United States District Court, E.D. California
ORDER DENYING PETITION FOR WRIT OF HABEAS
K. OBERTO UNITED STATES MAGISTRATE JUDGE.
Isaac Brown is a state prisoner proceeding pro se
with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. Petitioner alleges that the trial
court's enhancement of his sentence on counts one and six
for his use of a firearm violated his due process and equal
protection rights since there was only one use of a firearm
in Petitioner's commission of those two crimes.
Respondent counters that, although Petitioner challenged his
sentence on state law grounds in the state courts, he did not
exhaust his federal constitutional claim. Petitioner did not
reply to Respondent's answer. The Court finds that
Petitioner did not raise his federal constitutional claims in
state court proceedings and denies the petition.
Procedural and Factual Background
4, 2011, Ventura returned home to find a man, later
identified as Petitioner, kicking the door of her apartment.
When Ventura confronted Petitioner and asked why he was
kicking the door, Petitioner pointed a gun at Ventura's
head and ordered her to stop dialing 911 or he would kill
her. When she did not comply, Petitioner grabbed the phone
and disconnected the call. He then demanded the apartment
keys. Ventura claimed not to have the keys.
Amber Anderson then got out of a nearby Jeep and demanded
Ventura's lunch bag while snatching it from Ventura's
shoulder. Anderson told Ventura that they would shoot her if
she screamed. Petitioner and Anderson then left in the Jeep,
taking Ventura's lunch bag with them. They threatened to
return and kill Ventura if she screamed or reported the crime
to the police. Nonetheless, Ventura reported the crime to
police and identified Petitioner and Anderson in photo
a jury trial in Fresno County Superior Court, Petitioner and
co-defendant Amber Anderson were convicted of multiple
offenses committed in a crime spree in the summer of 2011.
Counts (4) second degree robbery (Cal. Penal Code § 211)
and (6) dissuading a witness from reporting a crime (Cal.
Penal Code § 136.1(b)(1)) relate to their robbing and
threatening Valencia. The jury found true sentencing
enhancements (§ 12022.5(a)(1)) arising from
Petitioner's personal use of a firearm in committing
counts four and six. On April 13, 2012, the state court
sentenced Petitioner to an aggregate prison term of 29 years.
filed a direct appeal to the California Court of Appeal
contending that the sentencing court violated California
Penal Code § 654 by imposing prison terms on the two
firearms enhancements associated with counts four and six. He
did not allege that the prison terms associated with the
firearms enhancements violated any federal constitutional
right. On January 6, 2014, the appellate court affirmed
Petitioner's convictions but ordered amendment of the
form of the abstract of judgment to list separately the base
term, enhancements, and enhancement terms on counts 4, 8, and
February 13, 2014, Petitioner filed a petition for review in
the California Supreme Court, alleging a single issue:
“Whether the provisions of Penal Code Section 654
prohibit imposition of two firearm use enhancements where
there is a single act that amounts to the use of a firearm
during the commission of two offenses during a single
incident?” See Lodged Doc. 5. Again,
petitioner did not raise any federal constitutional claim. On
March 26, 2014, the California Supreme Court summarily denied
Petitioner Did Not Exhaust State Remedies
petitioner who is in state custody and wishes to collaterally
challenge his conviction by a petition for writ of habeas
corpus must exhaust state judicial remedies. 28 U.S.C. §
2254(b)(1). The exhaustion doctrine is based on comity to the
state court and gives the state court the initial opportunity
to correct the state's alleged constitutional
deprivations. Coleman v. Thompson, 501 U.S. 722, 731
(1991); Rose v. Lundy, 455 U.S. 509, 518 (1982);
Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th
petitioner can satisfy the exhaustion requirement by
providing the highest state court with a full and fair
opportunity to consider each claim before presenting it to
the federal court. Duncan v. Henry, 513 U.S. 364,
365 (1995); Picard v. Connor, 404 U.S. 270, 276
(1971); Johnson v. Zenon, 88 F.3d 828, 829
(9th Cir. 1996). A federal court will find that
the highest state court was given a full and fair opportunity
to hear a claim if the petitioner has presented the highest
state court with the claim's factual and legal basis.
Duncan, 513 U.S. at 365. The petitioner must also
have specifically informed the state court that he was
raising a federal constitutional claim. Duncan, 513
U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669
(9th Cir. 2000), amended, 247 F.3d 904
(2001); Hiivala v. Wood, 195 F.3d 1098, 1106
(9th Cir. 1999); Keating v. Hood, 133
F.3d 1240, 1241 (9th Cir. 1998).
direct appeals to the state courts in this case, Petitioner
never raised the federal constitutional claim now alleged in
his federal petition. Instead, he only sought relief under
state law, contending that his sentence was improper under
California Penal Code § 654. As a result, the claim
alleged in the above-captioned petition is not exhausted and
must be dismissed.
Certificate of Appealability
petitioner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his
petition, but may only appeal in certain circumstances.
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).
The controlling statute in determining whether to ...