United States District Court, N.D. California
ORDER DISMISISNG PETITION WITH LEAVE TO
DONATO United States District Judge.
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.
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)).
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.
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.
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.
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
(B) (i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
(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 ...