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October 3, 2005.

RICHARD J. KIRKLAND, Warden, Respondent.

The opinion of the court was delivered by: NITA STORMES, Magistrate Judge

DeAngelo Mathew Cooper ("Petitioner"), a California prisoner, was found guilty of being a felon in possession of a firearm. Because of his prior criminal record, he was sentenced under California's recidivist statute to a term of 26 years to life in prison. He has filed a pro se First Amended Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254, arguing that his sentence violates the Double Jeopardy Clause of the Fifth Amendment, as made applicable to the states through the Fourteenth Amendment. [Dkt. No. 4.] Respondent has filed a Motion to Dismiss the Petition, arguing that the Petition should be dismissed for failure to exhaust or, alternatively, denied on the merits. [Dkt. Nos. 11, 12.] Petitioner opposes Respondent's request. [Dkt. No. 15.] This Court has reviewed the Petition, Respondent's Motion to Dismiss, Petitioner's Opposition and all supporting documents. After a thorough review, the Court RECOMMENDS that the Petition be DENIED on the merits. Background

In August 1998, police officers conducting a routine traffic stop discovered Petitioner in possession of a nine-millimeter pistol loaded with fifteen rounds of hollow-point ammunition. [Lodgment 8 at 2.] At the time he was on parole for attempted murder. Following a bench trial, he was convicted of being a felon in possession of a firearm in violation of Cal. Penal Code § 12021(a)(1). The court also found that he had three prior convictions for violent and/or serious felonies, subjecting him to an indeterminate sentence of 25-years-to-life under California's Three Strikes Law, which imposes increasingly severe penalties for repeat offenders.*fn1 [Lodgment 2.] Specifically, at age 17 he incurred two juvenile adjudications, one for attempted robbery with the personal use of a deadly weapon, and one for robbery with the personal use of a firearm. In the first case he struck a woman in the head with a baseball bat while attempting to steal her car. In the latter case he kicked and shot at the victim during the process of taking her car. He was committed to the California Youth Authority for those offenses. Six months after his release from the California Youth Authority, he was convicted of attempting to murder a police officer. For that offense he was committed to state prison for a term of 13 years. [Lodgment 8 at 2-3.]

  Despite Petitioner's criminal history, at sentencing the trial court decided to "strike," or disregard, the two juvenile adjudications. Instead of sentencing him to 25 years to life, the court sentenced him to a term of seven years.*fn2 [Lodgment 2 at 30-31.] The prosecution appealed, contending that the trial court failed to articulate an adequate basis for disregarding the two juvenile adjudications. The state appellate court agreed, and reversed and remanded for resentencing. [Lodgment 3.] On remand, the trial court again struck the juvenile adjudications, finding that Petitioner was outside the spirit of the Three Strikes Law, and reimposed a sentence of seven years. [Lodgment 7.] The prosecution again appealed, arguing that the trial court's actions constituted an abuse of discretion. The appellate court agreed, finding no basis for the trial court to have disregarded the juvenile adjudications in imposing its sentence.*fn3 [Lodgment 8.] In short, the court concluded that Petitioner, with his escalating pattern of violent conduct, was "precisely the type of offender the People had in mind when they enacted the three strikes law." [Lodgment 8 at 14.] Accordingly, the court ordered that on remand the trial court was to sentence Petitioner as a person who had suffered three prior strikes. [Lodgment 8 at 15.] On remand, the trial court imposed an indeterminate sentence of 25 years to life in prison, with one year added because of his prior prison term. [Lodgment 13.] Petitioner appealed, raising an Eighth Amendment cruel and unusual punishment argument, and the appellate court affirmed. [Lodgment 14.] The California Supreme Court denied his petition for review. [Lodgment 15, 16.]

  Petitioner then filed a pro se petition for writ of habeas corpus with the state appellate court, claiming that the trial court had abused its discretion in imposing such a lengthy sentence. [Lodgment 18.] The petition was denied. [Lodgment 19.] He filed a second pro se habeas petition with the state appellate court, this time claiming that his sentence violated double jeopardy principles because it punished him twice for his juvenile offenses. [Lodgment 20.] The petition was denied. [Lodgment 21.] He then filed a pro se habeas petition with the California Supreme Court, again claiming that his sentence violated the Double Jeopardy Clause of the Fifth Amendment. [Lodgment 22.] The petition was denied without comment. [Lodgment 23.]

  In February 2005, he filed a second pro se habeas petition with the California Supreme Court, raising a variation on his double jeopardy claim, namely, that because he was not resentenced within 120 days as allegedly required by state statute, his sentence violated the Double Jeopardy Clause of the Fifth Amendment. [Lodgment 24 at 3.] This claim is identical to the claim he presently raises in his federal Petition. [Petition at 6.] As the Respondent points out, Petitioner's second habeas petition remains pending before the California Supreme Court. [Respondent's Memorandum of Points & Authorities in Support of Motion to Dismiss Amended Petition for Writ of Habeas Corpus ("Points & Auth.") at 4-6; Petitioner's Opposition to Motion to Dismiss ("Opp.") at 2.] Respondent therefore requests that the Petition be dismissed, arguing that Petitioner has not fully exhausted his state remedies. Respondent argues further that the Petition fails to present a federal claim and should be denied on the merits. [Points & Auth. at 7-10.] In his Opposition to the Motion to Dismiss, Petitioner asserts that he properly exhausted his claim. [Opp. 5-6.]


  This Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the merits by the state court unless that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). A federal habeas court may grant relief under the "contrary to" clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the "unreasonable application" clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. In deciding a state prisoner's habeas petition, a federal court is not called to decide whether it agrees with the state court's determination; rather, the court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). Additionally, the state court's factual determinations are presumed correct, and the petitioner carries the burden of rebutting this presumption with "clear and convincing evidence." 28 U.S.C.A. § 2254(e)(1).

  Respondent argues that the Petition should be dismissed because Petitioner has not yet fully exhausted his state judicial remedies. [Points & Auth. at 4-6.] The exhaustion of available state judicial remedies is a prerequisite to a federal court's consideration of a claim presented in a habeas corpus petition. See 28 U.S.C. § 2254(b)(1); Rose v. Lundy, 455 U.S. 509, 522 (1982). As a matter of comity, federal courts generally do not consider a claim until the state courts have had an "initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971). The exhaustion requirement also serves to prevent disruption of state judicial proceedings and economize scarce federal judicial resources. Rose, 455 U.S. at 518; Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982). To satisfy the exhaustion requirement, a petitioner must first provide the state courts with a "fair opportunity" to decide the claim and grant relief by presenting the court with both the controlling legal principles and the facts bearing upon his constitutional claim. Anderson v. Harless, 459 U.S. 4, 6 (1982). Exhaustion is accomplished if the state's highest court had an opportunity to rule on the merits of the claim. Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999); Batchelor, 693 F.2d at 862-863. If the claim was not presented to the state's highest court on direct appeal, state collateral remedies must be exhausted. See 28 U.S.C. § 2254(c); Reiger v. Christensen, 789 F.2d 1425, 1427 (9th Cir. 1986).

  The claim Petitioner raises here, regarding the state's "120-day statute of limitations" and the Double Jeopardy Clause of the Fifth Amendment, has not yet been decided by the California Supreme Court. Petitioner raised this claim with the court in a petition filed February 2005, and as of today's date, the petition remains pending. Because the California Supreme Court has not yet had an opportunity to pass on the claim, the claim is unexhausted for purposes of § 2254(b)(1). See Reiger, 789 F.2d at 1427; Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (exhaustion requirement not satisfied where there is a pending post-conviction proceeding in state court).

  In his Opposition to the Motion to Dismiss, Petitioner asserts that he previously exhausted his 120-day statute of limitations/double jeopardy claim, but a careful examination of his filings in state court reveal that this is not the case. He did not raise any double jeopardy claim in his direct appeal. [Lodgment 14, 15.] He raised a general double jeopardy claim in his first habeas petition to the California Supreme Court, arguing that the state court improperly punished him twice for his juvenile offenses. [Lodgment 22 at 3.] However, he did not include the "120-day statute of limitations" argument in his petition. [See Lodgment 22.] That general double jeopardy claim was thus different from his present claim, which is essentially that the state could not resentence him after a certain amount of time had passed (120 days) without violating the Double Jeopardy Clause. To properly exhaust, Petitioner must fairly present the state court with both the operative legal principles and the facts surrounding his claim. Picard, 404 U.S. at 277-78; see also Kelly v. Small, 315 F.3d 1063, 1069 (9th Cir. 2003) (thorough description of operative facts and legal theory is necessary for proper exhaustion). It is not sufficient that he made a "somewhat similar" double jeopardy claim in his previous filing to the state supreme court. See Anderson, 459 U.S. at 6; see also Vasquez v. Hillery, 474 U.S. 254, 260 (1986) (claim not fairly presented if facts alleged in federal court "fundamentally alter" nature of claim presented to state courts). Petitioner did raise the 120-day statute of limitations/double jeopardy claim in a petition to the state appellate court; however, to properly exhaust he must give the state's highest court an opportunity to rule on the merits of the claim. See Weaver, 197 F.3d at 364. Because his claim is currently pending before the state's highest court, the Court agrees with Respondent that Petitioner has not fully exhausted his claim.

  Generally, a habeas petition containing an unexhausted claim must be dismissed without prejudice so that the petitioner can return to state court.*fn4 Rose, 455 U.S. at 522. This general rule notwithstanding, in certain circumstances a federal court may deny a claim on the merits despite a petitioner's failure to fully exhaust state judicial remedies. See 28 U.S.C.A. § 2254(b)(2); Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). The court may deny an unexhausted claim on the merits "when it is perfectly clear that the applicant does not raise even a colorable federal claim." Cassett, 406 F.3d at 624. This rule avoids the waste of resources that results "when a prisoner presenting a hopeless petition to a federal court is sent back to the state courts to exhaust state remedies." Id. Thus, the court may deny relief on the merits when it is apparent that the petitioner has "no hope of prevailing" on his claim. Id. Accordingly, the Court turns to a consideration of the merits of Petitioner's claim. The Court notes at the outset that the Petition is not a model of clarity, making it somewhat difficult to discern the precise contours of his claim. In the "grounds for relief" section Petitioner states simply, "Protection against double jeopardy multiple prosecution for same offense." [Petition at 6.] In the "supporting facts" section Petitioner states that he was initially sentenced to a seven-year term and was then "brought back" by the appellate court for resentencing, at which time he was given a sentence of 26 years to life. [Petition at 6.] Petitioner asserts that "this is double jeopardy because there is a 120-day statute of limitation on resentence." [Petition at 6.] He argues that contrary to this alleged statute of limitation, "the prosecution took 2 year 3 months to resentence." [Petition at 6; Opp. at 1-2.]

  Regarding the 120-day "statute of limitation," it appears Petitioner is referring to California Penal Code § 1170(d), which pertains to a trial court's authority to recall a sentence based on a technical error. [Opp., Ex. A.] The provision provides that in certain cases the trial court may, on its own motion, recall a sentence and resentence the defendant within 120 days of the defendant's commitment. Cal. Penal Code § 1170(d). As Respondent points out, this provision is wholly inapplicable to Petitioner's case, since he was resentenced because of the appellate court's reversal, not because of some technical error discovered by the trial court. [See Points & Auth. at 8-9 & n. 8.] Regardless, to the extent Petitioner is claiming that his resentencing violated the procedural requirements of state law, this claim is not cognizable in a federal habeas petition. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) ("federal habeas corpus relief does not lie for errors of state law."); Smith v. Idaho, 392 F.3d 350, 357 (9th Cir. 2004) (errors in application of state law not cognizable in federal habeas petition). Thus, this claim does not constitute a colorable federal claim.

  Petitioner also appears to argue that he was punished "twice" for his juvenile offenses, which he believes constitutes a violation of the Double Jeopardy Clause.*fn5 [Petition at 6; Opp. at 5.] In general, the Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, prohibits the imposition of multiple punishments for the same offense. U.S. CONST. amend. V; Witte v. United States, 515 U.S. 389, 390 (1995). However, the Supreme Court has long rejected double jeopardy challenges to recidivist statutes like California's Three Strikes Law. Witte, 515 U.S. at 400; Gryger v. Burke, 334 U.S. 728, 732 (1948). As the Court has explained, recidivist statutes do not trigger double jeopardy concerns because "the enhanced punishment imposed for the later offense is not to be viewed as either new jeopardy or additional penalty for the earlier crimes, but instead as a stiffened penalty for the latest crime." Witte, 515 U.S. at 400; see also Moore v. Missouri, 159 U.S. 673, 677 (1895) (recidivist statute properly "imposes a higher punishment for the same offense upon one who proves, by a second or third conviction, that the former punishment has been inefficacious in doing the work of reform, for which it was designed"). Similarly, here, Petitioner was not punished twice for his earlier offenses as he suggests; rather, he received a stiffer sentence for his felon in possession conviction because of his prior offenses. Thus, Petitioner has failed to raise a colorable double jeopardy claim.

  Petitioner also makes a passing reference to the Eighth Amendment, without any elaboration as to how his sentence violated this constitutional provision. [Petition at 6.] His conclusory allegation is insufficient to warrant habeas relief. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). In any event, an Eighth Amendment challenge to his sentence would be foreclosed by recent Supreme Court decisions. See Ewing v. California, 538 U.S. 11, 29-30 (2003) (sentence imposed under California's Three Strikes Law did not violate Eighth Amendment prohibition on cruel and unusual punishment). Lockyer v. Andrade, 538 U.S. 63, 73-75 (2003) (state court's denial of claim challenging sentence of 25 ...

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