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Orozco v. California Dept. of Corrections

United States District Court, C.D. California, Western Division

March 5, 2018

HECTOR OROZCO, Petitioner,
v.
CALIFORNIA DEPT. OF CORRECTIONS, Respondent.

          ORDER DISMISSING PETITION

          HONORABLE ANDRÉ BIROTTE JR. UNITED STATES DISTRICT JUDGE.

         I.

         BACKGROUND

         Hector Orozco (“petitioner”) initiated this action on December 15, 2017, by filing a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition” or “Pet.”). Petitioner is currently in custody pursuant to a conviction in case number TA-089787 and is housed at Mule Creek State Prison in Ione, California.[1] (Pet. at 1-2[2]). Petitioner in the Petition, however, challenges his conviction in 1996 in case number SA-024705 for second degree robbery (Cal. Penal Code § 211), and assault with a deadly weapon (Cal. Penal Code § 245(a)(1)). (Pet. at 2, 22). Petitioner completed a six year sentence for that conviction, and now contends that his 1996 conviction for second degree robbery should be reclassified as a misdemeanor pursuant to Proposition 47, which, presumably, would result in a reduced sentence in case number TA-089787.[3] (Pet. at 2, 11-12, 22).

         Petitioner raised this claim in a habeas petition filed in the Los Angeles County Superior Court on December 5, 2016. The superior court denied the petition on December 21, 2016, stating in pertinent part:

Petitioner was convicted by jury on June 19, 1996[, ] of second degree robbery, in violation of Penal Code section 211, and assault with a deadly weapon, in violation of Penal Code section 245(a)(1). On October 29, 1996, Petitioner was sentenced to 6 years in the state prison. One May 16, 1997, the judgement was affirmed by the Second Appellate District. Thereafter, Petitioner filed a Petition for a Writ of Habeas Corpus which was denied on May 19, 2000.
Petitioner's sole contention is that his conviction for second degree robbery in violation of Penal Code section 211, as charged in Count 1, should now be re-classified as a misdemeanor theft following passage of Proposition 47. In reality, Petitioner is asking this court to re-weigh the sufficiency of evidence for his conviction asserting that there is insufficient evidence to elevate the theft to a robbery. On direct appeal, Petitioner challenged his robbery conviction for insufficient evidence. That appeal was denied. Since the petition raises issues which were raised and rejected on appeal and Petitioner has failed to allege facts establishing an exception to the rule barring habeas consideration of claims that were [ ] raised on appeal, the Petition is denied. [Citations.]
Moreover, since Petitioner completed his sentence on this matter, while he may be in custody in case TA089787, he is no longer in custody on this matter as defined under [California] Penal Code §§ 1473.

(Pet. at 22-23).

         Next, petitioner filed a habeas petition in the California Court of Appeal, which was denied on February 17, 2017.[4] (Pet. at 25). Petitioner also filed a habeas petition in the California Supreme Court, which was denied on October 11, 2017. (Pet. at 27).

         On December 28, 2017, the Magistrate Judge issued an Order to Show Cause Re: Dismissal of Habeas Petition (“OSC”), in which petitioner was required to show cause why the Petition, which raises the single ground for relief based on Proposition 47 (see Petition at 11-12), should not be dismissed for: lack of jurisdiction and as time-barred to the extent petitioner is directly challenging his 1996 conviction; or, alternatively, as barred by Lackawanna County District Attorney v. Coss, 532 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001), to the extent petitioner is indirectly challenging his 1996 conviction as a sentence enhancement to his current sentence; or as not cognizable to the extent petitioner is asserting a Proposition 47 challenge. (See OSC at 3-7). On February 23, 2018, petitioner filed a Response, in which he asserts that (1) he satisfies the “in custody” requirement for habeas challenges because he is “suffering from an extended sentence and enhancement from the 1996 conviction, ” and therefore the Court has jurisdiction; (2) his Petition is not time barred because he initiated this action after his corrections counselor notified him he was eligible to have his 1996 conviction reduced to a misdemeanor; and (3) the rule in Lackawanna does not bar his Petition because he “was deprived an effective defense by counsel and by the appe[l]late attorney[ ] who failed to raise and challenge the enhancement to his current conviction.” (Response at 2). The Magistrate Judge subsequently discharged the Order to Show Cause.

         II.

         DISCUSSION

         It appears from petitioner's Response to the OSC that he is not directly challenging his 1996 conviction, but instead is challenging his current sentence to the extent it was enhanced by the 1996 conviction.[5] As the Magistrate Judge set forth in the Order to Show Cause, the Supreme Court's ruling in Lackawanna forecloses such a claim. In Lackawanna, the Supreme Court stated that “once a state conviction is no longer open to direct or collateral attack in its own right . . . the conviction may be regarded as conclusively valid.” Lackawanna, 532 U.S. at 403. Here, because petitioner has not shown that his 1996 conviction is still open to either direct or collateral attack in its own right, he may not challenge the 1996 conviction in a federal habeas petition.[6]See Fisher v. Ventura Cty. Sheriffs Narcotics Agency, 2014 WL 2772705, at *6 (C.D. Cal. June 18, 2014) (“Petitioner may not challenge the 1999 Conviction directly, because he does not meet the ‘in custody' requirement and subject-matter ...


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