Opinion
Luis Mariano Sanchez, Petitioner, Pro se, Los Angeles, CA.
For Kathleen Allison, Warden (A), Respondent: Julie Ann Harris, CAAG - Office of the Attorney General, California Department of Justice, Los Angeles, CA.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CARLA M. WOEHRLE, United States Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Josephine L. Staton, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California. For reasons stated below, the petition for habeas corpus relief should be denied and this action dismissed with prejudice.
BACKGROUND AND PROCEEDINGS
In a one-count information filed on April 28, 2009, in California Superior Court, Los Angeles County, Case No. LA061278, Petitioner Luis Mariano Sanchez was charged with felony grand theft of personal property, in violation of California Penal Code section 487(a), for unlawfully taking a leaf blower and weed wacker valued in excess of four hundred dollars. [Lodged Document (" Lodg.") 1.] On September 10, 2009, Petitioner entered a plea of nolo contendere to this count, and was sentenced to state prison for a term of three years imprisonment. [Lodg. 2-4.] He did not appeal.
The information also alleged prior convictions. In light of Petitioner's plea to a felony count, the superior court struck a prior allegation. [Lodg. 3.]
On May 3, 2010, Petitioner filed a petition for writ of habeas corpus in the superior court seeking a sentence reduction to one year based on an alleged revision of Penal Code section 487(a) making his crime a misdemeanor. [Lodg. 5.] On May 4, 2010, the superior court denied the petition in a one-page order as follows:
Petition for writ of habeas corpus is denied for the following reasons:
On September 10, 2009, Petitioner entered a plea of No Contest to Count 1, a felony violation of Penal Code Section 487(a). He was sentenced to the high term of three years in state prison. He was remanded on that sentence on September 14, 2009.
Because Petitioner was sentenced to state prison, the crime of Penal Code Section 487(a) remains a felony for all times and purposes.
[Lodg. 6.]
Petitioner raised the same claim in a habeas petition filed May 18, 2010 in California Court of Appeal Case No. B224459. [Lodg. 7.] The court of appeal denied the petition in an unpublished order as follows:
The petition for writ of habeas corpus has been read and considered.
The petition is denied for failure to state sufficient facts demonstrating entitlement to the relief requested. (See People v. Duvall ( 1995) 9 Cal.4th 464, 474-75, 37 Cal.Rptr.2d 259, 886 P.2d 1252; see also Penal Code § 489(b).)
[Lodg. 8.]
Petitioner again raised the same claim in a habeas petition filed July 23, 2010, in California Supreme Court Case No. S184714. [Lodg. 9.] On September 1, 2010, the state supreme court denied the petition without comment or citation to authority. [Lodg. 10.]
Petitioner, proceeding pro se, filed the present Petition for Writ of Habeas Corpus by a Person in State Custody (" Pet.") on October 29, 2010. [Docket no. 1.] On December 6, 2010, Respondent filed an Answer (" Ans.") and lodged state court documents. [Docket nos. 10, 11, 12, 14, 15.] Petitioner has not filed a Reply.
PETITIONER'S CLAIM
Petitioner does not challenge his conviction, the validity of his plea, or his sentence as originally imposed. Instead, he reiterates the claim raised in his state habeas petitions, as follows:
As per revised P.C. § 487(a) pursuant to SB-18, the petitioner's felony is now misdemeanor. Under equal protection clause of the 14th amendment to the U.S. Constitution . . . the petitioner request the court to re-sentence as per SB-18.
[Pet. at 5 and Exhibit A.]
STANDARD OF REVIEW
A federal court may review a habeas petition by a person in custody under a state-court judgment " only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Federal habeas relief is not available for state-law errors. Swarthout v. Cooke, 562 U.S. 216, __, 131 S.Ct. 859, 861, 178 L.Ed.2d 732 (2011)(per curiam)(citing Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)). Even if the federal court finds a state-court error of constitutional magnitude, habeas relief is not available unless the error " had substantial and injurious effect or influence in determining the jury's verdict." Fry v. Pliler, 551 U.S. 112, 116, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007 )(quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)).
Also, under the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"), a federal court may not grant habeas relief on a claim adjudicated on its merits in state court unless the adjudication: (1) resulted in a decision contrary to, or involving " an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) resulted in a decision " 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).
" Clearly established federal law" under the AEDPA means federal law as clearly defined by Supreme Court holdings at the time of the state-court decision. See Cullen v. Pinholster, 131 S.Ct. 1388, 1399, 179 L.Ed.2d 557 (2011); Knowles v. Mirzayance, 556 U.S. 111, 122, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009). While only Supreme Court law is binding, " circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011); but see Marshall v. Rodgers, 133 S.Ct. 1446, 1450, 185 L.Ed.2d 540 (2013)(circuit precedent may not " be used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that this Court has not announced").
In determining whether a decision is " contrary to" clearly established federal law, a reviewing court must evaluate " whether the decision 'applies a rule that contradicts [such] law' and how the decision 'confronts [the] set of facts that were before the state court.'" Pinholster, 131 S.Ct. at 1399 (quoting Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). An " unreasonable application" of law under § 2254(d)(1) is " 'different from an incorrect application'" of that law. Harrington v. Richter, 562 U.S. 86,, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011)(quoting Williams, 529 U.S. at 410). " An 'unreasonable application' must be 'objectively unreasonable, ' not merely wrong; even 'clear error' will not suffice." White v. Woodall, 134 S.Ct. 1697, 1701, 188 L.Ed.2d 698 (2014 )(quoting Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). Similarly, a state-court decision based on a factual determination is not " unreasonable" under § 2254 (d)(2) " merely because the federal habeas court would have reached a different conclusion in the first instance." Burt v. Titlow, 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013 )(quoting Wood v. Allen, 558 U.S. 290, 301, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010)).
The AEDPA reasonableness standard under § 2254(d) thus requires a high level of deference to state-court adjudications of federal claims, such that a state decision finding a claim to lack merit precludes federal habeas relief so long as " 'fairminded jurists could disagree' on the correctness of the state court's decision." Richter, 131 S.Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)); see also Titlow, 134 S.Ct. at 16 (" AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court. . . . We will not lightly conclude that a State's criminal justice system has experienced the 'extreme malfunctio[n]' for which federal habeas relief is the remedy." ( quoting Richter, 131 S.Ct. at 786)).
APPLICATION TO PETITIONER'S CLAIM
To determine whether and how to apply the AEDPA standard in reviewing a particular claim for habeas relief, federal courts generally look to the last reasoned state-court decision addressing the claim. See Stanley, 633 F.3d at 859 (" We review 'the state court's last reasoned decision.'" (quoting Maxwell v. Roe, 606 F.3d 561, 568 (9th Cir. 2010))); see also Ylst v. Nunnemaker, 501 U.S. 797, 804, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991)(adopting presumption that reviewing federal court " looks through" unexplained state court orders to last reasoned decision); Cannedy v. Adams, 706 F.3d 1148, 1156-59 (9th Cir. 2013)(" look through" practice applies on AEDPA review if California Supreme Court summarily denies either direct or collateral review of claim adjudicated by lower court), amended on other grounds on denial of rehearing, 733 F.3d 794, cert. denied, 134 S.Ct. 1001, 187 L.Ed.2d 863 (2014).
In Petitioner's case, this court should " look through" the state supreme court's summary denial of Petitioner's claim to the brief but reasoned decision by the court of appeal. The court of appeal denied the claim " for failure to state sufficient facts demonstrating entitlement to the relief requested, " citing both Duvall, 9 Cal.4th at 474-75 (1995) and Penal Code § 489(b)(which states that grand theft is generally punishable as either a misdemeanor or a felony). [Lodg. 8.] Respondent contends that the court of appeal's denial was a decision on the merits and does not assert procedural bar. [Ans. at 1, 7.] A fair reading of the state court decision supports Respondent's contention, and the AEDPA standard accordingly applies to review of Petitioner's claim. As discussed below, applying the AEDPA standard, this court should defer to the court of appeal's decision and deny relief.
In some circumstances, denial of a state habeas petition with a Duvall citation may be construed as a decision that the petition was procedurally defective owing to inadequate pleading rather than as a decision on the merits. See, e.g., Brown v. Valenzuela, CV 12-5321-DDP(MAN), 2014 WL 1343285, at *3 (C.D. Cal. Jan. 31, 2014). In such cases, the denial does not merit AEDPA deference, and the federal habeas court applies de novo review. Here, however, it seems clear that the court of appeal's denial of the petition " for failure to state sufficient facts demonstrating entitlement to the relief requested" reflected a substantive judgement on the prima facie lack of merit in Petitioner's claim. See Duvall, 9 Cal.4th at 474-75 (habeas petition evaluated by asking whether, assuming petition's factual allegations are true, petitioner would be entitled to relief; " If no prima facie case for relief is stated, the court will summarily deny the petition."). This view of the denial as a merits decision is bolstered here by the court of appeal's additional substantive citation to Penal Code section 489(b), the California statute prescribing the punishment for grand theft.
DISCUSSION
As noted above, based on his plea, Petitioner was convicted in September of 2009 for grand theft under Penal Code section 487(a) and a felony sentence was imposed under Penal Code section 489(b). Petitioner contends that the definition of grand theft in section 487(a) was changed when the state legislature raised the monetary amount required for grand theft (from $400 to $950) in " Senate Bill 18, " that this redefinition should be applied retroactively to reduce his felony conviction to a misdemeanor (and his three-year sentence to a one-year sentence), and that failure to do so implicates his federal constitutional rights under the Equal Protection Clause of the Fourteenth Amendment.
This claim fails for multiple reasons. First, contrary to Petitioner's contention, Senate Bill 18, enacted in October 2009 (before Petitioner's conviction became final), did not change the definition of grand theft in section 487(a). See People v. Wade, 204 Cal.App.4th 1142, 1151, 139 Cal.Rptr.3d 529 (2012). Rather, the monetary threshold for grand theft was raised (from $400 to $950) in Assembly Bill 2372, which was filed with the Secretary of State on September 30, 2010, well after Petitioner's conviction became final. See 2010 Cal. Legis. Serv. Ch. 693 (A.B. 2372)(West); Wade, id.
Second, even construing Petitioner's claim as referring to Assembly Bill 2372 rather than Senate Bill 18, his claim still fails. Under California law, when the California legislature amends a law so as to lessen punishment, without explicitly stating that the amendment applies retroactively, it is " an inevitable inference" that the legislature intended to apply the lesser punishment " to every case to which it constitutionally could apply, " and such an amended statute lessening punishment " can be constitutionally applied to acts committed before its passage provided the judgment convicting the defendant is not final." In re Estrada, 63 Cal.2d 740, 744-45, 48 Cal.Rptr. 172, 408 P.2d 948 (1965); see also People v. Vinson, 193 Cal.App.4th 1190, 1195-99, 123 Cal.Rptr.3d 625 (2011)(discussing the Estrada rule and its application to statutes amending punishment). In Wade, the California Court of Appeal applied the Estrada rule to hold that Assembly Bill 2372's amendment to Penal Code section 487(a) applied in a case in which the jury had been instructed under the old definition of grand theft (involving property valued over $400), but the amendment redefining grand theft (involving property valued over $950) was enacted before the defendant's conviction became final. Wade, 204 Cal.App.4th at 1150-53.
The court of appeal did not apply the amended Penal Code section 487(a) retroactively in Petitioner's case. However, Petitioner's case differs in several ways from Wade. Most significantly, unlike the circumstances in Wade, Vinson, and Estrada, Petitioner's conviction was final before section 487(a) was amended. Furthermore, while the defendant in Wade was convicted by a jury that had been instructed with the prior definition of grand theft, Petitioner was convicted pursuant to a plea agreement (under which a priors allegation was dropped), and, although his plea to " felony grand theft" included the definition of grand theft at that time (as theft of property valued over $400), there is nothing in the record to indicate the actual value of the stolen property. [Lodg. 4; Probation Officer's Report lodged under seal per docket nos. 12, 14.]
The retroactivity of a state change of law is a state-law question. See Pulley v. Harris, 465 U.S. 37, 42, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); Wainwright v. Stone, 414 U.S. 21, 23-24, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973); see also Shannon v. Newland, 410 F.3d 1083, 1089 (9th Cir. 2005)(" [N]othing in AEDPA suggests that it was meant to take away state courts' ability to handle as they see fit the always-thorny problem of the retroactivity of changes in substantive law."). Insofar as Petitioner's claim may be construed as a claim that the state courts erred under state law in not applying amended section 487(a) retroactively in his case, such a claim is not cognizable on federal habeas review in that federal habeas relief is not available for state-law errors. See Swarthout, 131 S.Ct. at 861; Estelle, 502 U.S. at 67.
On the other hand, Petitioner has asserted his present claim under the Equal Protection Clause of the Fourteenth Amendment. Although he does not say so explicitly, this may be interpreted as an assertion Petitioner was denied equal protection because amended section 487(a) was applied retroactively to defendants whose conviction was not yet final at the time of amendment but not to defendants like Petitioner whose conviction was final at the time of amendment. However, there does not appear to be any Supreme Court authority holding that the Equal Protection Clause mandates that a prisoner whose conviction is final must receive the benefit of a change in state law that might have benefitted him if his conviction had not been final at the time of the change. See, e.g., Peeler v. Kabban-Miller, No. CIV S- 11-1785, 2012 WL 2203054, at *5 (E.D. Cal. June 14, 2012)(rejecting on AEDPA review an equal protection claim, almost identical to Petitioner's, regarding retroactive application of amended section 487(a) to final conviction). In the absence of such clearly established Supreme Court law, this court should defer to the state court's denial of relief. See Wright v. Van Patten, 552 U.S. 120, 126, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008)(when Supreme Court cases provide no clear answer to question presented, it cannot be said that state court unreasonably applied clearly established Supreme Court law); Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006)(same).
On the contrary, while the Supreme Court held in Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), that the new federal constitutional rule governing criminal procedure announced in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) applied retroactively to all cases, state or federal, pending on direct review, the Supreme Court also held in Teague v. Lane, 489 U.S. 288, 292, 109 S.Ct. 1060, 103 L.Ed.2d 334 et seq., 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), that Batson did not apply retroactively on habeas review of a final conviction. Peeler draws an analogy to Teague in rejecting the retroactive application of the change in the grand theft threshold to a final conviction. Peeler, 2012 WL 2203054, at *5.
Even if Petitioner's claim were, somehow, subject to de novo review, there is no basis for sustaining an equal protection claim premised on a change in the monetary threshold for grand theft enacted after Petitioner's conviction became final, especially in light of the fact that Petitioner's conviction was entered pursuant to a plea agreement from which Petitioner clearly benefitted and in light of the fact that there is no evidence in the record establishing that Petitioner's offense did not meet the threshold for grand theft even after the statute was amended.
VI. RECOMMENDATION
For the reasons discussed above, it is recommended that the court issue an order accepting this Report and Recommendation and directing that judgment be entered denying the petition and dismissing this action with prejudice.