Joshua Hernandez v. The People of the State of California

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSHUA HERNANDEZ, ) Case No. 2:20-cv-05930-JLS-JC 12 ) Petitioner, ) 13 ) ORDER TO SHOW CAUSE WHY THIS v. ) ACTION SHOULD NOT BE 14 ) DISMISSED THE PEOPLE OF THE STATE ) ) 16 Respondent. ) 17 I. PROCEEDINGS 18 On June 28, 2020, petitioner Joshua Hernandez, proceeding pro se, signed 19 and is deemed to have constructively filed a Petition for Writ of Habeas Corpus by 20 a Person in State Custody with attachments (“Petition”) pursuant to 28 U.S.C. 21 § 2254, which was formally filed on June 30, 2020.1 Construing the Petition 22 liberally, petitioner appears to challenge (1) a 14-year sentence imposed on April 23 25, 2011 in Los Angeles County Superior Court Case No. BA369107 (the “2011 24 Case”), claiming that the court deprived petitioner of due process by refusing to 25 strike, pursuant to California Penal Code section 1385, prior conviction 26 enhancements under California Penal Code sections 667(a)(1) (five years) and 27 28 1See Houston v. Lack, 487 U.S. 266, 276 (1988). For ease of reference, the Court herein cites to the Petition by its Page ID numbers in the Court’s electronic filing system (CM/ECF). 1 }667.5(B) (one year), apparently arising from his 2006 conviction and prison term in 2 No. GA965596 (court unknown) (“2006 Case”); and (2) the validity of his 3 guilty plea entered in February 2006 in the 2006 Case, claiming that at the time of 4 such plea, he was not informed of its future consequences. (Petition at 2, 5, 12-14). 5 Petitioner argues that this Court should order the trial court to strike the 6 lenhancements imposed in the 2011 Case pursuant to “SB 1393 and SB 136.” 7 (Petition at 12). 9 THE 2011 CASE’ 10 On March 8, 2011, a jury in the 2011 Case convicted petitioner of two counts 11 lof first degree residential burglary (respectively, “Count One” and “Count Two”). 12 [Thereafter, petitioner admitted that he had previously been convicted of burglary, a 13 serious felony” under state law. On April 25, 2011, the trial court sentenced 14 petitioner to 14 years in state prison. See Petition at 2; People v. Hernandez, 2012 15 WL 2855809 (Cal. Ct. App. July 12, 2012). 16 Petitioner appealed, raising sufficiency of the evidence and instructional error 17 claims. On July 12, 2012, in Case No. B232673, the California Court of Appeal, 18 Second Appellate District (“Court of Appeal’) affirmed the conviction on Count 19 One, but reversed the conviction on Count Two. See People v. Hernandez, 2012 20 WL 2855809 (vacating petitioner’s conviction on Count Two). Because 21 lpetitioner’s convictions on Count One and Count Two had been ordered to run 22 iconcurrently, this ruling did not impact the sentence. On September 24, 2012, the AA 24 *The procedural history set forth herein is derived from the Petition, the docket and records filed in petitioner’s prior federal habeas action (Joshua Hernandez v. K. Holland, CDCA 25 Case No. 2:14-cv-7561-JLS-PJW (“Prior Federal Action”)), and the dockets of the the Los 26 Angeles County Superior Court (available online at www.lacourt.org) and the California Court of Appeal and California Supreme Court (available online at https://appellatecases.courtinfo. 27 ca.gov), of which Court takes judicial notice. See Fed. R. Evid. 201; Harris v. County of 28 Orange, 682 F.3d 1126, 113 1-32 (9th Cir. 2012) (court may take judicial notice of undisputed matters of public record including documents on file in federal or state courts).

1 Los Angeles County Superior Court filed an amended Abstract of Judgment 2 consistent with the Court of Appeal’s reversal of the conviction on Count Two. 3 (Petition at 33-34). Petitioner did not seek further direct review. (Petition at 20). 4 As detailed below, petitioner thereafter filed two rounds of state habeas 5 petitions and in between such rounds, filed one federal habeas petition. 6 On May 24, 2013, petitioner filed a habeas petition with the Los Angeles 7 County Superior Court in the 2011 Case, which such court denied on March 7, 8 2014. On February 21, 2014, petitioner filed a habeas petition in the Court of 9 Appeal (Case No. B254485), which such court denied on March 13, 2014. On 10 April 28, 2014, petitioner filed a petition in the California Supreme Court (Case No. 11 S218100), which such court denied on July 9, 2014. 12 On September 29, 2014, petitioner filed a Petition for Writ of Habeas Corpus 13 (“Prior Federal Petition”) in the Prior Federal Action claiming (1) petitioner’s due 14 process rights were violated when the trial court failed to dismiss a juror whose 15 home was burglarized during the trial, as well as two other jurors whom she had 16 told about the burglary; and (2) petitioner’s trial and appellate counsel were 17 ineffective because they failed to challenge the trial court’s decision to allow the 18 jurors to remain on the panel. On October 12, 2016, the assigned magistrate judge 19 issued a Report and Recommendation (“Prior R&R”) recommending that judgment 20 be entered denying the Prior Federal Petition on its merits and dismissing the Prior 21 Federal Action with prejudice. On December 22, 2016, the District Judge accepted 22 the Prior R&R, adjudged that the Prior Federal Petition Report be denied and the 23 Prior Federal Action be dismissed with prejudice, and denied petitioner a certificate 24 of appealability. Petitioner did not appeal. 25 On September 3, 2019 and October 24, 2019, petitioner filed state habeas 26 petitions with the Los Angeles County Superior Court in the 2011 Case, raising 27 claims similar to those raised herein, and such court denied such petitions on 28 December 24, 2019. (Petition at 23-25 (copy of Superior Court minutes denying 3 1 petitions finding they: (1) alleged no cognizable habeas claims; (2) failed to allege 2 facts establishing a prima facie case for relief; (3) failed to explain and justify the 3 significant delay in seeking habeas relief; (4) raised issues which could have been 4 raised on appeal but were not; (5) presented claims raised and rejected in a prior 5 habeas petition; and (6) presented claims that had not been presented in a prior 6 habeas petition without establishing an exception to the rule requiring all claims to 7 be raised in one timely filed petition). 8 On January 16, 2020, petitioner filed a petition in the Court of Appeal (Case 9 No. B303679), which such court denied on January 22, 2020. (Petition at 27 (Court 10 of Appeal’s order denying petition without comment)). On February 24, 2020, 11 petitioner filed a petition in the California Supreme Court (Case No. S260827), 12 which such court denied on June 10, 2020. (Petition at 10-21 (petition); Petition at 13 29 (Supreme Court order denying petition without comment)). 15 Rule 4 of the Rules Governing Section 2254 Cases in the United States 16 District Courts allows a district court to dismiss a petition if it “plainly appears from 17 the petition and any attached exhibits that the petitioner is not entitled to relief in 18 the district court. . . .” Rule 4 of the Rules Governing Section 2254 Cases. Based 19 upon the Petition and the federal and California state court records as to which the 20 Court has taken judicial notice, and for the reasons discussed below, the Court 21 orders petitioner to show cause why the Petition/claims therein should not be 22 dismissed. 23 A. The Petition Fails to Name a Proper Respondent 24 A petitioner seeking federal habeas relief must name the proper respondent. 25 Federal courts lack personal jurisdiction when a habeas petition fails to name a 26 proper respondent. See Ortiz -Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) 27 (citations omitted). A petitioner seeking habeas corpus relief under 28 28 U.S.C. § 2254 must name the state officer having custody of him as the 4 1 [respondent to the petition. See Rule 2(a) of the Rules Governing § 2254 Cases in 2 United States District Courts (“Habeas Rules”); Stanley v. California Supreme 3 Court, 21 F.3d 359, 360 (9th Cir. 1994). The appropriate respondent is petitioner’s 4 immediate custodian (i.e., the prison warden at the facility where he is currently 5 lhoused). See Rumsfeld v. Padilla, 542 U.S. 426, 439 (2004); see also 28 U.S.C. 6 2242; Rule 2(a) of the Habeas Rules. 7 Here, petitioner improperly names the People of the State of California as 8 respondent. Petitioner’s failure to name a proper respondent requires dismissal of 9 his habeas petition for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. 10 California Adult Auth., 423 F.2d 1326, 1326 (9th Cir.), cert. denied, 398 U.S. 914 11 (1970). 12 B. The Petition Is Successive and the Court Lacks Jurisdiction to 13 Consider It to the Extent It Challenges the Sentence/Judgment in 14 the 2011 Case 15 As noted above, petitioner filed the Prior Federal Petition challenging the 16 judgment in the 2011 Case and such case was rejected on the merits. Accordingly 17 Ithe instant Petition — at least to the extent it challenges the sentence/judgment in the 18 2011 Case * — is successive and as explained below, the Court lacks jurisdiction to 19 20 °To the extent the Petition may also challenge the validity of his guilty plea in the 2006 2] Case, petitioner faces additional hurdles. For example, it is not clear that petitioner is even still in custody on the 2006 Case — a prerequisite to this Court having subject matter jurisdiction to 22 consider such challenge. Subject matter jurisdiction under Section 2254 is limited to those 93 ] Persons “in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a); Brock v. Weston, 31 F.3d 887, 889 (9th Cir. 1994). Thus, federal courts have subject matter jurisdiction 24 to consider habeas petitions by individuals challenging state court criminal judgments only if, at the time the petition is filed, the petitioner is “in custody” under the conviction challenged in the 25 petition. Maleng v. Cook, 490 U.S. 488, 492 (1989) (per curiam) (emphasis added); Bailey v. 26 Hill, 599 F.3d 976, 978 (9th Cir. 2010) (“in custody” requirement is jurisdictional); 28 U.S.C. §§ 2241(c), 2254(a); see also Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001) 27 (“The first showing a § 2254 petitioner must make is that he is ‘in custody pursuant to the 28 judgment of a State court.’”) (quoting 28 U.S.C. § 2254(a)). Once a petitioner’s sentence has (continued...)

1 consider without authorization from the United States Court of Appeals for the 2 Circuit (“Ninth Circuit”).* 3 Before a habeas petitioner may file a second or successive petition in a 4 district court, he must apply to the appropriate court of appeals for an order 5 jauthorizing the district court to consider the application. Burton v. Stewart, 549 6 147, 152-53 (2007) (citing 28 U.S.C. § 2244(b)(3)(A)). This provision 7 “creates a ‘gatekeeping’ mechanism for the consideration of second or successive 8 llapplications in district court.” Felker v. Turpin, 518 U.S. 651, 657 (1996); see also Pp relker Vv. Urpin. SCE 9 Reyes v. Vaughn, 276 F. Supp. 2d 1027, 1028-30 (C.D. Cal. 2003) (discussing 10 lapplicable procedures in Ninth Circuit). A district court lacks jurisdiction to 11 12 °(...continued) 13 fully expired, he is precluded from challenging that conviction because he is no longer “in custody” for purposes of federal habeas review. Maleng, 490 U.S. at 492. The Supreme Court 14 has nonetheless recognized that, in limited circumstances, a state prisoner may challenge expired 15 state convictions through federal habeas corpus when the prior convictions are used to enhance a current state sentence. Coss, 532 U.S. at 403-05 (habeas petitioner may challenge prior 16 conviction used to enhance petitioner’s current sentence only where: (1) there was a failure to 1 appoint counsel in violation of the Sixth Amendment as set forth in Gideon v. Wainwright, 372 7 U.S. 335 (1963), for the underlying conviction; or (2) the petitioner cannot be faulted for failing 18 to obtain a timely review of a constitutional claim, either because a state court, without Justification, refused to rule on a constitutional claim properly presented to it, or because the 19 ! petitioner uncovered “compelling evidence” of his innocence after the time for review had 20 expired that could not have been timely discovered). The Court reasoned that because such a claim could be construed as asserting a challenge to the state sentence the petitioner was then 21 serving, as it was enhanced by the allegedly invalid prior conviction, he satisfied the “in custody” requirement. Id. at 401-02; see also Dubrin v. California, 720 F.3d 1095, 1097 (9th 22 Cir, 2013) (quoting Maleng, 490 U.S. at 493) (where habeas petitioner is currently serving a 23 Sentence in a separate case in which his sentence was enhanced based upon an expired conviction whose validity a petitioner challenges, a federal habeas court should liberally 24 construe pro se petition to challenge the sentence in the current case, as enhanced by the 5 allegedly invalid prior conviction). Here, even assuming petitioner could meet the Coss criteria, liberally construing petitioner’s challenge to the validity of his guilty plea in the 2006 Case as a 26 challenge to his sentence in the 2011 Case would be unavailing, at least because, as discussed 97 above, it would be successive and the Court would lack jurisdiction to consider it. 28 “A search of the court’s PACER system does not reflect that petitioner has been granted leave to file a second or successive petition by the Ninth Circuit.

1 consider the merits of a second or successive habeas petition in the absence of 9 proper authorization from a court of appeals. Cooper v. Calderon, 274 F.3d 1270, 3, [1274 (9th Cir. 2001) (per curiam) (citing United States v. Allen, 157 F.3d 661, 664 4 Cir. 1998)), cert. denied, 538 U.S. 984 (2003). 5 The court of appeals may authorize the filing of a second or successive 6 petition only if it determines that the petition makes a prima facie showing that at 7 least one claim within the petition satisfies the requirements of 28 U.S.C. Section g |2244(b), i.e., that a claim which was not presented in a prior application (1) relies g a new rule of constitutional law, made retroactive to cases on collateral review 10 by the Supreme Court; or (2) the factual predicate for the claim could not have been 11 \discovered previously through the exercise of due diligence and the facts underlying 12 claim would be sufficient to establish that, but for constitutional errors, no 13 {reasonable factfinder would have found the applicant guilty of the underlying 14 offense. Nevius v. McDaniel, 104 F.3d 1120, 1120-21 (9th Cir. 1997); Nevius v. 15 (McDaniel, 218 F.3d 940, 945 (9th Cir. 2000). 16 A second or subsequent habeas petition is not considered “successive” if the 17 jinitial habeas petition was dismissed for a technical or procedural reason, rather 1g on the merits. See Slack v. McDaniel, 529 U.S. 473, 485-487 (2000) (second 19 habeas petition not “successive” if initial habeas petition dismissed for failure to 20 exhaust state remedies); Stewart v. Martinez-Villareal, 523 U.S. 637, 643-645 21 (1998) (second habeas petition not “successive” if claim raised in first habeas 77 petition dismissed as premature); but see McNabb v. Yates, 576 F.3d 1028, 1030 23 \(9th Cir. 2009) (dismissal on statute of limitations grounds constitutes disposition 74 jon the merits rendering subsequent petition “second or successive”); Henderson v. 75 Lampert, 396 F.3d 1049, 1053 (9th Cir.) (dismissal on procedural default grounds 26 \constitutes disposition on the merits rendering subsequent petition “second or 77 Successive”), cert. denied, 546 U.S. 884 (2005); Plaut v. Spendthrift Farm, Inc., 29

1 514 U.S. 211, 228 (1995) (dismissal for failure to prosecute treated as judgment on 2 the merits) (citations omitted). 3 The Prior Federal Petition in the Prior Federal Action was denied on its 4 merits – not for a technical or procedural reason. Accordingly, the instant federal 5 Petition – at least to the extent it challenges the sentence/judgment in the 2011 Case 6 – is successive. Since petitioner filed the instant federal Petition without 7 authorization from the Ninth Circuit, this Court lacks jurisdiction to consider it. 8 C. The Petition Appears to Be Time-Barred 9 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death 10 Penalty Act of 1996 (“AEDPA”), which governs all petitions for writs of habeas 11 corpus filed in federal court after its enactment. Lindh v. Murphy, 521 U.S. 320, 12 327 (1997). AEDPA instituted a one-year statute of limitations for the filing of 13 habeas petitions by persons in state custody. 28 U.S.C. § 2244(d)(1). The one-year 14 limitation period runs from the latest of: (1) the date on which the judgment 15 became final by the conclusion of direct review or the expiration of the time for 16 seeking such review (28 U.S.C. § 2244(d)(1)(A)); (2) the date on which the 17 impediment to filing an application created by State action in violation of the 18 Constitution or laws of the United States is removed, if the applicant was prevented 19 from filing by such State action (28 U.S.C. § 2244(d)(1)(B)); (3) the date on which 20 the constitutional right asserted was initially recognized by the Supreme Court, if 21 the right has been newly recognized by the Supreme Court and made retroactively 22 applicable to cases on collateral review (28 U.S.C. § 2244(d)(1)(C)); or (4) the date 23 on which the factual predicate of the claim or claims presented could have been 24 discovered through the exercise of due diligence (28 U.S.C. § 2244(d)(1)(D)). 25 In this case, petitioner had at most one year from the date his sentence in the 26 2011 Case became final to file a federal habeas petition. As detailed above, 27 petitioner directly appealed his conviction in the 2011 Case to the California Court 28 of Appeal in Case No. B232673, which that court affirmed in part and reversed in 8 1 on July 12, 2012. See People v. Hernandez, 2012 WL 2855809. As petitioner 7 \did not file a petition for review in the California Supreme Court, his conviction 3, became final forty days from the filing of the Court of Appeal’s decision. 4 Smith v. Duncan, 297 F.3d 809, 812-13 (9th Cir. 2002) (in the absence of a 5 petition for review to the California Supreme Court, a judgment becomes final forty 6 after the California Court of Appeal’s affirmance), abrogated on other grounds 7 lby Pace v. DiGuglielmo, 544 U.S. 408 (2005). Accordingly, petitioner’s conviction g became final on August 21, 2012 — the fortieth day after the Court of Appeal’s July g 2012 opinion. The statute of limitations commenced to run on August 22, 2012, 10 absent tolling, expired on August 21, 2013, unless subsections B, C or D of 11 128 U.S.C. § 2244(d)(1) apply. See 28 U.S.C. § 2244(d)(1)(A).” 12 Subsection B of 28 U.S.C. § 2244(d)(1) has no application in the present 13 case. Petitioner does not allege, and this Court finds no indication, that any illegal 14 State action prevented petitioner from filing the present Petition sooner. 15 Subsection C of 28 U.S.C. § 2244(d)(1) also has no application in the present 16 While petitioner’s claims purport to rely on newly enacted California laws, 17 are not predicated on a constitutional right “newly recognized by the Supreme 1g and made retroactively applicable to cases on collateral review.” 19 Petitioner cites to recent legislation effective as changing the law which he claims 20 lrenders the Petition timely. First, petitioner cites Senate Bill 136 (eff. Jan. 1, 2020), 71 )which assertedly applies retroactively and amended California Penal Code section 97 }667.5(B) to eliminate the one-year prior prison enhancement except in cases 73 jinvolving offenses not relevant to petitioner. (Petition at 13-16). Second, petitioner 74 Senate Bill 1393 (eff. Jan. 1, 2019), amending California Penal Code sections 25 }667(a) and 1385(b) to afford trial courts discretion to strike or dismiss prior serious 26 □□□□□□□□□□□□□□□□□□□□□□□□□ 27 Even giving petitioner additional time to commence the limitations period until after the 28 Superior Court entered the amended Abstract of Judgment on September 24, 2012, the Petition would be untimely.

1 felony enhancements. See Petition at 15; People v. Garcia, 28 Cal. App. 5th 961, 7 1971 (2018) (discussing same). The amendments apply retroactively to all cases not 3, |final on the effective date. People v. Dearborne, 34 Cal. App. Sth 250, 268 (2019). 4 Finally, petitioner cites Assembly Bill 1618 (eff. Jan. 1, 2020, enacting California 5 Penal Code section 1016.8), which provides in relevant part: 6 A plea bargain that requires a defendant to generally waive unknown 7 future benefits of legislative enactments, initiatives, appellate 8 decisions, or other changes in the law that may occur after the date of 9 the plea is not knowing and intelligent.... A provision of a plea 10 bargain that requires a defendant to generally waive future benefits of 11 legislative enactments, initiatives, appellate decisions, or other changes 12 in the law that may retroactively apply after the date of the plea is void 13 as against public policy. 14 See Petition at 17-18; Cal. Penal Code § 1016.8. 15 Petitioner has not cited any federal authority, let alone United State Supreme 16 authority, holding that the state law provisions at issue apply retroactively on 17 \collateral review. See, e.g., Davis v. Montgomery, 2019 WL 8227448, at *3 (C.D. 1g |\Cal. Dec. 16, 2019) (finding petitioner was not entitled to a later statute of 19 limitations accrual date based on Senate Bill enactments), report and 20 ltecommendation adopted, 2020 WL 1274216 (C.D. Cal. Mar. 16, 2020). The 71 \changes in California law do not entitle petitioner to a later start date for the federal 77 statute of limitations under Section 2244(d)(1)(C). 23 Subsection D of 28 U.S.C. § 2244(d)(1) also does not afford petitioner a later 74 jaccrual date for the statute of limitations. Under Section 2244(d)(1)(D), the statute 25 jof limitations commences when a petitioner knows, or through the exercise of due 26 \diligence could discover, the factual predicate of his claims, not when a petitioner 7 learns the legal significance of those facts. See Hasan v. Galaza, 254 F.3d 1150, 2g n.3 (9th Cir. 2001); see also Redd v. McGrath, 343 F.3d 1077, 1084 (9th Cir.

1 2003). Here, petitioner’s claims arise from facts which he knew or should have 7 known no later than the date he was subjected to an enhanced sentence in the 2011 3, — before the judgment in such case became final. 4 Title 28 U.S.C. § 2244(d)(2) provides that the “time during which a properly 5 filed application for State post-conviction or other collateral review with respect to 6 pertinent judgment or claim is pending shall not be counted toward” the one- 7 lyear statute of limitations period. Petitioner “bears the burden of proving that the g |statute of limitations was tolled.” Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. g |2010), cert. denied, 564 U.S. 1019 (2011). The statute of limitations is not tolled 10 the time a final decision is issued on direct state appeal and the time the first 11 collateral challenge is filed because there is no case pending during that 12 finterval. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (citations omitted). 13 Here, the record does not reflect that petitioner is entitled statutory tolling sufficient 14 to render the Petition timely. Petitioner did not file his first state petition until May 15 24, 2013 — 275 days after the one-year statute of limitations began to run on August 16 22, 2012. Assuming for purposes of analysis that petitioner is entitled to statutory 17 tolling from the date he filed his first state petition on May 24, 2013, to July 9, 1g ||2014, the date the California Supreme Court denied his third state petition (the last 19 [petition in the first round of state petitions), the statute of limitations expired 90 20 365-275) days later on October 7, 2014. Although petitioner filed the Prior 71 Federal Petition in the interim, he is not entitled to statutory tolling during the 22 pendency of such Prior Federal Petition. See Duncan v. Walker, 533 U.S. 167, 181- 23 1/82 (2001). Similarly, petitioner is not entitled to statutory tolling during the 74 [pendency of his late-filed second round of state habeas petitions. See Ferguson v. 75 \Palmateer, 321 F.3d 820, 822 (9th Cir. 2003) (“section 2244(d) does not permit the 26 \reinitiation of the limitations period that has ended before the state petition was 27 filed”). 29 V///

1 In addition to statutory tolling, the limitations period may also be subject to 9 equitable tolling if petitioner can demonstrate both that: (1) he has been pursuing 3, |his rights diligently; and (2) some extraordinary circumstance stood in his way. 4 Holland v. Florida, 560 U.S. 631, 649 (2010). It is a petitioner’s burden to 5 \demonstrate that he is entitled to equitable tolling. Miranda v. Castro, 292 F.3d 6 1065 (9th Cir.), cert. denied, 537 U.S. 1003 (2002). It does not appear from 7 Petition or the current record that petitioner has met his burden to demonstrate g |that he is entitled to tolling sufficient to render the Petition timely. 9 Finally, in rare and extraordinary cases, a plea of actual innocence can serve 10 a gateway through which a petitioner may pass to overcome the statute of 11 mitations otherwise applicable to federal habeas petitions. McQuiggin v. Perkins, 12 U.S. 383, 386 (2013); see also Lee v. Lampert, 653 F.3d 929, 934-37 (9th Cir. 13 2011) (en banc). “[A] petitioner does not meet the threshold requirement unless he 14 [or she] persuades the district court that, in light of the new evidence, no juror, 15 jacting reasonably, would have voted to find him [or her] guilty beyond a reasonable 16 doubt.” Perkins, 569 U.S. at 386 (quoting Schlup v. Delo, 513 U.S. 298, 329 17 ]C1995)). 18 In order to make a credible claim of actual innocence, a petitioner must 19 ‘Support his allegations of constitutional error with new reliable evidence — whether 0 jit be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical 21 [physical evidence — that was not presented at trial.” Schlup, 513 U.S. at 324. The 22 lhabeas court then “consider[s] all the evidence, old and new, incriminating and 23 jexculpatory, admissible at trial or not.” Lee, 653 F.3d at 938 (internal quotations 74 omitted; citing House v. Bell, 547 U.S. 518, 538 (2006)). On this record, the court 25 ‘must make a ‘probabilistic determination about what reasonable, properly 26 jinstructed jurors would do.’” House, 547 U.S. at 538 (quoting Schlup, 513 U.S. at 97 Unexplained or unjustified delay in presenting new evidence is a “factor in 2g |\determining whether actual innocence has been reliably shown.” Perkins, 569 U.S.

1 387, 399; Schlup, 513 U.S. at 332 (“A court may consider how the timing of the 7 submission and the likely credibility of a [petitioner’s] affiants bear on the probable 3, reliability of... evidence [of actual innocence].”). Here, petitioner does not raise a 4 of actual innocence and has thus far failed to identify any such “newly 5 \discovered evidence,” let alone, provide new, reliable evidence to cast doubt on his 6 conviction so as to permit the Court to consider his apparently otherwise time- 7 barred claims. 8 D. The Claims Alleged in the Petition Are Not Cognizable 9 To the extent petitioner challenges: (1) the trial court’s failure (a) to exercise 10 discretion under Senate Bill 1393 to strike the five-year sentence that was 11 imposed for the prior serious felony conviction finding (Cal. Penal Code 12 § 667(a)(1)), despite the fact that his conviction was final prior to the effective date 13 (Reople v. Dearborne, 34 Cal. App. 5th at 268); or (b) to strike under Senate Bill 14 the one-year sentence that was imposed for the prior prison term (Cal. Penal 15 Code § 667.5(B)); or (2) the validity of his plea in the 2006 Case as used to enhance 16 sentence in the 2011 Case under Assembly Bill 1618 (Cal. Penal Code 17 § 1016.8), because he assertedly was not advised of the potential collateral 1g consequences to entering the plea, his claims are not cognizable. 19 Petitioner’s challenges to the state courts’ failure to strike his sentence 20 jenhancements under newly-enacted California law involve the application and/or 1 interpretation of state law and consequently are not cognizable on federal habeas 27 review. See Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) (“we have 23 \repeatedly held that it is not the province of a federal habeas court to reexamine 74 state-court determinations on state-law questions”) (quoting Estelle v. McGuire, 75 U.S. 62, 67-68 (1991)); see also Rivera v. Illinois, 556 U.S. 148, 158 (2009) 26 mere error of state law. . . is not a denial of due process”) (quoting Engle v. 77 456 U.S. 107, 121, n.21 (1982)); Bradshaw v. Richey, 546 U.S. 74, 76 (2005) 2g |\(a state court’s interpretation of state law, including one announced on direct

1 appeal of the challenged conviction, binds a federal court sitting in habeas corpus”) 7 (citations omitted); Sturm v. California Youth Authority, 395 F.2d 446, 448 (9th 3, ||Cir. 1967) (“[A] state court’s interpretation of its [sentencing] statute does not raise 4 ja federal question.”), cert. denied, 395 U.S. 947 (1969); 28 U.S.C. § 2254(a) 5 \(federal court may entertain petition for writ of habeas corpus on “behalf of a 6 person in custody pursuant to the judgment of a State court only on the ground that 7 lhe is in custody in violation of the Constitution or laws or treaties of the United g States”); see also Burchett v. Martel, 2020 WL 1847131, *1-*2 (C.D. Cal. Mar. 11, g ||2020) (petitioner’s claim that he is entitled to resentencing under Senate Bill 1393 10 not cognizable on federal habeas review), report and recommendation adopted, 11 2020 WL 1820518 (C.D. Cal. Apr. 10, 2020). 12 Petitioner’s claim based on the asserted failure to advise him of potential 13 \collateral consequences to entering his plea in the 2006 Case is also not cognizable. 14 Petitioner knew of and could have raised challenges based on the alleged failure to 15 jadvise him of any collateral consequences in entering his plea in the 2006 Case on 16 appeal of the 2011 Case, and certainly prior to enactment of Assembly Bill 1618. 17 In any event, courts are not required to inform a defendant of such collateral 1g consequences of a guilty plea. See Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir. 19 1998); see also People v. Crosby, 3 Cal. App. 4th 1352, 1354-55 (1992) (the 20 possibility of an enhanced sentence in a future case is a collateral consequence of 21 )which a defendant need not be advised for a valid guilty plea). A defendant’s 77 ignorance of collateral consequences does not deprive a guilty plea of its voluntary 73 \character. United States v. Brownlie, 915 F.2d 527, 528 (9th Cir. 1990). Any claim 74 based on Assembly Bill 1618 involves only the application of state sentencing law 25 thus does not give rise to a federal question. 26 The mere invocation of the Constitution is insufficient to convert a claim 77 based on state law into a federal one. See Langford v. Day, 110 F.3d 1380, 1389 2g (9th Cir. 1996) (“[A claimant] may not, however, transform a state-law issue into a

1 federal one merely by asserting a violation of due process.”), cert. denied, 522 U.S. 2 881 (1997). On the present record, petitioner’s general allegations that he may be 3 entitled to resentencing under the foregoing authorities fall far short of stating a 4 federal constitutional claim. 6 Petitioner is therefore ORDERED TO SHOW CAUSE by not later than 7 October 8, 2021 why this action should not be dismissed on the foregoing bases. 8 Petitioner is advised that he has the right to submit declarations, affidavits, or any 9 other relevant evidentiary materials with his response to this Order to Show Cause. 10 All affidavits and declarations must be signed under penalty of perjury by persons 11 having personal knowledge of the facts stated in the affidavits or declarations. 12 Instead of filing a response to the instant Order to Show Cause, petitioner 13 may request a voluntary dismissal of this action pursuant to Federal Rule of Civil 14 Procedure 41(a). If he elects to proceed in that manner, he may sign and return the 15 attached Notice of Dismissal. However, petitioner is advised that any dismissed 16 claims may later be subject to dismissal with prejudice as time-barred under 17 28 U.S.C. § 2244(d)(1). 18 Petitioner is cautioned that the failure timely to respond to this Order to 19 Show Cause and/or to show good cause may result in the dismissal of this 20 action based upon the deficiencies in the Petition identified above, petitioner’s 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 failure to comply with the Court’s order, and/or petitioner’s failure to 2 prosecute. 3 IT IS SO ORDERED.6 4 DATED: September 8, 2021 5 _____________/s/____________________ 6 Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6The Court’s determinations and order herein constitute non-dispositive rulings on pretrial matters. To the extent a party disagrees with such non-dispositive rulings, such party 26 may file a motion for review by the assigned District Judge within fourteen (14) days. See Local 27 Rule 72-2.1. To the extent a party believes the rulings to be dispositive, rather than non- dispositive, such party has the right to object to this Court’s determination that the rulings are 28 non-dispositive within fourteen (14) days. A party will be foreclosed from challenging the rulings herein if such party does not seek review thereof, or object thereto.