Opinion
ED CV 23-0087-WLH(E)
08-29-2023
CHARLES K. SCOTT, JR. a.k.a PARNELL K. CURTIS, Petitioner, v. THE PEOPLE OF THE STATE OF CALIFORNIA, 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 Wesley L. Hsu, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On January 17, 2023, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody." On June 1, 2023, Respondent filed an Answer. On August 21, 2023, Petitioner filed a Reply and a "Notice of Lodgment, etc."
The Court construes this "Notice of Lodgment, etc." as a request that the Court expand the record by filing certain materials herein, including materials on file with other courts and certain decisions of other courts and opinions of other judges. Some of these materials already are on file in this case. This Court may take judicial notice of the contents of other courts' files. This Court also may consider the decisions of other courts and the opinions of other judges. Hence, there is no need to expand the record in the manner evidently requested by Petitioner.
BACKGROUND
In a 1991 Superior Court proceeding, Petitioner pled guilty to two charges arising from separate incidents: (1) assault with a firearm (Cal. Penal Code § 245(a)(2)); and (2) battery with infliction of serious bodily injury (Cal. Penal Code § 243(d)) (see Exhibit J to Petition). The agreed-upon sentence for these pleas was a prison term of 16 months (id.). The assault concerned four shots fired from a vehicle toward the residence of the victim (id., pp. 9-10). As to the battery, the following colloquy occurred:
[Petitioner's counsel]: The factual basis is my client got into a fight with the victim alleged in Count I, Mr. Wennerstrom, and he suffered a very large contusion and a broken tooth.
[The Court]: You heard what your attorney, Mr. Finn, says, do you agree with that Mr. Scott, is that a statement of the events?
[Petitioner]: I didn't hear it.
[Petitioner's counsel]: Mr. Wennerstrom had a broken tooth and a large bruise - contusion after -
[The Court]: After you had a fight with him; is that correct?
[Petitioner]: Yes.
[The Court]: All right. I find there is a factual basis for that plea as well.(Id., pp. 10-11).
In 1998, following a Superior Court jury trial on subsequent charges, Petitioner was convicted of attempted murder, attempted voluntary manslaughter, shooting into an occupied vehicle and unlawful possession of a firearm by a felon (Lodgment 1, p. 2). The jury also found true the allegations that Petitioner had used a firearm during the commission of the crimes (id.). In a bifurcated proceeding, the Superior Court then found true the allegations that Petitioner had suffered two prior "strike" convictions, two prior "serious" felonies, and two prior prison terms (Lodgment 3, pp. 47-50). One of the prior "strikes" was the 1991 battery conviction (id.).
During the 1998 sentencing, the Superior Court judge characterized Petitioner as "a career criminal, a person who is a definite threat to society, a person with a long history of violent criminal behavior" (Lodgment 3, p. 56). Petitioner received a sentence under California's Three Strikes Law of four consecutive terms of 25 years to life plus an additional consecutive term of 25 years and 4 months (id., p. 60; Lodgment 1, p. 2).
The Three Strikes Law consists of two nearly identical statutory schemes. The earlier provision, enacted by the Legislature, was passed as an urgency measure, and is codified as California Penal Code §§ 667(b) - (i) (eff. Mar. 7, 1994). The later provision, an initiative statute, is embodied in California Penal Code § 1170.12 (eff. Nov. 9, 1994). See generally People v. Superior Court (Romero), 13 Cal.4th 497, 504-05, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996).
In 2018, Petitioner filed a habeas corpus petition in Superior Court, seeking resentencing for his 1998 convictions (Exhibit F to Petition). Petitioner argued that his 1991 battery conviction did not qualify as a "strike." Ultimately, the Superior Court refused to resentence Petitioner (see Lodgment 4). The Superior Court ruled that the 1991 plea and colloquy concerning the factual basis for Petitioner's battery conviction sufficiently established, through admissions by Petitioner, that the conviction qualified as a "strike" (id.). In 2021, the California Court of Appeal affirmed in a reasoned opinion (Lodgment 9). In the same year, the California Supreme Court summarily denied review (Lodgment 11).
PETITIONER'S CLAIMS
The nature and scope of the claims intended in the Petition are not entirely clear. Some of Petitioner's written statements concerning the claims intended are inconsistent. For example, Petitioner states that he is challenging a conviction and sentence occurring in 2019, even though Petitioner was not convicted or sentenced (or resentenced) in 2019 (see "Background," supra; Petition, p. 2). Elsewhere, Petitioner states he is not challenging a conviction, only a sentence (see ECF Doc. 14, p. 10). Still elsewhere, Petitioner appears to argue that his 1991 conviction was invalid because his guilty plea assertedly was not made knowingly, voluntarily or intelligently (Petition, p. 6/c).
Construing Petitioner's various statements liberally, the Court posits that Petitioner may intend to challenge: (1) the validity of the 1991 battery conviction in its own right; (2) the validity of using the 1991 battery conviction to enhance the 1998 sentence; (3) the length of the 1998 sentence; and (4) the validity of the state courts' denial of resentencing in 2019 (and thereafter).
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (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 of the United States"; 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); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000) .
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the "unreasonable application" prong of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).
"In order for a federal court to find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been 'objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert, dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. 86, 101 (2011). This is "the only question that matters under § 2254(d)(1)." Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103; see also Shinn v. Kayer, 141 S.Ct. 517, 520 (2020) (per curiam). "If this rule means anything, it is that a federal court must carefully consider all the reasons and evidence supporting the state court's decision." Mays v. Hines, 141 S.Ct. 1145, 1149 (2021).
In applying these standards, the Court looks to the last reasoned state court decision. See Brown v. Davenport, 142 S.Ct. 1510, 1528 (2022) (under AEDPA, federal habeas court must "assess the reasonableness of the last state-court adjudication on the merits of the petitioner's claim") (citation and quotations omitted); Wilson v. Sellers, 138 S.Ct. 1188, 1193-97 (2018) (endorsing presumption that unexplained decision of state higher court adopted the reasoning of the last reasoned state court decision). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. at 102; see also Cullen v. Pinholster, 563 U.S. 170, 188 (2011).
Additionally, 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). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
DISCUSSION
For the reasons discussed below, the Petition should be denied and dismissed with prejudice.
The Court has read, considered and rejected all of Petitioner's arguments. The Court discusses herein what the Court understands to be Petitioner's principal arguments. The Court assumes arguendo the timeliness of Petitioner's claims. 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 further assumes arguendo Petitioner has not procedurally defaulted any of his claims. See Lambrix v. Singletary, 520 U.S. 518, 523-25 (1997); Ayala v. Chappell, 829 F.3d 1081, 1095-96 (9th Cir. 2016), cert, denied, 138 S.Ct. 244 (2017); Franklin v. Johnson, 290 F.3d 1223, 1232-33 (9th Cir. 2002) . To the extent any of Petitioner's claims may be unexhausted, the Court denies the claims as not "colorable." See Cassett v. Stewart, 406 F.3d 614, 623 (9th Cir. 2005), cert, denied, 546 U.S. 1172 (2006) (federal habeas court may deny on the merits unexhausted claims that are not "colorable").
I. Any Challenge to the Validity of the 1991 Battery Conviction in its Own Right is Not Cognizable at this Time,
Subject matter jurisdiction over a habeas petition exists only where, at the time the petition is filed, the petitioner is "in custody" under the conviction challenged in the petition. Maleng v. Cook, 490 U.S. 488, 490-91 (1989); 28 U.S.C. §§ 2241(c), 2254(a). A habeas petitioner does not remain "in custody" under a conviction once the sentence imposed for the conviction has "fully expired." Maleng v. Cook, 490 U.S. at 492; see Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010) ("in custody" requirement is jurisdictional). The 16-month prison sentence Petitioner received for the 1991 battery conviction fully expired decades before the filing of the present Petition. Accordingly, there exists no subject matter jurisdiction to entertain a habeas challenge to that conviction in its own right. See id.
II. Any Challenge to the 1998 Sentencing Court's Use of the 1991 Battery Conviction to Enhance the 1998 Sentence Does Not Merit Federal Habeas Relief.
Under very narrow circumstances, a petitioner sometimes may challenge a prior expired conviction through a habeas corpus petition attacking a current sentence as allegedly enhanced by the prior conviction. See Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001) ("Coss"); Dubrin v. People, 720 F.3d 1095 (9th Cir. 2013). Under Coss, a state habeas petitioner generally may not challenge a prior expired conviction used to enhance a current sentence on the ground that the prior conviction was obtained unconstitutionally, unless there was a failure to appoint counsel in violation of the Sixth Amendment. In dicta, the plurality in Coss suggested the possibility that a habeas petitioner also could challenge a prior conviction used to enhance the petitioner's current sentence where the petitioner could not be faulted for failing to obtain a timely review of a constitutional claim, either because a state court without justification had refused to rule on a constitutional claim properly presented to it, or because the petitioner had uncovered "compelling evidence" of his innocence after the time for review had expired that could not have been timely discovered. Id. at 403-05. The Ninth Circuit has held that habeas review is available in the circumstances described by the Coss plurality. Dubrin v. People, 720 F.3d at 1098.
The circumstances described by the Coss holding or by the Coss dicta do not here exist. Petitioner was represented by counsel in the 1991 criminal proceeding. No state court refused without justification to rule on a timely, properly presented constitutional challenge to the 1991 battery conviction. There is no "compelling evidence" (recently discovered or otherwise) demonstrating Petitioner's innocence of the battery for which he was convicted in 1991.
In any event, to the extent Petitioner argues that his asserted ignorance in 1991 of the possibility that his battery conviction might later enhance the sentence for a subsequent crime, any such ignorance would not render the 1991 plea (or the 1998 sentence) invalid. "The possibility that the defendant will be convicted of another offense in the future and will receive an enhanced sentence based on an instant conviction is not a direct consequence of a guilty plea." United States v. Brownlie, 915 F.2d 527, 528 (9th Cir. 1990). A defendant's ignorance of such a collateral consequence does not deprive the guilty plea of its voluntary character or otherwise render the conviction invalid. Id.; Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir. 1988); see also United States v. Salerno, 66 F.3d 544, 551 (2nd Cir. 1995), cert, denied, 516 U.S. 1063 (1996).
To the extent Petitioner argues that the 1991 battery conviction did not constitute a "strike" under California state law, such argument fails to raise an issue cognizable on federal habeas corpus. As stated above, 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); see also Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) ("state courts are the ultimate expositors of state law").
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, 111819 (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); Nelson v. Biter, 33 F.Supp.3d 1173, 1177-78 (C.D. Cal. 2014) (argument that state sentencing court misconstrued California Three Strikes law and thereby denied resentencing fails to raise a cognizable issue on federal habeas corpus); accord, Sallee v. Davis, 2018 WL 4786747, at *7 n.4 (C.D. Cal. Oct. 1, 2018). Petitioner's conclusory characterizations of the state courts' alleged errors as violations of the federal constitution cannot transform non-cognizable state law issues into cognizable federal ones. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996), cert, denied, 522 U.S. 881 (1997).
Under narrow circumstances, the misapplication of state sentencing law may violate due process. See Richmond v. Lewis, 506 U.S. 40, 50 (1992). "[T]he federal, constitutional question is whether [the error] is so arbitrary or capricious as to constitute an independent due process" violation. Id. (internal quotation and citation omitted); see also Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) ("Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief."). These narrow circumstances do not here apply. Moreover, at a minimum, the state courts' Three Strikes interpretation and application was not objectively unreasonable under any clearly established United States Supreme Court law. See 28 U.S.C. § 2254(d).
Ill. Petitioner's 1998 Sentence Is Not Unconstitutionally Disproportionate.
Petitioner argues that his 1998 sentence, which probably will keep Petitioner in prison for the rest of his life, violates the Eighth Amendment. In light of current Eighth Amendment jurisprudence, this argument should be rejected.
The Eighth Amendment forbids the imposition of "cruel and unusual punishments." U.S. Const, amend. VIII. In Rummel v. Estelle, 445 U.S. 263 (1980), the Supreme Court upheld a recidivist sentence of life with the possibility of parole for the crime of obtaining $120.75 by false pretenses, following prior convictions for fraudulent use of a credit card to obtain $80 worth of goods and services and passing a forged check for $28.36. In Solem v. Helm, 463 U.S. 277 (1983), the Court struck down a recidivist sentence of life without the possibility of parole for uttering a "no account" check for $100, where the petitioner had three prior third-degree burglary convictions and convictions for obtaining money by false pretenses, grand larceny and driving while intoxicated. In Harmelin v. Michigan, 501 U.S. 957 (1991), five Justices, although in disagreement regarding the rationale, upheld a sentence of life without the possibility of parole for a first offense of possession of more than 650 grams of cocaine.
In 2003, the United States Supreme Court decided two cases involving the constitutionality of sentences imposed under California's Three Strikes Law. In Ewing v. California, 538 U.S. 11 (2003), the Court upheld a sentence of twenty-five years to life for felony grand theft consisting of the non-violent theft of three golf clubs. In Lockyer v. Andrade, 538 U.S. 63 (2003), the Court upheld, under the standard of review set forth in 28 U.S.C. section 2254(d), the California Court of Appeal's affirmance of a total sentence of fifty years to life for two convictions of petty theft with a prior theft-related conviction, arising out of two non-violent incidents in which the petitioner shoplifted videotapes.
In Lockyer v. Andrade, the United States Supreme Court acknowledged that, "in determining whether a particular sentence for a term of years can violate the Eighth Amendment, we have not established a clear or consistent path for courts to follow." Lockyer v. Andrade, 538 U.S. at 72. However, the Court observed that "one governing legal principle emerges as 'clearly established' under [28 U.S.C.] § 2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of years." Id.
Thus, "[t]he threshold determination in the eighth amendment proportionality analysis is whether [Petitioner's] sentence was one of the rare cases in which a . . . comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." United States v. Bland, 961 F.2d 123, 129 (9th Cir. 1992), cert, denied, 506 U.S. 858 (1992) (citations and quotations omitted); see Lockyer v. Andrade, 538 U.S. at 73 (gross proportionality principle "applicable only in the 'exceedingly rare' and 'extreme' case"; citations omitted); Harmelin v. Michigan, 501 U.S. at 1001 (1991) (Kennedy, J., concurring) ("The Eighth Amendment does not require strict proportionality between crime and sentence"); see also Cocio v. Bramlett, 872 F.2d 889, 892 (9th Cir. 1989) ("we are required to defer to the power of a state legislature to determine the appropriate punishment for violation of its laws based on principles of federalism, unless we are confronted with a rare case of a grossly disproportionate sentence").
In determining whether to infer gross disproportionality, the Court should examine whether Petitioner's sentence is justified by the gravity of his triggering offenses and his criminal history. See Ramirez v. Castro, 365 F.3d 755, 768 (9th Cir. 2004); see also Ewing v. California, 538 U.S. at 29 (court must consider not only the state's interest in punishing the "triggering" offense but also the state's interest in "dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law") (citations and quotations omitted). Petitioner's claim fails at this threshold level.
The nature and circumstances of Petitioner's triggering offenses were grave. Petitioner was convicted of attempted murder, attempted voluntary manslaughter, shooting into an occupied motor vehicle and possession of a firearm by a felon. The jury found to be true the allegations that Petitioner had personally used a firearm in connection with these crimes. On direct appeal, the California Court of Appeal summarized the circumstances of the crimes as follows:
On October 12, 1997, after an argument over a blocked driveway, [Petitioner] followed Frank ("Tony") Felix, Carol Cooley, and their three small children out of an apartment complex in Riverside. [Petitioner] was driving a Geo, with a passenger described by Felix as a heavyset white male with a long ponytail. Cooley was driving a Plymouth van with Felix in the passenger seat; the three children, including a baby in an infant carrier, were in the back seat. Because of the heated nature of the argument between [Petitioner] and Felix and her belief that [Petitioner] had a gun, Cooley was driving to the Arlanza police substation around the corner from the
apartment complex. When Cooley stopped to wait for traffic before turning west onto Arlington Avenue, Felix looked back through the rear window and saw [Petitioner] leaning over his passenger, holding a flat-nosed semiautomatic weapon out the passenger window. Almost immediately, he heard two or three shots. The rear window shattered, spewing glass into the interior of the van. The Geo sped off, eastbound, down Arlington A venue, with its headlights off while Cooley drove, westbound, about one-fourth of a mile to the police substation.(Lodgment 1, p. 3).
Petitioner's pre-1998 criminal history, which included multiple violent crimes, was also grave. The sentencing court aptly described Petitioner as "a career criminal, a person who is a definite threat to society, a person with a long history of violent criminal behavior" (Lodgment 3, p. 56).
Given the potential for violence demonstrated by Petitioner's triggering offenses and Petitioner's criminal history, the Court is unable to conclude under the applicable authorities that Petitioner's life sentence is "one of the rare cases in which a comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." See Cornett v. Uribe, 2013 WL 1899731, at *9 (N.D. Cal. May 7, 2013), aff'd, 610 Fed. App'x. 626 (9th Cir.), cert, denied, 577 U.S. 979 (2015) (sentence of 25 years to life for attempted murder not disproportionate); Pope v. Walker, 2012 WL 2684986, at *13 (E.D. Cal. July 6, 2012) ("a life sentence for attempted murder by use of a gun does not rise to the level of an Eighth Amendment violation") (citation omitted); Jahad v. Hernandez, 2011 WL 1195401, at *7 (C.D. Cal. Feb. 28, 2011), adopted, 2011 WL 1156090 (C.D. Cal. March 29, 2011) (sentence of life in prison for attempted murder not disproportionate); Ochoa v. Harrington, 2011 WL 5520378, at *20 (C.D. Cal. Aug. 4, 2011), adopted, 2011 WL 5526101 (C.D. Cal. Nov. 8, 2011) (two consecutive life sentences for two attempted murder convictions not grossly disproportionate); Vasguez v. Horel, 2009 WL 1709042, at *24 (C.D. Cal. June 12, 2009) (sentence of 87 years to life for attempted murder with certain enhancements not disproportionate); see also Ybarra v. Uribe, 2013 WL 6254678, at *3 (C.D. Cal. Dec. 3, 2013) (denying habeas relief to state prisoner who received life sentence for possession of a firearm by a felon, possession of a firearm with altered identification, and possession of ammunition by a felon); Lowe v. Scribner, 2006 WL 1281957, at *18-19 (E.D. Cal. May 9, 2006), adopted, 2006 WL 2504905 (C.D. Cal. Aug. 29, 2006), aff'd, 327 Fed.Appx. 686 (2009) (denying habeas relief to state prisoner who received life sentence for possession of a firearm by a felon).
Petitioner's sentence, although severe, is not unconstitutional. See id. Courts have upheld against Eighth Amendment challenge equally severe sentences for crimes far less grave than Petitioner's crimes. See Harmelin (life without possibility of parole for possession of 672 grams of cocaine); United States v. Van Winrow, 951 F.2d 1069, 1071 (9th Cir. 1991) (life without possibility of parole for possession of cocaine with intent to distribute); Terrebonne v. Butler, 848 F.2d 500, 507 (5th Cir. 1988), cert, denied, 489 U.S. 1020 (1989) (life without possibility of parole for 21-year-old heroin addict who delivered packets of heroin to an undercover officer); Holley v. Smith, 792 F.2d 1046, 1051-52 (11th Cir. 1986), cert, denied, 481 U.S. 1020 (1987) (life without possibility of parole for recidivistic robber).
The Court need not and does not reach the issue of whether Petitioner's Eighth Amendment claim should also be denied on the alternative ground that the argument fails to satisfy the requirements of section 2254(d) of Title 28 U.S.C. See Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008); Villafuerte v. Stewart, 111 F.3d 616, 622 n.2 (9th Cir. 1997), cert, denied, 522 U.S. 1079 (1998).
IV. Any Challenge to the State Courts' Denial of Resentencing Does Not Merit Federal Habeas Relief.
As previously discussed, issues regarding a state prisoner's sentencing ordinarily raise only non-cognizable issues of state law, regardless of the federal labels affixed to those issues by the state prisoner. The same is equally true of issues regarding a state prisoner's resentencing. See, e.g., Regan v. Ducart, 2022 WL 801165, at *9 (E.D. Cal. March 16, 2022), adopted, 2022 WL 3579846 (E.D. Cal. Aug. 19, 2022) ("the state court found that petitioner was ineligible for resentencing under state law, and this court is bound by that interpretation of state law"); accord, Sallee v. Davis, 2018 WL 4786747, at *4 (C.D. Cal. Oct. 1, 2018). Moreover, to the extent Petitioner challenges procedural aspects of the post-conviction proceedings in the state courts, such challenges cannot merit federal habeas relief. "[F]ederal habeas relief is not available to address alleged procedural errors in state post-conviction proceedings." Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998), cert, denied, 526 U.S. 1123 (1999); see Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir.), cert, denied, 493 U.S. 1012 (1989) (holding that allegations of error in state's post-conviction review are not addressable through federal habeas corpus proceedings); cf. 28 U.S.C. § 2254(a) (limiting federal habeas corpus relief to cases in which there has been a "violation of the Constitution or laws or treaties of the United States").
In arguing that the state courts erred by refusing resentencing, Petitioner principally relies on People v. Gallardo, 4 Cal. 5th 120, 226 Cal.Rptr.3d 379, 407, P.3d 55 (2017) ("Gallardo"). Even under Gallardo, however, an "agreed-to factual basis" for a guilty plea can constitute sufficient proof of the nature of a prior strike conviction. See Gallardo, 4 Cal. 5th at 131. Such was the case here. As the California Court of Appeal reasonably determined:
Here, sufficient evidence supports the superior court's finding that [Petitioner] personally inflicted serious bodily injury on a non accomplice. [Petitioner] admitted that he was in a fight with the named victim, and the victim thereafter suffered "a broken tooth" and "a very large contusion." The court could and did rationally infer from that admission that defendant personally inflicted serious bodily injury on a non accomplice. There was no indication that anyone other than the defendant and the named victim were involved in the altercation. Thus, sufficient evidence supports the true finding on the prior serious felony and
the prior strike conviction enhancements.(Lodgment 9, p. 9).
Under the circumstances presented, the state courts' refusal to resentence Petitioner plainly was not objectively unreasonable under any clearly established United States Supreme Court law. See 28 U.S.C. § 2254(d); see also Rutledge v. Covello, 2023 WL 1769191, at *3-4 (N.D. Cal. Feb. 3, 2023) (rejecting the petitioner's Gallardo argument where proof of the nature of the prior strike conviction was supplied merely by the petitioner having pleaded guilty to the charge described in the prior indictment); Simpson v. Hill, 2021 WL 1740840, at *8-9 (C.D. Cal. April 5, 2021), adopted, 2021 WL 1740244 (C.D. Cal. May 3, 2021) (rejecting the petitioner's Gallardo argument where proof of the nature of the prior strike conviction derived from the factual basis for the guilty plea).
This Court also observes that sentencing and the denial of resentencing may be constitutionally distinct settings. See Dillon v. United States, 560 U.S. 817, 828-29 (2010) (notwithstanding Apprendi v. New Jersey, 530 U.S. 466 (2000), a judge properly may find facts rendering a sentenced defender ineligible for a sentence reduction); see also Andrade v. Frauenheim, 2016 WL 7210121, at *2 (E.D. Cal. Dec. 12, 2016) (the federal constitution does not prohibit judges from finding facts relevant to ameliorative post conviction sentencing laws); accord, Regan v. Ducart, 2022 WL 801165, at *13.
RECOMMENDATION
For the reasons discussed herein, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) directing that judgment be entered denying and dismissing the Petition with prejudice.
Petitioner's request for an evidentiary hearing is denied. Federal habeas relief is unavailable regardless of the nature of any additional evidence Petitioner might present for the first time in federal court. See Cullen v. Pinholster, 563 U.S. 170, 185 (2011) ("Pinholster"); Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013), cert, denied, 573 U.S. 919 (2014) (Pinholster's preclusion of a federal evidentiary hearing applies to section 2254(d)(2) claims as well as section 2254(d)(1) claims). In any event, Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to any of Petitioner's claims.
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.