 443 F. App’x 312, 313
11 | (9th Cir. 2011) (“[W]e are bound by the Nevada Supreme Court’s determination that state law
12 | permitted conviction for both grand larceny and robbery within the context of a single trial... .”).
13 I will give petitioner an opportunity to amend and explain why this action should proceed
14 | before recommending dismissal.
15 It is ORDERED that:
16 1. Petitioner’s application to proceed in forma pauperis, ECF No. 6, is GRANTED.
17 2. Petitioner may file an amended § 2254 petition within thirty days of this order’s
18 | entry. If he does not, I will recommend that the current petition be dismissed for the reasons
19 || stated in this order.
20 3. The Clerk of Court is directed to send petitioner a federal habeas form with this
21 | order.
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73 IT IS SO ORDERED.
24 ( q Sty —
Dated: _ December 16, 2022 q———
25 JEREMY D,. PETERSON
26 UNITED STATES MAGISTRATE JUDGE
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