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Cox v. Diaz

United States District Court, N.D. California

October 21, 2019

NICHOLAS ADAM COX, Petitioner,
v.
RALPH DIAZ, Respondent.

          ORDER DISMISISNG PETITION WITH LEAVE TO AMEND

          JAMES DONATO United States District Judge.

         Petitioner, a California prisoner, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted in Contra Costa County, which is in this district, so venue is proper here. See 28 U.S.C. § 2241(d). He has paid the filing fee.

         DISCUSSION

         STANDARD OF REVIEW

         The Court may consider a petition for 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); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas 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.'” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)).

         LEGAL CLAIM

         Petitioner seeks relief regarding a conviction for shooting at an occupied building, shooting from a vehicle and being a violent felon in possession of a firearm. Court records indicate that petitioner already filed a habeas petition in this Court regarding that same conviction. See Cox v. W.L. Muniz, No. 17-cv-5723 JD. Petitioner filed the first petition on October 4, 2017 and the petition was denied on the merits on September 4, 2018. In this second petition, petitioner argues that the state appellate court violated his federal rights when it denied his petition regarding a new and intervening judgment in his case and his request for resentencing based on California Senate Bill 620. Petition at 6. While it appears that petitioner has presented a successive petition, a brief recitation of the background regarding his petition and claim is necessary.

         In August 2014, petitioner was sentenced to a term of 42 years to life. Petition at 35. On July 12, 2017, the California Department of Corrections and Rehabilitation informed the sentencing judge and petitioner of a possible error in his sentence. Id. at 35, 50, 54. In August 2017, an amended abstract of judgment was issued reflecting a sentence of 41 years to life (instead of 42 years to life). Id. at 36.

         On October 11, 2017, the California Governor approved Senate Bill 620 which allowed trial courts at the time of sentencing to strike or dismiss enhancements otherwise required to be imposed pursuant to Penal Code section 12022.52. Id. The trial court could also apply this at resentencing. Id. Petitioner filed habeas petitions in state court arguing that his August 2017 amended abstract of judgment should be eligible for review under Senate Bill 620 which was enacted two months later. The state courts denied the petitions noting that Senate Bill 620 became effective several months after his amended abstract judgment was filed. Id. at 36, 60. The state courts noted that under California law, amendments to the penal code are not retroactive unless expressly declared. Id. California law states that Senate Bill 620 only applies retroactively to nonfinal cases. Id. at 37, 61. The state courts denied his petitions because petitioner's amended abstract of judgment became final when it was filed, two months prior to the enactment of Senate Bill 620; therefore, he was not entitled to the retroactive benefit and may not seek relief under the bill. Id. Petitioner then filed this second federal habeas petition.

         “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 . . .” 28 U.S.C. § 2244(b)(2). This is the case 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, that was previously unavailable; or
(B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would ...

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