Aaron Kirkpatrick v. W. L. Muniz

• Court: District Court, C.D. California
• Decided: October 1, 2019
• Docket: 2:17-cv-08917
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT "O" 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 AARON KIRKPATRICK, ) No. CV 17-08917-CAS (AGR) ) 12 Petitioner, ) ) ORDER ACCEPTING FINDINGS AND 13 v. ) RECOMMENDATION OF UNITED ) STATES MAGISTRATE JUDGE 14 T. FOSS, Warden, ) ) 15 Respondent. ) ) 16 17 18 Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file, including 19 the First Amended Petition for Writ of Habeas Corpus, the Report and 20 Recommendation (“Report”) of the United States Magistrate Judge, and the 21 Objections filed by Petitioner. Further, the Court has engaged in a de novo review of 22 those portions of the Report to which objections were made. The Court agrees with 23 the Report. 24 In his objections, Petitioner argues that the First Amended Petition is not 25 barred by the one-year statute of limitations under the AEDPA because the Superior 26 Court recently denied a petition pursuant to Cal. Penal Code § 1170.95. Petitioner 27 contends that the denial of his petition constitutes a new judgment. 28 After receiving the objections, the magistrate judge issued an order that 1 ordered supplemental briefing by the parties. On September 10, 2019, Respondent 2 lodged the documents and filed a supplemental brief. (Dkt. Nos. 37-38.) The court 3 has not received a supplemental brief from Petitioner. 4 On July 11, 2019, the Superior Court denied the petition for two reasons: (1) 5 Petitioner is not eligible for relief pursuant to Cal. Penal Code §§ 1170.95 and 6 189(e)(1); and (2) Cal. Penal Code § 1170.95 is unconstitutional for various reasons. 7 (Dkt. No. 38-8.) See People v. Gutierrez-Salazar, 38 Cal. App. 5th 411, 419 (2019) 8 (finding defendant was not entitled to relief under amended law). The Superior Court 9 “heard the evidence and remains convinced that [Petitioner] and his brother both 10 intentionally and deliberately shot an unarmed gang rival to death on May 16, 2011, 11 that [Petitioner] admitted he was one of the killers, and that as one of two actual 12 killers he is not eligible for sentencing relief pursuant to Penal Code §§ 1170.95 and 13 189(e)(1). (Id. at 2.) 14 The First Amended Petition does not challenge state court’s denial of the 15 petition filed under Cal. Penal Code § 1170.95. The judgment under which Petitioner 16 is being held in custody and challenged in the First Amended Petition is the judgment 17 that became final on April 26, 2016. (Report at 4); Compare Clayton v. Biter, 868 18 F.3d 840, 844 (9th Cir. 2017) (holding denial of petition for resentencing under Cal. 19 Penal Code § 1170.126 “results in the entry of a new appealable order or judgment” 20 and “therefore constitutes a new judgment”; finding federal habeas petition 21 challenging denial of that petition and not underlying conviction is therefore not 22 second or successive), with Davis v. Sullivan, 2018 U.S. App. LEXIS 19388, *1 (9th 23 Cir. July 13, 2018) (distinguishing Clayton when federal habeas petition does not 24 challenge denial of resentencing but rather original judgment of conviction). 25 Petitioner’s remaining objections are without merit. 26 IT IS ORDERED that Respondent’s motion to dismiss the First Amended 27 Petition for Writ of Habeas Corpus is GRANTED. 28 IT IS FURTHER ORDERED that Judgment be entered denying the First 1 Amended Petition for Writ of Habeas Corpus as untimely and dismissing the action 2 with prejudice. 3 4 5 6 DATED: October 01, 2019 CHRISTINA A. SNYDER 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28