Dew v. Hatton et al

Filing 13

ORDER: Adopting Recommendation of United States Magistrate Judge; Granting Respondents' 7 Motion to Dismiss Petition for Writ of Habeas Corpus; Dismissing 1 Petition for Writ of Habeas Corpus; and Declining to Issue Certificate of Appealability. Signed by Judge Michael M. Anello on 7/21/2017.(All non-registered users served via U.S. Mail Service)(ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
Case No.: 16cv1985-MMA (MDD)

DAVID L. DEW,
v.

ORDER:

Petitioner,

ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE
JUDGE;

SHAWN HATTON, Warden, et al.,

[Doc. No. 11]

Respondents.

GRANTING RESPONDENTS’
MOTION TO DISMISS PETITION
FOR WRIT OF HABEAS CORPUS;

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[Doc. No. 7]

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DISMISSING PETITION FOR WRIT
OF HABEAS CORPUS;

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[Doc. No. 1]

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AND DECLINING TO ISSUE
CERTIFICATE OF
APPEALABILITY

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Petitioner David L. Dew (“Petitioner”), a state prisoner, filed a petition for writ of

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habeas corpus (“petition”) pursuant to Tile 28 of the United States Code, Section 2254,

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challenging the constitutionality of his conviction for second-degree felony murder in

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San Diego County Superior Court in light of the United States Supreme Court’s ruling in
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Johnson v. United States, 135 S. Ct. 2551 (2015). See Doc. No. 1.1 Respondents filed a

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motion to dismiss the petition, to which Petitioner responded. See Doc. Nos. 7, 9.

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The matter was referred to United States Magistrate Judge Dembin for preparation

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of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1), and Civil Local

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Rule HC.2. On March 7, 2017, Judge Dembin issued a thorough and well-reasoned

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Report recommending that the Court grant Respondents’ motion to dismiss. See Doc.

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No. 11. Petitioner filed objections to the Report and Recommendation on March 27,

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2017. See Doc. No. 12. For the reasons set forth below, the Court OVERRULES

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Petitioner’s objections in substantial part2 and ADOPTS the Recommendation that the

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petition be dismissed.

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DISCUSSION
1. Standard of Review

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Pursuant to Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. §

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636(b)(1), the Court must “make a de novo determination of those portions of the report .

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

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All citations refer to the CM/ECF pagination.

The Court incorporates the factual background as set forth in the Report and Recommendation,
and adopts that portion of the Report in all respects, except as to footnote 3 on page 8. See Doc. No. 11
at 8 n.3 (finding the petition untimely even if Johnson applies retroactively to collateral vagueness
attacks on California’s second-degree felony murder rule because the deadline to file such a petition was
June 26, 2016—one year after the Supreme Court announced the Johnson decision). Petitioner objects
to this finding, asserting that if Johnson applies retroactively to this case, his petition is timely. Doc.
No. 12 at 4. On May 9, 2016, Petitioner filed a petition for writ of habeas corpus in the California
Supreme Court, raising for the first time his argument that Johnson rendered California’s second-degree
felony murder rule invalid. See Doc. No. 1-2 at 42. The California Supreme Court denied the petition
on June 22, 2016, tolling Petitioner’s AEDPA statute of limitations for 44 days, or until August 5, 2016.
See id. at 44; see also 28 U.S.C. § 2244(d)(2). Petitioner filed the instant petition on August 5, 2016.
See Doc. No. 1. Thus, if Johnson did apply retroactively to this case, the petition is timely.
Accordingly, the Court SUSTAINS Petitioner’s objection and declines to adopt the magistrate judge’s
finding as set forth on page 8, footnote 3 of the Report and Recommendation. However, because the
Court concludes Johnson does not provide the basis for a new constitutional right applicable to
Petitioner for the reasons stated below, the Court’s ruling on Petitioner’s objection does not impact the
Court’s ultimate conclusion that the petition is untimely.
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the findings or recommendations made by the magistrate [judge].” 28 U.S.C. §

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636(b)(1); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

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2. Analysis
Petitioner objects to the Report and Recommendation on two grounds. First,

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Petitioner contends the Supreme Court’s decision in Johnson constitutes a new rule of

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constitutional law which applies retroactively to Petitioner. Second, Petitioner asserts he

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is entitled to a later statute of limitations start date under the Anti-Terrorism and Effective

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Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d) in light of the new rule of

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constitutional law announced in Johnson. See Doc. No. 12.

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AEDPA provides a one-year statute of limitations period for a state prisoner to file

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a federal petition for writ of habeas corpus pursuant to the judgment of the State court.

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28 U.S.C. § 2244(d)(1). The limitation period runs from the latest of:

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(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized by
the Supreme Court and made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.

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28 U.S.C. § 2244(d)(1)(A)-(D). Additionally, “[t]he time during which a properly filed

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application for State post-conviction or other collateral review with respect to the

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pertinent judgment or claim is pending shall not be counted toward any period of

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limitation under this subsection.” 28 U.S.C. § 2244(d)(2).

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Petitioner argues Johnson renders California’s second-degree felony murder rule

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invalid, thereby creating a new rule of constitutional law which applies retroactively to
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Petitioner pursuant to § 2244(d)(1)(C). Doc. No. 12 at 3. “In order for a constitutional

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right newly recognized by the Supreme Court to delay the statute of limitations the right

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must not only be newly recognized, but must also be retroactively applicable to cases on

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collateral review.” Davis v. C.C.I. Tehachapi Warden, 2017 WL 901884, at *3 (C.D.

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Cal. Mar. 6, 2017) (citing Packnett v. Ayers, 2008 WL 4951230, at *4 (C.D. Cal. Nov.

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12, 2008)). The one-year limitations period “runs from the date the right was initially

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recognized, even if the [Supreme] Court does not declare that right to be retroactive until

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later.” Johnson v. Robert, 431 F.3d 992, 992 (7th Cir. 2005) (citing Dodd v. United

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States, 125 S. Ct. 2478, 2481 (2005)).

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The Supreme Court in Johnson found unconstitutionally vague the residual clause

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of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), a federal

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criminal statute. The residual clause of the ACCA defined a “violent felony” as any

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felony that “involves conduct that presents a serious potential risk of physical injury to

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another.” Johnson, 135 S. Ct. 2257. The Supreme Court indicated that the residual

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clause “both denies fair notice to defendants and invites arbitrary enforcement by judges”

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and “denies due process of law.” Id. In Welch v. United States, the Supreme Court held

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that Johnson is a new, substantive decision that has retroactive effect in cases on

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collateral review. 136 S. Ct. 1257, 1268 (2016).

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Here, Petitioner argues California’s second-degree felony murder rule is

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unconstitutionally vague. California law defines second-degree felony murder as “an

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unlawful killing in the course of the commission of a felony that is inherently dangerous

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to human life but is not included among the felonies enumerated in [California Penal

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Code] section 189. . . .” People v. Sarun Chun, 203 P.3d 425, 430 (Cal. 2009) (emphasis

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added). Petitioner asserts just as the phrase “a serious potential risk of physical injury” is

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unconstitutionally vague, so is the phrase “inherently dangerous to life.” See Doc. No. 12

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at 2 (“California’s second-degree felony-murder rule—which covers felonies ‘inherently

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dangerous to life’—relies on precisely the same kind of hypothetical fact-based analysis

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that the Supreme Court found constitutionally impermissible in Johnson.”). Moreover,
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Petitioner claims both the ACCA residual clause and California’s second-degree felony

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murder rule “use a categorical approach to assess risk,” considering crimes in the abstract

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and not according to how the crimes were actually committed. Doc. No. 12 at 2.

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Petitioner relies on the Ninth Circuit’s decision in Dimaya v. Lynch, wherein the

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Ninth Circuit applied Johnson to strike down similarly vague language in the

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Immigration and Nationality Act. 803 F.3d 1110, 1112 (9th Cir. 2015). Petitioner argues

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“the Supreme Court’s analysis in Johnson is not limited to the ACCA, and can be applied

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equally to similar statutes that require a categorical approach to define crime of

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violence[.]” Doc. No. 1 at 22-23; see also Dimaya, 803 F.3d at 1115 (noting that the

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Supreme Court’s reasoning in Johnson “applies with equal force to the similar statutory

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language and identical mode of analysis used to define a crime of violence for purposes

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of the [Immigration and Nationality Act].”). Petitioner urges the Court to “reach the

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same result” as the Ninth Circuit did in the Dimaya case. Importantly, Dimaya is

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currently on appeal before the Supreme Court. 3

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That the Ninth Circuit extended the holding of Johnson, however, is not

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determinative in this case. Pursuant to 28 U.S.C. § 2244(d)(1)(C), the one-year

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limitations period set forth under AEDPA begins to run from the “date on which the

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constitutional right asserted was initially recognized by the Supreme Court, if the right

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has been newly recognized by the Supreme Court and made retroactively applicable to

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cases on collateral review[.]” 28 U.S.C. § 2244(d)(1)(C) (emphasis added). The

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constitutional right acknowledged by the Supreme Court in Johnson is inapposite to the

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case at bar. Neither California’s second-degree murder statute nor the second-degree

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felony murder rule contains the problematic phrase “otherwise involves conduct that

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The Solicitor General, on behalf of the Attorney General, filed a petition for writ of certiorari
with the Supreme Court in light of the Ninth Circuit’s ruling in Dimaya. On September 29, 2016, the
Supreme Court granted certiorari. The Supreme Court heard oral argument on January 17, 2017. On
June 26, 2017, the case was restored to the Court’s calendar for reargument for the October 2017 term.
Additional information pertaining to this case can be found on the Supreme Court’s official website:
https://www.supremecourt.gov/search.aspx?filename=/docketfiles/15-1498.htm.
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presents a serious potential risk of physical injury to another.” As one court from the

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Central District, considering the same challenge Petitioner raises here, noted:

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Johnson is inapposite because Petitioner’s sentence was not enhanced under
ACCA’s ‘residual clause’ or any other similar statute. Indeed, Petitioner
challenges: (1) a state statute; that (2) does not discuss any sentencing
enhancements; and (3) does not require a wide-ranging inquiry into whether
Petitioner’s crimes posed any serious potential risk of physical injury to
another [as in Johnson]. Therefore, because Petitioner was not sentenced
under ACCA’s residual clause, or even any state law equivalent, Johnson
created no new Due Process right applicable to Petitioner, and the
limitations period prescribed in [28 U.S.C. § 2244(d)(1)(C)] does not apply.

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Johnson v. Fox, 2016 WL 8738264, at *2-3 (C.D. Cal. Dec. 20, 2016) (emphasis in

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original), Report and Recommendation adopted by 2017 WL 1395512 (C.D. Cal. Apr. 14,

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2017).

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Further, numerous district courts have rejected the argument that Johnson creates a

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new due process right upon which habeas petitioners may base vagueness challenges to

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California state laws. See Keller v. Hatton, 2017 WL 2771529, at *5 (C.D. Cal. May 19,

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2017) (holding Johnson does not provide the basis for a new constitutional right

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applicable to a petitioner challenging California’s second-degree felony murder rule),

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Report and Recommendation adopted by 2017 WL 2766433 (C.D. Cal. June 26, 2017);

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Huber v. Lizarraga, 2017 WL 2495175, at *2 (C.D. Cal. Apr. 12, 2017) (noting

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“Petitioner has not shown, and Johnson does not suggest, that under the circumstances of

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Petitioner’s case California’s felony murder rule is void for vagueness.”), Report and

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Recommendation adopted by 2017 WL 2495173 (C.D. Cal. May 10, 2017); Renteria v.

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Asunsion, 2016 WL 7336558, at *3 (C.D. Cal. Dec. 16, 2016) (noting that “Johnson

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cannot be read so broadly as to have also found California’s second-degree felony-

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murder elements also unconstitutionally vague.”); Birdwell v. California, 2016 WL

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5897780, at *2 (C.D. Cal. Oct. 5, 2016) (finding “the Johnson decision is irrelevant here

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because Petitioner’s state prison sentence was not enhanced under ACCA’s ‘residual

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clause’ nor was his conviction based on any state analogue of that federal criminal
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statute.”).

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In light of the foregoing, the Court concludes that Johnson does not constitute a

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new rule of constitutional law applicable to Petitioner and OVERRULES Petitioner’s

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objection on this basis.4 In the event the Supreme Court’s ruling in Dimaya announces a

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new rule of constitutional law applicable to Petitioner, Petitioner can move for an order

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from the Ninth Circuit Court of Appeals authorizing the district court to consider a

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second or successive habeas corpus application. See 28 U.S.C. § 2244(b)(1)-(3).

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Moreover, because Johnson does not constitute a new rule of law applicable to Petitioner,

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Petitioner is not entitled to a later start date of the AEDPA statute of limitations. Judge

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Dembin correctly determined the statute of limitations expired in April 1997, and that

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statutory and equitable tolling do not make the petition timely.

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Accordingly, upon due consideration and after conducting a de novo review of the

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pertinent portions of the record, the Court ADOPTS the Recommendation that the

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petition be dismissed.

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CERTIFICATE OF APPEALABILITY

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The federal rules governing habeas cases brought by state prisoners require a

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district court that dismisses or denies a habeas petition to grant or deny a certificate of

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appealability in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll.

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§ 2254. For the reasons set forth above, Petitioner has not shown “that reasonable jurists

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of reason would find it debatable whether the district court was correct in its procedural

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ruling.” Slack v. McDaniel, 529 U.S. 743, 484 (2000). Accordingly, the Court

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DECLINES to issue a certificate of appealability.

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The Supreme Court recently considered a vagueness challenge to another federal law—a
provision of the United States Sentencing Guidelines containing the same language held
unconstitutional in Johnson. See Beckles v. United States, 137 S. Ct. 886 (2017). In Beckles, the Court
held that the Guidelines were not subject to a void-for-vagueness challenge because “[u]nlike the
ACCA, . . . the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they
merely guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory
range.” Id. at 892. Thus, Beckles does not affect this Court’s conclusion that Johnson did not announce
a new rule of constitutional law applicable to Petitioner.
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CONCLUSION

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Based on the foregoing, the Court OVERRULES Petitioner’s objections in

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substantial part, ADOPTS the Recommendation that the petition be dismissed, and

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DISMISSES the petition with prejudice. The Court DECLINES to issue a certificate of

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appealability. The Clerk of Court is instructed to terminate this case and enter judgment

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in favor of Respondents.

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IT IS SO ORDERED.

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Dated: July 21, 2017
_____________________________
HON. MICHAEL M. ANELLO
United States District Judge

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