United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se and in forma pauperis
with a petition for writ of habeas corpus filed pursuant to
28 U.S.C. § 2254, which challenges petitioner's 2015
conviction and sentence. ECF No. 1. The single-claim petition
challenges petitioner's three-year enhancement for great
bodily injury, based on the alleged violation of
petitioner's rights under the Fifth, Sixth and Fourteenth
Amendments. The petition has been fully briefed and is
submitted for decision.
currently pending is petitioner's motion to file a
proposed amended habeas petition. ECF Nos. 21-2. The proposed
petition is limited to a different single ground for relief,
a challenge to petitioner's five-year enhancement for a
prior serious felony conviction. The amended petition relies
on the January 1, 2019 implementation of Senate Bill 1393,
which gives state judges discretion to strike a prior serious
felony conviction in connection with sentencing. For the
reasons set forth below, the undersigned recommends that
petitioner's motion to proceed on his proposed amended
petition be denied.
Legal Standards Governing Motions to Amend
application for a writ of habeas corpus “may be amended
or supplemented as provided in the rules of procedure
applicable to civil actions.” 28 U.S.C. § 2242;
see also Rule 12 of the Rules Governing § 2254
Cases (recognizing general applicability in habeas of rules
of civil procedure). Federal Rule of Civil Procedure 15(a)(2)
authorizes an amended pleading “only with the opposing
party's written consent or the court's leave, ”
which the court “should freely give . . . when justice
so requires.” See Outdoor Systems, Inc. v. City of
Mesa, 997 F.2d 604, 614 (9th Cir. 1993) (denial of leave
to amend is reviewed “for abuse of discretion and in
light of the strong public policy permitting
amendment”). Factors to be considered include
“bad faith, undue delay, prejudice to the opposing
party, futility of the amendment, and whether the party has
previously amended his pleadings.” Bonin v.
Calderon, 59 F.3d 815, 845 (9th Cir. 1995). It is
“within the discretion of the district court to deny
leave to amend when the amendment would be
‘futile.'” Smith v. Commanding Officer,
Air Force Accounting & Fin. Ctr., 555 F.2d 234, 235
(9th Cir. 1977) (citations omitted).
general, pro se pleadings are to be liberally construed.
Woods v. Carey, 525 F.3d 886, 889-90 (9th Cir.
2008). However, “the petitioner is not entitled to the
benefit of every conceivable doubt; the court is obligated to
draw only reasonable factual inferences in the
petitioner's favor.” Porter v. Ollison,
620 F.3d 952, 958 (9th Cir. 2010).
contends that he is entitled to proceed on his proposed
amended petition because “[p]rior to SB 1393 being
enacted petitioner could not seek such relief during
sentencing and . . . petitioner has not sought the United
States Supreme Court writ of certiorari [so] . . . his
conviction has not become final.” ECF No. 22 at 25.
Petitioner argues that his proposed amended petition is not a
“second or successive petition, ” citing
Woods v. Carey, 525 F.3d 886, 887-90 (9th Cir. 2008)
(new petition is second or successive if it raises a claim
that could have been adjudicated on the merits in an earlier
petition). ECF No. 21 at 1. It appears that petitioner has
exhausted his new claim in the state courts. Petitioner has
submitted a portion of the Sacramento County Superior
Court's February 26, 2019 written decision denying his
recent state habeas petition in which petitioner sought an
order striking his five-year enhancement. ECF No. 22 at 15.
Petitioner has also submitted a copy of the California Court
of Appeal's March 21, 2019 summary denial, id.
at 14; and a copy of the California Supreme Court's July
24, 2019 summary denial, id. at 13.
September 30, 2018, the Governor signed S.B. 1393 which,
effective January 1, 2019, amends [Cal. Penal Code] sections
667(a) and 1385(b) to allow a court to exercise its
discretion to strike or dismiss a prior serious felony
conviction for sentencing purposes. (Stats. 2018, ch. 1013,
§§ 1-2.)” People v. Garcia, 28
Cal.App. 5th 961, 971 (2018), review denied (Jan. 16, 2019).
“[U]nder the Estrada rule, . . . it is
appropriate to infer, as a matter of statutory construction,
that the Legislature intended S.B. 1393 to apply to all cases
to which it could constitutionally be applied, that is, to
all cases not yet final when S.B. 1393 becomes effective on
January 1, 2019.” Id. at 973 (citing In re
Estrada (1965) 63 Cal. 2d 740, 744-45). “The
result is courts now have discretion to strike a five-year
enhancement. The amendment applies retroactively to all cases
not final on its effective date.” People v.
Dearborne, 34 Cal.App. 5th 250, 268 (2019), review
denied (July 17, 2019) (citing Garcia, 28 Cal.App.
5th at 973).
reviewing petitioner's recent state petition, the
Superior Court noted that “[p]etitioner's 2015
conviction of robbery and assault, with great bodily injury
enhancements and a prior conviction, was affirmed on appeal
with a remand for sentencing in December 2016. He was
re-sentenced in May 2017; he did not appeal the
re-sentencing.” ECF No. 22 at 15. The Superior Court
found that “[p]etitioner's criminal case became
final on appeal in 2017 when he did not appeal his
re-sentencing.” Id. The court acknowledged
petitioner's new claim “that he is entitled to
relief because he is still ‘actively challenging his
criminal conviction,' referring to a case in the United
States District Court, Eastern District of California,
” but stated that “[p]etitioner has not provided
information on the federal case showing that it affects the
finality of his criminal conviction.” Id.
(citing Estrada, supra, for the principal that
“an ameliorative change to a statute applies only to
cases that were not yet final on appeal on the effective date
of the amendment”).
argument that his criminal conviction is not yet final
because he has not sought certiorari in the Supreme Court is
without merit. A criminal judgment becomes final when the
time for pursuing direct review in the state courts,
or the Supreme Court, expires. Gonzalez v. Thaler,
565 U.S. 134, 150 (2012) (finding that petitioner's
judgment became final when his time for seeking review with
the State's highest court expired). Under California
Rules of Court, petitioner had 60 days from the date of his
re-sentencing to appeal, see Cal. Rule of Court
8.308(a); however, according to the Sacramento County
Superior Court, he did not do so. Therefore, the 60-day
period expired in July 2017, rendering petitioner's new
judgment final and extinguishing petitioner's opportunity
to further pursue the matter in the state courts or to file a
petition for writ of certiorari in the Supreme Court.
significantly for purposes of this federal court,
petitioner's effort to obtain the benefit of California
Senate Bill 1393 implicates state law only. The proposed
amended petition seeks to compel the state courts to
recognize petitioner's alleged entitlement to relief
under state law alone. “[F]ederal habeas corpus relief
does not lie for errors of state law.” Lewis v.
Jeffers, 497 U.S. 764, 780 (1990). “[I]t is not
the province of a federal habeas court to reexamine
state-court determinations on state-law questions.”
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
See 28 U.S.C. § 2254(a) (federal habeas
jurisdiction is limited to claims that petitioner is in