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Rascon v. Valenzuela

United States District Court, E.D. California

November 14, 2017

JOSE RASCON, Petitioner,
v.
E. VALENZUELA, Respondent.

          ORDER

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus under 28 U.S.C. § 2254. Both parties have consented to the jurisdiction of a magistrate judge. (ECF Nos. 10, 11.) Petitioner alleges he is entitled to relief because the trial court abused its discretion when it refused to grant his motion to strike two prior felony strike convictions before sentencing. Respondent argues petitioner's claim is not cognizable in habeas. For the reasons set forth below, the court will deny the petition.

         BACKGROUND

         I. Procedural Background

         Petitioner filed a petition for writ of habeas corpus on August 26, 2015. (ECF No. 1.) The magistrate judge then assigned to the case screened the petition and directed respondent to file a response. (ECF No. 7.) Respondent filed an answer (ECF No. 14) and petitioner did not reply.

         II. Factual Background

         Petitioner was an inmate at the Sugar Pine Conservation Camp (“SPCC”), a fire camp operated by the California Department of Corrections and Rehabilitation (“CDCR”). (LD[1] 5 at 2.) On April 28, 2012, a staff member observed two individuals wearing inmate clothing running outside the camp perimeter. (Id.) Petitioner was located approximately 150 yards outside the camp perimeter and was returned to custody without incident. (Id.)

         Petitioner was charged with escape from custody, a felony. (Id.) At the beginning of trial, petitioner admitted two prior felony strike convictions for first degree burglary in 1996 and 2009. (Id. at 2-3.) Petitioner also admitted five prior prison terms for (1) the 1996 burglary conviction, (2) a 1997 conviction for possession of a controlled substance, (3) a 2000 conviction for possession of a controlled substance, (4) a 2005 conviction for possession of a controlled substance for sale, and (5) the 2009 burglary conviction for which petitioner was serving time at SPCC. (Id. at 3.) Following the two day trial, petitioner was found guilty of escape from custody. (Id.)

         Before sentencing, petitioner filed a Romero motion[2] arguing the court should strike his prior strike convictions because (1) the 1996 burglary conviction was temporally remote and the 2009 burglary while not as remote, was still four years old; (2) the escape was far less serious than the strike offenses; and (3) the remaining prior convictions were nonviolent and mostly drug related. (Id.)

         The government opposed the motion, arguing petitioner had suffered numerous felony convictions since 1996 and committed another felony offense while in custody. (Id.) The trial court denied the motion and sentenced petitioner to three years, doubled due to his strike offenses pursuant to California Penal Code section 1170.12, plus an additional four years, one year each for four of his prior prison terms, for a total of ten years in prison. (Id. at 4.)

         On appeal petitioner alleged the trial court abused its discretion by failing to grant the Romero motion and thus, violated his state and federal due process rights. (LD 3.) The California Court of Appeal affirmed the judgment reasoning the trial court did not abuse its discretion in refusing to grant the Romero motion and thus, petitioner's due process rights had not been violated. (LD 5.) The California Supreme Court summarily denied the petition for review. (LD 7.)

         STANDARDS OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS

         To state a claim for relief cognizable in habeas a petitioner must allege a violation of the Constitution or federal law. 28 U.S.C. § 2254(a) (A prisoner in custody pursuant to the judgment of a state court may seek federal habeas relief “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”). Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court ...

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