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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DANIEL LEE THORNBERRY,
Petitioner,

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Case No. 16-cv-02083-BAS-AGS
ORDER:
(1) OVERRULING PETITIONER’S
OBJECTIONS (ECF Nos. 75, 79, 81);

v.

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SCOTT KERNAN, Secretary of the
California Department of
Corrections and Rehabilitation,

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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)

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Petitioner filed a Second Amended Petition for Habeas Corpus arguing that he

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“is eligible for resentencing as a matter of law under § 1170.18(a) [Proposition 47].”

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(ECF No. 61 (“Petition”) at 6.) He claims that the failure of the state court to grant

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his request for resentencing violated his constitutional right to due process and equal

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protection. (Petition ¶ 48.)

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Respondent moved to dismiss arguing that the Petition failed to state a

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constitutional claim. (ECF No. 64.) Magistrate Judge Stormes filed a Report and

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Recommendation (“R&R”) recommending that the Court grant the Motion to

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Dismiss. (ECF No. 74.) Petitioner objects to this R&R. (ECF Nos. 75, 79, 81.)

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Having reviewed the R&R de novo, the Court agrees with the Magistrate

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Judge, and therefore OVERRULES the Objections (ECF Nos. 75, 79, 81) and

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ADOPTS the R&R in its entirety.

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I.

LEGAL STANDARD

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The Court reviews de novo those portions of a Magistrate Judge’s R&R to

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which objections are made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject,

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or modify, in whole or in part, the findings or recommendations made by the

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magistrate judge.” Id. “The statute [28 U.S.C. § 636(b)(1)(c)] makes it clear,”

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however, “that the district judge must review the magistrate judge’s findings and

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recommendations de novo if objection is made, but not otherwise.” United States v.

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Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original).

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“Neither the Constitution nor the statute requires a district judge to review, de novo,

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findings and recommendations that the parties themselves accept as correct.” Reyna-

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Tapia, 328 F.3d at 1121.

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Objections must be written and specific. See, e.g., Fed. R. Civ. Pr. 72(b)(2) (“[A]

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party may serve and file specific written objections to the proposed findings and

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recommendations” of the magistrate judge. In the absence of specific objection, the

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clear weight of authority indicates that the court need only satisfy itself that there is

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no “clear error” on the face of the record before adopting the magistrate judge’s

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recommendation. See, e.g., Fed. R. Civ. P. 72(b) Advisory Comm. Notes (1983)

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(citing Campbell v. United States Dist. Court, 501 F.3d 196 (9th Cir. 1974)).

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II.

ANALYSIS
A. Background

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On October 8, 2010, Petitioner pled guilty to one count of robbery. (Lodgment

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1; Lodgment 6 at 1). Proposition 47, codified as California Penal Code § 1170.18,

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was a ballot initiative passed by the California voters after Petitioner was sentenced

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for his robbery conviction. Under § 1170.18, certain felony drug possession and theft

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convictions could be reduced to misdemeanors upon application to the trial court.

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The State Court denied Petitioner’s habeas petition requesting resentencing

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under this statute, noting both that Petitioner had failed to apply to the trial court for

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resentencing and that robbery is not one of the crimes covered under § 1170.18.

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(Lodgment 4.)

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Petitioner files this habeas petition claiming the State Court ruling violated his

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constitutional right against equal protection and due process. The Magistrate Judge

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recommended that this Court grant Respondent’s Motion to Dismiss noting that “the

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fact that Thornberry appended references to federal due process and equal protection

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rights to his claim does not transform it into a federal claim.” (R&R at 4-5 (citing

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Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996); Little v. Crawford, 449 F.3d

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1075, 1081-82 (9th Cir. 2006).

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Petitioner’s Objections

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B.

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In his original objections (ECF No. 75), Petitioner argues that arbitrary denial

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of his resentencing, without consideration of the offense conduct underlying his

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conviction, violates due process. In Langford v. Day, 110 F.3d 1380 (9th Cir. 1996),

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the petitioner made a similar claim arguing that he was denied due process because

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the state court applied the wrong standard when the court refused to allow him to

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withdraw his guilty plea. 110 F.3d at 1389. The Ninth Circuit pointed out that a

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petitioner “may not, however, transform a state-law issue into a federal one merely

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by asserting a violation of due process. We accept a state court’s interpretation of
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state law . . . and alleged errors in the application of state law are not cognizable in

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federal habeas corpus.” Id. (citation omitted). The same rule applies here. Petitioner

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is ultimately arguing that the state court incorrectly interpreted state law. As the

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Court said in Langford, “our concern is with [petitioner’s] federal rights.” Id.

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(emphasis added).

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Petitioner then argues: (1) that he is not just requesting resentencing but also

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that his conviction and sentence be vacated, and (2) that the necessary elements for

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robbery were not proven or pled at the preliminary hearing.1 Neither of these

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arguments changes the ultimate conclusion that federal habeas courts may not

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“reexamine state-court determinations on state-law questions.” Estelle v. McGuire,

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502 U.S. 62, 68 (1991).

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In his Addenda to his Objections (ECF Nos. 79, 81), Petitioner cites

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Montgomery v. Louisiana, __ U.S. __, 136 S. Ct. 718 (2016) and Schriro v.

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Summerlin, 542 U.S. 348 (2004) for the proposition that the federal court does have

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jurisdiction to determine whether a rule should be applied retroactively or not.

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However, these cases address the retroactive effect of U.S. Supreme Court decisions,

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not California statutes. Montgomery, 136 S. Ct. at 727 (stating that federal court has

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jurisdiction to decide whether state court incorrectly refused to give retroactive effect

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to a prior U.S. Supreme Court decision); Schriro, 542 U.S. at 354-55 (discussing

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retroactivity of a new rule announced by the U.S. Supreme Court). These cases do

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not deal with a federal court’s ability to reexamine a state-court determination of a

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newly-passed state law.

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Petitioner then cites People v. Mora, 214 Cal. App. 4th 1477 (2013) for the

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proposition that application of a state court rule retroactively does implicate equal

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protection because it treats two or more similarly situated groups in an unequal

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manner. The court in Mora, however, ultimately concluded that refusing to apply a

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new sentencing statute retroactively does not violate equal protection because it

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This is a curious argument since Petitioner pled guilty to robbery.
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merely classifies defendants based on sentencing dates, not a suspect classification.

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214 Cal. App. 4th at 1483. But, regardless of that conclusion, this Court agrees with

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the other district courts that have concluded that a petitioner’s allegations do not

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implicate constitutional principles of due process or equal protection. See Shell v.

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Rackley, No. 16cv2320, 2017 WL 3021067, at *5 (S.D. Cal. Jul. 17, 2017), R&R

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adopted at 2017 WL 3605339 (S.D. Cal. Aug. 22, 2017); McKinney v. Pfeiffer, No.

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CV15-05268, 2017 WL 1078441, at *4 (C.D. Cal. Jan. 11, 2017), R&R adopted at

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2017 WL 1073340 (C.D. Cal. Mar. 21, 2017); Myles v. Rackley, No. 16cv0278, 2016

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WL 6298408, at *2 (E.D. Cal. Oct. 27, 2016), R&R adopted at 2016 WL 7212801

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(E.D. Cal. Dec. 12, 2016); Adams v. Borders, No. ED CV16-005, 2016 WL 4523163,

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at *3 (C.D. Cal. Jul. 29, 2016), R&R adopted at 2016 WL 4520906 (C.D. Cal. Aug.

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29, 2016).

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III.

CONCLUSION

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For the reasons stated above, the Court OVERRULES Petitioner’s Objections

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(ECF Nos. 75, 79, 81), ADOPTS IN ITS ENTIRETY the Magistrate Judge’s R&R

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(ECF No. 74), and GRANTS Respondent’s Motion to Dismiss (ECF No. 64).

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Because Petitioner has not “made a substantial showing of the denial of a

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constitutional right,” the Court denies him a certificate of appealability. 28 U.S.C. §

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2253. The Clerk of the Court shall enter judgment and close the case.

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IT IS SO ORDERED.

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DATED: November 17, 2017

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