Boggess v. Evans

Filing 41

ORDER signed by Senior Judge Consuelo B. Marshall on 12/6/2012 ORDERING that Petitioner's 35 "Motion requesting review of 7/26/11 resentence" is DENIED. (Zignago, K.)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11
12

DANIEL DUANE BOGGESS,
PETITIONER,

13
14
15

V.
MIKE EVANS,

16
17

RESPONDENT.

)
)
)
)
)
)
)
)
)
)
)
)
)

No. CV 06-1275 CBM (HC)
ORDER DENYING PETITIONER’S
“MOTION REQUESTING REVIEW OF
JULY 28, 2011 RESENTENCE”

18
19

The matter before this Court is Petitioner Daniel Duane Boggess’

20

(“Petitioner”) Motion Requesting Review of July 28, 2011 Resentence

21

(“Motion”). [Docket No. 35.] The Court DENIES the Motion for lack of subject

22

matter jurisdiction.

23

FACTUAL AND PROCEDURAL BACKGROUND

24

The lengthy factual and procedural history of this matter is more fully

25

summarized in this Court’s prior Order of June 20, 2011 and will not be repeated

26

herein except as necessary to clarify the discussion and ruling. In 2003, Petitioner

27

entered a no contest plea, pursuant to a plea agreement, to various offenses related

28
1

1

to sexual activity with a minor.1 On October 6, 2003, the state trial court

2

sentenced Petitioner to state prison for the upper term of ten years pursuant to

3

California’s Determinate Sentencing Law (“DSL”).

4

Following various appeals, and after Petitioner exhausted the remedies

5

available to him through the California state courts, Petitioner filed a Petition for

6

Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the “Petition”) in the

7

Eastern District of California on June 12, 2006, seeking to have his sentence

8

vacated and a reduced sentence imposed. This Court granted in part and denied in

9

part the Petition, holding that the imposition of an upper-term sentence violated

10

Petitioner’s constitutional rights but that the imposition of consecutive sentences

11

did not violate Petitioner’s constitutional rights. This Court further ordered

12

Respondent to treat Petitioner’s total sentence as a middle-term eight-year

13

sentence, unless within 30 days of the June 20 Order, Petitioner was resentenced

14

in compliance with Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny,

15

including Cunningham v. California, 549 U.S. 270 (2007).

16

Petitioner appeared in California Superior Court on July 20, 2011 for

17

resentencing, thirty days after the June 20 Order. (Response to Petitioner’s

18

Motion (“Opposition”), Ex. 4, Docket No. 37-4). At the July 20, 2011

19

resentencing, the presiding judge appointed counsel from the Public Defender’s

20

Office to represent Petitioner and noted that “what I have to do is contact the

21

presiding judge and see . . .where does she want to assign [the resentencing

22

proceeding].” (Opposition, Ex. 4 at 1:15-18.) The presiding judge further noted

23

that he needed time to familiarize himself with the file and reset Petitioner’s

24

resentencing for August 3, 2011. (Id. at 2:1-4.) No objections were raised to the

25

rescheduled resentencing date.

26

1

27
28

Specifically, Petitioner pled no contest to one count of lewd and lascivious conduct with a child under the age of
14 years, violation of CAL. PENAL CODE, § 288(a); one count of oral copulation of a person under the age of 16
years by a person over the age of 21 years (§ 288a(b)(2)); one count of sodomy of a person under the age of 16
years by a person over the age of 21 years (§ 286(b)(2)); two counts of genital penetration by a foreign object (§
289(i)); and five counts of unlawful sexual intercourse (§ 261.5(d)). (Petition at 1:5.)

2

1

On July 21, 2011, Petitioner filed a “Notice of Failure to Comply with

2

Senior Judge Consuelo B. Marshall’s 6/20/11 Order” which stated that this

3

Court’s thirty-day resentencing deadline had passed without resentencing.

4

[Docket No. 31.] Following filing of the “Notice,” a resentencing hearing for

5

Petitioner was set for July 28, 2011. (Opposition, Ex. 6 at 6.) The presiding

6

judge, the same judge who presided over the July 20, 2011 hearing, noted that he

7

was unaware of this Court’s June 20 Order until Petitioner filed his “Notice”. (Id.

8

at 4:5-8.) Proceeding over Petitioner’s counsel’s objection that the Petitioner

9

should be sentenced to an eight year term because this Court’s thirty-day

10

resentencing deadline had passed, Petitioner was resentenced to a ten-year term on

11

July 28, 2012. (Id. at 8:1-6, 21.)

12
13
14
15

Petitioner then filed the instant Motion “requesting review” of the July 28
resentencing.
DISCUSSION
Petitioner asks the Court to “review the sentencing court’s 7/28/11

16

resentence to assure that it is in compliance with the 6/20/11 Order Granting

17

Petitioner’s Motion . . . .because Petitioner was again sentenced to the upper-term

18

on count one [and] . . . .Furthermore, the sentencing court failed to do so within

19

the 30 days required by the [June 20 Order].” (Motion at 1.)

20

Respondent argues that Petitioner’s resentencing complied with Apprendi v.

21

New Jersey, 530 U.S. 466 (2000) and its progeny. (Opposition at 1:20-2:10.)

22

Respondent further argues that the California Supreme Court fashioned a judicial

23

remedy in People v. Sandoval, 161 P.3d 1146 (Cal. 2007), that applies to all future

24

resentencing proceedings and cures the constitutional defects in California’s

25

sentencing regime originally identified in the Cunningham v. California, 549 U.S.

26

270 (2007). (Opposition at 5.) Respondent also argues that it made a good faith

27

effort to comply with the thirty-day time limitation in this Court’s June 20 Order

28

and that Petitioner either consented to or waived any violation of the June 20
3

1

Order. (Opposition at 2:15-3:5, 4:3-18.)

2

Neither party addresses the Court’s jurisdiction to consider the Motion.

3

However, if the Court determines at any time that it lacks subject matter

4

jurisdiction then it must dismiss. See, e.g., Arbaugh v. Y&H Corp., 546 U.S. 500,

5

506 (2006). Upon consideration, the Court determines that it lacks jurisdiction to

6

consider the Motion.

7

First, “[w]hen a district court remands a case to a state court, the district

8

court disassociates itself from the case entirely, retaining nothing of the matter on

9

the federal court’s docket.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714

10

(1996); see also 16 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

11

Federal Practice and Procedure § 3933.1 (2d ed. 1987) (“[Remand] concludes all

12

proceedings in the federal court.”) While this general rule does not entirely

13

circumscribe the present case, involving what might be described as a conditional

14

remand, caselaw suggests that this Court retains no jurisdiction to enforce any

15

conditions concerning issues remanded to state court. See, e.g., In re C & M

16

Properties, L.L.C., 563 F.3d 1156, 1162 (10th Cir. 2009) (“Any district court

17

order putatively deciding any aspect of a claim remanded to state court is but an

18

advisory opinion” (emphasis added)). The Court lacks jurisdiction to enforce the

19

thirty-day time limitation in its June 20 Order because doing so would disturb the

20

resentencing, a matter remanded to the state court’s authority.2

21

Second, any legal error in the resentencing itself must first be brought to the

22

state courts’ attention. “If a petitioner does not satisfy the procedural

23

requirements for bringing an error to the state court's attention—whether in trial,

24
2

25
26
27
28

This is so particularly because it now appears that the Court’s June 20 Order should have
been limited to remand to state trial court for resentencing rather than a conditional order to
either treat Petitioner’s total sentence as a middle-term eight-year sentence or resentence within
thirty days. See Chioino v. Kernan, 581 F.3d 1182, 1186 (9th Cir. 2009) (“[o]nce it found a
Cunningham violation, the district court should have remanded to the state trial court for
resentencing instead of ordering the state trial court to reduce the sentence [to the middle term]
in accordance with the district court’s order.”).
4

1

appellate, or habeas proceedings, as state law may require—procedural default

2

will bar federal review.” Magwood v. Patterson, 130 S. Ct. 2788, 2801 (2010).

3

Here the Petitioner challenges a new sentence, but “[b]efore a federal court may

4

grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in

5

state court. In other words, the state prisoner must give the state courts an

6

opportunity to act on his claims before he presents those claims to a federal court

7

in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See also

8

Magwood, 130 S. Ct. at 2801 (“A petitioner may not raise in federal court an error

9

that he failed to raise properly in state court in a challenge to the judgment

10

reflecting the error.”) Before this Court, or any federal court, may review

11

Petitioner’s challenge to his resentencing, regardless of whether Petitioner’s

12

challenge is substantively similar to his initial Petition, Petitioner must first

13

exhaust the remedies available to him in California state court. Cf. Magwood, 130

14

S. Ct. at 2798-2800.

15

If this Court had jurisdiction, it would find that the state court complied

16

with the June 20 Order. It appears that Petitioner’s resentence adhered to the

17

Sandoval procedure, curing the original failure to comply with Apprendi, Blakely,

18

and Cunningham. See People v. Sandoval, 161 P.3d 1146, 1157 (Cal. 2007). The

19

Sandoval resentencing procedure “afford[s] the trial court ‘broad discretion’ in

20

selecting among the three terms specified by statute for the offense, subject to the

21

requirements that the court consider the aggravating and mitigating circumstances

22

as set out in statutes and rules and that reasons be stated for the choice of

23

sentence.” People v. Sandoval, 161 P.3d 1146, 1158 (Cal. 2007). At Petitioner’s

24

resentencing on July 28, 2011, Judge Douglas Phimister noted the requirements of

25

the Sandoval resentencing procedure, considered various aggravating and

26

mitigating circumstances, and explained his resentencing decision. (July 28, 2011

27

Transcript at 13:3-18:1, Docket No. 37-6.) Indeed, Petitioner’s counsel conceded

28

that “I’m not disagreeing with the Court’s interpretation of the law as it exists
5

1

today . . . .the Court could impose the upper term in the manner as indicated.” (Id.

2

at 19:7-10.) It thus appears that Petitioner’s resentencing remedied the

3

constitutional violations identified in the Court’s June 20 Order.

4
5
6
7
8
9
10

CONCLUSION
For the reasons provided above, Petitioner’s “Motion requesting review of
7/26/11 resentence” is DENIED.
IT IS SO ORDERED.
DATED: December 6, 2012

/s/ Consuelo B. Marshall
By:___________________________
CONSUELO B. MARSHALL
UNITED STATES DISTRICT JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6