Dean George Walsh v. Neil McDowell

Filing 42

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 35 by Judge Andre Birotte Jr. IT IS ORDERED that Judgment be entered denying and dismissing the Petition 1 with prejudice. (See Order for complete details) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

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DEAN GEORGE WALSH,
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Petitioner,
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v.
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NEIL McDOWELL, Warden,
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Respondent.

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NO. CV 15-02015-AB (AS)
ORDER ACCEPTING FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS
OF UNITED STATES MAGISTRATE JUDGE

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Pursuant to 28 U.S.C. section 636, the Court has reviewed the
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Petition, all of the records herein and the attached Report and
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Recommendation of United States Magistrate Judge.

After having

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made a de novo determination of the portions of the Report and
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Recommendation to which Objection were directed. The Court concurs
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with and accepts the findings and conclusions of the Magistrate
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Judge

in

the

Report

and

Recommendation.

However,

the

Court

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addresses certain arguments raised in the Objections below.
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Petitioner contends that he is also entitled to habeas relief
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on his conviction and sentence for first degree burglary because
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one of the four prior prison terms that were used to enhance his

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sentence (by one year) has since been reduced to a misdemeanor as

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a result of Proposition 47.1

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Lodgment; Docket Entry No. 38).

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not raised in the petition, and is unexhausted, it is not properly

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before the Court. “A federal court may not grant habeas relief to

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a state prisoner unless the prisoner has first exhausted his state

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court remedies by fully and fairly presenting each claim to the

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highest court.” Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir.

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2009) (citation and internal quotation marks omitted); 28 U.S.C. §

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2254(b)(1)(A(A).

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only a state law issue not cognizable on federal habeas review.

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Federal habeas corpus relief may be granted “only on the ground

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that [Petitioner] is in custody in violation of the Constitution or

(Petitioner’s Second Supplemental
However, because this claim was

The Court also notes that this claim presents

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Petitioner’s 39 years-to-life sentence consisted of a 25
years-to-life sentence for his first degree burglary conviction,
two consecutive five-year terms for two prior serious felony
convictions, and four consecutive one-year terms based on four
prior prison sentences (including Petitioner’s felony conviction
for grand theft in Los Angeles Superior Court case number A031621)
under California Penal Code section 667.5(d).
See Report and
Recommendation at 3. Effective November 5, 2015, Proposition 47
provided that under, California Penal Code Section 1170.18(f), “A
Person who has completed his or her sentence for a conviction,
whether by trial or plea, of a felony or felonies who would have
been guilty of a misdemeanor under this act had this act been in
effect at the time of the offense, may file an application before
the trial court that entered the judgment of conviction in his or
her case to have the felony conviction or convictions designated as
misdemeanors.” On April 25, 2016, the Los Angeles Superior Court
granted Petitioner’s section 1170.18(f) application to have his
felony conviction for grand theft, a violation of California Penal
Code Section 487.1, designated as a misdemeanor conviction in case
number A0316121. (Petitioner’s Second Supplemental Lodgment at 4;
Docket Entry No. 38).

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laws or treaties of the United States.”

28 U.S.C. § 2254(a).

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Matters relating to sentencing and serving of a sentence generally

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are governed by state law and do not raise a federal constitutional

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question.

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1989) (whether a particular prior conviction qualifies for sentence

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enhancement under California law is not cognizable on federal

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habeas corpus).

See Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir.

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Petitioner’s

remaining

objections

to

the

Report

and

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Recommendation are a reiteration of the arguments made in the

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Petition and have been addressed in the Report and Recommendation.

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Accordingly, the Court concurs with and accepts the findings and

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conclusions of the Magistrate Judge.

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IT IS ORDERED that Judgment be entered denying and dismissing
the Petition with prejudice.

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IT IS FURTHER ORDERED that the Clerk serve copies of this

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Order, the Magistrate Judge’s Report and Recommendation and the

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Judgment

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Respondent.

herein

on

counsel

for

Petitioner

and

counsel

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED:

August 25, 2016.

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ANDRÉ BIROTTE JR.,
UNITED STATES DISTRICT JUDGE
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for