Opinion
CV 21-1033-PA(E)
04-16-2021
BARRY LEE BROOKINS, Petitioner, v. SECRETARY OF CDCR, Respondent.
REPORT AND RECOMMENDATION UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable Percy Anderson, 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 February 3, 2021, Petitioner filed a “Petition Under 28 U.S.C. Section 2254 For Writ of Habeas Corpus By a Person in State Custody.” On March 22, 2021, Respondent filed a “Motion to Dismiss Petition, etc.” (“Motion to Dismiss”), contending that the Petition is untimely and fails to allege any cognizable federal claim. On April 5, 2021, Petitioner filed a “Motion in Opposition to Respondent[']s Dismissal of Petitioner's Habeas Corpus, etc., ” which constitutes Petitioner's Opposition.
BACKGROUND
On December 17, 2015, Petitioner pled nolo contendere in the Los Angeles County Superior Court to one count of second degree robbery and one count of felon in possession of a firearm (Petition, ECF Dkt. No. 1, p. 1; Respondent's Lodgment 1, ECF Dkt. No. 10-1, pp. 23-24; Respondent's Lodgment 3, ECF Dkt. No. 10-3). Petitioner admitted suffering a prior conviction alleged as a strike under California's Three Strikes Law, California Penal Code sections 667(b) - (i) and 1170.12 (Respondent's Lodgment 1, ECF Dkt. No. 10-1, p. 24; Respondent's Lodgment 3, ECF Dkt. No. 10-3). Petitioner also admitted an enhancement for a prior serious felony conviction within the meaning of California Penal Code section 667(a) and an enhancement for personal use of a firearm within the meaning of California Penal Code section 12022.53(b) ((Respondent's Lodgment 1, ECF Dkt. No. 10-1, p. 24; Respondent's Lodgment 3, ECF Dkt. No. 10-3).
On December 8, 2016, the Superior Court sentenced Petitioner to a term of six years on the robbery count (Respondent's Lodgment 1, ECF Dkt. No. 10-1, pp. 26). The sentencing court imposed a consecutive term of ten years on the personal use enhancement and a consecutive term of five years on the prior serious felony enhancement (Respondent's Lodgment 1, ECF Dkt. No. 10-1, pp. 26-27). The court also imposed a consecutive term of one year and four months for the felon in possession offense (Respondent's Lodgment 1, ECF Dkt. No. 10-1, p. 27). Thus, Petitioner received a total prison term of twenty-two years and four months (id., pp. 26-27; see Petition, ECF Dkt. No. 1, p. 1 & Ex. A). Petitioner did not appeal (Petition, ECF Dkt. No. 1, p. 2).
The court sentenced Petitioner to the three-year “mid term” for robbery, see Cal. Penal Code section 213(a)(2), doubled pursuant to the “second strike” provision of California's Three Strikes Law, California Penal Code sections 667(e)(1) and 1170.12(c)(1) (see Petition, ECF Dkt. No. 1, p. 1 & Exs A, B); Respondent's Lodgment 1, ECF Dkt. No. 10-1, p. 26). Although it appears the prosecution alleged additional strikes, the court apparently granted a prosecution motion to dismiss the additional strikes on the ground that all of the strikes alleged “occurred in the same case, same occurrence” (see Respondent's Lodgment 10-1, p. 24). Minute Orders show that the case originally was filed as a “third strike case, ” and that Petitioner “was facing a life sentence if convicted”; however, at the time of sentencing the case was characterized as a “second strike case” (see Respondent's Lodgment 1, ECF DKt. No. 10-1, pp. 6, 18, 19, 22, 26).
During 2019-20, Petitioner did file several state court habeas corpus petitions (Respondent's Lodgments 2, 4, 6, 8).
Petitioner's contentions are contained in an attachment to the Petition (see Petition, ECF DKt. No. 1, pp. 61-94).
Petitioner contends:
1. Petitioner's sentence allegedly violated California Penal Code section 654;
2. Petitioner allegedly is entitled to early parole consideration under Proposition 57;
3. Petitioner allegedly is entitled to resentencing under Senate Bill 620;
4. Petitioner allegedly is entitled to resentencing under Senate Bill 1393; and
5. Petitioner's sentence allegedly violates the Eighth Amendment and equal protection.
DISCUSSION
I. Petitioner's Claims of Alleged State Law Sentencing Error Are Not Cognizable on Federal Habeas 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). Mere errors in the application of state law are not cognizable on federal habeas review. Id.; 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. 37, 41 (1984).
Matters relating to sentencing and serving of a sentence generally are governed by state law and do not raise a federal constitutional question. See Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989), cert. denied, 499 U.S. 963 (1991); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986); Sturm v. California Adult Authority, 395 F.2d 446, 448 (9th Cir. 1967), cert. denied, 395 U.S. 947 (1969); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts”) (original emphasis).
A. California Penal Code Section 654 Claim
California Penal Code section 654(a) provides, in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” Section 654 forbids the imposition of multiple punishments for offenses committed during a single course of conduct and incident to a single objective. See People v. Perez, 23 Cal.3d 545, 551, 153 Cal.Rptr. 40, 591 P.2d 63 (1979). Petitioner's claim that his sentence violated section 654 alleges only a violation of state law not cognizable on federal habeas review. See, e.g., Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir. 1989) (rejecting as not cognizable petitioner's contention the California state court violated section 654 by imposing two consecutive terms for rape in concert based on petitioner's single act of standing guard while others raped the victim).
B. Challenge to Characterization of Robbery Conviction; Proposition 57 Claim
On November 8, 2016, prior to Petitioner's sentencing, the California electorate approved Proposition 57, an initiative measure effective November 9, 2016. Among other things, Proposition 57 provides that “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” Cal. Const., Art. I, § 32(1)(a). Proposition 57 also confers upon the California Department of Corrections and Rehabilitation (“CDCR”) the authority to: (a) award credits “for good behavior and approved rehabilitative or educational achievements”; and (b) “adopt regulations in furtherance of these provisions. . . .” Id., §§ 32(a)(2), 32(b). In May of 2018, CDCR issued final implementing regulations which provide that a “determinately-sentenced nonviolent offender” may be eligible for accelerated parole consideration by the California Board of Parole Hearings. See Cal. Code Regs., tit. 15, §§ 3490(a), 3491. The definition of an “determinately-sentenced nonviolent offender” excludes an inmate currently serving a term of incarceration for a “violent felony.” Cal. Code Regs., tit. 15, §§ 3490(a)(1)(5), (6). A “violent felony” is a “crime or enhancement as defined in subdivision (c) of Section 667.5 of the Penal Code.” Cal. Code Regs., tit. 15, § 3490(c). Section 667.5(c) defines robbery as one such “violent felony.” See Cal. Penal Code § 667.5(c)(9).
Petitioner contends that he nevertheless should be entitled to early parole consideration under Proposition 57. Petitioner argues that, because robbery assertedly is not deemed a “crime of violence” under federal sentencing standards, the CDCR implementing regulations supposedly are void (see Petition, ECF Dkt. No. 1, pp. 76-84).Petitioner's arguments concern the interpretation and application of state law, and hence fail to raise any issue cognizable on federal habeas corpus. See Miller v. Vasquez, 868 F.2d at 1118-19; see also Wilson v. Corcoran, 562 U.S. at 5; Estelle v. McGuire, 502 U.S. at 67-68 (1991); see also Sherman v. Director of Corrections, 2020 WL 6083670, at *3 (C.D. Cal. Aug. 17, 2020), adopted, 2021 WL 1080512 (C.D. Cal. Mar. 18, 2021) (“The fact that [petitioner's] robbery offenses may not constitute crimes of violence for purposes of federal immigration and federal sentencing statutes[] does not impact whether they qualify as violent felonies for purposes of Proposition 57. The latter is a state law issue. . . .”); Sherman v. Diaz, 2020 WL 1529451, *2 (C.D. Cal. Mar. 30, 2020) (rejecting claim that, because second degree robbery is not violent felony under federal statute, state robbery conviction qualifies for relief under Proposition 57).
In the Reply, Petitioner characterizes his claim that robbery is not a violent felony as a separate ground for relief (see Reply, ECF Dkt. No. 13, p. 9). However, Petitioner's Proposition 57 claim depends on his argument that robbery is not a violent felony (see Reply, ECF Dkt. No. 13, p. 11). Regardless, as discussed herein, Petitioner alleges only an error of state law not cognizable on federal habeas corpus.
Indeed, district courts in all of the federal districts in California have ruled that prisoners' claims of eligibility for accelerated parole consideration under Proposition 57 fail to raise a cognizable federal issue. See, e.g., Kitchen v. Jaime, 2021 WL 597874, at *7 (C.D. Cal. Feb. 16, 2021); Johnson v. Federal Court Judges, 2020 WL 758787, at *5 (C.D. Cal. Feb. 14, 2020); Rodriguez v. Neuschmid, 2019 WL 6251237, at *1 (N.D. Cal. Nov. 21, 2019); Inman v. Koenig, 2019 WL 7484747, at *3 (E.D. Cal. Nov. 15, 2019), adopted, 2020 WL 58273 (E.D. Cal. Jan. 6, 2020); Blanco v. Asuncion, 2019 WL 2144452, at *3 (S.D. Cal. May 16, 2019), adopted, 2019 WL 3562215 (S.D. Cal. Aug. 6, 2019).
C. Senate Bill 620 Claim
At the time of Petitioner's 2016 sentencing, former California Penal Code section 12022.53(h) provided that a sentencing court “shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.” See former Cal. Penal Code § 12022.53(h); People v. Gonzalez, 43 Cal.4th 1118, 1135, 77 Cal.Rptr.3d 569, 184 P.3d 702, 705 (2008). Thus, at the time Petitioner was sentenced, the section 12022.53 enhancement was mandatory. See People v. Thomas, 35 Cal.4th 635, 644, 27 Cal.App.3d 2, 109 P.3d 564 (2005).
In 2017, California enacted Senate Bill 620 (Cal. Stats. 2017, ch. 682, eff. Jan. 1, 2018), which amended California Penal Code sections 12022.5 and 12022.53 to give discretion to the sentencing court to strike firearm enhancements in the interest of justice. See Cal. Penal Code, §§ 12022.5(c), 12022.53(h); People v. Johnson, 32 Cal.App. 5th 26, 67, 243 Cal.Rptr.3d 586 (2019). These amendments became effective on January 1, 2018.
Petitioner's claim that he is entitled to resentencing under Senate Bill 620 alleges only a state law claim not cognizable on federal habeas review. See Godfrey v. Warden PVSP, 2020 WL 3544980, at *2 (N.D. Cal. June 30, 2020) (state court's alleged misapplication of Senate Bill 620 does not present a federal habeas claim); Maldonado v. Koenig, 2019 WL 3530316, at *2 (E.D. Cal. Aug. 2, 2019) (same).
Furthermore, California courts have held that Senate Bill 620 applies retroactively only to criminal judgments that were not final as of January 1, 2018 (unless the defendant is subject to resentencing under some other law). See People v. Baltazar, 57 Cal.App. 5th 334, 271 Cal.Rptr.3d 296, 301-02 (2020); People v. Hargis, 33 Cal.App. 5th 199, 209-10, 244 Cal.Rptr.3d 745 (2019); People v. McDaniels, 22 Cal.App. 5th 420, 424, 231 Cal.Rptr.3d 443(2018); see also Guerrero v. Sherman, 2020 WL 4938366, at *20 (C.D. Cal. June 30, 2020) (petitioner not entitled to habeas relief under Senate Bill 620 where judgment became final prior to Bill's effective date); Sheppard v. Johnson, 2019 WL 5773664, at *4-5 (C.D. Cal. Oct. 7, 2019), adopted, 2019 WL 5748308 (C.D. Cal. Nov. 1, 2019) (same); Chavez v. Baughman, 2018 WL 5734654, at *1-2 (C.D. Cal. Oct. 28, 2018) (same).
Petitioner does not contend, and the record does not show, that resentencing would be appropriate under some other law.
Because Petitioner did not appeal, Petitioner's conviction and sentence ordinarily would have become final sixty days after Petitioner's December 8, 2016 sentencing. See Cal. Ct. R. 8.308(a). However, a state court has held that “a case is not final for purposes of determining the retroactivity and application of a new decision addressing a federal constitutional right until direct appeal is no longer available in the state courts, and the time for seeking a writ of certiorari [in the United States Supreme Court] has lapsed or a timely filed petition for that writ has been denied.” In re Richardson, 196 Cal.App.4th 647, 664, 126 Cal.Rptr.3d 720 (2011) (citation omitted). Even if this rule applies here, the ninety-day period for Petitioner's filing of a petition for writ of certiorari expired in May of 2017, well before the January 1, 2018 effective date of Senate Bill 620. See Sup. Ct. R. 13(1). Therefore, according to California state court decisional law, Petitioner is not entitled to resentencing under Senate Bill 620. Cf. Godfrey v. Warden PVSP, 2020 WL 3544980, at *1 (N.D. Cal. June 30, 2020) (under California law, for purposes of issue of retroactivity of Senate Bill 620 where petitioner did not appeal, petitioner's case did not become final until expiration of sixty days following judgment plus ninety day period for filing certiorari petition). This federal Court cannot properly reexamine the correctness of the state courts' rulings regarding the non-retroactivity of Senate Bill 620. See Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) (“we have repeatedly held that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions”) (citation and internal quotations omitted); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (“state courts are the ultimate expositors of state law”); Godfrey v. Warden PVSP, 2020 WL 3544980, at *1 (federal habeas court unable to review correctness of state court decision that Senate Bill 620 was not retroactive).
The Court of Appeal in In re Richardson stated that “[i]t has long been the rule in federal and California courts that a case is not final for purposes of determining the retroactivity and application of a new decision addressing a federal constitutional right until direct appeal is no longer available in the state courts, and the time for seeking a writ of certiorari has lapsed or a timely filed petition for that writ has been denied.” In re Richardson, 196 Cal.App.4th at 664 (citations omitted; original emphasis). “However, while the retroactivity of a United States Supreme Court opinion is a matter of federal law, state courts independently determine whether a state court decision addressing a matter of state law is retroactive.” Id. (citation omitted). The court declined to resolve “the question of whether the potential availability of petitioning for a writ of certiorari should affect the retroactivity of a state Supreme Court decision that does not involve a federal constitutional right.” Id.; see 28 U.S.C. § 1257; but see People v. Covarrubias, 1 Cal. 5th 838, 935, 207 Cal.Rptr.3d 228, 378 P.3d 615 (2016) (ninety-day period applicable where issue was retroactivity of amendment to state statute governing restitution fines). In the present case, even giving Petitioner the benefit of the extended ninety-day period, Petitioner's conviction and sentence became final long before the effective date of Senate Bill 620.
D. Senate Bill 1393 Claim
“On September 30, 2018, the Governor signed Senate Bill 1393 which, effective January 1, 2019, amends 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.” People v. Garcia, 28 Cal.App. 5th 961, 971, 239 Cal.Rptr.3d 558 (2018) (citation omitted). Petitioner's claim of entitlement to resentencing under Senate Bill 1393 alleges only a state law claim not cognizable on federal habeas review. See Bush v. Davis, 2020 WL 7043882, at *2 (N.D. Cal. Dec. 1, 2020) (claim that state courts violated petitioner's rights by denying resentencing under Senate Bill 1393 “involves a matter of state law and is not cognizable on federal habeas review”); Bonton v. Sacramento County Superior Court, 2020 WL 2857957, at *1 (E.D. Cal. Apr. 6, 2020), adopted, 2020 WL 2849970 (E.D. Cal. June 2, 2020) (claim under Senate Bill 1393 “implicates only an error of state law and does not otherwise give rise to a federal question”); Burchett v. Martel, 2020 WL 1847131, at *2 (C.D. Cal. Mar. 11, 2020, adopted 2020 WL 1820518 (C.D. Cal. Apr. 10, 2020) (petitioner's allegations regarding Senate Bill 1393 involve an alleged misapplication of state law and “[a]s such, they fail to state a cognizable federal claim.”); O'Neil v. Burton, 2019 WL 6915690, at *2 (December 19, 2019), adopted, 2020 WL 363352 (E.D. Cal. Jan. 22, 2020) (“petitioner's effort to obtain the benefit of California Senate Bill 1393 implicates state law only, ” and therefore federal habeas relief is unavailable); Tequida v. Spearman, 2019 WL 6840397, at *1 (S.D. Cal. Dec. 16, 2019) (claim that petitioner was entitled to resentencing under Senate Bill 1393 presented only a state law claim for which federal habeas review is unavailable).
Furthermore, Senate Bill 1393 applies retroactively only to judgments of conviction not yet final on the statute's effective date of January 1, 2019. People v. Garcia, 28 Cal.App. 5th at 971-72. As discussed above, Petitioner's conviction and sentence became final well before that date. As discussed above, this Court cannot revisit the retroactivity rulings of state courts. See Haney v. Muniz, 2020 WL 1988260, at *23 (C.D. Cal. Feb. 7, 2020), adopted, 2020 WL 3317604 (C.D. Cal. June 17, 2020) (claim that California courts incorrectly determined non-retroactivity of Senate Bill 1393 “not cognizable on federal habeas review”).
II. Petitioner's Constitutional Challenges to His Sentence Fail as a Matter of Law.
Petitioner appears to contend that the imposition of the ten-year firearm use enhancement and the five-year prior serious felony conviction enhancement violated the Eighth Amendment (see Petition, ECF Dkt. No. 1, pp. 70, 72). Petitioner's apparent contention fails as a matter of law. The United States Supreme Court has rejected constitutional disproportionality challenges to lengthier sentences imposed for crimes far less grave than Petitioner's crimes. See, e.g., Ewing v. California, 538 U.S. 11 (2003) (recidivist sentence of 25 years to life for the non-violent theft of three golf clubs); Lockyer v. Andrade, 538 U.S. 63 (2003) (recidivist sentence of 50 years to life for two non-violent petty thefts); Harmelin v. Michigan, 501 U.S. 957 (1991) (non-recidivist sentence of life without the possibility of parole for possession of more than 650 grams of cocaine); Hutto v. Davis, 454 U.S. 370 (1982) (sentence of 40 years for possession and distribution of approximately nine ounces of marijuana); Rummel v. Estelle, 445 U.S. 263 (1980) (recidivist sentence of life with the possibility of parole for obtaining $120.75 by false pretenses, where prior convictions were for passing a forged check in the sum of $28.36 and fraudulently using a credit card to obtain $80 worth of goods or services).
Petitioner also generally invokes the due process and equal protection clauses at various places in the Petition and the Reply (see Petition, ECF Dkt. No. 1, pp. 70, 72, 89, 91; Reply, ECF Dkt. No. 9, 11, 12). However, a habeas petitioner may not “transform a state law issue into a federal one” merely by invoking general principles of federal constitutional law. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir.), cert. denied, 522 U.S. 881 (1997). Petitioner's vague and conclusory references to general constitutional principles do not suffice to state any claim for federal habeas relief. See James v. Borg, 24 F.3d 20, 26 (9th Cir.), cert. denied, 513 U.S. 935 (1994).
In the Reply, Petitioner confusingly alleges that the sentencing court unlawfully altered Petitioner's sentence by nunc pro tunc order (see Reply, ECF Dkt. No. 13, p. 10). The record refutes any such allegation. Although the minute order concerning the sentencing proceedings on December 8, 2016 does state that the minute order was amended nunc pro tunc, a later entry on the same minute order states that no nunc pro tunc order was required because the unidentified correction was made the same day (see Respondent's Lodgment 10-1, pp. 26-27). Petitioner's confused allegation that the court unlawfully altered Petitioner's sentence by adding a second firearm enhancement (see Reply, ECF Dkt. No. 13, p. 10) is also belied by the record, which shows no such alteration. Petitioner's sentence did include a term imposed for the offense of possession of a firearm by a felon, but this offense is a substantive crime, not a sentence enhancement. See Cal. Penal Code § 29800(a)(1). Petitioner's vague and confused allegations do not merit federal habeas relief. See James v. Borg, 24 F.3d at 26.
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) granting the Motion to Dismiss; and (3) dismissing the Petition with prejudice.
The Court has read, considered and rejected on the merits all of Petitioner's substantive arguments. The Court has discussed Petitioner's principal substantial arguments herein.
In light of this recommended disposition, the Court need not, and does not, reach the issue of the timeliness of the Petition.
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.
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).