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Thornberry v. Kernan

United States District Court, S.D. California

November 17, 2017

SCOTT KERNAN, Secretary of the California Department of Corrections and Rehabilitation, Respondent.


          Hon. Cynthia Bashant United States District Judge.

         Petitioner filed a Second Amended Petition for Habeas Corpus arguing that he “is eligible for resentencing as a matter of law under § 1170.18(a) [Proposition 47].” (ECF No. 61 (“Petition”) at 6.) He claims that the failure of the state court to grant his request for resentencing violated his constitutional right to due process and equal protection. (Petition ¶ 48.)

         Respondent moved to dismiss arguing that the Petition failed to state a constitutional claim. (ECF No. 64.) Magistrate Judge Stormes filed a Report and Recommendation (“R&R”) recommending that the Court grant the Motion to Dismiss. (ECF No. 74.) Petitioner objects to this R&R. (ECF Nos. 75, 79, 81.)

         Having reviewed the R&R de novo, the Court agrees with the Magistrate Judge, and therefore OVERRULES the Objections (ECF Nos. 75, 79, 81) and ADOPTS the R&R in its entirety.


         The Court reviews de novo those portions of a Magistrate Judge's R&R to which objections are made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. “The statute [28 U.S.C. § 636(b)(1)(c)] makes it clear, ” however, “that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct.” Reyna-Tapia, 328 F.3d at 1121.

         Objections must be written and specific. See, e.g., Fed. R. Civ. Pr. 72(b)(2) (“[A] party may serve and file specific written objections to the proposed findings and recommendations” of the magistrate judge. In the absence of specific objection, the clear weight of authority indicates that the court need only satisfy itself that there is no “clear error” on the face of the record before adopting the magistrate judge's recommendation. See, e.g., Fed.R.Civ.P. 72(b) Advisory Comm. Notes (1983) (citing Campbell v. United States Dist. Court, 501 F.3d 196 (9th Cir. 1974)).

         II. ANALYSIS

         A. Background

         On October 8, 2010, Petitioner pled guilty to one count of robbery. (Lodgment 1; Lodgment 6 at 1). Proposition 47, codified as California Penal Code § 1170.18, was a ballot initiative passed by the California voters after Petitioner was sentenced for his robbery conviction. Under § 1170.18, certain felony drug possession and theft convictions could be reduced to misdemeanors upon application to the trial court.

         The State Court denied Petitioner's habeas petition requesting resentencing under this statute, noting both that Petitioner had failed to apply to the trial court for resentencing and that robbery is not one of the crimes covered under § 1170.18. (Lodgment 4.)

         Petitioner files this habeas petition claiming the State Court ruling violated his constitutional right against equal protection and due process. The Magistrate Judge recommended that this Court grant Respondent's Motion to Dismiss noting that “the fact that Thornberry appended references to federal due process and equal protection rights to his claim does not transform it into a federal claim.” (R&R at 4-5 (citing Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996); Little v. Crawford, 449 F.3d 1075, 1081-82 (9th Cir. 2006).

         B. Petitioner's Objections

         In his original objections (ECF No. 75), Petitioner argues that arbitrary denial of his resentencing, without consideration of the offense conduct underlying his conviction, violates due process. In Langford v. Day, 110 F.3d 1380 (9th Cir. 1996), the petitioner made a similar claim arguing that he was denied due process because the state court applied the wrong standard when the court refused to allow him to withdraw his guilty plea. 110 F.3d at 1389. The Ninth Circuit pointed out that a petitioner “may not, however, transform a state-law issue into a federal one merely by asserting a violation of due process. We accept a state court's interpretation of state law . . . and alleged errors in the application of state law are not cognizable in federal habeas corpus.” Id. (citation omitted). The same rule applies ...

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