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Walkwek v. Fox

United States District Court, C.D. California

March 21, 2017

MARLON JAMES WALKWEK, Petitioner,
v.
ROBERT FOX, Warden, Respondent.

          ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          HON. JAMES V. SELNA, UNITED STATES DISTRICT JUDGE

         Pursuant to 28 U.S.C. § 636, the Court has reviewed: (1) the Petition; (2) the Magistrate Judge's Report and Recommendation (“R&R”); (3) Petitioner's Objections to the R&R (“Objections”); and (3) the remaining record, and has made a de novo determination.

         Petitioner's Objections generally reiterate arguments made in the Petition, and lack merit for the reasons set forth in the Report and Recommendation. There is one issue, however, that warrants brief consideration.

         In his objections, Petitioner claims that “the residual clause found at [California] Penal Code § 189 is just as vague and standardless” as the residual clause of the Armed Career Criminal Act, which the United States Supreme Court held was unconstitutionally vague in Johnson v. U.S., 135 S.Ct. 2551 (2015). [Dkt. No. 7 at 2.] Specifically, Petitioner argues that the residual clause in California Penal Code § 189 (§ 189) “describes no prohibited conduct that it punishes as first degree murder” and is therefore similar to residual clause held unconstitutional in Johnson. [Id. at 3.]

         Although California Penal Code § 189 (“§ 189”) may contain a residual clause, [1]Johnson does not render all such clauses unconstitutionally vague. In fact, other residual clauses that are even more similar to the one contained in the Armed Career Criminal Act (“ACCA”)[2] - like California's definition of a second-degree felony-murder (i.e., unlawful killing in the course of the commission of a felony that is “inherently dangerous to human life”) - are unaffected by Johnson. See Renteria v. Asunsion, 2016 WL 7336558, at *3 (C.D. Cal. Dec. 16, 2016). As the district court in Renteria noted: “Although a superficial similarity may exist between the phrases ‘a serious potential risk of physical injury' and an act ‘inherently dangerous to human life, ' the Johnson Court did not rest its ruling solely on the lack of precision of the words ‘a serious potential risk of physical injury.'” Id.

         Instead, “the [Johnson] Court found that a number of factors, acting in combination, rendered the residual clause constitutionally infirm, ” and the Johnson decision itself was “narrow and based on the confluence of nine years of difficulty interpreting the provision, the remaining language of the statute, and the language of the residual clause itself.” Id. (citing Johnson, 135 S.Ct. at 2560).

         In light of the above, Petitioner is unable to show how the referenced language in § 189 is unconstitutionally vague. See Renteria, 2016 WL 7336558, at *3; Ortiz v. Castello, 2016 WL 7471300, at *1 (C.D. Cal. Dec. 27, 2016) (“Petitioner does not identify any language in [California's law] that is comparable to the ACCA's residual clause and has not identified any way in which the Johnson decision could apply to his ground for relief.”); Birdwell v. California, 2016 WL 5897780, at *2 (CD. Cal. Oct. 5, 2016) (“[T]he Johnson decision is irrelevant here because Petitioner's state prison sentence was not enhanced under ACCA's ‘residual clause' nor was his conviction based on any state analogue of that federal criminal statute.”).

         Accordingly, IT IS ORDERED THAT:

1. The Report and Recommendation is approved and accepted;
2. Judgment be entered denying the Petition and dismissing this action with prejudice; and
3. The Clerk serve copies of this Order on the parties.

         Additionally, for the reasons stated in the Report and Recommendation, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Thus, the Court declines to issue a certificate of appealability.

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