United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
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.
Respondent has custody of petitioner pursuant to the October
27, 1998 judgment of the California Superior Court,
Sacramento County, case number 97F06716.
Petitioner pled guilty to second degree robbery. Due to his
prior strikes from 1972 and 1974, petitioner was sentenced to
25 years to life.
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
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.
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.
Petitioner filed a state habeas petition in the California
Supreme Court on March 7, 2000, which was summarily denied on
April 26, 2000.
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
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.
Petitioner attempted 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.)
Petitioner filed a petition for review in the California
Supreme Court on March 27, 2015. The petition was summarily
denied on April 29, 2015.
August 4, 2015, petitioner constructively filed the instant
federal petition. See Rule 3(d) of the Federal Rules
Governing Section 2254 Cases.
Last Reasoned State Court Decision The California
Court of Appeal, Third Appellate District, rendered the last
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
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
Having undertaken an examination of the entire record, we
find no arguable error that would result in a disposition
more favorable to defendant.
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).
Standards for a ...