CORREY MITCHELL, Case No. 21-cv-06176-JST
Petitioner, ORDER GRANTING MOTION TO v. DISMISS; DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS; TRENT ALLEN, DENYING CERTIFICATE OF APPEALABILITY Respondent. Re: ECF No. 11 Petitioner, a state prisoner incarcerated at Salinas Valley State Prison,1 filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing that the California Department of Corrections and Rehabilitation (“CDCR”) has extended his sentence from 205 years to life to a longer sentence of 251 years to life without authority. See generally ECF Nos. 1, 10. Respondent has filed a motion to dismiss. ECF No. 11. Petitioner has filed an opposition, ECF No. 13, and Respondent has filed a reply, ECF No. 15. For the reasons set forth below, the Court GRANTS the motion to dismiss. I. Petitioner’s Underlying Conviction and Sentence On March 24, 2004, Petitioner was convicted in Los Angeles County Superior Court of robbery (Cal. Penal Code § 211); carjacking (Cal. Penal Code § 236); assault on an officer with a semi-automatic firearm (Cal. Penal Code § 245(b); and fleeing from an officer’s pursuit (Cal. Penal Code § 2800.2(a)). ECF No. 1-1 at 11. Pursuant to the Three Strikes Law, Petitioner was
1 In accordance with Habeas Rule 2(a) and Rule 25(d)(1) of the Federal Rules of Civil Procedure, sentenced to a term of 207 years to life with the possibility of parole. ECF No. 11 at 17-18, 74-76. On April 6, 2016, a CDCR analyst revised Petitioner’s CDCR legal status summary to reflect a sentence of 251 years to life, stating “Per M/O and AOJ total term is 207 years to life but error in calculation. Inmate was sentenced as a 3rd striker total term should be 251 years to life. Entered into SOMS according to 3rd striker.” ECF No. 13 at 16-17, 50. II. Procedural Background On or about August 10, 2021, Petitioner commenced this action by filing the instant petition for a writ of habeas corpus. ECF No. 1. On August 30, 2021, the Court screened the petition and found that the petition alleged that Petitioner’s primary offense was the non-violent crime of assault with a firearm (Cal. Penal Code § 245(d)(2)), and that the petition claimed that the failure to grant Petitioner a Proposition 57 parole hearing therefore violated the federal Equal Protection Clause and Petitioner’s state constitutional right to due process. ECF No. 7 at 1-2. The Court dismissed the petition for lack of habeas corpus jurisdiction, finding that success on this claim would not shorten or end Petitioner’s sentence because eligibility for a Proposition 57 parole hearing would not necessarily result in Petitioner’s immediate release from prison in that Petitioner could be denied parole at the hearing. ECF No. 7 at 2. Petitioner filed a motion for reconsideration of the dismissal, arguing that the Court only considered one of his three claims for federal habeas relief. ECF No. 9. On November 16, 2022, the Court granted Petitioner’s motion for reconsideration, vacated the Order of Dismissal and related judgment, and reopened the case. ECF No. 10. The Court found that the petition stated three cognizable claims for relief. In addition to the Proposition 57 claim dismissed by the Court, the petition also presented the following two claims: (1) the CDCR had changed Petitioner’s sentence without authority and (2) Petitioner’s abstract of judgment and minute order were both in error. ECF No. 10 at 2-3. The Court dismissed the latter claim with prejudice because the claim involved a state procedural error that had no bearing on the fundamental fairness of the trial and the error did not violate any federal constitutional or statutory provision. ECF No. 10 at 3. The Court found that, liberally construed, the claim that the CDCR increased Petitioner’s sentence answer. ECF No. 10 at 4. I. Motion to Dismiss Respondent argues that this habeas petition should be dismissed because (1) any error in the legal status summary, the abstract of judgment, or the minute order is a matter of state law; (2) the petition does not invoke habeas corpus jurisdiction because success on Petitioner’s claim will not necessarily spell speedier release; and (3) the petition is untimely. See generally ECF Nos. 11, 15. In opposition, Petitioner argues that the petition invokes the Court’s federal habeas jurisdiction because the August 17, 2004 re-sentencing violated the Fifth Amendment’s prohibition on double jeopardy. Petitioner argues that the petition is timely because he was not certain he could not bring this claim until February 18 or 27, 2019, when he received, for the first time, a copy of his August 17, 2004 sentencing transcript, and could conclusively prove that the minute order and abstract of judgment were incorrect; and that he is entitled to tolling of the limitations period from July 17, 2019 to April 22, 2020, when he was exhausting administrative remedies for this claim, and from October 24, 2020 to July 14, 2021, when he was exhausting his state court remedies. Petitioner further argues that the California Supreme Court found his petition to be timely on October 25, 2019, and notes that In re Mohammad was not decided until January 3, 2022. II. Analysis The Court agrees that Petitioner’s claim alleging that the CDCR has incorrectly calculated his sentence fails to state a cognizable federal habeas claim. Federal courts lack habeas jurisdiction over claims by state prisoners that are not within “the core of habeas corpus.” Nettles v. Grounds, 830 F.3d 922, 927, 934 (9th Cir. 2016). A prisoner’s claims are within the core of habeas corpus if they challenge the fact or duration of his conviction or sentence. Id. at 934. “[W]hen a prisoner’s claim would not ‘necessarily spell speedier release,’ that claim does not lie at ‘the core of habeas corpus,’ and may be brought, if at all, under § 1983.” Skinner v. Switzer, 562 at 934. Petitioner has been sentenced to an indeterminate term with the possibility of parole, with a specified minimum term that he must serve before he is eligible for parole. See Cal. Penal Code § 667(e)(2)(A). The CDCR’s change to Petitioner’s sentence was a change to his minimum eligible parole date, not to Petitioner’s overall sentence. Accordingly, Petitioner’s claim is more accurately described as challenging whether the CDCR correctly calculated the minimum term that he must serve before he is eligible for parole. Whether the minimum term has been correctly calculated will not necessarily “spell speedier release” because California prisoners serving indeterminate sentences may be released from prison only upon the parole authority’s determination that they are suitable for parole, which depends on assessment of a number of factors probative of the risk to public safety. See 15 Cal. Code Regs. § 2281; In re Lawrence, 44 Cal.4th 1181, 1202–03 (2008). In other words, whether Petitioner’s term is 191 years to life, 207 years to life, or 251 years to life, Petitioner will be released only when the parole board deems him suitable for parole.2 Accordingly, Petitioner’s success on the claim that the CDCR erred in calculating his sentence as 251 years to life would not necessarily shorten his sentence and does not invoke federal habeas jurisdiction. Nettles, 830 F.3d at 934-35. Petitioner argues that the Court has federal habeas jurisdiction because the August 17, 2004 re-sentencing violated the Fifth Amendment’s prohibition on double jeopardy. ECF No. 13 at 3-4. This argument was not raised in the petition. See generally ECF No. 1. To the extent that Petitioner seeks leave to amend his petition to add a claim of double jeopardy, the Court DENIES leave to amend because amendment would
Free access — add to your briefcase to read the full text and ask questions with AI
CORREY MITCHELL, Case No. 21-cv-06176-JST
Petitioner, ORDER GRANTING MOTION TO v. DISMISS; DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS; TRENT ALLEN, DENYING CERTIFICATE OF APPEALABILITY Respondent. Re: ECF No. 11 Petitioner, a state prisoner incarcerated at Salinas Valley State Prison,1 filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing that the California Department of Corrections and Rehabilitation (“CDCR”) has extended his sentence from 205 years to life to a longer sentence of 251 years to life without authority. See generally ECF Nos. 1, 10. Respondent has filed a motion to dismiss. ECF No. 11. Petitioner has filed an opposition, ECF No. 13, and Respondent has filed a reply, ECF No. 15. For the reasons set forth below, the Court GRANTS the motion to dismiss. I. Petitioner’s Underlying Conviction and Sentence On March 24, 2004, Petitioner was convicted in Los Angeles County Superior Court of robbery (Cal. Penal Code § 211); carjacking (Cal. Penal Code § 236); assault on an officer with a semi-automatic firearm (Cal. Penal Code § 245(b); and fleeing from an officer’s pursuit (Cal. Penal Code § 2800.2(a)). ECF No. 1-1 at 11. Pursuant to the Three Strikes Law, Petitioner was
1 In accordance with Habeas Rule 2(a) and Rule 25(d)(1) of the Federal Rules of Civil Procedure, sentenced to a term of 207 years to life with the possibility of parole. ECF No. 11 at 17-18, 74-76. On April 6, 2016, a CDCR analyst revised Petitioner’s CDCR legal status summary to reflect a sentence of 251 years to life, stating “Per M/O and AOJ total term is 207 years to life but error in calculation. Inmate was sentenced as a 3rd striker total term should be 251 years to life. Entered into SOMS according to 3rd striker.” ECF No. 13 at 16-17, 50. II. Procedural Background On or about August 10, 2021, Petitioner commenced this action by filing the instant petition for a writ of habeas corpus. ECF No. 1. On August 30, 2021, the Court screened the petition and found that the petition alleged that Petitioner’s primary offense was the non-violent crime of assault with a firearm (Cal. Penal Code § 245(d)(2)), and that the petition claimed that the failure to grant Petitioner a Proposition 57 parole hearing therefore violated the federal Equal Protection Clause and Petitioner’s state constitutional right to due process. ECF No. 7 at 1-2. The Court dismissed the petition for lack of habeas corpus jurisdiction, finding that success on this claim would not shorten or end Petitioner’s sentence because eligibility for a Proposition 57 parole hearing would not necessarily result in Petitioner’s immediate release from prison in that Petitioner could be denied parole at the hearing. ECF No. 7 at 2. Petitioner filed a motion for reconsideration of the dismissal, arguing that the Court only considered one of his three claims for federal habeas relief. ECF No. 9. On November 16, 2022, the Court granted Petitioner’s motion for reconsideration, vacated the Order of Dismissal and related judgment, and reopened the case. ECF No. 10. The Court found that the petition stated three cognizable claims for relief. In addition to the Proposition 57 claim dismissed by the Court, the petition also presented the following two claims: (1) the CDCR had changed Petitioner’s sentence without authority and (2) Petitioner’s abstract of judgment and minute order were both in error. ECF No. 10 at 2-3. The Court dismissed the latter claim with prejudice because the claim involved a state procedural error that had no bearing on the fundamental fairness of the trial and the error did not violate any federal constitutional or statutory provision. ECF No. 10 at 3. The Court found that, liberally construed, the claim that the CDCR increased Petitioner’s sentence answer. ECF No. 10 at 4. I. Motion to Dismiss Respondent argues that this habeas petition should be dismissed because (1) any error in the legal status summary, the abstract of judgment, or the minute order is a matter of state law; (2) the petition does not invoke habeas corpus jurisdiction because success on Petitioner’s claim will not necessarily spell speedier release; and (3) the petition is untimely. See generally ECF Nos. 11, 15. In opposition, Petitioner argues that the petition invokes the Court’s federal habeas jurisdiction because the August 17, 2004 re-sentencing violated the Fifth Amendment’s prohibition on double jeopardy. Petitioner argues that the petition is timely because he was not certain he could not bring this claim until February 18 or 27, 2019, when he received, for the first time, a copy of his August 17, 2004 sentencing transcript, and could conclusively prove that the minute order and abstract of judgment were incorrect; and that he is entitled to tolling of the limitations period from July 17, 2019 to April 22, 2020, when he was exhausting administrative remedies for this claim, and from October 24, 2020 to July 14, 2021, when he was exhausting his state court remedies. Petitioner further argues that the California Supreme Court found his petition to be timely on October 25, 2019, and notes that In re Mohammad was not decided until January 3, 2022. II. Analysis The Court agrees that Petitioner’s claim alleging that the CDCR has incorrectly calculated his sentence fails to state a cognizable federal habeas claim. Federal courts lack habeas jurisdiction over claims by state prisoners that are not within “the core of habeas corpus.” Nettles v. Grounds, 830 F.3d 922, 927, 934 (9th Cir. 2016). A prisoner’s claims are within the core of habeas corpus if they challenge the fact or duration of his conviction or sentence. Id. at 934. “[W]hen a prisoner’s claim would not ‘necessarily spell speedier release,’ that claim does not lie at ‘the core of habeas corpus,’ and may be brought, if at all, under § 1983.” Skinner v. Switzer, 562 at 934. Petitioner has been sentenced to an indeterminate term with the possibility of parole, with a specified minimum term that he must serve before he is eligible for parole. See Cal. Penal Code § 667(e)(2)(A). The CDCR’s change to Petitioner’s sentence was a change to his minimum eligible parole date, not to Petitioner’s overall sentence. Accordingly, Petitioner’s claim is more accurately described as challenging whether the CDCR correctly calculated the minimum term that he must serve before he is eligible for parole. Whether the minimum term has been correctly calculated will not necessarily “spell speedier release” because California prisoners serving indeterminate sentences may be released from prison only upon the parole authority’s determination that they are suitable for parole, which depends on assessment of a number of factors probative of the risk to public safety. See 15 Cal. Code Regs. § 2281; In re Lawrence, 44 Cal.4th 1181, 1202–03 (2008). In other words, whether Petitioner’s term is 191 years to life, 207 years to life, or 251 years to life, Petitioner will be released only when the parole board deems him suitable for parole.2 Accordingly, Petitioner’s success on the claim that the CDCR erred in calculating his sentence as 251 years to life would not necessarily shorten his sentence and does not invoke federal habeas jurisdiction. Nettles, 830 F.3d at 934-35. Petitioner argues that the Court has federal habeas jurisdiction because the August 17, 2004 re-sentencing violated the Fifth Amendment’s prohibition on double jeopardy. ECF No. 13 at 3-4. This argument was not raised in the petition. See generally ECF No. 1. To the extent that Petitioner seeks leave to amend his petition to add a claim of double jeopardy, the Court DENIES leave to amend because amendment would be futile. This claim appears to be unexhausted. Petitioner has not presented this claim to the California Supreme Court. See generally ECF No. 1- 1 at 10-60 (state habeas petition filed in California Supreme Court on April 23, 2021 raising claims in this petition); ECF No. 11 at 20-97 (state habeas petition filed in California Supreme Court on August 6, 2019, alleging violation of equal protection and due process clauses because Petitioner was not given proper consideration of his sentence, CDCR Secretary lackced authority to execute judgment because judgment and minute order not properly entered, and ineffective assistance of counsel). Pursuant to 28 U.S.C. § 2254(b), habeas relief may not be granted unless a petitioner has exhausted his state remedies, which requires that the petitioner’s contentions be fairly presented to the state courts and disposed of on the merits by the highest state court. See 28 U.S.C. § 2254(b); see also James v. Borg, 24 F.3d 20, 24 (1994).3 Because Petitioner’s claim does not invoke federal habeas jurisdiction, the Court declines to address Respondent’s remaining arguments. The Court GRANTS Respondent’s motion to dismiss on the grounds that the petition lacks federal habeas jurisdiction. The federal rules governing habeas cases brought by state prisoners require a district court that issues an order denying a habeas petition to either grant or deny therein a certificate of appealability. See Rules Governing § 2254 Case, Rule 11(a). A judge shall grant a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the certificate must indicate which issues satisfy this standard. Id. § 2253(c)(3). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, Petitioner has not made such a showing, and, accordingly, a certificate of appealability will be denied. // // //
3 Petitioner also presents the following additional challenges to his sentence in his opposition. Petitioner argues that when the CDCR increased his total term to 251 years to life on or about August 28, 2019, the CDCR violated his due process rights and subjected him to both arbitrary punishment and to cruel and unusual punishment. See ECF No. 13 at 1-4. To the extent that Petitioner seeks leave to amend the petition to add these additional legal claims, the Court For the reasons stated above, the Court orders as follows. 1. In accordance with Habeas Rule 2(a) and Rule 25(d)(1) of the Federal Rules of Civil Procedure, the Clerk of the Court is directed to substitute Warden Trent Allen as Respondent because he is Petitioner’s current custodian. 2. The Court GRANTS Respondent’s motion to dismiss, ECF No. 11; DISMISSES the petition for a writ of habeas corpus for lack of federal habeas jurisdiction; and DENIES a g || certificate of appealability. The Clerk shall enter judgment in favor of Respondent and close the file. This order terminates ECF No. 11. Dated: September 28, 2023 . .
JON S. TIGA 14 United States District Judge