United States District Court, C.D. California, Western Division
ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF
APPEALABILITY
HONORABLE PHILIP S. GUTIERREZ UNITED STATES DISTRICT JUDGE.
I.
BACKGROUND
Andre
Lamar Revis ("petitioner") was convicted in 2005 in
the Los Angeles County Superior Court of second degree
robbery and assault with a deadly weapon. He was found to
have prior convictions, and was sentenced to a term of
seventy years to life in state prison. (ECF No. 1-1 at
2[1]).
Petitioner
initiated this action on April 15, 2019, by filing a Petition
under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a
Person in State Custody ("Petition") in the Ninth
Circuit Court of Appeals. The Petition contains the following
claims: (1) the trial court abused its discretion by denying
petitioner's motion to dismiss prior convictions; (2)
petitioner received ineffective assistance of counsel during
sentencing; (3) petitioner should be resentenced under
Propositions 36, 47, and 57; and (4) the California
Department of Corrections and Rehabilitation
("CDCR") has "taken measure[s] to adversely
evade implementation" of Propositions 36, 47 and 57.
(ECF No. 1-1 at 1, 8, 19, 25, 33).
The
Ninth Circuit treated the Petition as an application to file
a second or successive habeas petition in the district
court.[2] On November 21, 2019, the Ninth
Circuit determined that petitioner's claims challenging
the denial of relief under California Propositions 47 and 57
were not subject to 28 U.S.C. § 2244(b), [3] and therefore
it was not necessary for petitioner to obtain permission from
the Ninth Circuit to file these claims in the district court.
With respect to the remaining claims in the Petition, the
application was denied.[4] The Ninth Circuit then transferred
the Petition to this Court with the advisement that the Court
should assess whether petitioner's claims under
Propositions 47 and 57 are cognizable in a federal habeas
action. (ECF No. 1). / / / / /
II.
DISCUSSION
Pursuant
to the Ninth Circuit's November 21, 2019, Order, the only
claims in the Petition that are before the Court are
petitioner's claims premised on Propositions 47 and 57.
As instructed by the Ninth Circuit, the Court now assesses
whether such claims are cognizable. (ECF No. 1 at 2).
Petitioner
may seek federal habeas relief from his
state court conviction or sentence only if he sets forth a
cognizable claim alleging that he is in custody in violation
of the Constitution or laws or treaties of the United States.
See 28 U.S.C. § 2254(a); Swarthoutv. Cooke. 562
U.S. 216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011) (per
curiam); Estelle v. McGuire. 502 U.S. 62, 67-68, 112
S.Ct. 475, 116 L.Ed.2d 385 (1991). Alleged violations
relating solely to the interpretation and/or application of
state law generally are not cognizable on federal habeas
review. See, e.g.. Rhoadesv.
Henry, 611 F.3d 1133, 1142 (9th Cir. 2010)
("violations of state law are not cognizable on federal
habeas review"); Christian v. Rhode. 41 F.3d
461, 469 (9th Cir. 1994) ("Absent a showing of
fundamental unfairness, a state court's misapplication of
its own sentencing laws does not justify federal habeas
relief.").
Proposition
47, which took effect in California in November 2014,
"reduced the penalties for certain drug and
theft-related offenses and reclassified those offenses as
misdemeanors rather than felonies. [Citations.] It also added
section 1170.18 to the Penal Code, which allows those
previously convicted of felonies that were reclassified as
misdemeanors under Proposition 47, to petition the court to
have their felony convictions designated as
misdemeanors," People v, Zamarripa, 247
Cal.App. 4th 1179, 1182, 202 Cal.Rptr.3d 525
(Cal.App. 2 Dist. 2016). Here, petitioner challenges the
state court's denial of his petition for resentencing
under Proposition 47. Federal courts considering such a
challenge have consistently found that claims arising under
Proposition 47 involve only state taw questions, and thus are
not cognizable.[5] See Mueck v. Anglea. 2019 WL
3564013. at*2(E.D. Cal. Aug. 6, 2019) (finding, and also
listing cases, that a claim based on Proposition 47 presents
no cognizable federal question); McKinnevv.
Pfeiffer. 2017 WL1078441. at *4 (CD. Cal. Jan. 11, 2017}
("[T]o the extent petitioner is challenging the superior
court's denial of his application to reduce one of his
convictions to a misdemeanor pursuant to Proposition 47, such
claims are not cognizable on federal habeas
review.'"). Report and Recommendation
accepted. 2017 WL 1073340 (CD. Cal. Mar. 21, 2017);
Adams v. Borders. 2016 WL 4523163, at *3 (CD. Cal.
July 29, 2016) (habeas claim pursuant to Proposition 47 not
cognizable), Report and Recommendation adopted. 2016
WL 4520906 (CD. Cal. Aug. 29, 2016). Accordingly, the Court
determines that petitioner's habeas challenge based on
Proposition 47 fails to present a cognizable federal claim.
The
Court next considers the nature of petitioner's claim
alleging a violation of Proposition 57, which was approved by
California voters in November 2016 and amended the California
Constitution to allow nonviolent offenders to be
"eligible for parole consideration after completing the
full term for [their] primary offense[s]." Cal. Const,
art. I, § 32(a)(1). The "full term for the primary
offense" refers to "the longest term of
imprisonment imposed ... for any offense, excluding the
imposition of an enhancement, consecutive sentence, or
alternative sentence." Cal. Const., art. I, §
32(a)(1)(A). California cases addressing the application of
Proposition 57 have "uniformly state[d] that Proposition
57 creates a mechanism for parole consideration, not a
vehicle for resentencing." Daniels v. California
Department of Corrections and Rehabilitation. 2018 WL
489155. at *4 (E.D. Cal. Jan. 19, 2018). Thus, at most,
Proposition 57 provides for expanded eligibility of parole
for certain convicted felons. It "does not require or
provide any mechanism for state law prisoners to be
resentenced by the courts in which they were convicted."
Travers v. People of the State of California, 2018
WL 707546, at *3 (N.D. Cal. Feb. 5, 2018).
Here,
petitioner asserts that the CDCR has 'taken measure[s] to
adversely evade implementation" of Proposition 57 and
presumably seeks an earlier parole consideration hearing as
relief.[6] (ECF No. 1-1 at 33-35). As explained
below, this claim is not cognizable because petitioner's
Proposition 57 challenge does not fall within the core of
habeas.
As an
overview, federal law provides "two main avenues to
relief on complaints related to imprisonment: a petition for
habeas corpus, 28 U.S.C. § 2254, and a [civil rights]
complaint under. . . 42 U.S.C. § 1983."
Muhammad v. Close. 540 U.S. 749, 750, 124 S.Ct.
1303, 158 L.Ed.2d 32 (2004). "Challenges to the validity
of any confinement or to particulars affecting its duration
are the province of habeas corpus; requests for relief
turning on circumstances of confinement may be presented in a
§ 1983 action." Nettles v. Grounds. 830
F.3d 922, 927 (9th Cir. 2016) (internal quotations and
citations omitted), cert, denied, 137 S.Ct. 645
(2017). A habeas petition is the exclusive vehicle for claims
brought by state prisoners that fall within "the core of
habeas," ]&; see Preiser v. Rodriguez. 411
U.S. 475, 487-88, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (the
"core of habeas corpus" is an attack on "the
very duration of [a prisoner's] physical confinement
itself). Conversely, "a ยง 1983 action is the
exclusive vehicle for claims brought by state prisoners that
are not within the core of habeas ...