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12 Petitioner, REPORT AND RECOMMENDA- 13 v. TION RE RESPONDENT’S MOTION TO DISMISS PETITION FOR WRIT 14 M. ATCHLEY, Warden, OF HABEAS CORPUS [Doc. No. 12] 15 Respondent. 16 17 On March 16, 2022, petitioner Ronnie Jones, a state prisoner proceeding pro se 18 and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to Title 28, 19 United States Code, Section 2254, challenging the sentence imposed against him in San 20 Diego Superior Court Case No. SCD204773. [Doc. No. 1, at p. 2 et seq.] The Petition 21 includes only two grounds for relief. [Doc. No. 1, at pp. 3-7.] Before the Court is 22 respondent’s Motion to Dismiss the Petition. [Doc. No. 12.] Petitioner has not filed a 23 response or opposition to respondent’s Motion. 24 Background 25 Petitioner is serving a sentence of thirty-two years, eight months in state prison for 26 attempted murder and assault with intent to commit rape. People v. Jones, D053874, 27 2009 WL 3489858, at 1 (Cal. App. Oct. 29, 2009). As respondent points out, petitioner 28 previously filed a Federal Petition challenging the conviction against him in San Diego 1 Superior Court Case No. SCD204773. See Jones v. McEwen, No. 12cv1777-LAB(NLS) 2 2013 WL 445881 (S.D. Cal. Aug. 16, 2013). This prior Federal Petition was dismissed 3 as untimely based on the one-year statute of limitations imposed by the Antiterrorism and 4 Effective Death Penalty Act of 1996 (“AEDPA”) and for lack of merit. Id. 5 Discussion 6 I. Motion to Dismiss. 7 Rule 4 of the Rules Governing Section 2254 Cases requires a district court to 8 dismiss a petition if it “plainly appears from the petition and any attached exhibits that 9 the petitioner is not entitled to relief in the district court. . . .” Rule 4, Rules Governing 10 Section 2254 Cases. The Court may dismiss a petition for writ of habeas corpus on its 11 own motion, pursuant to a motion to dismiss, or after an answer to the petition has been 12 filed. Rules 4, Rules Governing Section 2254 Cases, advisory committee’s note (2004 13 amendments). 14 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 15 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Because 16 Rule 12(b)(6) focuses on the “sufficiency” of a claim rather than its substantive merits, “a 17 court may [typically] look only at the face of the [pleading] to decide a motion to 18 dismiss.” Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). 19 A motion to dismiss under Federal Rule 12(b)(6) may be based on either a “lack of 20 a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable 21 legal theory.” Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121 (9th Cir. 22 2008) (citing Fed.R.Civ.P. 8(a)(2)). To survive a motion to dismiss, “[f]actual allegations 23 must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. 24 Twombly, 550 U.S. 544, 555 (2013). On the other hand, “[a] document filed pro se is ‘to 25 be liberally construed,’ and . . . must be held to less stringent standards than formal 26 pleadings drafted by lawyers. . . .’” Erickson v. Pardus, 551 U.S. 89, 94 (2007). 27 / / / 28 / / / 1 II. State Sentencing Error Claims. 2 Federal Courts may “entertain an application for a writ of habeas corpus in behalf 3 of a person in custody pursuant to the judgment of a State court only on the ground that 4 he is in custody in violation of the Constitution or laws or treaties of the United States.” 5 8 U.S.C. § 2254 (emphasis added). “[V]iolations of state law are not cognizable on 6 federal habeas review.” Rhoades v. Henry, 611 F.3d 1133, 1142 (9th Cir. 2010). 7 “Absent a showing of fundamental unfairness, a state court’s misapplication of its own 8 sentencing laws does not justify federal habeas relief.” Christian v. Rhode, 41 F.3d 461, 9 469 (9th Cir. 1994). In Miller v. Vasquez, 868 F.2d 1116 (9th Cir. 1989), the petitioner 10 claimed the trial court should not have applied an enhancement provision to his sentence, 11 and the Ninth Circuit concluded the claim was not cognizable, because Federal habeas 12 relief is not available for an alleged error in the interpretation or application of state 13 sentencing laws. Id. at 1118-1119. In other words, a sentencing claim that “is 14 exclusively concerned with state law” is “not cognizable in a federal habeas corpus 15 proceeding.” Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993). 16 Here, Ground 1 of the Petition cites Senate Bill 1393, which purportedly “deletes 17 the restriction prohibiting a judge from striking a prior serious felony in connection with 18 the imposition of [an] enhancement.” [Doc. No. 1, at p. 5.] Based on Senate Bill 1393, 19 petitioner argues that a great bodily injury enhancement should not have been imposed as 20 part of his sentence, because great bodily injury is an “implied” element of his offense. 21 [Doc. No. 1, at p. 6.] Ground 2 of the Petition argues that a five-year prison enhancement 22 imposed against petitioner because of a prior felony conviction that qualified as a strike 23 should be stricken from his sentence “in the interest of justice” because the offense is 24 “now a misdemeanor” based on “new sentencing provisions under [Proposition 57].” 25 [Doc. No. 1, at p. 7.] The Petition does not include any allegation of fundamental 26 unfairness in the state court’s interpretation of any Federal law. In short, as respondent 27 contends, both claims in the Petition essentially seek resentencing based on changes in 28 state sentencing law. [Doc. No. 12-1, at p. 3.] However, as outlined above, Federal 1 habeas relief is not available for alleged errors in the application or interpretation of state 2 sentencing laws. For this reason, IT IS RECOMMENDED that the District Court 3 GRANT respondent’s Motion to Dismiss Grounds 1 and 2 in the Petition for failure to 4 state a cognizable claim. 5 III. Exhaustion. 6 Respondent also argues that the Petition should be dismissed because it “does not 7 appear” that petitioner has presented either of his two claims to the California Supreme 8 Court. [Doc. No. 12-1, at p. 2.] In support of this contention, respondent lodged two 9 documents indicating petitioner did present claims in the state trial court and the 10 California Court of Appeal that are essentially the same as those presented in the instant 11 Federal Petition. [Doc. No. 13, at pp. 1-2; Doc. Nos. 13-1, 13-2.] However, respondent’s 12 Motion to Dismiss represents that an online docket search was completed which indicated 13 petitioner has not presented these same claims to the California Supreme Court. [Doc. 14 No. 12-1, at p.
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1 2 3 4 5 6 7 10 11 RONNIE JONES, Case No.: 22cv363-GPC(KSC)
12 Petitioner, REPORT AND RECOMMENDA- 13 v. TION RE RESPONDENT’S MOTION TO DISMISS PETITION FOR WRIT 14 M. ATCHLEY, Warden, OF HABEAS CORPUS [Doc. No. 12] 15 Respondent. 16 17 On March 16, 2022, petitioner Ronnie Jones, a state prisoner proceeding pro se 18 and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to Title 28, 19 United States Code, Section 2254, challenging the sentence imposed against him in San 20 Diego Superior Court Case No. SCD204773. [Doc. No. 1, at p. 2 et seq.] The Petition 21 includes only two grounds for relief. [Doc. No. 1, at pp. 3-7.] Before the Court is 22 respondent’s Motion to Dismiss the Petition. [Doc. No. 12.] Petitioner has not filed a 23 response or opposition to respondent’s Motion. 24 Background 25 Petitioner is serving a sentence of thirty-two years, eight months in state prison for 26 attempted murder and assault with intent to commit rape. People v. Jones, D053874, 27 2009 WL 3489858, at 1 (Cal. App. Oct. 29, 2009). As respondent points out, petitioner 28 previously filed a Federal Petition challenging the conviction against him in San Diego 1 Superior Court Case No. SCD204773. See Jones v. McEwen, No. 12cv1777-LAB(NLS) 2 2013 WL 445881 (S.D. Cal. Aug. 16, 2013). This prior Federal Petition was dismissed 3 as untimely based on the one-year statute of limitations imposed by the Antiterrorism and 4 Effective Death Penalty Act of 1996 (“AEDPA”) and for lack of merit. Id. 5 Discussion 6 I. Motion to Dismiss. 7 Rule 4 of the Rules Governing Section 2254 Cases requires a district court to 8 dismiss a petition if it “plainly appears from the petition and any attached exhibits that 9 the petitioner is not entitled to relief in the district court. . . .” Rule 4, Rules Governing 10 Section 2254 Cases. The Court may dismiss a petition for writ of habeas corpus on its 11 own motion, pursuant to a motion to dismiss, or after an answer to the petition has been 12 filed. Rules 4, Rules Governing Section 2254 Cases, advisory committee’s note (2004 13 amendments). 14 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 15 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Because 16 Rule 12(b)(6) focuses on the “sufficiency” of a claim rather than its substantive merits, “a 17 court may [typically] look only at the face of the [pleading] to decide a motion to 18 dismiss.” Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). 19 A motion to dismiss under Federal Rule 12(b)(6) may be based on either a “lack of 20 a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable 21 legal theory.” Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121 (9th Cir. 22 2008) (citing Fed.R.Civ.P. 8(a)(2)). To survive a motion to dismiss, “[f]actual allegations 23 must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. 24 Twombly, 550 U.S. 544, 555 (2013). On the other hand, “[a] document filed pro se is ‘to 25 be liberally construed,’ and . . . must be held to less stringent standards than formal 26 pleadings drafted by lawyers. . . .’” Erickson v. Pardus, 551 U.S. 89, 94 (2007). 27 / / / 28 / / / 1 II. State Sentencing Error Claims. 2 Federal Courts may “entertain an application for a writ of habeas corpus in behalf 3 of a person in custody pursuant to the judgment of a State court only on the ground that 4 he is in custody in violation of the Constitution or laws or treaties of the United States.” 5 8 U.S.C. § 2254 (emphasis added). “[V]iolations of state law are not cognizable on 6 federal habeas review.” Rhoades v. Henry, 611 F.3d 1133, 1142 (9th Cir. 2010). 7 “Absent a showing of fundamental unfairness, a state court’s misapplication of its own 8 sentencing laws does not justify federal habeas relief.” Christian v. Rhode, 41 F.3d 461, 9 469 (9th Cir. 1994). In Miller v. Vasquez, 868 F.2d 1116 (9th Cir. 1989), the petitioner 10 claimed the trial court should not have applied an enhancement provision to his sentence, 11 and the Ninth Circuit concluded the claim was not cognizable, because Federal habeas 12 relief is not available for an alleged error in the interpretation or application of state 13 sentencing laws. Id. at 1118-1119. In other words, a sentencing claim that “is 14 exclusively concerned with state law” is “not cognizable in a federal habeas corpus 15 proceeding.” Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993). 16 Here, Ground 1 of the Petition cites Senate Bill 1393, which purportedly “deletes 17 the restriction prohibiting a judge from striking a prior serious felony in connection with 18 the imposition of [an] enhancement.” [Doc. No. 1, at p. 5.] Based on Senate Bill 1393, 19 petitioner argues that a great bodily injury enhancement should not have been imposed as 20 part of his sentence, because great bodily injury is an “implied” element of his offense. 21 [Doc. No. 1, at p. 6.] Ground 2 of the Petition argues that a five-year prison enhancement 22 imposed against petitioner because of a prior felony conviction that qualified as a strike 23 should be stricken from his sentence “in the interest of justice” because the offense is 24 “now a misdemeanor” based on “new sentencing provisions under [Proposition 57].” 25 [Doc. No. 1, at p. 7.] The Petition does not include any allegation of fundamental 26 unfairness in the state court’s interpretation of any Federal law. In short, as respondent 27 contends, both claims in the Petition essentially seek resentencing based on changes in 28 state sentencing law. [Doc. No. 12-1, at p. 3.] However, as outlined above, Federal 1 habeas relief is not available for alleged errors in the application or interpretation of state 2 sentencing laws. For this reason, IT IS RECOMMENDED that the District Court 3 GRANT respondent’s Motion to Dismiss Grounds 1 and 2 in the Petition for failure to 4 state a cognizable claim. 5 III. Exhaustion. 6 Respondent also argues that the Petition should be dismissed because it “does not 7 appear” that petitioner has presented either of his two claims to the California Supreme 8 Court. [Doc. No. 12-1, at p. 2.] In support of this contention, respondent lodged two 9 documents indicating petitioner did present claims in the state trial court and the 10 California Court of Appeal that are essentially the same as those presented in the instant 11 Federal Petition. [Doc. No. 13, at pp. 1-2; Doc. Nos. 13-1, 13-2.] However, respondent’s 12 Motion to Dismiss represents that an online docket search was completed which indicated 13 petitioner has not presented these same claims to the California Supreme Court. [Doc. 14 No. 12-1, at p. 2.] As noted above, petitioner did not respond to the Motion to Dismiss, 15 so there is nothing before the Court to refute respondent’s representation. 16 Title 28, United States Code, Section 2254(b)(1), provides as follows: “An 17 application for a writ of habeas corpus on behalf of a person in custody pursuant to the 18 judgment of a State court shall not be granted unless it appears that--(A) the applicant has 19 exhausted the remedies available in the courts of the State. . . .” 28 U.S.C. 2254(b)(1). 20 “A petitioner has satisfied the exhaustion requirement if: (1) he has ‘fairly presented’ his 21 federal claim to the highest state court with jurisdiction to consider it, [citations omitted]; 22 or (2) he demonstrates that no state remedy remains available. [Citations omitted.]” 23 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). 24 Additionally, the Supreme Court has held that a claim has not been “fairly 25 presented” in the state court system unless the petitioner specifically indicated he was 26 raising a Federal constitutional claim. Picard v. Connor, 404 U.S. 270, 275 (1971). “If 27 state courts are to be given the opportunity to correct alleged violations of prisoners' 28 Federal rights, they must surely be alerted to the fact that the prisoners are asserting 1 claims under the United States Constitution. If a habeas petitioner wishes to claim that an 2 evidentiary ruling at a state court trial denied him the due process of law guaranteed by 3 the Fourteenth Amendment, he must say so, not only in federal court, but in state court.” 4 Duncan v. Henry, 513 U.S. 364, 365-366 (1995). 5 “Although non-exhaustion of state court remedies has been viewed as an 6 affirmative defense, it is the petitioner’s burden to prove that state judicial remedies were 7 properly exhausted.” Dean v. Diaz, No. 1:14-CV-00209-SKO-HC, 2014 WL 1275706, at 8 5 (E.D. Cal. Mar. 27, 2014), citing 28 U.S.C. § 2254(b)(1)(A); Cartwright v. Cupp, 650 9 F.2d 1103, 1104 (9th Cir.1981); Darr v. Burford, 339 U.S. 200, 218-219 (1950), 10 overruled in part on other grounds in Fay v. Noia, 372 U.S. 391 (1963). “Once a district 11 court determines that a habeas petition contains only unexhausted claims, it need not 12 inquire further as to the petitioner’s intentions. Instead, it may simply dismiss the habeas 13 petition for failure to exhaust.” Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). 14 Here, the face of the current Petition is ambiguous on the issue of whether 15 petitioner “exhausted the remedies available in the courts of the State. . .” as required by 16 Section 2254(b)(1). The Petition was filed in this Court using a form approved by the 17 Judicial Counsel of California for presenting a state habeas petition that does not instruct 18 the petitioner to reveal whether state court remedies were exhausted. This form only 19 includes an “administrative review” section instructing the petitioner to: “Explain what 20 administrative review you sought or explain why you did not seek such review.” [Doc. 21 No. 1, at p. 8.] Petitioner’s handwritten explanation states that “administrative remedies 22 are unnecessary,” because “[t]his Petition does not concern the conditions of my 23 confinement.” [Doc. No. 1, at p. 8.] 24 As noted above, Grounds 1 and 2 in the Federal Petition essentially seek 25 resentencing based on changes in state sentencing law. The Court was unable to locate 26 anything in the Federal Petition or in the attached exhibits indicating petitioner’s intent 27 was to raise Federal constitutional claims. [Doc. No. 1; Doc. No. 1-1.] Rather, the 28 claims in the Federal Petition are based solely on purported changes in state sentencing 1 law. The lodgments submitted by respondent (i.e., orders by the state trial court and the 2 state appellate court denying the same claims presented in the Federal Petition) also do 3 not indicate petitioner asserted any Federal constitutional claims. [Doc. No. 13-1, at pp. 4 3-4.] Nor does the record before the Court include copies of the petitions filed in the 5 state trial court or the state appellate court. Finally, as noted above, respondent 6 represents in the Motion to Dismiss that a search of the online docket for the California 7 Supreme Court indicates petitioner has not filed anything there since the California Court 8 of Appeal denied his current claims, and petitioner did not respond to the Motion to 9 Dismiss. [Doc. No. 12-1, at p. 2] 10 Based on the foregoing, there is nothing in the record to indicate petitioner could 11 satisfy his burden to prove that he properly exhausted state judicial remedies by fairly 12 presenting Federal constitutional claims to the highest state court with jurisdiction to 13 consider them or that no state remedies remain. For these reasons, IT IS 14 RECOMMENDED that the District Court GRANT respondent’s Motion to Dismiss to 15 the extent it seeks dismissal of the Petition for failure to exhaust state court remedies.1 16 IV. Leave to amend. 17 “[A] petition for habeas corpus should not be dismissed without leave to amend 18 unless it appears that no tenable claim for relief can be pleaded were such leave 19 granted.” Henderson v. Johnson, 710 F.3d 872, 873 (9th Cir. 2013), quoting Jarvis v. 20 Nelson, 440 F.2d 13,14 (9th Cir.I97I). Rule 15 states that: “The court should freely give 21 leave when justice so requires”" Fed. R. Civ. P. 15(a)(2). Although unlikely, it is 22 possible petitioner could amend his Petition to resolve the matters raised in respondent’s 23 24
25 1 Because it was not raised in respondent’s Motion to Dismiss and because the Court 26 is recommending dismissal on other grounds, it is not necessary to address the statute of 27 limitations. See, e.g., 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 28 1 || Motion to Dismiss. Therefore, it is RECOMMENDED that the Petition be dismissed 2 || with thirty (30) days’ leave to amend. 3 Conclusion 4 Based on the foregoing, IT IS RECOMMENDED that the District Court GRANT 5 || respondent’s Motion to Dismiss the Petition (Grounds 1 and 2), because petitioner failed 6 || to state cognizable Federal claims and because there is nothing in the record to indicate 7 || that petitioner could satisfy his burden to show he exhausted his state court remedies by 8 || fairly presenting Federal claims to the state’s highest court and that no state remedies 9 ||remain. However, IT IS RECOMMENDED that the District Court grant petitioner thirty 10 days’ leave to amend. [Doc. No. 12.] 11 This Report and Recommendation is submitted to the assigned United States 12 || District Judge pursuant to Title 28, United States Code, Section 636(b), and Civil Local 13 Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of 14 || California. 15 IT IS HEREBY ORDERED that no later than November 22, 22022 any party to 16 || this 17 || action may file and serve written objections to this Report and Recommendation. The 18 document should be captioned “Objection to Report and Recommendation. 19 IT IS FURTHER ORDERED that any reply to objections shall be filed and served 20 later than December 6, 2022. 21 The parties are advised that failure to file objections with the specified time may 22 || waive the right to raise those objections on appear of this Court order. Martinez v. Ylst, 23 F.2d 1153, 1156 (9th Cir. 1991). 25 || Dated: October 25, 2022 Yy yf } 26 Uc Ha Hori. Karen 8S. Crawford United States Magistrate Judge