(HC) Briscoe, III v. Eldridge

• Court: District Court, E.D. California
• Decided: February 3, 2020
• Docket: 1:19-cv-00389
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 JAMES ROBERT BRISCOE, III, ) Case No.: 1:19-cv-00389-DAD-JLT (HC) ) 12 Petitioner, ) FINDINGS AND RECOMMENDATION TO ) DENY PETITION FOR WRIT OF HABEAS 13 v. ) CORPUS ) 14 MICHAEL MARTEL, Warden, ) [THIRTY DAY OBJECTION DEADLINE] 15 Respondent. ) ) 16 )

17 Petitioner is currently serving a sentence of twelve years for his conviction of domestic 18 violence causing great bodily injury. He filed the instant habeas petition challenging the conviction. 19 As discussed below, the Court finds the claims to be without merit and recommends the petition be 20 DENIED. 21 I. FACTUAL AND PROCEDURAL HISTORY 22 On November 14, 2017, Petitioner entered a no-contest plea to one felony count of domestic 23 abuse resulting in a traumatic condition and admitted a sentencing enhancement that he personally 24 inflicted great bodily injury. (Doc. 51 at 9.) Petitioner further admitted two sentencing enhancements 25 for prior prison commitments for serious felony convictions. (Id.) In light of the plea, the prosecutor 26 dismissed three other cases against Petitioner. (Id.) Before accepting Petitioner's plea, the trial court 27 advised Petitioner that it would be difficult to calculate his custody credits, and there was no guarantee 28 how many credits Petitioner would receive. Petitioner acknowledged that he understood, and entered 1 his plea. (Id.) 2 On December 18, 2017, Petitioner was sentenced. (Id.) Pursuant to the plea agreement, the 3 court exercised its discretion to dismiss two prior strikes alleged against Petitioner. (Id.) The court 4 sentenced Petitioner to the low term of two years in state prison for the domestic violence count, but 5 stayed the imposition of the great bodily injury enhancement. (Id.) The court then imposed five years 6 of imprisonment for each of the prior serious felony enhancements, resulting in a total sentence of 7 twelve years in state prison. (Id.) Petitioner received credit for 3,471 days, comprised of 2,314 days in 8 actual custody, and 1,157 days of additional credit. (Id.) 9 On January 29, 2018, having received a report from the probation officer not previously 10 available, the court recalled Petitioner's case to modify the custody credits. (Id.) Petitioner was not 11 present, but his attorney was. (Id.) The court explained that it had miscalculated Petitioner's time 12 credits by applying the wrong statute, California Penal Code section 4019. (Id.) The actual statute 13 applicable to Petitioner was California Penal Code section 2933.1. (Id.) The result was that Petitioner 14 was eligible for only 2,661 days of credit, not the 3,471 previously assigned. (Id. at 9-10) The trial 15 court modified the judgment accordingly. (Id. at 10.) 16 Petitioner did not appeal his sentence. (Doc. 28 at 2.) Petitioner filed three state habeas 17 petitions challenging the state court judgement. (Id.) The first petition was filed on May 18, 2018 in 18 the Fresno County Superior Court and denied on June 6, 2018. (Id.; Doc. 34-3; Doc. 34-4.) The second 19 petition was filed on July 15, 2018 in the California Court of Appeal, Fifth Appellate District and 20 denied on September 13, 2018. (Id.; Doc. 34-5; Doc. 34-6.) The third petition was filed on October 8, 21 2018 in the California Supreme Court and denied on March 13, 2019. (Id.; Doc. 34-7; Doc. 34-8.) 22 Petitioner filed the instant habeas petition on March 22, 2019. (Doc. 1.) Petitioner filed a first 23 amended petition on April 18, 2019. (Doc. 17.) Respondent filed a motion to dismiss Petitioner’s 24 claim two regarding restitution because the claim failed to satisfy the custody requirement of 28 25 U.S.C. § 2254(a) and because it was unexhausted (28 U.S.C. § 2254(b)). (Doc. 28 at 1.) Petitioner 26 subsequently filed a motion to delete claim two. (Docs. 31, 32.) The Court granted these motions on 27 July 29, 2019. (Doc. 36.) Respondent filed its answer on November 1, 2019. (Doc. 51.) 28 /// 1 II. DISCUSSION 2 A. Jurisdiction 3 Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to 4 the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the 5 United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 6 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States 7 Constitution. The challenged conviction arises out of the Fresno County Superior Court, which is 8 located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d). 9 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 10 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. 11 Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases filed after 12 statute’s enactment). The instant petition was filed after the enactment of the AEDPA and is therefore 13 governed by its provisions. 14 B. Legal Standard of Review 15 A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the 16 petitioner can show that the state court’s adjudication of his claim: (1) resulted in a decision that was 17 contrary to, or involved an unreasonable application of, clearly established Federal law, as determined 18 by the Supreme Court of the United States; or (2) resulted in a decision that “was based on an 19 unreasonable determination of the facts in light of the evidence presented in the State court 20 proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 21 U.S. at 412-413. 22 A state court decision is “contrary to” clearly established federal law “if it applies a rule that 23 contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a set of facts 24 that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” 25 Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-406). 26 In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that an 27 “unreasonable application” of federal law is an objective test that turns on “whether it is possible that 28 fairminded jurists could disagree” that the state court decision meets the standards set forth in the 1 AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of federal 2 law is different from an incorrect application of federal law.’” Cullen v. Pinholster, 563 U.S. 170, 203 3 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “must show that 4 the state court’s ruling on the claim being presented in federal court was so lacking in justification that 5 there was an error well understood and comprehended in existing law beyond any possibility of 6 fairminded disagreement.” Harrington, 562 U.S. at 103. 7 The second prong pertains to state court decisions based on factual findings. Davis v. 8 Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). 9 Under § 2254(d)(2), a federal court may grant habeas relief if a state court’s adjudication of the 10 petitioner’s claims “resulted in a decision that was based on an unreasonable determination of the facts 11 in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539 U.S. 510, 520 12 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court’s factual finding is 13 unreasonable when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” 14 Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, 15 Maddox v. Taylor, 543 U.S. 1038 (2004). 16 To determine whether habeas relief is available under § 2254(d), the federal court looks to the 17 last reasoned state court decision as the basis of the state court’s decision. See Ylst v. Nunnemaker, 18 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[A]lthough we 19 independently review the record, we still defer to the state court’s ultimate decisions.” Pirtle v. 20 Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 21 The prejudicial impact of any constitutional error is assessed by asking whether the error had 22 “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. 23 Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007) (holding 24 that the Brecht standard applies whether or not the state court recognized the error and reviewed it for 25 harmlessness). 26 C. Review of Petition 27 Petitioner argues the following: (1) That Petitioner’s plea was induced by a promise that he 28 would receive particular time credits, and (2) That the state court improperly used Petitioner’s prior 1 convictions both as an aggravating factor in selecting his determinate term and as a basis for 2 enhancing his sentence. 3 1. Correction of Time Credits 4 Petitioner argues that his plea was induced by a promise that he would receive particular time 5 credits. Petitioner raised this claim by habeas petition to the state courts. In the last reasoned decision, 6 the Fresno County Superior Court ruled as follows: 7 Having considered the petition for writ of habeas corpus filed on May 21, 2018, the court finds that Petitioner has failed to state a prima facie case for relief. 8 Petitioner contends that the trial court violated the terms of his plea agreement in 9 Case No. F09904126 by failing to award him a total of 3,471 days of presentence 10 custody credits and by imposing a restitution fine in the amount of $7,200.00, despite the fact that the amount of his restitution fine was not a negotiated term of his plea 11 agreement.

12 A plea agreement "is a tripartiate agreement which requires the consent of the 13 defendant, the People and the court." (People v. Yu (1983) 143 Cal.App.3d 358, 371.) "As the People are held strictly to the terms of the plea bargain, the accused 14 also must be held to his agreement." (People v. Ames (1989) 213 Cal.App.3d 1214, 1218 [quoting People v. Masten (1982) 137 Cal.App.3d 579, 586].) 15 16 In the present case, Petitioner has failed to demonstrate that any specific award of presentence custody credits was a term of his plea agreement. In fact, at his change 17 of plea hearing, the court specifically advised Petitioner that there was "no guarantee," as to the award of presentence custody credits that he would receive. 18 THE COURT: All right. I want to talk a little bit about time credits. Because 19 this offense occurred in 2009, there have been many changes that have been 20 made to time credits since 2009. I will have Probation calculate your time credits that you have earned to today's date and I will go over it as best I can 21 to determine whether those time credits were calculated accurately. We obviously will do everything in our power to make sure that they are 22 calculated accurately, but I want to just tell you that there have been probably 23 6 to 10 changes in the law as to how those time credits get calculated since 2009. So it's complicated. That having been said, so I want to make sure 24 you understand there's no guarantee as to how many time credits you have currently. The only thing that we can guarantee is that we know 25 how many actual days you have served in custody. That's relatively easy 26 to calculate. Whether you get half-time credits, third-time credits, or anything else along those lines is going to be a little bit difficult to 27 calculate. You understand that?

28 THE DEFENDANT: Yes, Your Honor. 1 (People v. James Briscoe, Case No. F09904126 Change of Plea Hearing, 2 November 14, 2017 at p. 6: 11-26 & p. 7: 1-5 [emphasis added].)

3 At Petitioner's sentencing hearing, the court noted that the probation officer had not 4 prepared a report in time for the hearing and that there was a possibility of "issues, concerns [or] problems," that might become apparent after the probation report was 5 completed and that Petitioner might be returned to court "to deal with those issues." Having received that advisement, Petitioner agreed to be sentenced in the absence 6 of a probation report. (Petitioner, Ex. B.; People v. James Briscoe, Case No. 7 F09904126, December 18, 2017 at p. 4: 10-26 & p. 5: 1-17.) At sentencing, the trial court initially awarded Petitioner 2,314 actual days of presentence custody credit 8 and 1,157 days of presentence conduct credits for a total of 3,471 days of presentence credits. (Id. at p. 9: 10-13.) 9 10 After the probation report was completed, the trial court conducted a hearing on January 29, 2018. At this hearing, the court determined that Petitioner's presentence 11 conduct credits had been calculated incorrectly in light of the fact that Petitioner had been convicted of an offense involving the infliction of great bodily injury (Pen. 12 Code, § 12022.7), which is classified as a violent felony under the three strikes law. (See Pen. Code, § 667.5, subd. (c)(8) ["[a]ny felony in which the defendant inflicts 13 great bodily injury on any person other than an accomplice which has been charged 14 and proved as provided for in Section 12022.7" constitutes a violent felony under the three strikes law.].) Based on that determination, the sentencing court found that 15 Penal Code section 2933.1 limited Petitioner's award of presentence conduct credits to 15% of his actual time in custody. As a result, the court corrected Petitioner's 16 award of presentence custody credits to reflect that Petitioner had received the same 17 amount of actual custody days (2,314) but only 347 days of presentence conduct credits, for a total award of 2,661 of presentence custody credits. (People v. James 18 Briscoe, Case No. F09904126, January 29, 2018 at p. 3: 18-26, p. 4: 1.)

19 In fact, the award of presentence custody credits which are impermissible by law 20 results in an unauthorized sentence. (People v. Gisbert (2012) 205 Cal.App.4th 277, 279.) The imposition of an unauthorized sentence is subject to correction whenever 21 it comes to the attention of the trial court or a reviewing court. (People v. Scott (1994) 9 Cal.4th 331, 354-355; People v. Crooks (1997) 55 Cal.App.4th 797, 811.) 22 As the court noted, Petitioner's initial award of presentence conduct credits was 23 unlawful because Penal Code section 2933.1 restricts his award of conduct credit to 24 .15% of actual time served in custody. (Pen. Code, § 2933.1; People v. Fitzgerald (1997) 59 Cal.App.4th 932, 935 ["[s]ection 2933.1 limits the amount of presentence 25 conduct credits to 15 percent of the actual time served prior to trial when the offense of which a defendant is convicted is enumerated in section 667.5."].) Since 26 Petitioner's award of presentence custody credits was unauthorized, the court was 27 obligated to correct it when the error was brought to its attention. (People v. Scott, supra, 9 Cal.4th 331, 354-355; People v. Crooks, supra, 55 Cal.App.4th 797, 811.) 28 Considering that Petitioner spent 2,314 days in actual presentence custody, the court 1 correctly calculated that Petitioner was entitled to 347 [2,314 x .15] days of presentence conduct credits. (See Pen. Code, § 2933.1, subd. (c); see also People v. 2 Smith (1989) 211, Cal.App.3d 523, 526-527; In re Marquez (2003) 30 Cal.4th 14, 26.) As there was nothing improper with respect to the correction of Petitioner's 3 presentence custody credits, the court finds that Petitioner has failed to state a prima 4 facie case for relief.

5 (Doc. 34-4 at 1-5, emphasis in original.) 6 a. Legal Standard and Analysis 7 Petitioner challenges the state court's application of California law by contending that the trial 8 court violated the terms of his plea agreement by rejecting a premise that Petitioner was promised 9 particular credits as a plea inducement. Generally, the interpretation and application of state laws are 10 not cognizable on federal habeas. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. 11 Jeffers, 497 U.S. 764, 780 (1990)) (“We have stated many times that ‘federal habeas corpus relief does 12 not lie for errors of state law’”); Gilmore v. Taylor, 508 U.S. 333, 348-49 (1993) (O'Connor, J., 13 concurring) (“mere error of state law, one that does not rise to the level of a constitutional violation, 14 may not be corrected on federal habeas”); Sawyer v. Smith, 497 U.S. 227, 239 (1990) (quoting Dugger 15 v. Adams, 489 U.S. 401, 409 (1989) (“[T]he availability of a claim under state law does not of itself 16 establish that a claim was available under the United States Constitution”). To the extent the claim 17 concerns the interpretation and application of state law, it is not cognizable on federal habeas review. 18 Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A federal court may not issue the writ on the basis of a 19 perceived error of state law”). Moreover, federal courts are bound by state court rulings on questions 20 of state law. Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989). 21 As to any claim that the process violated Petitioner’s federal constitutional rights, in Santobello 22 v. New York, 404 U.S. 257 (1971), the Supreme Court held that, "when a plea rests in any significant 23 degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement 24 or consideration, such promise must be fulfilled." This rule has been regularly and consistently 25 invoked and applied in the Ninth Circuit. See, e.g., United States v. Camper, 66 F.3d 229, 232 (9th 26 Cir.1995); United States v. De La Fuente, 8 F.3d 1333, 1340 (9th Cir.1993); United States v. Arnett, 27 628 F.2d 1162, 1164 (9th Cir.1979). Here, however, no such promise or agreement is at issue. 28 Although Petitioner argues that his plea was induced by a promise that he would receive particular 1 time credits, it was not improper to correct Petitioner’s presentence custody credits. The state court 2 discussed that since Petitioner's initial award of presentence custody credits was unlawful, the court 3 was obligated to correct it when the error was brought to its attention. (Doc. 34-4 at 4.) 4 As noted by Respondent, there is no direct precedent from the Supreme Court which holds that 5 a certain type of hearing is required before a court accepts a defendant’s plea. Even if the trial court 6 were constitutionally required to ascertain whether his plea was made voluntarily, knowingly, and 7 intelligently, the state court’s determination would not be unreasonable. As noted by the state court, 8 the record shows Petitioner was personally present at the change of plea hearing at which the court 9 discussed the time credits and there being no guarantee as to how many time credits he had. (Doc. 34- 10 4 at 1-5.) The court specifically advised Petitioner that there was "no guarantee," as to the award of 11 presentence custody credits that he would receive, and Petitioner expressly acknowledged that he 12 understood. (Id. at 2.) The state court found that Petitioner failed to demonstrate that any specific 13 award of presentence custody credits was a term of his plea agreement. (Id. at 1.) Petitioner fails to 14 show that the state court rejection of his claim was unreasonable. 15 2. Reliance on Prior Convictions 16 Petitioner claims that the state court improperly used Petitioner’s prior convictions both as an 17 aggravating factor in selecting his determinate term and as a basis for enhancing his sentence. 18 However, Petitioner failed to raise this claim in state court. This claim is unexhausted and subject to 19 dismissal. Nevertheless, the Court will address the claim since it is not colorable and therefore may be 20 denied. 28 U.S.C. § 2254(b)(2); Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005). 21 It is well-settled that federal habeas relief is not available to state prisoners challenging state 22 law. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have stated many times that federal habeas 23 corpus relief does not lie for errors of state law.”); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 24 1997) (“alleged errors in the application of state law are not cognizable in federal habeas corpus” 25 proceedings). Thus, the claim is not cognizable on federal habeas and should be rejected. 26 In addition, as Respondent argues, the claim fails to present a federal question. Federal habeas 27 relief is barred unless Petitioner can demonstrate that the state court’s alleged failure was contrary to, 28 or an unreasonable application of, clearly established federal law as determined by the Supreme Court. 1 Petitioner’s claim is barred under § 2254(d). 2 III. RECOMMENDATION 3 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 4 DENIED with prejudice on the merits. 5 This Findings and Recommendation is submitted to the United States District Court Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 7 Rules of Practice for the United States District Court, Eastern District of California. Within thirty 8 days after being served with a copy of this Findings and Recommendation, any party may file written 9 objections with the Court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the Objections shall be 11 served and filed within ten court days (plus three days if served by mail) after service of the 12 Objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 13 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive 14 the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 16 IT IS SO ORDERED.

17 Dated: February 3, 2020 /s/ Jennifer L. Thurston 18 UNITED STATES MAGISTRATE JUDGE

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