Sakellaridis v. Davey

Filing 29

ORDER DENYING 21 Petitioner's Motion for Relief From Judgment and DECLINING to Issue Certificate of Appealability re 23 signed by District Judge Dale A. Drozd on 1/19/2017. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VASILIS SAKELLARIDIS, 12 Petitioner, 13 ORDER DENYING PETITIONER’S MOTION FOR RELIEF FROM JUDGMENT AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY v. 14 DAVE DAVEY, 15 No. 1:15-cv-01154-DAD-EPG-HC Respondent. (Doc. Nos. 21, 23) 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 19 pursuant to 28 U.S.C. § 2254. On June 2, 2016, the assigned magistrate judge issued findings and 20 recommendation recommending the petition be dismissed for failure to state a cognizable claim 21 for federal habeas relief. (Doc. No. 16.) On June 22, 2016, petitioner lodged an amended 22 petition, which attempted to cure the deficiency set forth in the magistrate judge’s findings and 23 recommendation. (Doc. No. 17.) On September 15, 2016, finding that amendment would be 24 futile based on petitioner’s failure to exhaust his claims by first presenting them to the highest 25 state court, the court denied petitioner leave to amend the petition, dismissed the petition, and 26 entered judgment. (Doc. Nos. 19, 20.) On October 17, 2016, petitioner filed a motion for relief 27 from judgment pursuant to Federal Rule of Civil Procedure 60(b)(1), (3), and (6). (Doc. No. 21.) 28 ///// 1 1 Rule 60(b) of the Federal Rules of Civil Procedure provides: 2 On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: 3 (1) mistake, inadvertence, surprise, or excusable neglect; 4 (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); 5 6 (3) fraud (whether previously called intrinsic or extrinsic) misrepresentation, or misconduct by an opposing party; 7 (4) the judgment is void; 8 (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or 9 10 (6) any other reason that justifies relief. 11 12 Even if the court were to grant relief from judgment pursuant to Rule 60(b) and grant 13 petitioner leave to amend, petitioner has failed to state a cognizable federal habeas claim in the 14 amended petition. Petitioner contends that California Penal Code sections 2933.1 and 667.5(c) 15 violate article IV, sections 8 and 9 of the California Constitution, a claim based upon the alleged 16 violation of state law, obviously not cognizable in federal habeas. See Estelle v. McGuire, 502 17 U.S. 62, 67–68 (1991) (noting “it is not the province of a federal habeas court to re-examine state- 18 court determinations on state-law questions”). Petitioner argues that the California Department 19 of Corrections and Rehabilitation (“CDCR”) applied § 2933.1 rendering him ineligible for certain 20 worktime credits (a state-created liberty interest), and thereby violating due process. (Doc. No. 21 17 at 5.) Even assuming that California Penal Code § 2933 creates a liberty interest in these 22 credits protected by the Due Process Clause,1 petitioner does not allege the procedures by which 23 he was deprived of that interest were constitutionally insufficient. See Swarthout v. Cooke, 562 24 1 25 26 27 28 In 2010, the California legislature amended California Penal Code § 2933. The Ninth Circuit has yet to determine whether § 2933, as amended, creates a liberty interest. Edwards v. Swarthout, 597 Fed. App’x 914, 915–16 (9th Cir. 2014). The Ninth Circuit previously held that the prior version of § 2933 “did not create a liberty interest in sentence-reducing worktime credits; therefore, it could not serve as the basis of a due process claim.” Id. at 915 (citing Toussaint v. McCarthy, 801 F.2d 1080, 1094–96 (9th Cir. 1986), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472, 485–87 (1995)). 2 1 U.S. 216, 219 (2011) (“As for the Due Process Clause, standard analysis under that provision 2 proceeds in two steps: We first ask whether there exists a liberty or property interest of which a 3 person has been deprived, and if so we ask whether the procedures followed by the State were 4 constitutionally sufficient.”). Rather, petitioner merely argues that the CDCR applied a state 5 statute, which he alleges violates the California Constitution, that limited petitioner’s ability to 6 earn credit. Of course, petitioner may not “transform a state-law issue into a federal one merely 7 by asserting a violation of due process. We accept a state court’s interpretation of state law, and 8 alleged errors in the application of state law are not cognizable in federal habeas corpus.” 9 Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (citations omitted). See also Cooke, 562 10 U.S. at 219 (“We have stated many times that federal habeas corpus relief does not lie for errors 11 of state law.”) (quoting McGuire, 502 U.S. at 67). Since the amended petition would still fail to 12 state a cognizable claim for federal habeas relief, petitioner’s motion for relief from judgment 13 under Rule 60 must be denied. 14 Petitioner also seeks a certificate of appealability on this issue. (Doc. No. 23.) A state 15 prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s 16 denial of relief, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 17 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. The Ninth Circuit held that a certificate of 18 appealability “is required to appeal the denial of a Rule 60(b) motion for relief from judgment 19 arising out of the denial of a section 2255 motion.” United States v. Winkles, 795 F.3d 1134, 20 1142 (9th Cir. 2015). If a court denies a Rule 60(b) motion in a § 2255 proceeding, a certificate 21 of appealability should only issue if “(1) jurists of reason would find it debatable whether the 22 district court abused its discretion in denying the Rule 60(b) motion and (2) jurists of reason 23 would find it debatable whether the underlying section 2255 motion states a valid claim of the 24 denial of a constitutional right.” Winkles, 795 F.3d at 1143. “Given that section 2255 ‘was 25 intended to mirror § 2254 in operative effect,’ and that the language used in sections 26 2253(c)(1)(A) and (c)(1)(B) is functionally identical,” id. at 1141 (citations omitted), the court 27 will apply the standard set forth in Winkles to determine whether a certificate of appealability 28 should issue regarding the denial of petitioner’s Rule 60(b) motion for relief from judgment 3 1 arising out of the dismissal of his § 2254 petition. Here, the court finds that jurists of reason 2 would not find it debatable whether the court abused its discretion in denying the Rule 60(b) 3 motion for relief from judgment and would not find it debatable whether the underlying amended 4 petition states a valid claim of the denial of a constitutional right. Therefore, petitioner is not 5 entitled to a certificate of appealability. 6 Accordingly, for the reasons set forth above: 7 1. Petitioner’s motion for relief from judgment (Doc. No. 21) is denied; and 8 2. The court declines to issue a certificate of appealability. 9 10 IT IS SO ORDERED. Dated: January 19, 2017 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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