United States District Court, N.D. California
ORDER DISMISSING AMENDED PETITION FOR WRIT OF HABEAS
CORPUS WITH PREJUDICE; DENYING CERTIFICATE OF
PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE
to the order dismissing petition for writ of habeas corpus
with leave to amend, dkt. no. 4, represented petitioner Tracy
Conrad Smith has filed an amended habeas petition under 28
U.S.C. Â§ 2254, dkt. no. 10 (âAm. Pet.â). Pursuant to Rule 4
of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. Â§
2254 (âRule 4â), the amended petition is DISMISSED on the
ground that it plainly appears from the amended petition and
attached exhibits that petitioner is not entitled to relief.
relevant to the amended petition before the court, the
factual record and procedural background are summarized in
the opinion of the court of appeal affirming the denial of
the petition for resentencing, Am. Pet., Ex. I (People v.
Smith, No. A149232 (Cal.Ct.App. Oct. 30, 2018)
(“slip op.”)), which was previously submitted
with the initial habeas petition. In the amended petition,
Smith has supplemented the habeas record with documents from
the state court record of the petition for resentencing under
Proposition 36, including the trial court's May 3, 2016,
order denying petition for resentencing, CT 00343-345. The
pertinent background information as found by the court of
appeal, People v. Smith, slip op. at 3-7, is briefly
summarized below. Additional details about the procedural
history and factual background of this case are set forth in
the court's earlier orders on Smith's habeas
proceedings. See dkt. no. 4 at 1-2 and n.1.
was charged by information with the following counts: (1)
first degree residential burglary; (2) burglary of a garage;
(3) second degree commercial burglary of a tool shed; (4)
second degree robbery; and (5) possession of a firearm by a
felon. The information further alleged that Smith personally
used a firearm in connection with the robbery charged in
count four, that Smith suffered 13 prior felony convictions,
and that two of Smith's prior felony convictions were
“strikes” for the purposes of the Three Strikes
Law, Cal. Penal Code §§ 667(e), 1170.12(c).
20, 2006, an Alameda County jury convicted Smith of burglary
of a garage, robbery, and possession of a firearm by a felon.
Smith was acquitted of residential burglary and burglary of a
tool shed, and he was found not to have used a firearm in the
commission of the robbery. All prior conviction allegations
were found true. Because Smith had suffered at least two
prior serious felony “strike” convictions, the
trial court sentenced Smith to three concurrent terms of
twenty-five years to life pursuant to the Three Strikes law,
plus two consecutive five-year terms stemming from the
serious prior felony enhancements. The judgment was affirmed
by the court of appeal.
amendment of the Three Strikes law with the passage of the
Three Strikes Reform Act of 2012, as adopted pursuant to
Proposition 36 (“Proposition 36”), Smith filed a
petition for resentencing before the trial court. CT 001-008.
As ordered by the trial court, Smith filed a supplemental
brief, CT 00279-288, as well as supplemental authority, CT
00300-301. The Alameda County District Attorney filed a
response on February 11, 2016. CT 00302-316. The trial court
granted Smith's request for leave to file a reply brief,
CT 00323, which he filed on March 17, 2016, CT 00329-336.
3, 2016, the trial court issued a written order denying his
petition for resentencing, finding that he was ineligible for
Proposition 36 relief because he was armed with a firearm
during the commission of both the burglary and felon in
possession of a firearm offenses. CT 00343-345. On October
30, 2018, the court of appeal affirmed the denial of the
Proposition 36 petition. Am. Pet., Ex. I. Smith filed a
petition for review which was denied by the California
Supreme Court on January 16, 2019. Am. Pet., Exs. J and K.
the Proposition 36 petition was pending appeal in state
court, Smith filed a represented § 2254 petition
asserting challenges to the state court robbery conviction.
Smith v. Kernan, No. 18-cv-1863 PJH (N.D. Cal. March
26, 2018). By order entered May 8, 2018, the court dismissed
the petition as an unauthorized second or successive petition
challenging the same conviction underlying Smith's prior
habeas petition which was finally adjudicated on the merits
in Case No. 09-cv-3764 PJH. On June 8, 2018, Smith filed an
application for leave to file a second or successive habeas
petition before the Ninth Circuit, which denied the
application. Smith v. Lozano, No. 18-71678 (9th Cir.
Jan. 17, 2019).
February 20, 2019, Smith's habeas counsel filed a
supplement to the application for authorization to file a
second or successive habeas petition, which the Ninth Circuit
treated as a separate application and denied as unnecessary
because it challenged the denial of a petition for
resentencing which Smith had not previously challenged in a
§ 2254 petition that was adjudicated on the merits.
Smith v. Lozano, No. 19-70444 (9th Cir. Apr. 22,
2019). By order entered April 22, 2019, the Ninth Circuit
transferred Smith's application to this court as a §
2254 petition. On July 10, 2019, the court issued an order
dismissing the § 2254 habeas petition with leave to
amend. On November 15, 2019, counsel for Smith filed an
amended petition for writ of habeas corpus on which the court
conducts a preliminary review pursuant to Rule 4.
Standard of Review
court may entertain a petition for a 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). It
shall “award the writ or issue an order directing the
respondent to show cause why the writ should not be granted,
unless it appears from the application that the applicant or
person detained is not entitled thereto.” 28 U.S.C.
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 Section 2254 Cases. “‘[N]otice'
pleading is not sufficient, for the petition is expected to
state facts that point to a ‘real ...