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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Walter L. HOSLEY,

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Case No.: 15-cv-0877-JAH-AGS
Petitioner,

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ORDER DENYING PETITIONER’S
MOTION FOR RESENTENCING
(ECF No. 38)

v.
Sandra ALFARO,

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Respondent.

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Hosley, a state prisoner, has a pending petition pursuant to 28 U.S.C. § 2254 for

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review of his state court judgment. moves this Court for an order to resentence him as a

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result of a change in state law. Specifically, he argues that California “Senate Bill[s] 1392

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and 1393” requires that this Court “remove petitioner[’]s priors, and enhancements.” (Mot.,

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ECF No. 38, at 1-2.) But this Court does not sit as an appellate court over state law, see

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Estelle v. McGuire, 502 U.S. 62, 67-68 (1991), and has no authority to resentence Hosley’s

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state criminal judgment due to a change in state law. See Ozuna v. Pfeiffer, No. CV 16-

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7823-SJO(E), 2017 WL 634535, at *6 (N.D. Cal. Aug. 3, 2017) (noting that a change in

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state sentencing law does not affect the availability of federal habeas relief). Instead, if he

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seeks resentencing as a result of a change in state law, he must request that relief from the

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Californian courts. Accordingly, the motion for resentencing is denied.

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Dated: August 3, 2018

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15-cv-0877-JAH-AGS