Rene Maldonado v. L. Martinez

Filing 8

ORDER TO SHOW CAUSE WHY PETITION FOR WRIT OF HABEAS CORPUS SHOULD NOT BE DISMISSED by Magistrate Judge Alicia G. Rosenberg. The court orders Petitioner to show cause, on or before March 8, 2024, why the court should not recommend dismissal of the Petition with prejudice. (see document for further details) (hr)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RENE MALDONADO, Petitioner, L. MARTINEZ, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) ) NO. CV 23-188-DDP (AGR) ORDER TO SHOW CAUSE WHY PETITION FOR WRIT OF HABEAS CORPUS SHOULD NOT BE DISMISSED Petitioner has filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”), pursuant to 28 U.S.C. § 2254, challenging denial of resentencing. On the face of the Petition, it appears the sole ground in the Petition fails to state a cognizable claim for relief. 1 I. 2 PROCEDURAL HISTORY 3 In January 2006, a Los Angeles Superior Court jury found Petitioner guilty 4 of two counts of attempted murder and two counts of being a felon in possession 5 of a firearm (Cal. Penal Code §§ 187(a), 664, & 12021(a)(1)). (Dkt. No. 1 at 2, 6 197-98 1 (Case No. PA045406).) The jury also found true the allegations that the 7 attempted murders were committed willfully, deliberately, and with premeditation; 8 that a principal personally and intentionally used and discharged a firearm within 9 the meaning of Cal. Penal Code §§ 12022.53(b), (c), (e)(1); and that all crimes 10 were committed for the benefit of a criminal street gang. (Id.) In addition, 11 Petitioner admitted to having suffered a prior conviction for a serious or violent 12 felony and admitted one prior one-year enhancement within the meaning of (Cal. 13 Penal Code § 667.5(c)). On February 28, 2006, the court sentenced Petitioner to 14 two consecutive terms of fifty-years to life. (Dkt. No. 1 at 2, 200-02.) 15 On January 22, 2007, the California Court of Appeal reversed one count of 16 being a felon in possession of a firearm and ordered Petitioner to be resentenced. 17 (See (Case No. B189920).) On April 11, 18 2007, the California Supreme Court denied a petition for review. (See id. (Case 19 No. S150426).) 20 On remand, the Superior Court reversed one of the felon in possession of a 21 firearm convictions (Count 3), recalculated pre-sentence credits, and clarified 22 Petitioner’s sentence. (Dkt. No. 1 at 206.) It appears that Petitioner did not 23 appeal but pursued various forms of collateral relief. (See 24 25 On December 20, 2007, the California Court of Appeal summarily denied a 26 habeas petition filed on November 29, 2007. (See id. (Case No. B203990).) On 27 28 1 Page citations are to the page numbers generated by the CM/ECF system in the header of the document. 2 1 June 25, 2008, the California Supreme Court summarily denied a habeas petition 2 filed on January 14, 2008. (See id. (Case No. S159921).) 3 On February 22, 2018, the California Court of Appeal granted Petitioner’s 4 writ of mandate challenging the imposition of a gang enhancement pursuant to 5 Cal. Penal Code § 186.22 and remanded to the trial court for resentencing. (See 6 id. (Case No. B287354.) On remand, the trial court resentenced Petitioner to life 7 without the possibility of parole plus a twenty-year determinate sentence for the 8 firearm enhancement (Cal. Penal Code §§ 12022.53(c), (e)(1)) for each 9 attempted murder count, with the fourteen years minimum eligibility term for each 10 attempted murder count under the “Three Strikes” law. The trial court ordered 11 the sentences to run consecutively. (Dkt. No. 1 at 211-13.) Petitioner appealed 12 and, on July 30, 2019, The Court of Appeal affirmed the conviction but once 13 again remanded the matter for the trial court to impose or strike the Cal. Penal 14 Code § 667.5(b) prior prison enhancement. (See People v. Maldonado, Case 15 No. B292272.) 16 Relevant here, on July 31, 2020, Petitioner filed a request for resentencing 17 pursuant to Cal. Penal Code § 1170.952 in the Superior Court. (Dkt. No. 1 at 18 176.) On August 26, 2020, the court summarily denied the petition and found 19 Petitioner ineligible for resentencing on two separate grounds: (1) Petitioner was 20 not convicted on the theories of felony murder or natural and probable 21 consequences; and (2) § 1170.95 does not apply to convictions for attempted 22 murder. (Id. at 229-34.) 23 On June 16, 2021, the California Court of Appeal affirmed the denial of 24 25 26 27 28 2 Effective January 1, 2019, California Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437) substantively amended certain sections of the California Penal Code to eliminate the natural and probable consequences liability for murder as it applies to aiding and abetting, and to otherwise limit the scope of the felony-murder rule. It also added section 1170.95 to the Penal Code, enabling those convicted under the theory of felony murder or murder under the natural and probable consequences doctrine to retroactively seek relief. 3 1 resentencing in an unpublished decision. (See 2 (Case No. B203783).) 3 On August 25, 2021, the California Supreme Court granted a petition for 4 review and deferred the matter pending disposition of related issues in People v. 5 Lopez, S258175. (See id. (Case No. S269959.) On December 28, 2021, the 6 matter was transferred to the Court of Appeal with directions to vacate its 7 decision and reconsider the cause in light of Senate Bill No. 775.3 (See id.) 8 On February 14, 2022, the California Court of Appeal affirmed the denial of 9 resentencing. (See id. (Case No. B308783).) The court held that Petitioner was 10 not eligible for resentencing because he was not convicted of attempted murder 11 based on felony murder, the natural and probable consequences doctrine, or any 12 other theory of liability under which malice was imputed to him based solely on 13 his participation in a crime. The court also found that denial of a request for 14 appointment of counsel was harmless error. (Dkt No. 1 at 153-61.) 15 16 17 18 On April 20, 2022, the California Supreme Court denied a petition for review. (See id. (Case No. S273666).) Petitioner constructively filed the current Petition on January 5, 2023. (Dkt. No. 1 at 240 (proof of service).) 19 II. 20 FEDERAL HABEAS REVIEW STANDARD 21 The Petition was filed after enactment of the Antiterrorism and Effective 22 Death Penalty Act of 1996 (“AEDPA”). Therefore, the Court applies the AEDPA 23 in reviewing the Petition. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). 24 A federal court may not grant a petition for writ of habeas corpus by a 25 person in state custody with respect to any claim that was adjudicated on the 26 merits in state court unless it (1) “resulted in a decision that was contrary to, or 27 28 3 California Senate Bill No. 775 amended Cal. Penal Code § 1170.95 to allow persons convicted of attempted murder to petition for resentencing. 4 1 involved an unreasonable application of, clearly established Federal law, as 2 determined by the Supreme Court of the United States”; or (2) “resulted in a 3 decision that was based on an unreasonable determination of the facts in light of 4 the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); 5 Harrington v. Richter, 562 U.S. 86, 98 (2011). 6 III. 7 DISCUSSION4 8 The Petition contains one ground for relief. Petitioner contends that the 9 Superior Court erred in denying his petition for resentencing under Cal. Penal 10 Code § 1170.95 without appointing counsel and allowing proper briefing in 11 violation of Petitioner’s rights to due process and assistance of counsel. (Dkt. No. 12 1 at 5.) 13 Federal habeas review is limited to deciding whether a judgment violates 14 the Constitution, laws, or treaties of the United States. See Estelle v. McGuire, 15 502 U.S. 62, 67-68 (1991). Generally, a claim involving only the application or 16 interpretation of California law is not cognizable on federal habeas review. See 17 28 U.S.C. § 2254(a); see also Rivera v. Illinois, 556 U.S. 148, 158 (2009) (citation 18 omitted) (An error of state law alone “‘is not a denial of due process.’”). 19 A. Last Reasoned Decision 20 For purposes of habeas review, the last reasoned state court decision is the 21 California Court of Appeal decision dated February 14, 2022 on remand from the 22 California Supreme Court and not the Superior Court’s decision on August 26, 23 2020. (Dkt. No. 1 at 153-61.) See Ylst v. Nunnemaker, 501 U.S. 797, 803 24 (1991); see also Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The California 25 Supreme Court directed the Court of Appeal to reconsider in light of Senate Bill 26 27 28 4 The Court assumes, without deciding, that denial of a petition for resentencing under Cal. Penal Code section 1170.95 petition constitutes a new intervening judgment. 5 1 775. People v. Maldonado, 2021 Cal. LEXIS 9025 (2021). As the Court of 2 Appeal noted on remand, Senate Bill 775 became effective January 1, 2022, and 3 allowed persons convicted of attempted murder to petition for resentencing. (Dkt. 4 No. 1 at 154 & n.2.) The Superior Court had issued its decision on August 26, 5 2020, before Senate Bill 775, and had held that resentencing relief was not 6 available for attempted murder convictions under the then-existing version of § 7 1170.95. (Id. at 155-56.) The Superior Court’s decision was also issued before 8 the California Supreme Court’s decision in People v. Lewis, 11 Cal. 5th 952, 957 9 (2021), which held that a petitioner is entitled to counsel as a matter of state law 10 upon the filing of a facially sufficient petition and that a petitioner alleging error 11 must show that it is reasonably probable his petition would not have been denied 12 summarily without an evidentiary hearing if he had been appointed counsel. 13 (Dkt. No. 1 at 160-61.) 14 Petitioner was represented by counsel, who submitted briefs, during the 15 proceedings before the California Court of Appeal and California Supreme Court. 16 (Id. at 10-119, 126-44, 146-52, 163-71.) 17 The California Court of Appeal held that Petitioner is not eligible for 18 resentencing as a matter of law under § 1170.95 after Senate Bill 775 because 19 he was not convicted of attempted murder based on felony murder, the natural 20 and probable consequences doctrine, or any other theory of liability under which 21 malice was imputed based solely on his participation in a crime. (Id. at 154.) 22 There is no such crime as attempted felony murder, and the judge did not instruct 23 the jury on the natural and probable consequences theory of aiding and abetting. 24 (Id. at 157, 158-59.) Rather, “the trial court instructed the jury that it could not 25 convict [Petitioner] as an aider and abettor unless the jury concluded that 26 [Petitioner] shared the perpetrator’s intent.” The instructions required that the 27 prosecution prove beyond a reasonable doubt that “‘[w]hen the defendant acted’ 28 he acted with malice aforethought,” which required “intent to kill.” Accordingly, 6 1 Petitioner “was convicted based on his own state of mind, not on any theory of 2 imputed malice.” (Id. at 159.) 3 The California Court of Appeal also held that the trial court erred under 4 state law in failing to appoint counsel for Petitioner under the subsequent decision 5 in Lewis. The California Supreme Court in Lewis held that there is no federal 6 constitutional right to counsel to pursue collateral relief from a state conviction. 7 Lewis, 11 Cal. 5th at 972-73. Under state law, a petitioner who contends he was 8 erroneously deprived of counsel in connection with a § 1170.95 petition must 9 show prejudice, namely, “‘it is reasonably probable that if [he or she] had been 10 afforded assistance of counsel his [or her] petition would not have been 11 summarily denied without an evidentiary hearing.’” Id. at 974. The California 12 Court of Appeal found that Petitioner could not satisfy his burden because he “is 13 ineligible for relief as a matter of law” and therefore the error was harmless. (Dkt. 14 No. 1 at 161.) To the extent Petitioner raises appointment of counsel in his 15 Petition in this federal court, his ground for relief is unexhausted. The petition for 16 review before the California Supreme Court did not raise the issue of appointment 17 of counsel. (Id. at 163-71.) 18 B. Failure to State Cognizable Ground for Relief 19 “There is no constitutional right to an attorney in state post-conviction 20 proceedings.” Coleman v. Thompson, 501 U.S. 722, 752 (1991), abrogated in 21 part on other grounds in Martinez v. Ryan, 566 U.S. 1, 8, 17 (2012) (holding, 22 when state requires defendant to raise ineffective assistance of counsel at trial 23 claim in collateral proceedings rather than direct appeal, procedural default will 24 not bar federal habeas court from hearing claim of ineffective assistance of 25 counsel at trial if, in initial-review collateral proceeding, petitioner had no counsel 26 or counsel was ineffective).5 27 28 5 The Supreme Court in Martinez did not establish a constitutional ruling that would create a freestanding constitutional claim. 566 U.S. at 16. 7 1 Accordingly, the failure to appoint counsel as provided in Cal. Penal Code § 2 1170.95 is “‘state law error only.’” Lewis, 11 Cal. 5th at 973. “[F]ederal habeas 3 corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 4 780 (1990); Prado v. Cueva, 2023 U.S. Dist. LEXIS 213226, *6 (E.D. Cal. Nov. 5 30, 2023) (holding claim based on failure to appoint counsel in § 1170.95 6 resentencing proceeding is not cognizable on federal habeas review). 7 To the extent Petitioner challenges denial of resentencing, Petitioner must 8 show that the alleged state sentencing error was “so arbitrary or capricious as to 9 constitute an independent due process . . . violation.” Lewis, 497 U.S. at 780 10 (1990); Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (question of 11 whether prior conviction was serious felony within meaning of state statutes does 12 not raise federal question). A habeas petitioner “may not . . . transform a 13 state-law issue into a federal one merely by asserting a violation of due process.” 14 Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). 15 The Petition does not invoke any federal basis for his resentencing 16 argument and does not show any fundamental unfairness occurred in the state 17 court’s application of its sentencing laws.6 Whether Petitioner is eligible for 18 resentencing under § 1170.95, and the procedures involved, are issues of state 19 law not cognizable on federal habeas review. See, e.g., Wilson v. Corcoran, 562 20 U.S. 1, 5 (2010) (“federal habeas corpus relief does not lie for errors of state law”) 21 Souch v. Schaivo, 289 F.3d 616, 622-23 (9th Cir. 2002) (challenge to trial court’s 22 exercise of discretion under state sentencing law fails to state federal habeas 23 claim). Federal habeas review does not permit this court to second-guess the 24 state court’s determination regarding Petitioner’s ineligibility for resentencing. 25 See, e.g., Walker v. Cal. Supreme Ct., No. CV 22-4638-CAS-E, 2022 WL 26 11337927, *2 (C.D. Cal. Sept. 13, 2022) (collecting cases), recommendation 27 28 6 Any claims based on alleged violations of California Constitution are also claims based on state law and are not cognizable on federal habeas review. 8 1 accepted by 2022 WL 11269388 (C.D. Cal. Oct. 13, 2022). This court is bound 2 by the state court’s interpretation of its laws. See Bradshaw v. Richey, 546 U.S. 3 74, 76 (2005) (per curiam) (“state court’s interpretation of state law . . . binds a 4 federal court sitting in habeas corpus”). 5 6 Accordingly, Petition does not appear to present a claim cognizable on federal habeas review. 7 IV. 8 ORDER 9 Therefore, the court orders Petitioner to show cause, on or before March 8, 10 2024, why the court should not recommend dismissal of the Petition with 11 prejudice for the reasons set forth above. If Petitioner does not respond to this 12 Order to Show Cause, the magistrate judge will recommend that the Court 13 dismiss the Petition with prejudice. 14 15 16 DATED: February 5, 2024 ALICIA G. ROSENBERG United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 9

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