Jones v. Atchley

• Court: District Court, S.D. California
• Decided: March 23, 2023
• Docket: 3:22-cv-00363
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RONNIE JONES, Case No.: 22cv363-GPC(KSC)

12 Petitioner, ORDER ADOPTING IN PART 13 v. REPORT AND RECOMMENDATION GRANTING 14 M. Atchley, Warden, MOTION TO DISMISS PETITION 15 Respondent. FOR WRIT OF HABEAS CORPUS

16 [ECF No. 12.] 17 18 I. Introduction 19 On March 16, 2022, Petitioner Ronnie Jones (“Petitioner”), a state prisoner 20 proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus 21 (“Petition”) pursuant to 28 U.S.C. § 2254 challenging the sentence imposed against him. 22 (ECF No. 1.) On June 08, 2022, Respondent M. Atchley, Warden, (“Respondent”) filed a 23 motion to dismiss the Petition for failure to present a cognizable claim and failure to 24 exhaust state remedies. (ECF No. 12.) Petitioner did not file an opposition. On October 25 25, 2022, Magistrate Judge Karen S. Crawford issued a Report and Recommendation 26 (“Report”), recommending the Court grant Respondent’s motion to dismiss the Petition 27 1 with leave to amend. (ECF No. 14.) On December 5, 2022, Petitioner filed an Objection 2 to the Report. (ECF No. 15.) After a thorough review of the issues and for the reasons set 3 forth below, this Court ADOPTS in part the Magistrate Judge’s Report and GRANTS 4 Respondent’s motion to dismiss without leave to amend. 5 II. Background 6 In 2008, in a bench trial, the trial court found Petitioner guilty of unpremeditated 7 attempted murder in violation of California Penal Code (“Penal Code”) sections 664, 8 187(a) (count 1); assault with intent to commit rape in violation of Penal Code section 9 220(a) (count 2); assault with a deadly weapon in violation of Penal Code section 10 245(a)(1) (count 3); attempted forcible rape in violation of Penal Code sections 664, 11 261(a)(2) (count 4); attempted forcible sodomy in violation of Penal Code sections 664, 12 286(c)(2) (count 5); and making a criminal threat in violation of Penal Code section 422 13 (count 6). People v. Jones, D053874, 2009 WL 3489858, at *1 (Cal. App. Oct. 29, 2009). 14 On all counts, the trial court found as true allegations that Petitioner inflicted great bodily 15 injury in violation of Penal Code section 12022(a)(7), and, as to all but count 3, the trial 16 court found as true allegations Petitioner used a deadly weapon in violation of Penal 17 Code section 12022(b)(1). Id. In addition, Petitioner admitted having one prior strike 18 conviction under Penal Code sections 667(b)-(i), 1170.12, one prior serious felony 19 conviction under Penal Code sections 667(a)(1), and four prior prison convictions under 20 Penal Code sections 667.5(b). Id. 21 On October 1, 2008, the trial court sentenced Petitioner to an aggregate term of 32 22 years and eight months in prison. Id. The sentence “consisted of the upper term of nine 23 years for count 1, doubled to 18 years for the prior strike conviction, plus one year for the 24 deadly weapon use enhancement, three years for the great bodily injury enhancement, 25 two years and eight months for count 2, five years for the prior serious felony conviction, 26 and three years for three of the four prior prison convictions.” Id. 27 1 Petitioner direct appealed his conviction. (ECF No. 13-1, Lodgment No. 1.) On 2 October 29, 2009, the Court of Appeal reversed the judgment as to count 4 because 3 attempted rape is a lesser included offense of his conviction in count 2 of assault with 4 intent to commit rape, and the matter was remanded to the trial court to strike that count. 5 (Id.) 6 On October 21, 2021, Petitioner filed a Petition for Writ of Habeas Corpus in the 7 San Diego Superior Court.1 (ECF No. 13-1, Lodgment No. 1 at 32.) Petitioner alleged that 8 he was eligible for resentencing pursuant to California Senate Bill 13933 (“Senate Bill 9 1393”), a statutory amendment that became effective after he was sentenced, and also 10 that his prior strike was now a “misdemeanor”, and therefore an invalid strike. (Id.) On 11 October 29, 2021, the trial court denied the petition reasoning that Petitioner was 12 ineligible for relief based on Senate Bill 1393 because his case was “long-since final 13 because his initial appeal was filed twelve years ago and his six prior petitions for writ of 14 habeas corpus on the same conviction were denied.” (Id. at 4.) Furthermore, the trial 15 court concluded that Petitioner’s second claim was inaccurate and his prior strike 16 conviction was still a prior serious felony, and therefore still enforceable. (Id.) 17 18 19

20 1 In recounting the procedural history of the petition, the superior court noted that the petition was his 21 seventh one. (ECF No. 13-1, Lodgment No. 1.) 22 2 Page numbers are based on the CM/ECF pagination. 3 “On September 30, 2018, [California Governor Jerry Brown] signed Senate Bill 1393 which, effective 23 January 1, 2019, amend[ed] [Penal Code] sections 667(a) and 1385(b) to allow a court to exercise its 24 discretion to strike or dismiss a prior serious felony conviction for sentencing purposes.” People v. Garcia, 28 Cal. App. 5th 961, 971 (2018) (citation omitted). Under the prior versions of those statutes, 25 courts were required to impose a five-year consecutive term for “any person convicted of a serious felony who previously has been convicted of a serious felony” and “ha[d] no discretion to strike any 26 prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667.” Id. (quotation marks and citations omitted). 27 1 On December 20, 2021,4 Petitioner filed a Petition for Writ of Habeas Corpus in 2 the California Court of Appeal. Petitioner alleged his prior conviction did not qualify as 3 prior serious felony for purposes of a five-year enhancement or as a strike for purposes of 4 the Three Strikes law. (ECF No. 13-2, Lodgment No. 2 at 2.) Petitioner also alleged he 5 should be eligible for resentencing pursuant to Senate Bill 1393. (Id.) The California 6 Court of Appeal denied the petition noting that Petitioner’s current prison term was 7 properly increased based on his prior conviction. (Id.) Furthermore, Senate Bill 1393 took 8 effect on January 1, 2019, nearly ten years after Petitioner’s judgment became final in 9 2009. (Id.) Therefore, Senate Bill 1393 did not apply to Petitioner’s prison sentence. (Id.) 10 On March 16, 2022, Petitioner filed the instant Petition for Writ of Habeas Corpus 11 in this Court raising two grounds.5 (ECF No. 1.) First, he alleges he is eligible for 12 resentencing pursuant to a Senate Bill 1393 which now grants a court discretion to strike 13 or dismiss a five-year enhancement for a prior serious felony conviction and one year 14 enhancement for a prior prison term. (Id. at 5-6.) Second, Petitioner argues his prior 15 strike is now deemed a “misdemeanor”, and therefore, the strike conviction is invalid. 16 (Id. at 7.) 17 On June 8, 2022, Respondent filed a motion to dismiss the Petition. (ECF No. 12.) 18 Petitioner did not file an opposition. On October 25, 2022, Magistrate Judge Karen S. 19 Crawford issued a Report advising the Court to grant Respondent’s motion to dismiss the 20 Petition with leave to amend. (ECF No. 14.) On December 5, 2022, Petitioner filed an 21 Objection to the Report. (ECF No. 15.) 22 23

24 4 According to California Court of Appeal’s website, the petition was filed on December 20, 2021. https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=41&doc_id=2370376&doc_no=D0 25 79803&request_token=NiIwLSEmLkw9WyBRSSFdSE1IUFQ6UkxbJCBOJzpTQCAgCg%3D%3D. 26 5 The Petition was originally filed in the U.S. District Court for the Northern District of California and was then transferred to this Court. 27 1 III. Discussion 2 A. Standard of Review of Report and Recommendation 3 The court “may accept, reject, or modify, in whole or in part, the findings or 4 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). If objections are 5 made, the court reviews the magistrate judge’s findings and recommendations de novo. 6 28 U.S.C. § 636(b)(1)(C); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 7 2003) (en banc). When no objections are filed, the court may assume the correctness of 8 the magistrate judge’s findings of fact and decide the motion on the applicable law. 9 Campbell v. United States Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974). The district court 10 need not review de novo those portions of a Report to which neither party objects. 11 Reyna-Tapia, 328 F.3d at 1121-22. In this case, Petitioner filed an Objection. Therefore, 12 the Court conducts a de novo review of the findings and recommendations of the 13 Magistrate Judge. 14 B. Respondent’s Motion to Dismiss – Cognizable Claims 15 Petitioner alleges he is eligible for resentencing pursuant to California Senate Bill 16 1393 which now grants a court discretion to strike or dismiss a five-year enhancement for 17 a prior serious felony conviction.6 (ECF No. 1, Pet. at 5-6.) Petitioner also argues his 18 prior strike is now deemed a “misdemeanor”, and therefore the strike conviction is 19 invalid. (Id. at 7.) Respondent moves to dismiss the Petition arguing both claims are not 20 cognizable on federal habeas review because they do not concern a violation of the 21 constitution or law or treaties of the United States and merely raise state sentencing law 22 issues. (ECF No. 12-1 at 3.) The Report concluded that both claims are based on alleged 23

24 6 On this ground, Petitioner also argues that he should be resentenced under Senate Bill 1393 because 25 the court has discretion to strike or dismiss his one-year enhancement for a prior prison term. (ECF No. 1, Pet. at 5.) However, Senate Bill 1393 applies to prior serious felony convictions and does not apply 26 to prior prison terms. Therefore, Petitioner’s argument on his one-year enhancement for a prior prison term is not supported. 27 1 errors in the application or interpretation of state law, and therefore are not cognizable. 2 (ECF No. 14.) 3 Federal courts shall “entertain an application for a writ of habeas corpus in behalf 4 of a person in custody pursuant to the judgment of a State court only on the ground that 5 he is in custody in violation of the Constitution or laws or treaties of the United States.” 6 28 U.S.C. § 2254(a) (emphasis added). “[F]ederal habeas corpus relief does not lie for 7 errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). “It is not the province of 8 a federal habeas court to reexamine state-court determinations on state-law questions.” 9 Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). “In conducting habeas review, a federal 10 court is limited to deciding whether a conviction violated the Constitution, laws, or 11 treaties of the United States.” Id. at 68 (citations omitted). Courts have long held that 12 alleged errors in the interpretation or application of state laws are not cognizable on 13 federal habeas review. See Rhoades v. Henry, 611 F.3d 1133, 1142 (9th Cir. 2010) 14 (“[V]iolations of state law are not cognizable on federal habeas review.”); see also 15 Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (holding that federal habeas 16 relief is “unavailable for alleged error in the interpretation or application of state law”). 17 Further, district courts have consistently held that a habeas petition seeking relief 18 under Senate Bill 1393 is not cognizable on habeas review because it is a state law claim. 19 See Clarkson v. Eaton, Case No. 5:20-cv-01494-ODW-MAA2022 WL 1296094, at *4 20 (C.D. Cal. Mar. 16, 2022) (“As this District and other district courts in this Circuit 21 consistently have held, Petitioner's claim that he is entitled to relief under Senate Bill 22 1393 is a state law claim that is not cognizable on federal habeas review”) (citing cases); 23 see also O’Neil v. Burton, No. 218CV0858KJMACP, 2019 WL 6915690, at *2 (E.D. 24 Cal. Dec. 19, 2019) (denying petition for writ of habeas corpus for failure to assert a 25 cognizable claim because California Senate Bill 1393 only implicates state law). 26 The Report correctly concluded that the claims in the Petition are not cognizable as 27 1 they solely raise issues of sentencing under state law. 2 In his Objection, Petitioner argues, for the first time,7 that Senate Bill 1393, which 3 took effect in 2019, should be retroactively applicable to his case because his sentence is 4 excessive under the “Apprendi New Rule.” (ECF No. 15 at 2, 4.) Following his logic, 5 Petitioner argues that Senate Bill 1393 falls under the Apprendi New Rule, Apprendi falls 6 within the “watershed” exception of Teague’s8 non-retroactivity rule and is also a 7 substantive rule subject to retroactivity. (Id. at 4, 6-7.) 8 In Apprendi v. New Jersey, 530 U.S. 466, 409 (2000), the United States Supreme 9 Court held under the Sixth Amendment and the due process clause of the Fourteenth 10 Amendment to the United States Constitution, “[o]ther than the fact of a prior conviction, 11 any fact that increases the penalty for a crime beyond the prescribed statutory maximum 12 must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 477. 13 First, Apprendi does not apply to prior convictions, and second, Petitioner admitted 14 his prior serious felony conviction and prior strike conviction at trial. Therefore, 15 Apprendi does not apply in this case. See id.; United States v. Booker, 543 U.S. 220, 244 16 (2005) (“Any fact (other than a prior conviction) which is necessary to support a sentence 17 exceeding the maximum authorized by the facts established by a plea of guilty or a jury 18 verdict must be admitted by the defendant or proved to a jury beyond a reasonable 19 doubt.”). Further, even if Apprendi were applicable, the Ninth Circuit has held that 20 Apprendi does not apply retroactively on collateral review. United States v. Sanchez- 21 22 7 The Court exercises its discretion to consider arguments raised for the first time in the objections. See 23 United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000) (“we conclude that a district court has discretion, but is not required, to consider evidence presented for the first time in a party's objection to a 24 magistrate judge's recommendation.”); Espinoza–Matthews v. California, 432 F.3d 1021, 1026 n. 4 (9th Cir. 2005) (“Because [petitioner] was a pro se petitioner at all relevant times, we hold that the district 25 court should have exercised its discretion to review the supplemental evidence that [petitioner] 26 submitted.”). 8 Teague v. Lane, 489 U.S. 288 (1989). 27 1 Cervantes, 282 F.3d 664, 671 (9th Cir. 2002) (“we hold that Apprendi does not apply 2 retroactively to cases on initial collateral review”). Therefore, Petitioner’s attempt to 3 raise a cognizable claim raising Apprendi is without merit and his claim seeking relief 4 under Senate Bill 1393, a state statute, is not cognizable. 5 Petitioner’s second ground for relief contends that his prior felony strike is now a 6 “misdemeanor” under Proposition 57. (ECF No. 1, Pet. at 7.) In his Objection, Petitioner 7 appears to additionally argue, for the first time, that his assault conviction which was a 8 felony, is now a misdemeanor under Proposition 57. (ECF No. 15 at 5.) Whether 9 Petitioner is challenging his prior felony conviction or his assault conviction under 10 Proposition 57, which amended the California Constitution to provide for early parole 11 consideration, it does not provide a mechanism for resentencing. Travers v. People of the 12 State of Cal., Case No. 17-cv-06126-SI, 2018 WL 707546, at *2 (N.D. Cal. Feb. 5, 2018) 13 (The text of Proposition 57 does not provide for existing prisoners to be resentenced.”) 14 (citing cases). On the second ground, Petitioner merely raises an issue of state sentencing 15 law which is not cognizable on federal habeas review. 16 In conclusion, the Court ADOPTS the Report and GRANTS Respondent’s motion 17 to dismiss for failing to raise cognizable claims on federal habeas review. See Estelle, 502 18 U.S. at 68. 19 Respondent also moves to dismiss the petition as wholly unexhausted. (ECF No. 20 12-1 at 2.) Because the Court concludes that Petitioner has not presented a cognizable 21 claim, the Court need not consider whether he has exhausted them. See Cassett v. 22 Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005) (finding no need to consider exhaustion 23 requirement where petitioner “does not raise even a colorable federal claim”); Gutierrez 24 v. Griggs, 695 F.2d 1195, 1197-98 (9th Cir. 1983) (holding that district court need not 25 consider exhaustion where a claim is plainly non-cognizable). 26 / / / 27 1 C. Leave to Amend 2 Petitioner seeks leave to amend in order to present a “tenable” claim for relief. 3 (ECF No. 15 at 11.) The Report stated that “[a]lthough unlikely,” leave to amend should 4 be granted to allow Petitioner to amend his Petition. (ECF No. 14 at 6-7.) District courts 5 have denied leave to amend where petitioner failed to state a cognizable claim. See 6 Briggs v. Fresno Superior Ct., No. 1:12-CV-01549-SKO-HC, 2012 WL 5210589, at *6 7 (E.D. Cal. Oct. 22, 2012) (denying leave to amend state law claims because petitioner 8 failed to set forth federal basis for the claims); see also Martinez v. Hartley, No. 1:11- 9 CV-00215-OWW, 2011 WL 3319550, at *3 (E.D. Cal. Aug. 1, 2011) (“Because the lack 10 of a cognizable claim results from the nature of the claim, and not from the absence of 11 factual allegations, granting leave to amend the claim would be futile.”). Similarly, here, 12 granting Petitioner leave to amend would be futile because he cannot assert a cognizable 13 claim for resentencing under state law and his attempts to assert a federal claim through 14 Apprendi is without merit. Accordingly, the Court DECLINES to ADOPT the Report 15 and DENIES Petitioner’s request for leave to amend. 16 D. Certificate of Appealability 17 Rule 11 of the Federal Rules Governing Section 2254 Cases states, the district 18 court must “issue or deny a certificate of appealability when it enters a final order adverse 19 to the applicant.” A certificate of appealability may be issued “only if the applicant has 20 made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 21 2253(c)(2). To make a substantial showing of the denial of a constitutional right, the 22 petitioner must demonstrate that “reasonable jurists could debate whether (or, for that 23 matter, agree that) the petition should have been resolved in a different manner or that the 24 issues presented were adequate to deserve encouragement to proceed further.” Slack v. 25 McDaniel, 529 U.S. 473, 484 (2000) (internal quotation and citation omitted). 26 In this case, the Petitioner has not made a required substantial showing of the 27 1 || denial of a constitutional right to justify the issuance of a certificate of appealability. 2 || Reasonable jurists would not find the Court’s determination that Petitioner is not entitled 3 || to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 4 || proceed further. Therefore, the Court DENIES a Certificate of Appealability. 5 Conclusion 6 For the reasons set forth above, the Court ADOPTS in part the Magistrate Judge’s 7 Report and Recommendation, GRANTS Respondent’s motion to dismiss without leave 8 amend and DISMISSES the Petition for Writ of Habeas Corpus. The Court also 9 || DENIES a certificate of appealability. The Clerk of the Court shall close the case. 10 IT IS SO ORDERED. 11 ||Dated: March 23, 2023 = } Caste (AO 12 Hon. athe Cade 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 10 28 22cv363-GPC(KSC)