Bruce Patrick Haney v. W.L. Muniz

Filing 7

ORDER SUMMARILY DISMISSING HABEAS PETITION by Judge Valerie Baker Fairbank, re Petition for Writ of Habeas Corpus (2254), 1 . The petition for a writ of habeas corpus is DISMISSED. The Court DECLINES to issue a certificate of appealability. Petitioner may seek a COA from the U.S. Court of Appeals for the Ninth Circuit. Final judgment shall be entered consistent with this Order. As required by Fed. R. Civ. P. 58(a), the judgment will be a separate document. (dml)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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BRUCE PATRICK HANEY,
Petitioner,

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v.
W.L. MUNIZ, Warden.
Respondent,
____________________________

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Case No. LA CV 17-05040 VBF-JC
ORDER
Summarily Dismissing Habeas
Petition
Denying a Certificate of
Appealability and Advising Petitioner
that He May Seek a COA from the
Ninth Circuit

On June 21, 2017, California state prisoner Bruce Patrick Haney (“petitioner”),

19 proceeding pro se, signed a Petition for Writ of Habeas Corpus by a Person in State
20 Custody Pursuant to 28 U.S.C. Section 2254 (“Pet”), claiming that he is entitled to
21 be resentenced in L.A. County Superior Court Case No. LA079912 (“the state case”)
22 based upon the initiative known as California Proposition 57. Haney’s habeas
23 petition was docketed on July 10, 2017.
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Rule 4 of the Rules Governing Section 2254 Cases in the U.S. District Courts
25 provides that a habeas corpus petition “must” be summarily dismissed “[i]f it plainly
26 appears from the petition and any attached exhibits that the petitioner is not entitled
27 to relief in the district court.” Here, it plainly appears from the petition that petitioner
28 is not entitled to the relief he seeks because his state-law claim is not cognizable on
federal habeas review. Therefore, the Court will dismiss his petition with prejudice.
Because reasonable jurists could not disagree with this disposition, the Court will

1 deny a certificate of appealability (“COA”) and advise petitioner that he may still
2 seek a COA from the U.S. Court of Appeals for the Ninth Circuit.1
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BACKGROUND. On March 24, 2015, a Los Angeles County Superior Court

5 jury found petitioner guilty of attempted voluntary manslaughter (Cal. Penal Code
6 (“CPC”)§§ 664, 192(a)) and assault with a deadly weapon (CPC § 245(a)(1)) in the
7 State Case. (CT 135-36, 181-85; LD 5). The jury also found true allegations that
8 petitioner inflicted great bodily injury on the victim (CPC § 12022.7(a)) (“GBI
9 Enhancement(s)”) in the commission of both such offenses. (CT 135-36, 181-85; LD
10 5). Petitioner admitted having suffered a prior residential burglary conviction (Cal.
11 Penal Code § 459) which constituted a serious felony pursuant to CPC § 667(a)
12 (“Prior Serious Felony Enhancement”) and a serious and/or violent felony pursuant
13 to CPC section 667(d)) (“Strike”) under California’s Three Strikes Law (CPC §§
14 667(b)-(i), 1170.12(a)-(d)). (CT 181-85; RT 3302-04).
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Petitioner has another pending federal habeas action challenging the judgment in the State

17 Case, Haney v. Munoz, Case No. LA CV 16-09388-VBF(JC) (“First Federal Action”). This Court
18 takes judicial notice of the state-court records lodged in the First Federal Action (“LD”), which
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include the Clerk’s Transcript (“CT”) and Reporter’s Transcript (“RT”). See Fed. R. Evid. 201;
Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (court may take judicial notice
of undisputed matters of public record, including documents on file in federal or state courts).
The Court has considered whether it should construe the Petition as a motion to amend the
First Federal Petition under Woods v. Carey, 525 F.3d 886, 888-90 (9th Cir. 2008)
Scrutiny of the instant petition, however, shows that it does not challenge the judgment that
is the subject of the First Federal Action, but merely challenges the denial of his resentencing
petitions under a new state law. Cf. Magwood v. Patterson, 561 U.S. 320 (2010) (holding that the
rule prohibiting second-or-successive habeas claims does not apply to a claim challenging for the
first time a new judgment imposed after resentencing); Benson v. Chappell, 2014 WL 6389443, *3*4 (C.D. Cal. Nov. 13, 2014) (Terry Hatter Jr., J.) (petition challenging denial of request for
resentencing under Prop. 36 not barred as successive), COA denied, No. 14-56958 (9th Cir. July 9,
2015); Johnson v. Davis, 2014 WL 2586883, *2 (C.D. Cal. June 9, 2014) (James Selna, J.) (same),
COA denied, No. 14-56042 (9th Cir. Dec. 9, 2014). In any event, the Court’s separate consideration
of the instant petition prejudices no party substantively or procedurally.

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On April 28, 2015, the trial court sentenced petitioner to 19 years in state

2 prison consisting of a base upper-term sentence of 5 1/2 years on the attempted
3 manslaughter, doubled to 11 years due to the Strike, plus 3 years on the GBI
4 Enhancement and 5 years on the Prior Serious Felony Enhancement. (CT 181-85; RT
5 3315-16; LD 5). The court stayed the sentences on the assault and the corresponding
6 enhancements. (RT 3316; LD 5).
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On November 8, 2016, the voters approved The Public Safety and

8 Rehabilitation Act of 2016 – Proposition (“Prop”) 57 – and it took effect the next day.
9 People v. Marquez, 11 Cal. App. 5th 816, 821, 217 Cal. Rptr.3d 814 (Cal. App.
10 2017); Cal. Const., Art. II, § 10(a).
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Prop 57 amended the California Constitution to add Section 32 to Article

12 I, making nonviolent adult offenders “eligible for parole consideration after
13 completing the full term for [their] primary offense[s].” Cal. Const. art. I, §
14 32(a)(1). “Primary offense” is defined as “the longest term of imprisonment imposed
15 by the court for any offense, excluding the imposition of an enhancement,
16 consecutive sentence, or alternative sentence.” Cal. Const., art. I, § 32(a)(1)(A).
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Section 32 directs the Department of Corrections to adopt regulations in

18 furtherance of its provisions. Cal. Const., art. I, § 32(b). On April 13, 2017,
19 temporary emergency regulations went into effect that, inter alia, provided for the
20 referral of eligible inmates to the Board of Parole Hearings for Nonviolent Offender
21 Parole Consideration, and the release of inmates approved for nonviolent-offender
22 parole. Cal. Code Regs., tit. 15, §§ 2449.1-2449.5, 3490-93.
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On February 22, 2017, petitioner filed a habeas petition in L.A. County

24 Superior Court seeking resentencing based upon Proposition 57. See Pet at 3-4, 14.
25 On February 24, 2017, the Superior Court dismissed the petition, stating:
26 “Proposition [57] only provides an inmate who has completed his base term with a
27 hearing before the Board of Parole Hearings (Cal. Const. Art. I, Sec. 32(a)). There
28 is no resentencing option in the Superior Court.” (Pet at 4, 14-15).
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On March 13, 2017, petitioner filed a habeas petition in the California Court

2 of Appeal, seeking resentencing based upon Prop 57. On March 22, 2017, the Court
3 of Appeal denied it without comment. (Pet at 4 and 16). On June 14, 2017, petitioner
4 filed a habeas petition in the California Supreme Court, seeking resentencing based
5 upon Prop 57. On June 14, 2017, the California Supreme Court denied the petition
6 without comment. (Pet at 4, 5, and 17). This federal petition followed.
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ANALYSIS. Petitioner claims that he is entitled to be resentenced in the State

9 Case based upon Prop 57. He essentially contends that the state courts misinterpreted
10 Prop 57, that Prop 57 “eliminate[s] all sentencing enhancements imposed on
11 [petitioner] at sentencing[,]” and that he should be resentenced to 5 ½ years – the base
12 upper term on the attempted manslaughter before it was doubled based upon the
13 Strike and enhanced based upon the GBI and Prior Serious Felony. (Pet at 6-9).
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Petitioner’s claim is not cognizable on federal habeas review as it asserts

15 only a violation or misinterpretation of state law, and it is well-settled that
16 federal habeas relief is available only to state prisoners who are “in custody in
17 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
18 §§ 2241, 2254; see also Swarthout v. Cooke, 562 U.S. 216, 219, 131 S. Ct. 859
19 (2011) (per curiam) (“‘We have stated many times that federal habeas corpus relief
20 does not lie for errors of state law.’”) (citation omitted); Wilson v. Corcoran, 562 U.S.
21 1, 5, 131 S. Ct. 13 (2010) (per curiam) (“[I]t is only noncompliance with federal law
22 that renders a State’s criminal judgment susceptible to collateral attack in the federal
23 courts.”) (emphasis original); Estelle v. McGuire, 502 U.S. 62, 68, 112 S. Ct. 475
24 (1991) (“[F]ederal habeas corpus relief does not lie for errors of state law.”) (citation
25 and internal quotation marks omitted); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct.
26 3092 (1990) (a claim that a court misapplied state law to the facts of the case is not
27 cognizable on federal habeas review). See, e.g., Vardazaryan v. Chavez, 2015 WL
28 4307035, *6 n.5 (C.D. Cal. July 14, 2015) (“To the extent that Petitioner is alleging
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1 that the trial court did not properly apply state law when it denied Petitioner’s motion
2 for a new trial, Petitioner’s claim involves the application and/or interpretation of
3 state law and consequently is not cognizable on federal habeas review.”) (citing, inter
4 alia, 28 U.S.C. § 2254(a) and Smith v. Philips, 455 U.S. 209, 221 (1982) (“A
5 federally issued writ of habeas corpus, of course, reaches only convictions obtained
6 in violation of some provision of the United States Constitution.”)); Rice v.
7 Spearman, 2015 WL 1097331, *4 (C.D. Cal. Mar. 9, 2015) (George King, C.J.) (“To
8 the extent petitioner seeks habeas relief on the ground that he was wrongly denied a
9 sentence reduction under Cal[.] Penal Code § 1170.126, his claim is not
10 cognizable.”); Parker v. Bobby, 2007 WL 3340047, *7-10 (N.D. Ohio Nov. 6, 2007).
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State courts “are the ultimate expositors of state law.” Mullaney v. Wilbur,

12 421 U.S. 684, 691, 95 S. Ct. 1881 (1975). “We will ‘follow the decision of the
13 intermediate appellate courts of the State unless there is convincing evidence that the
14 highest court of the state would decide differently.’” Lone Star Security & Video, Inc.
15 v. City of Los Angeles, 827 F.3d 1192, 1199 (9th Cir. 2016) (“Lone Star Security”)
16 (quoting In re Schwarzkopf, 626 F.3d 1032, 1038 (9th Cir. 2010) (quoting Owen v.
17 US, 713 F.2d 1461, 1464 (9th Cir. 1983))).
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This Court will not review a state court’s interpretation of its own State’s

19 law unless that interpretation “is clearly untenable and amounts to a subterfuge
20 to avoid federal review of a deprivation by the state of the rights guaranteed by
21 the Constitution.” Lone Star Security, 827 F.3d at 1199 (citing Oxborrow v.
22 Eikenberry, 877 F.2d 1395, 1399 (9th Cir. 1989)); see also Knapp v. Cardwell, 667
23 F.2d 1253, 1260 (9th Cir. 1982). Petitioner Haney has not presented any evidence,
24 let alone convincing evidence, that the California Supreme Court would interpret
25 Prop 57 differently than the lower courts of California have interpreted it. Nor has
26 petitioner otherwise shown that the state courts’ interpretation of Prop 57 is clearly
27 untenable. Indeed, this Court agrees with the Superior Court that Proposition 57 did
28 not eliminate enhancements or entitle a qualifying inmate to resentencing or
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1 immediate release. Instead, it merely made qualifying inmates eligible for parole
2 consideration after completion of the full term for their primary offenses. This Court
3 need not and has not determined whether petitioner is such a qualifying inmate.
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PETITIONER HAS NOT SHOWN ENTITLEMENT TO A COA

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“Unless a circuit justice or [district] judge issues a certificate of appealability

7 , an appeal may not be taken to the court of appeals from – (A) the final order in a
8 habeas corpus proceeding in which the detention complained of arises out of process
9 issued by a state court.” 28 U.S.C. § 2253(c)(1)(A). See, e.g., Bryant v. McDonald,
10 586 F. App’x 290, 291 n.10 (9th Cir. 2014) (“We decline to consider Bryant’s claim
11 of cumulative error[,] for which no certificate of appealability issued.”) (citing
12 Rhoades v. Henry, 598 F.3d 511, 515 n.6 (9th Cir. 2010)), cert. denied, – U.S. –, 135
13 S. Ct. 2058 (2015); see also 9th Cir. R. 22-1(e) (appellants “shall brief only issues
14 certified by the district court or the court of appeals”) and 9th Cir. R. 22-1(f)
15 (appellees “need not respond to any uncertified issues”).
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The district court must issue or deny a COA when it enters a final order adverse

17 to the applicant, see Rule 11(a) of Rules Governing Sec. 2254 Cases in U.S. District
18 Courts, and a district court may deny a COA sua sponte without requiring further
19 briefing or argument. See Zepeda v. US, 2017 WL 306300, *4 (C.D. Cal. Jan. 27,
20 2017) (citing, inter alia, Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000)).
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Notwithstanding one panel’s dictum that the “substantial showing” standard

22 for a COA is “relatively low”, Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir.
23 2002)), in practice “[i]t is a ‘rare step’ for a district court to issue a COA,” McDaniels
24 v. McGrew, 2013 WL 4040058, *3 (C.D. Cal. Aug. 8, 2013) (quoting Murden v.
25 Artuz, 497 F.3d 178, 199 (2d Cir. 2007) (Hall, J., concurring in judgment)); accord
26 Singh v. US, 2015 WL 350790,*6 (E.D. Cal. Jan. 23, 2015) (Ishii, Sr. J.) (“The
27 issuance of a COA is ‘a rare step.’”) (likewise quoting Murden concurrence).
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A COA may issue “only if the prisoner shows, at least, that jurists of
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1 reason would find it debatable whether the petition states a valid claim of the
2 denial of a constitutional right.” Juarez v. Katavich, 2016 WL 2908238, *2 (C.D.
3 Cal. May 17, 2016) (quoting Slack v. McDaniel, 529 U.S. 473 484, 120 S. Ct. 1595
4 (2000), and citing 28 U.S.C. § 2253(c)(2) and Fed. R. App. P. 22(b)(1)).
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The Court is mindful that it “must resolve doubts about the propriety of

6 a COA in the petitioner’s favor.” Jennings v. Woodford, 290 F.3d 1006, 1010 (9th
7 Cir. 2002) (citing Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (en
8 banc)), but no such doubt exists here. Petitioner has not borne his burden of
9 showing that other reasonable jurists might find the California state courts’
10 interpretation of Prop 57 to be untenable and a subterfuge to avoid federal review of
11 the State’s violation of some federal constitutional right. See McKinney v. Pfeiffer,
12 2017 WL 1078441, *4 (C.D. Cal. Jan. 1, 2017) (dismissing habeas petition and
13 denying COA, court stated, “[T]o the extent petitioner is challenging the superior
14 court’s denial of his application to reduce one of his convictions to a misdemeanor
15 pursuant to Proposition 47, such claims are not cognizable on federal habeas
16 review.”), R&R adopted, 2017 WL 1073340 (C.D. Cal. Mar. 21, 2017) (John
17 Kronstadt, J.), COA denied, No. 17-55488 (9th Cir. June 9, 2017).2
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ORDER
The petition for a writ of habeas corpus is DISMISSED.

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Cf. also Kamana’o v. Frank, 450 F. App’x 631, 632-33 (9th Cir. 2011) (“We decline to grant
a COA in this matter because a substantial showing has not been made that the Hawaii Supreme
Court’s decision [on a matter of state law] was untenable or a subterfuge to avoid applying federal
law.”); Blaurock v. Kansas, No. 16-3356, – F. App’x –, 2017 WL 1454014 (10th Cir. Apr. 25, 2017)
(denying COA because there was “no room for reasonable jurists to debate that these claims allege
state-law violations that are not cognizable grounds for federal habeas relief, and that the Kansas
Court of Appeals’ decisions were not arbitrary or capricious and so did not violate Mr. Blaurock’s
constitutional rights.”); Colwell v. McKee, 2009 WL 125223, *2 (W.D. Mich. Jan. 16, 2009)
(denying COA to appeal from dismissal of habeas claim as non-cognizable claim of state-law error).

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The Court DECLINES to issue a certificate of appealability. Petitioner may

2 seek a COA from the U.S. Court of Appeals for the Ninth Circuit.3
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Final judgment shall be entered consistent with this Order. As required by Fed.

5 R. Civ. P. 58(a), the judgment will be a separate document.
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Dated: August 2, 2017

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____________________________

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Honorable Valerie Baker Fairbank
Senior United States District Judge

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20 See Rule 11(a) of Rules Governing Sec. 2254 Cases in the U.S. District Courts (stating, in pertinent
part, “If the court denies a certificate, the parties may not appeal the denial but may seek a certificate

21 from the court of appeals under [Fed. R. App. P.] 22.”);
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Fed. R. App. P. 22(b)(1) (providing, in pertinent part, “If the district judge has denied the certificate,

23 the applicant may request a circuit judge to issue it.”);
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Ninth Cir. R. 22-1(d) (“If the district court denies a COA as to all issues, petitioner may file a motion

25 for a COA in the court of appeals within 35 days of the district court’s entry of its order (1) denying
a COA in full, or (2) denying a timely filed post-judgment motion, whichever is later. If petitioner

26 does not file a COA motion with the Court of Appeals after the district court denies a COA motion
27 in full, the court of appeals will deem the notice of appeal to constitute a motion for a COA.”).
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