Kimble v. Montgomery
MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 09/11/17 ORDERING that the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED; Court DECLINES to issue COA. CASE CLOSED (Benson, A.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
KELLY V. KIMBLE,
WARREN L. MONTGOMERY, Warden,
Calipatria State Prison,
Kelly V. Kimble, a California state prisoner proceeding pro se, filed a Petition for a Writ
of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Kimble is in the custody of the
California Department of Corrections and Rehabilitation and incarcerated at Calipatria State
Prison. Respondent has answered, and Kimble has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On February 20, 2007, Kimble was charged with stalking his girlfriend. The information
further alleged that he had previously suffered convictions for two prior strikes. The first
conviction occurred on November 18, 1997, and was for attempted kidnapping. The second
conviction, for criminal threats, occurred on February 6, 2006. After a jury trial, Kimble was
found guilty of stalking and sentenced to 25 years to life imprisonment. The California Court of
Appeal affirmed Kimble’s conviction. People v. Kimble, No. C606478, 2009 WL 5067654, at
*3 (Cal. Ct. App. Dec. 28, 2009). In the Petition before this Court, Kimble does not challenge
that conviction directly,1 but rather challenges the state courts’ denial of his November 2012
It does not appear that Kimble filed a federal habeas petition under 28 U.S.C.
§ 2254 based on that conviction, and this Petition therefore cannot be characterized as a second
or successive habeas corpus application under 28 U.S.C. § 2244(b). And because his claims are
petition requesting resentencing under California’s Three Strikes Reform Act of 2012.2 On
direct appeal of the California Superior Court’s denial of that petition, the Court of Appeal laid
out the following facts underlying this case:
In 2008, a jury found [Kimble] guilty of stalking his girlfriend and the court
sentenced him to prison for 25 years to life under the three strikes law because he also
had prior convictions for attempted kidnapping and criminal threats. The stalking trial
included evidence that [Kimble] slapped his girlfriend so hard she could not hear for
three days and repeatedly threatened to kill her and then her parents.
Four years after [Kimble’s] three strikes sentence, the electorate passed the Three
Strikes Reform Act. Under the Three Strikes Reform Act, “prisoners currently serving
sentences of 25 years to life for a third felony conviction which was not a serious or
violent felony may seek court review of their indeterminate sentences and, under certain
circumstances, obtain resentencing as if they had only one prior serious or violent felony
conviction.” If a defendant such as the one here satisfies certain criteria, “the petitioner
shall be resentenced . . . unless the court, in its discretion, determines that resentencing
the petitioner would pose an unreasonable risk of danger to public safety.”
In the trial court, [Kimble] argued in his written motion that his “sentence
reduction . . . c[ould] only be denied following a hearing where the prosecution proves by
a preponderance of the evidence that resentencing [him] . . . would pose a current,
unreasonable risk to public safety.” “In determining whether resentencing [him] would
pose an unreasonable risk to public safety, th[e trial] [c]ourt must assess [his] current
danger to the community.” And “there [wa]s insufficient evidence for the court to make
a finding that [he] presents a current, unreasonable danger to public safety.”
not directed at his underlying conviction and sentence, the Petition is not second or successive in
any event. See Tuggle v. M.E. Spearman, Warden, No. 2:14-cv-1680, 2015 WL 1612000, at *1
(E.D. Cal. Apr. 6, 2015) (where a habeas petition challenges a state court’s denial of a motion to
reconsider his sentence under Three Strikes Reform Act of 2012 the petition is not “second or
successive” under § 2244); see also Hill v. State of Alaska, 297 F.3d 895, 897–99 (9th Cir. 2002)
(“[T]he Supreme Court has declined to read § 2244 to preclude prisoners from bringing habeas
claims that could not have been brought in earlier petitions.”)).
See CAL. PENAL CODE § 1170.126. Section 1170.126 “created a postconviction
release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed
pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not
disqualified, may have his or her sentence recalled and be sentenced as a second strike offender
unless the court determines that resentencing would pose an unreasonable risk of danger to
public safety.” People v. Yearwood, 151 Cal. Rptr. 3d 901, 903 (Cal. Ct. App. 2013).
As [Kimble] requested, the trial court held a hearing at which the court considered
evidence of dangerousness presented by the People. The court also considered the
evidence [Kimble] had submitted and allowed [Kimble] to testify.
The court then found that [Kimble] would “be an unreasonable risk of danger to
the public if released.” The court explained its finding as follows: his prior criminal acts
“involved physical violence”; “whenever he was placed on probation, he violated
probation”; [w]hen he was on parole, he violated parole”; while in prison for the current
offense, he “continues to defy authority year after year . . . [a]nd in both 2009 and again
in 2010, he assault [ed] another inmate”;and “[h]is other activities include letter writing
to other prisoners wherein he brags to other prisoners about his future plans to hustle and
his apparent continued gang ties which . . . are apparent by his refusal to move from his
cell in the Butte County Jail for gang related reasons.”
People v. Kimble, No. C073819, 2014 WL 3401249, at *1 (Cal. Ct. App. July 14, 2014).
Through counsel, Kimble appealed the denial, arguing that a jury was required to find
him dangerous beyond a reasonable doubt or, in the alternative, the finding of dangerousness
should have been made by the trial court upon a showing of clear and convincing evidence rather
than preponderance of the evidence. The Court of Appeal affirmed the trial court’s order
denying Kimble’s petition for resentencing in a reasoned, unpublished opinion issued on July 14,
2014. Id. at *3. The Court of Appeal followed the decision in People v. Superior Court
(Kaulick), 155 Cal. Rptr. 3d 856, 872-75 (Cal. Ct. App. 2013), and concluded that “a court’s
discretionary decision to decline to modify the sentence in his favor can be based on any
otherwise appropriate factor (i.e., dangerousness), and such factor need not be established by
proof beyond a reasonable doubt to a jury.” Kimble, 2014 WL 3401249, at *2 (quoting Kaulick,
155 Cal. Rptr. 3d at 874). The appellate court likewise agreed with the Kaulick court that the
proper standard of proof is preponderance of the evidence. Id. Kimble petitioned for review in
the California Supreme Court, which was summarily denied on October 1, 2014. Kimble’s statecourt case became final for AEDPA purposes when the 90-day window for seeking review in the
United States Supreme Court lapsed on January 1, 2015. Spitsyn v. Moore, 345 F.3d 796, 798
(9th Cir. 2003).
Kimble timely filed a pro se Petition for a Writ of Habeas Corpus to this Court on
December 29, 2015. See 28 U.S.C. § 2244(d)(1)(A). Briefing is now complete, and the case has
been reassigned to the undersigned judge for adjudication.
In his pro se Petition before this Court, Kimble challenges the state courts’ denial of his
petition for resentencing under the Three Strikes Reform Act on the same grounds raised on
direct appeal. Specifically, Kimble contends that: 1) a jury was required to find him dangerous
beyond a reasonable doubt for the trial court to deny his petition for resentencing; and 2) in the
alternative, the trial court should have made the dangerousness finding “upon a showing of clear
and convincing evidence.”
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that
contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that
are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where
holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it
cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,
67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and
application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state
court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication
on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under
the AEDPA, the state court’s findings of fact are presumed to be correct unless the petitioner
rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003).
Kimble’s Petition raises two grounds for federal habeas relief, both relating to the trial
court’s failure to recall his sentence and resentence him under the Three Strikes Reform Act of
2012. However, courts in this circuit have consistently found that challenges to the denial of a
resentencing under the Three Strikes Reform Act do not implicate a federal constitutional right.
See, e.g., Nelson v. Biter, 33 F. Supp. 3d 1173, 1178 (C.D. Cal. 2014) (dismissing a federal
habeas petition where the petitioner was denied resentencing for his robbery conviction because
the issue involved purely the application or interpretation of state law); Mitchell v. Soto, No.
2:14-cv-1438, 2015 WL 1119683, at *5 (E.D. Cal. Mar. 11, 2015) (stating that federal courts in
California are bound by the state courts’ conclusion that a petitioner is not eligible for
resentencing under the Three Strikes Reform Act); Tuggle v. Perez, No. 2:14-cv-1680, 2016 WL
1377790, *7 (E.D. Cal. Apr. 17, 2016) (citing several cases to support statement that “[n]o
federal court has found federal challenges to the Three Strikes Reform Act to be cognizable in
Although he attempts to frame his claims within the federal constitution, Kimble is
essentially challenging the failure of the state courts to resentence him under state law. See
Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (a petitioner cannot transform a state-law
issue into a federal one by simply asserting a due process violation). As explained above, “it is
not the province of a federal habeas court to reexamine state court determinations on state law
questions.” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (quoting Estelle, 502 U.S. at 67). “Absent
a showing of fundamental unfairness, a state court’s misapplication of its own sentencing laws
does not justify federal habeas relief.” Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994); see
also Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (“[s]tate courts are the ultimate expositors of
state law,” and a federal habeas court is bound by the state’s construction except when it appears
that its interpretation is “an obvious subterfuge to evade the consideration of a federal issue”).
So long as a sentence imposed by a state court “is not based on any proscribed federal grounds
such as being cruel and unusual, racially or ethnically motivated, or enhanced by indigency, the
penalties for violation of state statutes are matters of state concern.” Makal v. Arizona, 544 F.2d
1030, 1035 (9th Cir. 1976).
On federal habeas review, the question “is not whether the state sentencer committed
state-law error,” but whether the sentence imposed on the petitioner is “so arbitrary or
capricious” as to constitute an independent due process violation. Richmond v. Lewis, 506 U.S.
40, 50 (1992). Kimble has not demonstrated that the state court’s refusal to resentence him
under § 1170.126 was erroneous, let alone “so arbitrary or capricious” as to violate due process.
Both the Superior Court and the California Court of Appeal found that Kimble was ineligible for
relief because the nature of his prior strikes and his prior criminal history demonstrated that he
presented an unreasonable risk of danger to public safety, and this Court is bound by that
interpretation of state law. Because Kimble was not entitled to re-sentencing under state law, the
failure to grant him such relief could not have deprived him of any federally protected right. See
Johnson v. Spearman, No. CV 13-3021, 2013 WL 3053043, at *3 (C.D. Cal. June 10, 2013).
And even considered on the merits, Kimble’s federal constitutional claims fail. Ground 1
of his Petition alleges that the dangerousness finding had to be submitted to a jury. Kimble cited
on direct appeal to the United States Supreme Court’s decision in Alleyne v. United States, which
requires that facts which increase a mandatory minimum sentence must be proven to a jury
beyond a reasonable doubt. 133 S. Ct. 2151, 2155 (2013). However, Kimble does not cite to,
and this Court is unaware of, any authority of the United States Supreme Court that holds that
Alleyne’s holding is applicable to proceedings to modify a lawful sentence that has already been
imposed. To the contrary, the Supreme Court’s decision in Dillon v. United States, 560 U.S. 817
(2010), weighs against such argument. The Supreme Court in Dillon held that proceedings
under 18 U.S.C. § 3582(c)(2)3 “do not implicate the Sixth Amendment right to have essential
facts found by a jury beyond a reasonable doubt.” Id. at 828. In articulating its holding, the
Dillon court emphasized that, unlike other sentencing proceedings, facts found by a judge at
proceedings under 18 U.S.C. § 3582(c)(2) “do not serve to increase the prescribed range of
punishment” Id. The same holds true for proceedings under the Three Strikes Reform Act,
which is “an ameliorative provision, and can only decrease a petitioner’s sentence.” Andrade v.
Frauenheim, No. 1:16-cv-01701, 2016 WL 7210121, at *2 (E.D. Cal. Dec. 12, 2016). Other
district courts in this circuit have rejected arguments that Alleyne (or any other progeny of
That statute reads:
[I]n the case of a defendant who has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been lowered by the Sentencing
Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director
of the Bureau of Prisons, or on its own motion, the court may reduce the term of
imprisonment, after considering the factors set forth in section 3553(a) to the extent that
they are applicable, if such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2).
Apprendi v. New Jersey, 530 U.S. 466 (2000)4) apply to state court ineligibility determinations
under the Three Strikes Reform Act. See, e.g., Carrillo v. Fisher, No. CV 16-7561-E, 2017 WL
540943 (C.D. Cal. Feb. 2, 2017); Olivarez v. Lizarraga, No. 1:14-cv-01354, 2015 WL 521431,
at *2 (E.D. Cal. Feb. 9, 2015) (distinguishing Apprendi as applicable only to proceedings which,
unlike those under the Strikes Reform Act, may increase a sentence).
In Ground 2 of his Petition, Kimble contends that “due process . . . requires that the
[dangerousness] finding be made upon a showing of clear and convincing evidence.” Here,
however, the California courts have concluded that, under state law, the proper standard of proof
under § 1170.126 is the prepondence of the evidence. Kimble has not, and indeed cannot, cite to
any authority of the United States Supreme Court requiring otherwise. The decision of the
California state courts that the denial of Kimble’s request for resentencing under § 1170.126 did
not violate due process is thus not contrary to or an unreasonable application of United States
Supreme Court authority. Accordingly, Kimble is not entitled to relief on either of his claims.
V. CONCLUSION AND ORDER
Kimble is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
In Apprendi, the U.S. Supreme Court considered whether the Due Process Clause
“requires that a factual determination authorizing an increase in the maximum prison sentence
for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable
doubt.” 530 U.S. at 468. The Supreme Court held that, “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the proscribed maximum must
be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain
a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,
537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: September 11, 2017.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?