Thornberry v. Lizarraga

Filing 82

ORDER granting Respondent's 64 Motion to Dismiss. Court overrules Petitioner's Objections 75 , 79 , 81 , and adopts in its entirety the Magistrate Judge's 74 Report and Recommendation. Because the Petitioner has not made a su bstantial showing of the denial of a constitutional right, Court denies him a certificate of appealability. The Clerk shall enter judgment and close the case. Signed by Judge Cynthia Bashant on 11/17/2017. (All non-registered users served via U.S. Mail Service) (jah)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 DANIEL LEE THORNBERRY, Petitioner, 14 15 16 Case No. 16-cv-02083-BAS-AGS ORDER: (1) OVERRULING PETITIONER’S OBJECTIONS (ECF Nos. 75, 79, 81); v. 17 SCOTT KERNAN, Secretary of the California Department of Corrections and Rehabilitation, 18 Respondent. (2) ADOPTING REPORT AND RECOMMENDATION (ECF No. 74); AND (3) GRANTING RESPONDENT’S MOTION TO DISMISS SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS (ECF No. 64) 19 20 21 22 23 Petitioner filed a Second Amended Petition for Habeas Corpus arguing that he 24 “is eligible for resentencing as a matter of law under § 1170.18(a) [Proposition 47].” 25 (ECF No. 61 (“Petition”) at 6.) He claims that the failure of the state court to grant 26 his request for resentencing violated his constitutional right to due process and equal 27 protection. (Petition ¶ 48.) 28 –1– 16cv2083 1 Respondent moved to dismiss arguing that the Petition failed to state a 2 constitutional claim. (ECF No. 64.) Magistrate Judge Stormes filed a Report and 3 Recommendation (“R&R”) recommending that the Court grant the Motion to 4 Dismiss. (ECF No. 74.) Petitioner objects to this R&R. (ECF Nos. 75, 79, 81.) 5 Having reviewed the R&R de novo, the Court agrees with the Magistrate 6 Judge, and therefore OVERRULES the Objections (ECF Nos. 75, 79, 81) and 7 ADOPTS the R&R in its entirety. 8 9 I. LEGAL STANDARD 10 The Court reviews de novo those portions of a Magistrate Judge’s R&R to 11 which objections are made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, 12 or modify, in whole or in part, the findings or recommendations made by the 13 magistrate judge.” Id. “The statute [28 U.S.C. § 636(b)(1)(c)] makes it clear,” 14 however, “that the district judge must review the magistrate judge’s findings and 15 recommendations de novo if objection is made, but not otherwise.” United States v. 16 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). 17 “Neither the Constitution nor the statute requires a district judge to review, de novo, 18 findings and recommendations that the parties themselves accept as correct.” Reyna- 19 Tapia, 328 F.3d at 1121. 20 Objections must be written and specific. See, e.g., Fed. R. Civ. Pr. 72(b)(2) (“[A] 21 party may serve and file specific written objections to the proposed findings and 22 recommendations” of the magistrate judge. In the absence of specific objection, the 23 clear weight of authority indicates that the court need only satisfy itself that there is 24 no “clear error” on the face of the record before adopting the magistrate judge’s 25 recommendation. See, e.g., Fed. R. Civ. P. 72(b) Advisory Comm. Notes (1983) 26 (citing Campbell v. United States Dist. Court, 501 F.3d 196 (9th Cir. 1974)). 27 28 –2– 16cv2083 1 II. ANALYSIS A. Background 2 3 On October 8, 2010, Petitioner pled guilty to one count of robbery. (Lodgment 4 1; Lodgment 6 at 1). Proposition 47, codified as California Penal Code § 1170.18, 5 was a ballot initiative passed by the California voters after Petitioner was sentenced 6 for his robbery conviction. Under § 1170.18, certain felony drug possession and theft 7 convictions could be reduced to misdemeanors upon application to the trial court. 8 The State Court denied Petitioner’s habeas petition requesting resentencing 9 under this statute, noting both that Petitioner had failed to apply to the trial court for 10 resentencing and that robbery is not one of the crimes covered under § 1170.18. 11 (Lodgment 4.) 12 Petitioner files this habeas petition claiming the State Court ruling violated his 13 constitutional right against equal protection and due process. The Magistrate Judge 14 recommended that this Court grant Respondent’s Motion to Dismiss noting that “the 15 fact that Thornberry appended references to federal due process and equal protection 16 rights to his claim does not transform it into a federal claim.” (R&R at 4-5 (citing 17 Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996); Little v. Crawford, 449 F.3d 18 1075, 1081-82 (9th Cir. 2006). 19 Petitioner’s Objections 20 B. 21 In his original objections (ECF No. 75), Petitioner argues that arbitrary denial 22 of his resentencing, without consideration of the offense conduct underlying his 23 conviction, violates due process. In Langford v. Day, 110 F.3d 1380 (9th Cir. 1996), 24 the petitioner made a similar claim arguing that he was denied due process because 25 the state court applied the wrong standard when the court refused to allow him to 26 withdraw his guilty plea. 110 F.3d at 1389. The Ninth Circuit pointed out that a 27 petitioner “may not, however, transform a state-law issue into a federal one merely 28 by asserting a violation of due process. We accept a state court’s interpretation of –3– 16cv2083 1 state law . . . and alleged errors in the application of state law are not cognizable in 2 federal habeas corpus.” Id. (citation omitted). The same rule applies here. Petitioner 3 is ultimately arguing that the state court incorrectly interpreted state law. As the 4 Court said in Langford, “our concern is with [petitioner’s] federal rights.” Id. 5 (emphasis added). 6 Petitioner then argues: (1) that he is not just requesting resentencing but also 7 that his conviction and sentence be vacated, and (2) that the necessary elements for 8 robbery were not proven or pled at the preliminary hearing.1 Neither of these 9 arguments changes the ultimate conclusion that federal habeas courts may not 10 “reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 11 502 U.S. 62, 68 (1991). 12 In his Addenda to his Objections (ECF Nos. 79, 81), Petitioner cites 13 Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718 (2016) and Schriro v. 14 Summerlin, 542 U.S. 348 (2004) for the proposition that the federal court does have 15 jurisdiction to determine whether a rule should be applied retroactively or not. 16 However, these cases address the retroactive effect of U.S. Supreme Court decisions, 17 not California statutes. Montgomery, 136 S. Ct. at 727 (stating that federal court has 18 jurisdiction to decide whether state court incorrectly refused to give retroactive effect 19 to a prior U.S. Supreme Court decision); Schriro, 542 U.S. at 354-55 (discussing 20 retroactivity of a new rule announced by the U.S. Supreme Court). These cases do 21 not deal with a federal court’s ability to reexamine a state-court determination of a 22 newly-passed state law. 23 Petitioner then cites People v. Mora, 214 Cal. App. 4th 1477 (2013) for the 24 proposition that application of a state court rule retroactively does implicate equal 25 protection because it treats two or more similarly situated groups in an unequal 26 manner. The court in Mora, however, ultimately concluded that refusing to apply a 27 new sentencing statute retroactively does not violate equal protection because it 28 1 This is a curious argument since Petitioner pled guilty to robbery. –4– 16cv2083 1 merely classifies defendants based on sentencing dates, not a suspect classification. 2 214 Cal. App. 4th at 1483. But, regardless of that conclusion, this Court agrees with 3 the other district courts that have concluded that a petitioner’s allegations do not 4 implicate constitutional principles of due process or equal protection. See Shell v. 5 Rackley, No. 16cv2320, 2017 WL 3021067, at *5 (S.D. Cal. Jul. 17, 2017), R&R 6 adopted at 2017 WL 3605339 (S.D. Cal. Aug. 22, 2017); McKinney v. Pfeiffer, No. 7 CV15-05268, 2017 WL 1078441, at *4 (C.D. Cal. Jan. 11, 2017), R&R adopted at 8 2017 WL 1073340 (C.D. Cal. Mar. 21, 2017); Myles v. Rackley, No. 16cv0278, 2016 9 WL 6298408, at *2 (E.D. Cal. Oct. 27, 2016), R&R adopted at 2016 WL 7212801 10 (E.D. Cal. Dec. 12, 2016); Adams v. Borders, No. ED CV16-005, 2016 WL 4523163, 11 at *3 (C.D. Cal. Jul. 29, 2016), R&R adopted at 2016 WL 4520906 (C.D. Cal. Aug. 12 29, 2016). 13 14 III. CONCLUSION 15 For the reasons stated above, the Court OVERRULES Petitioner’s Objections 16 (ECF Nos. 75, 79, 81), ADOPTS IN ITS ENTIRETY the Magistrate Judge’s R&R 17 (ECF No. 74), and GRANTS Respondent’s Motion to Dismiss (ECF No. 64). 18 Because Petitioner has not “made a substantial showing of the denial of a 19 constitutional right,” the Court denies him a certificate of appealability. 28 U.S.C. § 20 2253. The Clerk of the Court shall enter judgment and close the case. 21 IT IS SO ORDERED. 22 23 DATED: November 17, 2017 24 25 26 27 28 –5– 16cv2083

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