United States District Court, E.D. California
GREGORY C. BONTEMPS, Petitioner,
PEOPLE OF THE STATE OF CALIFORNIA, Respondent.
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
is a state prisoner without counsel seeking a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. On June 30, 2017,
the court determined that the immediate petition failed to
state a cognizable federal habeas claim. ECF No. 5. It
offered petitioner an opportunity to show cause why his
petition should not be dismissed. Id. Petitioner has
filed a response. ECF No. 8. After review of that response,
the court concludes that this petition should be dismissed.
court must dismiss a habeas petition or portion thereof if
the prisoner raises claims that are legally “frivolous
or malicious” or fail to state a basis on which habeas
relief may be granted. 28 U.S.C. § 1915A(b)(1), (2). The
court must dismiss a habeas petition “[i]f it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief[.]” Rule 4
Governing Section 2254 Cases.
conviction underlying this petition occurred on May 14, 2010
in the Sacramento County Superior Court. ECF No. 1 at 1.
Petitioner was sentenced as a “three-striker”
(Cal. Penal Code §§ 667(b)-(i), 1170.12(a)-(d)) and
given twenty-five years to life. ECF No. 1 at 1. Petitioner
later filed eight post-conviction petitions seeking recall of
sentence pursuant to California Penal Code Section 1170.126
(“§ 1170.126”), the Three Strikes Reform Act
of 2012, which provides for recall and resentencing in some
“three strikes” cases. Id. at 25-26. On
September 2, 2016, the state court of appeal declined to
address the merits of the final petition after determining
that it was untimely. Id. at 23-27. The California
Supreme Court then denied a petition for review of that
decision. Id. at 34. Petitioner now argues that the
California Supreme Court's 2015 decision in People v.
Johnson, 61 Cal.4th 674, 681-82 (2015) entitles him to a
merits decision from this court on his claim that he is
entitled to sentencing relief. ECF No. 1 at 5-8.
court notes that petitioner has recast his claims in his
response to the OSC. He now argues that he received
ineffective assistance from the counsel who represented him
in seeking resentencing. ECF No. 8 at 2-3. He also argues
that his sentence is “disproportionate” in the
context of the Eighth Amendment. Id. at 3-4.
Petitioner states that his current sentence is
disproportionate when compared to the sentences of prisoners
convicted of similar crimes. Id.
claims, whether proceeding on the grounds raised in the
petition or in his response, are not cognizable on federal
habeas review. As noted in the court's previous order
(ECF No. 5), petitioner's claims that the state courts
erred in adjudicating his re-sentencing claims under §
1170.126 do not present a federal issue. Federal habeas
relief is not available for petitions alleging only error in
the state post-conviction review process. See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991) (holding that habeas
court will not review state law questions); see also
Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989)
(“We join the majority [of circuits] and affirm the
district court's holding that a petition alleging errors
in the state post-conviction review process are not
addressable through habeas corpus proceedings.”).
petitioner's newly recast Sixth and Eighth Amendment
claims cognizable. First, his Sixth Amendment claim pertains
to the representation of counsel during post-conviction
proceedings under § 1170.126. See ECF No. 8 at
3 (“Counsel failed to raise any argument or challenge .
. . [to] the trial courts findings that petitioner was
ineligible for resentencing on the spousal abuse and witness
intimidation counts.”). It is settled law that a
criminal defendant has no right to counsel “beyond his
first appeal in pursuing state discretionary or collateral
review.” Coleman v. Thompson, 501 U.S. 722,
756 (1991); see also Pennsylvania v. Finley, 481
U.S. 551, 555 (1987) (“[T]he right to appointed counsel
extends to the first appeal of right, and no further”);
United States v. Townsend, 98 F.3d 510, 513 (9th
Cir. 1996) (finding that prisoner was not entitled to counsel
under the Sixth Amendment where he sought a reduction of
sentence under an amendment to the federal sentencing
guidelines). Thus, petitioner cannot bring a claim based on
his counsel's deficient performance in briefing and
arguing his eligibility for resentencing under §
petitioner's Eighth Amendment claim is non-cognizable
insofar as it is not a challenge to the sentence he was given
at the time of conviction; rather it challenges the state
courts' decision not to resentence him under §
1170.126. ECF No. 8 at 3 (“[T]he trial court abused its
discretion in not ‘striking a strike' . .
.”). As noted above, federal habeas relief is not
available for a petition based exclusively on errors in the
state post-conviction process. Franzen, 877 F.2d at
26. Petitioner may not transform his state law claim into a
federal one merely by casting it as an Eighth Amendment
challenge. See Langford v. Day, 110 F.3d 1380, 1389
(9th Cir. 1996) (holding that a petitioner may not transform
a state law claim into a federal one by clothing it in
federal constitutional language).
the court concludes that petitioner would not be entitled to
relief even if he were challenging the proportionality of his
underlying sentence. First, it is far from clear that such a
claim would be timely given that petitioner states that he
was convicted in May of 2010 - more than six years before
this petition was filed. ECF No. 1 at 1. Second,
petitioner's three strike sentence of twenty-five years
to life (id.) does not violate the Eighth
Amendment's proportionality principle. In Lockyer v.
Andrade, the Supreme Court noted that the contours of
the gross disproportionality principle “are unclear,
applicable only in the exceedingly rare and extreme
case.” 538 U.S. 63, 73 (2003). Petitioner was convicted
of violations of Cal. Penal Code § 422 (criminal
threats), Cal. Penal Code § 273.5 (spousal abuse), and
Cal. Penal Code § 136.1 (witness intimidation). ECF No.
1 at 17. After the trial court determined he had two prior
strikes, he was sentenced to twenty-five years to life for
each conviction, but the spousal abuse and witness
intimidation sentences were stayed. Id. The Supreme
Court has found that California's three strikes law does
not violate the Eighth Amendment and it has upheld similar
sentences for less serious crimes. See Lockyer, 538
U.S. at 77 (finding that a twenty-five year to life sentence
under California three strikes law for stealing property
worth less than 200 dollars was not a violation of clearly
established federal law); Ewing v. California, 538
U.S. 11, 25-28 (2003) (upholding a twenty-five year to life
sentence for felony of grand theft where defendant had
previously been convicted of two violent or serious
has consented to magistrate judge jurisdiction. ECF No. 4.