Opinion
Case No. 2:19-cv-01394-JVS-KES
05-24-2019
ARTHUR MORALES, Petitioner, v. SCOTT KERNAN, Respondent.
AMENDED REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Amended Report and Recommendation ("R&R") is submitted to the Honorable James V. Selna, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I.
INTRODUCTION
On February 19, 2019, Petitioner Arthur Morales ("Petitioner") constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (the "Petition"). (Dkt. 1.) Petitioner was sentenced to twelve years in prison after a jury convicted him of robbery with a firearm enhancement. People v. Morales, No. B256124, 2015 Cal. App. Unpub. LEXIS 682 (Jan. 29, 2015). The victim identified the robber as a "twenty-something year old Mexican male wearing a gray sweater," but he could not identify the robber in a photographic lineup. Id. at *3. The evidence against Petitioner included (1) fingerprints at the robbery scene that matched his, and (2) a check written to the victim found on Petitioner's person upon his arrest. Id. at *3-4.
Petitioner alleges two grounds for federal habeas relief: (1) the California courts erroneously denied Petitioner relief pursuant to Miller v. Alabama, 567 U.S. 460 (2012), in violation of his right to equal protection, and (2) the California courts erred in finding that Petitioner's revocation of earned sentence-reducing credits complied with the "some evidence" standard set forth in Superintendent v. Hill, 472 U.S. 445, 454 (1985). (Dkt. 1 at 6, 8.)
In Miller, the United States Supreme Court held that mandatory life without parole for juvenile homicide offenders violates the Eighth Amendment's prohibition on cruel and unusual punishments. 567 U.S. at 479. The Court found, "By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence," mandatory life without parole "poses too great a risk of disproportionate punishment." Id. Although Miller did not foreclose a sentencing court's ability to impose life without parole on a juvenile homicide defendant, the Court explained that the discretionary sentence must "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at 480.
Not seeing a connection between Miller and Petitioner's situation, the Court issued an order to show cause ("OSC") why (1) the Petition's first ground for relief should not be dismissed for (a) untimeliness and (b) failure to state a federal claim, and (2) the second ground for relief should not be dismissed for failure to state a claim upon which relief may be granted. (Dkt. 3.)
On April 15, 2019, the Court docketed Petitioner's response to the OSC. (Dkt. 5.) He clarified that his Miller-based equal protection claim is that all "mandatory adult sentences are unconstitutional due to scientific medical data," which the Supreme Court discussed in Miller as informing discretionary sentencing. (Id. at 1.) The Court understood this as an argument that adults and children alike are constitutionally entitled to discretionary sentencing. He also argued that California's "youthful offender law" expanded the holding of Miller to apply to people age twenty-five or younger. (Id. at 2.) Addressing his second ground for relief, Petitioner reiterated that his credit revocation (which was based on the constructive possession doctrine) violated Superintendent v. Hill. (Id.)
In its initial R&R, the Court understood this to refer to Senate Bill ("SB") 260. (Dkt. 7 at 3.) In his objections, Petitioner clarifies that he meant to refer to Assembly Bill ("AB") 1308. (Dkt. 8 at 2.) In 2014, SB 260 first created Youth Offender Parole; then, AB 1308 (effective January 1, 2018) expanded Youth Offender Parole to include people who were age of twenty-five or younger at the time of their crime. See In re Jenson, 24 Cal.App.5th 266, 277 (June 6, 2018) (explaining the statutory scheme). The following analysis is the same regardless.
Finding that Petitioner's response failed to address the defects identified in the OSC, the Court issued its initial R&R recommending that the Petition be denied. Petitioner filed objections (Dkt. 8), which are addressed below but do not change the Court's conclusion. The Court therefore recommends denying the Petition.
II.
DISCUSSION
A. Ground One Is Untimely and Fails to State a Claim If Based on Miller.
Petitioner alleges that he is entitled to "Miller v. Alabama relief." (Dkt. 1 at 6.) Ground One fails both because it is untimely and unsupported by the facts in Petitioner's case.
1. Petitioner Cannot Allege a Miller Claim.
Miller is inapplicable. Petitioner was twenty-six years old when sentenced (and twenty-five years old when the crime occurred), so he was not a juvenile for purposes of applying Miller. (Dkt. 1 at 1, 34 [date of birth June 27, 1987 and date of conviction March 12, 2014]); see Morales, 2015 Cal. App. Unpub. LEXIS 682, at *1 (robbery occurred on November 16, 2012). Moreover, Petitioner received a sentence of twelve years—not life without parole. (Id. at 1.) Therefore, Ground One does not state a claim for relief based on Miller.
To the extent Petitioner argues that the failure to expand Miller to adults or "youthful offenders" as defined by California law violates equal protection (an argument that Petitioner, as a twenty-six-year-old sentenced to twelve years in prison, was constitutionally entitled to the same discretionary sentencing considerations as the minor defendant in Miller (id. at 33)), this claim is also not cognizable on federal habeas review. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Petitioner is entitled to habeas relief only if the state court's decision on the merits "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court" or "(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Cullen v. Pinholster, 563 U.S. 170, 181 (2011). Thus, to warrant federal habeas relief, Petitioner must cite a Supreme Court case to which the California Court of Appeal acted contrary or unreasonably applied when it denied Ground One. He has not done so, and this Court is aware of no such case supporting Petitioner's novel arguments.
In his objections to the R&R, Petitioner argues that the California legislature extended Miller through AB 1308 to apply to those twenty-five years old and younger. (Dkt. 8 at 2.) AB 1308, however, is a California state law; although inspired by Miller and similar cases, see 2017 CA A.B. 1308 (NS), state law cannot extend Supreme Court precedent. As discussed below, state law claims are not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Middleton v. Cupp, 768 F. 2d 1083, 1085 (9th Cir. 1985) (habeas relief is not available for state law errors that are not of constitutional dimension).
Finally, California's mandatory firearm use enhancements have been upheld against Eighth Amendment challenges. See, e.g., Vallejo v. Lackner, No. 2:14-cv-07508 DOC (GJS), 2016 U.S. Dist. LEXIS 92354, at *38 (C.D. Cal. May 12, 2016).
2. Untimeliness.
a. AEDPA's Statute of Limitations.
This action is subject to AEDPA's statute of limitations. Lindh v. Murphy, 521 U.S. 320, 336 (1997) (holding that AEDPA applies to cases filed after its effective date of April 24, 1996). AEDPA provides as follows:
(d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d). Thus, AEDPA "establishes a 1-year time limitation for a state prisoner to file a federal habeas corpus petition." Jimenez v. Quarterman, 555 U.S. 113, 114 (2009).
The AEDPA limitations period is subject to statutory for the "time during which a properly filed application for State post-conviction or other collateral review ... is pending." 28 U.S.C. § 2244(d)(2). Petitioner is not entitled to statutory tolling, because he did not file any state habeas petitions until 2018, years after his AEDPA filing deadline expired, as discussed below.
The AEDPA limitations period is also subject to equitable tolling when an "extraordinary circumstance" prevents a diligent petitioner from filing a timely federal habeas petition. Holland v. Florida, 560 U.S. 631, 649 (2010). Petitioner does not seek equitable tolling, because Petitioner asserts that his claims arose when California AB 1308 became effective in 2018, not when he was sentenced in 2014. (Dkt. 5 at 2 ["Ground 1 is timely by the Miller enactment encompassing him on January 1, 2018."]).
b. Any Miller Claim of Sentencing Error is Untimely.
The date of Petitioner's judgment of conviction is March 12, 2014. (Dkt. 1 at 1.) Petitioner directly appealed his conviction in case no. B256124. Per the California Courts' website, the California Court of Appeal affirmed Petitioner's conviction on January 29, 2015, and the case was closed on April 6, 2015. These online records also indicate that Petitioner did not file a Petition for Review in the California Supreme Court.
Assuming that Petitioner's limitations period ran from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review," 28 U.S.C. § 2244(d)(1)(A), Petitioner's judgment would have become final in April 2015, at latest (i.e., after the expiration of his time to file a Petition for Review with the California Supreme Court). See Rule 8.500(e), Cal. Rules of Court ("A petition for review must be served and filed within 10 days after the Court of Appeal decision is final in that court."). Petitioner did not pursue his Miller claim in the California courts until January 2018; thus, his one-year AEDPA limitations period elapsed before any statutory tolling commenced.
Petitioner asserts that Ground One is timely because it arises under "newly enacted state law related to U.S. Supreme Court decisions ...." (Dkt. 1 at 14.) Miller v. Alabama was decided in 2012, however, and predates Petitioner's 2014 conviction and sentencing. Therefore, Miller does not introduce a "newly recognized" constitutional right under 28 U.S.C. § 2244(d)(1)(C).
In his objections, Petitioner argues that the statute of limitations should not run from "the Miller publishing date," but from the date "California legislatively acted on Miller" with the enactment of AB 1308. (Dkt. 8 at 2.) As discussed below, a state law cannot provide the basis for federal habeas review. Therefore, AB 1308 does not introduce a constitutional right "newly recognized" by the Supreme Court under 28 U.S.C. § 2244(d)(1)(C). See Young v. Pfeiffer, 2017 WL 8021753, at *4 (C.D. Cal. Dec. 29, 2017) (rejecting argument that AEDPA statute of limitations runs from time of amendment to Penal Code section 3051, because "a state statute is not an announcement by the Supreme Court recognizing a new federal constitutional right"). B. Ground One Fails to State a Federal Claim If Based on SB 620 or 260 , or AB 1308.
1. Procedural Background.
On January 28, 2018, Petitioner filed a motion for a sentence modification pursuant to California SB 620 and SB 260/AB 1308. (Dkt. 1 at 30-33.) SB 620, effective January 1, 2018, gave trial courts the discretion to strike Penal Code section 12022.53 firearm enhancement allegations. See People v. Arredondo, 21 Cal. App. 5th 493, 506 (2018). SB 260, enacted in response to Miller and effective January 1, 2014, created a parole eligibility mechanism via Penal Code section 3051 for juvenile offenders; AB 1308, effective January 1, 2018, extended eligibility to those who committed crimes at the age of twenty-five years or younger. See People v. Perez, 3 Cal.App.5th 612, 618 (2016); In re Jenson, 24 Cal.App.5th at 277. In his resentencing motion, Petitioner argued that under these laws, the superior court has discretion to strike the gun enhancement allegations (which the jury found true at his trial) and should do so because of his youth at the time of the robbery. (Dkt. 1 at 31.)
The motion was denied on February 26, 2018. (Id. at 44.) The superior court construed the motion as seeking both resentencing under SB 620 and parole under the "youthful offender" provisions of Penal Code section 3051. The superior court found "no basis for which the court can strike the gun allegation" and referred Petitioner to the parole board to pursue any parole-related relief administratively. (Id.)
On April 20, 2018, Petitioner filed a habeas petition with the California Court of Appeal, case no. B289517, arguing that the California courts should read Miller as giving state trial courts "inherent power" to resentence young offenders no matter the date or length of their initial sentence. (Id. at 24-25.) He sought a "Miller hearing due to the legislative expansion of the Miller class of youthful offenders which Petitioner now fits," presumably referring to AB 1308 because Petitioner was twenty-five at the time of the robbery. (Id. at 25.)
On April 27, 2018, the Court of Appeal denied the petition. (Id. at 21.) The court explained that SB 620 does not apply retroactively to judgments such as Petitioner's that became final before SB 620's effective date. The court also denied his claim to entitlement to a youthful offender parole hearing, because Petitioner failed "to demonstrate that he has exhausted his administrative remedies." (Id.)
On June 29, 2018, Petitioner filed a habeas petition in the California Supreme Court, raising the same ground for relief and adding a new one (i.e., Ground Two, discussed below). (Id. at 18-20.) The California Supreme Court summarily denied the petition on October 31, 2018. (Id. at 17.)
2. Claims Based on SB 620 or 260 or AB 1308 Are Not Federal.
If Ground One is construed as presenting the same claim for resentencing under SB 620 and parole consideration under SB 260/AB 1308 that Petitioner presented in his trio of state habeas petitions, then Ground One does not present a cognizable federal claim. A federal court may entertain an application for writ of habeas corpus "only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Errors in the application of state law—as opposed to alleged violations of the United States constitution or federal law—are not properly raised through a federal habeas petition. Estelle, 502 U.S. at 67-68.
To the extent that Petitioner tries to "federalize" Ground One by citing to Miller and the Equal Protection Clause (Dkt. 1 at 6), his efforts fail. As discussed above, any claim of Miller error affecting his 2014 sentence is both inapplicable and time-barred. Petitioner alleges no facts to support a claim that the state courts' denial of relief under SB 620 or SB 260/AB 1308 violated his right to equal protection. The Equal Protection Clause does not require that sentencing courts treat children and adults the same. To the contrary, the premise of Miller is that "children are constitutionally different from adults for purposes of sentencing." 567 U.S. at 471. C. Ground Two Fails to State a Claim Upon Which Relief May Be Granted.
Petitioner argues that the revocation of his earned sentence-reducing credits based on the finding that he constructively possessed the cell phone hidden in a lighting fixture in his cell, although his cellmate claimed ownership, violates the "some evidence" standard of Superintendent v. Hill. (Dkt. 1 at 47-51.)
The United States Supreme Court in Hill held that "revocation of good time does not comport with 'the minimum requirements of procedural due process' ... unless the findings of the prison disciplinary board are supported by some evidence in the record." Hill, 472 U.S. at 454 (quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (holding that federal due process requires procedural protections before a prisoner can be deprived of a state-created liberty interest in good time custody credits)). Even a single piece of evidence may be sufficient to meet the Hill standard, provided it has "sufficient indicia of reliability." Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003).
Courts have determined that a petitioner does not merit federal habeas relief when arguing that the doctrine of constructive possession does not satisfy Hill's "some evidence" standard. See, e.g., Torres v. Langford, 2017 WL 5900063, at *4 (C.D. Cal. Sept. 27, 2017) ("In the absence of direct evidence pointing to an inmate's guilt, the 'some evidence' standard of Hill may be satisfied by application of the constructive possession doctrine."); Pettis v. Asuncion, 2017 WL 927626, at *6-7 (C.D. Cal. Jan. 26, 2017) (on habeas, finding "some evidence" standard met where cell phone was found in petitioner's shared cell and his cellmate provided a declaration stating that petitioner did not know about the phone); Sharpe v. Kernan, 2018 WL 1258184, at *5 (S.D. Cal. Mar. 12, 2018) (on habeas, finding "some evidence" standard met based on constructive possession where weapon was found in a shared living space).
In his response to the OSC, Petitioner made no attempt to distinguish his second ground for relief from these authorities. (See Dkt. 5.) Petitioner's claim is factually identical to that of the petitioner in Pettis, and Petitioner's response to the OSC does not attempt any factual distinction. Compare Dkt. 1 at 50-51 (cell phone found in area of cell accessible to both occupants, cellmate accepted responsibility, but Petitioner lost credits due to constructive possession) with Pettis, 2017 WL 927626, at *6-7 (no constitutional violation where cell phone found in cell, cellmate accepted responsibility, and petitioner lost credits due to constructive possession).
In his objections to the initial R&R, Petitioner argues that his claim is distinguishable from the cases cited above because the cellphone was found a lighting fixture; he slept in the lower bunk while his cellmate slept in the top bunk, so his cellmate had easy access to the fixture (and cellphone) while he did not. (Dkt. 8 at 2.) This does not provide a meaningful distinction because constructive possession does not depend on ease of access. See, e.g., Khan v. Sanders, 2010 WL 4923998, at *3 (C.D. Cal. Nov. 9, 2010) (where weapons were found in the air vent of the cell that petitioner was housed in for six days and shared with two other cellmates, finding that the location of the weapons in the cell satisfies the "some evidence" standard); Guillen v. Long, 2012 WL 6021432, at *3 (C.D. Cal. Sept. 6, 2012) (where cellmate "customarily used the top bunk" where contraband was found, finding "some evidence" standard met because "Petitioner nevertheless could have accessed the contents of that bunk").
Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court may summarily dismiss the claim because it has already been ruled on and denied by the federal courts. See Rule 4 ("If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition ....").
To the extent Petitioner asks this Court to find the constructive possession doctrine "unconstitutionally vague" (Dkt. 1 at 1), Petitioner fails to cite any established Supreme Court law to which the California Supreme Court either acted contrary or unreasonably applied. 28 U.S.C. § 2254(d). // // // //
III.
CONCLUSION
IT IS THEREFORE RECOMMENDED that the District Court issue an Order: (1) approving and accepting this Amended R&R; and (2) directing that Judgment be entered denying the Petition and dismissing this action with prejudice.
DATED: May 24, 2019
/s/_________
KAREN E. SCOTT
UNITED STATES MAGISTRATE JUDGE