Norice Patterson v. Josie Gastelo

Opinion

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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 NORICE PATTERSON, ) NO. CV 20-04037-PA (KS) 11 ) Petitioner, 12 ) v. ) ORDER: ACCEPTING FINDINGS AND 13 ) RECOMMENDATIONS OF UNITED 14 JOSIE GASTELO, ) STATES MAGISTRATE JUDGE; ) DISMISSING PETITION; DENYING A 15 Respondent. ) CERTIFICATE OF APPEALABILITY 16 _________________________________ )

17 18 PRIOR PROCEEDINGS 19 20 According to the California Court of Appeal, in August 2003, Norice Patterson 21 (“Petitioner”), who is a California state prisoner proceeding pro se in this state habeas action, 22 entered his victims’ home, held a gun to the head of a 13-year-old girl, and demanded that her 23 parents and her 12-year-old and 5-year-old siblings get on the floor and not move. 1 People v. 24 25 1 Federal courts may take judicial notice of relevant state court records in federal habeas proceedings. See Smith v. 26 Duncan, 297 F.3d 809, 815 (9th Cir. 2001), overruled on other grounds by Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Williams v. Jacquez, No. CV 09-2703 DSF (DTB). 2010 WL 1329585, at *2 (C.D. Cal. Feb. 22, 2010) (taking judicial 27 notice in § 2254 habeas case of California state court appellate records); see also Ewing v. Superior Court of California, 90 F. Supp. 3d 1067, 1070 (S.D. Cal. 2015) (taking judicial notice, in a civil rights case, of documents filed in the plaintiff’s 28 state court criminal case, including the opinion of the Court of Appeal, because they are not subject to reasonable dispute 1 Patterson, No. B251202, 2014 Cal. App. Unpub. LEXIS 4510, at *4 (June 26, 2014). 2 “[Petitioner] and an accomplice began demanding money. At one point, [Petitioner] pointed 3 a gun at the father’s leg and demanded money. The father said he had none, but offered his 4 semiautomatic gun. After taking the gun and two cell phones, [Petitioner] and the accomplice 5 left the family’s home.” Id. Based on these facts, in June 2004, a jury “found [Petitioner] 6 guilty of five counts of home invasion robbery ([California Penal Code (hereinafter, “Penal 7 Code”)] § 211) and one count of possession of a firearm by a felon (§ 12021(a)(1))” and “also 8 found true the allegation that as to the five robbery counts [Petitioner] personally used a 9 firearm. (§ 12022.53(b)).” People v. Patterson, 2014 Cal. App. Unpub. LEXIS 4510, at *1. 10 Additionally, “[Petitioner] admitted the truth of the allegation that he had suffered one prior 11 strike conviction pursuant to section 667 (a)(1) and the “Three Strikes” law. (§§ 1170.12(a)- 12 (d), 667(b)-(i)).” Id. 13 14 On appeal, the California Court of Appeal reduced Petitioner’s aggregate sentence to 43 15 years in state prison. People v. Patterson, 2014 Cal. App. Unpub. LEXIS 4510, at 2. Several 16 habeas petitions followed, including a 2008 petition filed in this Court. See Norice Patterson 17 v. Warden, C.D. Cal. No. CV 08-6459-PA (RC), at Dkt. Nos. 1 (“2008 Petition”), 27 (“2009 18 Final Report and Recommendation”), 28 (2009 Order Adopting Report and 19 Recommendations). 20 21 In July 2013, Patterson filed in the trial court a “Motion to Vacate the Judgment.” 22 People v. Patterson, 2014 Cal. App. Unpub. LEXIS 4510, at *2. The trial court declined to 23 take any action, and Petitioner appealed. Id. The California Court of Appeal dismissed the 24 appeal. Id. 25 26 27 and are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned 28 pursuant to Rule 201(b)(2) of the Federal Rules of Evidence). 1 Petitioner then filed two more habeas petitions in this Court. See Norice D Patterson v. 2 Randy Grounds, C.D. Cal. No. CV 16-3274-PA (KS), at Dkt. Nos. 1 (“2016 Petition”), 28 3 (“2017 Order Dismissing Case”); Norice Patterson v. Josie Gastelo, No. CV 19-2221-PA 4 (KS), Dkt. No. 1 (“2019 Petition”), 3 (2019 Order Dismissing Petition). Finally, on May 1, 5 2020, Petitioner filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 6 2254 (the “Petition”). (Dkt. No. 1.) 7 8 THE PETITION 9 10 The Petition challenges the determination of the California Department of Corrections 11 and Rehabilitation (“CDCR”) and the California state courts that Petitioner is not eligible for 12 parole consideration under Proposition 57.2 Although the precise contours of Petitioner’s 13 argument for relief are unclear, the Petition appears to suggest that, pursuant to various federal 14 court cases applying the void for vagueness doctrine in other contexts (Petition at 11-12) 15 (discussing Sessions v. Dimaya, 138 S. Ct. 1204 (2017) and United States v. Dixon, 805 F.3d 16 1193 (9th Cir. 2015)), the definition of a “violent felony” in the Proposition 57 implementing 17 regulations is void for vagueness and/or not satisfied by Petitioner’s home invasion robbery 18 convictions because other California criminal statutes, namely Penal Code § 1192.7(c),3 use 19 the term “serious” to characterize the offense of robbery. 20 \\ 21 \\ 22 \\ 23 \\ 24 2 In 2016, California voters approved Proposition 57 which, in pertinent part, requires that “[a]ny person convicted 25 of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the 26 full term for his or her primary offense.” CAL. CONST. Art. I, § 32(a)(1). The implementing regulations define a “violent felony” as “a crime or enhancement as defined in subdivision (c) of section 667.5 of the Penal Code.” Cal. Code Regs. tit. 15, § 3490 (2019). The crimes listed as “violent felonies” in subdivision (c) of section 667.5 include “any robbery.” Cal. 27 Penal Code § 667.5(c)(9). 3 California Penal Code § 1192.7(c) restricts the authority of prosecutors to engage in plea bargaining in certain 28 types of criminal cases. 1 PETITIONER’S FAILURE TO PROSECUTE 2 3 On May 5, 2020, the Court warned Petitioner that, because success on his claim would 4 entitle him only to consideration for parole, and not necessarily release from custody, the 5 Petition did not state a cognizable claim for habeas relief. (Dkt. No. 3.) The Court ordered 6 Petitioner to show cause, no later than May 26, 2020, why the action should not be dismissed 7 for failure to state a cognizable claim for habeas relief. (Dkt. No. 3.) In the same order, the 8 Court invited Petitioner to present his claim concerning his eligibility for parole consideration 9 in a separate civil rights complaint. (Dkt. No. 3.) On May 29, 2020, Petitioner filed a civil 10 rights complaint, initiating a separate cause of action. Norice Patterson v. Josie Gastelo, 2:20- 11 cv-04920-PA-KS (Dkt. No. 1). However, Petitioner did not also respond to the Court’s May 12 5, 2020 Order to Show Cause in his original case. 13 14 On June 17, 2020, United States Magistrate Judge Karen L. Stevenson issued a Report 15 and Recommendation in which she observed that Petitioner had not responded to the Court’s 16 May 5, 2020 Order to Show Cause and recommended dismissal based on Plaintiff’s failure to 17 prosecute. (Dkt. No. 5.) On July 9, 2020, Petitioner filed Objections to the June 17, 2020 18 Report and Recommendation. (Dkt. No. 6.) In his Objections, Petitioner states that, on May 19 26, 2020, he mailed a response to the Court’s May 5, 2020 Order to Show Cause, and, 20 therefore, this habeas case should not be dismissed for failure to prosecute. (Dkt. No. 6.) 21 Petitioner attaches to his Objections a copy of the prison’s outgoing mail log as evidence that 22 he placed something in the mail on May 26, 2020. (Dkt. No. 6.) Indeed, the mail log shows 23 that, on May 26, 2020, Petitioner placed a single item in the mail to the Los Angeles 24 courthouse. (Dkt. No. 6.) Shortly thereafter, on May 29, 2020, the Court received a single 25 item in the mail from Plaintiff: the complaint commencing a civil rights action on the same 26 factual grounds and legal argument as the instant Petition. That newly initiated action was 27 assigned case number Norice Patterson v. Josie Gastelo, 2:20-cv-04920-PA-KS. 28 Accordingly, the prison mail log and the Court’s internal dockets show that Petitioner 1 responded to the Court’s May 5, 2020 Order to Show Cause by initiating a separate cause of 2 action—but not by defending his filing of a state habeas petition in this case. Therefore, the 3 findings and conclusions in Judge Stevenson’s Report and Recommendation in this case are 4 correct, and the action may properly be dismissed for failure to prosecute. This dismissal will 5 have no effect on Plaintiff’s related civil rights case that is currently pending. 6 7 THE PETITION DOES NOT STATE A COGNIZABLE CLAIM 8 9 Because the Court accepts the Magistrate Judge’s conclusion that the action should be 10 dismissed for failure to prosecute, the Court need not also address the arguments in Petitioner’s 11 Objections that, according to Petitioner, support maintaining this habeas action in addition to 12 the civil rights case. However, in the interests of justice, the Court has reviewed Petitioner’s 13 arguments. Specifically, Petitioner asserts that he was charged and prosecuted within the 14 meaning of two conflicting statutes: California Penal Code §§ 1192.7(c) and 667.5(c). 15 (Objections at 2.) This assertion is inconsistent the California Court of Appeal’s description 16 of Petitioner’s underlying conviction, which states that Petitioner was found to have: 17 committed five counts of home invasion robbery in violation of Penal Code § 211; committed 18 one count of possession of a firearm by a felon in violation of Penal Code § 12021(a)(1); 19 personally used a firearm in the commission of the offense pursuant to Penal Code § 20 12022.53(b); and suffered one prior strike conviction pursuant to the “Three Strikes” law 21 (Penal Code §§ 1170.12(a)-(d), 667(b)-(i)). 22 23 Nevertheless, Petitioner observes that he was convicted of robbery and, whereas Penal 24 Code § 1192.7(c) includes robbery in a list of crimes defined as “serious,” Penal Code § 25 667.5(c) includes robbery in a list of crimes it defines as “violent.” (Objections at 2.) 26 Petitioner asserts that, given this discrepancy, the CDCR violated his constitutional rights by 27 finding that Petitioner’s convictions for robbery constitute “violent” crimes under Penal Code 28 1 § 667.5(c), thereby barring him from consideration for parole under Proposition 57.4 2 (Objections at 2-4.) Petitioner asks the Court to apply the “Rule of Lenity” and find that his 3 convictions for robbery (with the firearm enhancement) are, in fact, only “serious” crimes 4 under Penal Code § 1192.7(c), which, he contends, would make him eligible for parole 5 consideration under Propositions 57. (Objections at 3, 4.) 6 7 Even if the Court assumes arguendo that Petitioner is correct and his multiple robbery 8 convictions involving the use of a firearm are not “violent” felonies that bar parole 9 consideration, Petitioner’s claims are still not cognizable in this habeas action. At best, 10 Petitioner’s success in this case would result in consideration under Proposition 57 for earlier 11 release; it would not necessarily result in his actual release from custody. See Skinner v. 12 Switzer, 562 U.S. 521, 535 n.13 (2011) (“[W]hen a prisoner’s claim would not necessarily 13 spell speedier release, that claim does not lie at the core of habeas corpus and may be brought, 14 if at all, under § 1983.”) (citations and internal quotation marks omitted). Accordingly, 15 Petitioner’s arguments regarding the classification of his underlying conviction as a “violent” 16 offense, thereby barring his eligibility for parole consideration under Proposition 57, are 17 properly brought in his recently initiated civil rights action but do not present a cognizable 18 claim for habeas relief. See Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997) (holding that 19 prisoners’ claim they had been wrongfully classified as sex offenders for purposes of parole 20 eligibility was properly brought under § 1983 because the only benefit from prevailing would 21 be “a ticket to get in the door of the parole board”); see also Wilkinson v. Dotson, 544 U.S. 74, 22 82 (2005) (holding that prisoners’ challenges to parole eligibility rules were properly brought 23 under § 1983 because success “at most will speed consideration of a new parole application”) 24 (emphasis in original); see also Suarez v. Sherman, No. CV 18-6605 JLS (SS), 2019 WL 25 994986, at *1 (C.D. Cal. Feb. 21, 2019) (recognizing that claims under Proposition 57 would 26 4 In order for a person to be eligible for parole consideration under Proposition 57, that person must not have 27 committed a “violent felony” which the Proposition 57 implementing regulations define as “a crime or enhancement as defined in subdivision (c) of section 667.5 of the Penal Code.” Cal. Code Regs. tit. 15, § 3490 (2019). The crimes listed 28 as “violent felonies” in subdivision (c) of section 667.5 include “any robbery.” Cal. Penal Code § 667.5(c)(9). 1 || fall under § 1983) (citing Travers v. People of the State of California, No. 17-cv-06126-SI, 2 || 2018 WL 707546, at *3 (N.D. Cal. Feb. 5, 2018)). 3 4 For the foregoing reasons, the Court, having conducted a de novo review of those 5 || portions of the Report to which objections have been stated, accepts the findings and 6 || recommendations set forth in the Report and it is ORDERED that the Petition is DISMISSED 7 || WITHOUT PREJUDICE. 8 9 In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the 10 || United States District Courts, the Court has considered whether a certificate of appealability 11 || is warranted in this case. See 28 U.S.C. § 2253 (c) (2); Slack v. McDaniel, 529 U.S. 473, 12 || 484-85 (2000). The Court concludes that a certificate of appealability is unwarranted and, 13 || thus, a certificate of appealability is DENIED. 14 15 LET JUDGMENT BE ENTERED ACCORDINGLY. 16 17 || DATED: July 14, 2020 □□ On 19 PERCY ANDERSON UNITED STATES DISTRICT JUDGE 21 Presented by: 22 23 [aun L: fosensm 24 KAREN L. STEVENSON 25 || UNITED STATES MAGISTRATE JUDGE 26 27 28