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Thornberry v. Lizarraga

United States District Court, S.D. California

June 2, 2017

JOSEPH LIZARRAGA, Warden, Respondent.


          Hon. Nita L. Stormes United States Magistrate Judge

         Petitioner Daniel Thornberry, a prisoner proceeding pro se and in forma pauperis, filed a habeas petition challenging the constitutionality of his confinement. He filed this second motion to expand the record to include documents he believes should be considered as additional evidence to support the petition. This court already denied Thornberry's first motion to expand the record (Dkt. No. 20), motion for discovery (Dkt. No. 43), motion for production of documents (Dkt. No. 43) and motion for evidentiary hearing (Dkt. No. 43), most of which sought to include the same evidence. The district judge overruled Thornberry's objections to this court's order denying the first motion to expand the record. (Dkt. No. 35).

         Respondent filed an opposition to this motion while Thornberry's First Amended Petition (FAP) was the operative petition in this case, which referred to the single claim in the FAP. Recently, Thornberry filed a Second Amended Petition (SAP, Dkt. No. 61) that adds due process and equal protection claims. Thornberry also filed a reply to this second motion to expand the record. For the following reasons, the court DENIES Thornberry's second motion to expand the record.

         Relevant Background.

         The SAP challenges the state court's denial of Thornberry's motion for resentencing under California Penal Code section 1170.18. Section 1170.18 is based upon the state voters' 2014 approval of Proposition 47, which retroactively and prospectively reduced sentences for certain types of nonviolent crimes that were reclassified from felonies to misdemeanors. Thornberry argues that the state court's failure to resentence him violated his due process and equal protection rights.

         In 2010, Thornberry pleaded guilty to one count of robbery under California Penal Code 211. Lodgment 1; 6, p.1. He admitted allegations that he had two prior convictions for federal bank robbery, which qualified as serious felonies and strikes. Lodgment 6, p.1. The sentencing court dismissed the allegations regarding one of the strikes. Id. Facing a range of 12 to 16 years in his plea agreement as opposed to the 35 years to life under the statute, Thornberry was ultimately sentenced to 14 years in prison. Id.; Lodgment 1, p.2. He did not file a direct appeal of that conviction. See Lodgment 1.

         In 2015, Thornberry filed a habeas petition asking for resentencing under Proposition 47. Lodgment 3. The California superior court denied the petition and found that Thornberry's “commitment offense was for a violation which is not included in the crimes affected by the initiative and petitioner would not be eligible for [the] relief afforded.” Lodgment 4, p.1. Thornberry then filed another habeas petition with the California appellate court, where he asked for resentencing because his latest robbery conviction was nonviolent, did not involve threats to the victim, and did not involve use of a weapon. Lodgments 5, 6, p.1.

         The appellate court denied the petition on procedural grounds because Thornberry could have pursued this claim on direct appeal but failed to do so. Lodgment 6, p.1. It also denied the petition on substantive grounds, noting that Thornberry was not entitled to resentencing because “the robbery of which Thornberry was convicted is not among the offenses reduced to misdemeanors and remains a felony. (See Pen. Code, § 1170.18, subd. (a).).” Lodgment 6, p.1. The California Supreme Court summarily denied the petition. Lodgment 7.


         Thornberry filed a motion to expand the record under Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts. He wants to expand the record to include the transcripts of (1) the colloquy of his change of plea hearing from October 8, 2010 so he can establish the factual basis of the predicate offense; and (2) his sentencing hearing, so he can expose the judge's findings of fact. See SAP, pp.5, 8. Thornberry argues that these transcripts will help him establish that his predicate offense was not a categorical crime of violence. Thornberry does not request an evidentiary hearing.

         Under Rule 7 courts may expand the record without holding an evidentiary hearing. See Cooper-Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005), overruled on other grounds by Daire v. Lattimore, 812 F.3d 766 (9th Cir. 2016). Even when a petitioner seeks relief based on new evidence and without an evidentiary hearing, the petitioner must still meet the conditions of obtaining an evidentiary hearing under section 2254(e)(2) unless the petitioner “exercised diligence in his efforts to develop the factual basis of his claims in state court proceedings.” Id.; Holland v. Jackson, 542 U.S. 649, 652-653 (2004). The conditions of 2254(e)(2) include showing:

(A) the claim relies on-
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise ...

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