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Ramirez v. Lewis

filed*fn*: October 9, 1991.

JAMES RAMIREZ, PETITIONER-APPELLANT,
v.
SAMUEL A. LEWIS, ET AL., RESPONDENTS-APPELLEES



Appeal from the United States District Court for the District of Arizona; D.C. No. CV-90-00381-RMB; Richard M. Bilby, Chief Judge, Presiding.

Hug, Norris, and Brunetti, Circuit Judges.

MEMORANDUM

James Ramirez, an Arizona state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and we affirm.

In May 1987, Ramirez filed his first federal habeas petition and alleged that he received ineffective assistance from his trial counsel. In January 1990, this court affirmed the district court's dismissal of the first petition. In July 1990, Ramirez filed a second federal habeas petition, the subject of this appeal.

Ramirez raised four claims in his second habeas petition: (1) the federal courts denied his first habeas petition without applying the correct standard to determine if the evidence was sufficient to support his conviction; (2) he received ineffective assistance from his appellate counsel; (3) he was denied due process because he did not receive an evidentiary hearing on his first federal habeas petition; and (4) the Arizona Department of Correction's failure to sequester inmates who have the AIDS virus violates his eighth amendment right against cruel and unusual punishment. The district court dismissed the petition sua sponte.

A district court may dismiss a habeas petition without serving it on the respondents if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief." Rule 4, Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254.

Here, the district court did not err in dismissing Ramirez's habeas petition sua sponte. Ramirez's first and third claims, which challenge this court's decision on his first habeas petition, are not cognizable under section 2254. See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (a state prisoner is entitled to habeas relief only when there is a transgression of federal law in the state court proceedings) (citation omitted), cert. denied, 478 U.S. 1021 (1986).*fn1

Ramirez's second claim, that he received ineffective assistance of counsel in his state court appeal, also lacks merit.*fn2 Ramirez alleges only that his attorney "failed to present all issues of law and fact in petitioner's defense of case:" These allegations are insufficient to support an ineffective assistance of counsel claim. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (deficient performance is demonstrated only if the attorney "made errors so serious that the counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"); Jones v. Barnes, 463 U.S. 745, 754 (1983) (defense counsel does not have a duty to raise every colorable claim suggested by a client); see also Wacht v. Cardwell, 604 F.2d 1245, 1247 (9th Cir. 1979) (state habeas petitioner must allege facts that show a "'real possibility' of constitutional error").

Finally, Ramirez's claim that the failure to sequester inmates who have the AIDS virus from the general prison population violates his eighth amendment rights is not cognizable in a section 2254 habeas petition. See Preiser v. Rodriguez, 411 U.S. 475, 499 (1973) ("a [42 U.S.C.] § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody")*fn3

AFFIRME ...


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