1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CECIL JEROME HATCHETT, No. 2:21-cv-00428 DB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 KEN CLARK, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a 18 writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges the release date for the 19 sentence imposed by the Montgomery County Superior Court. (ECF No. 1.) Also before the 20 court is petitioner’s motion to proceed in forma pauperis. (ECF No. 2.) For the reasons set forth 21 below, this court will recommend the petition be dismissed and petitioner’s motion to proceed in 22 forma pauperis denied as moot. 23 //// 24 //// 25 //// 26 //// 27 //// 28 //// 1 IN FORMA PAUPERIS 2 Examination of the in forma pauperis application reveals that petitioner is unable to afford 3 the costs of suit. See 28 U.S.C. § 1915(a). However, because the court will recommend that the 4 petition be summarily dismissed, this motion will be denied as moot. 5 SCREENING 6 I. Legal Standards – Screening 7 The court is required to screen all actions brought by prisoners who seek any form of 8 relief, including habeas relief, from a governmental entity or officer or employee of a 9 governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a habeas petition or portion 10 thereof if the prisoner raises claims that are legally “frivolous or malicious” or fail to state a basis 11 on which habeas relief may be granted. 28 U.S.C. § 1915A(b)(1), (2). This means the court must 12 dismiss a habeas petition “[i]f it plainly appears from the petition and any attached exhibits that 13 the petitioner is not entitled to relief.” Rule 4 Governing Section 2254 Cases. 14 Rule 11 of the Rules Governing Section 2254 Cases provides that “[t]he Federal Rules of 15 Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these 16 rules, may be applied to a proceeding under these rules.” Drawing on the Federal Rules of Civil 17 Procedure, when considering whether a petition presents a claim upon which habeas relief can be 18 granted, the court must accept the allegations of the petition as true, Erickson v. Pardus, 551 U.S. 19 89, 94 (2007), and construe the petition in the light most favorable to the petitioner, see Scheuer 20 v. Rhodes, 416 U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than 21 those drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), but “[i]t is well-settled that 22 ‘[c]onclusory allegations which are not supported by a statement of specific facts do not warrant 23 habeas relief.’” Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (quoting James v. Borg, 24 24 F.3d 20, 26 (9th Cir. 1994)). See also Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir. 2002) (“Pro 25 se habeas petitioners may not be held to the same technical standards as litigants represented by 26 counsel.”); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“[T]he petitioner is not entitled 27 to the benefit of every conceivable doubt; the court is obligated to draw only reasonable factual 28 inferences in the petitioner’s favor.”). 1 II. The Petition 2 Upon reviewing the petition, it appears petitioner seeks to challenge his release date for 3 the sentence imposed by the Montgomery County Superior Court. (ECF No. 1 at 9.) Petitioner 4 claims that the Montgomery County sentence was not properly run concurrently to an earlier 5 sentence from Yolo County Superior Court. (Id.) Petitioner alleges that the Yolo County 6 sentence ended on March 20, 2016. (Id.) 7 In 1994, petitioner was sentenced to twenty-five years to life after entering a nolo 8 contendere plea to a first-degree murder charge in Yolo County Superior Court. See Hatchett v. 9 Clark, No. 2:18-cv-1773 KJM DB P, 2019 WL 2387267, at *1 (E.D. Cal. 2019) (citing Hatchett 10 v. Gonzalez, No. 2:16-cv-0412 KJM CMK P, 2018 WL 2939129, at *1 (E.D. Cal. June 12, 11 2018)). In 2000, while petitioner was still serving the Yolo County sentence, the Montgomery 12 County Superior Court convicted petitioner of two counts of sodomy by force, three counts of 13 forcible oral copulation, and one count of possession of a deadly weapon by a prisoner. Id. at *2 14 (citing People v. Hatchett, No. H024371, 2003 WL 21008765, at *1 (Cal. Ct. App. May 6, 15 2003)). As a result, petitioner was sentenced to a total term of fifty-five years to life. Id. 16 Petitioner claims that the 2000 Montgomery County sentence was ordered to run 17 concurrent to the 1994 Yolo County sentence. Petitioner contends that because the sentence in 18 his 2000 conviction was ordered to run concurrent to his previous sentence, he should have been 19 released on both sentences on March 20, 2016—the date petitioner claims was the release date for 20 the 1994 conviction. (ECF No. 1 at 8-9.) Petitioner claims that prison officials refused to release 21 him on this date. (Id. at 9.) Petitioner alleges that this means his sentence in the 2000 22 Montgomery County conviction is now being run consecutive to his sentence in the 1994 Yolo 23 County conviction even though they were supposed to run concurrently. (Id. at 9.) 24 III. Petitioner’s Claim is Non-Cognizable 25 A. Sentencing Error 26 In both his 1994 and 2000 convictions, petitioner was given an indeterminate life 27 sentence. Hatchett, 2019 WL 2387267, at *1-2. Petitioner claims that he should have been 28 released on the March 20, 2016 “release date” for his 1994 sentence. (ECF No. 1 at 9.) As both 1 of petitioner’s sentences were indeterminate sentences, petitioner would not have a “release date” 2 for either sentence. Instead, petitioner would have a “minimum parole eligibility” date when he 3 would be eligible for parole. See In re Dannenberg, 34 Cal. 4th 1061, 1070 (Cal. 2005). 4 However, even if petitioner intended to claim he should have been eligible for parole not that he 5 should have been released on March 20, 2016, petitioner cannot establish that he should have 6 been eligible for parole on that date. 7 Taking as true petitioner’s claim that his 2000 sentence was ordered to run concurrent to 8 his 1994 sentence, petitioner is incorrect that this means the “release date’s [sic] for both 9 sentences were [March 20, 2016].” (Id.) Where two or more sentences do not start together but 10 are ordered to be run concurrently, those sentences will run concurrently for the period in which 11 they overlap. In re Roberts, 40 Cal. 2d 745, 749 (Cal. 1953) (California Supreme Court decision 12 stating, “it would seem clear, however, that sentences may be concurrent, i.e., may run together, 13 without either starting together or ending together. What is meant is that they run together during 14 the time that the periods overlap.”); See Graham v. Langford, No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CECIL JEROME HATCHETT, No. 2:21-cv-00428 DB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 KEN CLARK, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a 18 writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges the release date for the 19 sentence imposed by the Montgomery County Superior Court. (ECF No. 1.) Also before the 20 court is petitioner’s motion to proceed in forma pauperis. (ECF No. 2.) For the reasons set forth 21 below, this court will recommend the petition be dismissed and petitioner’s motion to proceed in 22 forma pauperis denied as moot. 23 //// 24 //// 25 //// 26 //// 27 //// 28 //// 1 IN FORMA PAUPERIS 2 Examination of the in forma pauperis application reveals that petitioner is unable to afford 3 the costs of suit. See 28 U.S.C. § 1915(a). However, because the court will recommend that the 4 petition be summarily dismissed, this motion will be denied as moot. 5 SCREENING 6 I. Legal Standards – Screening 7 The court is required to screen all actions brought by prisoners who seek any form of 8 relief, including habeas relief, from a governmental entity or officer or employee of a 9 governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a habeas petition or portion 10 thereof if the prisoner raises claims that are legally “frivolous or malicious” or fail to state a basis 11 on which habeas relief may be granted. 28 U.S.C. § 1915A(b)(1), (2). This means the court must 12 dismiss a habeas petition “[i]f it plainly appears from the petition and any attached exhibits that 13 the petitioner is not entitled to relief.” Rule 4 Governing Section 2254 Cases. 14 Rule 11 of the Rules Governing Section 2254 Cases provides that “[t]he Federal Rules of 15 Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these 16 rules, may be applied to a proceeding under these rules.” Drawing on the Federal Rules of Civil 17 Procedure, when considering whether a petition presents a claim upon which habeas relief can be 18 granted, the court must accept the allegations of the petition as true, Erickson v. Pardus, 551 U.S. 19 89, 94 (2007), and construe the petition in the light most favorable to the petitioner, see Scheuer 20 v. Rhodes, 416 U.S. 232, 236 (1974). Pro se pleadings are held to a less stringent standard than 21 those drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520 (1972), but “[i]t is well-settled that 22 ‘[c]onclusory allegations which are not supported by a statement of specific facts do not warrant 23 habeas relief.’” Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (quoting James v. Borg, 24 24 F.3d 20, 26 (9th Cir. 1994)). See also Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir. 2002) (“Pro 25 se habeas petitioners may not be held to the same technical standards as litigants represented by 26 counsel.”); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“[T]he petitioner is not entitled 27 to the benefit of every conceivable doubt; the court is obligated to draw only reasonable factual 28 inferences in the petitioner’s favor.”). 1 II. The Petition 2 Upon reviewing the petition, it appears petitioner seeks to challenge his release date for 3 the sentence imposed by the Montgomery County Superior Court. (ECF No. 1 at 9.) Petitioner 4 claims that the Montgomery County sentence was not properly run concurrently to an earlier 5 sentence from Yolo County Superior Court. (Id.) Petitioner alleges that the Yolo County 6 sentence ended on March 20, 2016. (Id.) 7 In 1994, petitioner was sentenced to twenty-five years to life after entering a nolo 8 contendere plea to a first-degree murder charge in Yolo County Superior Court. See Hatchett v. 9 Clark, No. 2:18-cv-1773 KJM DB P, 2019 WL 2387267, at *1 (E.D. Cal. 2019) (citing Hatchett 10 v. Gonzalez, No. 2:16-cv-0412 KJM CMK P, 2018 WL 2939129, at *1 (E.D. Cal. June 12, 11 2018)). In 2000, while petitioner was still serving the Yolo County sentence, the Montgomery 12 County Superior Court convicted petitioner of two counts of sodomy by force, three counts of 13 forcible oral copulation, and one count of possession of a deadly weapon by a prisoner. Id. at *2 14 (citing People v. Hatchett, No. H024371, 2003 WL 21008765, at *1 (Cal. Ct. App. May 6, 15 2003)). As a result, petitioner was sentenced to a total term of fifty-five years to life. Id. 16 Petitioner claims that the 2000 Montgomery County sentence was ordered to run 17 concurrent to the 1994 Yolo County sentence. Petitioner contends that because the sentence in 18 his 2000 conviction was ordered to run concurrent to his previous sentence, he should have been 19 released on both sentences on March 20, 2016—the date petitioner claims was the release date for 20 the 1994 conviction. (ECF No. 1 at 8-9.) Petitioner claims that prison officials refused to release 21 him on this date. (Id. at 9.) Petitioner alleges that this means his sentence in the 2000 22 Montgomery County conviction is now being run consecutive to his sentence in the 1994 Yolo 23 County conviction even though they were supposed to run concurrently. (Id. at 9.) 24 III. Petitioner’s Claim is Non-Cognizable 25 A. Sentencing Error 26 In both his 1994 and 2000 convictions, petitioner was given an indeterminate life 27 sentence. Hatchett, 2019 WL 2387267, at *1-2. Petitioner claims that he should have been 28 released on the March 20, 2016 “release date” for his 1994 sentence. (ECF No. 1 at 9.) As both 1 of petitioner’s sentences were indeterminate sentences, petitioner would not have a “release date” 2 for either sentence. Instead, petitioner would have a “minimum parole eligibility” date when he 3 would be eligible for parole. See In re Dannenberg, 34 Cal. 4th 1061, 1070 (Cal. 2005). 4 However, even if petitioner intended to claim he should have been eligible for parole not that he 5 should have been released on March 20, 2016, petitioner cannot establish that he should have 6 been eligible for parole on that date. 7 Taking as true petitioner’s claim that his 2000 sentence was ordered to run concurrent to 8 his 1994 sentence, petitioner is incorrect that this means the “release date’s [sic] for both 9 sentences were [March 20, 2016].” (Id.) Where two or more sentences do not start together but 10 are ordered to be run concurrently, those sentences will run concurrently for the period in which 11 they overlap. In re Roberts, 40 Cal. 2d 745, 749 (Cal. 1953) (California Supreme Court decision 12 stating, “it would seem clear, however, that sentences may be concurrent, i.e., may run together, 13 without either starting together or ending together. What is meant is that they run together during 14 the time that the periods overlap.”); See Graham v. Langford, No. CV 16-1729-CAS, 2017 WL 15 3167402 at *5 (discussing how overlapping federal and state sentences can be concurrent for the 16 period in which they overlap). After the overlapping period ends, the inmate then serves the 17 remaining portion of the second sentence. In re Roberts, 40 Cal. 2d at 749. 18 The Montgomery County Superior Court sentenced petitioner to fifty-five years to life in 19 2000 while petitioner had the portion of his 1994 sentence remaining. Hatchett, 2019 WL 20 2387267, at *2. Petitioner was not entitled to release on the newer and longer sentence simply 21 because the previous 1994 sentence ended. After the period where the two sentences ran 22 concurrent to each other ended, petitioner was still required to serve the remaining time on his 23 second sentence. In re Roberts, 40 Cal. 2d at 749. That these sentences were concurrent simply 24 meant that the petitioner could serve the overlapping portion of these two sentences at the same 25 time. Id. 26 B. Federal Habeas Relief is not Available for Errors of State Law 27 As alleged, petitioner’s claim does not establish a violation of federal law. Petitioner’s 28 contention that he should have been released on March 20, 2016 appears to be based on 1 petitioner’s disagreement with how concurrent sentences are imposed under state law. As this is 2 effectively a challenge to state law, this claim is not cognizable grounds for relief in a federal 3 habeas corpus proceeding. See, e.g., Lewis, 497 U.S. at 780 (“federal habeas corpus relief does 4 not lie for errors of state law”); Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993) (rejecting 5 federal habeas claim that sentencing court erred when it failed to “merge” multiple convictions 6 under state law because “[t]here is no federal Constitutional right to merger of convictions for 7 purposes of sentencing,” and Petitioner's claim was “exclusively concerned with state law and 8 therefore [was] not cognizable in a federal habeas corpus proceeding” (bracketed material 9 added)); Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (whether assault with a 10 deadly weapon was a serious felony under state enhancement statute was state law question not 11 cognizable on federal habeas review). Petitioner may not “transform a state-law issue” into a 12 federal one merely by labeling it a constitutional violation. Langford v. Day, 110 F.3d 1380, 13 1389 (9th Cir. 1996) (as amended Apr. 14, 1997). 14 As petitioner has only alleged an error of state law, the court will recommend that the 15 petition be dismissed. 16 CONCLUSION 17 Accordingly, it is ORDERED as follows: 18 1. Petitioner’s motion to proceed in forma pauperis (ECF No. 2) is denied as moot; and 19 2. The Clerk of the Court is directed to randomly assign this action to a District Judge. 20 IT IS HEREBY RECOMMENDED that the petition be dismissed with prejudice for the 21 reasons set forth above. 22 These findings and recommendations will be submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty days after 24 being served with these findings and recommendations, any party may file written objections with 25 the court and serve a copy on all parties. The document should be captioned “Objections to 26 Magistrate Judge's Findings and Recommendations.” Any response to the objections shall be 27 filed and served within seven days after service of the objections. The parties are advised that 28 failure to file objections within the specified time may result in waiver of the right to appeal the 1 | district court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). In the objections, the 2 || party may address whether a certificate of appealability should issue in the event an appeal of the 3 | judgment in this case is filed. See Rule 11, Rules Governing § 2254 Cases (the district court must 4 | issue or deny a certificate of appealability when it enters a final order adverse to the applicant). 5 | Dated: July 27, 2021
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