Green v. Hill

Filing 23

ORDER: (1) ADOPTING REPORT AND RECOMMENDATION [ECF No. 18 ]; and (2) Denying Petitioner's Request for Habeas Relief. Certificate of Appealability denied. Signed by Judge Cynthia Bashant on 12/1/2014.(All non-registered users served via U.S. Mail Service)(knb)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GERALD A. GREEN,
Petitioner,

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v.
RICK HILL, Warden,

Case No. 13-cv-01436-BAS-DHB
ORDER:
(1) ADOPTING REPORT AND
RECOMMENDATION
[ECF NO. 18]; AND
(2) DENYING PETITIONER’S
REQUEST FOR HABEAS
RELIEF [ECF NO. 1]

Respondent.

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On June 28, 2012, Petitioner Gerald A. Green, a state prisoner proceeding

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pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.

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Pet’r Pet., ECF No. 1. Petitioner seeks habeas relief from his indeterminate life

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sentence for first degree residential burglary imposed under California’s three

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strikes law in 1997. Pet’r Pet. On October 7, 2012, Respondent Rick Hill filed an

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Answer to the Petition. Respt’t’s Answer, ECF No. 13. On November 19, 2013,

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Petitioner filed a Traverse. Pet’r Traverse, ECF No. 17. On February 27, 2014,

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United States Magistrate Judge David H. Bartick issued a Report and

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Recommendation (“Report”) recommending the court deny the Petition and
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ordering Petitioner and Respondent to file objections to the Report no later than

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April 1, 2014. Report, ECF No. 18. Petitioner was subsequently given until May

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1, 2014 to file objections. ECF No. 20. Petitioner filed objections to the Report on

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April 28, 2014. Pet’r Obj., ECF No. 21.

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For the following reasons, the Court OVERRULES Petitioner’s objections,

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Pet’r Obj., ECF No. 21, ADOPTS the Report in its entirety, Report, ECF No. 18,

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and DENIES the Petition with prejudice. Pet’r Pet., ECF No. 1.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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Petitioner has three first-degree convictions for residential burglary under

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California law: one in October 1984 (Pet’r Pet. 23), a second in August 1988 (id.

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at 22), and a third in August 1997 (id. at 21). Because Petitioner’s 1984 and 1988

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convictions were for “serious offenses” under California law, and because

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Petitioner was being convicted of a serious offense once again in 1997, Petitioner’s

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1997 conviction resulted in an indeterminate life sentence pursuant to California’s

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three strikes law. Pet’r Pet. 21, 24.

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On January 9, 2013, Petitioner filed a petition for a writ of habeas corpus in

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the California Superior Court, San Diego County seeking resentencing under the

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Three Strikes Reform Act (TSRA).1 Pet’r Pet. 25–26. The Superior Court denied

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the petition because Petitioner’s 1997 commitment offense, first degree residential

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burglary, was a serious felony under California Penal Code § 1192.7(c)(18) and

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Petitioner was therefore ineligible for resentencing under TSRA. Pet’r Pet. 24, 26.

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Petitioner subsequently filed a habeas petition in the California Court of Appeal,

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Pet’r Pet. 28, which was denied on the same basis. Pet’r Pet. 29. Petitioner then

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filed a habeas petition in the California Supreme Court, Pet’r Pet. 27, and the

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Court summarily denied review. Pet’r Pet. 30.

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TSRA modified California’s three strikes rule to permit felons to apply for resentencing if their
current conviction was not for a serious or violent offense as defined by California Penal Code §§
1192.7(c) or 667.5(c). See Cal Penal Code § 1170.126(e); People v. Yearwood¸ 151 Cal. Rptr. 3d
901, 906 (2013), as modified on denial of reh'g (Feb. 19, 2013), review filed (Mar. 6, 2013).
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On January 24, 2013, Petitioner filed this Petition seeking 28 U.S.C. § 2254

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habeas relief from his 1997 indeterminate life sentence. Pet’r Pet. 14–19, 31–37.

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Petitioner argued he is entitled to federal habeas relief because he claims he is

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eligible for resentencing under the TSRA. Pet’r Pet. 16. Petitioner also argued he

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is entitled to relief because, alternatively, his 1984 and 1988 convictions were not

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considered serious offenses under California law at the time he committed them,

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and therefore his 1997 indeterminate life sentence under the three strikes law was

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improper. Pet’r Pet. 33. United States Magistrate Judge Bartick issued the Report

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recommending the Court deny the Petition on both grounds advanced by

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Petitioner. Report, ECF No. 18. On April 28, 2014, Petitioner timely objected to

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the Report. Pet’r Obj., ECF No. 21.

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II.

LEGAL STANDARD

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When a party timely objects to a magistrate judge’s report and

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recommendations pursuant to Federal Rule of Civil Procedure 72(b)(2), the district

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court “must make a de novo determination of those portions of the report . . . to

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which objection is made,” and “may accept, reject, or modify, in whole or in part,

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the findings or recommendations made by the magistrate.”

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636(b)(1)(C); see also Fed. Rule Civ. P. 72(b)(3); U.S. v. Raddatz, 447 U.S. 667,

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676 (1980) (“Congress intended to permit whatever reliance a district judge, in the

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exercise of sound judicial discretion, [chooses] to place on a magistrate's proposed

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findings and recommendations.”); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th

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Cir. 2003) (holding 28 U.S.C. § 636(b)(1)(C) “makes it clear that the district judge

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must review the magistrate judge’s findings and recommendations de novo if

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objection is made”) (emphasis in original).

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III.

28 U.S.C. §

ANALYSIS

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Judge Bartick recommends this Court deny the Petition. Report 8:19–25,

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ECF No. 18. Judge Bartick determined Petitioner’s request for resentencing under

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TSRA failed to raise a cognizable federal claim and, even assuming a federal claim
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was raised, the California courts reasonably rejected Petitioner’s request for

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resentencing.

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argument concerning his 1984 and 1988 convictions failed to raise a federally

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cognizable claim and, even assuming it did, such a challenge is time-barred under

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the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Report

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7:13–8:18.

Report 5:28–7:5.

Judge Bartick also determined Petitioner’s

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Petitioner objects to the Report on two grounds. See Pet’r Obj., ECF No. 21.

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First, Petitioner again argues his 1984 and 1988 convictions for first degree

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residential burglary underlying his 1997 indeterminate life sentence did not

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constitute serious offenses under California law when he plead guilty to the offense

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in 1984 and a jury convicted him of the offense in 1988. Pet’r Obj. 13:13–21.

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Accordingly, Petitioner believes his 1997 indeterminate life sentence under the

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three strike rule was improper.

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contends his Petition raises a federally cognizable claim for § 2254 habeas relief

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which the Court may adjudicate. Pet’r Obj. 18:22–24, 20:19–24. Petitioner’s

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objections do not address the remainder of the Report’s recommendations, and

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those points (that the California Courts reasonably rejected Petitioner’s request for

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resentencing and that Petitioner’s argument concerning his 1984 and 1988

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convictions is time-barred) are considered conceded. See U.S. v. Reyna-Tapia, 328

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F.3d 1114, 1121 (9th Cir. 2003) (holding 28 U.S.C. § 636(b)(1)(C) “makes it clear

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that the district judge must review the magistrate judge’s findings and

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recommendations de novo if objection is made”) (emphasis in original).

Pet’r Obj. 16:14–18:21.

Second, Petitioner

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A federal court “shall entertain an application for a writ of habeas corpus on

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

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

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Unites States.” 28 U.S.C. § 2254(a). AEDPA governs this case. See Medina v.

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Hornung, 386 F.3d 872, 877 (9th Cir. 2004) (noting AEDPA governs appeals of

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state court habeas determinations).

AEDPA requires the court to defer to
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reasonable factual determinations made by the state courts as these determinations

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are presumed correct. 28 U.S.C. § 2254(e)(1); see also Schriro v. Landrigan¸ 550

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U.S. 465, 473–74 (2007) (“AEDPA also requires federal habeas courts to presume

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the correctness of state courts’ factual findings . . . .”). Under AEDPA, a habeas

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petition may only be granted with respect to a claim adjudicated on the merits by a

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state court in two instances. 28 U.S.C. § 2254(d)(1)–(2); Early v. Packer, 537 U.S.

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3, 8 (2002); Medina, 386 F.3d at 877.

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First, federal habeas relief may be granted if the state court’s adjudication

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resulted in a decision that was contrary to, or involved an unreasonable application

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of, clearly established federal law. 28 U.S.C. § 2254(d)(1); Early, 537 U.S. 3, 8

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(2002); Medina, 386 F.3d at 877. “Clearly established federal law” means the law

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“as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1); accord Medina,

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386 F.3d at 877. Accordingly, the state court must have applied a rule different

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from the governing law set forth in Supreme Court cases, or decided a case

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differently than the Supreme Court on a set of materially indistinguishable facts.

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Bell v. Cone, 535 U.S. 685, 694 (2002). Where there is no “clearly established

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Supreme Court precedent addressing the issue” before the court, the court “must

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defer to the state court’s decision.” Moses v. Payne, 555 F.3d 742,754 (9th Cir.

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2009); see also Carey v. Musladin, 549 U.S. 70, 77 (2006) (holding a dearth of

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Supreme Court rulings on the issue before the district court precluded federal

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habeas relief from a state court adjudication on the merits of a plaintiff’s state

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habeas petition).

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Alternatively, a habeas petition may be granted where the state court’s

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adjudication resulted in a decision that was based on an unreasonable

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determination of the facts in light of the evidence presented at the state court

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proceeding. 28 U.S.C. § 2254(d)(2); Early, 537 U.S. at 8; Medina, 386 F.3d at

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877. The state court must have unreasonably applied a governing legal principle

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articulated by the Supreme Court, Bell, 535 U.S. at 694, and this unreasonable
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application must have been “objectively unreasonable,” meaning more than merely

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“incorrect or erroneous.” Locker v. Andrade, 538 U.S. 63, 75 (2003).

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A.

Petitioner Fails to Raise a Federally Cognizable Claim in
Challenging his 1984 and 1988 Convictions.

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The Court agrees with Judge Bartick’s determination that Petitioner’s

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challenge to his 1984 and 1988 convictions underlying his 1997 indefinite life

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sentence fails to raise a federally cognizable claim. Matters related to sentencing

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under state law are governed by state law, and federal habeas relief is not available

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for alleged state court errors in the interpretation or application of those laws. See,

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e.g., Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a

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federal habeas court to reexamine state-court determination on state-law

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questions.”); Brown v. Mayle, 283 F.3d 1019, 1040 (9th Cir. 2002) (holding a

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federal habeas challenge to a state court’s denial of a Romero motion was barred

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from review in a federal habeas proceeding), vacated on other grounds, Mayle v.

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Brown,538 U.S. 901 (2003).

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2254 habeas petitions to challenge sentence enhancements to state convictions

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which are no longer open to direct or collateral attack. See Lackawanna Cnty.

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Dist. Attorney v. Cross¸ 532 U.S. 394, 403-404 (2001) (holding state court

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convictions no longer open to direct or collateral attack are conclusively valid and,

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if these convictions are later used by a state court to enhance a criminal sentence,

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such sentence may not be challenged “through a petition under § 2255 on the

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ground that the prior conviction was unconstitutionally obtained”).

Further, the Supreme Court bars the utilization of §

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Thus, in challenging whether his 1984 and 1988 convictions were for serious

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felonies under California law, Petitioner does not raise federal claims which the

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Court may adjudicate. Petitioner’s objection to the Report has not demonstrated

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his attack on his 1984 and 1988 convictions for first degree residential burglary

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raises a federal claim under either avenue of relief AEDPA provides. Petitioner

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has not shown the California Court of Appeal contrarily or unreasonable applied
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Supreme Court case law, nor that the Court of Appeal reached an unreasonable

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determination of the facts of his case. Petitioner’s first objection speaks only to his

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1984 and 1988 state court convictions and do not address the Court of Appeal’s

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determination of his habeas petition. See, Pet’r Obj. 8–10, ECF No. 21.

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Accordingly, because Petitioner’s first objection constitutes direct attacks to
his 1984 and 1988 convictions, he fails to raise a cognizable federal claim.
B. Petitioner Fails to Raise a Federally Cognizable Claim in Requesting
Resentencing Under TSRA.

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The Court also agrees with Judge Bartick’s determination that Petitioner’s

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request for resentencing under TSRA fails to raise a federally cognizable claim.

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Petitioner’s second objection conclusively argues his Petition raises a federally

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cognizable claim for § 2254 habeas relief because he “argued in the State . . .

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whether [his] prior convictions were [c]onstitutionally valid strikes under the laws

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and the facts” underlying his 1997 indeterminate life sentence. Pet’r Obj. 20:19–

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24, ECF No. 21. However, the objection does not argue the California Court of

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Appeal contrarily or unreasonably applied Supreme Court case law, or reached an

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unreasonable determination of the facts of his case, in denying his request for

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resentencing under TSRA.

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Petitioner’s second objection proffers a delineation of AEDPA’s two avenues of

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federal habeas relief followed by various headnotes from Supreme Court cases

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discussing substantive due process and fundamental fairness. Id.

See generally Pet’r Obj. 18:22–31:5.

Rather,

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As explained above, federal habeas relief is not available for alleged errors

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in a state court’s interpretation or application of its sentencing laws. See Estelle,

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502 U.S. at 67–68; Mayle, 283 F.3d at 1040. Therefore, that Petitioner argued

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whether his 1984 and 1988 convictions for first degree residentially burglary were

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constitutionally valid in his state habeas proceedings does not itself confer federal

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jurisdiction in this federal habeas proceeding. Additionally, the cases discussing

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substantive due process and fundamental fairness Petitioner cites do not
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demonstrate that the California Court of Appeal’s denial of his request for

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resentencing under TSRA raises a federally cognizable claim under either avenue

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of relief AEDPA affords. See Pet’r Obj. 20:25–31:5.
Accordingly, Petitioner’s second objection fails to indicate that his request

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for resentencing under TSRA raises a cognizable federal claim.

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IV.

CONCLUSION & ORDER

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After considering Petitioner’s objections and conducting a de novo review of

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them, the Court concludes Petitioner’s two objections to the Report are without

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merit. Additionally, Judge Bartick’s reasoning in those portions of the Report not

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objected to is sound. Accordingly, the court ADOPTS the Report in its entirety

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(ECF No. 18), OVERRULES Petitioner’s objections (ECF No. 21), and DENIES

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this habeas petition with prejudice in its entirety (ECF No. 1).

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Moreover, because reasonable jurists would not find the court’s assessment

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of the claims debatable or wrong, the court DENIES a certificate of appealability.

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See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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IT IS SO ORDERED.
Dated: December 1, 2014

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