(HC) Wilson v. People of the State of California

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

JEROME WILSON, Case No. 1:24-cv-00426-EPG-HC

Petitioner, ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED v. FOR FAILURE TO EXHAUST STATE JUDICIAL REMEDIES AND FOR FAILURE CALIFORNIA, TO STATE A COGNIZABLE FEDERAL Respondent. Petitioner Jerome Wilson is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. I. Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a habeas petition and allows a district court to dismiss a petition before the respondent is ordered 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.” Rule 4, Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. A. Exhaustion A petitioner in state custody who is proceeding with a federal petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state’s alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each claim before presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). Thus, to satisfy the exhaustion requirement, Petitioner must have either pursued a direct appeal to the California Supreme Court or filed a state habeas petition raising the claims now presented in the California Supreme Court.1 The petition appears to indicate that Petitioner did not file an appeal or seek review in the California Supreme Court with respect to the claims now presented. (ECF No. 1 at 5.2) If Petitioner has not sought relief in the California Supreme Court for the claims that he raises in the petition, the Court cannot proceed to the merits of those claims. 28 U.S.C. § 2254(b)(1). It is possible, however, that Petitioner has presented his claims to the California Supreme Court and failed to indicate this to the Court. Thus, Petitioner must inform the Court whether his claims have been presented to the California Supreme Court, and if possible, provide the Court with a copy of the petition filed in the California Supreme Court that includes the claims now presented and a file stamp showing that the petition was indeed filed in the California Supreme Court. B. Failure to State a Cognizable Federal Habeas Claim In the petition, Petitioner states that the petition concerns a sentence, specifically noting “AB 600.” (ECF No. 1 at 2.) California Assembly Bill No. 600 (“A.B. 600”) went into effect on January 1, 2024. People v. Dain, 99 Cal. App. 5th 399, 404 (Cal. Ct. App. 2024). California Penal Code “Section 1172.1 provides a recall and resentencing procedure that may be invoked 1 “All courts in California have original habeas corpus jurisdiction, but that does not mean all courts must exercise it in all circumstances. A higher court ‘has discretion to deny without prejudice a habeas corpus petition that was not filed first in a proper lower court.’” Robinson v. Lewis, 9 Cal. 5th 883, 895 (Cal. 2020) (citation omitted). Thus, “[p]etitioners should first file a petition for a writ of habeas corpus . . . in the superior court . . . . If the superior court denies the petition, the petitioner may then file a new petition in the Court of Appeal.” Id. If the Court of Appeal denies the petition, the petitioner may then file a petition for review or a new habeas petition in the California Supreme Court. Id. at 896. when, for example, the Secretary of the Department of Corrections and Rehabilitation recommends resentencing.” Dain, 99 Cal. App. 5th at 411. “A.B. 600 amended section 1172.1 to allow a trial court, on its own motion, to recall a sentence and resentence a defendant when ‘applicable sentencing laws at the time of the original sentencing are subsequently changed by new statutory authority or case law.’” Id. at 412 (quoting Cal. Penal Code § 1172.1(a)(1)). Petitioner believes that he is “eligible for resentencing based on changing circumstances” and “recent legislation creates new grounds to resentence [Petitioner] in the interests of justice.” (ECF No. 1 at 4.) By statute, federal courts “shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Whether Petitioner is entitled to be resentenced pursuant to A.B. 600 is an issue of state law. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (“We accept a state court’s interpretation of state law, and alleged errors in the application of state law are not cognizable in federal habeas corpus.” (citation omitted)). Accordingly, Petitioner fails to state a cognizable clam for federal habeas corpus relief. II. Accordingly, IT IS HEREBY ORDERED that Petitioner SHALL SHOW CAUSE why the petition should not be dismissed for failure to exhaust state court remedies and for failure to state a cognizable federal habeas claim within THIRTY (30) days from the date of service of this order. /// /// /// Petitioner is forewarned that failure to follow this order may result in dismissal of the petition pursuant to Federal Rule of Civil Procedure 41(b) (a petitioner’s failure to prosecute or to comply with a court order may result in a dismissal of the action). Dated: _May 14, 2024 hey — UNITED STATES MAGISTRATE JUDGE