Willie Clarence Sherman v. Ralph Diaz

• Court: District Court, C.D. California
• Decided: March 30, 2020
• Docket: 2:19-cv-08038
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WILLIE CLARENCE SHERMAN, ) CASE NO. CV 19-8038-PJW ) 11 Petitioner, ) ) MEMORANDUM OPINION AND ORDER 12 v. ) DENYING PETITION, DISMISSING ) ACTION WITH PREJUDICE, AND 13 RALPH DIAZ, SECRETARY, CDCR, ) DENYING CERTIFICATE OF ) APPEALABILITY 14 Respondent. ) ) 15 ) 16 Before the Court is a Petition for Writ of Habeas Corpus under 28 17 U.S.C. § 2254, in which Petitioner once again challenges his 2002 18 state conviction for second degree robbery and 25-years-to-life 19 sentence. For the reasons set forth below, the Petition is denied and 20 the action is dismissed with prejudice. 21 I. 22 PRIOR PROCEEDINGS 23 In March 2002, Petitioner pled no contest in the Los Angeles 24 County Superior Court to second degree robbery and admitted to two 25 prior “strike” convictions under the California “Three Strikes” law. 26 He was sentenced to 25 years to life. (Lodged Doc. Nos. 2, 3.) In 27 July 2003, August 2007, and April 2008 through January 2009, 28 Petitioner pursued collateral challenges in state court to his 1 conviction and sentence, all of which were denied. (Lodged Doc. Nos. 2 5-16.) In September 2009, Petitioner filed a petition for writ of 3 habeas corpus in this court, which was denied as untimely. (Sherman 4 v. Harrington, CV 09-6890-VBF (RC), June 23, 2010 Order.) 5 In January 2014, Petitioner filed a petition for re-sentencing in 6 the Superior Court, pursuant to Proposition 36. In October 2014, the 7 court denied the petition on the ground that Petitioner’s conviction 8 for a violent felony rendered him ineligible for re-sentencing under 9 Proposition 36. (Lodged Doc. No. 17 at 27-28.1) Petitioner appealed 10 but his appeal was denied and he did not file a petition for review in 11 the state supreme court. (Lodged Doc. No. 19 at 2.) 12 In June 2018, Petitioner filed a motion to dismiss his prior 13 convictions in the Superior Court (apparently under Proposition 57) 14 which was denied. (Lodged Doc. No. 20 at 22.) In October 2018, he 15 filed a habeas petition in the Superior Court, contending that he was 16 entitled to relief under changes to California Penal Code § 12022.53. 17 The Superior Court denied the petition, finding that Petitioner was 18 not eligible for re-sentencing under the amended statute. (Lodged 19 Doc. No. 20 at 24.) The court also rejected as untimely Petitioner’s 20 claim that he received ineffective assistance of counsel. (Lodged 21 Doc. No. 20 at 26-27.) His subsequent petitions in the state 22 appellate court and state supreme court were denied. (Lodged Doc. 23 Nos. 21-24.) 24 In September 2019, Petitioner, proceeding pro se, filed the 25 instant Petition, pursuant to 28 U.S.C. § 2254, contending that his 26 conviction was invalid because he was not a “major participant” in the 27 28 1 All page numbers given are those provided by the Court’s electronic docketing system. 1 robbery, his attorney provided ineffective assistance, and his co- 2 defendants offered “self-serving statements.” (Petition at 7-11, 18.) 3 Petitioner also alleged that his prior “strike” convictions did not 4 qualify as violent felonies and that he was entitled to be re- 5 sentenced under recent changes to state law. (Petition at 7, 11-17.) 6 II. 7 DISCUSSION 8 Respondent has moved to dismiss the Petition on the ground that 9 it fails to state a federal claim. Petitioner has not opposed the 10 motion. For the following reasons, the motion is granted.2 11 As an initial matter, Respondent construes the Petition to be 12 challenging only “the 2014 denial of re[-]sentencing under California 13 Penal Code section 1170.126 and not . . . [Petitioner’s] original 2002 14 conviction,” (Motion to Dismiss at 8 n.3), and, thus, concedes that it 15 would not be barred as a second or successive petition. (Id.) The 16 Court disagrees, in part. 17 Although Petitioner challenges the denial of his re-sentencing 18 petitions, he also attacks the validity of his original conviction. 19 Those claims--that he was not a major player in the robbery, received 20 ineffective assistance of counsel, and was the victim of self-serving 21 statements--are subject to the bar on unauthorized second or 22 successive petitions. See Clayton v. Biter, 868 F.3d 840, 845 (9th 23 Cir. 2017) (holding challenge to “new and intervening judgment” rather 24 than underlying conviction was not subject to the “second or 25 successive” petition bar imposed by 28 U.S.C. § 2244(b)(2)); Colbert 26 27 2 Respondent primarily contends that the Petition is untimely. 28 Because the Court finds that the Petition is subject to dismissal on other grounds, it need not and does not reach the issue of timeliness. 1 v. Clark, 2019 WL 3416680, at *9 (C.D. Cal. June 25, 2019) (finding 2 one ground in petition challenged same judgment as petitioner’s prior 3 federal habeas petition and was, therefore, barred as second or 4 successive), adopted by 2019 WL 3412160 (C.D. Cal. July 29, 2019); 5 Perez v. Asuncion, 2017 WL 8160292, at *5 (C.D. Cal. Nov. 17, 2017) 6 (holding challenge to conviction or sentence, rather than order 7 denying re-sentencing, implicated second or successive bar imposed by 8 28 U.S.C. § 2244(b)(2)(b)), adopted by 2018 WL 1175008 (C.D. Cal, Mar. 9 5, 2018). For that reason, those claims are dismissed. 10 As for Petitioner’s re-sentencing claims, they are not cognizable 11 in federal habeas corpus because they are purely state-law claims. 12 See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (holding mere errors 13 in the application of state law are not cognizable on habeas corpus); 14 Williams v. Borg, 139 F.3d 737, 740 (9th Cir. 1998) (holding federal 15 courts in state habeas cases address only federal constitutional 16 violations, not abuses of discretion under state law); Hearod v. 17 Davis, 2019 WL 7562682, at *6 (C.D. Cal. Nov. 13, 2019) (noting “every 18 federal court to have addressed the issue has held that claims for re- 19 sentencing under [California Penal Code § 12022.53(h)] are not 20 cognizable”). Further, even were the Court willing to look past this 21 bar, which it is not, it would be bound by the state court’s 22 determination that the robbery was a “violent felony” under state law. 23 Bradshaw v. Richey, 546 U.S. 74, 76 (2006) (“[A] state court’s 24 interpretation of state law, including one announced on direct appeal 25 of the challenged conviction, binds a federal court sitting in habeas 26 corpus.”). 27 Petitioner attempts to federalize his claims by arguing that his 28 conviction for second degree robbery would not be considered a 1} ‘violent felony” under the federal Armed Career Criminal Act (and citing cases that have held as much, e.g., Johnson v. United States, 39.559 U.S. 133 (2010)). (Petition at 11-15.) But this argument is unavailing because he was not sentenced under that Act--or any other 5 || federal law--as the Superior Court observed in denying his October 6 || 2018 habeas petition. (Lodged Doc. No. 20 at 25-26.) 7 Til. 8 CONCLUSION 9 For these reasons, the Petition is denied and the action is 10 || dismissed with prejudice. Further, because Petitioner has not made a 11 |} substantial showing of the denial of a constitutional right, he is not 12 | entitled to a certificate of appealability. See 28 U.S.C. 13 | 8 2253(¢c)(2)7 Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack McDaniel, 529 U.S. 473, 484 (2000); see also Fed. R. App. P. 22(b). 15 IT IS SO ORDERED. 16 DATED: March 30, 2020. Kid 9. WL z¢2teg So. PATRICK J. WALSH 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 |] s:\PaW\cases-State Habeas\SHERMAN, W 8038\Memorandum Opinion and Order.wpd