United States District Court, E.D. California
KENNETH R. GRUSHEN, JR., Petitioner,
PATRICK COVELLO, Warden, Respondent.
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding pro se, has filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
together with an application to proceed in forma pauperis.
of the in forma pauperis application reveals that petitioner
is unable to afford the costs of suit. Accordingly, the
application to proceed in forma pauperis will be granted.
See 28 U.S.C. § 1915(a).
was convicted in 2008 in the San Joaquin County Superior
Court of violations of California Penal Code § 246
(discharge of a firearm at an inhabited dwelling, vehicle, or
aircraft) and Penal Code § 12022.53(d) (additional
punishment for intentional use or discharge of a firearm
which caused great bodily injury or death). Pet. Attach.
(Order of San Joaquin Superior Court, Jan. 31, 2018, ECF No.
1 at 35-36). Petitioner was sentenced to five years for the
underlying conviction and twenty-five years to life for the
enhancement. Id. Petitioner’s direct appeal
was denied at the California Court of Appeals, Third
Appellate Division, and then at the California Supreme Court
filed four separate petitions for writ of habeas corpus in
the San Joaquin County Superior Court, each asserting claims
related to the effectiveness of his trial and/or appellate
counsel. These petitions were all denied. He then filed three
separate petitions with the court of appeal, each of which
was summarily denied. Finally, he filed a petition for writ
of habeas corpus with the California Supreme Court, which was
also summarily denied.
December 9, 2010, petition filed a petition for writ of
habeas corpus in this court, Grushen v. Haws, Case
No. 2:10-cv-3300-JKS (E.D. Cal.) (“the prior habeas
action”). The petition was denied on February 12, 2014,
and petitioner’s appeal was dismissed as untimely.
instant petition, petitioner challenges the same conviction
and sentence as asserted in Case No. 2:10-cv-3300. Here,
however, he seeks resentencing in light of changes made to
Penal Code § 12022.53, effective on January 1, 2018,
pursuant to California Senate Bill No. 620. The amendment
gave discretion to the court, “in the interest of
justice” and “at the time of sentencing” or
“to any resentencing, ” to “strike or
dismiss an enhancement otherwise required to be imposed by
the section.” Cal. Pen. Code § 12022.53(h) (2018).
asserts that he is entitled to resentencing pursuant to
amended § 12022.53(h) in light of his lack of a prior
criminal record at the time of conviction, his youth at the
time of the crime, his developmental disabilities, his
participating in prison programming, and his maturity during
incarceration. In pursuit of relief on this claim, petitioner
filed a petition for writ of habeas corpus in the San Joaquin
County Superior Court on January 8, 2018. That petition was
denied without prejudice on January 31, 2018, and then with
prejudice on March 19, 2018. Pet. Attach. (ECF No. 1 at
35-37). The petition was later denied on August 8, 2018, in
the California Supreme Court. Id. (ECF No. 1 at 56).
This action followed shortly thereafter, with petitioner
arguing that the state court judges erred in their denials of
his petition, and he seeks resentencing pursuant to Senate
Bill No. 620.
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), enacted on April 24, 1996, provides in
pertinent part that:
(a) No circuit or district judge shall be required to
entertain an application for a writ of habeas corpus to
inquire into the detention of a person pursuant to a judgment
of a court of the United States if it appears that the
legality of such detention has been determined by a judge or
court of the United States on a prior application for a writ
of habeas corpus, except as provided in § 2255.
(b)(1) A claim presented in a second or successive habeas
corpus application under section 2254 that was presented in a
prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a