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Morgan v. M.E. Spearman

United States District Court, C.D. California

May 21, 2015

BERNEL W. MORGAN, Petitioner
M.E. SPEARMAN, WARDEN, Respondent.


GAIL J. STANDISH, Magistrate Judge.

On May 15, 2015, Petitioner filed a 28 U.S.C. § 2254 habeas petition in this district ("Petition"). Concurrently, Petitioner filed a signed "Election Regarding Consent to Proceed Before a United States Magistrate Judge, " in which he checked the "Yes" box stating, "Yes, I voluntarily consent to have a United States Magistrate Judge conduct all further proceedings in this case, decide all dispositive and non-dispositive matters, and order the entry of final judgment." ( See Dkt. No. 3.)

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides that a petition for writ of habeas corpus "must" be summarily dismissed "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Here, it plainly appears that the claims alleged in the Petition are not cognizable and could not be rendered cognizable through amendment. Therefore, the Petition must be dismissed, [1] for the following reasons.


Petitioner is serving a Three Strikes sentence of 25 years to life following his 1995 conviction in Los Angeles Superior Court Case No. YA022589 for a violation of California Health & Safety Code § 11351.5. (Petition at 2, Ex. B.) In a bifurcated proceeding, Petitioner was found to have suffered three prior serious or violent felony convictions, namely, three 1991 convictions for attempted second degree murder. As a result, Petitioner's sentence was enhanced pursuant to California Penal Code §§ 667(b)-(i) and 1170.12(a)-(d) and he received a Three Strikes sentence. ( Id.; see also Exs. C-E.) Petitioner's conviction was affirmed on appeal. (Petition at 3.)

Over 15 years later, California voters passed Proposition 36, also known as the Three Strikes Reform Act, which added Section 1170.126 to the California Penal Code effective November 7, 2012 ("Section 1170.126"). Section 1170.126 "created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety." People v. Yearwood, 213 Cal.App.4th 161, 168 (2013). The sentence reduction provisions of Section 1170.126(e) exclude prisoners who have sustained prior convictions of certain types, which include prior convictions for attempted murder. See California Penal Code §§ 1170.12(e)(3), 667(e)(2)(C)(iv)(IV), and 1170.12(c)(2)(C)(iv)(IV).

On September 30, 2013, Petitioner filed a petition for recall of sentence pursuant to Section 1170.126. On October 18, 2013, the trial court denied the petition with prejudice. The trial court found that Petitioner's prior conviction for attempted murder was a disqualifying offense pursuant to California Penal Code § 667(e)(2)(C)(iv)(IV), and thus, Petitioner is "ineligible for resentencing pursuant to Penal Code section 1170.126(e)(3)." (Petition, Ex. M.) Petitioner then filed a habeas petition in the California Court of Appeal, which raised Ground One of the Petition. The California Court denied habeas relief on February 11, 2014. (Petition, Ex. N.)[2] Petitioner filed a habeas petition in the California Supreme Court, again raising Ground One, which was denied on June 11, 2014. (Petition, Ex. Q.)

On September 24, 2014, Petitioner filed a habeas petition in the trial court, which raised Ground Two of the Petition. That petition was denied on an unknown date. (Petition at 5(3).) Petitioner then raised Ground Two in a mandamus petition filed in the California Court of Appeal, which was denied on January 5, 2015. (Petition, Ex. R.) Petitioner alleges that, in February 2015, he filed a habeas petition in the California Supreme Court raising Ground Two, which remains pending. (Petition at 5(3).) However, a review of the dockets for the California Supreme Court (available at shows that the most recent habeas petition filed by Petition in the state high court is the above noted petition denied on June 11, 2014, and no habeas filing in 2015.[3]

Thus, the record indicates that while Petitioner apparently has exhausted Ground One, Ground Two is unexhausted, because the California Supreme Court has not yet had a chance to consider and rule on the claim. The Petition, therefore, is "mixed, " because it contains exhausted and unexhausted claims. In the normal course, a federal habeas court could not consider a "mixed" petition; dismissal of the petition as a whole, or of the unexhausted claim, would be required. Nonetheless, under 28 U.S.C. § 2254(b)(2), a federal habeas court may deny an unexhausted claim on its merits when the claim does not state a colorable claim for relief. Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). As Ground Two plainly fails on federal habeas review, the Court declines to take any dismissal action. See id.; cf. Rhines v. Webber, 125 S.Ct. 1528, 1535 (2005) (intimating that Section 2254(b)(2) permits the consideration, and the denial, of "plainly meritless" claims).


"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 112 S.Ct. 475, 480 (1991) (internal citations omitted). It is well-settled that federal habeas relief is available only to state prisoners who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§ 2241, 2254; see also Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011) ( per curiam ) ("We have stated many times that federal habeas corpus relief does not lie for errors of state law.'") (citation omitted); Wilson v. Corcoran, 131 S.Ct. 13, 16 (2010) ( per curiam ) ("it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts"); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) ("alleged errors in the application of state law are not cognizable in federal habeas corpus" proceedings).

Generally, a challenge to a state court's application of state sentencing laws does not give rise to a federal question cognizable on federal habeas review. See Lewis v. Jeffers, 110 S.Ct. 3092, 3102 (1990); see alsoMiller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (claim that offense did not constitute a "serious felony" held not to be cognizable on federal habeas review, because it "is a question of state sentencing law"); Sturm v. California Youth Authority, 395 F.2d 446, 448 (9th Cir. 1967) ("a state court's interpretation of its [sentencing] statute does not raise a federal question"). To state a cognizable federal habeas claim based on a claimed state sentencing error, a petitioner must show both state sentencing error and that the error was "so arbitrary or capricious as to constitute an independent due process" violation. Richmond v. Lewis, 113 S.Ct. 528, 536 (1992).

Ground One:

Ground One of the Petition rests on three premises. First, Petitioner asserts that his prior convictions do not fall within the exclusion provisions of Section 1170.126(e), which preclude a prisoner form having his sentence recalled. Second, Petitioner asserts that a host of constitutional violations would arise if there were a finding, at step two of the Section 1170.126 recall of sentence procedure, that Petitioner poses an unreasonable risk of danger to public safety. Petitioner contends that any such potential determination would be factually erroneous and violate the Sixth Amendment right to trial by jury and the Equal Protection Clause. He asks the Court to make a step two determination that he does not pose an unreasonable risk ...

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