Kenji Dominic Richmond v. M E Spearman

Filing 14

ORDER SUMMARILY DENYING PETITION FOR WRIT OF HABEAS CORPUS, DISMISSING ACTION AND DENYING A CERTIFICATE OF APPEALABILITY by Judge Jesus G. Bernal. IT IS ORDERED that the Petition is denied and this action is dismissed without prejudice. Petitione rs other pending motions are denied as moot. The Court also concludes that a certificate of appealability is unwarranted in this case, because petitioner has failed to make a substantial showing of the denial of a constitutional right and, under the circumstances, jurists of reason would not disagree with the Courts determination that the Petition is not cognizable. Thus, a certificate of appealability is DENIED. (See document for specifics.) (iva)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

KENJI DOMINIC RICHMOND,
Petitioner,

12

v.

13
14

M.E. SPEARMAN, Warden,
Respondent.

15
16
17

____________________________

)
)
)
)
)
)
)
)
)
)
)

Case No. CV 15-2784 JGB(JC)
ORDER SUMMARILY DENYING
PETITION FOR WRIT OF HABEAS
CORPUS, DISMISSING
ACTION AND DENYING A
CERTIFICATE OF APPEALABILITY

On February 3, 2015, Kenji Dominic Richmond (“petitioner”), a state inmate

18

proceeding pro se, filed a Petition for Writ of Habeas Corpus (“Petition”) in the

19

United States District Court for the Northern District of California. On April 14,

20

2015, the Petition was transferred to this District and formally filed in this Court on

21

April 15, 2015.

22

Rule 4 of the Rules Governing Section 2254 Cases in the United States

23

District Courts provides that a petition for writ of habeas corpus “must” be

24

summarily dismissed “[i]f it plainly appears from the petition and any attached

25

exhibits that the petitioner is not entitled to relief in the district court.” Here, it

26

plainly appears that the sole claim alleged in the Petition is not cognizable.

27

Therefore, the Petition must be dismissed.

28

1

Petitioner currently is serving a Three Strikes sentence of 43 years following

2

his 1994 guilty plea and conviction in Ventura County Superior Court Case No.

3

CR32529 (“State Case”). (Petition at 2-3, 6A, 9). Petitioner was convicted of

4

violating California Penal Code § 288 – child molestation – and California Penal

5

Code § 211 – armed robbery. (Petition at 2). Petitioner did not pursue a direct

6

appeal. (Petition at 3). However, in 2014, he sought and was denied habeas relief

7

– a requested recalling of his sentence and resentencing under Proposition 36 – by

8

the Ventura County Superior Court, the California Court of Appeal and the

9

California Supreme Court. (Petition at 4-5).

10

Proposition 36, also known as the Three Strikes Reform Act of 2012, which

11

was enacted on November 6, 2012, and became effective the following day,

12

modified California’s Three Strikes Law, codified at California Penal Code

13

sections 667 and 1710.12, as it applies to certain third-strike indeterminate

14

sentences. See Cal. Penal Code § 1170.126. In pertinent part, it created a

15

postconviction release proceeding whereby a prisoner who is serving an

16

indeterminate life sentence imposed pursuant to the Three Strikes Law for a crime

17

that is not a serious or violent felony and who is not disqualified, may have his or

18

her sentence recalled and be sentenced as a second strike offender unless the court

19

determines that resentencing would pose an unreasonable risk of danger to public

20

safety. People v. Yearwood, 213 Cal. App. 4th 161, 168 (2013) (citing Cal. Penal

21

Code § 1170.126 “Section 1170.126”). In the current federal Petition, petitioner

22

requests that his sentence in the State Case be recalled and that he be resentenced

23

under Proposition 36. As discussed below, this claim raises only a non-cognizable

24

state law issue and must be dismissed.

25

“In conducting habeas review, a federal court is limited to deciding whether

26

a conviction violated the Constitution, laws, or treaties of the United States.”

27

Estelle v. McGuire, 502 U.S. 62, 68 (1991) (citations omitted). It is well-settled

28

that federal habeas relief is available only to state prisoners who are “in custody in
2

1

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §§

2

2241, 2254; see also Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (per curiam)

3

(“‘We have stated many times that federal habeas corpus relief does not lie for

4

errors of state law.’”) (citation omitted); Wilson v. Corcoran, 562 U.S. 1 (2010)

5

(per curiam) (“[I]t is only noncompliance with federal law that renders a State’s

6

criminal judgment susceptible to collateral attack in the federal courts.”); Langford

7

v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (petitioner may not “transform a state-

8

law issue into a federal one merely by asserting a violation of due process . . .

9

alleged errors in the application of state law are not cognizable in federal habeas

10
11

corpus” proceedings).
Generally, a challenge to a state court’s application of state sentencing laws

12

does not give rise to a federal question cognizable on federal habeas review. See

13

Lewis v. Jeffers, 497 U.S. 764, 783 (1990); Miller v. Vasquez, 868 F.2d 1116,

14

1118-19 (9th Cir. 1989) (claim that offense did not constitute a “serious felony”

15

held not to be cognizable on federal habeas review, because it “is a question of

16

state sentencing law”); Sturm v. California Youth Authority, 395 F.2d 446, 448

17

(9th Cir. 1967) (“a state court’s interpretation of its [sentencing] statute does not

18

raise a federal question”), cert. denied, 395 U.S. 947 (1969). To state a cognizable

19

federal habeas claim based on a claimed state sentencing error, a petitioner must

20

show both state sentencing error and that the error was “so arbitrary or capricious

21

as to constitute an independent due process” violation. Richmond v. Lewis, 506

22

U.S. 40, 50 (1992). Petitioner does not allege a tenable claim of such a due process

23

violation here, nor could he do so, because the Petition, on its face, shows there

24

was neither state sentencing error nor arbitrariness.

25

The resentencing provisions in Section 1170.126 “are intended to apply

26

exclusively to persons presently serving an indeterminate term of imprisonment”

27

pursuant to the Three Strikes Law and permit petitions to recall sentences only for

28

such prisoners whose convictions are for “a felony or felonies that [is/]are not
3

1

defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or

2

subdivision (c) of Section 1192.7.” Cal. Penal Code §§ 1170.126(a)-(b); see also

3

Cal. Penal Code § 1170.126(e)(1) (an inmate is “eligible for resentencing” only if

4

his conviction is for a felony that is not defined as a serious and/or violent felony

5

under Section 667.5(c) or Section 1192.7(c)). Here, petitioner is serving a 43-year

6

sentence – not an indeterminate life sentence. Moreover, petitioner’s underlying

7

armed robbery conviction in the State Case plainly constitutes a “violent” and

8

“serious” felony. See California Penal Code §§ 667.5(c)(9), 1192.7(c)(19).

9

Accordingly, he is not eligible for resentencing under Proposition 36.

10

For the foregoing reasons, IT IS ORDERED that the Petition is denied and

11

this action is dismissed without prejudice. Petitioner’s other pending motions are

12

denied as moot.

13

The Court also concludes that a certificate of appealability is unwarranted in

14

this case, because petitioner has failed to make a substantial showing of the denial

15

of a constitutional right and, under the circumstances, jurists of reason would not

16

disagree with the Court’s determination that the Petition is not cognizable. Thus, a

17

certificate of appealability is DENIED.

18
19

LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: April 22, 2015

20
21
22

________________________________________
HONORABLE JESUS G. BERNAL
UNITED STATES DISTRICT JUDGE

23
24
25
26
27
28
4