Taylor v. Kernan

Filing 8

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Charles R. Breyer on 8/10/2017. (Attachments: # 1 Certificate/Proof of Service)(lsS, COURT STAFF) (Filed on 8/10/2017)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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KENNETH GERALD TAYLOR, AB7038, )
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Petitioner,
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vs.
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JOEL MARTINEZ, Warden,
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Respondent.
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No. C 17-3628 CRB (PR)
ORDER DISMISSING
PETITION FOR WRIT OF
HABEAS CORPUS AND
DENYING CERTIFICATE
OF APPEALABILITY

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Petitioner, a state prisoner currently incarcerated at the Sierra

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Conservation Center (SCC) in Jamestown, California, has filed a pro se petition

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for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a September 19,

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2015 amendment of his original December 7, 2009 abstract of judgment from

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Alameda County Superior Court.

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BACKGROUND
Petitioner was convicted by a jury in Alameda County Superior of two

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counts of second degree robbery. In a bifurcated proceeding, the court found true

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allegations that petitioner had suffered numerous prior convictions, including a

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prior strike felony conviction. On December 4, 2009, the court sentenced

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petitioner to a determinate term of 15 years in state prison.

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Petitioner unsuccessfully appealed his conviction to, and unsuccessfully

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sought state habeas relief from, the California Court of Appeal. The Supreme

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Court of California denied review and, on November 16, 2011, denied his final

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petitions for state habeas relief.

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Petitioner then unsuccessfully sought federal habeas relief under § 2254.

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This court denied his federal habeas petition on the merits on April 22, 2013, and

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the Ninth Circuit denied a certificate of appealability on April 24, 2014.
Petitioner returned to Alameda County Superior Court in May 2015 with

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an ex parte request for the state court to correct his December 7, 2009 abstract of

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judgment. For the first time, petitioner claimed that the abstract of judgment

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incorrectly reflected a middle term of six years (rather than three years) for the

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first robbery count, and a middle term of two years (rather than one year) for the

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second robbery count. On July 23, 2015, the court ordered the clerk to correct

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the abstract of judgment, which it determined contained a clerical error, to reflect

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middle terms of three years and one year for the two robbery counts, and to

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clarify that the court imposed the prior strike felony conviction to double the term

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for the two robbery counts to eight years.

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Petitioner challenged the amended abstract of judgment (dated September

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19, 2015) via state habeas petitions, but the state superior, appellate and high

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courts all denied him relief.

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DISCUSSION
A.

Standard of Review
This court may entertain a petition for a writ of habeas corpus “in behalf

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of a person in custody pursuant to the judgment of a State court only on the

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ground that he is in custody in violation of the Constitution or laws or treaties of

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the United States.” 28 U.S.C. § 2254(a).

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The petition may not be granted with respect to any claim that was

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adjudicated on the merits in state court unless the state court’s adjudication of the

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claim: “(1) resulted in a decision that was contrary to, or involved an

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unreasonable application of, clearly established Federal law, as determined by the

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Supreme Court of the United States; or (2) resulted in a decision that was based

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on an unreasonable determination of the facts in light of the evidence presented

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in the State court proceeding.” Id. § 2254(d).
The petition may be dismissed if it plainly appears from its face and any

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exhibits annexed to it that the petitioner is not entitled to relief. Hendricks v.

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Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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B.

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Legal Claims
Petitioner claims that Alameda County Superior Court did not have

jurisdiction to amend his original December 7, 2009 abstract of judgment, “and

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that in so doing, he was subjected to double jeopardy and due process violation.”

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Pet. (ECF No. 1) at 5a. Petitioner apparently believes that the superior court

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could only reduce his sentence from 15 to 11 years in state prison. The claim is

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meritless.

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The petition and exhibits annexed to the petition show that, after petitioner

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requested in May 2015 that Alameda County Superior Court correct his original

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December 7, 2009 abstract of judgment, the superior court determined that the

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original December 7, 2009 abstract of judgment needed to be corrected to

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properly reflect how the court had arrived at petitioner’s total term of 15 years in

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state prison. The December 7, 2009 abstract of judgment showed that the court

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had arrived at the total term of 15 years in state prison by imposing a middle term

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of six years for the first robbery count and a middle term of two years for the

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second robbery count, plus seven years for the various prior convictions. It did

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not mention petitioner’s prior strike felony conviction. The superior court found

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that the abstract of judgment contained a “clerical error” because it did not

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properly reflect how the court had arrived at the total term of 15 years in state

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prison. The court accordingly instructed the clerk to correct the abstract of

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judgment to reflect that it had arrived at the total term of 15 years in state prison

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by imposing a middle term of three years for the first robbery count and a middle

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term of one year for the second robbery count, both doubled by virtue of the prior

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strike felony conviction (i.e., for a total term of eight years for the two robbery

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counts), plus seven years for the various other prior convictions. There was no

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change in petitioner’s total term of 15 years in state prison.

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The state courts’ rejection of petitioner’s claim that amending the original

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abstract of judgment amounted to a constitutional violation was not contrary to,

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or an unreasonable application of, clearly established Supreme Court precedent,

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or involved an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).

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The superior court reasonably determined that the original abstract of judgment

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contained a clerical error because it did not properly reflect how the court had

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arrived at petitioner’s total term of 15 years in state prison, and reasonably

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ordered the clerk to correct it. The amended abstract of judgment did not result

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in a double jeopardy or due process violation because it did not in any way

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increase petitioner’s total term of 15 years in state prison, which is amply

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supported by the two counts and numerous priors (including a prior strike felony)

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for which he was convicted. Cf. Walker v. Endell, 850 F.2d 470, 476 (9th Cir.

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1987) (federal court generally may not review state sentence that is within

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statutory limits). Petitioner is not entitled to federal habeas relief on his claim

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that the amended abstract of judgment amounted to a constitutional violation.

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See 28 U.S.C. § 2254(d).

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CONCLUSION

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For the foregoing reasons, the petition for a writ of habeas corpus is

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DISMISSED for lack of merit.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a

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certificate of appealability (COA) under 28 U.S.C. § 2253(c) is DENIED because

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petitioner has not demonstrated that “reasonable jurists would find the district

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court's assessment of the constitutional claims debatable or wrong.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000).

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SO ORDERED.

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DATED:

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August 10, 2017

CHARLES R. BREYER
United States District Judge

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