United States District Court, N.D. California
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
WITH LEAVE TO AMEND
PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE
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.
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.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.
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.
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.
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,
Standard of Review
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.
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)).
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.
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 ...