1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY SCOTT CLYDE, No. 2:19-CV-02070-MCE-DMC-P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 MARION E. SPEARMAN, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding without counsel, brings this petition for a 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the Court are Petitioner’s 19 petition for a writ of habeas corpus, ECF No. 18, and Respondent’s answer, ECF No. 21. 20 Petitioner has not filed a traverse. Respondent has lodged the state court record, ECF Nos. 13 & 21 20. 22 Petitioner asserts one claim: that he should be re-sentenced in light of California 23 Senate Bill 1319. ECF No. 18. The most recent reasoned decision on the matter is from the State 24 Superior Court. ECF No. 13-15 & 13-17. Having reviewed the petition and the record, the 25 undersigned recommends that Petitioner’s petition should be denied. 26 / / / 27 / / / 28 1 I. BACKGROUND 2 A jury found Petitioner guilty of the following crimes: assault by means of force 3 likely to produce great bodily injury, causing injury to an elder adult with force likely to cause 4 great bodily injury, and attempting to dissuade a witness. ECF No. 13-15. The trial court 5 sentenced him to thirteen years.1 Id. 6 Petitioner filed this petition in federal court on October 8, 2019, ECF No. 1, and an 7 amended petition on May 26, 2020, ECF No. 18. On August 30, 2019, Petitioner filed a petition 8 (62-125535) for habeas corpus with the Placer County Superior Court. ECF No. 13-16. 9 Petitioner’s grounds in that petition included his request to be re-sentenced pursuant to California 10 Senate Bill 13932 and ineffective assistance of counsel. Id. The trial court denied that petition on 11 September 16, 2019. ECF No. 13-17. The trial court noted that while S.B. 1393 does apply 12 retroactively, California law clearly states that it does not apply retroactively for cases that were 13 final before the law went into effect on January 1, 2019. See People v. Lara, 4 Cal.5th 299 14 (2018). It noted that S.B. 1393 would not apply to Petitioner’s case because his conviction was 15 final on June 18, 2018. ECF No. 13-17. 16 On September 27, 2019, Petitioner filed a petition for habeas corpus with the 17 California Supreme Court (S258396). ECF No. 13-19. There, he requested that he be re- 18 sentenced in light of California S. B. 1393. Id. That petition was denied on January 2, 2020.3 19 Next, Petitioner filed two petitions for habeas corpus relief with the California Court of Appeal: 20 C092029 (filed May 27, 2020; denied June 15, 2020) and C092456 (filed August 10, 2020;
21 1 On direct appeal, the Court of Appeal determined that the trial court had erroneously stayed, as opposed to stricken, a one-year enhancement for Petitioner’s 2010 prior prison term 22 because the conviction was not defined as serious felony. ECF No. 13-11 at 7. Relying on 23 People v. Langston (2004) 33 Cal.4th 1237, 1241, the Court struck the one-year enhancement imposed for Petitioner’s 2010 prison term. Id. 24 2 S.B. 1393, Chaptered as 1013, amended California Penal Code Sections 667 and 1385. This law, in relevant portions, removed a trial court’s prohibition against striking any prior 25 serious felony convictions for purposes of enhancing a sentence. In other words, it allowed sentencing courts discretion on whether to add a sentencing enhancement for a prior serious 26 felony conviction. 27 3 The denial from the California Supreme Court was not included in the lodged documents, however, the denial can be found on the Supreme Court’s website: California Courts - 28 Appellate Court Case Information. 1 denied August 21, 2020)—both of which were denied without a reasoned decision. ECF Nos. 20- 2 1, 20-2, 20-3, 20-4. Both denials cited In re Steele (2004) 32 Cal.4th 682, 692 and In re Hillery 3 (1962) 202 Cal.App.2d 293, 294.4 ECF Nos. 20-2 & 20-4. 4 5 II. EXHAUSTION 6 Under 28 U.S.C. § 2254(b), the exhaustion of available state remedies is required 7 before claims can be granted by the federal court in a habeas corpus case. See Rose v. Lundy, 8 455 U.S. 509 (1982); see also Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. Pliler, 9 336 F.3d 839 (9th Cir. 2003).5 The exhaustion doctrine is based on a policy of federal and state 10 comity, designed to give state courts the initial opportunity to correct alleged constitutional 11 deprivations. See Picard v. Connor, 404 U.S. 270, 275 (1971); see also Rose, 455 U.S. at 518. 12 “A petitioner may satisfy the exhaustion requirement in two ways: (1) by providing the highest 13 state court with an opportunity to rule on the merits of the claim . . .; or (2) by showing that at the 14 time the petitioner filed the habeas petition in federal court no state remedies are available to the 15 petitioner and the petitioner has not deliberately by-passed the state remedies.” Batchelor v. 16 Cupp, 693 F.2d 859, 862 (9th Cir. 1982) (citations omitted). Exhaustion is not a jurisdictional 17 requirement and the court may raise the issue sua sponte. See Simmons v. Blodgett, 110 F.3d 39, 18 41 (9th Cir. 1997). 19 Regardless of whether the claim was raised on direct appeal or in a post-conviction 20 proceeding, the exhaustion doctrine requires that each claim be fairly presented to the state’s 21 highest court. See Castille v. Peoples, 489 U.S. 346 (1989). Although the exhaustion doctrine 22 requires only the presentation of each federal claim to the highest state court, the claims must be 23 presented in a posture that is acceptable under state procedural rules. See Sweet v. Cupp, 640 24 F.2d 233 (9th Cir. 1981). Thus, an appeal or petition for post-conviction relief that is denied by 25 the state courts on procedural grounds, where other state remedies are still available, does not 26 4 The Court of Appeal’s citation to these cases evidence that Petitioner did not properly 27 seek relief from the lower court prior to filing his petition with the Court of Appeal. 5 Claims may be denied on the merits notwithstanding lack of exhaustion. See 28 U.S.C. 28 § 2254(b)(2). 1 exhaust the petitioner’s state remedies. See Pitchess v. Davis, 421 U.S. 482, 488 (1979); Sweet, 2 640 F.2d at 237-89.6 3 To satisfy the exhaustion requirement, a petitioner must “fairly present[ ]” his 4 claims to the state courts, including the California Court of Appeal and, ultimately, the California 5 Supreme Court, in accordance with the state’s procedures. O’Sullivan v. Boerckel, 526 U.S. 838, 6 845 (1999) (habeas petitioner must give the state courts “one full opportunity” to decide a federal 7 claim by carrying out “one complete round” of the state’s appellate process); Gatlin v. Madding, 8 189 F.3d 882
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY SCOTT CLYDE, No. 2:19-CV-02070-MCE-DMC-P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 MARION E. SPEARMAN, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding without counsel, brings this petition for a 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the Court are Petitioner’s 19 petition for a writ of habeas corpus, ECF No. 18, and Respondent’s answer, ECF No. 21. 20 Petitioner has not filed a traverse. Respondent has lodged the state court record, ECF Nos. 13 & 21 20. 22 Petitioner asserts one claim: that he should be re-sentenced in light of California 23 Senate Bill 1319. ECF No. 18. The most recent reasoned decision on the matter is from the State 24 Superior Court. ECF No. 13-15 & 13-17. Having reviewed the petition and the record, the 25 undersigned recommends that Petitioner’s petition should be denied. 26 / / / 27 / / / 28 1 I. BACKGROUND 2 A jury found Petitioner guilty of the following crimes: assault by means of force 3 likely to produce great bodily injury, causing injury to an elder adult with force likely to cause 4 great bodily injury, and attempting to dissuade a witness. ECF No. 13-15. The trial court 5 sentenced him to thirteen years.1 Id. 6 Petitioner filed this petition in federal court on October 8, 2019, ECF No. 1, and an 7 amended petition on May 26, 2020, ECF No. 18. On August 30, 2019, Petitioner filed a petition 8 (62-125535) for habeas corpus with the Placer County Superior Court. ECF No. 13-16. 9 Petitioner’s grounds in that petition included his request to be re-sentenced pursuant to California 10 Senate Bill 13932 and ineffective assistance of counsel. Id. The trial court denied that petition on 11 September 16, 2019. ECF No. 13-17. The trial court noted that while S.B. 1393 does apply 12 retroactively, California law clearly states that it does not apply retroactively for cases that were 13 final before the law went into effect on January 1, 2019. See People v. Lara, 4 Cal.5th 299 14 (2018). It noted that S.B. 1393 would not apply to Petitioner’s case because his conviction was 15 final on June 18, 2018. ECF No. 13-17. 16 On September 27, 2019, Petitioner filed a petition for habeas corpus with the 17 California Supreme Court (S258396). ECF No. 13-19. There, he requested that he be re- 18 sentenced in light of California S. B. 1393. Id. That petition was denied on January 2, 2020.3 19 Next, Petitioner filed two petitions for habeas corpus relief with the California Court of Appeal: 20 C092029 (filed May 27, 2020; denied June 15, 2020) and C092456 (filed August 10, 2020;
21 1 On direct appeal, the Court of Appeal determined that the trial court had erroneously stayed, as opposed to stricken, a one-year enhancement for Petitioner’s 2010 prior prison term 22 because the conviction was not defined as serious felony. ECF No. 13-11 at 7. Relying on 23 People v. Langston (2004) 33 Cal.4th 1237, 1241, the Court struck the one-year enhancement imposed for Petitioner’s 2010 prison term. Id. 24 2 S.B. 1393, Chaptered as 1013, amended California Penal Code Sections 667 and 1385. This law, in relevant portions, removed a trial court’s prohibition against striking any prior 25 serious felony convictions for purposes of enhancing a sentence. In other words, it allowed sentencing courts discretion on whether to add a sentencing enhancement for a prior serious 26 felony conviction. 27 3 The denial from the California Supreme Court was not included in the lodged documents, however, the denial can be found on the Supreme Court’s website: California Courts - 28 Appellate Court Case Information. 1 denied August 21, 2020)—both of which were denied without a reasoned decision. ECF Nos. 20- 2 1, 20-2, 20-3, 20-4. Both denials cited In re Steele (2004) 32 Cal.4th 682, 692 and In re Hillery 3 (1962) 202 Cal.App.2d 293, 294.4 ECF Nos. 20-2 & 20-4. 4 5 II. EXHAUSTION 6 Under 28 U.S.C. § 2254(b), the exhaustion of available state remedies is required 7 before claims can be granted by the federal court in a habeas corpus case. See Rose v. Lundy, 8 455 U.S. 509 (1982); see also Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v. Pliler, 9 336 F.3d 839 (9th Cir. 2003).5 The exhaustion doctrine is based on a policy of federal and state 10 comity, designed to give state courts the initial opportunity to correct alleged constitutional 11 deprivations. See Picard v. Connor, 404 U.S. 270, 275 (1971); see also Rose, 455 U.S. at 518. 12 “A petitioner may satisfy the exhaustion requirement in two ways: (1) by providing the highest 13 state court with an opportunity to rule on the merits of the claim . . .; or (2) by showing that at the 14 time the petitioner filed the habeas petition in federal court no state remedies are available to the 15 petitioner and the petitioner has not deliberately by-passed the state remedies.” Batchelor v. 16 Cupp, 693 F.2d 859, 862 (9th Cir. 1982) (citations omitted). Exhaustion is not a jurisdictional 17 requirement and the court may raise the issue sua sponte. See Simmons v. Blodgett, 110 F.3d 39, 18 41 (9th Cir. 1997). 19 Regardless of whether the claim was raised on direct appeal or in a post-conviction 20 proceeding, the exhaustion doctrine requires that each claim be fairly presented to the state’s 21 highest court. See Castille v. Peoples, 489 U.S. 346 (1989). Although the exhaustion doctrine 22 requires only the presentation of each federal claim to the highest state court, the claims must be 23 presented in a posture that is acceptable under state procedural rules. See Sweet v. Cupp, 640 24 F.2d 233 (9th Cir. 1981). Thus, an appeal or petition for post-conviction relief that is denied by 25 the state courts on procedural grounds, where other state remedies are still available, does not 26 4 The Court of Appeal’s citation to these cases evidence that Petitioner did not properly 27 seek relief from the lower court prior to filing his petition with the Court of Appeal. 5 Claims may be denied on the merits notwithstanding lack of exhaustion. See 28 U.S.C. 28 § 2254(b)(2). 1 exhaust the petitioner’s state remedies. See Pitchess v. Davis, 421 U.S. 482, 488 (1979); Sweet, 2 640 F.2d at 237-89.6 3 To satisfy the exhaustion requirement, a petitioner must “fairly present[ ]” his 4 claims to the state courts, including the California Court of Appeal and, ultimately, the California 5 Supreme Court, in accordance with the state’s procedures. O’Sullivan v. Boerckel, 526 U.S. 838, 6 845 (1999) (habeas petitioner must give the state courts “one full opportunity” to decide a federal 7 claim by carrying out “one complete round” of the state’s appellate process); Gatlin v. Madding, 8 189 F.3d 882, 888 (9th Cir. 1999) (“To exhaust a habeas claim properly, a petitioner must present 9 his claim to the state supreme court even if that court's review is discretionary. Because 10 California’s established, normal appellate review procedure is a two-tiered system, [petitioner] 11 was required to exhaust his habeas claims in a petition for review to the California Supreme 12 Court.”). 13 In addition to presenting the claim to the state court in a procedurally acceptable 14 manner, exhaustion requires that the petitioner make the federal basis of the claim explicit to the 15 state court by including reference to a specific federal constitutional guarantee. See Gray v. 16 Netherland, 518 U.S. 152, 162-63 (1996); see also Shumway v. Payne, 223 F.3d 982, 998 (9th 17 Cir. 2000). It is not sufficient for the petitioner to argue that the federal nature of the claim is 18 self-evident. See Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by 247 F.3d 19 904 (9th Cir. 2001). Nor is exhaustion satisfied if the state court can only discover the issue by 20 reading a lower court opinion in the case. See Baldwin v. Reese, 541 U.S. 27, 32 (2004). 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 6 This situation of procedural deficiency is distinguishable from a case presented to the 27 state court using proper procedures but where relief on the merits is precluded for some procedural reason, such as untimeliness or failure to raise the claim on direct appeal. The former 28 represents an exhaustion problem; the latter represents a procedural default problem. 1 III. DISCUSSION 2 Petitioner has not satisfied the necessary exhaustion requirements to warrant 3 consideration of this petition. While Petitioner has filed a petitioner for habeas relief with the 4 California Supreme Court, he did so before he sought relief from the California Court of Appeal. 5 See O’Sullivan, 526 U.S. at 845. Petitioner filed his petition with the California Supreme Court 6 on September 27, 2019, which was denied on January 2, 2020. Then, he filed his petitions with 7 the California Court of Appeal on May 27, 2020, and August 10, 2020, both denied on June 15, 8 2020, and August 21, 2020, respectively. Therefore, Petitioner has not provided the highest state 9 court with an opportunity to rule on the merits of the claim as is required. See O’Sullivan v. 10 Boerckel, 526 U.S. 838, 845 (1999); see also Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 11 1999) (holding that California requires presentation of claim to California Supreme Court through 12 petition for discretionary review in order to exhaust state remedies). It also appears that the Court 13 of Appeal denied Petitioner’s petitions on the basis that he did not properly bring his claims in the 14 trial court. 15 Additionally, Petitioner has not shown that at the time he filed the habeas petition 16 in federal court, no state remedies were available. As discussed above, the current petition was 17 submitted to the Court on October 8, 2019. At the time, Petitioner had not received decisions on 18 his petitions from either the California Supreme Court or the California Court of Appeal. Thus, 19 state-based remedies were available to Petitioner at the time of filing his petition since he was 20 actively engaged in them. 21 The Court will briefly address the merits of Petitioner’s claim. Petitioner argues 22 that he should be re-sentenced in light of California’s enactment of S.B. 1393. However, in order 23 to be entitled to relief from this court—Petitioner must assert a valid, constitutional interest. 24 Numerous courts in our jurisdiction have specifically concluded that petitioners seeking relief for 25 re-sentencing under S.B. 1393 do not state a cognizable claim for federal habeas review. See 26 Revis v. Diaz, No. CV 21-6643-GW (PLA), 2021 WL 3847799, at *2 (C.D. Cal. Aug. 26, 2021) 27 (“Petitioner’s claim seeking sentencing relief under SB 1393 is purely a state law matter as it does 28 not present any federal question. Accordingly, this claim is not cognizable in a federal habeas 1 | action.); Burchett v. Martel, 2020 WL 1847131, *1-*2 (C.D. Cal. Mar. 11, 2020) (holding that the 2 | petitioner’s claim that he is entitled to resentencing under Senate Bill 1393 was not cognizable on 3 || federal habeas review); Bush vy. Davis, No. 20-CV-01254-WHO (PR), 2020 WL 7043882, at *3 4 | (N.D. Cal. Dec. 1, 2020) (concluding “federal district courts have rejected SB 1393 sentencing 5 | claims for failure to state a cognizable federal habeas claim’). 6 Thus, Petitioner is cautioned that if he seeks to renew his petition for federal 7 | habeas relief, he must first exhaust his state court remedies and that seeking re-sentencing under 8 | S.B. 1393 is not a valid federal habeas claim. 9 10 I. CONCLUSION 11 Based on the foregoing, the undersigned recommends that Petitioner’s petition for 12 | habeas corpus, ECF No. 18, be denied. 13 These findings and recommendations are submitted to the United States District 14 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 15 || after being served with these findings and recommendations, any party may file written 16 | objections with the court. Responses to the objections shall be filed within 14 days after service 17 | of objections. Failure to file objections within the specified time may waive the right to appeal. 18 | See Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 19 20 | Dated: March 18, 2022 71 DENNIS M. COTA 27 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28