Roth v. Rackley

Filing 13

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 08/08/17 recommending that responent's motion to dismiss 10 be granted. MOTION to DISMISS 10 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWARD ROTH,

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Petitioner,
vs.

FINDINGS AND RECOMMENDATIONS

RONALD RACKLEY,
Respondent.

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No. 2:16-CV-1107-JAM-CMK-P

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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s motion to

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dismiss (Doc. 10).

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I. BACKGROUND

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Petitioner was convicted in January 2011 of gross vehicular manslaughter and

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assault with a deadly weapon with an enhancement for inflicting great bodily injury, and was

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sentenced to 14 years in prison. Petitioner did not appeal. On May 26, 2015, petitioner filed a

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petition for a writ of habeas corpus in the California Superior Court alleging that the limitation

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on the ability to earn good-time credits pursuant to California Penal Code § 2933.1 was being
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improperly applied to his sentence. The Superior Court denied the petition in a decision issued

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on July 28, 2015. In that decision, the court concluded that, as a matter of state law, § 2933.1

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appropriately applied to his entire sentence. The California Court of Appeal and California

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Supreme Court both summarily denied petitioner’s claim. Petitioner filed his federal petition on

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May 23, 2016.

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II. DISCUSSION

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Respondent argues that petitioner’s federal petition is untimely, that the sole claim
raised in the petition is unexhausted, and that the claim is not cognizable.

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A.

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Timeliness
Federal habeas corpus petitions must be filed within one year from the later of:

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(1) the date the state court judgment became final; (2) the date on which an impediment to filing

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created by state action is removed; (3) the date on which a constitutional right is newly-

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recognized and made retroactive on collateral review; or (4) the date on which the factual

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predicate of the claim could have been discovered through the exercise of due diligence. See 28

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U.S.C. § 2244(d). Typically, the statute of limitations will begin to run when the state court

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judgment becomes final by the conclusion of direct review or expiration of the time to seek direct

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review. See 28 U.S.C. § 2244(d)(1).

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Because petitioner did not file a direct appeal, the judgment became final 60 days

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after sentencing. See Cal. Rule of Court 31(d). Petitioner was sentenced on January 7, 2011.

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Thus, the judgment became final on March 8, 2011. Respondent argues that the one-year

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limitations period began running the next day and expired on March 10, 2012. According to

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respondent, the instant federal petition – filed more than four years later in May 2016 – is

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untimely.

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Petitioner contends that the limitations period did not begin running until April 3,

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2015. Specifically, petitioner claims that he “noted a discrepancy as to how the Department of

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Corrections and Rehabilitations (CDC&R) was calculating his earning of credits. . .” on March

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25, 2015. Next, petitioner states that he received a memorandum on April 3, 2015, from the

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Correctional Case Record Analyst informing petitioner that his credits here being properly

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calculated. Petitioner argues that he could not have known the factual predicate of his claim until

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he received the April 3, 2015, memorandum.

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Petitioner’s argument is unpersuasive. As respondent notes, § 2933.1 was the law
in California when petitioner was sentenced. Had petitioner exercised due diligence, he would

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have known the factual predicate of his claim at the time he was sentenced. The court concludes

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that the one-year limitations period began to run in March 2011 and expired in March 2012 and

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the instant federal petition – filed more than four years later – is untimely.

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B.

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Exhaustion
Under 28 U.S.C. § 2254(b), the exhaustion of available state remedies is required

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before claims can be granted by the federal court in a habeas corpus case. See Rose v. Lundy,

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455 U.S. 509 (1982); see also Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v.

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Pliler, 336 F.3d 839 (9th Cir. 2003). Claims may be denied on the merits notwithstanding lack of

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exhaustion. See 28 U.S.C. § 2254(b)(2). “A petitioner may satisfy the exhaustion requirement

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in two ways: (1) by providing the highest state court with an opportunity to rule on the merits of

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the claim . . .; or (2) by showing that at the time the petitioner filed the habeas petition in federal

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court no state remedies are available to the petitioner and the petitioner has not deliberately

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by-passed the state remedies.” Batchelor v. Cupp , 693 F.2d 859, 862 (9th Cir. 1982) (citations

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omitted). The exhaustion doctrine is based on a policy of federal and state comity, designed to

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give state courts the initial opportunity to correct alleged constitutional deprivations. See Picard

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v. Connor, 404 U.S. 270, 275 (1971); see also Rose, 455 U.S. at 518.

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Regardless of whether the claim was raised on direct appeal or in a post-

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conviction proceeding, the exhaustion doctrine requires that each claim be fairly presented to the

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state’s highest court. See Castille v. Peoples, 489 U.S. 346 (1989). Although the exhaustion

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doctrine requires only the presentation of each federal claim to the highest state court, the claims

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must be presented in a posture that is acceptable under state procedural rules. See Sweet v.

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Cupp, 640 F.2d 233 (9th Cir. 1981). Thus, an appeal or petition for post-conviction relief that is

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denied by the state courts on procedural grounds, where other state remedies are still available,

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does not exhaust the petitioner’s state remedies. See Pitchess v. Davis, 421 U.S. 482, 488

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(1979); Sweet, 640 F.2d at 237-89.

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In addition to presenting the claim to the state court in a procedurally acceptable

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manner, exhaustion requires that the petitioner make the federal basis of the claim explicit to the

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state court by including reference to a specific federal constitutional guarantee. See Gray v.

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Netherland, 518 U.S. 152, 162-63 (1996); see also Shumway v. Payne, 223 F.3d 982, 998 (9th

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Cir. 2000). It is not sufficient for the petitioner to argue that the federal nature of the claim is

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self-evident. See Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by 247 F.3d

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904 (9th Cir. 2001).

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A review of the petition filed in the California Supreme Court reflects a reference

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to “Fourteenth Amendment, U.S. Const.” and a reference to “the Due Process Clause (Fourteenth

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Amendment, U.S. Const.).” The court finds these references minimally sufficient to have

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exhausted petitioner’s claim by invoking the specific federal constitutional guarantee of fairness

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embodied in the Due Process Clause of the Fourteenth Amendment.

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C.

Cognizability
A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of a

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transgression of federal law binding on the state courts. See Middleton v. Cupp, 768 F.2d 1083,

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1085 (9th Cir. 1985); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). It is not

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available for alleged error in the interpretation or application of state law. Middleton, 768 F.2d at
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1085; see also Lincoln v. Sunn, 807 F.2d 805, 814 (9th Cir. 1987); Givens v. Housewright, 786

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F.2d 1378, 1381 (9th Cir. 1986). Habeas corpus cannot be utilized to try state issues de novo.

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See Milton v. Wainwright, 407 U.S. 371, 377 (1972).

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However, a “claim of error based upon a right not specifically guaranteed by the

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Constitution may nonetheless form a ground for federal habeas corpus relief where its impact so

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infects the entire trial that the resulting conviction violates the defendant’s right to due process.”

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Hines v. Enomoto, 658 F.2d 667, 673 (9th Cir. 1981) (citing Quigg v. Crist, 616 F.2d 1107 (9th

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Cir. 1980)); see also Lisenba v. California, 314 U.S. 219, 236 (1941). In order to raise such a

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claim in a federal habeas corpus petition, the “error alleged must have resulted in a complete

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miscarriage of justice.” Hill v. United States, 368 U.S. 424, 428 (1962); Crisafi v. Oliver, 396

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F.2d 293, 294-95 (9th Cir. 1968); Chavez v. Dickson, 280 F.2d 727, 736 (9th Cir. 1960).

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The court agrees with respondent that petitioner’s claim is not cognizable.

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Petitioner’s claim is based entirely on an alleged misapplication of state law, specifically

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§ 2933.1. While the court finds that petitioner exhausted his claim by reference to the Due

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Process Clause of the Fourteenth Amendment, the court also finds that the due process aspect of

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petitioner’s claim cannot rise to the level of infecting the entire trial so as to render the

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conviction fundamentally unfair because petitioner’s claim relates only to the execution of his

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sentence, not the underlying trial. Nothing in petitioner’s claim suggests that his trial was unfair,

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that his conviction was unfair, or even that his sentence was unfair.

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III. CONCLUSION
The court finds that petitioner’s federal petition is untimely and that the claim

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raised therein is not cognizable. Based on the foregoing, the undersigned recommends that

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respondent’s motion to dismiss (Doc. 10) be granted.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 8, 2017
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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