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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY C. BONTEMPS, 12 Petitioner, 13 14 15 v. No. 2:16-cv-02993 AC P ORDER PEOPLE OF THE STATE OF CALIFORNIA, Respondent. 16 17 18 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 19 28 U.S.C. § 2254. On June 30, 2017, the court determined that the immediate petition failed to 20 state a cognizable federal habeas claim. ECF No. 5. It offered petitioner an opportunity to show 21 cause why his petition should not be dismissed. Id. Petitioner has filed a response. ECF No. 8. 22 After review of that response, the court concludes that this petition should be dismissed. 23 I. Legal Standards 24 The court must dismiss a habeas petition or portion thereof if the prisoner raises claims 25 that are legally “frivolous or malicious” or fail to state a basis on which habeas relief may be 26 granted. 28 U.S.C. § 1915A(b)(1),(2). The court must dismiss a habeas petition “[i]f it plainly 27 appears from the petition and any attached exhibits that the petitioner is not entitled to relief[.]” 28 Rule 4 Governing Section 2254 Cases. 1 1 II. 2 The conviction underlying this petition occurred on May 14, 2010 in the Sacramento Background 3 County Superior Court. ECF No. 1 at 1. Petitioner was sentenced as a “three-striker” (Cal. Penal 4 Code §§ 667(b)-(i), 1170.12(a)-(d)) and given twenty-five years to life. ECF No. 1 at 1. 5 Petitioner later filed eight post-conviction petitions seeking recall of sentence pursuant to 6 California Penal Code Section 1170.126 (“§ 1170.126”), the Three Strikes Reform Act of 2012, 7 which provides for recall and resentencing in some “three strikes” cases. Id. at 25-26. On 8 September 2, 2016, the state court of appeal declined to address the merits of the final petition 9 after determining that it was untimely. Id. at 23-27. The California Supreme Court then denied a 10 petition for review of that decision. Id. at 34. Petitioner now argues that the California Supreme 11 Court’s 2015 decision in People v. Johnson, 61 Cal.4th 674, 681-82 (2015) entitles him to a 12 merits decision from this court on his claim that he is entitled to sentencing relief. ECF No. 1 at 13 5-8. 14 The court notes that petitioner has recast his claims in his response to the OSC. He now 15 argues that he received ineffective assistance from the counsel who represented him in seeking 16 resentencing. ECF No. 8 at 2-3. He also argues that his sentence is “disproportionate” in the 17 context of the Eighth Amendment. Id. at 3-4. Petitioner states that his current sentence is 18 disproportionate when compared to the sentences of prisoners convicted of similar crimes. Id. 19 III. 20 Petitioner’s claims, whether proceeding on the grounds raised in the petition or in his Analysis 21 response, are not cognizable on federal habeas review. As noted in the court’s previous order 22 (ECF No. 5), petitioner’s claims that the state courts erred in adjudicating his re-sentencing 23 claims under § 1170.126 do not present a federal issue. Federal habeas relief is not available for 24 petitions alleging only error in the state post-conviction review process. See Estelle v. McGuire, 25 502 U.S. 62, 67-68 (1991) (holding that habeas court will not review state law questions); see also 26 Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989) (“We join the majority [of circuits] and affirm 27 the district court's holding that a petition alleging errors in the state post-conviction review 28 process are not addressable through habeas corpus proceedings.”). 2 1 Nor are petitioner’s newly recast Sixth and Eighth Amendment claims cognizable. First, 2 his Sixth Amendment claim pertains to the representation of counsel during post-conviction 3 proceedings under § 1170.126. See ECF No. 8 at 3 (“Counsel failed to raise any argument or 4 challenge . . . [to] the trial courts findings that petitioner was ineligible for resentencing on the 5 spousal abuse and witness intimidation counts.”). It is settled law that a criminal defendant has 6 no right to counsel “beyond his first appeal in pursuing state discretionary or collateral review.” 7 Coleman v. Thompson, 501 U.S. 722, 756 (1991); see also Pennsylvania v. Finley, 481 U.S. 551, 8 555 (1987) (“[T]he right to appointed counsel extends to the first appeal of right, and no further”); 9 United States v. Townsend, 98 F.3d 510, 513 (9th Cir. 1996) (finding that prisoner was not 10 entitled to counsel under the Sixth Amendment where he sought a reduction of sentence under an 11 amendment to the federal sentencing guidelines). Thus, petitioner cannot bring a claim based on 12 his counsel’s deficient performance in briefing and arguing his eligibility for resentencing under § 13 1170.126. 14 Second, petitioner’s Eighth Amendment claim is non-cognizable insofar as it is not a 15 challenge to the sentence he was given at the time of conviction; rather it challenges the state 16 courts’ decision not to resentence him under § 1170.126. ECF No. 8 at 3 (“[T]he trial court 17 abused its discretion in not ‘striking a strike’ . . .”). As noted above, federal habeas relief is not 18 available for a petition based exclusively on errors in the state post-conviction process. Franzen, 19 877 F.2d at 26. Petitioner may not transform his state law claim into a federal one merely by 20 casting it as an Eighth Amendment challenge. See Langford v. Day, 110 F.3d 1380, 1389 (9th 21 Cir. 1996) (holding that a petitioner may not transform a state law claim into a federal one by 22 clothing it in federal constitutional language). 23 Moreover, the court concludes that petitioner would not be entitled to relief even if he 24 were challenging the proportionality of his underlying sentence. First, it is far from clear that 25 such a claim would be timely given that petitioner states that he was convicted in May of 2010 – 26 more than six years before this petition was filed. ECF No. 1 at 1. Second, petitioner’s three 27 strike sentence of twenty-five years to life (id.) does not violate the Eighth Amendment’s 28 proportionality principle. In Lockyer v. Andrade, the Supreme Court noted that the contours of 3 1 the gross disproportionality principle “are unclear, applicable only in the exceedingly rare and 2 extreme case.” 538 U.S. 63, 73 (2003). Petitioner was convicted of violations of Cal. Penal Code 3 § 422 (criminal threats), Cal. Penal Code § 273.5 (spousal abuse), and Cal. Penal Code § 136.1 4 (witness intimidation). ECF No. 1 at 17. After the trial court determined he had two prior strikes, 5 he was sentenced to twenty-five years to life for each conviction, but the spousal abuse and 6 witness intimidation sentences were stayed. Id. The Supreme Court has found that California’s 7 three strikes law does not violate the Eighth Amendment and it has upheld similar sentences for 8 less serious crimes. See Lockyer, 538 U.S. at 77 (finding that a twenty-five year to life sentence 9 under California three strikes law for stealing property worth less than 200 dollars was not a 10 violation of clearly established federal law); Ewing v. California, 538 U.S. 11, 25-28 (2003) 11 (upholding a twenty-five year to life sentence for felony of grand theft where defendant had 12 previously been convicted of two violent or serious penalties). 13 IV. 14 Petitioner has consented to magistrate judge jurisdiction. ECF No. 4. Accordingly, it is 15 Conclusion HEREBY ORDERED that: 16 1. 17 habeas claim; and 18 2. 19 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 20 21 22 23 24 25 26 27 28 4

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