Brown v. Muniz

Filing 16

ORDER Denying Petition for Writ of Habeas Corpus signed by Magistrate Judge Sheila K. Oberto on 07/07/2017. CASE CLOSED.(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ISAAC BROWN, 12 Petitioner, 13 14 No. 1:15-cv-00386-SKO HC ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. W.L. MUNIZ, Warden, 15 Respondent. 16 Petitioner Isaac Brown is a state prisoner proceeding pro se with a petition for writ of 17 18 habeas corpus pursuant to 28 U.S.C. § 2254.1 Petitioner alleges that the trial court’s enhancement 19 of his sentence on counts one and six for his use of a firearm violated his due process and equal 20 protection rights since there was only one use of a firearm in Petitioner’s commission of those 21 two crimes. Respondent counters that, although Petitioner challenged his sentence on state law 22 grounds in the state courts, he did not exhaust his federal constitutional claim. Petitioner did not 23 24 25 reply to Respondent’s answer. The Court finds that Petitioner did not raise his federal constitutional claims in state court proceedings and denies the petition. 26 27 1 28 Pursuant to 28 U.S.C. § 636(c)(1), both parties consented, in writing, to the jurisdiction of a United States Magistrate Judge to conduct all further proceedings in this case, including the entry of final judgment. 1 1 I. 2 3 4 Procedural and Factual Background 2 On July 4, 2011, Ventura returned home to find a man, later identified as Petitioner, kicking the door of her apartment. When Ventura confronted Petitioner and asked why he was kicking the door, Petitioner pointed a gun at Ventura’s head and ordered her to stop dialing 911 or 5 6 7 he would kill her. When she did not comply, Petitioner grabbed the phone and disconnected the call. He then demanded the apartment keys. Ventura claimed not to have the keys. 8 Co-defendant Amber Anderson then got out of a nearby Jeep and demanded Ventura’s 9 lunch bag while snatching it from Ventura’s shoulder. Anderson told Ventura that they would 10 11 shoot her if she screamed. Petitioner and Anderson then left in the Jeep, taking Ventura’s lunch bag with them. They threatened to return and kill Ventura if she screamed or reported the crime 12 13 14 to the police. Nonetheless, Ventura reported the crime to police and identified Petitioner and Anderson in photo line-ups. Following a jury trial in Fresno County Superior Court, Petitioner and co-defendant 15 16 Amber Anderson were convicted of multiple offenses committed in a crime spree in the summer 17 of 2011. Counts (4) second degree robbery (Cal. Penal Code § 211) and (6) dissuading a witness 18 19 from reporting a crime (Cal. Penal Code § 136.1(b)(1)) relate to their robbing and threatening Valencia. The jury found true sentencing enhancements (§ 12022.5(a)(1)) arising from 20 21 22 Petitioner’s personal use of a firearm in committing counts four and six. On April 13, 2012, the state court sentenced Petitioner to an aggregate prison term of 29 years. 23 Petitioner filed a direct appeal to the California Court of Appeal contending that the 24 sentencing court violated California Penal Code § 654 by imposing prison terms on the two 25 firearms enhancements associated with counts four and six. He did not allege that the prison 26 terms associated with the firearms enhancements violated any federal constitutional right. On 27 2 28 Background information is drawn from the California Court of Appeal’s opinion on direct appeal. See State v. Anderson, 2014 WL 31693 (Cal. App. Jan. 6, 2014) (Nos. F064733 and F064786). 2 1 January 6, 2014, the appellate court affirmed Petitioner’s convictions but ordered amendment of 2 the form of the abstract of judgment to list separately the base term, enhancements, and 3 enhancement terms on counts 4, 8, and 11. 4 On February 13, 2014, Petitioner filed a petition for review in the California Supreme 5 6 Court, alleging a single issue: “Whether the provisions of Penal Code Section 654 prohibit 7 imposition of two firearm use enhancements where there is a single act that amounts to the use of 8 a firearm during the commission of two offenses during a single incident?” See Lodged Doc. 5. 9 Again, petitioner did not raise any federal constitutional claim. On March 26, 2014, the 10 11 California Supreme Court summarily denied review. II. Petitioner Did Not Exhaust State Remedies 12 13 14 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). 15 The exhaustion doctrine is based on comity to the state court and gives the state court the initial 16 opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 17 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 18 1163 (9th Cir. 1988). 19 A petitioner can satisfy the exhaustion requirement by providing the highest state court 20 21 with a full and fair opportunity to consider each claim before presenting it to the federal court. 22 Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971); 23 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state 24 court was given a full and fair opportunity to hear a claim if the petitioner has presented the 25 highest state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365. The 26 27 petitioner must also have specifically informed the state court that he was raising a federal constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 (9th Cir. 28 3 1 2000), amended, 247 F.3d 904 (2001); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); 2 Keating v. Hood, 133 F.3d 1240, 1241 (9th Cir. 1998). 3 In the direct appeals to the state courts in this case, Petitioner never raised the federal 4 constitutional claim now alleged in his federal petition. Instead, he only sought relief under state 5 6 law, contending that his sentence was improper under California Penal Code § 654. As a result, 7 the claim alleged in the above-captioned petition is not exhausted and must be dismissed. 8 III. 9 10 11 Certificate of Appealability A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 certificate of appealability is 28 U.S.C. § 2253, which provides: (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issues or issues satisfy the showing required by paragraph (2). 28 4 1 If a court denies a habeas petition, the court may only issue a certificate of appealability 2 "if jurists of reason could disagree with the district court's resolution of his constitutional claims 3 or that jurists could conclude the issues presented are adequate to deserve encouragement to 4 proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). 5 6 Although the petitioner is not required to prove the merits of his case, he must demonstrate 7 "something more than the absence of frivolity or the existence of mere good faith on his . . . 8 part." Miller-El, 537 U.S. at 338. 9 10 11 Reasonable jurists would not find the Court's determination that the issue alleged in the federal petition is unexhausted to be debatable or wrong, or conclude that the issue presented requires further adjudication. Accordingly, the Court declines to issue a certificate of 12 13 14 appealability. IV. Conclusion and Order The Court hereby DENIES with prejudice the petition for writ of habeas corpus pursuant 15 16 to 28 U.S.C. § 2254 and declines to issue a certificate of appealability. The Clerk of Court is 17 directed to enter judgment for the Respondent. 18 19 IT IS SO ORDERED. 20 21 Dated: July 7, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 5 .

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