1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RODOLFO HERNANDEZ, Case No. 1:19-cv-01172-JDP 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION FOR WRIT OF HABEAS CORPUS SHOULD 13 v. NOT BE DISMISSED SUMMARILY 14 STEVEN MERLAK, ECF No. 1 15 Respondent. RESPONSE DUE IN 14 DAYS 16 ORDER DENYING PETITIONER’S MOTION FOR EMERGENCY HEARING AS MOOT 17 ECF No. 5 18 19 Petitioner Rodolfo Hernandez, a federal prisoner without counsel, petitioned for a writ of 20 habeas corpus under 28 U.S.C. § 2241 on August 29, 2019. ECF No. 1. On November 4, 2019, 21 petitioner filed a motion requesting an emergency hearing. ECF No. 5. The matter is before the 22 court for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases, which the 23 court may apply in all habeas proceedings. See Rules Governing Section 2254 Cases, Rule 1(b); 24 cf. 28 U.S.C. § 2243. Under Rule 4, the court must examine the habeas corpus petition and order 25 a response unless it “plainly appears” that the petitioner is not entitled to relief. Because 26 petitioner has failed to state a claim for a violation of federal law and has failed to exhaust his 27 administrative remedies, I order petitioner to show cause why his petition should not be dismissed 28 summarily and deny his petition for an emergency hearing as moot. 1 Background 2 Petitioner was charged with conspiracy to distribute narcotics in two separate criminal 3 cases, the proceedings of which ran parallel to each other and were before the same judge. See 4 Hernandez v Rodolfo, Case No. 7:01-CR-00134-DC (W.D. Tex. Nov. 15, 2001) [hereafter 5 Hernandez I]; Hernandez v Rodolfo, Case No. 7:07-CR-00216-RAJ-2 (W.D. Tex. Nov. 28, 2007) 6 [hereafter Hernandez II].1 Petitioner entered guilty pleas in both cases on January 17, 2008. See 7 Hernandez I, at ECF No. 102; Hernandez II, at ECF No. 170. Petitioner was sentenced in both 8 cases on April 3, 2018—to 60 months in the first case and 210 months in the second.2 See 9 Hernandez I, at ECF No. 109; Hernandez II, at ECF No. 237. In his petition for habeas relief, 10 petitioner argues that the district court “lost jurisdiction” over the Hernandez I case because it 11 failed to read petitioner’s term of 60 months imprisonment aloud in open court, allegedly 12 violating 18 U.S.C. § 3553(c).3 ECF No. 1 at 3. Thus, petitioner claims that the Bureau of 13 Prisons’ enforcement of this sentence is erroneous. Id. at 5. 14 Discussion 15 Petitioner fails to state a cognizable habeas claim for two reasons: (1) there is no clearly 16 established federal law stating that a term of imprisonment must be read aloud in court, and (2) a 17 sentencing judge’s placement of the term of imprisonment in the written judgment and on the 18 docket’s minute entry are valid means of issuing the sentence. Additionally, petitioner has failed 19 to exhaust his administrative remedies. 20 1 In Hernandez I, petitioner pleaded guilty to one count of conspiracy to distribute narcotics. 21 Petitioner later moved for various forms of reconsideration of his sentence, all of which were denied. Hernandez I, at ECF Nos. 113, 116, 117, 119. In Hernandez II, petitioner pleaded guilty 22 to a separate count of conspiracy to distribute narcotics. In 2015, petitioner successfully moved 23 for a reduction in sentence due to rehabilitation and his sentence was reduced to 168 months. Hernandez II, at ECF No. 316. 24 2 With his habeas petition, petitioner filed the written judgment from his first case and the transcripts of the sentencing hearing from his second case. ECF No. 1 at 10-21. In Hernandez II, 25 the judge stated the reasons for petitioner’s sentence, set the term of imprisonment and supervised release, and ordered that the term in Hernandez I be served consecutively with the term in 26 Hernandez II. ECF No. 1 at 15. 27 3 Petitioner’s reliance on this statute is misplaced—18 U.S.C. § 3553(c) instructs sentencing judges to state on the record their reasons for imposing a sentence; it does not instruct sentencing 28 judges to state the term of imprisonment. 1 First, because petitioner seeks federal habeas relief, this court is limited to deciding 2 whether the district court’s action “violated the Constitution, laws or treaties of the United 3 States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Petitioner must allege a violation of 4 “clearly established federal law,” meaning a violation of a U.S. Supreme Court holding. See 5 White v. Woodall, 572 U.S. 415, 419 (2014). Petitioner’s reliance on United States v. Daddino, 5 6 F.3d 262, 266 (7th Cir. 1993), and United States v. McAffee, 832 F.2d 944, 946 (5th Cir. 1987), is 7 misplaced. ECF No. 1 at 3-4. Neither Daddino nor McAffee constitute “clearly established 8 federal law,” and both address scenarios in which oral sentences differed from the written 9 judgments. See Daddino at 266; McAffee at 946. Unlike Daddino and McAffee, here petitioner 10 claims only that there was no oral pronouncement of the sentence. 11 I find no support in clearly established federal law for the proposition that a failure to 12 announce a term of imprisonment in open court amounts to a constitutional violation. The 13 circumstances in Nguyen v. Macomber are analogous. In Nguyen, the petitioner claimed a 14 constitutional violation where the verdict on one of his charges was not read aloud in court. See 15 Nguyen v. Macomber, No. 15-cv-00228-BLF, 2017 U.S. Dist. LEXIS 94216, at *53-54 (N.D. 16 Cal. June 19, 2017). No constitutional rights violation was found. Id. “While a trial by jury and 17 an actual jury verdict are rights compelled by the Sixth Amendment, there is no clearly 18 established federal law that an oral verdict must be provided.” Id. The court found that any 19 possible ill effect on the petitioner was harmless because the failure to read the verdict aloud “did 20 not render the trial fundamentally unfair.” Id. at *54. Here, petitioner has failed to show that any 21 harmful effects—such as a fundamentally unfair trial—resulted from the trial court’s alleged 22 failure to read aloud his term of imprisonment. 23 Second, petitioner’s prison term was provided in a written judgment, ECF No. 1 at 16, and 24 was placed on the docket’s minute entry. Hernandez I, at ECF No. 109. “The only sentence 25 known to the law is the sentence or judgment entered upon the records of the court.” Hill v. 26 United States, 298 U.S. 460, 464 (1936). In a collateral attack on a sentence, “a court will close 27 its ears to a suggestion that the sentence entered in the minutes is something other than the 28 authentic expression of the sentence of the judge.” Id. Here, petitioner’s April 3, 2008 sentence 1 was placed on the minute entry of the court’s docket and stated that a sentencing hearing was held 2 before the judge. Hernandez I, at ECF No. 109. This sentence is a public record that petitioner 3 may access through the court system. Petitioner filed a copy of his written judgment, which he 4 had in his possession, with his habeas petition. ECF No. 1 at 16. The written judgement was 5 docketed April 7, 2008, four days after the sentencing hearing, and contains the term of 6 imprisonment. Hernandez I, at ECF No. 110.
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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 RODOLFO HERNANDEZ, Case No. 1:19-cv-01172-JDP 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION FOR WRIT OF HABEAS CORPUS SHOULD 13 v. NOT BE DISMISSED SUMMARILY 14 STEVEN MERLAK, ECF No. 1 15 Respondent. RESPONSE DUE IN 14 DAYS 16 ORDER DENYING PETITIONER’S MOTION FOR EMERGENCY HEARING AS MOOT 17 ECF No. 5 18 19 Petitioner Rodolfo Hernandez, a federal prisoner without counsel, petitioned for a writ of 20 habeas corpus under 28 U.S.C. § 2241 on August 29, 2019. ECF No. 1. On November 4, 2019, 21 petitioner filed a motion requesting an emergency hearing. ECF No. 5. The matter is before the 22 court for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases, which the 23 court may apply in all habeas proceedings. See Rules Governing Section 2254 Cases, Rule 1(b); 24 cf. 28 U.S.C. § 2243. Under Rule 4, the court must examine the habeas corpus petition and order 25 a response unless it “plainly appears” that the petitioner is not entitled to relief. Because 26 petitioner has failed to state a claim for a violation of federal law and has failed to exhaust his 27 administrative remedies, I order petitioner to show cause why his petition should not be dismissed 28 summarily and deny his petition for an emergency hearing as moot. 1 Background 2 Petitioner was charged with conspiracy to distribute narcotics in two separate criminal 3 cases, the proceedings of which ran parallel to each other and were before the same judge. See 4 Hernandez v Rodolfo, Case No. 7:01-CR-00134-DC (W.D. Tex. Nov. 15, 2001) [hereafter 5 Hernandez I]; Hernandez v Rodolfo, Case No. 7:07-CR-00216-RAJ-2 (W.D. Tex. Nov. 28, 2007) 6 [hereafter Hernandez II].1 Petitioner entered guilty pleas in both cases on January 17, 2008. See 7 Hernandez I, at ECF No. 102; Hernandez II, at ECF No. 170. Petitioner was sentenced in both 8 cases on April 3, 2018—to 60 months in the first case and 210 months in the second.2 See 9 Hernandez I, at ECF No. 109; Hernandez II, at ECF No. 237. In his petition for habeas relief, 10 petitioner argues that the district court “lost jurisdiction” over the Hernandez I case because it 11 failed to read petitioner’s term of 60 months imprisonment aloud in open court, allegedly 12 violating 18 U.S.C. § 3553(c).3 ECF No. 1 at 3. Thus, petitioner claims that the Bureau of 13 Prisons’ enforcement of this sentence is erroneous. Id. at 5. 14 Discussion 15 Petitioner fails to state a cognizable habeas claim for two reasons: (1) there is no clearly 16 established federal law stating that a term of imprisonment must be read aloud in court, and (2) a 17 sentencing judge’s placement of the term of imprisonment in the written judgment and on the 18 docket’s minute entry are valid means of issuing the sentence. Additionally, petitioner has failed 19 to exhaust his administrative remedies. 20 1 In Hernandez I, petitioner pleaded guilty to one count of conspiracy to distribute narcotics. 21 Petitioner later moved for various forms of reconsideration of his sentence, all of which were denied. Hernandez I, at ECF Nos. 113, 116, 117, 119. In Hernandez II, petitioner pleaded guilty 22 to a separate count of conspiracy to distribute narcotics. In 2015, petitioner successfully moved 23 for a reduction in sentence due to rehabilitation and his sentence was reduced to 168 months. Hernandez II, at ECF No. 316. 24 2 With his habeas petition, petitioner filed the written judgment from his first case and the transcripts of the sentencing hearing from his second case. ECF No. 1 at 10-21. In Hernandez II, 25 the judge stated the reasons for petitioner’s sentence, set the term of imprisonment and supervised release, and ordered that the term in Hernandez I be served consecutively with the term in 26 Hernandez II. ECF No. 1 at 15. 27 3 Petitioner’s reliance on this statute is misplaced—18 U.S.C. § 3553(c) instructs sentencing judges to state on the record their reasons for imposing a sentence; it does not instruct sentencing 28 judges to state the term of imprisonment. 1 First, because petitioner seeks federal habeas relief, this court is limited to deciding 2 whether the district court’s action “violated the Constitution, laws or treaties of the United 3 States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Petitioner must allege a violation of 4 “clearly established federal law,” meaning a violation of a U.S. Supreme Court holding. See 5 White v. Woodall, 572 U.S. 415, 419 (2014). Petitioner’s reliance on United States v. Daddino, 5 6 F.3d 262, 266 (7th Cir. 1993), and United States v. McAffee, 832 F.2d 944, 946 (5th Cir. 1987), is 7 misplaced. ECF No. 1 at 3-4. Neither Daddino nor McAffee constitute “clearly established 8 federal law,” and both address scenarios in which oral sentences differed from the written 9 judgments. See Daddino at 266; McAffee at 946. Unlike Daddino and McAffee, here petitioner 10 claims only that there was no oral pronouncement of the sentence. 11 I find no support in clearly established federal law for the proposition that a failure to 12 announce a term of imprisonment in open court amounts to a constitutional violation. The 13 circumstances in Nguyen v. Macomber are analogous. In Nguyen, the petitioner claimed a 14 constitutional violation where the verdict on one of his charges was not read aloud in court. See 15 Nguyen v. Macomber, No. 15-cv-00228-BLF, 2017 U.S. Dist. LEXIS 94216, at *53-54 (N.D. 16 Cal. June 19, 2017). No constitutional rights violation was found. Id. “While a trial by jury and 17 an actual jury verdict are rights compelled by the Sixth Amendment, there is no clearly 18 established federal law that an oral verdict must be provided.” Id. The court found that any 19 possible ill effect on the petitioner was harmless because the failure to read the verdict aloud “did 20 not render the trial fundamentally unfair.” Id. at *54. Here, petitioner has failed to show that any 21 harmful effects—such as a fundamentally unfair trial—resulted from the trial court’s alleged 22 failure to read aloud his term of imprisonment. 23 Second, petitioner’s prison term was provided in a written judgment, ECF No. 1 at 16, and 24 was placed on the docket’s minute entry. Hernandez I, at ECF No. 109. “The only sentence 25 known to the law is the sentence or judgment entered upon the records of the court.” Hill v. 26 United States, 298 U.S. 460, 464 (1936). In a collateral attack on a sentence, “a court will close 27 its ears to a suggestion that the sentence entered in the minutes is something other than the 28 authentic expression of the sentence of the judge.” Id. Here, petitioner’s April 3, 2008 sentence 1 was placed on the minute entry of the court’s docket and stated that a sentencing hearing was held 2 before the judge. Hernandez I, at ECF No. 109. This sentence is a public record that petitioner 3 may access through the court system. Petitioner filed a copy of his written judgment, which he 4 had in his possession, with his habeas petition. ECF No. 1 at 16. The written judgement was 5 docketed April 7, 2008, four days after the sentencing hearing, and contains the term of 6 imprisonment. Hernandez I, at ECF No. 110. Petitioner’s sentence written in the minute entry 7 and judgment is presumed to be the actual sentence of the court. See Hill, 298 U.S. at 464. 8 Additionally, petitioner has failed to exhaust his administrative remedies. See Castro- 9 Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001) (finding that in the ninth circuit habeas 10 petitioners under Section 2241 must exhaust their remedies before filing a petition unless further 11 appeals would be futile). Petitioner presents proof of one unsuccessful internal prison appeal and 12 states without explanation that further appeals “would be futile.” ECF No. 1 at 3. At this time, 13 the court cannot determine that further appeals would be futile and therefore cannot excuse 14 petitioner from failing to exhaust his remedies in the prison appeal system.4 15 A further matter warrants the court’s attention: Petitioner has filed a motion for an 16 emergency hearing on his habeas petition. ECF No. 5. There is no right to an emergency hearing 17 in habeas proceedings; only under limited circumstances are evidentiary hearings granted. See 28 18 U.S.C. § 2254(e)(2)(A)(ii). The court will not hold an evidentiary hearing unless the petitioner’s 19 claim relies on a new, retroactive rule of constitutional law that was unavailable to him or a fact 20 that he could not have discovered through the exercise of due diligence. Id.; see also Gonzalez v. 21 Pliler, 341 F.3d 897, 903 (9th Cir. 2003) (determining that a habeas petitioner must “allege facts 22 which, if proven, would entitle him to relief” and “show that he did not receive a full and fair 23 hearing in a state court either at the time of trial or in a collateral proceeding” to be granted an 24 4 Petitioner may move to stay and hold in abeyance the petition while he exhausts his 25 administrative remedies. See Rhines v. Weber, 544 U.S. 269, 277 (2005). However, his future filings are subject to the requirement of Mayle v. Felix, 545 U.S. 644, 664 (2005), that any newly- 26 exhausted claims that a petitioner seeks to add to a pending federal habeas petition must be timely 27 or relate back, i.e., share a “common core of operative facts,” to claims contained in the original petition that were exhausted at the time of filing. King v. Ryan, 564 F.3d 1133, 1143 (9th Cir. 28 2009). 1 | evidentiary hearing). Here, petitioner’s motion for an emergency hearing contains the same 2 || arguments that appeared in his original habeas petition. Petitioner does not rely on a new 3 | retroactive constitutional law or a fact that he could not previously have discovered. Petitioner 4 | has not alleged facts that would entitle him to relief or shown that he did not receive a full and 5 | fair hearing in the state court. Therefore, I deny petitioner’s motion for an emergency hearing. 6 | Order 7 Accordingly, 8 1. Within thirty days from the date of service of this order, petitioner must show 9 | cause as to why his petition should not be dismissed for failure to state a claim and failure to 10 | exhaust his administrative remedies. 11 2. Failure to follow this order may result in a dismissal. 12 3. Petitioner’s motion for an emergency hearing on his writ is denied. 13 4 IT IS SO ORDERED. 15 ( Caan Dated: _ November 21, 2019 16 UNI STATES MAGISTRATE JUDGE 17 18 19 | No. 206. 20 21 22 23 24 25 26 27 28