Smith v. Lozano

          ORDER DISMISSING AMENDED PETITION FOR WRIT OF HABEAS CORPUS WITH PREJUDICE; DENYING CERTIFICATE OF APPEALABILITY

          PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE

         Pursuant 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. § 2254, dkt. no. 10 (“Am. Pet.”). Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254 (“Rule 4”), 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.

         BACKGROUND

         As 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.

         Smith 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).

         On July 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.

         Following amendment of the Three Strikes law^[1] 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.

         On May 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.

         While 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).

         On 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.

         DISCUSSION

         A. Standard of Review

         This 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. § 2243.

         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 Section 2254 Cases. “‘[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a ‘real ...