The opinion of the court was delivered by: NITA STORMES, Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE:
DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
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
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.
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
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 ...