Joshua T Woolridge v. Aref Fakhoury

Filing 3

ORDER DISMISSING PETITION WITHOUT PREJUDICE; AND DENYING; CERTIFICATE OF APPEALABILITY by Judge Manuel L. Real. (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOSHUA T. WOOLRIDGE,

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Petitioner,
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v.
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WARDEN AREF FAKHOURY,
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Respondent.
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___________________________________)

NO. EDCV 12-62-R (MAN)

ORDER:

DISMISSING PETITION

WITHOUT PREJUDICE; AND DENYING
CERTIFICATE OF APPEALABILITY

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On January 12, 2012, Petitioner, a California prisoner, filed a

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habeas petition pursuant to 28 U.S.C. § 2254 (“Petition”).

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the Rules Governing Section 2254 Cases in the United States District

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

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

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attached exhibits that the petitioner is not entitled to relief in the

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district court.”

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Petition is not cognizable and could not state a basis for federal

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habeas relief even if amendment were allowed.

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must be dismissed.

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Rule 4 of

Here, it plainly appears that the claim raised in the

Therefore, the Petition

BACKGROUND

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The instant Petition is Petitioner’s fifth Section 2254 petition

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filed in this Court stemming from his 2005 state court conviction and

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sentence (the “Conviction”).

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habeas petition that was assigned Case No. EDCV 07-1482-R (MAN) (the

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“First Action”).

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Section 2254 habeas petition stemming from the Conviction, which was

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assigned Case No. EDCV 08-1237-R (MAN).

On November 9, 2007, Petitioner filed a

On September 10, 2008, Petitioner filed a second

The second petition raised two

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claims attacking a restitution fine imposed in connection with the

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Conviction.

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petition be construed as a motion to amend the First Action Petition,

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and the separate second petition action was dismissed.

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2009, Petitioner submitted a third Section 2254 petition stemming from

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the Conviction, which alleged five claims.

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construed as a motion to amend the First Action petition.

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as so amended, the First Action petition was deemed to include all 16

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claims

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Petitioner arising from the Conviction.

On November 24, 2008, the Court ordered that the second

alleged

in

the

three

Section

On April 9,

The third petition also was

2254

petitions

Accordingly,

submitted

by

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The First Action was resolved on the merits, and habeas relief was

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denied by Judgment entered on May 18, 2010.

Petitioner appealed to the

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United States Court of Appeals for the Ninth Circuit, and a certificate

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of appealability was denied on July 30, 2010 (Case No. 10-56078).1

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Pursuant to Rule 201 of the Federal Rules of Evidence, the
Court takes judicial notice of the files for Petitioner’s cases in this
district, as well as the dockets for the Ninth Circuit available
electronically through the PACER system.
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On May 11, 2011, Petitioner filed a fourth Section 2254 petition in

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this district, in which he alleged a single instructional error claim.

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See petition filed in Case No. CV 11-752-R (MAN).

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Judgment was entered dismissing the 11-752 action without prejudice, on

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the ground that the petition was second or successive.

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not appeal.

On May 24, 2011,

Petitioner did

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PETITIONER’S HABEAS CLAIM

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Petitioner alleges that, after he was convicted and sentence was

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imposed, the California Legislature modified a statute pertaining to

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both pre-sentence and post-sentence custody credits, i.e., California

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Penal Code § 4109.

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application of that amended statute, so as to alter the custody credits

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determination made in 2005, when he was sentenced.

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the failure to apply the statute retroactively to him a federal due

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process violation.

He contends that he is entitled to a retroactive

Petitioner labels

(Petition at 5.)

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DISCUSSION

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It is well-settled that federal habeas relief is available only to

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state prisoners who are “in custody in violation of the Constitution or

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laws or treaties of the United States.”

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also

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(1991)(same); Smith v. Phillips, 455 U.S. 209, 221, 102 S. Ct. 940, 948

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(1982)(federal habeas courts “may intervene only to correct wrongs of

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constitutional

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constitutional violation, “it is not the province of a federal habeas

Estelle

v.

McGuire,

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dimension”).

U.S.

62,

Absent

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28 U.S.C. §§ 2241, 2254; see
68,

an

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S.

Ct.

independent

475,

480

federal

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court to re-examine state-court determinations on state-law questions.”

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Estelle, 502 U.S. at 68, 112 S. Ct. at 480; Little v. Crawford, 449 F.3d

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1075, 1083 n.6 (9th Cir. 2006)(observing that a showing of a possible

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“‘variance with the state law’” does not constitute a federal question,

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and that federal courts “‘cannot treat a mere error of state law, if one

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occurred, as a denial of due process; otherwise, every erroneous

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decision by a state court on state law would come here as a federal

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constitutional question’”; citation omitted); Bonin v. Calderon, 59 F.3d

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815, 841 (9th Cir. 1995)(violation of a “state law right does not

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warrant habeas corpus relief”).

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Generally, a challenge to a state court’s application of state

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sentencing laws does not create a federal question cognizable on federal

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habeas review.

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Ct. 3092, 3102 (1990); Campbell v. Blodgett, 997 F.2d 512, 522-24 (9th

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Cir. 1992)(“As the Supreme Court has stated time and again, federal

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habeas corpus relief does not lie for errors of state law.”); Miller v.

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Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989).

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fundamental unfairness, a state court’s misapplication of its own

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sentencing laws does not justify federal habeas relief.”

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Rhode,

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Demosthenes, 37 F.3d 504, 506 (9th Cir. 1994)(petitioner’s claim that

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the

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cognizable in federal habeas); Hendricks v. Zenon, 993 F.2d 664, 674

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(9th Cir. 1993)(defendant’s claim that state court was required to merge

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his convictions was not cognizable).

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habeas claim based on an alleged sentencing error by a state court, a

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habeas petitioner must show that the asserted sentencing error was “‘so

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state

See, e.g., Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.

F.3d

court

461,

469

erred

in

(9th

Cir.

imposing

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1994);

see

consecutive

“Absent a showing of

also

Christian v.
Cacoperdo

sentences

was

v.

not

To state a cognizable federal

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arbitrary or capricious as to constitute an independent due process’”

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violation.

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(1992)(citation omitted).

Richmond v. Lewis, 506 U.S. 40, 50, 113 S. Ct. 528, 536

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Petitioner’s entitlement to a retroactive application of California

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Penal Code § 4109 is unclear at this time.

Even the most cursory

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research reveals that the California Courts of Appeal have wrestled with

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this issue and have reached contradictory conclusions.

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last month, the Second Appellate District of the California Court of

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Appeal (the district in which Petitioner was convicted) opined that the

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amended version of Section 4109 may not be applied retroactively to

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California prisoners, such as Petitioner, whose convictions were final

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when the amendment took effect.

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(Cal. App. 2 Dist. Dec. 16, 2011).2

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District found the amended version of Section 4109 to be retroactively

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applicable.

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4, 2012).

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cases involving the issue of the retroactive applicability of the

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amendment to Section 4109.

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California Supreme Court has granted review of the issue and will have

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the final say on the matter.”)(citing ten cases in which review has been

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granted); Florez, 2011 WL 6276122, at *2 n.2 (“California courts are

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divided on the retroactive application of the . . . amendment and the

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issue is now before the Supreme Court.”)(citing cases in which review

For example,

See People v. Florez, 2011 WL 6276122
More recently, the Fourth Appellate

See People v. Hirk, 2012 WL 12869 (Cal. App. 4 Dist. Jan.

The California Supreme Court has granted review in numerous

See Hirk, 2012 WL 12869, at *3 (“The

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Under California Rule of Court 8.1115, the Florez decision and
the other California decision cited herein are not citable in the
California courts, because they are unpublished. The Court cites them
not for precedential value but, rather, simply to provide examples of
the conflicting opinions that exist at this time.
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has been granted).

Thus, Petitioner’s asserted right to have the

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amended version of Section 4109 applied to amend retroactively his 2005

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custody credits determination is an open question under California law.

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The Court has construed the Petition as liberally as possible.

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Having done so, it is evident that the Petition’s allegations set forth

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only a claim of state law error and do not state any cognizable basis

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for federal habeas relief.

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benefit of a state law that may be found not to apply to him.

Petitioner claims to be entitled to the
Any right

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Petitioner may have to a retroactive application of Section 4109 is an

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issue still to be resolved by the California Supreme Court.

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cannot render an opinion on this state law issue, much less determine

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how

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California sentencing law.

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supplant the state courts’ power to interpret state law.

California

law

should

be

resolved

on

this

open

This Court

question

of

Federal habeas review does not exist to

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Given that the question of whether Section 4109 may be applied

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retroactively to California prisoners is the subject of contradictory

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state court opinions and is now pending before the California Supreme

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Court, the denial to Petitioner of a retroactive application of the

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statute cannot be found to be erroneous, arbitrary, capricious, or

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fundamentally unfair, nor does it implicate any federal constitutional

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concern.

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this purely state law issue as a “due process” violation -- necessarily

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fails.

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petitioner may not “transform a state-law issue into a federal one

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merely by asserting a violation of due process,” and “alleged errors in

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the application of state law are not cognizable in federal habeas

Petitioner’s attempt to create a federal claim -- by labeling

See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997)(a

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corpus” proceedings).

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The Petition, on its face, shows that Petitioner is not entitled to

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relief, and thus, summary dismissal is required pursuant to Rule 4.

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Accordingly, IT IS ORDERED that:

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prejudice; and Judgment shall be entered dismissing this action without

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prejudice.

the Petition is dismissed, without

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In addition, pursuant to Rule 11(a) of the Rules Governing Section

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2254

Cases

in

the

United

States

District

Courts,

the

Court

has

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considered whether a certificate of appealability is warranted in this

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case.

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85,

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certificate of appealability is unwarranted, and thus, a certificate of

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appealability is DENIED.

See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484-

120

S.

Ct.

1595,

1604

(2000).

The

Court

concludes

that

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DATED: Jan. 23, 2012

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MANUEL L. REAL
UNITED STATES DISTRICT JUDGE

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PRESENTED BY:

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MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE

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a