Hosley v. Foulk

Filing 39

ORDER denying 38 Petitioner's motion for resentencing. Signed by Magistrate Judge Clinton Averitte for Magistrate Judge Andrew G. Schopler on 8/03/2018. (All non-registered users served via U.S. Mail Service)(jpp)

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1 2 3 UNITED STATES DISTRICT COURT 4 SOUTHERN DISTRICT OF CALIFORNIA 5 6 Walter L. HOSLEY, 7 Case No.: 15-cv-0877-JAH-AGS Petitioner, 8 9 ORDER DENYING PETITIONER’S MOTION FOR RESENTENCING (ECF No. 38) v. Sandra ALFARO, 10 Respondent. 11 12 Hosley, a state prisoner, has a pending petition pursuant to 28 U.S.C. § 2254 for 13 review of his state court judgment. moves this Court for an order to resentence him as a 14 result of a change in state law. Specifically, he argues that California “Senate Bill[s] 1392 15 and 1393” requires that this Court “remove petitioner[’]s priors, and enhancements.” (Mot., 16 ECF No. 38, at 1-2.) But this Court does not sit as an appellate court over state law, see 17 Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), and has no authority to resentence Hosley’s 18 state criminal judgment due to a change in state law. See Ozuna v. Pfeiffer, No. CV 16- 19 7823-SJO(E), 2017 WL 634535, at *6 (N.D. Cal. Aug. 3, 2017) (noting that a change in 20 state sentencing law does not affect the availability of federal habeas relief). Instead, if he 21 seeks resentencing as a result of a change in state law, he must request that relief from the 22 Californian courts. Accordingly, the motion for resentencing is denied. 23 24 Dated: August 3, 2018 25 26 27 28 1 15-cv-0877-JAH-AGS

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