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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PHILLIP G. STEPHENS, Petitioner, 12 v. 13 14 DEAN BORDERS, Warden, Respondent. 15 16 ) ) ) ) ) ) ) ) ) ) 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 17 on file, and Report and Recommendation of U.S. Magistrate Judge. 18 See 28 U.S.C. § 636. 19 objections. 20 findings and conclusions are erroneous, but he does not and 21 cannot challenge two principles underlying her analysis: under 22 California law, the DSL sentencing scheme enacted in the late 23 1970s does not apply to certain serious crimes, including first- 24 degree murder, which Petitioner was convicted of, see People v. 25 Jefferson, 21 Cal. 4th 86, 92-93 (1999), and no clearly 26 established U.S. Supreme Court authority holds that juveniles 27 convicted of murder cannot be sentenced to life with the 28 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 1 set, as Petitioner was and has been, see, e.g., Woods v. Donald, 2 135 S. Ct. 1372, 1377 (2015) (per curiam) (instructing habeas 3 courts to consider whether Supreme Court has ever addressed “the 4 specific question presented by this case” and not to define that 5 question at “too high a level of generality” (citation omitted)). 6 For both of these reasons, even if the Magistrate Judge did err 7 in some respect, Petitioner cannot prevail. 8 9 And as the Magistrate Judge noted (R. & R. at 8-12), Petitioner relies exclusively on state law in support of his 10 claims, primarily In re Butler, 236 Cal. App. 4th 1222, 1240-44 11 (Ct. App. 2015) (see, e.g., Objs. at 2, 4, 6-8 (discussing 12 Butler)), and thus they are not cognizable on federal habeas 13 review. 14 232343 & 1060203, at *2 (E.D. Cal. Jan. 19 & Mar. 17, 2016) 15 (rejecting as noncognizable claims similar to Petitioner’s 16 because “Butler deals with only with [sic] state administrative 17 law”). 18 Petitioner’s claims in his habeas petitions and nonetheless 19 rejected them, and this Court is bound by those interpretations 20 of state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) 21 (per curiam). Petitioner attempts to distinguish the unfavorable 22 federal authority upon which the Magistrate Judge relied, 23 claiming that those cases concerned the Parole Board’s “parole- 24 granting functions,” not its “term-setting obligations,” as he 25 addresses (Objs. at 4-6 (italics in original)); but then he 26 acknowledges in the very next paragraph that the federal cases 27 the Magistrate Judge discussed “did address the Board’s failure 28 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 2 1 involved adults and not juveniles, the issue has somehow been 2 transformed into a federal one rather than one resting only on 3 state law. 4 federal law on the issue, that cannot be the case for purposes of 5 federal habeas review. 6 (Id.) But given the lack of clearly established Similarly, the Magistrate Judge did not misconstrue 7 Petitioner’s Eighth Amendment claim. 8 because it relies on state law (including state law interpreting 9 the Eighth Amendment), not any clearly established federal law, (See Objs. at 7-8.) But 10 it cannot prevail, as she recognized. 11 also recognized that if it were construed as raising an Eighth 12 Amendment claim resting on federal law that is clearly 13 established, it would still fail. 14 Petitioner complains that the Magistrate Judge erroneously cited 15 cases concerning “judicially imposed sentence[s]” and not the 16 Parole Board’s “refusal to set his primary term in light of his 17 case factors” (Objs. at 8), but of course the clearly established 18 law on which Petitioner relies in support of his Eighth Amendment 19 claim, Miller v. Alabama, 567 U.S. 460 (2012) (see Objs. at 8 20 (citing Miller)), also concerned judicially imposed sentences, 21 albeit statutorily required ones. 22 faulted for addressing the “specific question” raised by the case 23 upon which Petitioner bases his claim. 24 (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 25 R. & R. to which Petitioner objected, the Court accepts the 26 Magistrate Judge’s findings and recommendations.1 IT IS ORDERED 27 1 28 Contrary to Petitioner’s objections (see Objs. at 2-3), (continued...) 3 1 that Judgment be entered denying the First Amended Petition and 2 dismissing this action with prejudice. 3 4 DATED: November 15, 2017 STEPHEN V. WILSON U.S. DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 (...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. 4

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