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Grant v. Sherman

United States District Court, E.D. California

September 10, 2019

CHRIS GRANT, Petitioner,
v.
STU SHERMAN, Warden, Respondent.

          ORDER TO ASSIGN DISTRICT JUDGE TO CASE FINDINGS AND RECOMMENDATION TO DISMISS PETITION [TWENTY-ONE DAY OBJECTION DEADLINE]

          SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE.

         Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation (“CDCR”) serving a sentence of 40 years-to-life for his convictions in Santa Clara County of two counts of robbery. In this petition, Petitioner challenges a state court decision upholding the CDCR's determination that he is not entitled to parole consideration under California's Proposition 57. Upon review of the petition, it is clear that Petitioner is not entitled to habeas relief. Therefore, the Court recommends that the petition be SUMMARILY DISMISSED.

         I. PROCEDURAL BACKGROUND

         On January 13, 2009, Petitioner was convicted of two counts of second degree robbery in violation of Cal. Penal Code § 212.5(c), with multiple enhancements under Cal. Penal Code §§ 667(a)(1) and 1170.12(a)-(d). (Doc. 1 at 28.) On March 27, 2009, Petitioner was sentenced to a total term of 40 years-to-life. (Doc. 1 at 1.)

         On November 8, 2016, California voters adopted Proposition 57, known as “The Public Safety and Rehabilitation Act of 2016.” Proposition 57 granted authority to the Secretary of the CDCR to adopt new regulations governing credit earning for inmates. Thereafter, Petitioner submitted a CDCR Form 22 “Inmate/Parolee Request” in which he sought early parole consideration pursuant to Proposition 57. (Doc. 1 at 54.) Petitioner was advised that he was ineligible for early parole consideration, because he had been convicted of a violent offense. (Doc. 1 at 54.) He requested review by a supervisor, but he was again informed that he did not qualify because of his convictions for bank robbery. (Doc. 1 at 54.) Petitioner then filed an administrative appeal. (Doc. 1 at 47.) His appeal was denied at the first level for the same reason. (Doc. 1 at 48.) He next filed an administrative appeal at the second level of review, and his appeal was rejected for the same reason. (Doc. 1 at 45-46.) Petitioner then appealed to the third level of review, and the appeal was denied. (Doc. 1 at 43-44.)

         On October 19, 2018, Petitioner filed a petition for writ of habeas corpus in the Kings County Superior Court alleging that he is entitled to early parole consideration because his convictions for bank robbery are not violent felonies. (Doc. 1 at 29-30.) On November 30, 2018, the superior court denied the petition, noting that “Petitioner is serving a [sic] felony terms for two counts of robbery, which are classified as violent felonies pursuant to [Cal.] Penal Code section 667.5, subdivision (c)(9). Accordingly, Petitioner has been properly classified as a violent offender and he is not entitled to early parole under Proposition 57.” (Doc. 1 at 30.) On January 7, 2019, Petitioner filed a habeas petition in the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). (Doc. 1 at 27.) On February 28, 2019, the Fifth DCA summarily denied the petition. (Doc. 1 at 27.) Petitioner then filed a habeas petition in the California Supreme Court, and the petition was summarily denied on June 19, 2019. (Doc. 1 at 26.) On September 6, 2019, Petitioner filed the instant federal petition in this Court.

         II. DISCUSSION

         A. Preliminary Review of Petition

         Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . .” Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001).

         B. Failure to State a Cognizable Federal Claim

         Petitioner challenges the state court decision denying his request for early parole consideration. He claims the CDCR wrongly denied his request, because his convictions for bank robbery do not qualify as violent felonies for purposes of California's Proposition 57.

         Proposition 57 added Article I, section 32 to the California ...


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