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Green v. Hill

United States District Court, S.D. California

December 1, 2014

GERALD A. GREEN, Petitioner,
v.
RICK HILL, Warden, Respondent

Gerald A. Green, Petitioner, Pro se, Folsom, CA.

For R. Hill, Warden, Respondent: Attorney General, LEAD ATTORNEY, State of California, Office of the Attorney General, San Diego, CA; Kevin R Vienna, LEAD ATTORNEY, Office of the Attorney General, San Diego, CA.

ORDER: (1) ADOPTING REPORT AND RECOMMENDATION [ECF NO. 18]; AND (2) DENYING PETITIONER'S REQUEST FOR HABEAS RELIEF [ECF NO. 1]

Hon. Cynthia Bashant, United States District Judge.

On June 28, 2012, Petitioner Gerald A. Green, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Pet'r Pet., ECF No. 1. Petitioner seeks habeas relief from his indeterminate life sentence for first degree residential burglary imposed under California's three strikes law in 1997. Pet'r Pet. On October 7, 2012, Respondent Rick Hill filed an Answer to the Petition. Respt't's Answer, ECF No. 13. On November 19, 2013, Petitioner filed a Traverse. Pet'r Traverse, ECF No. 17. On February 27, 2014, United States Magistrate Judge David H. Bartick issued a Report and Recommendation (" Report") recommending the court deny the Petition and ordering Petitioner and Respondent to file objections to the Report no later than April 1, 2014. Report, ECF No. 18. Petitioner was subsequently given until May 1, 2014 to file objections. ECF No. 20. Petitioner filed objections to the Report on April 28, 2014. Pet'r Obj., ECF No. 21.

For the following reasons, the Court OVERRULES Petitioner's objections, Pet'r Obj., ECF No. 21, ADOPTS the Report in its entirety, Report, ECF No. 18, and DENIES the Petition with prejudice. Pet'r Pet., ECF No. 1.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner has three first-degree convictions for residential burglary under California law: one in October 1984 (Pet'r Pet. 23), a second in August 1988 ( id . at 22), and a third in August 1997 ( id . at 21). Because Petitioner's 1984 and 1988 convictions were for " serious offenses" under California law, and because Petitioner was being convicted of a serious offense once again in 1997, Petitioner's 1997 conviction resulted in an indeterminate life sentence pursuant to California's three strikes law. Pet'r Pet. 21, 24.

On January 9, 2013, Petitioner filed a petition for a writ of habeas corpus in the California Superior Court, San Diego County seeking resentencing under the Three Strikes Reform Act (TSRA).[1] Pet'r Pet. 25-26. The Superior Court denied the petition because Petitioner's 1997 commitment offense, first degree residential burglary, was a serious felony under California Penal Code § 1192.7(c)(18) and Petitioner was therefore ineligible for resentencing under TSRA. Pet'r Pet. 24, 26. Petitioner subsequently filed a habeas petition in the California Court of Appeal, Pet'r Pet. 28, which was denied on the same basis. Pet'r Pet. 29. Petitioner then filed a habeas petition in the California Supreme Court, Pet'r Pet. 27, and the Court summarily denied review. Pet'r Pet. 30.

On January 24, 2013, Petitioner filed this Petition seeking 28 U.S.C. § 2254 habeas relief from his 1997 indeterminate life sentence. Pet'r Pet. 14-19, 31-37. Petitioner argued he is entitled to federal habeas relief because he claims he is eligible for resentencing under the TSRA. Pet'r Pet. 16. Petitioner also argued he is entitled to relief because, alternatively, his 1984 and 1988 convictions were not considered serious offenses under California law at the time he committed them, and therefore his 1997 indeterminate life sentence under the three strikes law was improper. Pet'r Pet. 33. United States Magistrate Judge Bartick issued the Report recommending the Court deny the Petition on both grounds advanced by Petitioner. Report, ECF No. 18. On April 28, 2014, Petitioner timely objected to the Report. Pet'r Obj., ECF No. 21.

II. LEGAL STANDARD

When a party timely objects to a magistrate judge's report and recommendations pursuant to Federal Rule of Civil Procedure 72(b)(2), the district court " must make a de novo determination of those portions of the report . . . to which objection is made, " and " may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also Fed. Rule Civ. P. 72(b)(3); U.S. v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) (" Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, [chooses] to place on a magistrate's proposed findings and recommendations."); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (holding 28 U.S.C. § 636(b)(1)(C) " makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made ") (emphasis in original).

III. ANALYSIS

Judge Bartick recommends this Court deny the Petition. Report 8:19-25, ECF No. 18. Judge Bartick determined Petitioner's request for resentencing under TSRA failed to raise a cognizable federal claim and, even assuming a federal claim was raised, the California courts reasonably rejected Petitioner's request for resentencing. Report 5:28-7:5. Judge Bartick also determined Petitioner's argument concerning his 1984 and 1988 convictions failed to raise a federally cognizable claim and, even assuming ...


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