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Franklin v. Fisher

United States District Court, E.D. California

September 24, 2019

TIMOTHY FRANKLIN, Petitioner,
v.
R. FISHER, Jr., 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. Relevant Procedural Background

         On May 1, 2019, petitioner filed the instant § 2254 petition. Petitioner challenges the sentence of 32 years and 4 months that he received following his 2002 conviction for rape, sexual battery, and commission of a lewd act on a minor in the Sacramento County Superior Court, No. 01F02563. For enhancement purposes, the jury also found that petitioner had a prior serious felony conviction and had served two prior prison terms.[1] Petitioner appealed, and the judgment was affirmed.

         Petitioner sought habeas corpus relief in the trial court. In May 2005, the Sacramento County Superior Court granted the petition in part, ordering re-sentencing because the trial court had imposed a fully consecutive term for the rape charge pursuant to Cal. Penal Code §667.6(d) without giving a separate reason to support its discretionary choice of that term as it was required to do under the statutory scheme. At re-sentencing in January 2006, petitioner was committed to state prison for the same term, 32 years and four months, calculated in the same manner. The sentencing court clarified that it was imposing a full, separate, and consecutive term for the rape because, first, of all the court believes that is a separate offense as defined bylaw and, second, petitioner was on parole at the time this offense was committed, which justifies imposition of consecutive sentences. The California Court of Appeal, Third District, affirmed the judgment after re-sentencing. Petitioner sought habeas corpus relief in the Sacramento County Superior Court and California Supreme Court; this time his petitions were denied.

         Petitioner then filed a petition for writ of habeas corpus in this court, No. 2:08-cv-1276-FCD-CHS, on June 6, 2008, asserting several procedural errors (“the prior habeas action”). The petition was denied on February 2, 2010, and the judgment was affirmed by the Ninth Circuit Court of Appeal on December 3, 2013.

         In the instant petition, petitioner challenges the same conviction and sentence as in the prior habeas action. Here, he alleges that the trial court improperly determined facts regarding a prior conviction that was not found true by a jury or admitted to by petitioner to increase petitioner’s sentence in violation of petitioner’s Sixth Amendment rights and in violation of People v. Gallardo, 4 Cal. 5th 120 (2017).

         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 application shall be dismissed unless--
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, ...

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