White v. Hatton

Filing 6

FINDINGS and RECOMMENDATIONS recommending that the Petition (Doc. 1 ) be Summarily Dismissed With Prejudice signed by Magistrate Judge Jennifer L. Thurston on 7/13/2017. Referred to Judge Drozd. Objections to F&R due within twenty-one (21) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT J. WHITE,

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Petitioner,

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v.

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SHAWN HATTON, Warden,

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Respondent.

) Case No.: 1:17-cv-00842-DAD-JLT (HC)
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) FINDINGS AND RECOMMENDATION TO
) DISMISS PETITION
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Petitioner is currently in the custody of the California Department of Corrections and

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Rehabilitation serving a sentence of 26 years-to-life for his conviction in Kern County of possession of

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a handgun by a felon and possession of ammunition by a felon. In this petition, he challenges a state

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court decision denying his petition for recall of sentence under California’s Proposition 36. Upon

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review of the petition, it is clear that Petitioner is not entitled to habeas relief. Therefore, the Court

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recommends that the petition be SUMMARILY DISMISSED.

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I.

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PROCEDURAL BACKGROUND
In 2003, Petitioner was convicted by a jury trial of possession of a firearm and ammunition

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after having been previously convicted of a violent felony, with two prior strike convictions. People v.

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White, 2017 WL 56881, at *1 (Cal. Ct. App. Jan. 5, 2017), review denied (Mar. 22, 2017). He was

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sentenced to a third strike term of 25 years-to-life, plus a one-year enhancement. Id. After the
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enactment of California’s Proposition 36 (Cal. Penal Code § 1170.126), Petitioner filed a petition for

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recall of his sentence, and argued he was eligible for resentencing because he was not convicted of a

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serious or violent felony. Id. The superior court denied the petition, finding Petitioner statutorily

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ineligible. Id. Specifically, the court reviewed the record and determined that Petitioner had been

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armed with a firearm and not merely in possession of a firearm, thereby rendering him ineligible. Id.

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Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth DCA”).

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On January 5, 2017, the Fifth DCA affirmed the superior court’s judgment. Id. Petitioner petitioned

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for review to the California Supreme Court, but review was denied on March 22, 2017. Id.

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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. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001).

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B.

Failure to State a Cognizable Federal Claim

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Petitioner raises two claims challenging the state court decision denying his petition for recall

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of his sentence. In his first claim, he alleges the state court erred in rendering its decision, because it

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found facts by utilizing the preponderance of evidence standard rather than the mandated beyond a

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reasonable doubt standard. In his second claim, he contends he is constitutionally entitled to a jury

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trial on any factual findings concerning his third strike sentence. He argues the state court erred by

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making its own factual findings rather than by submitting that determination to a jury. As discussed

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below, Petitioner is not entitled to federal habeas relief on either claim.

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Federal collateral review of a state criminal conviction is limited to determining whether a

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petitioner's federal constitutional or other federal rights have been violated and does not extend to

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review of a state's application of its own laws. Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir.1990);
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Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (recognizing that the decision whether to

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impose sentences concurrently or consecutively is a matter of state criminal procedure and is not

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within the purview of federal habeas corpus). Federal courts must defer to the state courts’

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interpretation of state sentencing laws. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Bueno v.

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Hallahan, 988 F.2d 86, 88 (9th Cir.1993). Absent a showing of fundamental unfairness, a state court's

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application or misapplication of its own sentencing laws does not generally justify federal habeas

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relief. Christian v. Rhode, 41 F.3d 461, 469 (9th Cir.1994). “So long as the type of punishment is not

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based upon any proscribed federal grounds such as being cruel and unusual, racially or ethnically

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motivated, or enhanced by indigency, the penalties for violations of state statutes are matters of state

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concern.” Makal v. Arizona, 544 F.2d 1030, 1035 (9th Cir.1976).
A criminal defendant is entitled to a trial by jury and to have every element necessary to

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sustain his conviction proven by the state beyond a reasonable doubt. U.S. Const. amends. V, VI,

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XIV. In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the United States Supreme Court held

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that the Due Process Clause of the Fourteenth Amendment requires any fact other than a prior

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conviction that “increases the penalty for a crime beyond the prescribed statutory maximum” to be

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“submitted to a jury and proved beyond a reasonable doubt.” In Blakely v. Washington, 542 U.S. 296,

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303-04 (2004), the United States Supreme Court decided that a defendant in a criminal case is entitled

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to have a jury determine beyond a reasonable doubt any fact that increases the statutory maximum

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sentence, unless the fact was admitted by the defendant or was based on a prior conviction. The

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Supreme Court also clarified the definition of “statutory maximum” for purposes of this constitutional

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rule by stating: “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose

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after finding additional facts, but the maximum he may impose without any additional facts.” Id. In

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United States v. Booker, 543 U.S. 220 (2005), the United States Supreme Court applied Blakely to the

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Federal Sentencing Guidelines. The court again clarified that “‘the statutory maximum’ for Apprendi

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purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the

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jury verdict or admitted by the defendant.” Id. at 232. Citing the decisions in Apprendi and Blakely,

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the Supreme Court in Cunningham v. California, 549 U.S. 270, 288-89 (2007), held that California's

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Determinate Sentencing Law violates a defendant's right to a jury trial to the extent it permits a trial
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court to impose an upper term based on facts found by the court rather than by a jury. The court

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determined that “the middle term prescribed in California's statutes, not the upper term, is the relevant

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statutory maximum.” Id. at 288. The Ninth Circuit has subsequently held that Cunningham may be

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applied retroactively on collateral review. Butler v. Curry, 528 F.3d 624, 639 (9th Cir. 2008).

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In rejecting Petitioner’s claims, the Fifth DCA found that the Sixth Amendment was not

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implicated under Supreme Court precedent, because California’s Proposition 36 is a sentence

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“reduction” rather than the statutory maximum for the relevant offense. White, 2017 WL 56881, at *8

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(citing People v. Osuna, 225 Cal.App.4th 1020, 1040 (2014) (“court's determination [] that defendant

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was armed with a firearm during the commission of his current offense did not increase the penalty to

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which defendant was already subject, but instead disqualified defendant from an act of lenity”)). The

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state court’s determination concerning California's Proposition 36 is binding on this court. See

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Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court's

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interpretation of state law, including one announced on direct appeal of the challenged conviction,

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binds a federal court sitting in habeas corpus”). Therefore, petitioner's prison sentence did not exceed

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the statutory maximum for his crimes and is not prohibited by the rule of law established in Apprendi,

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Cunningham, or Blakely. Therefore, the state appellate court's decision rejecting petitioner's claims

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was not contrary to or an unreasonable application of federal law and may not be set aside. See

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Lockyer, 538 U.S. at 75; Williams, 529 U.S. at 413.

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Turning to Petitioner's specific claims concerning the standard of proof and the right to a jury

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trial on facts concerning his third strike sentence, it is clear Petitioner is not entitled to habeas relief.

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No Supreme Court precedent, or authority from the Ninth Circuit, has held that a California trial court

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cannot make its own factual determinations when refusing to grant a prisoner's petition for recall and

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re-sentencing under P.C. § 1170.126, or that a trial court's making such factual determinations in

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denying a prisoner's request for a reduced sentence violates Apprendi. Where no “clearly established

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federal law” in the form of a Supreme Court holding “squarely establishes” an applicable rule, or

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“squarely addresses” the issue raised, a federal habeas court must defer to the state courts' denial of

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such a claim because such a denial cannot be “contrary to, nor an unreasonable application of” non-

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existent Supreme Court precedent. Knowles v. Mirzayance, 556 U.S. at 121–23 (holding that it is not
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an “unreasonable application of clearly established Federal law” for state court to decline to apply

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specific legal rule that has not been “squarely established” by the Supreme Court); see also Wright v.

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Van Patten, 552 U.S. 120, 125–26 (2008) (where Supreme Court cases do not “squarely address” or

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give clear answer to federal habeas question presented, it cannot be said that state court unreasonably

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applied clearly established federal law); Carey v. Musladin, 549 U.S. 70, 76 (2006) (where Supreme

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Court has never applied existing precedents to precise facts, and proposed issue is an “open question”

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in Supreme Court jurisprudence, habeas relief not available under AEDPA).
Moreover, the United States Supreme Court has already concluded that its opinions regarding a

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defendant's Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt

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do not apply to limits on downward sentence modifications due to intervening laws. Dillon v. United

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States, 560 U.S. 817, 828 (2010). At issue in Dillon was a modification to the federal sentencing

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guideline range for the offense of which the defendant was convicted. The Supreme Court noted that

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the modification “represented a congressional act of lenity.” Id. The Court stated that the proceedings

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at issue in Dillon did not implicate the Sixth Amendment because any determination by the judge

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would not serve to increase the prescribed range of punishment. Id. The statute simply authorized a

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limited adjustment to an otherwise final sentence. Id. at 826. The Court stated:
Taking the original sentence as given, any facts found by a judge at a [downward
modification] proceeding do not serve to increase the prescribed range of punishment;
instead, they affect only the judge's exercise of discretion within that range. ‘[J]udges in
this country have long exercised discretion of this nature in imposing sentence within
[established] limits in the individual case,’ and the exercise of such discretion does not
contravene the Sixth Amendment even if it is informed by judge-found facts.

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Id. at p. 828-29 (quoting Apprendi, 530 U.S. at 481).

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In light of the foregoing, including that California's Proposition 36 re-sentencing scheme does

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not violate Apprendi and its progeny, and the procedures utilized by a re-sentencing court are wholly

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matters of California state law, Petitioner is not entitled to habeas relief. The Court should dismiss the

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petition.

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III.

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RECOMMENDATION
Accordingly, the Court RECOMMENDS that the petition be SUMMARILY DISMISSED

with prejudice.
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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:

July 13, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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