Eleson v. Lizarraga et al

Filing 4

ORDER to Assign District Judge to Case; FINDINGS and RECOMMENDATIONS recommending that the Petition (Doc. 1 ) be SUMMARILY DISMISSED With Prejudice signed by Magistrate Judge Jennifer L. Thurston on 9/7/2017. 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-01193-DAD-JLT (HC). 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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ERIC RICHARD ELESON,

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Petitioner,

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v.

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JOE A. LIZARRAGA, Warden, et al.,

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Respondents.

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Case No.: 1:17-cv-01193-JLT (HC)
ORDER TO ASSIGN DISTRICT JUDGE TO CASE
FINDINGS AND RECOMMENDATION TO
DISMISS PETITION
[TWENTY-ONE DAY OBJECTION DEADLINE]

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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 85 years-to-life for his conviction in Tuolumne County of

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committing lewd and lascivious acts on a child under the age of 14 years. In this petition, he

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challenges a state court decision denying his petition for modification of his sentence under

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California’s Proposition 57. Upon review of the petition, it is clear that Petitioner is not entitled to

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habeas relief. Therefore, the Court recommends that the petition be SUMMARILY DISMISSED.

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I.

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PROCEDURAL BACKGROUND
In 1995, Petitioner was convicted of lewd and lascivious acts on a child under the age of 14

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years (Cal. Penal Code § 288(a)), with two prior convictions. (Doc. 1 at 2, 27.) He was sentenced to a

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total indeterminate term of 85 years-to-life. See Eleson v. Lizarraga, Case No. 1:15-cv-00008-LJO-

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SAB-HC.1 After the enactment of California’s Proposition 57, Petitioner filed a petition for writ of

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habeas corpus in the Tuolumne County Superior Court alleging he is entitled to release because his

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convictions under California Penal Code § 288(a) are not violent felonies within the meaning of 18

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U.S.C. § 924(c)(2)(B). (Doc. 1 at 27.) On March 10, 2017, the superior court denied the petition,

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finding that § 924(c)(2)(B) was a federal statute that was inapplicable, and further finding that his

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conviction qualified as a violent felony under California Penal Code § 667.5(c)(6). (Doc. 1 at 28.)

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Petitioner then filed a habeas petition in the California Court of Appeal, Fifth Appellate District

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(“Fifth DCA”). On May 26, 2017, the Fifth DCA summarily denied the petition. (Doc. 1 at 31.)

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Petitioner filed a habeas petition in the California Supreme Court, and the petition was summarily

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denied on August 9, 2017. (Doc. 1 at 47.) He filed this federal petition on September 5, 2017. (Doc.

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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. 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 challenges the state court decision denying his petition for modification of his

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sentence. He claims California’s recently enacted Proposition 57 changed the sentencing law such

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that his conviction under Cal. Penal Code § 288(a) did not qualify as a violent felony. He also claims

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that 18 U.S.C. § 924(e)(2)(B) does not include his crimes in its definition of “violent felony.” As

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discussed below, Petitioner is not entitled to federal habeas relief.

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The Court may take judicial notice of court records. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331,
333 (9th Cir. 1993).

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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 a state sentencing

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procedure is a matter of state criminal procedure and is not within the purview of federal habeas

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corpus). Federal courts must defer to the state courts’ interpretation of state sentencing laws. Estelle

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v. McGuire, 502 U.S. 62, 67-68 (1991); Bueno v. Hallahan, 988 F.2d 86, 88 (9th Cir.1993). Absent a

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showing of fundamental unfairness, a state court's application or misapplication of its own sentencing

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laws does not generally justify federal habeas relief. Christian v. Rhode, 41 F.3d 461, 469 (9th

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Cir.1994). “So long as the type of punishment is not based upon any proscribed federal grounds such

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as being cruel and unusual, racially or ethnically motivated, or enhanced by indigency, the penalties

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for violations of state statutes are matters of state concern.” Makal v. Arizona, 544 F.2d 1030, 1035

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(9th Cir.1976).
In rejecting Petitioner’s claims, the state court noted that Proposition 57, by its terms, applies

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only to “nonviolent” felony offenses. (Doc. 1 at 28.) The court noted that a violation of Cal. Penal

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Code § 288(a) is a violent felony under California law as defined by Cal. Penal Code § 667.5(c)(6).

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(Doc. 1 at 28.) Therefore, Petitioner was convicted of a violent felony rendering Proposition 57

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inapplicable to his case. The state court’s determination that California's Proposition 57 is

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inapplicable to Petitioner’s case is binding on this court. See Bradshaw v. Richey, 546 U.S. 74, 76

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(2005) (“We have repeatedly held that a state court's interpretation of state law, including one

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announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas

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corpus”). As to Petitioner’s citation to the federal definition of violent felony in 18 U.S.C. §

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924(c)(2)(B), the state court correctly noted that Petitioner was found guilty of a state offense in a state

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court; therefore, the federal definition is of no consequence.
In light of the foregoing, Petitioner’s complaints are entirely matters of California state law,

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and Petitioner is not entitled to federal habeas relief. The Court should dismiss the petition.

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III.

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ORDER
The Clerk of Court is DIRECTED to assign a District Judge to the case.
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IV.

RECOMMENDATION

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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:

September 7, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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