(HC) Dynes v. Fresno County Superior Court

Opinion

JOHN RAY DYNES, ) Case No.: 1:19-cv-01697-JLT (HC) ) Petitioner, ) FINDINGS AND RECOMMENDATION TO ) DENY PETITION FOR WRIT OF HABEAS v. ) CORPUS ) KEN CLARK, Warden, ) [THIRTY-DAY OBJECTION DEADLINE] Respondent. ) ) )

Petitioner is currently serving a sentence of eight years and four months for robbery and carrying a concealed dirk or dagger. He filed the instant habeas petition challenging the conviction and sentence. As discussed below, the Court finds the claims to be without merit and recommends the petition be DENIED. Respondent has custody of Petitioner pursuant to the judgment of the California Superior Court, Fresno County, Case Nos. F13907336 and F14902059. In case number F13907336, Petitioner pled no contest to one count of robbery, admitted a prior conviction constituting a strike, and admitted he served three prior prison terms. He was sentenced to seven years. In case number F14902059, Petitioner pled guilty to carrying a concealed dirk or dagger and was sentenced to one year four months, consecutive to the sentence in case number F13907336. Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). People v. Dynes, 2018 Cal. App. Unpub. LEXIS 1654 (Cal. App. 5th Dist. March 14, 2018). The Fifth DCA affirmed the judgment. Id. On November 24, 2014, Petitioner filed a petition for resentencing in the Fresno County Superior Court (LD1 3), which was denied on January 15, 2015 (LD 4). Petitioner filed a notice of appeal on February 9, 2015 (LD 6), and the Fifth DCA entered its opinion on May 25, 2016 (LD 7). The Fresno County Superior Court minute order dated May 11, 2015 granted Petitioner’s application to reduce two felony convictions to misdemeanors (LD 8). Petitioner filed a petition for writ of habeas corpus in the Fresno County Superior Court on June 15, 2015 (LD 9), which was denied on July 8, 2015 (LD 10). On October 30, 2015, Petitioner filed a petition for modification of sentence in the Fresno County Superior Court (LD 11), which the court denied on December 22, 2015 (LD 12). Petitioner filed an application for reduction of felony conviction in the Fresno County Superior Court on November 9, 2015 (LD 13), which was denied on December 22, 2015 (LD 14). Petitioner filed a petition for writ of habeas corpus in the Fresno County Superior Court on November 9, 2015 (LD 15), which the court denied on December 29, 2015 (LD 16). On July 11, 2016, Petitioner filed a petition for writ of habeas corpus filed in the Fresno County Superior Court (LD 17), which the court denied on August 16, 2016 (LD 18). Petitioner filed a petition for resentencing in the Fresno County Superior Court on July 18, 2016 (LD 19), which was denied on August 19, 2016 (LD 20). On July 29, 2016, Petitioner filed a petition for resentencing in the Fresno County Superior Court (LD 21), which was denied on August 19, 2016 (LD 22). Petitioner filed a petition for resentencing in the Fresno County Superior Court on August 15, 2016 (LD 23), which was denied on August 19, 2016 (LD 24). On October 12, 2016, Petitioner filed a notice of appeal (LD 25), and the Fifth DCA filed its opinion on March 14, 2018 (LD 26). Petitioner filed a petition for resentencing in the Fresno County Superior Court on December 20, 2016 (LD 27), and the court entered its denial order on February 1, 2017 (LD 28). On February 14, 2017, Petitioner filed a notice of appeal (LD 29), and the Fifth DCA entered its dismissal order on February 15, 2018 (LD 30). Petitioner filed a petition for writ of habeas corpus on March 17, 2017 (LD 31), which the Fresno County Superior Court denied on April 14, 2017 (LD 1 32). Petitioner filed a petition for writ of habeas corpus on March 17, 2017 (LD 33), which the Fresno County Superior Court denied on April 14, 2017 (LD 34). Petitioner filed a petition for writ of habeas corpus filed on March 17, 2017 (LD 35), which the Fresno County Superior Court denied on May 17, 2017 (LD 36). On March 23, 2017, Petitioner filed a petition for writ of habeas corpus (LD 37), which the Fresno County Superior Court denied on May 3, 2017 (LD 38). Petitioner filed a petition for writ of habeas corpus on April 3, 2017 (LD 39), which the Fresno County Superior Court denied on May 17, 2017 (LD 40). On April 27, 2017, a docket sheet for Petitioner’s appeal was filed in the Fifth DCA (LD 41). A dismissal order was filed in the Fresno County Superior Court on August 9, 2018 (LD 42). On April 18, 2017, Petitioner filed a petition for writ of habeas corpus in the Fresno County Superior Court (LD 43), which was denied on May 23, 2017 (LD 44). On May 11, 2017, a docket sheet for Petitioner’s appeal was filed in the Fifth DCA (LD 45), and a dismissal order was filed on June 1, 2017 (LD 46). Petitioner filed a petition for writ of habeas corpus in the Fifth DCA on June 21, 2017 (LD 47), which the Fifth DCA denied on June 29, 2017 (LD 48). Petitioner filed a petition for writ of habeas corpus in the Fifth DCA on August 22, 2017 (LD 49), which was denied on August 30, 2017 (LD 50). On March 12, 2018, Petitioner filed a petition for writ of habeas corpus in the Fresno County Superior Court (LD 51), which the court denied on April 12, 2018 (LD 52). A docket sheet from the California Courts’ website shows a petition for review was filed in the California Supreme Court on March 20, 2018 (LD 53), which was denied on April 25, 2018 (LD 54). On July 1, 2019, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court (LD 55), which was denied on September 25, 2019 (LD 56). On December 4, 2019, Petitioner filed the instant habeas petition in this Court (Doc. 1) and a first amended petition on February 18, 2020 (Doc. 6.) Respondent filed an answer on November 20, 2020 (Doc. 23). The Court adopts the Statement of Facts in the Fifth DCA’s unpublished decision2:

2 The Fifth DCA’s summary of facts in its unpublished opinion is presumed correct. 28 U.S.C. §§ 2254(d)(2), (e)(1). On December 19, 2013, in case No. F13907336, Dynes pled no contest to second degree robbery (§ 211) and he admitted six prior prison term enhancements (§ 667.5, subd. (b)) and an allegation that he had a prior conviction within the meaning of the "Three Strikes" law.

On April 3, 2014, in case No. F14902059, Dynes pled no contest to carrying a concealed dirk or dagger (§ 21310) and he admitted an allegation that he had a prior conviction within the meaning of the Three Strikes law. Additionally, on that date, the court sentenced Dynes in both cases to an aggregate term of eight years four months, a doubled four-year term on Dynes's robbery conviction, a consecutive 16-month term (a doubled one-third the middle term of two years) on his possession of a dirk or dagger conviction, and three one-year prior prison term enhancements. On July 18, 2016, in both cases, Dynes filed a petition for recall of sentence pursuant to section 1170.126. On July 29, 2016, in both cases, Dynes filed a petition for modification of sentence. On August 15, 2016, in both cases, Dynes filed a second petition for recall of sentence pursuant to section 1170.126.

On August 19, 2016, the court denied all three petitions. On October 12, 2016, Dynes filed a timely appeal from the court's denial of his petitions that referenced case No. F13907336 and two unrelated cases, but not case No. F14902059.

On November 21, 2016, Dynes's appellate counsel filed a motion requesting that his appeal also be construed as an appeal from case No. F14902059. On December 23, 2016, this court granted appellate counsel's motion. Dynes's appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) However, in a letter filed on August 9, 2017, Dynes contends he committed petty theft, not robbery, and that he should have been sentenced to local time. He also appears to contend that his three prior prison term enhancements are invalid because the underlying convictions were reduced to misdemeanors. None of these contentions is cognizable on appeal. People v. Dynes, 2018 Cal. App. Unpub. LEXIS 1654, at *1-3. A. Jurisdiction Relief by way of a petition for writ of habeas corpus extends to a person in custody pursuant to the judgment of a state court if the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the United States Constitution. The challenged conviction arises out of the Fresno County Superior Court, which is located within the jurisdiction of this court. 28 U.S.C. § 2254(a); 28 U.S.C.§ 2241(d). On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its enactment. Lindh v. Murphy, 521 U.S. 320 (1997) (holding the AEDPA only applicable to cases filed after statute’s enactment). The instant petition was filed after the enactment of the AEDPA and is therefore governed by its provisions. B. Legal Standard of Review A petition for writ of habeas corpus under 28 U.S.C. § 2254(d) will not be granted unless the petitioner can show that the state court’s adjudication of his claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413. A state court decision is “contrary to” clearly established federal law “if it applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases, or “if it confronts a set of facts that is materially indistinguishable from a [Supreme Court] decision but reaches a different result.” Brown v. Payton, 544 U.S. 133, 141 (2005) (citing Williams, 529 U.S. at 405-406). In Harrington v. Richter, 562 U.S. 86, 101 (2011), the U.S. Supreme Court explained that an “unreasonable application” of federal law is an objective test that turns on “whether it is possible that fairminded jurists could disagree” that the state court decision meets the standards set forth in the AEDPA. The Supreme Court has “said time and again that ‘an unreasonable application of federal law is different from an incorrect application of federal law.’” Cullen v. Pinholster, 563 U.S. 170, 203 (2011). Thus, a state prisoner seeking a writ of habeas corpus from a federal court “must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement.” Harrington, 562 U.S. at 103. The second prong pertains to state court decisions based on factual findings. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003) (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)). Under § 2254(d)(2), a federal court may grant habeas relief if a state court’s adjudication of the petitioner’s claims “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Wiggins v. Smith, 539 U.S. 510, 520 (2003); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997). A state court’s factual finding is unreasonable when it is “so clearly incorrect that it would not be debatable among reasonable jurists.” Jeffries, 114 F.3d at 1500; see Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir. 2004), cert.denied, Maddox v. Taylor, 543 U.S. 1038 (2004). To determine whether habeas relief is available under § 2254(d), the federal court looks to the last reasoned state court decision as the basis of the state court’s decision. See Ylst v. Nunnemaker, 501 U.S. 979, 803 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). “[A]lthough we independently review the record, we still defer to the state court’s ultimate decisions.” Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). The prejudicial impact of any constitutional error is assessed by asking whether the error had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993); see also Fry v. Pliler, 551 U.S. 112, 119-120 (2007) (holding that the Brecht standard applies whether or not the state court recognized the error and reviewed it for harmlessness). C. Review of Petition Petitioner raises the following claims for relief in the instant petition: (1) That the state court erred in its application of state sentencing law, and (2) That his appellate counsels rendered ineffective assistance. 1. Timeliness Respondent alleges that the petition appears untimely but asks the Court to bypass the procedural issue given the number of state habeas petitions and the fact that the federal claims are meritless. (Doc. 23 at 8-9.) Ordinarily procedural bar issues are resolved first, but courts have recognized that “[p]rocedural bar issues are not infrequently more complex than the merits issues . . . so it may well make sense in some instances to proceed to the merits if the result will be the same.” Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002); see also Van Buskirk v. Baldwin, 265 F.3d 1080, 1083 (9th Cir. 2001) (“For the purposes of this case we do not need to reach the complex questions lurking in the time bar of the AEDPA.”); McCoy v. Soto, No. 15-cv-1578, 2017 WL 2644837, at *3 (E.D. Cal. June 20, 2017) (“In the instant case, it appears that judicial economy will be better served by adjudicating Petitioner’s claims on the merits.”). Accordingly, the Court will proceed to the merits of the claims. 2. Sentencing Claim Respondent correctly asserts that Petitioner fails to present a federal claim, because Petitioner is challenging the application and interpretation of state law. It is well-settled that federal habeas relief is not available to state prisoners challenging state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have stated many times that federal habeas corpus relief does not lie for errors of state law”); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (“alleged errors in the application of state law are not cognizable in federal habeas corpus” proceedings). Petitioner claims that his sentence is greater than the legislature intended in violation of Proposition 47. (Doc. 6 at 3.) The state supreme court summarily rejected this claim. (LD 55, LD 56.) The state courts determined that Petitioner did not qualify for a reduction of his sentence under Proposition 47. (LD 20, LD 22.) Petitioner’s argument was that California law did not allow for such a large sentence given the nature of his convictions, and the state court disagreed. Such challenge does not give rise to a federal question cognizable on federal habeas review. Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court’s interpretation of state law . . . binds a federal court sitting in habeas corpus”). Thus, the claim is not cognizable on federal habeas and should be rejected. Even if the Court found the claim cognizable, it would be without merit. As Respondent contends, the state court found his conviction for robbery disqualified him from a sentence reduction under Proposition 47. (Doc. 23 at 11.) Additionally, Petitioner’s attempt to characterize his challenge of the denial of his petition for resentencing as a violation of his federal constitutional rights to be free from cruel and unusual punishment is not sufficient to render his claims cognizable on federal habeas review. As Respondent asserts, his federal claim is not grounded in the Constitution, and Petitioner merely disagrees with the state court’s decision that California law allows for his sentence. (Doc. 23 at 10.) Accordingly, the claim fails to present a cognizable federal claim. Moreover, Petitioner fails to establish that the state court’s determination was contrary to or an unreasonable application of Supreme Court authority. The claim should be denied. 3. Ineffective Assistance of Counsel Effective assistance of counsel is guaranteed by the Due Process Clause of the Fourteenth Amendment. Evitts v. Lucey, 469 U.S. 387, 391-405 (1985). Claims of ineffective assistance of counsel are reviewed according to Strickland’s two-pronged test. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Miller v. Keeney, 882 F.2d 1428, 1433 (9th Cir. 1989); United States v. Birtle, 792 F.2d 846, 847 (9th Cir.1986); see also Penson v. Ohio, 488 U.S. 75(1988) (holding that where a defendant has been actually or constructively denied the assistance of counsel altogether, the Strickland standard does not apply and prejudice is presumed; the implication is that Strickland does apply where counsel is present but ineffective). To prevail, Petitioner must show two things. First, he must establish that counsel’s deficient performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687-88. Second, Petitioner must establish that he suffered prejudice in that there was a reasonable probability that, but for counsel’s unprofessional errors, he would have prevailed at trial. Id. at 694. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome of the trial. Id. The relevant inquiry is not what counsel could have done; rather, it is whether the choices made by counsel were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998). With the passage of the AEDPA, habeas relief may only be granted if the state-court decision unreasonably applied this general Strickland standard for ineffective assistance. Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). Accordingly, the question “is not whether a federal court believes the state court’s determination under the Strickland standard “was incorrect but whether that determination was unreasonable–a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Knowles, 556 U.S. at 123. In effect, the AEDPA standard is “doubly deferential” because it requires that it be shown not only that the state court determination was erroneous, but also that it was objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 5 (2003). Moreover, because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard. See Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) (“[E]valuating whether a rule application was unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by- case determinations.”) Petitioner contends that he was denied effective assistance of counsel because counsel did not raise any issues on appeal, failed to file a petition for review, and failed to inform Petitioner how he could further pursue his Proposition 47 claims. However, as Respondent details, Petitioner presented the court with the arguments he now argues his appellate counsel should have presented, and the state court found the arguments to be not cognizable and denied relief. (Doc. 23 at 14.) Moreover, Petitioner failed to establish that he suffered prejudice. Petitioner failed to demonstrate that there is a reasonable probability that raising these claims would undermine confidence in the outcome of the trial. Petitioner failed to show that counsels erred or that the error resulted in any prejudice. The claims should be rejected. The Court DIRECTS the Clerk of Court to assign a district judge to the case. Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be DENIED with prejudice on the merits. This Findings and Recommendation is submitted to the United States District Court Judge assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty days after being served with a copy of this Findings and Recommendation, Petitioner may file written objections with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

Dated: January 14, 2021 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE