Opinion
CV 24-0574 ODW (AS)
07-24-2024
ADRIAN SOLORIO, Petitioner, v. C. PFEIFFER, Warden, Respondent.
ALKA SAGAR UNITED STATES MAGISTRATE JUDGE
ORDER OF DISMISSAL
OTISD.WRIGHT, II UNITED STATES DISTRICT JUDGE
I.
INTRODUCTION
On March 15, 2024, Adrian Solorio (“Petitioner”), a California prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. (Docket (“Dkt.”) No. 1). The Petition raises the following grounds for federal habeas corpus relief: (1) Petitioner received ineffective assistance of counsel during California Penal Code (“P.C.”) § 1172.6 proceedings when counsel failed to argue Petitioner was intoxicated, did not file a “motion for appeal” to the California Supreme Court, and did not litigate double jeopardy or seek resentencing when a “special circumstances allegation [was] found true, and [was] predicted on a single felony”; (2) Petitioner was deprived of his Sixth Amendment rights when he did not receive counsel or a hearing on his P.C. § 1170.95 motion; (3) Petitioner was denied his state constitutional right to have every material issue presented during the P.C. §§ 1170.95 and 1172.6 proceedings; (4) P.C. § 1385 now provides judges with discretionary authority to strike P.C. § 12022.53(d) enhancements; and (5) P.C. § 22 limits the admissibility of evidence of a defendant's voluntary intoxication and the trial court at Petitioner's trial failed to instruct the jury with CALCRIM No. 625. (Petition at 5-6, 10-15 (as paginated on the Court's electronic docket)).
“Section 1170.95 was renumbered as section 1172.6, effective June 30, 2022.” Brown v. Atchley, 76 F.4th 862, 864 n.1 (9th Cir. 2023). As discussed herein, Petitioner filed petitions under both P.C. § 1170.95 and P.C. § 1172.6.
II.
BACKGROUND
On January 26, 2009, in Orange County Superior Court case no. 06CF1702 (“State Criminal Case”), a jury convicted Petitioner of first degree murder in violation of P.C. § 187 and participating in a criminal street gang in violation of P.C. § 186.22(a) and “further found to be true three enhancements for committing the murder (1) to further the activities of a criminal street gang [P.C. § 190.2(a)(22)], (2) by intentionally discharging a firearm [P.C. § 12022.53(d)], and (3) to promote criminal conduct by street gang members [P.C. § 186.22(b)].” People v. Solorio, 2011 WL 281107, *1 (2011); (see also Petition at 1). The trial court sentenced Petitioner to life in prison without the possibility of parole. Solorio, 2011 WL 281107 at *4.
Petitioner appealed his convictions and sentence to the California Court of Appeal, which affirmed the judgment on January 28, 2011. Solorio, 2011 WL 281107 at 1-12. Petitioner thereafter filed a petition for review in the California Supreme Court, which denied the petition on May 16, 2011. California Supreme Court case no. S191078 (https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=1972235&doc_no=S191078&request_token=NiIwLSEnXkw4WyBNSyNNUElIIEQ0UDxfKiJORz1RMCAgCg%3D%3D (last visited July 15, 2024)).
Pursuant to Fed.R.Evid. 201, the Court takes judicial notice of the docket sheet in California Supreme Court case no. S191078 and the docket sheets and relevant orders from Petitioner's prior federal habeas corpus and Ninth Circuit cases discussed herein. See Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147, 157 (1969) (federal court may properly take judicial notice of its own files and records); Rosales-Martinez v. Palmer, 753 F.3d 890, 894 (9th Cir. 2014) (“It is well established that we may take judicial notice of judicial proceedings in other courts.”).
On July 19, 2012, Petitioner filed a federal habeas corpus petition in United States District Court for the Central District of California case no. CV 12-1175-R (AS) (“Solorio I”). (Solorio I, Dkt. No. 1). On June 10, 2013, the Solorio I petition was denied and the action was dismissed with prejudice. (Solorio I, Dkt. Nos. 28, 35-36); Solorio v. Barnes, 2013 WL 2627063 (C.D. Cal. 2013). On February 1, 2016, the Ninth Circuit Court of Appeals denied Petitioner a certificate of appealability. (Solorio I, Dkt. No. 63).
On September 30, 2018, the California Governor signed Senate Bill No. 1437. “The legislation, which became effective on January 1, 2019, addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending [P.C. §§] 188 and 189, as well as by adding [P.C. §] 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions.” People v. Martinez, 31 Cal.App. 5th 719, 722 (2019). In particular, Senate Bill No. 1437 “was enacted to ‘amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.'” Id. at 723 (citation omitted).
“Following the Legislature's enactment of Senate Bill No. 1437, [Petitioner] filed a petition in the trial court for resentencing under section 1170.95[,]” which the trial court “summarily denied. . ., finding it did ‘not set forth a prima facie case for relief under [section 1170.95].'” People v. Solorio, 2020 WL 3496749, *1 (2020); (Petition at 11). Petitioner appealed this decision to the California Court of Appeal, which on June 29, 2020, affirmed the trial court's post-judgment order denying the P.C. § 1170.95 petition. Solorio, 2020 WL 3496749 at *2-4. Petitioner did not file a petition for review in the California Supreme Court.
Effective January 1, 2018, Senate Bill No. 620 amended P.C. § 12022.53(h) “by granting trial courts the discretion to strike formerly mandatory section 12022.53 enhancements.” People v. McDavid, 15 Cal. 5th 1015, 1021 (2024). “In 2019, [Petitioner] petitioned the trial court . . . to strike his firearm sentence enhancement under [Senate] Bill No. 620.” People v. Solorio, 2020 WL 5511836, *1 (2020). The trial court denied the petition and on September 14, 2020, the California Court of Appeal affirmed this decision, concluding that “[i]t is clear [Petitioner] is not entitled to any benefit under Sen. Bill No. 620's amendment of section 12022.53 because it went into effect well after the judgment against him became final.” Id. at *2. Petitioner did not file a petition for review in the California Supreme Court.
On June 3, 2021, Petitioner filed a second habeas corpus petition in this Court challenging his 2009 convictions, which was dismissed as second or successive on June 10, 2021. (See United States District Court for the Central District of California case no. CV 21-1006-ODW (AS) (“Solorio II”), Dkt. Nos. 1, 3); Solorio v. Sullivan, 2021 WL 2382521 (C.D. Cal. 2021).
On June 9, 2021, Petitioner filed a third habeas corpus petition in this Court challenging his 2009 convictions, which was dismissed as second or successive on June 15, 2021. (See United States District Court for the Central District of California case no. CV 21-1038-ODW (AS) (“Solorio III”), Dkt. Nos. 1, 4); Solorio v. Sullivan, 2021 WL 2454210 (C.D. Cal. 2021).
On August 30, 2021, Petitioner filed a fourth habeas corpus petition in this Court challenging his 2009 convictions, which was dismissed as second or successive on September 16, 2021. (See United States District Court for the Central District of California case no. CV 21-1426-ODW (AS) (“Solorio IV”), Dkt. Nos. 1, 3); Solorio v. Sullivan, 2021 WL 4078942 (C.D. Cal. 2021).
“In 2022, [Petitioner] filed a petition for resentencing pursuant to section 1172.6[,]” which the trial court denied because it concluded that “collateral estoppel precluded [Petitioner's] second petition,” and, in any event, Petitioner “was ineligible for relief because he was the actual killer.” People v. Solorio, 2023 WL 3402602, *2 (2023); (Petition at 11). Petitioner appealed this decision to the California Court of Appeal, which on May 12, 2023, affirmed the trial court's post-judgment order. Solorio, 2023 WL 3402602 at *2-3. Petitioner did not timely file a petition for review in the California Supreme Court. (See Petition at 5-7, 11, 52).
III.
DISCUSSION
“Rule 4 of the Rules Governing § 2254 Cases in the United States District Court provides that district courts ‘must dismiss' a petition ‘[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.'” Clayton v. Biter, 868 F.3d 840, 845 (9th Cir. 2017) (quoting Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts). “Thus, Rule 4 explicitly allows a district court to dismiss summarily the petition on the merits when no [cognizable] claim for relief is stated.” Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983); O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Clayton, 868 F.3d at 845 (“District courts adjudicating habeas petitions under § 2254 are instructed to summarily dismiss claims that are clearly not cognizable.”). “A petition may not be cognizable, for example, where the petitioner fails to allege a federal claim.” Clayton, 868 F.3d at 845.
Here, although not a model of clarity, the pending Petition appears to challenge, and seek relief from, both the underlying State Criminal Case and the denials of Petitioner's petitions for post-conviction relief pursuant to Senate Bill No. 620 and P.C. §§ 1170.95/1172.6. (See Petition at 5-6, 10-15). As explained below, to the extent the Petition challenges the underlying State Criminal Case, it is an unauthorized second or successive petition, and to the extent the Petition challenges the state court's denial of Petitioner's petitions for post-conviction relief, it does not state a cognizable federal claim.
1. Second or Successive
The Antiterrorism and Effective Death Penalty Act of 1996 “established a stringent set of procedures that a prisoner ‘in custody pursuant to the judgment of a State court' must follow if he wishes to file a ‘second or successive' habeas corpus application challenging that custody[.]” Burton v. Stewart, 549 U.S. 147, 152 (2007) (per curiam) (citations omitted). In particular, “[i]f an application is 7 ‘second or successive,' the petitioner must obtain leave from the court of appeals before filing it with the district court[,]” Magwood v. Patterson, 561 U.S. 320, 330-31 (2010) (citing 28 U.S.C. § 2244(b) (3) (A)); Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998), and the appellate court “may authorize the filing of the second or successive application only if it presents a claim not previously raised that satisfies one of the two [exceptions] articulated in § 2244(b)(2).” Burton, 549 U.S. at 153. “One of these exceptions is for claims predicated on newly discovered facts that call into question the accuracy of a guilty verdict. The other is for certain claims relying on new rules of constitutional law.” Tyler v. Cain, 533 U.S. 656, 66162 (2001) (citations omitted); see also Magwood, 561 U.S. at 335 (Section 2244(b)(2) “describes circumstances when a claim not presented earlier may be considered: intervening and retroactive case law, or newly discovered facts suggesting ‘that . . . no reasonable factfinder would have found the applicant guilty of the underlying offense.'” (citation omitted)). “Even if a petitioner can demonstrate that he qualifies for one of these exceptions, he must seek authorization from the court of appeals before filing his new petition with the district court.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) . “A petitioner's failure to seek such authorization from the appropriate appellate court before filing a second or successive habeas petition acts as a jurisdictional bar.” Rishor v. Ferguson, 822 F.3d 482, 490 (9th Cir. 2016); Burton, 549 U.S. at 153.
Here, the pending Petition at least partially challenges the 2009 judgment in the State Criminal Case. In Ground Five, Petitioner alleges that P.C. § 22 limits the admissibility of evidence of a defendant's voluntary intoxication and the trial court erred when it failed to instruct the jury with CALCRIM No. 625. (Petition at 6, 14). However, as previously explained in Solorio II, III & IV, to the extent the pending Petition challenges the State Criminal Case, it is a second or successive petition, and Petitioner was required to obtain Ninth Circuit authorization before filing it in this Court. Yet, Petitioner has not done so. Rather, a search of the PACER system reflects that Petitioner filed an application for authorization to file a second or successive petition on July 20, 2015, and on October 16, 2015, the application was “denied without prejudice to filing a new application that complies with the requirements of Ninth Circuit Rule 22-3.” (Solorio v. McDowell, Ninth Circuit Case No. 15-72214, Dkt. Nos. 1, 3). Thereafter, on January 28, 2016, Petitioner filed an application for authorization to file a second or successive § 2254 petition in the Ninth Circuit, which denied the application on May 27, 2016, concluding that, to the extent Petitioner claims a violation under Brady v. Maryland, 373 U.S. 83 (1963), he “has not established that the alleged newly discovered evidence supporting his claim is ‘material'” and “in relation to [P]etitioner's Brady claim and all remaining claims, [P]etitioner has not made a prima facie showing under 28 U.S.C. § 2244(b)(2)[.]” (Solorio v. Seibel, Ninth Circuit Case No. 16-70272, Dkt. Nos. 1-3). The Ninth Circuit also ordered that “[n]o further filings will be entertained in this case.” (Id., Dkt. No. 3 at 2). Finally, Petitioner filed another application for authorization to file a second or successive § 2254 petition in the Ninth Circuit on August 31, 2021, and the Ninth Circuit denied the application on October 18, 2021, finding that Petitioner had not made a prima facie showing under Section 2244(b)(2) and ordering that “[n]o further filings will be entertained in this case.” (See Solorio v. Montgomery, Ninth Circuit Case No. 21-71253 Dkt. Nos. 1-5). Accordingly, to the extent the pending Petition challenges the State Criminal Case, it is an unauthorized second or successive petition that should be dismissed without prejudice for lack of jurisdiction.
As set forth above, Petitioner has filed petitions for resentencing pursuant to Senate Bill No. 620 and P.C. §§ 1170.95 and 1172.6, which were all denied. Absent authorization to file a second or successive petition, the denial of these petitions did not “open to door” to Petitioner filing another challenge to his State Criminal Case. Cole v. Sullivan, 480 F.Supp.3d 1089, 1097 (C.D. Cal. 2020); Shallowhorn v. Guzman, 2023 WL 5004495, *3-4 (C.D. Cal. 2023); see also Burton, 549 U.S. at 153 (“When Burton filed his first petition, the 1998 petition, he was being held in custody pursuant to the 1998 judgment, which had been entered some nine months earlier. When he filed his second petition, the 2002 petition, he was still being held in custody pursuant to the same 1998 judgment. In short, Burton twice brought claims contesting the same custody imposed by the same judgment of a state court. As a result, under AEDPA, he was required to receive authorization from the Court of Appeals before filing his second challenge. Because he did not do so, the District Court was without jurisdiction to entertain it.”); Washington v. Allen, 2024 WL 3166440, *3 (C.D. Cal.) (“‘[W]hen a second-in-time petition concerns the same judgment as that challenged in a prior federal petition that was denied on the merits, the general prohibition on unauthorized second or successive petitions bars consideration of the second petition without prior authorization from the court of appeals.'” (citation omitted)), report and recommendation accepted by, 2024 WL 3165256 (C.D. Cal. 2024).
2. State Law Claims
A federal court, in conducting habeas review, is limited to deciding whether a state court decision violates the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Federal habeas corpus relief “does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (“[I]t is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts.” (emphasis in original)). Here, however, to the extent Petitioner raises in Grounds One through Four challenges to judgments other than the State Criminal Case - i.e., the denial of his petitions pursuant to Senate Bill No. 620 and P.C. §§ 1170.95/1172.6 - his claims raise only noncognizable state law claims. Souch v. Schaivo, 289 F.3d 616, 622-23 (9th Cir. 2002); Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989); see also Cole v. Sullivan, 480 F.Supp.3d 1089, 1097 (C.D. Cal. 2020) (“To the extent petitioner may be challenging the state courts' denial of his petition for resentencing under [P.C. §] 1170.95, his claims pertain solely to the state court's interpretation and application of state sentencing law and therefore are not cognizable.”); Sanders v. Johnson, 2023 WL 4297562, *2 (C.D. Cal. 2023) (“[T]he Petition purports to challenge the state court's denial of a petition for resentencing pursuant to California Penal Code section 1170.95/1172.6. As such, the Petition involves only the application of state sentencing law and does not give rise to a federal question cognizable on federal habeas review.”); Shallowhorn v. Guzman, 2023 WL 5004495, *4 (C.D. Cal. 2023) (“Federal courts have routinely held that challenges to denials of section 1170.95 resentencing petitions ‘pertain solely to the state court's interpretation and application of state sentencing law and therefore are not cognizable' on federal habeas review.” (citations omitted)); Springfield v. Lozano, 2023 WL 3409502, *4 (C.D. Cal.) (“Courts in this district have repeatedly held that whether a petitioner is entitled to resentencing under the amendments effected by Senate Bill 1437 is solely an issue of state law and does not give rise to a claim cognizable on federal habeas.”), report and recommendation accepted by, 2023 WL 4316774 (C.D. Cal. 2023); Fellows v. Atchley, 2022 WL 18717595, *10 (C.D. Cal. 2022) (“Petitioner's challenge to the trial court's application of California Senate Bill 620 is a state-law sentencing claim that is not reviewable on federal habeas review.”), report and recommendation accepted by, 2023 WL 2025025 (C.D. Cal. 2023); Williams v. Robertson, 2022 WL 1037755, *13 (C.D. Cal.) (“The question whether Petitioner is entitled to resentencing under California's S.B. 620 involves solely an application of state sentencing laws and, thus, does not give rise to a cognizable federal claim.”), report and recommendation accepted by, 2022 WL 1028023 (C.D. Cal. 2022); Moreno v. Pollard, 2021 WL 864066, *6 (C.D. Cal.) (“In asserting a right to resentencing under California's Senate Bill 620, Petitioner raises a state-law claim that is not reviewable in federal court.”), report and recommendation accepted by, 2021 WL 863750 (C.D. Cal. 2021).
In particular, in Ground One, Petitioner complains he received ineffective assistance of counsel during P.C. § 1172.6 proceedings when counsel failed to argue Petitioner was intoxicated, did not file a petition for review in the California Supreme Court, and did not litigate double jeopardy or seek resentencing. (Petition at 5, 12). In Ground Two, Petitioner asserts he was deprived of his Sixth Amendment rights when he did not receive counsel or a hearing on his P.C. § 1170.95 motion. (Petition at 5-6, 13). In Ground Three, Petitioner argues he was denied the right to have every material issue presented during the P.C. §§ 1170.95 and 1172.6 proceedings. (Petition at 6, 13). And in Ground Four, Petitioner appears to challenge the denial of his Senate Bill No. 620 petition, arguing that P.C. § 1385 provides judges with discretionary authority to strike P.C. § 12022.53 firearm enhancements. (Petition at 6, 14).
And to the extent that any claim in Grounds One through Four is meant to challenge the judgment in the State Criminal Case, such claim is second or successive and must be dismissed for the reasons set forth above.
Nor is this result changed because Petitioner alleges he received ineffective assistance of counsel during the P.C. § 1172.6 proceedings. See 28 U.S.C. § 2254 (i) (“The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.”); Coleman v. Thompson, 501 U.S. 722, 752 (1991) (“There is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” (citations omitted)); Orcasitas v. Asuncion, 2024 WL 1607504, *4 (C.D. Cal.) (“Nor can Petitioner raise a federal question by invoking the Sixth Amendment right to counsel, because even though Cal. Penal Code § 1172.6 may permit the appointment of counsel, ‘the Sixth Amendment guarantees no such right under federal law.'” (citations omitted)), report and recommendation accepted by, 2024 WL 1604637 (C.D. Cal. 2024); Thompson v. Martinez, 2023 WL 8939217, *7 (C.D. Cal. 2023) (“Petitioner's contention that his trial counsel was ineffective at [P.C. § 1172.6] resentencing proceedings and his appellate counsel was ineffective on appeal from those proceedings ‘is simply untenable'” and “fails to state a cognizable claim on federal habeas review.”), report and recommendation accepted by, 2024 WL 313612 (C.D. Cal. 2024); Baines v. Cisneros, 2022 WL 3155046, *1 (C.D. Cal. 2022) (“Even if state law might permit (or even require) appointment of counsel in certain resentencing proceedings, the Sixth Amendment guarantees no such right under federal law.” (citation omitted)).
“In sum, the Court lacks jurisdiction to consider [P]etitioner's second and successive claims going to his original conviction in the State [Criminal] Case, and any resentencing claims are without merit because [P]etitioner has not shown that his challenge to the state courts' denial of his resentencing petitions presents a viable federal question.” Cole, 480 F.Supp.3d at 1098.
IV.
ORDER
ACCORDINGLY, IT IS ORDERED that the Petition be dismissed.