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)

Download PDF
1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 8 9 10 11 12 KENNETH GERALD TAYLOR, AB7038, ) ) ) Petitioner, ) ) vs. ) ) JOEL MARTINEZ, Warden, ) ) Respondent. ) ) No. C 17-3628 CRB (PR) ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY 13 14 Petitioner, a state prisoner currently incarcerated at the Sierra 15 Conservation Center (SCC) in Jamestown, California, has filed a pro se petition 16 for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a September 19, 17 2015 amendment of his original December 7, 2009 abstract of judgment from 18 Alameda County Superior Court. 19 20 BACKGROUND Petitioner was convicted by a jury in Alameda County Superior of two 21 counts of second degree robbery. In a bifurcated proceeding, the court found true 22 allegations that petitioner had suffered numerous prior convictions, including a 23 prior strike felony conviction. On December 4, 2009, the court sentenced 24 petitioner to a determinate term of 15 years in state prison. 25 Petitioner unsuccessfully appealed his conviction to, and unsuccessfully 26 sought state habeas relief from, the California Court of Appeal. The Supreme 27 Court of California denied review and, on November 16, 2011, denied his final 28 petitions for state habeas relief. 1 Petitioner then unsuccessfully sought federal habeas relief under § 2254. 2 This court denied his federal habeas petition on the merits on April 22, 2013, and 3 the Ninth Circuit denied a certificate of appealability on April 24, 2014. Petitioner returned to Alameda County Superior Court in May 2015 with 4 5 an ex parte request for the state court to correct his December 7, 2009 abstract of 6 judgment. For the first time, petitioner claimed that the abstract of judgment 7 incorrectly reflected a middle term of six years (rather than three years) for the 8 first robbery count, and a middle term of two years (rather than one year) for the 9 second robbery count. On July 23, 2015, the court ordered the clerk to correct 10 the abstract of judgment, which it determined contained a clerical error, to reflect 11 middle terms of three years and one year for the two robbery counts, and to 12 clarify that the court imposed the prior strike felony conviction to double the term 13 for the two robbery counts to eight years. 14 Petitioner challenged the amended abstract of judgment (dated September 15 19, 2015) via state habeas petitions, but the state superior, appellate and high 16 courts all denied him relief. 17 18 19 DISCUSSION A. Standard of Review This court may entertain a petition for a writ of habeas corpus “in behalf 20 of a person in custody pursuant to the judgment of a State court only on the 21 ground that he is in custody in violation of the Constitution or laws or treaties of 22 the United States.” 28 U.S.C. § 2254(a). 23 The petition may not be granted with respect to any claim that was 24 adjudicated on the merits in state court unless the state court’s adjudication of the 25 claim: “(1) resulted in a decision that was contrary to, or involved an 26 unreasonable application of, clearly established Federal law, as determined by the 27 28 2 1 Supreme Court of the United States; or (2) resulted in a decision that was based 2 on an unreasonable determination of the facts in light of the evidence presented 3 in the State court proceeding.” Id. § 2254(d). The petition may be dismissed if it plainly appears from its face and any 4 5 exhibits annexed to it that the petitioner is not entitled to relief. Hendricks v. 6 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 7 B. 8 9 Legal Claims Petitioner claims that Alameda County Superior Court did not have jurisdiction to amend his original December 7, 2009 abstract of judgment, “and 10 that in so doing, he was subjected to double jeopardy and due process violation.” 11 Pet. (ECF No. 1) at 5a. Petitioner apparently believes that the superior court 12 could only reduce his sentence from 15 to 11 years in state prison. The claim is 13 meritless. 14 The petition and exhibits annexed to the petition show that, after petitioner 15 requested in May 2015 that Alameda County Superior Court correct his original 16 December 7, 2009 abstract of judgment, the superior court determined that the 17 original December 7, 2009 abstract of judgment needed to be corrected to 18 properly reflect how the court had arrived at petitioner’s total term of 15 years in 19 state prison. The December 7, 2009 abstract of judgment showed that the court 20 had arrived at the total term of 15 years in state prison by imposing a middle term 21 of six years for the first robbery count and a middle term of two years for the 22 second robbery count, plus seven years for the various prior convictions. It did 23 not mention petitioner’s prior strike felony conviction. The superior court found 24 that the abstract of judgment contained a “clerical error” because it did not 25 properly reflect how the court had arrived at the total term of 15 years in state 26 prison. The court accordingly instructed the clerk to correct the abstract of 27 28 3 1 judgment to reflect that it had arrived at the total term of 15 years in state prison 2 by imposing a middle term of three years for the first robbery count and a middle 3 term of one year for the second robbery count, both doubled by virtue of the prior 4 strike felony conviction (i.e., for a total term of eight years for the two robbery 5 counts), plus seven years for the various other prior convictions. There was no 6 change in petitioner’s total term of 15 years in state prison. 7 The state courts’ rejection of petitioner’s claim that amending the original 8 abstract of judgment amounted to a constitutional violation was not contrary to, 9 or an unreasonable application of, clearly established Supreme Court precedent, 10 or involved an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). 11 The superior court reasonably determined that the original abstract of judgment 12 contained a clerical error because it did not properly reflect how the court had 13 arrived at petitioner’s total term of 15 years in state prison, and reasonably 14 ordered the clerk to correct it. The amended abstract of judgment did not result 15 in a double jeopardy or due process violation because it did not in any way 16 increase petitioner’s total term of 15 years in state prison, which is amply 17 supported by the two counts and numerous priors (including a prior strike felony) 18 for which he was convicted. Cf. Walker v. Endell, 850 F.2d 470, 476 (9th Cir. 19 1987) (federal court generally may not review state sentence that is within 20 statutory limits). Petitioner is not entitled to federal habeas relief on his claim 21 that the amended abstract of judgment amounted to a constitutional violation. 22 See 28 U.S.C. § 2254(d). 23 CONCLUSION 24 For the foregoing reasons, the petition for a writ of habeas corpus is 25 26 DISMISSED for lack of merit. Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a 27 28 4 1 certificate of appealability (COA) under 28 U.S.C. § 2253(c) is DENIED because 2 petitioner has not demonstrated that “reasonable jurists would find the district 3 court's assessment of the constitutional claims debatable or wrong.” Slack v. 4 McDaniel, 529 U.S. 473, 484 (2000). 5 SO ORDERED. 6 DATED: 7 August 10, 2017 CHARLES R. BREYER United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 G:\PRO-SE\CRB\HC.17\Taylor, K.17-3628.dismissal.wpd 27 28 5

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?