(HC) Calderon v. Covello

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 JUAN CARLOS CALDERON, 11 Case No. 22-cv-03881 BLF (PR) Petitioner, 12 ORDER GRANTING MOTION TO v. DISMISS; DENYING CERTIFICATE 13 OF APPEALABILITY; DENYING 14 OTHER MOTIONS AS MOOT PATRICK COVELLO, Warden, 15 Respondent.

16 (Docket Nos. 22, 25, 26, 27) 17

18 Petitioner, a state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 19 U.S.C. § 2254 challenging his state conviction and sentence. Dkt. No. 1. The Court 20 screened the petition and found it stated cognizable claims; the Clerk was directed to serve 21 the matter on Respondent. Dkt. No. 18. On February 28, 2023, Respondent filed a motion 22 to dismiss the petition for failure to state a federal claim and for lack of federal habeas 23 jurisdiction, and even assuming the petition is properly before the Court, it is unexhausted, 24 insufficiently pleaded, and untimely. Dkt. No. 22. Petitioner filed a “memorandum of law 25 in support for all equitable tolling relief and general relief,” which has been construed as 26 an opposition. Dkt. No. 23. Respondent filed a reply. Dkt. No. 24. Subsequently, Petitioner filed additional papers and motions in this matter. Dkt. 27 1 did not obtain court approval prior to filing the additional briefing as required under Local 2 Rule 7-3(d). Accordingly, these papers will not be considered in deciding Respondent’s 3 motion. 4 For the reasons set forth below, Respondent’s motion to dismiss the petition is 5 GRANTED. 6 I. BACKGROUND 7 8 The Court takes judicial notice of the following facts regarding Petitioner’s 9 underlying conviction taken from another habeas action before this Court.1 See Calderon 10 v. Covello, Case No. 22-cv-03487-BLF (PR), Dkt. No. 27. Other information was taken 11 from the California Appellate Court’s Case Information website.2 12 In March 1993, a Santa Clara County Superior Court jury found Petitioner guilty of 13 second degree murder of his month-old son and two counts of felony child endangerment. 14 The trial court sentenced Petitioner to 21 years to life in state prison. 15 In 1994, the California Court of Appeal affirmed the conviction in an unpublished 16 opinion (No. H011306) on August 3, 1994. See Calderon v. Covello, Case No. 22-cv- 17 03487-BLF (PR), Dkt. No. 16-1. Petitioner did not petition for review in the California 18 Supreme Court. See fn. 3. 19 Petitioner filed habeas petitions in the California Court of Appeal in 1997 (No. 20 H017544) and in 2012 (No. H038953). Both petitions were summarily denied. See fn. 3. 21 On June 6, 2021, Petitioner filed a habeas petition in the Santa Clara County 22 Superior Court, which denied the petition on September 13, 2021. 23 In November and December 2021, Petitioner filed two additional habeas petitions in 24 1 A district court “may take notice of proceedings in other courts, both within and without 25 the federal judicial system, if those proceedings have a direct relation to matters at issue.” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (internal quotation marks and 26 citations omitted) (granting request to take judicial notice in § 1983 action of five prior cases in which plaintiff was pro se litigant, to counter her argument that she deserved 27 special treatment because of her pro se status). 1 the Santa Clara County Superior Court, one of which was denied in February 2022. 2 Petitioner filed habeas petitions in the California Court of Appeal in 2022 (Nos. 3 H050012, H050306, H050574). All three petitions were denied by the state appellate 4 court. Petitioner appealed the last petition (No. H050574) to the state high court, which 5 summarily denied the petition for review on January 25, 2023, (No. S277725). Id. 6 Petitioner filed an appeal from the superior court’s denial of a resentencing petition 7 under Penal Code § 1170.95 in the California Court of Appeal on June 10, 2022 (No. 8 H050107). The state appellate court affirmed the denial of the resentencing petition on 9 March 28, 2023, in an unpublished opinion. Id.; People v. Calderon, Case No. H050107, 10 (Cal. App. 6th Mar. 28, 2023) (“Calderon, No. H050107”). 11 Petitioner filed three habeas petitions in the California Supreme Court (Nos. 12 S277934, S279874, S280944). Id. The first petition (No. S277934) was filed on 13 December 30, 2022, and denied on February 1, 2023, with a reasoned opinion. The second 14 petition (No. S280944) was filed on July 12, 2023, and denied on July 26, 2023, with a 15 reasoned opinion. The third petition (No. S279874) was filed on May 4, 2023, and 16 summarily denied on July 26, 2023, the same date the second petition was denied. 17 Petitioner filed the instant action on November 10, 2021, in the Eastern District of 18 California. Dkt. No. 1. The matter was transferred to this Court on July 1, 2022. Dkt. No. 19 17. 20 The Court found the petition stated two cognizable claims (grounds one and two) 21 and ordered Respondent to answer. Dkt. No. 18. Respondent filed a motion to dismiss, 22 addressing all four claims from the petition: (1) Petitioner’s felony murder conviction is 23 unconstitutional under California Senate Bill 1437; (2) he was denied “due process” when 24 he was denied relief under California Senate Bill 260; (3) the California Board of Parole 25 Hearings (Board) denied his “transfer to [his] county Mexico under their own practices to 26 retain people under excessive time of confinement”; and (4) the Board has used its policies 27 “to retain lifer prisoners under excessive confinement.” Dkt. No. 22 at 7. 1 the basis of federal abstention under Younger v. Harris, 401 U.S. 37 (1971), because 2 Petitioner is still litigating this issue in the California Court of Appeal. Id. at 7-8. 3 However, that matter has since concluded as the state appellate court denied the petition on 4 March 28, 2023. See supra at 3. There is no indication that Petitioner filed a petition for 5 review in the state high court. Accordingly, this argument will be denied as moot. The 6 Court will consider the rest of Respondent’s arguments below.3 7 8 II. DISCUSSION 9 A. Federal Claims and Jurisdiction 10 Respondent first asserts that the petition should be dismissed because it does not 11 state a federal claim. Dkt. No. 22 at 8. With regard to claims two, three, and four, 12 Respondent also asserts they should be dismissed for lack of federal habeas jurisdiction. 13 Id. at 12. 14 1. Claim One – Resentencing under Senate Bill 1437 15 Under claim one, Petitioner argues that he is entitled to resentencing under Senate 16 Bill 1437 (“SB 1437”) and California Penal Code § 1170.95. In 2019, SB 1437 amended 17 the state’s felony murder rule and natural and probable consequences doctrine as it relates 18 to murder in order “‘to ensure that murder liability is not imposed on a person who is not 19 the actual killer, did not act with the intent to kill, or was not a major participant in the 20 underlying felony who acted with reckless indifference to human life.’” People v. 21 Martinez, 31 Cal.App.5th 719, 723, 242 Cal.Rptr.3d 860 (2019). In addition to amending 22 California Penal Codes §§ 188 and 189, SB 1437 added Penal Code § 1170.95 which 23 provides a procedure for those people who were previously convicted of felony murder or 24 murder under a natural and probable consequences theory to seek retroactive relief under 25 the amended statutes. Id. Petitioner claims he is entitled to relief because he was 26 3 Because the Court grants the dismissal for failure to state a cognizable claim and for lack 27 of federal habeas jurisdiction, it not necessary to reach Respondent’s remaining arguments 1 convicted of child endangerment (Penal Code § 273(a)(1)) and second degree felony 2 murder under the natural and probable consequences doctrine. Dkt. No. 1 at 4. 3 Respondent asserts that this claim rests entirely on an alleged state law violation. Dkt. No. 4 22 at 8. Respondent also asserts that although Petitioner references the “Due Process 5 Clause, Equal Protection Clause under the Sixth and Fourteenth Amendments of the U.S. 6 Const.,” he does not allege how or why his conviction or sentence violates any of these 7 federal laws. Id. As such, Respondent asserts, this claim fails to state a federal claim and 8 should be dismissed. Id. 9 Having carefully reviewed the papers in this matter, the Court concludes that this 10 claim fails to state a cognizable federal claim. The Supreme Court has repeatedly held that 11 federal habeas writ is unavailable for violations of state law or for alleged error in the 12 interpretation or application of state law. See Swarthout v. Cooke, 562 U.S. 216, 219 13 (2011); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). First of all, Petitioner’s challenge 14 to the state court’s denial of his resentencing petition under Penal Code § 1170.95 only 15 involves the interpretation and application of state sentencing laws and does not give rise 16 to a federal question cognizable on federal habeas review. See Christian v. Rhode, 41 F.3d 17 461, 469 (9th Cir. 1994) (“Absent a showing of fundamental unfairness, a state court’s 18 misapplication of its own sentencing laws does not justify federal habeas relief.”). The 19 fact that Petitioner attempts to characterize this state law claim as a violation of his federal 20 constitutional rights to due process, without more, is not sufficient. See Langford v. Day, 21 110 F.3d 1380, 1389 (9th Cir. 1996) (litigant cannot “transform a state-law issue into a 22 federal one merely by asserting a violation of due process”). A federal court can disturb 23 on due process grounds a state court’s procedural or evidentiary ruling only if the ruling 24 was arbitrary or so prejudicial that it rendered the trial fundamentally unfair. See Walters 25 v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995). 26 Furthermore, this Court is bound by a state court’s interpretation of state law in 27 habeas corpus, including one announced on direct appeal of the challenged conviction. 1 (1988). In affirming the denial of resentencing under Penal Code § 1170.95, the state 2 appellate court found that Petitioner was simply mistaken in his belief that his conviction 3 was tantamount to a felony murder conviction. See Calderon, No. H050107 at 4. The 4 record showed that Petitioner was convicted of second degree murder of his infant and of 5 felony child endangerment; the jury was not instructed on felony murder, and Petitioner 6 was convicted on the theory that he was the actual killer. Id. Accordingly, the state 7 appellate court found no arguable issues and affirmed the denial. Id. Based on this record, 8 Petitioner has failed to establish that the state courts’ rejection of his resentencing claim 9 under § 1170.95 was arbitrary and capricious. 10 Even if the state courts misapplied state law to deny relief, Petitioner does not 11 present a federal habeas claim. Other district courts have reached the same conclusion and 12 found that a state court’s alleged misapplication of Penal Code § 1170.95 does not present 13 a federal habeas claim. See, e.g., Harris v. Cisneros, 2022 WL 1082015, at *3 (N.D. Cal. 14 2022) (dismissing section 1170.95 claim because petitioner could not show state court’s 15 decision was arbitrary and capricious); Gomez v. Godwin, 2021 WL 871984, at *1-2 (C.D. 16 Cal. 2021) (same); Blacher v. Pollard, 2020 WL 8484690, at *3 (N.D. Cal. 2020) (same); 17 see also McCavitt v. Covello, 2022 WL 17813204 at *2-3 (recommending dismissal of 18 section 1170.95 claim in part because petitioner could not show the state court’s decision 19 was arbitrary and capricious, citing Blacher). Accordingly, claim one must be dismissed 20 for failure to state a cognizable federal claim. 21 2. Claim Two – Parole Hearing under SB 260 22 For the same reason as claim one, Respondent asserts claim two involving relief 23 under Senate Bill 260 (“SB 260”) should also be dismissed. Dkt. No. 22 at 8-9. 24 Respondent points out that Petitioner complains the Board is not following state law, 25 although it’s unclear how, and his passing reference to “due process” is insufficient to state 26 a federal claim. Id. at 9. SB 260 became law in January 2014, and established a parole 27 eligibility mechanism for juvenile offenders, who were under 18 years of age at the time of 1 Board to give special consideration to a youth offender’s age and maturity at the time of 2 the crime when evaluating parole suitability. Cal. Penal Code §§ 4801, 3051 (West 2022). 3 Respondent asserts that this claim must also be dismissed because Petitioner is again 4 attempting to transform a state law claim into a federal one, and alleged errors in the 5 application of state law are not cognizable in federal habeas corpus. Dkt. No. 22 at 9. 6 It appears that Petitioner cited to the wrong Senate Bill in the petition. SB 260 7 applies to juvenile offenders under the age of 18 at the time of the controlling offense. 8 However, Petitioner was older than eighteen years of age at the time his infant son died.4 9 This is further confirmed by Petitioner’s reference to Senate Bill 261 (“SB 261”) in his 10 opposition. Dkt. No. 23 at 1. SB 261 became law in January 2016, and expanded SB 260 11 by extending eligibility to youth offenders under 23 years of age. See Cal Penal Code § 12 3051. Petitioner asserts that he was denied relief as a youth offender “due to racial bias 13 and abuse of power/authority in violation of state laws and Penal Codes §§ 745 and 14 745(a),” and cites to several Supreme Court cases involving sentences that violated the 15 Eighth Amendment.5 Dkt. No. 23 at 1. However, he makes no specific argument either in 16 the petition nor in his opposition as to why his sentence violates the Eighth Amendment 17 under those cases. Id.; Dkt. No. 1 at 4-5. In reply, Respondent points out that these cases 18 are inapplicable as they involve life without parole sentences for juvenile offenders, and 19 Petitioner is serving a 21-years to life for an offense he committed when he was nineteen 20 years old. Dkt. No. 24 at 4. 21 Having carefully reviewed the papers in this matter, the Court concludes that this 22 claim also fails to state a cognizable federal claim because it is essentially based on an 23 alleged error in the application of state law. See Cooke, 562 U.S. at 219; Estelle, 502 U.S. 24 at 67-68. Petitioner’s attempt to transform it into a federal claim is not persuasive. 25

26 4 In reply, Respondent states that Petitioner was nineteen years old at the time of the incident. Dkt. No. 24 at 4. 27 1 Furthermore, this Court lacks habeas corpus jurisdiction over this SB 261 claim 2 because a favorable judgment would not “necessarily lead to [petitioner’s] immediate or 3 earlier release from confinement.” Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016) 4 (en banc), cert. denied, 137 S. Ct. 645 (2017). Nettles held that a prisoner’s claim which, 5 if successful, will not necessarily lead to immediate or speedier release from custody falls 6 outside the “core of habeas corpus” and must be pursued (if at all) in a civil rights action 7 under 42 U.S.C. § 1983, rather than in a habeas action. Id. at 927-28. Nettles makes it 8 clear that federal habeas relief is not available for this claim because a favorable judgment 9 for Petitioner would not necessarily mean immediate release from confinement or a shorter 10 stay in prison. At most, success would entitle petitioner to a Youth Offender Parole 11 Hearing, at which the parole board may, in its discretion, decline to grant parole. 12 Accordingly, this claim must be denied for failure to state a cognizable claim and for lack 13 of federal habeas jurisdiction. 14 3. Claim Three – Transfer to Mexico 15 Under claim three, Petitioner claims that the Board has denied his transfer to 16 Mexico “under their own practices to retain people under excessive time of confinement.” 17 Dkt. No. 1 at 5. Respondent asserts that this claim fails to state a federal claim. Dkt. No. 18 22 at 9. Respondent asserts that Petitioner’s reference to a “treaty” that permits transfers 19 “to help with social rehabilitation close to loved ones” and the allegation that the Board 20 has “used their policies or rules to over power [sic] the federal” are insufficient to state a 21 federal claim. Id. Respondent also points to Petitioner’s failure to identify the “policies 22 and rules” he alleges. Id. In opposition, Petitioner cites to 186 U.S.C. §§ 4100, 4100(b) 23 and §§ 4107-4109 of the “international treaty signed and ratified by acts of Congress to 24 provide equally even fair rights to people as foreign aliens to serve rehabilitative time of 25 imprisonment close to loved ones.” Dkt. No. 23 at 1. In reply, Respondent asserts that 26 6 Respondent points out that Petitioner actually cites to 28 U.S.C. § 4100, but this statute 27 does not exist. Dkt. No. 24 at 5, fn. 6, citing to Dkt. No. 23 at 1. Accordingly, we will 1 these federal statutes do not apply to California’s executive branch, which is in charge of 2 deciding whether Petitioner is suitable for parole, and Petitioner fails to show how this 3 Court has jurisdiction. Dkt. No. 24 at 5. 4 Foreign nationals may apply for transfer to their country of origin pursuant to their 5 rights under the foreign prisoner transfer treaty, 22 I.L.M. 530 (1983) (“Treaty”), which 6 were incorporated into California Penal Code §§ 2912 and 5028(a) and implemented in 7 part by 18 U.S.C.A. §§ 4100-15. However, the Treaty does not grant prisoners any right to 8 be transferred because Article III of the Treaty states that the decision to transfer is 9 discretionary and that “a sentenced person may be transferred under this Convention 10 only… if the sentencing and administering States agree to the transfer.” 22 I.L.M. 530, art. 11 3 (1983). Accordingly, the denial of Petitioner’s request to be transferred to Mexico did 12 not violate a federal right. Rather, he may challenge it, if at all, in the state courts. 13 Furthermore, as Respondent points out, Petitioner sets forth no argument that if he 14 were transferred to Mexico, his sentence would be shorter. Dkt. No. 22 at -13. As such, it 15 cannot be said that this claim lies in habeas where success on this claim would not 16 “necessarily spell speedier release.” Wilkinson v. Dotson, 544 U.S. 74, 82 (2005); Skinner 17 v. Switzer, 562 U.S. 521, 525 n.13 (2011). 18 Accordingly, this claim must be denied for failure to state a cognizable federal 19 claim and for lack of federal habeas jurisdiction. 20 4. Claim Four – Denial of Parole 21 Under claim four, Petitioner claims the Board has used its “polices or laws to retain 22 lifer prisoners under excessive confinement which over powers [sic] our constitutional 23 rights.” Dkt. No. 1 at 5. Petitioner asserts that the Board is using “confidential info” to 24 deny him a parole, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments. Id. 25 Respondent asserts that Petitioner’s references to various constitutional amendments is 26 insufficient to state a federal claim, and his reference to the Board’s use of confidential 27 information in denying parole is based on state law. Dkt. No. 22 at 9. Petitioner does not 1 Petitioner’s failure to respond to this claim and again asserts that it must be dismissed. 2 Dkt. No. 24 at 5. 3 In Swarthout v. Cooke, 562 U.S. 216, 220 (2011), the Supreme Court explained 4 that, in the context of parole, its earlier cases had “held that the procedures required are 5 minimal.” The Court earlier had “found that a prisoner subject to a parole statute similar 6 to California’s received adequate process when he was allowed an opportunity to be heard 7 and was provided a statement of the reasons why parole was denied.” Id. at 220 (citing 8 Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 16 (1979)). As long as 9 the petitioner received at least that much process, the federal court’s habeas review is at an 10 end. See Cooke, 562 U.S. at 220; see Miller v. Or. Bd. of Parole and Post-Prison 11 Supervision, 642 F.3d 711, 716 (9th Cir. 2011) (“The Supreme Court held in Cooke that in 12 the context of parole eligibility decisions the due process right is procedural, and entitles a 13 prisoner to nothing more than a fair hearing and a statement of reasons for a parole board's 14 decision[.]”) 15 In light of Cooke, if “an inmate seeking parole receives an opportunity to be heard, 16 a notification of the reasons as to denial of parole, and access to their records in advance,” 17 then there is no due process violation stemming from a claim that a parole denial did not 18 comply with California’s “some evidence” rule of judicial review. Pearson v. Muntz, 639 19 F.3d 1185, 1190-91 (9th Cir. 2011); Roberts v. Hartley, 640 F.3d 1042, 1047 (9th Cir. 20 2011) (quoting Pearson, 639 F.3d at 1191). Finally, the Ninth Circuit recognized that 21 Cooke clearly holds that the “responsibility for assuring that the constitutionally adequate 22 procedures governing California's parole system are properly applied rests with California 23 courts.” Roberts, 640 F.3d at 1047 (quoting Cooke, 562 U.S. at 222). 24 Here, there is no allegation that Petitioner was not afforded the minimum 25 procedural requirements under Greenholtz in the multiple parole headings he has received 26 since his first on January 2, 2007. Dkt. No. 22 at 30. Furthermore, even if there was a 27 procedural defect, the Ninth Circuit has made clear that relief must be sought in the state 1 hearing and not “necessarily spell speedier release.” Wilkinson, 544 U.S. at 82. 2 Accordingly, this claim must be denied for failure to state a cognizable federal claim and 3 for lack of federal habeas jurisdiction. 4 B. Petitioner’s Motions 5 Petitioner filed several motions for relief since this matter was submitted: (1) 6 motion for “legal notification for fully exhausted SB 1437 legal claim for relief…,” Dkt. 7 No. 25; (2) “general motion for notification of proper exhaustion of SB 1437 legal use in 8 state courts and for fair and just equitable tolling relief and legal relief…,” Dkt. No. 26; 9 and (3) “motion for injunctive equitable relief against racial bias, irrational madness and 10 deliberate indifference to serious health care needs…,” Dkt. No. 27. 11 It matters not that Petitioner has recently exhausted the SB 1437 claim because the 12 Court has found that it fails to state a cognizable federal claim. See supra at 6. 13 Furthermore, the Court has found no basis for federal habeas jurisdiction over any of the 14 claims raised in this action. Accordingly, there is no relief available to Petitioner through 15 this action.7 The motions are DENIED as moot. 16 17 III. CONCLUSION 18 For the foregoing reasons, Respondent’s motion to dismiss the petition is 19 GRANTED. Dkt. No. 22. The petition for a writ of habeas corpus is DENIED with 20 prejudice for failure to state a cognizable claim and for lack of federal habeas jurisdiction. 21 Petitioner’s motions for relief are DENIED as moot. Dkt. Nos. 25, 26, 27. 22 No certificate of appealability is warranted in this case. See Rule 11(a) of the Rules 23 Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring district court to rule on 24

25 7 With regard to new claims challenging conditions of confinement, such as the failure to provide adequate health care, Petitioner may only pursue them by filing a civil rights 26 action under 42 U.S.C. § 1983 against the appropriate defendants. To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the 27 Constitution or laws of the United States was violated and (2) that the alleged violation 1 || certificate of appealability in same order that denies petition). Petitioner has not shown 2 || “that jurists of reason would find it debatable whether the petition states a valid claim of 3 || the denial of a constitutional right and that jurists of reason would find it debatable 4 || whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 5 || U.S. 473, 484 (2000). 6 This order terminates Docket Nos. 22, 25, 26 and 27. 7 IT IS SO ORDERED.

BETH LABSON FREEMAN 9 United States District Judge 10 1] 12

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