Joshua T Woolridge v. Aref Fakhoury

Filing 3

ORDER DISMISSING PETITION WITHOUT PREJUDICE; AND DENYING; CERTIFICATE OF APPEALABILITY by Judge Manuel L. Real. (mz)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 JOSHUA T. WOOLRIDGE, ) ) Petitioner, ) ) v. ) ) WARDEN AREF FAKHOURY, ) ) Respondent. ) ___________________________________) NO. EDCV 12-62-R (MAN) ORDER: DISMISSING PETITION WITHOUT PREJUDICE; AND DENYING CERTIFICATE OF APPEALABILITY 16 17 18 On January 12, 2012, Petitioner, a California prisoner, filed a 19 habeas petition pursuant to 28 U.S.C. § 2254 (“Petition”). 20 the Rules Governing Section 2254 Cases in the United States District 21 Courts provides that a petition for writ of habeas corpus “must” be 22 summarily dismissed “[i]f it plainly appears from the petition and any 23 attached exhibits that the petitioner is not entitled to relief in the 24 district court.” 25 Petition is not cognizable and could not state a basis for federal 26 habeas relief even if amendment were allowed. 27 must be dismissed. 28 Rule 4 of Here, it plainly appears that the claim raised in the Therefore, the Petition BACKGROUND 1 2 3 The instant Petition is Petitioner’s fifth Section 2254 petition 4 filed in this Court stemming from his 2005 state court conviction and 5 sentence (the “Conviction”). 6 habeas petition that was assigned Case No. EDCV 07-1482-R (MAN) (the 7 “First Action”). 8 Section 2254 habeas petition stemming from the Conviction, which was 9 assigned Case No. EDCV 08-1237-R (MAN). On November 9, 2007, Petitioner filed a On September 10, 2008, Petitioner filed a second The second petition raised two 10 claims attacking a restitution fine imposed in connection with the 11 Conviction. 12 petition be construed as a motion to amend the First Action Petition, 13 and the separate second petition action was dismissed. 14 2009, Petitioner submitted a third Section 2254 petition stemming from 15 the Conviction, which alleged five claims. 16 construed as a motion to amend the First Action petition. 17 as so amended, the First Action petition was deemed to include all 16 18 claims 19 Petitioner arising from the Conviction. On November 24, 2008, the Court ordered that the second alleged in the three Section On April 9, The third petition also was 2254 petitions Accordingly, submitted by 20 21 The First Action was resolved on the merits, and habeas relief was 22 denied by Judgment entered on May 18, 2010. Petitioner appealed to the 23 United States Court of Appeals for the Ninth Circuit, and a certificate 24 of appealability was denied on July 30, 2010 (Case No. 10-56078).1 25 26 1 27 28 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court takes judicial notice of the files for Petitioner’s cases in this district, as well as the dockets for the Ninth Circuit available electronically through the PACER system. 2 1 On May 11, 2011, Petitioner filed a fourth Section 2254 petition in 2 this district, in which he alleged a single instructional error claim. 3 See petition filed in Case No. CV 11-752-R (MAN). 4 Judgment was entered dismissing the 11-752 action without prejudice, on 5 the ground that the petition was second or successive. 6 not appeal. On May 24, 2011, Petitioner did 7 8 PETITIONER’S HABEAS CLAIM 9 10 Petitioner alleges that, after he was convicted and sentence was 11 imposed, the California Legislature modified a statute pertaining to 12 both pre-sentence and post-sentence custody credits, i.e., California 13 Penal Code § 4109. 14 application of that amended statute, so as to alter the custody credits 15 determination made in 2005, when he was sentenced. 16 the failure to apply the statute retroactively to him a federal due 17 process violation. He contends that he is entitled to a retroactive Petitioner labels (Petition at 5.) 18 19 DISCUSSION 20 21 It is well-settled that federal habeas relief is available only to 22 state prisoners who are “in custody in violation of the Constitution or 23 laws or treaties of the United States.” 24 also 25 (1991)(same); Smith v. Phillips, 455 U.S. 209, 221, 102 S. Ct. 940, 948 26 (1982)(federal habeas courts “may intervene only to correct wrongs of 27 constitutional 28 constitutional violation, “it is not the province of a federal habeas Estelle v. McGuire, 502 dimension”). U.S. 62, Absent 3 28 U.S.C. §§ 2241, 2254; see 68, an 112 S. Ct. independent 475, 480 federal 1 court to re-examine state-court determinations on state-law questions.” 2 Estelle, 502 U.S. at 68, 112 S. Ct. at 480; Little v. Crawford, 449 F.3d 3 1075, 1083 n.6 (9th Cir. 2006)(observing that a showing of a possible 4 “‘variance with the state law’” does not constitute a federal question, 5 and that federal courts “‘cannot treat a mere error of state law, if one 6 occurred, as a denial of due process; otherwise, every erroneous 7 decision by a state court on state law would come here as a federal 8 constitutional question’”; citation omitted); Bonin v. Calderon, 59 F.3d 9 815, 841 (9th Cir. 1995)(violation of a “state law right does not 10 warrant habeas corpus relief”). 11 12 Generally, a challenge to a state court’s application of state 13 sentencing laws does not create a federal question cognizable on federal 14 habeas review. 15 Ct. 3092, 3102 (1990); Campbell v. Blodgett, 997 F.2d 512, 522-24 (9th 16 Cir. 1992)(“As the Supreme Court has stated time and again, federal 17 habeas corpus relief does not lie for errors of state law.”); Miller v. 18 Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989). 19 fundamental unfairness, a state court’s misapplication of its own 20 sentencing laws does not justify federal habeas relief.” 21 Rhode, 22 Demosthenes, 37 F.3d 504, 506 (9th Cir. 1994)(petitioner’s claim that 23 the 24 cognizable in federal habeas); Hendricks v. Zenon, 993 F.2d 664, 674 25 (9th Cir. 1993)(defendant’s claim that state court was required to merge 26 his convictions was not cognizable). 27 habeas claim based on an alleged sentencing error by a state court, a 28 habeas petitioner must show that the asserted sentencing error was “‘so 41 state See, e.g., Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. F.3d court 461, 469 erred in (9th Cir. imposing 4 1994); see consecutive “Absent a showing of also Christian v. Cacoperdo sentences was v. not To state a cognizable federal 1 arbitrary or capricious as to constitute an independent due process’” 2 violation. 3 (1992)(citation omitted). Richmond v. Lewis, 506 U.S. 40, 50, 113 S. Ct. 528, 536 4 5 Petitioner’s entitlement to a retroactive application of California 6 Penal Code § 4109 is unclear at this time. Even the most cursory 7 research reveals that the California Courts of Appeal have wrestled with 8 this issue and have reached contradictory conclusions. 9 last month, the Second Appellate District of the California Court of 10 Appeal (the district in which Petitioner was convicted) opined that the 11 amended version of Section 4109 may not be applied retroactively to 12 California prisoners, such as Petitioner, whose convictions were final 13 when the amendment took effect. 14 (Cal. App. 2 Dist. Dec. 16, 2011).2 15 District found the amended version of Section 4109 to be retroactively 16 applicable. 17 4, 2012). 18 cases involving the issue of the retroactive applicability of the 19 amendment to Section 4109. 20 California Supreme Court has granted review of the issue and will have 21 the final say on the matter.”)(citing ten cases in which review has been 22 granted); Florez, 2011 WL 6276122, at *2 n.2 (“California courts are 23 divided on the retroactive application of the . . . amendment and the 24 issue is now before the Supreme Court.”)(citing cases in which review For example, See People v. Florez, 2011 WL 6276122 More recently, the Fourth Appellate See People v. Hirk, 2012 WL 12869 (Cal. App. 4 Dist. Jan. The California Supreme Court has granted review in numerous See Hirk, 2012 WL 12869, at *3 (“The 25 26 27 28 2 Under California Rule of Court 8.1115, the Florez decision and the other California decision cited herein are not citable in the California courts, because they are unpublished. The Court cites them not for precedential value but, rather, simply to provide examples of the conflicting opinions that exist at this time. 5 1 has been granted). Thus, Petitioner’s asserted right to have the 2 amended version of Section 4109 applied to amend retroactively his 2005 3 custody credits determination is an open question under California law. 4 5 The Court has construed the Petition as liberally as possible. 6 Having done so, it is evident that the Petition’s allegations set forth 7 only a claim of state law error and do not state any cognizable basis 8 for federal habeas relief. 9 benefit of a state law that may be found not to apply to him. Petitioner claims to be entitled to the Any right 10 Petitioner may have to a retroactive application of Section 4109 is an 11 issue still to be resolved by the California Supreme Court. 12 cannot render an opinion on this state law issue, much less determine 13 how 14 California sentencing law. 15 supplant the state courts’ power to interpret state law. California law should be resolved on this open This Court question of Federal habeas review does not exist to 16 17 Given that the question of whether Section 4109 may be applied 18 retroactively to California prisoners is the subject of contradictory 19 state court opinions and is now pending before the California Supreme 20 Court, the denial to Petitioner of a retroactive application of the 21 statute cannot be found to be erroneous, arbitrary, capricious, or 22 fundamentally unfair, nor does it implicate any federal constitutional 23 concern. 24 this purely state law issue as a “due process” violation -- necessarily 25 fails. 26 petitioner may not “transform a state-law issue into a federal one 27 merely by asserting a violation of due process,” and “alleged errors in 28 the application of state law are not cognizable in federal habeas Petitioner’s attempt to create a federal claim -- by labeling See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997)(a 6 1 corpus” proceedings). 2 3 The Petition, on its face, shows that Petitioner is not entitled to 4 relief, and thus, summary dismissal is required pursuant to Rule 4. 5 Accordingly, IT IS ORDERED that: 6 prejudice; and Judgment shall be entered dismissing this action without 7 prejudice. the Petition is dismissed, without 8 9 In addition, pursuant to Rule 11(a) of the Rules Governing Section 10 2254 Cases in the United States District Courts, the Court has 11 considered whether a certificate of appealability is warranted in this 12 case. 13 85, 14 certificate of appealability is unwarranted, and thus, a certificate of 15 appealability is DENIED. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484- 120 S. Ct. 1595, 1604 (2000). The Court concludes that 16 17 DATED: Jan. 23, 2012 . 18 MANUEL L. REAL UNITED STATES DISTRICT JUDGE 19 20 21 PRESENTED BY: 22 23 24 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 25 26 27 28 7 a