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McMurray v. Rackley

United States District Court, E.D. California

June 23, 2017

DARROL McMURRAY, Petitioner,
v.
RON RACKLEY,[1] Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner paid the filing fee. As set forth below, the undersigned recommends that the petition be denied.

         II. Procedural History

         1. Respondent has custody of petitioner pursuant to the October 27, 1998 judgment of the California Superior Court, Sacramento County, case number 97F06716.

         2. Petitioner pled guilty to second degree robbery. Due to his prior strikes from 1972 and 1974, petitioner was sentenced to 25 years to life.

         3. Petitioner failed to timely appeal from his guilty plea. Long after his conviction was final, petitioner attempted to file a notice of appeal. The state court of appeal dismissed the appeal.

         4. Petitioner filed a state habeas petition with the Sacramento County Superior Court on November 24, 1999, which was denied as untimely and on the merits on December 30, 1999.

         5. Petitioner filed another habeas petition with the California Court of Appeal, Third Appellate District, on January 31, 2000, which was denied on February 10, 2000.

         6. Petitioner filed a state habeas petition in the California Supreme Court on March 7, 2000, which was summarily denied on April 26, 2000.

         7. Petitioner filed a federal habeas corpus petition on July 30, 2000. The district court dismissed the petition as untimely. McMurray v. Lewis, No. 2:00-cv-1881 GEB GGH (E.D.Cal.)[2]

         8. On July 2, 2013, petitioner filed a petition to recall his sentence in the Sacramento Superior Court under newly-enacted California Penal Code Section 1170.126 (2014). The Sacramento County Superior Court heard the petition and denied it.

         9. Petitioner attempted[3] to appeal from the denial of the resentencing petition. On February 24, 2015, the California Court of Appeal for the Third Appellate District examined the entire record and found no arguable error that would result in a disposition more favorable to petitioner. (Respondent's Lodged Document (“LD”) No. 4.)

         10. Petitioner filed a petition for review in the California Supreme Court on March 27, 2015. The petition was summarily denied on April 29, 2015.

         11. On August 4, 2015, petitioner constructively filed the instant federal petition. See Rule 3(d) of the Federal Rules Governing Section 2254 Cases.

         III. Last Reasoned State Court Decision The California Court of Appeal, Third Appellate District, rendered the last reasoned decision.

Defendant Darrol Lee McMurray appeals from an order denying a petition to recall his so-called “three strikes” sentence of 25 years to life, brought pursuant to the provisions of the Three Strikes Reform Act of 2012 (the Act), codified at Penal Code section 1170.126 [also known as “Proposition 36”].[FN1] (See Teal v. Superior Court (2014) 60 Cal.4th 595 (Teal).)
[FN1: Undesignated statutory references are to the Penal Code.]
Defendant's petition to recall his sentence and for resentencing was denied upon determination that he was not eligible for relief under the Act because the commitment offense was robbery. (See §§ 667.5, subd. (c)(9), 1170.126, subd. (e)(1), 1192.7, subd. (c)(19).) Counsel was appointed to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Counsel advised defendant of his right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant timely filed a supplemental brief by which he seeks to challenge the validity and constitutionality of the commitment judgment. ‘“It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.”' [Citations.]” (People v. Mena (2012) 54 Cal.4th 146, 152.) Appeal of the order denying relief under the Act is authorized by subdivision (b) of section 1237, as an order made after judgment, affecting the substantial rights of defendant. (Teal, supra, 60 Cal.4th at p. 601.) However, that statutorily conferred appellate jurisdiction is limited to review of the decision to deny relief under the Act. To convert that limited grant of jurisdiction to effectuate appellate review of the commitment judgment would in substance allow a belated motion to vacate that judgment, thereby violating the proscription on so “‘bypass[ing] or duplicat[ing] appeal from the judgment itself.' [Citation.]” (People v. Totari (2002) 28 Cal.4th 876, 882.) The contentions tendered by defendant's supplemental brief are not cognizable on this appeal of the order denying relief under the Act.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

         DISPOSITION

         The judgment (order) is affirmed. People v. McMurray, No. C074792, 2015 WL 780571, at *1 (Cal.Ct.App. Feb. 24, 2015), review denied (Apr. 29, 2015); (ECF No. 1 at 30-31).

          IV. Standards for a ...


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