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Grushen v. Covello

United States District Court, E.D. California

September 24, 2019

KENNETH R. GRUSHEN, JR., Petitioner,
v.
PATRICK COVELLO, Warden, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.

         Petitioner, 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.

         Examination 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).

         I. Procedural Background

         Petitioner 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 in 2010.

         Petitioner 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.

         On 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.

         In the 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).

         Petitioner 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.

         II. Discussion

         The 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 prior ...

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