Samuel Perez v. Vasquez

Filing 15

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Andrew J. Guilford for Report and Recommendation (Issued) 14 . The Court accepts and adopts the Magistrate Judge's Report and Recommendation. IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice. (Attachments: # 1 Report and Recommendation) (dml)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SAMUEL PEREZ,

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Petitioner,
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v.
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VASQUEZ, (Warden),
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Respondent.
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______________________________)

NO. ED CV 17-716-AG(E)

REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE

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This Report and Recommendation is submitted to the Honorable

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Andrew J. Guilford, United States District Judge, pursuant to

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28 U.S.C. section 636 and General Order 05-07 of the United States

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District Court for the Central District of California.

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PROCEEDINGS

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On April 14, 2017, Petitioner filed a “Petition Under 28 U.S.C. §

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2254 for Writ of Habeas Corpus by a Person in State Custody” (“the

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Petition”).

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did not file a Reply within the allotted time.

On July 21, 2017, Respondent filed an Answer.

Petitioner

See “Order Requiring

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Answer, etc.,” filed April 19, 2017.

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BACKGROUND

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In 1998, a felony complaint filed in Superior Court charged

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Petitioner with several crimes, including a violation of California

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Penal Code section 597(a) (Lodgment 1 at 3).1

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that “every person who maliciously and intentionally maims, mutilates,

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tortures, or wounds a living animal, or maliciously and intentionally

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Section 597(a) provides

kills an animal, is guilty of a crime. . . .”

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At Petitioner’s preliminary hearing in 1999, a California Highway

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Patrol officer testified that Petitioner fled from a traffic stop on

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October 18, 1998 (Lodgment 20, Exhibit A at 5-8).

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Petitioner abandoned his vehicle and proceeded on foot (id. at 8).

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The officer testified that, soon thereafter, the officer spoke with

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Steven Rolfe, a person who lived in the vicinity where Petitioner had

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abandoned his vehicle (id. at 9).

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evidence of what Rolfe said to the officer (id.).

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been in his backyard with his wife and his dog when Petitioner jumped

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over the fence and into the backyard (id.).

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dog ran toward Petitioner, Rolfe heard a loud bang and then Rolfe saw

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Petitioner running away with a large black gun in Petitioner’s hand

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(id.).

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During this flight,

The officer related hearsay
Rolfe said he had

According to Rolfe, the

According to Rolfe, the dog died of a gunshot wound (id.).

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The Court references the internal page numbers within the
lodgments rather than the ECF page numbers.
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Later in 1999, Petitioner pled guilty to the section 597(a)

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charge (Lodgment 1 at 16; Lodgment 20, Exhibit C).

In the absence of

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any objection, the Superior Court used the preliminary hearing

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evidence as the factual basis for Petitioner’s plea (Lodgment 20,

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Exhibit C at 29).

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years to life (Lodgment 1 at 32).

Petitioner received a Three Strikes sentence of 30

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In 2012, California voters approved Proposition 36, which amended

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California Penal Code sections 667 and 1170.12 and added California

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Penal Code section 1170.126.

Proposition 36 thereby rendered eligible

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for resentencing some defendants whose current Three Strikes sentences

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had not been imposed for an offense deemed “serious and/or violent.”

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See Cal. Penal Code § 1170.126.

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Proposition 36 resentencing, however, if “[d]uring the commission of

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the current offense, the defendant used a firearm, was armed with a

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firearm or deadly weapon, or intended to cause great bodily injury to

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another person.”

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1170.12(c)(2)(C)(iii), 1170.126(e)(2).

A defendant is not eligible for

Cal. Penal Code §§ 667(e)(2)(C)(iii),

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The California state courts ruled that Petitioner is not eligible

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for Proposition 36 resentencing (Lodgments 11, 15, 23, 27).

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the California Court of Appeal ruled that Petitioner “is clearly not

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eligible for resentencing relief based on his use of a firearm . . .

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he shot and killed a dog with a gun” (Lodgment 11 at 2-5).

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the California Court of Appeal held that its 2014 ruling was res

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judicata on the issue of Petitioner’s ineligibility for Proposition 36

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resentencing (Lodgment 23).

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In 2014,

In 2016,

The present Petition argues that the state courts’ decisions

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violated various precepts of California state law, including:

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California Government Code section 68081 which supposedly prohibits

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appellate decisions on unbriefed issues; California state procedural

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law which supposedly requires the granting of leave to amend appellate

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briefing; California common law policy considerations which supposedly

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limit the proper application of res judicata; and California state

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evidentiary law principles which supposedly exclude inadmissible

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hearsay evidence from any Proposition 36 analysis.

The Petition does

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not expressly invoke any federal legal theory.

The Petition does not

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expressly reference any federal law authority (other than the

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caption’s pre-printed reference to 28 U.S.C. section 2254).

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DISCUSSION

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Federal habeas corpus relief may be granted “only on the ground

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that [Petitioner] is in custody in violation of the Constitution or

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laws or treaties of the United States.”

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conducting habeas review, a court may determine the issue of whether

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the petition satisfies section 2254(a) prior to, or in lieu of,

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applying the standard of review set forth in section 2254(d).

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v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

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reasons discussed below, the present Petition fails to satisfy section

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2254(a).

28 U.S.C. § 2254(a).

In

Frantz

For the

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The Petition exclusively alleges violations of California state

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law.

Federal habeas relief is unavailable for mere violations of

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state law.

See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see
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also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (“it is

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only noncompliance with federal law that renders a State’s criminal

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judgment susceptible to collateral attack in the federal courts”)

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(original emphasis); Hendricks v. Vasquez, 974 F.2d 1099, 1105 (9th

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Cir. 1992) (“Federal habeas will not lie for errors of state law”);

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cf. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996), cert.

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denied, 522 U.S. 881 (1997) (habeas petitioner may not transform a

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state law issue into a federal law issue merely by affixing a “due

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process” label to the state law issue).

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Even if this Court were to construe Petitioner’s allegations as

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implicitly involving federal constitutional claims, federal habeas

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relief would be unavailable.

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regarding the alleged violation of California state law equates to a

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violation of federal due process.

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available to redress alleged procedural errors in state post-

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conviction proceedings.”

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Cir. 1998), cert. denied, 526 U.S. 1123 (1999); see Franzen v.

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Brinkman, 877 F.2d 26, 26 (9th Cir.), cert. denied, 493 U.S. 1012

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(1989) (“a petition alleging errors in the state post-conviction

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review process is not addressable through habeas corpus proceedings”);

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accord Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997), cert.

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denied, 525 U.S. 903 (1998).

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errors in the state appeals process.

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4590740, at *23 (C.D. Cal. Aug. 28, 2013) (applying Franzen v.

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Brinkman to a claim alleging that the California Supreme Court’s

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denial of a petition for review was procedurally improper); Madrid v.

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Marshall, 1995 WL 91329, *2 (N.D. Cal. Jan. 30, 1995), aff’d, 99 F.3d

None of Petitioner’s various claims

“[F]ederal habeas relief is not

Ortiz v. Stewart, 149 F.3d 923, 939 (9th

This rule applies to alleged procedural

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See Paniagua v. Gipson, 2013 WL

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1146 (9th Cir. 1996) (unpublished table opinion), cert. denied, 519

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U.S. 1130 (1997) (“Petitioner alleges that the California Court of

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Appeal erred in striking his supplemental brief contesting issues his

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appellate counsel would not raise.

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error in the state post-conviction review process do not represent an

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attack on his detention, they are not addressable through habeas

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corpus proceedings”) (citing Franzen v. Brinkman).

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California state courts erred under California procedural law in any

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of the various respects alleged by Petitioner, federal habeas relief

Because Petitioner’s assertions of

Thus, even if the

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would be unavailable.

See id.; see also Fong v. Arnold, 2016 WL

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1572951, at *2 (N.D. Cal. April 14, 2016) (alleged violation of

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California Government Code section 68081 cannot warrant federal habeas

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relief); Krukow v. Adams, 2010 WL 4916428, at *17 (N.D. Cal. Nov. 23,

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2010) (same); Wilson v. Parker, 2007 WL 2071786, at *8 (N.D. Miss.

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July 18, 2007) (state court’s allegedly erroneous application of res

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judicata does not raise a federal law issue cognizable on federal

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habeas corpus review).

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Finally, the state courts’ alleged reliance on hearsay evidence

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to prove Petitioner’s ineligibility for Proposition 36 resentencing

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does not violate the federal constitution.

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sentencing proceedings, the federal constitution permits courts to

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rely on hearsay evidence.

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246-52 (1949) (due process clause does not prohibit the use of hearsay

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evidence in sentencing proceedings); United States v. Littlesun, 444

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F.3d 1196, 1199-1200 (9th Cir.), cert. denied, 549 U.S. 885 (2006)

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(confrontation clause does not prohibit the use of hearsay evidence in

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sentencing proceedings); see also United States v. Chee, 110 F.3d

Even during initial

See Williams v. New York, 337 U.S. 241,

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1489, 1492 (9th Cir. 1997) (“Generally, hearsay is fully admissible at

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sentencing.”).

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RECOMMENDATION

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For all of the foregoing reasons, IT IS RECOMMENDED that the

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Court issue an Order:

(1) accepting and adopting this Report

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and Recommendation; and (2) directing that Judgment be entered denying

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and dismissing the Petition with prejudice.2

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DATED: August 16, 2017.

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/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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As the foregoing discussion demonstrates, the Petition
should be denied because Petitioner is not “in custody in violation
of the Constitution or laws or treaties of the United States,”
within the meaning of section 2254(a) of Title 28 U.S.C. The Court
need not and does not reach the issue of whether the Petition also
should be denied on the alternative ground that the Petition fails
to satisfy the requirements of section 2254(d) of Title 28 U.S.C.
See Frantz v. Hazey, 533 F.3d at 736-37; Villafuerte v. Stewart,
111 F.3d 616, 622 n.2 (9th Cir. 1997), cert. denied, 522 U.S. 1079
(1998).
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NOTICE
Reports and Recommendations are not appealable to the Court of

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Appeals, but may be subject to the right of any party to file

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objections as provided in the Local Rules Governing the Duties of

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Magistrate Judges and review by the District Judge whose initials

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appear in the docket number.

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Federal Rules of Appellate Procedure should be filed until entry of

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the judgment of the District Court.

No notice of appeal pursuant to the

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If the District Judge enters judgment adverse to Petitioner, the

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District Judge will, at the same time, issue or deny a certificate of

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appealability.

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and Recommendation, the parties may file written arguments regarding

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whether a certificate of appealability should issue.

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Within twenty (20) days of the filing of this Report