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Swanson v. Tampkins

United States District Court, S.D. California

November 16, 2017

GEORGE SWANSON, Petitioner,
v.
CYNTHIA TAMPKINS, Warden, Respondent.

          REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS CORPUS AND ORDER DENYING REQUEST FOR EVIDENTIARY HEARING [ECF NO. 1]

          Hon. Ruben B. Brooks United States Magistrate Judge

         Petitioner 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. 1.)[1] 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.[2] For the reasons explained below, the Petition [ECF No. 1] should be DENIED, and Petitioner's request for an evidentiary hearing is DENIED.

         I. FACTUAL BACKGROUND

         On June 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).)

         II. PROCEDURAL BACKGROUND

         Petitioner did not appeal the trial court's judgment.[3] 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).)

         On 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, http://appellatecases.courtinfo.ca.gov/ (visited Mar. 22, 2017).)

         Petitioner's federal habeas petition was constructively filed on December 12, 2016, [4] 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 5.)

         III. STANDARD OF REVIEW

         The 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 corpus claims:

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.

         Section 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; or
(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).

         To 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).

         A 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”).

         The 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 § 2254(d)(1). Id.

         The “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 ...


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