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Smith v. Lozano

United States District Court, N.D. California

July 10, 2019

JARED LOZANO, Respondent.



         Before the court is the petition of Tracy Conrad Smith, a California state prisoner represented by counsel, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The habeas petition was transferred to this court by the Ninth Circuit Court of Appeals pursuant to an order entered April 22, 2019. Smith v. Lozano, No. 19-70444 (9th Cir. Apr. 22, 2019). The petition is now before the court for preliminary review pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases.


         On July 20, 2006, an Alameda County jury convicted Smith of second degree burglary of a garage, second degree robbery, and possession of a firearm by a felon.[1]The trial court subsequently found that Smith had thirteen prior convictions, including two prior prison terms and two prior serious “strike” convictions. On October 20, 2006, the state court sentenced Smith to three concurrent terms of twenty-five years to life with two consecutive five-year terms based on the prior serious felony enhancements.

         On August 17, 2009, Smith filed a pro se petition for a writ of habeas corpus pursuant to § 2254. Smith v. Adams, No. 09-cv-3764 PJH (N.D. Cal.). The court dismissed the habeas petition with leave to amend by order entered February 3, 2010. Smith subsequently retained counsel and filed an amended petition on June 21, 2010. On July 20, 2010, the petition was stayed to allow Smith to exhaust his unexhausted claim in state court. The court lifted the stay on May 11, 2011, and, after full briefing, issued an order denying the habeas petition on April 6, 2012.

         On March 26, 2018, Smith, represented by counsel, filed a petition for a writ of habeas corpus on the grounds that he is factually innocent of the robbery conviction, in that there was no asportation of property belonging to another person, and that the robbery conviction was the result of ineffective assistance of counsel at the trial, appellate and habeas levels. No. 18-cv-1863 PJH. By order entered May 8, 2018, the court dismissed the petition as an unauthorized second or successive petition challenging the same conviction underlying Smith's prior habeas petition which was finally adjudicated on the merits in No. 09-cv-3764 PJH.

         On June 8, 2018, Smith filed an application in the Ninth Circuit for leave to file a second or successive § 2254 habeas corpus petition in the district court. On January 17, 2019, the Ninth Circuit denied the application to file a second or successive § 2254 petition. Smith v. Lozano, No. 18-71678 (9th Cir. Jan. 17, 2019). On February 20, 2019, Smith's habeas counsel filed a supplement to the application for authorization to file a second or successive habeas petition, which the Ninth Circuit treated as a separate application and denied as unnecessary because it challenged the denial of a petition for resentencing which Smith had not previously challenged in a § 2254 petition that was adjudicated on the merits. Smith v. Lozano, No. 19-70444 (9th Cir. Apr. 22, 2019). By order entered April 22, 2019, the Ninth Circuit transferred the application filed February 20, 2019, to this court as a § 2254 petition. Pursuant to the order of the Ninth Circuit, the § 2254 petition (“Pet.”) is deemed filed February 20, 2019.


         A. Standard of Review

         This court may entertain a petition 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. § 2254(a). It shall “award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.” Id. § 2243.

         Habeas corpus petitions must meet heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility of constitutional error.'” Id., Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)).

         B. Legal Claims

         As grounds for federal habeas relief, Smith asserts that he was denied an evidentiary hearing in violation of his due process rights on the issue of ineligibility for resentencing under the Three Strikes Reform Act of 2012, as adopted pursuant to Proposition 36. He cites California Supreme Court authority holding that “Proposition 36 permits a trial court to find a defendant was armed with a deadly weapon and is therefore ineligible for resentencing only if the prosecutor proves this basis for ineligibility beyond a reasonable doubt.” Pet. at 5 (citing People v. Perez, 4 Cal. 5th 1055, 1059 (2018)). Smith argues that the state court did not afford him a hearing to litigate the ineligibility criteria relied upon by the prosecutor, circumventing the prosecutor's burden of proof.

         Violations of state law generally do not implicate federal due process concerns. Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). A petitioner may not “transform a state-law issue into a federal one merely by asserting a violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). It is only when a state statute creates a protected “liberty interest” that the violation of state law raises federal constitutional concerns on federal habeas ...

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