United States District Court, S.D. California
REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT
OF HABEAS CORPUS AND ORDER DENYING REQUEST FOR EVIDENTIARY
HEARING [ECF NO. 1]
Ruben B. Brooks United States Magistrate Judge
George Swanson, a state prisoner proceeding pro se,
constructively filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (the
“Petition”) in the Central District of California
on December 12, 2016. (Pet. 1, 11-12, ECF No.
On January 30, 2017, Magistrate Judge Suzanne H. Segal signed
an order transferring Swanson's matter to the United
States District Court for the Southern District of
California. (Order Transferring Action 1-5, ECF No. 4.)
Respondent Cynthia Tampkins filed an Answer on June 20, 2017
[ECF No. 13]. No traverse was filed. The Court has considered
the Petition, the Answer, and the lodgments. For the reasons
explained below, the Petition [ECF No. 1] should be
DENIED, and Petitioner's request for an
evidentiary hearing is DENIED.
14, 2015, Petitioner drove under the influence with three
passengers in his vehicle and was involved in an automobile
crash. (Lodgment No. 6, In re Swanson, D071041,
order at 2 (Cal.Ct.App. Sept. 28, 2016).) Swanson
subsequently pleaded no contest to one count of driving under
the influence of alcohol and causing bodily injury to another
person (California Vehicle Code section 23153(a)), two
allegations that he proximately caused bodily injury to more
than one victim while driving under the influence (California
Vehicle Code section 23558), two allegations that he
personally inflicted great bodily injury on a victim in the
commission of the driving under the influence offense
(California Penal Code section 12022.7(a)), one allegation
that he was convicted of two or more specified driving
offenses within ten years of the current offense (California
Vehicle Code section 23566(a)), and one allegation that he
drove under the influence causing bodily injury within ten
years of a conviction for two or more specific driving
offenses (California Vehicle Code section 23566(b)).
(Id. at 1.) On September 25, 2015, the trial court
sentenced Petitioner to seven years, consisting of three
years for the substantive offense of driving under the
influence of alcohol causing bodily injury to another person
(California Vehicle Code section 23153(a)), a one-year
enhancement for proximately causing bodily injury to more
than one victim (California Vehicle Code section 23558), and
a three-year enhancement for inflicting great bodily injury
on a victim in the commission of the driving under the
influence offense (California Penal Code section 12022.7(a)).
(Id.; see also Lodgment No. 2, People
v. Swanson, No. SCS280066 (Cal. Super. Ct. [certified
Sept. 25, 2015]) (abstract of judgment).)
did not appeal the trial court's judgment. On July 11, 2016,
Swanson filed a petition for writ of habeas corpus in the San
Diego County Superior Court alleging that “[t]he trial
court's imposition of consecutive sentence[s] violated
[California] Penal Code section 654 and the Double Jeopardy
Clause of the Fifth Amendment to the United State[s]
Constitution.” (Lodgment No. 3, Swanson v.
Tampkins, No. HSC 11568 (Cal. Super. Ct. filed July 11,
2016) (petition for writ of habeas corpus at 1, 3, 5-12).)
The petition was denied on August 12, 2016. (Lodgment No. 4,
In re Swanson, No. HSC 11568, order at 2-4 (Cal.
Super. Ct. Aug. 12, 2016).)
September 21, 2016, Swanson filed a petition for writ of
habeas corpus with the California Court of Appeal asserting
the same claim. (Lodgment No. 5, Swanson v.
Tampkins, D071041 (Cal.Ct.App. filed Sept. 21, 2016)
(petition for writ of habeas corpus at 1, 3, 6-13).) The
court of appeal denied the petition on September 28, 2016.
(Lodgment No. 6, In re Swanson, D071041, order at
2.) On October 13, 2016, Petitioner filed a habeas corpus
petition raising the same claim in the California Supreme
Court. (Lodgment No. 7, Swanson v. Tampkins, No.
S237769 (Cal. filed Oct. 13, 2016) (petition for writ of
habeas corpus at 1, 3, 7-13).) The California Supreme Court
denied the petition on November 30, 2016, without citation or
comment. (Lodgment No. 8, Swanson (George) on H.C.,
Case No. S237769 (Cal. Nov. 30, 2016), California Courts,
Appellate Courts Case Information,
Mar. 22, 2017).)
federal habeas petition was constructively filed on December
12, 2016,  and docketed on January 11, 2017. (Pet.
11-12; ECF No. 1). Swanson claims that the trial court's
imposition of consecutive sentences violated California Penal
Code section 654 and the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution. (Id. at
STANDARD OF REVIEW
Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C.A. § 2244 (West 2006),
applies to all federal habeas petitions filed after April 24,
1996. Woodford v. Garceau, 538 U.S. 202, 204 (2003)
(citing Lindh v. Murphy, 521 U.S. 320, 326 (1997)).
AEDPA sets forth the scope of review for federal habeas
The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to
the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or
treaties of the United States.
28 U.S.C.A. § 2254(a) (West 2006); see Reed v.
Farley, 512 U.S. 339, 347 (1994); Hernandez v.
Ylst, 930 F.2d 714, 719 (9th Cir. 1991). Because
Swanson's Petition was filed on December 12, 2016, AEDPA
applies to this case. See Woodford, 538 U.S. at 204.
2254(d) reads as follows:
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 proceedings unless
the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C.A. § 2254(d).
present a cognizable federal habeas corpus claim, a state
prisoner must allege his conviction was obtained “in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C.A. § 2254(a). A
petitioner must allege the state court violated his federal
constitutional rights. Hernandez, 930 F.2d at 719;
Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990).
federal district court does “not sit as a
‘super' state supreme court” with general
supervisory authority over the proper application of state
law. Smith v. McCotter, 786 F.2d 697, 700 (5th Cir.
1986); see also Lewis v. Jeffers, 497 U.S. 764, 780
(1990) (holding that federal habeas courts must respect a
state court's application of state law);
Jackson, 921 F.2d at 885 (explaining that federal
courts have no authority to review a state's application
of its law). Federal courts may grant habeas relief only to
correct errors of federal constitutional magnitude.
Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th
Cir. 1989) (stating that federal habeas courts are not
concerned with errors of state law “unless they rise to
the level of a constitutional violation”).
Supreme Court, in Lockyer v. Andrade, 538 U.S. 63
(2003), stated that “AEDPA does not require a federal
habeas court to adopt any one methodology in deciding the
only question that matters under § 2254(d)(1) -- whether
a state court decision is contrary to, or involved an
unreasonable application of, clearly established federal
law.” Id. at 71. In other words, a federal
court is not required to review the state court decision de
novo. Id. Rather, a federal court can proceed
directly to the reasonableness analysis under §
“novelty in . . . § 2254(d)(1) is . . . the
reference to ‘Federal law, as determined by the
Supreme Court of the United States.'”
Lindh v. Murphy, 96 F.3d 856, 869 (7th Cir. 1996)
(en banc), rev'd on other grounds, 521 U.S. 320
(1997). Section 2254(d)(1) “explicitly identifies ...