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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 RONALD JERRELL INMAN, Case No. 1:19-cv-01543-LJO-EPG-HC
12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF 13 v. HABEAS CORPUS
14 C. KOENIG, 15 Respondent.
16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. In the instant petition, Petitioner challenges his 2002 Stanislaus 19 County Superior Court convictions and sentence. As Petitioner previously sought federal habeas 20 corpus relief with respect to the challenged convictions and given that success on his Proposition 21 57 claims would not necessarily lead to his immediate or earlier release from confinement, the 22 undersigned recommends that the petition be dismissed. 23 I. 24 DISCUSSION 25 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 26 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 27 to file a response, if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” 1 A. Second or Successive Petition 2 A federal court must dismiss a second or successive petition that raises the same grounds 3 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive 4 petition raising a new ground unless the petitioner can show that (1) the claim rests on a new, 5 retroactive, constitutional right, or (2) the factual basis of the claim was not previously 6 discoverable through due diligence, and these new facts establish by clear and convincing 7 evidence that but for the constitutional error, no reasonable factfinder would have found the 8 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)–(B). However, it is not the 9 district court that decides whether a second or successive petition meets these requirements. 10 Section 2244(b)(3)(A) provides: “Before a second or successive application permitted by 11 this section is filed in the district court, the applicant shall move in the appropriate court of 12 appeals for an order authorizing the district court to consider the application.” In other words, a 13 petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 14 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656–57 (1996). This Court must 15 dismiss any second or successive petition unless the Court of Appeals has given a petitioner 16 leave to file the petition because a district court lacks subject-matter jurisdiction over a second or 17 successive petition. Burton v. Stewart, 549 U.S. 147, 157 (2007). 18 “Habeas petitions that are filed second-in-time are not necessarily second or 19 successive.” Clayton v. Biter, 868 F.3d 840, 843 (9th Cir. 2017). For example, “a habeas petition 20 that challenges a new or intervening judgment is not a second or successive petition even where 21 the intervening judgment left in place an earlier challenged conviction and sentence.” Id. at 843– 22 44 (citing Wentzell v. Neven, 674 F.3d 1124 (9th Cir. 2012)). Courts “look to state law to 23 determine what constitutes a new or intervening judgment.” Clayton, 868 F.3d at 844. 24 In the instant petition, Petitioner asserts that: (1) the trial court erroneously sentenced 25 Petitioner as a violent offender instead of a serious crime offender as was determined at trial; (2) 26 the trial court erroneously failed to resentence Petitioner as a serious crime offender when 27 Petitioner filed a resentencing motion after passage of Proposition 57; (3) Petitioner received 1 felony issue; and (4) the California courts denied Petitioner due process in denying his state 2 habeas corpus petitions. (ECF No. 1 at 4–7).1 3 Here, Petitioner challenges his 2002 Stanislaus County Superior Court convictions and 4 sentence. Petitioner previously sought federal habeas relief in this Court with respect to the same 5 convictions and sentence. See Inman v. Clark, No. 2:08-cv-02217-CMK (denied on the merits); 6 Inman v. Grounds, No. 1:12-cv-000921-LJO-GSA (dismissed as successive).2 Accordingly, the 7 Court finds that the instant petition is “second or successive” under 28 U.S.C. § 2244(b). 8 Although the instant petition also challenges the state courts’ denial of relief pursuant to 9 Proposition 57, the California Court of Appeal has held that an order denying Proposition 57 10 relief does not constitute a new appealable post-judgment order. See People v. Dynes, 20 Cal. 11 App. 5th 523, 528 (Cal. Ct. App. 2018) (holding that because section 32 to article I of the 12 California Constitution, as enacted by Proposition 57, “did not create or authorize ‘a substantial 13 right to be resentenced’ or provide ‘a remedy by way of a statutory postjudgment motion’ for an 14 inmate to file a petition with the superior court for recall or resentencing in the first instance,” the 15 superior court lacked jurisdiction to grant defendant’s request for relief under section 32 and thus 16 denial of resentencing was not an appealable postjudgment order), review denied, No. S247510 17 (Apr. 25, 2018). 18 As Petitioner has already filed federal petitions for writ of habeas corpus regarding his 19 2002 Stanislaus County Superior Court convictions and sentence, Petitioner cannot file another 20 petition in this Court regarding the same convictions and sentence without first obtaining 21 permission from the United States Court of Appeals for the Ninth Circuit. Here, Petitioner makes 22 no showing that he has obtained prior leave from the Ninth Circuit to file his successive petition. 23 Therefore, this Court has no jurisdiction to consider Petitioner’s renewed application for relief 24 under 28 U.S.C. § 2254 and must dismiss the petition. See Burton, 549 U.S. at 157. 25 \\\ 26 \\\
27 1 Page numbers refer to ECF page numbers stamped at the top of the page. 2 The Court may take judicial notice of its own records in other cases. United States v. Wilson, 631 F.2d 118, 119 1 B. Cognizability of Proposition 57 Claims in Federal Habeas Corpus 2 A claim falls within the “core of habeas corpus” when a prisoner challenges “the fact or 3 duration of his confinement” and “seeks either immediate release from that confinement or the 4 shortening of its duration.” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). The Ninth Circuit 5 has held that a “state prisoner’s claim [that] does not lie at ‘the core of habeas corpus’ . . . must 6 be brought, ‘if at all,’ under § 1983.” Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 2016) (en 7 banc) (quoting Preiser, 411 U.S. at 487; Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011)).
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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 RONALD JERRELL INMAN, Case No. 1:19-cv-01543-LJO-EPG-HC
12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF 13 v. HABEAS CORPUS
14 C. KOENIG, 15 Respondent.
16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. In the instant petition, Petitioner challenges his 2002 Stanislaus 19 County Superior Court convictions and sentence. As Petitioner previously sought federal habeas 20 corpus relief with respect to the challenged convictions and given that success on his Proposition 21 57 claims would not necessarily lead to his immediate or earlier release from confinement, the 22 undersigned recommends that the petition be dismissed. 23 I. 24 DISCUSSION 25 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 26 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 27 to file a response, if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” 1 A. Second or Successive Petition 2 A federal court must dismiss a second or successive petition that raises the same grounds 3 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive 4 petition raising a new ground unless the petitioner can show that (1) the claim rests on a new, 5 retroactive, constitutional right, or (2) the factual basis of the claim was not previously 6 discoverable through due diligence, and these new facts establish by clear and convincing 7 evidence that but for the constitutional error, no reasonable factfinder would have found the 8 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)–(B). However, it is not the 9 district court that decides whether a second or successive petition meets these requirements. 10 Section 2244(b)(3)(A) provides: “Before a second or successive application permitted by 11 this section is filed in the district court, the applicant shall move in the appropriate court of 12 appeals for an order authorizing the district court to consider the application.” In other words, a 13 petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 14 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656–57 (1996). This Court must 15 dismiss any second or successive petition unless the Court of Appeals has given a petitioner 16 leave to file the petition because a district court lacks subject-matter jurisdiction over a second or 17 successive petition. Burton v. Stewart, 549 U.S. 147, 157 (2007). 18 “Habeas petitions that are filed second-in-time are not necessarily second or 19 successive.” Clayton v. Biter, 868 F.3d 840, 843 (9th Cir. 2017). For example, “a habeas petition 20 that challenges a new or intervening judgment is not a second or successive petition even where 21 the intervening judgment left in place an earlier challenged conviction and sentence.” Id. at 843– 22 44 (citing Wentzell v. Neven, 674 F.3d 1124 (9th Cir. 2012)). Courts “look to state law to 23 determine what constitutes a new or intervening judgment.” Clayton, 868 F.3d at 844. 24 In the instant petition, Petitioner asserts that: (1) the trial court erroneously sentenced 25 Petitioner as a violent offender instead of a serious crime offender as was determined at trial; (2) 26 the trial court erroneously failed to resentence Petitioner as a serious crime offender when 27 Petitioner filed a resentencing motion after passage of Proposition 57; (3) Petitioner received 1 felony issue; and (4) the California courts denied Petitioner due process in denying his state 2 habeas corpus petitions. (ECF No. 1 at 4–7).1 3 Here, Petitioner challenges his 2002 Stanislaus County Superior Court convictions and 4 sentence. Petitioner previously sought federal habeas relief in this Court with respect to the same 5 convictions and sentence. See Inman v. Clark, No. 2:08-cv-02217-CMK (denied on the merits); 6 Inman v. Grounds, No. 1:12-cv-000921-LJO-GSA (dismissed as successive).2 Accordingly, the 7 Court finds that the instant petition is “second or successive” under 28 U.S.C. § 2244(b). 8 Although the instant petition also challenges the state courts’ denial of relief pursuant to 9 Proposition 57, the California Court of Appeal has held that an order denying Proposition 57 10 relief does not constitute a new appealable post-judgment order. See People v. Dynes, 20 Cal. 11 App. 5th 523, 528 (Cal. Ct. App. 2018) (holding that because section 32 to article I of the 12 California Constitution, as enacted by Proposition 57, “did not create or authorize ‘a substantial 13 right to be resentenced’ or provide ‘a remedy by way of a statutory postjudgment motion’ for an 14 inmate to file a petition with the superior court for recall or resentencing in the first instance,” the 15 superior court lacked jurisdiction to grant defendant’s request for relief under section 32 and thus 16 denial of resentencing was not an appealable postjudgment order), review denied, No. S247510 17 (Apr. 25, 2018). 18 As Petitioner has already filed federal petitions for writ of habeas corpus regarding his 19 2002 Stanislaus County Superior Court convictions and sentence, Petitioner cannot file another 20 petition in this Court regarding the same convictions and sentence without first obtaining 21 permission from the United States Court of Appeals for the Ninth Circuit. Here, Petitioner makes 22 no showing that he has obtained prior leave from the Ninth Circuit to file his successive petition. 23 Therefore, this Court has no jurisdiction to consider Petitioner’s renewed application for relief 24 under 28 U.S.C. § 2254 and must dismiss the petition. See Burton, 549 U.S. at 157. 25 \\\ 26 \\\
27 1 Page numbers refer to ECF page numbers stamped at the top of the page. 2 The Court may take judicial notice of its own records in other cases. United States v. Wilson, 631 F.2d 118, 119 1 B. Cognizability of Proposition 57 Claims in Federal Habeas Corpus 2 A claim falls within the “core of habeas corpus” when a prisoner challenges “the fact or 3 duration of his confinement” and “seeks either immediate release from that confinement or the 4 shortening of its duration.” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). The Ninth Circuit 5 has held that a “state prisoner’s claim [that] does not lie at ‘the core of habeas corpus’ . . . must 6 be brought, ‘if at all,’ under § 1983.” Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 2016) (en 7 banc) (quoting Preiser, 411 U.S. at 487; Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011)). 8 Therefore, if “success on [Petitioner]’s claims would not necessarily lead to his immediate or 9 earlier release from confinement, [Petitioner]’s claim does not fall within ‘the core of habeas 10 corpus,’ and he must instead bring his claim under § 1983.” Nettles, 830 F.3d at 935 (quoting 11 Skinner, 562 U.S. at 535 n.13). 12 Here, Petitioner argues that his crime meets the criteria of Proposition 57 and that he 13 should be “eligible for parole consideration once he’s completed the full term of his primary 14 offense(s).” (ECF No. 1 at 5). Petitioner also alleges that he was denied due process when the 15 state courts denied his Proposition 57 petitions without citing reasons for the denials. (Id. at 6–7). 16 The Court finds that success on Petitioner’s Proposition 57 claims would not necessarily 17 lead to his immediate or earlier release from confinement. Petitioner is currently serving an 18 indeterminate imprisonment term of sixty-one years to life. (ECF No. 1 at 1). Even assuming 19 success on Petitioner’s claims would render Petitioner eligible for earlier parole consideration 20 pursuant to Proposition 57, it would not necessarily lead to a grant of parole because under 21 California law, the parole board must consider all relevant reliable information in determining 22 suitability for parole and has the authority to deny parole on the basis of any grounds presently 23 available to it. See Nettles, 830 F.3d at 935. As success on Petitioner’s claims would not 24 necessarily lead to his immediate or earlier release from confinement, these claims do not fall 25 within “the core of habeas corpus,” and thus, are not cognizable in federal habeas corpus. See 26 Nettles, 830 F.3d at 935. 27 Additionally, whether Petitioner is entitled to relief under Proposition 57 is an issue of 1 | application of state law are not cognizable in federal habeas corpus.” Langford v. Day, 110 F.3d 2 | 1380, 1389 (9th Cir. 1996) (citations omitted). See also Swarthout v. Cooke, 562 U.S. 216, 219 3 | (2011) (per curiam) (“We have stated many times that federal habeas corpus relief does not lie 4 | for errors of state law.”). 5 I. 6 RECOMMENDATION 7 Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of 8 | habeas corpus be DISMISSED.? 9 This Findings and Recommendation is submitted to the assigned United States District 10 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 11 | Rules of Practice for the United States District Court, Eastern District of California. Within 12 | THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 13 | written objections with the court and serve a copy on all parties. Such a document should be 14 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 15 | United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 16 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 17 | time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 18 | 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 IT IS SO ORDERED. 21| Dated: _ November 14, 2019 [see hy — 0 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 | 3 This conclusion does not preclude Petitioner from attempting to pursue his claims in a civil rights action brought pursuant to 42 U.S.C. § 1983. The Court, however, expresses no opinion as to the merits of Petitioner’s claims or 28 | whether the jurisdictional and procedural requirements for 42 U.S.C. § 1983 are satisfied.