Opinion
CV 23-4154-VBF (E)
09-27-2023
ADOLFO VILLEGAS, Petitioner, v. JEFF LYNCH, Warden, Respondent.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Valerie Baker Fairbank, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On May 26, 2023, Petitioner, a state prisoner, filed a “Petition for Writ of Habeas Corpus” pursuant to 28 U.S.C. section 2254 (“Petition”). On June 8, 2023, Respondent filed a “Motion to Vacate Order Requiring Answer, etc.” (“Motion”). Plaintiff failed to file timely opposition to the Motion, despite receiving multiple extensions of time within which to do so. See Minute Orders, filed June 9, 2023, July 21, 2023 and August 15, 2023.
BACKGROUND
On October 12, 2005, a Los Angeles County Superior Court jury found Petitioner guilty of: (a) two counts of attempted murder in violation of California Penal Code sections 187(a) and 664; (b) kidnapping to commit robbery in violation of California Penal Code section 209(b)(1); (c) second degree robbery in violation of California Penal Code sections 211 and 212.5; (d) carjacking in violation of California Penal Code section 215(a); and (e) discharging a firearm from a motor vehicle in violation of California Penal Code section 12034(c). The jury found to be true firearm and gang allegations under California Penal Code sections 186.22(b)(1) and 12022.53(c)-(e)(1). The trial court sentenced Petitioner to 191 years to life in state prison (Petition, p. 2; Respondent's Lodgment [“Respondent's LD”] 2, pp. 1-2.)
On May 30, 2007, the California Court of Appeal reversed Petitioner's sentence, but otherwise affirmed (Respondent's LD 1). On September 19, 2007, the California Supreme Court granted Respondent's petition for review and ordered the California Court of Appeal to vacate its decision and reconsider the matter (Respondent's LD 2, p. 2; Respondent's LD 3). On October 9, 2008, the California Court of Appeal revised its opinion, now reversing only part of Petitioner's sentence, and the Court of Appeal otherwise affirmed (Respondent's LD 2, pp. 2-3, 24). On December 17, 2008, the California Supreme Court denied Petitioner's petition for review (Respondent's LDs 4, 5).
On May 18, 2009, Petitioner filed in this federal Court a petition for writ of habeas corpus, challenging his 2005 state conviction (see Villegas v. Uribe, CV 09-3516-MMM(VBK)). On December 21, 2010, this Court denied the petition on the merits and dismissed the action with prejudice (id.).
PETITIONER'S CONTENTION
Petitioner contends he is entitled “to be remanded back to superior court” for a hearing “to make a record of youth related mitigating factors, that will be given ‘great weight'” at a future parole hearing (Petition, p. 3).
STANDARD OF REVIEW
Federal habeas corpus relief may be granted “only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see Pulley v. Harris, 465 U.S. 37, 41 (1984). Mere errors in the application of state law are not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“it is not the province of a federal habeas corpus court to reexamine state-court determinations on state-law questions”); accord Pulley v. Harris, 465 U.S. at 41; see also Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (“state courts are the ultimate expositors of state law”).
The Court assumes arguendo the timeliness of Petitioner's claim. See Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th Cir. 2001), cert. denied, 535 U.S. 950 (2002) (court may deny on the merits an untimely claim that fails as a matter of law). The Court also need not determine whether Petitioner failed to exhaust available state court remedies. See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006) (habeas court may deny unexhausted claims that are not “colorable”). For the reasons discussed herein, Petitioner's claim does not constitute a “colorable” basis for habeas relief.
In Miller v. Alabama, 567 U.S. 460 (2012) (“Miller”), the Supreme Court held “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders.” Id. at 479. In 2013, the California Legislature passed Senate Bill 260 in response to Miller. Among other things, Senate Bill 260 enacted California Penal Code section 3051 (“Section 3051”), which generally provides that any individual serving a “to life” sentence imposed for a crime committed when the individual was under the age of twenty-five may obtain a “youth offender parole hearing” during the individual's twenty-fifth year of incarceration. Senate Bill 260 also amended California Penal Code section 4801 (“Section 4801”), which generally provides that, in considering the parole eligibility of such an individual, the Board of Parole Hearings should “give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.” See Cal. Penal Code § 4801(c).
In People v. Franklin, 63 Cal.4th 261, 269, 202 Cal.Rptr.3d 496, 370 P.3d 1053, cert. denied, 137 S.Ct. 573 (2016) (“Franklin”), the California Supreme Court determined that the enactment of Senate Bill 260 mooted a state prisoner's Eighth Amendment challenge to his sentence of fifty years to life in prison. The Franklin Court so determined because the prisoner would be entitled to a youthful offender parole hearing after serving twenty-five years and the Board of Parole Hearings would be required to “give great weight” to various mitigating factors pertaining to the prisoner's youth, thus bringing the prisoner's sentence into conformity with controlling case law, including Miller. Id. at 269. “For those juvenile offenders eligible for youth offender parole hearings, the provisions of Senate Bill No. 260 are designed to ensure they will have a meaningful opportunity for release no more than 25 years into their incarceration.” Id. at 277.
Petitioner claims that he is entitled to a youth offender parole hearing under Senate Bill 260 and Franklin, and Petitioner wishes to make a record of “youth related mitigating factors” (Petition, p. 3). Petitioner's claim relies solely on state law, for which federal habeas relief is unavailable. See Estelle v. McGuire, 502 U.S. at 6768 (federal habeas relief unavailable for alleged state law violations); Sandoval v. Koenig, 2022 WL 3567777, at *3 (C.D. Cal. June 30, 2022), adopted, 2022 WL 3566442 (C.D. Cal. Aug. 17, 2022) (claim that petitioner was denied youth offender parole status relied solely on state law and was not cognizable on federal habeas review); Brown v. Johnson, 2021 WL 6503864, at *3 (C.D. Cal. Dec. 9, 2021), adopted, 2022 WL 159730 (C.D. Cal. Jan. 18, 2022) (claim that petitioner did not receive proper youth offender parole hearing “alleges only a violation of state law, for which federal habeas relief is unavailable”).
Moreover, because success on Petitioner's claim would not necessarily result in his “immediate or speedier” release from confinement, this claim is not cognizable on federal habeas review. “Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983.” Muhammad v. Close, 540 U.S. 749, 750 (2004). Habeas corpus “is the exclusive remedy . . . for the prisoner who seeks ‘immediate or speedier release' from confinement.” Skinner v. Switzer, 562 U.S. 521, 525 (2011) (citation omitted). A challenge to the fact or duration of confinement which, if successful, would result in immediate or speedier release falls within the “core” of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 487-89 (1973); Nettles v. Grounds, 830 F.3d 922, 927-29 (9th Cir. 2016) (en banc), cert. denied, 137 S.Ct. 645 (2017). However, “if a state prisoner's claim does not lie at ‘the core of habeas corpus' [citation], it may not be brought in habeas corpus. ...” Nettles v. Grounds, 830 F.3d at 931 (citation omitted). A civil rights action pursuant to 42 U.S.C. section 1983 action is the exclusive remedy for state prisoners' claims that do not “lie at the core of habeas corpus.” Id.
Petitioner seeks to make a record of “youth related mitigating factors.” Even if Petitioner were to obtain the relief he seeks, it would not necessarily result in a shorter period of confinement. Therefore, Petitioner's claim does not lie at the “core” of federal habeas corpus, and Petitioner has failed to state a cognizable habeas claim. See Calderon v. Covello, 2023 WL 5420229, at *4 (N.D. Cal. Aug. 22, 2023) (no federal habeas jurisdiction over claim that petitioner was entitled to youth offender parole hearing because success on the claim would not necessarily result in speedier release); Stanford v. Horn, 2023 WL 4466417, at *2 (C.D. Cal. July 11, 2023) (no federal habeas jurisdiction over claim seeking youth offender parole hearing because success on the claim “would not necessarily provide Petitioner immediate release from confinement or shorten his sentence”); Saesee v. Lynch, 2023 WL 3380100, at *2 (E.D. Cal. April 25, 2023), adopted, 2023 WL 3996652 (C.D. Cal. June 14, 2023) (“Because petitioner seeks only to be granted a youth offender parole hearing, at which he may or may not be granted parole, success on the merits of the petition will not guarantee his speedier release and this court lacks jurisdiction.”); Brown v. Johnson, 2021 WL 6503864, at *4 (federal habeas review unavailable for claim seeking youth offender parole hearing because claim would not necessarily result in shortening the period of confinement).
The Court should decline to exercise its discretion to convert any portion of the present Petition into a civil rights complaint. “[A] habeas corpus action and a prisoner civil rights suit differ in a variety of respects - such as . . . filing fees, the means of collecting them, and restrictions on future filings - that may make recharacterization impossible or, if possible, disadvantageous to the prisoner compared to a dismissal without prejudice of his petition for habeas corpus.” Nettles v. Grounds, 830 F.3d at 935-36 (citations and internal quotations omitted); see also id. at 932 n.8 (describing differences between procedural requirements applicable to habeas corpus actions and to civil rights actions). Accordingly, conversion of the Petition into a civil rights complaint would be inappropriate. See Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005) (court relied on myriad differences between habeas actions and civil rights actions in affirming district court's refusal to recharacterize a habeas petition as a civil rights complaint); Jorgenson v. Spearman, 2016 WL 2996942, at *1 (C.D. Cal. May 22, 2016) (declining to convert a flawed habeas petition into a civil rights complaint “in light of the considerable procedural and substantive differences between habeas corpus and civil rights matters”); see also Pinson v. Carvajal, 69 F.4th 1059, 1076 (9th Cir. 2023) (conversion of flawed habeas petition into civil rights action is discretionary, not mandatory, and conversion is properly refused where the petition does not seek money damages, as well as where the habeas respondent would not be a proper civil rights defendant).
Furthermore, “a claim for violation of state law is not cognizable under § 1983.” Cornejo v. County of San Diego, 504 F.3d 853, 855 n.2 (9th Cir. 2007) (citation omitted); see also Parratt v. Taylor, 451 U.S. 527, 535 (1982), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Thus, because Petitioner's allegations of California law violations would fail to state a federal civil rights claim, any conversion of the Petition into a civil rights complaint would be futile. See Rutledge v. Lassen County Jail, 2021 WL 1062560, at *2 (E.D. Cal. Feb. 12, 2021), adopted, 2021 WL 1209742 (E.D. Cal. Mar. 31, 2021) (declining to convert habeas action to civil rights action where plaintiff failed to allege any cognizable claim); Yocom v. Allison, 2021 WL 215653, at *5 (E.D. Cal. Jan. 21, 2021), adopted, 2021 WL 4480564 (E.D. Cal. Sept. 30, 2021) (no conversion where, inter alia, petitioner alleged only state law violation).
Respondent also seeks dismissal of the Petition on the ground that Petitioner has not obtained authorization from the Ninth Circuit to file a “second or successive” petition, as assertedly required by 28 U.S.C. section 2244(b) (Motion, p.2). However, to the extent Petitioner's claim (which relies on statutes enacted in 2013) was unavailable to him at the time of his 2009 federal habeas proceeding, the claim would not appear to be “second or successive.” See Hill v. Alaska, 297 F.3d 895, 898-99 (9th Cir. 2002) (petitioner's parole-related claims were not “second or successive” where the “claims could not have been included in earlier [federal] petitions challenging his conviction and sentence”). Accordingly, this Court assumes, arguendo, that the present Petition is not “second or successive.”
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.