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Walker v. Asunicon

United States District Court, C.D. California

December 17, 2019

BRETT WALKER, Petitioner,
v.
D. ASUNICON, Respondent.

          ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

          HON. SHASHI H. KEWALRAMANI, U.S. MAGISTRATE JUDGE.

         On August 6, 2018, Petitioner Brett Walker (“Petitioner”), proceeding pro se, signed and subsequently filed a Petition for Writ of Habeas Corpus (“Pet.” or “Petition”) pursuant to 28 U.S.C. § 2254, challenging his 2014 conviction of robbery with a gun enhancement. Electronic Case Filing Number (“ECF No.”) 1. Both parties have consented to proceed before a United States Magistrate Judge. ECF Nos. 2, 14.

         In the Petition, Petitioner alleges two sentencing error claims. Because neither of Petitioner's claims is cognizable on federal habeas review and because they also fail on the merits, the Court DENIES the claims and DISMISSES the Petition with prejudice.

         I. PROCEDURAL HISTORY

         A. State Proceedings

         On May 1, 2014, Petitioner pleaded no contest to one count of robbery and admitted a related firearm allegation in the Los Angeles County Superior Court. Electronic Case Filing Number (“ECF No.”) 16-1 at 4-5.[1] The trial court sentenced Petitioner to two years for the robbery plus ten years for the firearm enhancement. Id. Petitioner did not appeal and his conviction became final 60 days later, on June 30, 2014, when his time to file a notice of appeal ran. Cal. R. Ct. 8.308(a).

         Some three years later, on June 5, 2017, Petitioner constructively filed[2] a motion in the state superior court to modify his sentence under Proposition 57, arguing that his robbery conviction should be deemed a nonviolent felony so as to make him immediately eligible for parole consideration. ECF No. 16-2. The superior court denied the motion on June 13, 2017, finding that Proposition 57 does not apply to a violent crime such as robbery. ECF No. 16-1 at 5.

         Then, on June 18 and August 23, 2017, Petitioner sought relief again in the superior court, requesting that that court retroactively apply Proposition 57's juvenile justice reforms because he was a juvenile when convicted, and refer his case to the juvenile court for a fitness hearing. ECF Nos. 16-3, 16-4. The superior court denied the request in a reasoned order on September 1, 2017. ECF No. 16-1 at 6. Petitioner thereafter sought reconsideration of the superior court's order, which the superior court denied on October 4, 2017. Id.

         In the meantime, on September 30, 2017, Petitioner constructively filed a petition for writ of mandate in the California Court of Appeal, requesting that his case be transferred to the juvenile court for a fitness hearing under Proposition 57. ECF No. 16-6. On October 24, 2017, the court of appeal summarily denied the petition. ECF No. 16-7.

         Next, on November 12, 2017, Petitioner constructively filed another habeas petition in the superior court, again asking that his case be transferred to the juvenile court under Proposition 57. ECF No. 16-8. The superior court denied the petition on November 21, 2017, reasoning that Proposition 57 is not retroactive to a case that has reached final judgment. ECF No. 16-1 at 7.

         On January 18, 2018, Petitioner constructively filed a habeas petition in the California Court of Appeal seeking relief under Proposition 57 and a new state law, California Senate Bill No. 620. ECF No. 16-9. The court of appeal summarily denied relief on February 20, 2018. ECF No. 16-10. Petitioner next constructively filed a habeas petition in the California Supreme Court on March 8, 2018, raising the same claims raised in the court of appeal. ECF No. 16-11. On June 13, 2018, the California Supreme Court summarily denied relief. ECF No. 16-12 at 2.

         Finally, on July 16, 2018, Petitioner returned to the superior court again where he constructively filed another habeas petition, this time claiming he was entitled to a hearing under People v. Franklin, 63 Cal.4th 261 (2016) because he did not have a sufficient opportunity at his sentencing hearing to make a meaningful record of information relevant to a future youth offender parole hearing. ECF No. 16-13. The superior court denied the petition on July 24, 2018, finding that Petitioner was not entitled to a Franklin hearing. ECF No. 16-1 at 8.

         B. Federal Proceedings

         On August 6, 2018, Petitioner constructively filed the pending Petition in this Court.[3] Following two extensions of time, Respondent filed an Answer to Petition (“Ans.) on December 28, 2018, along with a Memorandum of Points and Authorities (“Ans. Mem.”). ECF No. 15. After the Court, on its own motion, extended ...


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