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Whisenant v. Rackley

United States District Court, E.D. California

June 26, 2017

CHRISTOPHER WHISENANT, Petitioner,
v.
R. RACKLEY, Warden, Respondent.

          FINDINGS & RECOMMENDATIONS

          GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE

         Introduction and Summary

         Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is a “third strike” defendant last convicted of being a felon-in-possession of a firearm and ammunition who believes that California's Proposition 36 entitled him to resentencing to a lesser sentence than his indeterminate life sentence. His claim in the state courts was denied because he was found ineligible for resentencing because “used a firearm” in connection with his crime.

         One can see petitioner's point here. After checking the statutory ineligibility references, cross-references and cross references to the cross references (a twisty path indeed), it does not appear that felon-in-possession is a crime which constitutes de jure ineligibility for resentencing under Proposition 36. However, the California courts have made the crime one of de facto ineligibility in that the being in possession of a firearm means that one has used the firearm in connection with “the [Third Strike] crime” (a reason why one is ineligible for Proposition 36 resentencing. It is difficult to think of a situation where, under the California Court of Appeal definition of “use of a firearm, ” being a felon-in-possession would not make one ineligible per se; the holding is somewhat circular. Petitioner claims that this give and take regarding Proposition 36 eligibility denies him due process. However, what the legislative branch seemingly giveth, the courts can define away-- especially when we are looking at California law in an AEDPA context. Petitioner has not stated a claim which is cognizable in federal habeas corpus.

         Background

         Petitioner is serving a sentence of 25 years to life for a 2008 conviction of being a felon in possession of a firearm and ammunition with two prior strike convictions. ECF No. 11, Res't's Lodg. Docs. No. 1, 2. On his direct appeal, the California Court of Appeal summarized the case as follows:

On the night of April 2, 2005, Bush, Whisenant and Benny Ramos, not a party to this appeal, were in a Chevrolet Blazer that was pulled over after a sheriff's deputy heard gunshots, then saw the Blazer coming from the direction of the gunshots. The Blazer contained a ballistic vest, or “body armor, ” and a loaded pistol magazine. Three loaded pistols of different calibers were found by the road along the route between where the deputy began following the Blazer and where he stopped it. Five bullets of unusual caliber were found in the patrol car Bush had been in, and they fit one of the guns found by the roadside. The magazine found in the vehicle fit a different gun found by the road. All three men had felony convictions.

Res't's Lodg. Doc. No. 2.

         The California Court of Appeal affirmed the judgment on February 9, 2010 and petitioner was subsequently denied review by the California Supreme Court on April 28, 2010. Res't's Lodg. Doc. Nos. 3, 4.

         In November of 2012, Proposition 36 was approved by California Voters. Termed the Three Strikes Reform Act of 2012, the proposition, inter alia, added California Penal Code § 1170.126 which, in relevant part, provides:

(a) The resentencing provisions under this section and related statutes are intended to apply exclusively to persons presently serving an indeterminate term of imprisonment pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12, whose sentence under this act would not have been an indeterminate life sentence.
(b) Any person serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of subdivision (c) of Section 1170.12 upon conviction, whether by trial or plea, of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7, may file a petition for a recall of sentence, within two years after the effective date of the act that added this section or at a later date upon a showing of good cause, before the trial court that entered the judgment of conviction in his or her case, to request resentencing in accordance with the provisions of subdivision (e) of Section 667, and subdivision (c) of Section 1170.12, as those statutes have been amended by the act that added this section.
...
(e) An inmate is eligible for resentencing if:
(1) The inmate is serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.
(2) The inmate's current sentence was not imposed for any of the offenses appearing in clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or clauses (i) to (iii), inclusive, of subparagraph ...

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