Bontemps v. People of the State of California

Filing 9

ORDER signed by Magistrate Judge Allison Claire on 8/31/2017 DISMISSING the petition for failure to state a cognizable federal habeas claim; and the Clerk shall close this case. CASE CLOSED.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY C. BONTEMPS,

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Petitioner,

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v.

No. 2:16-cv-02993 AC P

ORDER

PEOPLE OF THE STATE OF
CALIFORNIA,
Respondent.

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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to

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28 U.S.C. § 2254. On June 30, 2017, the court determined that the immediate petition failed to

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state a cognizable federal habeas claim. ECF No. 5. It offered petitioner an opportunity to show

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cause why his petition should not be dismissed. Id. Petitioner has filed a response. ECF No. 8.

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After review of that response, the court concludes that this petition should be dismissed.

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I.

Legal Standards

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The court must dismiss a habeas petition or portion thereof if the prisoner raises claims

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that are legally “frivolous or malicious” or fail to state a basis on which habeas relief may be

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granted. 28 U.S.C. § 1915A(b)(1),(2). The court must dismiss a habeas petition “[i]f it plainly

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appears from the petition and any attached exhibits that the petitioner is not entitled to relief[.]”

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Rule 4 Governing Section 2254 Cases.
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II.

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The conviction underlying this petition occurred on May 14, 2010 in the Sacramento

Background

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County Superior Court. ECF No. 1 at 1. Petitioner was sentenced as a “three-striker” (Cal. Penal

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Code §§ 667(b)-(i), 1170.12(a)-(d)) and given twenty-five years to life. ECF No. 1 at 1.

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Petitioner later filed eight post-conviction petitions seeking recall of sentence pursuant to

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California Penal Code Section 1170.126 (“§ 1170.126”), the Three Strikes Reform Act of 2012,

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which provides for recall and resentencing in some “three strikes” cases. Id. at 25-26. On

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September 2, 2016, the state court of appeal declined to address the merits of the final petition

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after determining that it was untimely. Id. at 23-27. The California Supreme Court then denied a

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petition for review of that decision. Id. at 34. Petitioner now argues that the California Supreme

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Court’s 2015 decision in People v. Johnson, 61 Cal.4th 674, 681-82 (2015) entitles him to a

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merits decision from this court on his claim that he is entitled to sentencing relief. ECF No. 1 at

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5-8.

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The court notes that petitioner has recast his claims in his response to the OSC. He now

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argues that he received ineffective assistance from the counsel who represented him in seeking

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resentencing. ECF No. 8 at 2-3. He also argues that his sentence is “disproportionate” in the

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context of the Eighth Amendment. Id. at 3-4. Petitioner states that his current sentence is

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disproportionate when compared to the sentences of prisoners convicted of similar crimes. Id.

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III.

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Petitioner’s claims, whether proceeding on the grounds raised in the petition or in his

Analysis

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response, are not cognizable on federal habeas review. As noted in the court’s previous order

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(ECF No. 5), petitioner’s claims that the state courts erred in adjudicating his re-sentencing

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claims under § 1170.126 do not present a federal issue. Federal habeas relief is not available for

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petitions alleging only error in the state post-conviction review process. See Estelle v. McGuire,

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502 U.S. 62, 67-68 (1991) (holding that habeas court will not review state law questions); see also

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Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989) (“We join the majority [of circuits] and affirm

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the district court's holding that a petition alleging errors in the state post-conviction review

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process are not addressable through habeas corpus proceedings.”).
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Nor are petitioner’s newly recast Sixth and Eighth Amendment claims cognizable. First,

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his Sixth Amendment claim pertains to the representation of counsel during post-conviction

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proceedings under § 1170.126. See ECF No. 8 at 3 (“Counsel failed to raise any argument or

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challenge . . . [to] the trial courts findings that petitioner was ineligible for resentencing on the

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spousal abuse and witness intimidation counts.”). It is settled law that a criminal defendant has

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no right to counsel “beyond his first appeal in pursuing state discretionary or collateral review.”

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Coleman v. Thompson, 501 U.S. 722, 756 (1991); see also Pennsylvania v. Finley, 481 U.S. 551,

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555 (1987) (“[T]he right to appointed counsel extends to the first appeal of right, and no further”);

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United States v. Townsend, 98 F.3d 510, 513 (9th Cir. 1996) (finding that prisoner was not

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entitled to counsel under the Sixth Amendment where he sought a reduction of sentence under an

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amendment to the federal sentencing guidelines). Thus, petitioner cannot bring a claim based on

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his counsel’s deficient performance in briefing and arguing his eligibility for resentencing under §

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1170.126.

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Second, petitioner’s Eighth Amendment claim is non-cognizable insofar as it is not a

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challenge to the sentence he was given at the time of conviction; rather it challenges the state

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courts’ decision not to resentence him under § 1170.126. ECF No. 8 at 3 (“[T]he trial court

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abused its discretion in not ‘striking a strike’ . . .”). As noted above, federal habeas relief is not

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available for a petition based exclusively on errors in the state post-conviction process. Franzen,

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877 F.2d at 26. Petitioner may not transform his state law claim into a federal one merely by

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casting it as an Eighth Amendment challenge. See Langford v. Day, 110 F.3d 1380, 1389 (9th

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Cir. 1996) (holding that a petitioner may not transform a state law claim into a federal one by

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clothing it in federal constitutional language).

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Moreover, the court concludes that petitioner would not be entitled to relief even if he

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were challenging the proportionality of his underlying sentence. First, it is far from clear that

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such a claim would be timely given that petitioner states that he was convicted in May of 2010 –

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more than six years before this petition was filed. ECF No. 1 at 1. Second, petitioner’s three

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strike sentence of twenty-five years to life (id.) does not violate the Eighth Amendment’s

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proportionality principle. In Lockyer v. Andrade, the Supreme Court noted that the contours of
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the gross disproportionality principle “are unclear, applicable only in the exceedingly rare and

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extreme case.” 538 U.S. 63, 73 (2003). Petitioner was convicted of violations of Cal. Penal Code

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§ 422 (criminal threats), Cal. Penal Code § 273.5 (spousal abuse), and Cal. Penal Code § 136.1

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(witness intimidation). ECF No. 1 at 17. After the trial court determined he had two prior strikes,

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he was sentenced to twenty-five years to life for each conviction, but the spousal abuse and

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witness intimidation sentences were stayed. Id. The Supreme Court has found that California’s

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three strikes law does not violate the Eighth Amendment and it has upheld similar sentences for

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less serious crimes. See Lockyer, 538 U.S. at 77 (finding that a twenty-five year to life sentence

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under California three strikes law for stealing property worth less than 200 dollars was not a

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violation of clearly established federal law); Ewing v. California, 538 U.S. 11, 25-28 (2003)

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(upholding a twenty-five year to life sentence for felony of grand theft where defendant had

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previously been convicted of two violent or serious penalties).

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IV.

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Petitioner has consented to magistrate judge jurisdiction. ECF No. 4. Accordingly, it is

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Conclusion

HEREBY ORDERED that:

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1.

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habeas claim; and

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2.

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The petition (ECF No. 1) is DISMISSED for failure to state a cognizable federal

The Clerk of Court is directed to close this case.

DATED: August 31, 2017

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