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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 it did, such a challenge is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Report 7:13-8:18.

Petitioner objects to the Report on two grounds. See Pet'r Obj., ECF No. 21. First, Petitioner again argues his 1984 and 1988 convictions for first degree residential burglary underlying his 1997 indeterminate life sentence did not constitute serious offenses under California law when he plead guilty to the offense in 1984 and a jury convicted him of the offense in 1988. Pet'r Obj. 13:13-21. Accordingly, Petitioner believes his 1997 indeterminate life sentence under the three strike rule was improper. Pet'r Obj. 16:14-18:21. Second, Petitioner contends his Petition raises a federally cognizable claim for § 2254 habeas relief which the Court may adjudicate. Pet'r Obj. 18:22-24, 20:19-24. Petitioner's objections do not address the remainder of the Report's recommendations, and those points (that the California Courts reasonably rejected Petitioner's request for resentencing and that Petitioner's argument concerning his 1984 and 1988 convictions is time-barred) are considered conceded. See 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).

A federal court " shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court only on the ground he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). AEDPA governs this case. See Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004) (noting AEDPA governs appeals of state court habeas determinations). AEDPA requires the court to defer to reasonable factual determinations made by the state courts as these determinations are presumed correct. 28 U.S.C. § 2254(e)(1); see also Schriro v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (" AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings . . . ."). Under AEDPA, a habeas petition may only be granted with respect to a claim adjudicated on the merits by a state court in two instances. 28 U.S.C. § 2254(d)(1)-(2); Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002); Medina, 386 F.3d at 877.

First, federal habeas relief may be granted if the state court's adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1); Early, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002); Medina, 386 F.3d at 877. " Clearly established federal law" means the law " as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1); accord Medina, 386 F.3d at 877. Accordingly, the state court must have applied a rule different from the governing law set forth in Supreme Court cases, or decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Where there is no " clearly established Supreme Court precedent addressing the issue" before the court, the court " must defer to the state court's decision." Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009); see also Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) (holding a dearth of Supreme Court rulings on the issue before the district court precluded federal habeas relief from a state court adjudication on the merits of a plaintiff's state habeas petition).

Alternatively, a habeas petition may be granted where the state court's adjudication 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)(2); Early, 537 U.S. at 8; Medina, 386 F.3d at 877. The state court must have unreasonably applied a governing legal principle articulated by the Supreme Court, Bell, 535 U.S. at 694, and this unreasonable application must have been " objectively unreasonable, " meaning more than merely " incorrect or erroneous." Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).

A. Petitioner Fails to Raise a Federally Cognizable Claim in Challenging his 1984 and 1988 Convictions.

The Court agrees with Judge Bartick's determination that Petitioner's challenge to his 1984 and 1988 convictions underlying his 1997 indefinite life sentence fails to raise a federally cognizable claim. Matters related to sentencing under state law are governed by state law, and federal habeas relief is not available for alleged state court errors in the interpretation or application of those laws. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (" [I]t is not the province of a federal habeas court to reexamine state-court determination on state-law questions."); Brown v. Mayle, 283 F.3d 1019, 1040 (9th Cir. 2002) (holding a federal habeas challenge to a state court's denial of a Romero motion was barred from review in a federal habeas proceeding), vacated on other grounds, Mayle v. Brown, 538 U.S. 901, 123 S.Ct. 1509, 155 L.Ed.2d 220 (2003). Further, the Supreme Court bars the utilization of § 2254 habeas petitions to challenge sentence enhancements to state convictions which are no longer open to direct or collateral attack. See Lackawanna Cnty. Dist. Attorney v. Cross, 532 U.S. 394, 403-404, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001) (holding state court convictions no longer open to direct or collateral attack are conclusively valid and, if these convictions are later used by a state court to enhance a criminal sentence, such sentence may not be challenged " through a petition under § 2255 on the ground that the prior conviction was unconstitutionally obtained").

Thus, in challenging whether his 1984 and 1988 convictions were for serious felonies under California law, Petitioner does not raise federal claims which the Court may adjudicate. Petitioner's objection to the Report has not demonstrated his attack on his 1984 and 1988 convictions for first degree residential burglary raises a federal claim under either avenue of relief AEDPA provides. Petitioner has not shown the California Court of Appeal contrarily or unreasonable applied Supreme Court case law, nor that the Court of Appeal reached an unreasonable determination of the facts of his case. Petitioner's first objection speaks only to his 1984 and 1988 state court convictions and do not address the Court of Appeal's determination of his habeas petition. See, Pet'r Obj. 8-10, ECF No. 21.

Accordingly, because Petitioner's first objection constitutes direct attacks to his 1984 and 1988 convictions, he fails to raise a cognizable federal claim.

B. Petitioner Fails to Raise a Federally Cognizable Claim in Requesting Resentencing Under TSRA.

The Court also agrees with Judge Bartick's determination that Petitioner's request for resentencing under TSRA fails to raise a federally cognizable claim. Petitioner's second objection conclusively argues his Petition raises a federally cognizable claim for § 2254 habeas relief because he " argued in the State . . . whether [his] prior convictions were [c]onstitutionally valid strikes under the laws and the facts" underlying his 1997 indeterminate life sentence. Pet'r Obj. 20:19-24, ECF No. 21. However, the objection does not argue the California Court of Appeal contrarily or unreasonably applied Supreme Court case law, or reached an unreasonable determination of the facts of his case, in denying his request for resentencing under TSRA. See generally Pet'r Obj. 18:22-31:5. Rather, Petitioner's second objection proffers a delineation of AEDPA's two avenues of federal habeas relief followed by various headnotes from Supreme Court cases discussing substantive due process and fundamental fairness. Id.

As explained above, federal habeas relief is not available for alleged errors in a state court's interpretation or application of its sentencing laws. See Estelle, 502 U.S. at 67-68; Mayle, 283 F.3d at 1040. Therefore, that Petitioner argued whether his 1984 and 1988 convictions for first degree residentially burglary were constitutionally valid in his state habeas proceedings does not itself confer federal jurisdiction in this federal habeas proceeding. Additionally, the cases discussing substantive due process and fundamental fairness Petitioner cites do not demonstrate that the California Court of Appeal's denial of his request for resentencing under TSRA raises a federally cognizable claim under either avenue of relief AEDPA affords. See Pet'r Obj. 20:25-31:5.

Accordingly, Petitioner's second objection fails to indicate that his request for resentencing under TSRA raises a cognizable federal claim.

IV. CONCLUSION & ORDER

After considering Petitioner's objections and conducting a de novo review of them, the Court concludes Petitioner's two objections to the Report are without merit. Additionally, Judge Bartick's reasoning in those portions of the Report not objected to is sound. Accordingly, the court ADOPTS the Report in its entirety (ECF No. 18), OVERRULES Petitioner's objections (ECF No. 21), and DENIES this habeas petition with prejudice in its entirety (ECF No. 1).

Moreover, because reasonable jurists would not find the court's assessment of the claims debatable or wrong, the court DENIES a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

IT IS SO ORDERED.


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