Smith v. Fox

• Court: District Court, N.D. California
• Decided: December 2, 2019
• Docket: 4:19-cv-02227
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA

7 TRACY CONRAD SMITH, Case No. 19-cv-02227-PJH 8 Petitioner,

9 v. ORDER DISMISSING AMENDED PETITION FOR WRIT OF HABEAS 10 JARED LOZANO, CORPUS WITH PREJUDICE; DENYING CERTIFICATE OF 11 Respondent. APPEALABILITY 12

13 Pursuant to the order dismissing petition for writ of habeas corpus with leave to 14 amend, dkt. no. 4, represented petitioner Tracy Conrad Smith has filed an amended 15 habeas petition under 28 U.S.C. § 2254, dkt. no. 10 (“Am. Pet.”). Pursuant to Rule 4 of 16 the Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254 (“Rule 4”), the amended 17 petition is DISMISSED on the ground that it plainly appears from the amended petition 18 and attached exhibits that petitioner is not entitled to relief. 19 BACKGROUND 20 As relevant to the amended petition before the court, the factual record and 21 procedural background are summarized in the opinion of the court of appeal affirming the 22 denial of the petition for resentencing, Am. Pet., Ex. I (People v. Smith, No. A149232 23 (Cal. Ct. App. Oct. 30, 2018) (“slip op.”)), which was previously submitted with the initial 24 habeas petition. In the amended petition, Smith has supplemented the habeas record 25 with documents from the state court record of the petition for resentencing under 26 Proposition 36, including the trial court’s May 3, 2016, order denying petition for 27 resentencing, CT 00343-345. The pertinent background information as found by the 1 details about the procedural history and factual background of this case are set forth in 2 the court’s earlier orders on Smith’s habeas proceedings. See dkt. no. 4 at 1-2 and n.1. 3 Smith was charged by information with the following counts: (1) first degree 4 residential burglary; (2) burglary of a garage; (3) second degree commercial burglary of a 5 tool shed; (4) second degree robbery; and (5) possession of a firearm by a felon. The 6 information further alleged that Smith personally used a firearm in connection with the 7 robbery charged in count four, that Smith suffered 13 prior felony convictions, and that 8 two of Smith’s prior felony convictions were “strikes” for the purposes of the Three Strikes 9 Law, Cal. Penal Code §§ 667(e), 1170.12(c). 10 On July 20, 2006, an Alameda County jury convicted Smith of burglary of a 11 garage, robbery, and possession of a firearm by a felon. Smith was acquitted of 12 residential burglary and burglary of a tool shed, and he was found not to have used a 13 firearm in the commission of the robbery. All prior conviction allegations were found true. 14 Because Smith had suffered at least two prior serious felony “strike” convictions, the trial 15 court sentenced Smith to three concurrent terms of twenty-five years to life pursuant to 16 the Three Strikes law, plus two consecutive five-year terms stemming from the serious 17 prior felony enhancements. The judgment was affirmed by the court of appeal. 18 Following amendment of the Three Strikes law1 with the passage of the Three 19 Strikes Reform Act of 2012, as adopted pursuant to Proposition 36 (“Proposition 36”), 20 Smith filed a petition for resentencing before the trial court. CT 001-008. As ordered by 21 the trial court, Smith filed a supplemental brief, CT 00279-288, as well as supplemental 22 authority, CT 00300-301. The Alameda County District Attorney filed a response on 23 February 11, 2016. CT 00302-316. The trial court granted Smith’s request for leave to 24 file a reply brief, CT 00323, which he filed on March 17, 2016, CT 00329-336. 25 26 1 The Three Strikes law was enacted twice in 1994, first by the California legislature, 27 Cal. Penal Code § 667, and thereafter by the voters by way of Proposition 184, Cal. 1 On May 3, 2016, the trial court issued a written order denying his petition for 2 resentencing, finding that he was ineligible for Proposition 36 relief because he was 3 armed with a firearm during the commission of both the burglary and felon in possession 4 of a firearm offenses. CT 00343-345. On October 30, 2018, the court of appeal affirmed 5 the denial of the Proposition 36 petition. Am. Pet., Ex. I. Smith filed a petition for review 6 which was denied by the California Supreme Court on January 16, 2019. Am. Pet., Exs. 7 J and K. 8 While the Proposition 36 petition was pending appeal in state court, Smith filed a 9 represented § 2254 petition asserting challenges to the state court robbery conviction. 10 Smith v. Kernan, No. 18-cv-1863 PJH (N.D. Cal. March 26, 2018). By order entered May 11 8, 2018, the court dismissed the petition as an unauthorized second or successive 12 petition challenging the same conviction underlying Smith’s prior habeas petition which 13 was finally adjudicated on the merits in Case No. 09-cv-3764 PJH. On June 8, 2018, 14 Smith filed an application for leave to file a second or successive habeas petition before 15 the Ninth Circuit, which denied the application. Smith v. Lozano, No. 18-71678 (9th Cir. 16 Jan. 17, 2019). 17 On February 20, 2019, Smith’s habeas counsel filed a supplement to the 18 application for authorization to file a second or successive habeas petition, which the 19 Ninth Circuit treated as a separate application and denied as unnecessary because it 20 challenged the denial of a petition for resentencing which Smith had not previously 21 challenged in a § 2254 petition that was adjudicated on the merits. Smith v. Lozano, No. 22 19-70444 (9th Cir. Apr. 22, 2019). By order entered April 22, 2019, the Ninth Circuit 23 transferred Smith’s application to this court as a § 2254 petition. On July 10, 2019, the 24 court issued an order dismissing the § 2254 habeas petition with leave to amend. On 25 November 15, 2019, counsel for Smith filed an amended petition for writ of habeas 26 corpus on which the court conducts a preliminary review pursuant to Rule 4. 27 1 DISCUSSION 2 A. Standard of Review 3 This court may entertain a petition for a writ of habeas corpus “in behalf of a 4 person in custody pursuant to the judgment of a State court only on the ground that he is 5 in custody in violation of the Constitution or laws or treaties of the United States.” 28 6 U.S.C. § 2254(a). It shall “award the writ or issue an order directing the respondent to 7 show cause why the writ should not be granted, unless it appears from the application 8 that the applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 9 Habeas corpus petitions must meet heightened pleading requirements. 10 McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of habeas 11 corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 12 must “specify all the grounds for relief available to the petitioner ... [and] state the facts 13 supporting each ground.” Rule 2(c) of the Rules Governing Section 2254 Cases. 14 “‘[N]otice’ pleading is not sufficient, for the petition is expected to state facts that point to 15 a ‘real possibility of constitutional error.’” Id., Rule 4 Advisory Committee Notes (quoting 16 Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). 17 B. Legal Claims 18 Smith asserts two grounds for federal habeas relief: (1) that he was denied an 19 evidentiary hearing in violation of his due process rights on the issue of ineligibility for 20 resentencing under Proposition 36; and (2) that the state court found Smith ineligible for 21 resentencing under a “substantial evidence” standard, rather than proof beyond a 22 reasonable doubt, in violation of his due process rights. 23 1. Due Process Claim Based on Lack of a Hearing 24 Proposition 36 authorizes an inmate currently serving an indeterminate term under 25 the original Three Strikes law to petition the trial court for resentencing in light of the 26 narrowed class of third-strike felonies for which an indeterminate sentence can be 27 imposed. People v. Perez, 4 Cal. 5th 1055, 1062 (citing Cal. Penal Code § 1170.126(a), 1 36, an already sentenced inmate whose third strike was a nonserious, nonviolent felony 2 and who otherwise satisfies the criteria for resentencing is nonetheless ineligible for 3 resentencing if his current sentence was imposed for an offense during which he “was 4 armed with a firearm or deadly weapon.” Id. (citing Cal. Penal Code 5 §§ 1170.12(c)(2)(C)(iii) and 1170.126(e)(2)). In Perez, the state supreme court 6 summarized the trial court’s procedures on a Proposition 36 petition for resentencing. 7 Initially, “[u]pon receiving such a petition, the trial court ‘shall determine whether the 8 petitioner satisfies the criteria’ for resentencing eligibility” under the revised Three Strikes 9 law. Id. (citing Cal. Penal Code § 1170.126(e), (f)). Then, “[i]f the petitioner is found 10 eligible for resentencing, he or she ‘shall be resentenced pursuant to Proposition 36 11 unless the court, in its discretion, determines that resentencing the petitioner would pose 12 an unreasonable risk of danger to public safety.’” Id. (citing Cal. Penal Code 13 § 1170.126(f)). 14 Smith claims that the state court found him ineligible for resentencing under 15 Proposition 36 without a hearing, based on an exclusionary factor that was not plead or 16 proven at trial, in violation of his right to due process. He argues that he was not charged 17 at trial with being armed with a firearm and had no opportunity to present evidence before 18 the state court determined he was ineligible for resentencing. Am. Pet. at 8-9. He 19 contends that he was denied “the very hearing to which the California courts have held a 20 Prop 36 petitioner is entitled.” Am. Pet. at 10 (citing Perez, 4 Cal. 5th at 1059; People v. 21 Frierson, 4 Cal. 5th 225, 226 [sic] (2017)). 22 The amended petition cites no clearly established federal law holding that the right 23 to due process requires a hearing to determine ineligibility for resentencing under Prop. 24 36. As an initial matter, a challenge to a state court’s application of its own state’s 25 sentencing laws does not raise a federal question cognizable on habeas review. See 26 Richmond v. Lewis, 506 U.S. 40, 50 (1992) (state sentencing errors are not cognizable in 27 federal habeas corpus unless the alleged error was “so arbitrary or capricious as to 1 Jeffers, 497 U.S. 764, 780 (1990); Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) 2 (“Absent a showing of fundamental unfairness, a state court’s misapplication of its own 3 sentencing laws does not justify federal habeas relief”) (citations omitted). When a state 4 law creates a protected liberty interest, however, “the Due Process Clause requires fair 5 procedures for its vindication.” Swarthout v. Cooke, 562 U.S. 216, 220 (2011). See also 6 Bonin v. Calderon, 59 F.3d 815, 841-42 (9th Cir. 1995), cert. denied, 516 U.S. 1051 7 (1996); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (federal habeas relief 8 under § 2254 “is unavailable for alleged error in the interpretation or application of state 9 law”), cert. denied, 478 U.S. 1021 (1986). 10 Smith suggests that he was arbitrarily denied a hearing on his ineligibility for 11 resentencing under Proposition 36 because California courts have recognized that a 12 Proposition 36 petitioner is entitled to a hearing, and that by allowing a hearing for some 13 Proposition 36 petitioners, the state is required by due process protections to afford all 14 Proposition 36 petitioners the right to a hearing. Am. Pet. at 10 (citing Perez, 4 Cal. 5th 15 at 1059; Frierson, 4 Cal. 5th at 226). The state court authorities cited by Smith hold that 16 the prosecutor must prove ineligibility for resentencing under Proposition 36 beyond a 17 reasonable doubt, which is asserted in support of Smith’s second claim for habeas relief, 18 but they do not hold that a petitioner for resentencing has a right to a hearing on the issue 19 of ineligibility. To the extent that Smith contends that petitioners are entitled to a hearing 20 under state law on ineligibility for resentencing under Proposition 36, he offers no state 21 court authority to cure the failure of his initial habeas petition to show that state law 22 requires such a hearing. Dkt. no. 4 at 4-5 (citing Perez, 4 Cal. 5th at 1063-64; People v. 23 Estrada, 3 Cal. 5th 661, 672 (2017) (permitting trial court to rely on preliminary hearing 24 transcript to determine ineligibility based on facts underlying dismissed counts)). 25 In support of his due process claim that he was denied a hearing “to which the 26 California courts have held that a Prop 36 petitioner is entitled,” Am. Pet. at 10, Smith 27 generally cites Perez, where the California Supreme Court expressly noted that 1 criterion for resentencing ineligibility, such as whether the inmate was armed with a 2 deadly weapon during his or her current offense, has been satisfied.” 4 Cal. 5th at 1062. 3 Contrary to Smith’s contention that the state supreme court recognized a petitioner’s right 4 to a hearing to determine eligibility, Perez did not address the question whether a hearing 5 is required. However, Perez recognized that the issue of ineligibility is a threshold 6 determination under Proposition 36 before the trial court reaches the discretionary issue 7 of resentencing: “the finding of a fact that renders a petitioner ineligible for resentencing 8 deprives him or her of an opportunity to have the trial court make a discretionary 9 determination as to whether he or she should be resentenced.” Id. at 1064. In Perez, the 10 defendant challenged the court of appeal’s determination that the defendant was 11 ineligible for resentencing, reversing the trial court’s finding that he was eligible, where 12 the jury “was not asked to explicitly find that Perez was armed with a deadly weapon,” yet 13 the court of appeal found that the record of conviction established that the defendant was 14 armed with a deadly weapon during the commission of the offense. Id. at 1061, 1063. 15 The state supreme court affirmed the court of appeal’s ineligibility determination and 16 expressly rejected the defendant’s contention that on a Proposition 36 petition for 17 resentencing, the trial court should be prohibited from determining ineligibility based on a 18 fact not found by a jury. Id. at 1063. 19 The court in Perez cited Dillon v. United States, 560 U.S. 817 (2010), for the 20 principle that a sentence modification proceeding under 18 U.S.C. § 3582(c)(2) to apply 21 revised sentencing guidelines retroactively does not implicate the Sixth Amendment right 22 to have essential facts found by a jury beyond a reasonable doubt. Perez, 4 Cal. 5th at 23 1063-64 (citing Dillon, 560 U.S. at 828-29). In Perez, the court concluded that “the Sixth 24 Amendment does not prohibit trial courts from relying on facts not found by a jury in 25 determining the applicability of Proposition 36’s resentencing ineligibility criteria,” 26 reasoning that under the Proposition 36 resentencing scheme, “a factual finding that 27 results in resentencing ineligibility does not increase the petitioner’s sentence; it simply 1 Smith fails to show that he was entitled under state law to a hearing to determine whether 2 he was ineligible for resentencing under Proposition 36 for being “armed with a firearm” 3 during the commission of the offense. Accordingly, Smith fails to assert a cognizable due 4 process claim for federal habeas relief based on the denial of a hearing to determine 5 ineligibility under Proposition 36. 6 2. Due Process Claim Based on Burden of Proof 7 In addition to his claim that due process requires an evidentiary hearing, Smith 8 claims that due process “requires a proof beyond a reasonable doubt standard.” Am. 9 Pet. at 23-24. Smith claims that the state court violated his right to due process by 10 finding him ineligible for resentencing under a substantial evidence standard, rather than 11 proof of ineligibility beyond a reasonable doubt as required by the Constitution. Am. Pet. 12 at 19-24 (citing, inter alia, In re Winship, 397 U.S. 358, 364 (1970) (“the Due Process 13 Clause protects the accused against conviction except upon proof beyond a reasonable 14 doubt of every fact necessary to constitute the crime with which he is charged”)). The 15 state court record attached to the amended petition, however, reflects that the court of 16 appeal determined that the evidence that Smith was armed during the commission of the 17 offenses satisfied the “beyond a reasonable doubt” burden of proof because the 18 resentencing court “relied on facts impliedly found by the jury.” People v. Smith, slip op. 19 at 14 n.10. On the basis of the amended petition and supporting attachments, Smith fails 20 to state a due process claim on the ground that the state court failed to apply the “beyond 21 the reasonable doubt” standard. 22 The amended petition points out that the trial court’s written order, finding that 23 petitioner was ineligible for resentencing under Proposition 36 because he was armed 24 with a firearm during the commission of the two conviction offenses, held that “substantial 25 circumstantial evidence supports the jury’s implied finding that Petitioner was in actual 26 possession of the firearm during the struggle with the victim on the driveway.” CT 00344. 27 The trial court issued its findings of “substantial evidence” of ineligibility before the 1 under Proposition 36 requires the prosecution to establish beyond a reasonable doubt 2 that a petitioner is ineligible for resentencing, resolving a conflict among the courts of 3 appeal as to the appropriate burden of proof. See Frierson, 4 Cal. 5th at 240 and n.8 4 (disapproving cases applying preponderance of the evidence standard to ineligibility for 5 resentencing). Petitioner argues that the trial court’s finding of ineligibility based on 6 “substantial circumstantial evidence” without applying the beyond a reasonable doubt 7 standard amounts to a due process violation. 8 On federal habeas review of this record, the court does not look to the order of the 9 trial court denying Smith’s resentencing petition. The attachments to the amended 10 petition reflect that the last reasoned decision of the state court, to which the federal court 11 looks on habeas review, is the court of appeal’s memorandum opinion affirming the trial 12 court’s denial of Smith’s petition for resentencing, Am. Pet., Ex. I. See Ylst v. 13 Nunnemaker, 501 U.S. 797, 803–04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091–92 14 (9th Cir. 2005). On direct review of the trial court’s denial of Smith’s Proposition 36 15 petition, the court of appeal recognized that the trial court did not apply the “beyond a 16 reasonable doubt” standard. People v. Smith, slip op. at 14 n.10. The court of appeal 17 summarized the circumstantial evidence from the records of conviction that showed that 18 Smith carried the firearm in his jacket at the time he struggled with the victim to establish 19 that he was armed with a gun during the commission of the burglary and felon in 20 possession of a firearm offenses. People v. Smith, slip op. at 10-14. The court of appeal 21 cited the intervening authority under Frierson,2 where the state supreme court 22 established that, in the absence of an express reference to the standard of proof for 23 resentencing under California Penal Code § 1170.126, the prosecution bears the burden 24 to prove ineligibility beyond a reasonable doubt. Id. (citing Frierson, 4 Cal. 5th at 233, 25

26 2 The court of appeal noted that the parties were invited to file supplemental briefs 27 addressing the relevant cases that had been decided by the California Supreme Court 1 240). Applying the “beyond a reasonable doubt” burden of proof, the court of appeal 2 rejected Smith’s argument that the evidence did not meet that standard: “Even without 3 the resentencing court explicitly stating it was applying the beyond a reasonable doubt 4 standard, we can infer it did so because it relied on facts impliedly found by the jury. 5 Thus, remand is unnecessary.” People v. Smith, slip op. at 14 n.10. 6 In view of the court of appeal’s determination that the trial court’s ineligibility 7 finding was based on evidence proven beyond a reasonable doubt, Smith fails to state a 8 due process claim that the state court failed to require proof of ineligibility for 9 resentencing beyond a reasonable doubt. 10 DENIAL OF CERTIFICATE OF APPEALABILITY 11 The federal rules governing habeas cases brought by state prisoners require a 12 district court that denies a habeas petition to grant or deny a certificate of appealability 13 (“COA”) in the ruling. See Rule 11(a), Rules Governing Section 2254 Cases. To obtain a 14 COA, a petitioner must make “a substantial showing of the denial of a constitutional 15 right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional 16 claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The 17 petitioner must demonstrate that reasonable jurists would find the district court’s 18 assessment of the constitutional claims debatable or wrong.” See Slack v. McDaniel, 529 19 U.S. 473, 484 (2000). Section 2253(c)(3) requires a court granting a COA to indicate 20 which issues satisfy the COA standard. Here, Smith has made no showing warranting a 21 COA as to his due process claims. Accordingly, the court denies a certificate of 22 appealability. 23 CONCLUSION 24 1. The amended petition for a writ of habeas corpus is DISMISSED WITH 25 PREJUDICE pursuant to Rule 4 of the Rules Governing Section 2254 Cases, on the 26 ground that it plainly appears from the petition and the attached exhibits that the 27 petitioner is not entitled to federal habeas relief. 1 2. A certificate of appealability is DENIED pursuant to Rule 11(a) of the Rules 2 Governing Section 2254 Cases. 3 3. The clerk shall issue a separate judgment and close the file. 4 IT IS SO ORDERED. 5 Dated: December 2, 2019 6 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27