Johnson v. David

Filing 5

ORDER Directing Clerk of Court to Assign District Judge; FINDINGS and RECOMMENDATION to Dismiss Petition for Writ of Habeas Corpus, signed by Magistrate Judge Jennifer L. Thurston on 3/30/17. This Case Has Been Assigned to District Judge Dale A. Drozd and Magistrate Judge Jennifer L. Thurston. The New Case Number is: 1:17-cv-00399-JLT. Referred to Judge Drozd. Objections to F&R Due Within Twenty-One Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ARIAN DAVID JOHNSON,

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Petitioner,

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v.

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RON DAVID, Warden,

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Respondent.

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Case No.: 1:17-cv-00399-JLT (HC)
ORDER DIRECTING CLERK OF COURT TO
ASSIGN DISTRICT JUDGE
FINDINGS AND RECOMMENDATION TO
DISMISS PETITION FOR WRIT OF HABEAS
CORPUS
[TWENTY-ONE DAY OBJECTION DEADLINE]

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Petitioner has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming

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he should be resentenced pursuant to Cal. Penal Code § 1170.126. Because his claims are based solely

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on state law, the Court is without habeas jurisdiction. Therefore, the Court will recommend the

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petition be DISMISSED.

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I.

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PROCEDURAL HISTORY
Petitioner is currently serving a sentence of 25-years-to-life under California’s Three Strikes

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law for his conviction of two counts of battery with serious bodily injury. (Doc. No. 1 at 1.) On

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February 19, 2013, Petitioner petitioned for recall of his sentence in the Fresno County Superior Court

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pursuant to Cal. Penal Code § 1170.126(b). (Doc. No. 1 at 42.) The Fresno County Superior Court

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summarily denied the petition on March 8, 2013, finding Petitioner ineligible for resentencing, as a

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matter of state law, because his current convictions constituted serious felonies. (Doc. No. 1 at 42-43.)
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Petitioner appealed to the California Court of Appeal, Fifth District Court, which affirmed the

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judgment in a reasoned decision January 28, 2016. People v. Johnson, 244 Cal. App. 4th 384, 388

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(2016), review denied (Apr. 20, 2016). Petitioner then filed a petition for review in the California

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Supreme Court. The petition was summarily denied on April 20, 2016. (Doc. No. 1 at 2.)

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Petitioner filed this federal petition in this Court on March 20, 2017. (Doc. No. 1.)

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II.

DISCUSSION

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A. Preliminary Review of Petition

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Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary

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review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it

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plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in

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the district court . . . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory

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Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus,

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either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an

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answer to the petition has been filed.

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B. Failure to State a Cognizable Federal Claim

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The basic scope of habeas corpus is prescribed by statute. Title 28 U.S.C. § 2254(a) states:

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The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain
an application for a writ of habeas corpus in behalf of a person in custody pursuant to a
judgment of a State court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.

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(emphasis added). See also Rule 1 to the Rules Governing Section 2254 Cases in the United States

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District Court. The Supreme Court has held that “the essence of habeas corpus is an attack by a

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person in custody upon the legality of that custody . . .” Preiser v. Rodriguez, 411 U.S. 475, 484

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(1973).

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Furthermore, in order to succeed in a petition pursuant to 28 U.S.C. § 2254, Petitioner must
demonstrate that the adjudication of his claim in state court
(1) resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.

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28 U.S.C. § 2254(d)(1),(2).
It is well-settled that federal habeas relief is not available to state prisoners challenging state

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law. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have stated many times that federal habeas

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corpus relief does not lie for errors of state law); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997)

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(“alleged errors in the application of state law are not cognizable in federal habeas corpus”

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proceedings).

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Petitioner challenges the state court’s application of state sentencing laws. Such a claim does

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not give rise to a federal question cognizable on federal habeas review. Lewis v. Jeffers, 497 U.S. 764

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(1990); Sturm v. California Youth Authority, 395 F.2d 446, 448 (9th Cir. 1967) (“a state court’s

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interpretation of its [sentencing] statute does not raise a federal question”). In order to state a claim

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for relief, Petitioner must demonstrate that the state committed sentencing error, and that the error was

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“so arbitrary or capricious as to constitute an independent due process” violation. Richmond v. Lewis,

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506 U.S. 40 (1992). Petitioner has failed to demonstrate such a violation here, because on its face, the

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petition shows no sentencing error or arbitrariness.

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Cal. Penal Code § 1170.126(b) allows the sentencing court to recall sentences only for those

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prisoners whose convictions are for “a felony or felonies that [is/]are not defined as serious and/or

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violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7” and who do

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not meet one of the exclusions in Section 667.5 (e)(2)(C). Section 1192.7(c)(8) renders ineligible for

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resentencing “[a]ny felony in which the defendant inflicts great bodily injury on any person, other than

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an accomplice . . . .” In this case, Petitioner was found guilty of inflicting serious bodily injury on a

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person other than an accomplice. Johnson, 244 Cal.App.4th at 390. The state court in Johnson further

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held that “‘serious bodily injury,’ as that term is used in section 243, subdivision (d) and defined in

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section 243, subdivision (f)(4), is the equivalent of ‘great bodily injury,’ as that phrase is used in

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section 1192.7, subdivision (c)(8).” Johnson, 244 Cal. App. 4th at 387. Therefore, Petitioner was

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determined to be ineligible for resentencing. This Court is bound by the state court’s interpretation in

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Johnson of how Section 1170.126 applies to convictions such as Petitioner’s. Bradshaw v. Richey,

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548 U.S. 74, 76 (2005) (per curiam). Insofar as this Court is bound by the state court’s determination

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that no sentencing error occurred, Petitioner fails to state a cognizable federal habeas claim. The
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petition should be dismissed.

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III.

The Clerk of Court is DIRECTED to assign a district judge to the case.

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ORDER

IV.

RECOMMENDATION
Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus be

SUMMARILY DISMISSED for failure to state a claim.
This Findings and Recommendation is submitted to the United States District Court Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California. Within

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twenty-one days after being served with a copy, Petitioner may file written objections with the court

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and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling

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pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

March 30, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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