Opinion
CV 22-4638-CAS(E)
09-13-2022
DARRYL WALKER, Petitioner, v. CALIFORNIA SUPREME COURT, ET AL., Respondents.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Honorable Christina A. Snyder, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on July 5, 2022. Respondent filed an Answer on August 23, 2022. Petitioner filed a "Response, etc." on September 9, 2022.
BACKGROUND
In 1994, a Superior Court jury found Petitioner guilty of second degree murder (ECF Doc. 10-1, pp. 215-16). During Petitioner's trial, the prosecution did not pursue any theory of felony murder, any theory of aiding and abetting murder or any theory that murder was the natural and probable consequence of some other crime aided and abetted by Petitioner (ECF Doc. 10-2, 10-3, 10-4). Rather, the prosecution pursued at trial only the theory that Petitioner was the actual killer of the murder victim (id.). Accordingly, the trial court did not instruct the jury with CALJIC 8.21 (felony murder instruction), CALJIC 3.01 (aiding and abetting instruction) or CALJIC 3.02 (natural and probable consequences instruction) (ECF Doc. 10-4, pp. 25-49).
In 2019, Senate Bill 1437, Cal. Stats. 2018, ch. 1015 "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.'" People v. Martinez, 31 Cal.App. 5th 719, 723, 242 Cal.Rptr.3d 860 (2019) (citation omitted). Senate Bill 1437, among other things, added California Penal Code section 1170.95, which, under certain circumstances, permitted a person convicted of felony murder or murder under a natural and probable consequences theory to file a petition with the sentencing court to vacate the petitioner's murder conviction and resentence the petitioner on any remaining counts.
Section 1170.95 subsequently was amended and renumbered as section 1172.6. Because Petitioner invokes section 1170.95, and because most of the case law cited herein mentions section 1170.95 rather than section 1172.6, the Court references the law by its former number.
Also in 2019, Petitioner filed in the Superior Court a petition for resentencing under section 1170.95 (ECF Doc. 10-15, pp. 133-35)-The Superior Court appointed counsel to represent Petitioner and received full briefing in support of and in opposition to the petition (see ECF Doc. 10-15, pp. 154-78, 267, ECF Doc. 10-16, pp. 2-34, 5256). The Superior Court then denied the petition as a matter of law (ECF Doc. 10-16, pp- 159-60)- The Superior Court observed that "[t]here were no jury instructions given by the trial court for aiding and abetting, felony murder, or natural and probable consequences" (id. at p. 159).
The California Court of Appeal affirmed, stating:
A defendant is ineligible for relief under section 1170.95 as a matter of law where the jury was not instructed on a natural and probable consequences or felony-murder theory of liability. The sole theory of liability presented to the jury in [Petitioner's] case was the theory that he was the actual killer; the jury was never instructed on the theories of liability through direct aiding and abetting, through felony murder or through aiding or abetting a lesser crime the natural and probable consequences of which was the murder (ECF Doc. 10-11, p. 5) (citations and quotations omitted).
The California Supreme Court summarily dismissed review (ECF Doc. 1014) .
The present Petition seeks to challenge the denial of Petitioner's petition for resentencing. Petitioner contends that this denial violated federal constitutional due process (Petition at 5).
DISCUSSION
The Petition should be denied and dismissed with prejudice. Petitioner has failed to demonstrate any prejudicial error of federal constitutional dimension.
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).
In accordance with these authorities, this Court repeatedly has held that a state court's allegedly erroneous denial of resentencing under section 1170.95 does not raise an issue cognizable on federal habeas review. See, e,g., Dixon v. Pallares, 2022 WL 2892413, at *2 (C.D. Cal. May 24, 2022), adopted, 2022 WL 2870526 (C.D. Cal. July 21, 2022); Crane v. Diaz, 2021 WL 6752230, at *3 (C.D. Cal. Sept. 14, 2021), adopted, 2022 WL 3030522 (C.D. Cal. Aug. 1, 2022); Salazar v. Spearman, 2021 WL 4539080, at *19 (C.D. Cal. Aug. 30, 2021), adopted, 2022 WL 1778386 (C.D. Cal. May 31, 2022); Gomez v. Godwin, 2021 WL 871984, at *1 (C.D. Cal. March 8, 2021); Salazar v. Spearman, 2020 WL 2095792, at *2 (C.D. Cal. Feb. 19, 2020); Walker v. Pfeiffer, 2019 WL 7194557, at *1 (C.D. Cal. Dec. 26, 2019); Carter v. Koenig, 2019 WL 6331375, at *5 (C.D. Cal. Oct. 30, 2019), adopted, 2019 WL 6330638 (C.D. Cal. Nov. 22, 2019); Davis v. Munoz, 2019 WL 2424540, at *4 (C.D. Cal. May 2, 2019), adopted, 2019 WL 2424107 (C.D. Cal. June 7, 2019). Petitioner's conclusory characterization of the state courts' alleged errors as violations of due process 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).
Moreover, even if Petitioner's claim(s) somehow were cognizable here, the claim(s) would fail as a matter of law. The absence from Petitioner's trial of any instruction on felony murder, target crimes, natural and probable consequences, or aiding and abetting prevented Petitioner from making any prima facie showing of entitlement to relief under section 1170.95. See, e,g., Salazar v. Spearman, 2021 WL 4539080, at *19; People v. Coley, 77 Cal.App. 5th 539, 542, 292 Cal.Rptr.3d 257 (2022); People v. Soto, 51 Cal.App. 5th 1043, 1058-59, 265 Cal.Rptr.3d 571 (2020), abrogated on other grounds, People v. Lewis, 11 Cal. 5th 952, 281 Cal.Rptr.3d 521, 491 P.3d 309 (2021).
One of the jury instructions at Petitioner's trial did use the words "direct, natural, and probable consequence" (ECF Doc, 10-4 p, 43). However, the instruction used this phrase only in defining the concept of cause of death (id.). As the Court of Appeal correctly found, this instruction had nothing to do with vicarious liability for aiding and abetting. See People v. Soto, 51 Cal, App, 5th at 1059 ("the 'natural consequences' language in the instruction for second degree murder does not transform Soto's conviction into one for murder under the natural and probable consequences doctrine within the meaning of section 1170.95") .
Petitioner appears to complain in particular of the Superior Court's failure to hold an oral hearing before denying the petition for resentencing. Even if this Court were to recognize a federal due process right to an oral hearing before a state court's denial of resentencing, habeas relief would be unavailable in the present case. The principles of Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) forbid the granting of federal habeas relief for a non-structural error that had no "substantial and injurious effect or influence" on the outcome of the state proceeding. For the reasons discussed above, no such effect or influence proceeded from the Superior Court's failure to hold an oral hearing. Cf. People v. Coley, 77 Cal.App. 5th at 262 ("the failure to hold a hearing did not cause prejudice because appellant was ineligible for resentencing as a matter of law").
The correctness as a matter of law of the state courts' denial of resentencing also would preclude any determination that the denial was "so arbitrary or capricious as to constitute an independent due process [violation]" under Richmond v. Lewis, 506 U.S, 40, 50 (1992) (holding that under certain circumstances a state court's arbitrary or capricious misapplication of state sentencing law may violate federal due proces).
Respondent contends that Petitioner's claim(s) are unexhausted.
The Court need not and does not address this contention. Federal habeas courts may deny on the merits exhausted claims that are not "colorable." Cassett v. Stewart, 406 F.3d 614, 623 (9th Cir. 2005), cert, denied, 546 U.S. 1172 (2006). For the reasons discussed above, Petitioner's claim(s) are not "colorable."
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.
As the above discussion demonstrates, the Petition should be denied because Petitioner is not "in custody in violation of the Constitution or laws or treaties of the United States," within the meaning of section 2254(a) of Title 28 U.S.C. The Court need not and does not reach the issue of whether the Petition, or any claim therein, also should be denied on the alternative ground of failing to satisfy the requirements of section 2254(d) of Title 28 U.S.C.
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.