Phillip G. Stephens v. Warden

Filing 22

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Stephen V. Wilson for Report and Recommendation (Issued), 20 . IT IS ORDERED that Judgment be entered denying the First Amended Petition and dismissing this action with prejudice. (See Order for details) (bem)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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PHILLIP G. STEPHENS,
Petitioner,

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v.

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DEAN BORDERS, Warden,
Respondent.

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Case No. CV 16-5660-SVW (JPR)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF U.S.
MAGISTRATE JUDGE

The Court has reviewed the First Amended Petition, records

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on file, and Report and Recommendation of U.S. Magistrate Judge.

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See 28 U.S.C. § 636.

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objections.

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findings and conclusions are erroneous, but he does not and

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cannot challenge two principles underlying her analysis: under

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California law, the DSL sentencing scheme enacted in the late

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1970s does not apply to certain serious crimes, including first-

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degree murder, which Petitioner was convicted of, see People v.

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Jefferson, 21 Cal. 4th 86, 92-93 (1999), and no clearly

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established U.S. Supreme Court authority holds that juveniles

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convicted of murder cannot be sentenced to life with the

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possibility of parole or be denied parole before a base term is

On August 23, 2017, Petitioner filed

He alleges that many of the Magistrate Judge’s

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set, as Petitioner was and has been, see, e.g., Woods v. Donald,

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135 S. Ct. 1372, 1377 (2015) (per curiam) (instructing habeas

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courts to consider whether Supreme Court has ever addressed “the

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specific question presented by this case” and not to define that

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question at “too high a level of generality” (citation omitted)).

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For both of these reasons, even if the Magistrate Judge did err

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in some respect, Petitioner cannot prevail.

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And as the Magistrate Judge noted (R. & R. at 8-12),
Petitioner relies exclusively on state law in support of his

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claims, primarily In re Butler, 236 Cal. App. 4th 1222, 1240-44

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(Ct. App. 2015) (see, e.g., Objs. at 2, 4, 6-8 (discussing

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Butler)), and thus they are not cognizable on federal habeas

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review.

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232343 & 1060203, at *2 (E.D. Cal. Jan. 19 & Mar. 17, 2016)

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(rejecting as noncognizable claims similar to Petitioner’s

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because “Butler deals with only with [sic] state administrative

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law”).

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Petitioner’s claims in his habeas petitions and nonetheless

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rejected them, and this Court is bound by those interpretations

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of state law.

See Bradshaw v. Richey, 546 U.S. 74, 76 (2005)

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(per curiam).

Petitioner attempts to distinguish the unfavorable

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federal authority upon which the Magistrate Judge relied,

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claiming that those cases concerned the Parole Board’s “parole-

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granting functions,” not its “term-setting obligations,” as he

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addresses (Objs. at 4-6 (italics in original)); but then he

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acknowledges in the very next paragraph that the federal cases

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the Magistrate Judge discussed “did address the Board’s failure

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to fix terms” (id. at 6).

See Magee v. Arnold, No. 2:15-cv-2318 GGH P, 2016 WL

Moreover, Butler existed when the state courts considered

He argues that because those cases
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involved adults and not juveniles, the issue has somehow been

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transformed into a federal one rather than one resting only on

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state law.

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federal law on the issue, that cannot be the case for purposes of

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federal habeas review.

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(Id.)

But given the lack of clearly established

Similarly, the Magistrate Judge did not misconstrue

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Petitioner’s Eighth Amendment claim.

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because it relies on state law (including state law interpreting

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the Eighth Amendment), not any clearly established federal law,

(See Objs. at 7-8.)

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it cannot prevail, as she recognized.

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also recognized that if it were construed as raising an Eighth

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Amendment claim resting on federal law that is clearly

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established, it would still fail.

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Petitioner complains that the Magistrate Judge erroneously cited

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cases concerning “judicially imposed sentence[s]” and not the

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Parole Board’s “refusal to set his primary term in light of his

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case factors” (Objs. at 8), but of course the clearly established

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law on which Petitioner relies in support of his Eighth Amendment

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claim, Miller v. Alabama, 567 U.S. 460 (2012) (see Objs. at 8

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(citing Miller)), also concerned judicially imposed sentences,

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albeit statutorily required ones.

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faulted for addressing the “specific question” raised by the case

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upon which Petitioner bases his claim.

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(See R. & R. at 13.)

(See id. at 13-14.)

She

Indeed,

The Magistrate Judge cannot be

Having made a de novo determination of those portions of the

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R. & R. to which Petitioner objected, the Court accepts the

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Magistrate Judge’s findings and recommendations.1

IT IS ORDERED

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Contrary to Petitioner’s objections (see Objs. at 2-3),
(continued...)
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that Judgment be entered denying the First Amended Petition and

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dismissing this action with prejudice.

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DATED: November 15, 2017
STEPHEN V. WILSON
U.S. DISTRICT JUDGE

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(...continued)
the Magistrate Judge did not find that the FAP was impermissibly
successive, she merely noted that it might well be. (See R. & R.
at 6 (“The FAP May Be Impermissibly Successive”).) She
nonetheless addressed Petitioner’s claims on the merits. (See
id. at 8-14.) The Court need not and does not rely on the
successive-petition analysis.
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