Revis v. Sherman

          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 § 1983 action is the exclusive vehicle for claims brought by state prisoners that are not within the core of habeas ...