Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Curtis v. Swarthout

United States District Court, E.D. California

September 19, 2014

ELLIS COHEN CURTIS, Petitioner,
v.
GARY SWARTHOUT, Respondent.

ORDER

KENDALL J. NEWMAN, Magistrate Judge.

Petitioner is a state prisoner, proceeding through counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to the jurisdiction of the undersigned. (ECF No. 3.)

Petitioner challenges his 1995 conviction for first degree murder based on a felony murder theory. Petitioner is serving a sentence of life without the possibility of parole ("LWOP"). Petitioner was seventeen years old at the time he committed his offense.

Petitioner requests that this action be stayed while he seeks additional relief in state court. On July 21, 2014, the undersigned issued an order directing petitioner to file further briefing addressing the grounds of his request for a stay. (ECF No. 4.) On August 15, 2014, petitioner filed a response to the July 21, 2014 order. (ECF No. 5.)

For the following reasons, the undersigned finds that this action should be dismissed because no claims are exhausted and there are no grounds for a stay.

Background

In the petition filed June 4, 2014, petitioner raises five claims challenging his LWOP sentence based on the Supreme Court's decision in Miller v. Alabama , 132 S.Ct. 2455 (2012). In Miller, a case which concerned a juvenile who was fourteen years old at the time he committed a murder, the Supreme Court held that a mandatory LWOP sentence violates the Eighth Amendment, where a sentencing court has no discretion to consider the defendant's youth or other "mitigating circumstances." Miller , 132 S.Ct. at 2467.

In claim one, petitioner argues that California Penal Code section 190.5(b), pursuant to which he was sentenced, violates the Supreme Court's decision in Miller because it does not require individualized consideration of the diminished culpability of a juvenile. In claim two, petitioner argues that he is entitled to resentencing because the trial court did not adequately consider the distinctive mitigating circumstances of his youth and background, as required by Miller. In claim three, petitioner argues that, pursuant to Miller, his LWOP sentence violates the Eighth Amendment. In claim four, petitioner argues that Miller applies retroactively to all juveniles sentenced to LWOP under California Penal Code § 190.5(b). In claim five, petitioner requests that this action be stayed.

The undersigned herein describes petitioner's relevant state post-conviction pleadings.

Petitioner filed a habeas corpus petition in the Sacramento County Superior Court raising the claims raised in the instant petition. This petition is not contained in this court's record.

On July, 17, 2013, the Superior Court denied the petition. (ECF No. 1-3 at 255-263.) The Superior Court acknowledged that the California Supreme Court had granted review in two cases in order to consider whether California Penal Code § 190.5(b) creates an unconstitutional presumption in favor of LWOP sentences. (Id. at 258-59.) See People v. Moffett , 209 Cal.App.4th 1465, review granted Jan. 3, 2013, S206771 (2012); People v. Gutierrez , 209 Cal.App.4th 646, review granted Jan. 3, 2013, S206365 (2012).

The Superior Court went on to find that while the trial court considered LWOP as the presumptive term, the trial court undertook an individualized determination of all of the evidence before imposing the LWOP sentence. (ECF No. 1-3 at at 260.) The Superior Court also acknowledged that California Penal Code § 1170(d)(2), effective January 1, 2013, authorized any offender who was under 18 at the time of the commission of their offense for which they were sentenced to LWOP to file a petition for recall of their sentence if they had served at least 15 years of their sentence. (Id. at 260.) The Superior Court stated that it appeared that petitioner was eligible to file a petition for resentencing pursuant to California Penal Code § 1170(d). (Id.) The Superior Court went on to deny the remainder of petitioner's claims. (Id. at 260-63.)

Petitioner filed a habeas corpus petition in the California Court of Appeal, which the appellate court denied without comment or citation on December 19, 2013. (Id. at 265.)

On April 30, 2014, the California Supreme Court denied petitioner's habeas petition raising the claims raised in the instant petition without prejudice to the filing of an original petition in the superior court for any relief to which petitioner might be entitled following its resolution of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.