Contreras v. Rackley

Filing 16

REPORT AND RECOMMENDATION re 11 Respondent's MOTION to Dismiss 28 U.S.C. 2254 Petition for Writ of Habeas Corpus filed by R. Rackley. Objections to R&R due by 2/16/2018, Replies due by 2/23/2018. Signed by Magistrate Judge Jan M. Adler on 2/1/2018.(All non-registered users served via U.S. Mail Service)(acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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HECTOR M. CONTRERAS,
Petitioner,

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REPORT & RECOMMENDATION

v.

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Case No.: 17CV422-AJB(JMA)

R. RACKLEY, Warden,
Respondent.

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Petitioner Hector M. Contreras, a state prisoner proceeding pro se, initiated

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this habeas corpus case pursuant to 28 U.S.C. § 2254. [Doc. No. 1.] His First

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Amended Petition (“FAP”), filed April 14, 2017, is the operative pleading. [Doc.

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No. 6.] Respondent has filed a Motion to Dismiss contending Petitioner has not

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exhausted either of the two habeas claims raised in the FAP. [Doc. No. 11.]

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Alternatively, Respondent contends these claims do not present a federal

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question. [Id.] The Motion to Dismiss is opposed by Petitioner. [Doc. No. 15.]

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The Court has reviewed the FAP and the parties’ briefs and, for the following

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reasons, RECOMMENDS the Honorable Anthony J. Battaglia GRANT

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Respondent’s Motion to Dismiss.

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17CV422-AJB(JMA)

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I.

BACKGROUND

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Petitioner was convicted on March 4, 1997, in the Superior Court of California,

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County of San Diego County, for possession of a firearm by a felon (Cal. Pen.

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Code, §12021(a)(1), reenacted as § 29800(a)(1)). [Lodgment No. 1, p. 5 of 16.]

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Because of his two strike priors he was sentenced to an indeterminate term of 27

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years to life. Seventeen years later he filed a petition for resentencing, pursuant

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to the Three Strikes Reform Act (“TSRA”) (Cal. Pen. Code § 1170.126 et seq.). In

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the petition for resentencing, Petitioner argued his conviction did not bar him from

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relief under the TSRA because he was convicted of possessing a firearm,

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whereas the TSRA disqualifies an inmate from recall only if he was “armed with”

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or “used” a firearm in committing the offense. [Lodgment No. 2, Appendix 3, p. 14

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of 22.] That petition was denied on October 4, 2014. [Lodgment No. 1, p. 5 of 16.]

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In doing so, the trial court found that Petitioner had “ready access” to the weapon

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and, therefore, was armed with a firearm at the time of the offense and was not

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eligible for relief under Cal. Pen. Code § 1170.126. [Lodgment No. 2, Appendix 3,

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p. 14 of 22.]

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Petitioner appealed, arguing that the trial court’s denial of his petition for re-

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sentencing was not supported by the evidence. [Lodgment No. 1.] On November

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10, 2015, the California Court of Appeal, Fourth Appellate District, Division One,

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affirmed the judgment, finding substantial evidence to support the trial court’s

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conclusion that Petitioner was “armed” at the time of the offense. [Lodgment No.

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2, Appendix 3, pp. 12-20 of 22.] Specifically, the Court of Appeal found Petitioner

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had “ready access” to the firearm he possessed and was, therefore, statutorily

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ineligible for re-sentencing. [Id.] On December 22, 2015, Petitioner filed a Petition

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for Review in the California Supreme Court, raising the same claim rejected by

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the Court of Appeal. [Lodgment No. 2.] The California Supreme Court denied that

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Petition on January 27, 2016. [Lodgment No. 3.]

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17CV422-AJB(JMA)

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Thereafter, Petitioner initiated this case. In the FAP, Petitioner raises two

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claims, namely that his due process rights and his equal protection rights were

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violated by the erroneous finding that that he was “armed” within the meaning of

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Cal. Pen. Code § 1170.126 and, therefore, was ineligible for relief.

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II.

DISCUSSION

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Respondent now moves to dismiss the FAP, arguing the claims are

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unexhausted and the FAP fails to state a federal Constitutional claim. [Doc. No.

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11.]
A. Petitioner’s Claims are Unexhausted.

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A state prisoner’s federal habeas petition may not be granted if state

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remedies are unexhausted. See 28 U.S.C. § 2254(b)(1)(A). To satisfy the

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exhaustion requirement a petitioner must first provide the state courts with a “’fair

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opportunity’ to apply controlling legal principles to the facts bearing on his [or her]

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constitutional claim.” Anderson v. Harless, 459 U.S. 4, 6 (1982). In most

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instances, a claim is exhausted once it is presented to a state’s highest court.

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See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002). “A petitioner has

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satisfied the exhaustion requirement if he has ‘fairly presented’ his federal claim

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to the highest state court with jurisdiction to consider it....” Johnson v. Zenon, 88

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F.3d 828, 829 (9th Cir. 1996). A claim is fairly presented if it is presented in the

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federal habeas petition in a manner that is the “substantial equivalent” of how it

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was presented in the state courts. Pappageorge v. Sumner, 688 F.2d 1294,

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1295 (9th Cir. 1982); Schiers v. California, 333 F.2d 173, 174 (9th Cir. 1964).

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“The state courts have been given sufficient opportunity to hear an issue when

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the petitioner has presented the state court with the issue’s factual and legal

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basis.” Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999) (emphasis

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added); See also Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (legal basis);

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and Correll v. Stewart, 137 F.3d 1404, 1411-12 (9th Cir. 1998) (factual basis).

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17CV422-AJB(JMA)

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The petitioner must reference specific provisions of the federal constitution

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or statutes or cite to federal case law. See Lyons v. Crawford, 232 F.3d 666, 668,

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670 (9th Cir. 2000) as modified by 247 F.3d 904 (9th Cir. 2001)). A petitioner

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must “alert the state courts to the fact that he [is] asserting a claim under the U.S.

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Constitution.” Hivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) A “mere

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similarity between a claim of state and federal error is insufficient to establish

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exhaustion.” Id.

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In his Petition for Review to the Supreme Court, Petitioner presented one

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argument – that he lacked the requisite general intent, as defined by Cal. Crim.

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Jury Instruction 205, for the armed allegation because he did not act intentionally

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or on purpose. [Lodgment No. 2, pp. 5-10 of 22.] The firearm in question was

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discovered after Petitioner was pulled over for a traffic violation. [Lodgment No.

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1, p. 6 of 16.] It was discovered that he was driving on a suspended driver’s

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license. [Id.] Alex Gutierrez was in the front passenger seat and Jesus Padilla

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was in the left rear seat. [Id.] The rear and middle rear seats were taken up by a

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large speaker enclosure that extended a few inches past the front edge of the

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seat and encroached on the left rear seat. [Id. at p. 7 of 16.] The firearm, a

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sawed off shotgun, was located on the floor of the rear seat. [Id.] It was not

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loaded and no ammunition was found, either in the car or on Petitioner. [Id.]

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Petitioner argued to the Supreme Court that the Court of Appeal erroneously

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determined Petitioner had “ready access” to the firearm because he needed “only

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to reach down into the floorboard well from his driver’s seat” or to transfer to the

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rear seat. [Lodgment No. 2, p. 8 of 22.] Neither action was possible, Petitioner

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argued, given the configuration of the vehicle and speaker system and the

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presence of the other occupants. [Id.] He contended he should, therefore, have

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not been found to be ineligible for resentencing under the TSRA.

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Here, Plaintiff presents two claims, citing due process and equal protection
violations. [Doc. No. 6.] Both claims are predicated on his argument that the
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17CV422-AJB(JMA)

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record does not support a finding Petitioner was “armed” because the weapon

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was not loaded and there was no ammunition present. [Id. at pp. 6-7 of 25.]

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Neither of these claims are the “substantial equivalent” of the claim Petitioner

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presented to the California Supreme Court, which was based solely on California

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law and relied on a different factual theory as to why the “armed” element was

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not satisfied by the facts of Petitioner’s case. Consequently, the claims made by

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Petitioner in this case are unexhausted.

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B. Petitioner’s Claims Do not State a Federal Constitutional Claim

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A federal habeas corpus petition must allege a deprivation of federal rights

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to present a cognizable claim pursuant to § 2254. 28 U.S.C. § 2254; Estelle v.

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McGuire, 502 U.S. 62, 68 (1991). A state prisoner is entitled to federal habeas

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corpus relief only if he is held in custody in violation of the Constitution, laws, or

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treaties of the United States. 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 68. Absent

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a constitutional violation, a federal court may not challenge a state court’s

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interpretation of its laws or rules. Id., 502 U.S. at 68; see also Wainwright v.

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Goode, 464 U.S. 78, 84 (1983); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.

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1985). Federal courts are only concerned with errors of state law if they rise to

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the level of a constitutional violation. Oxborrow v. Eikenberry, 877 F.2d

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1395, 1400 (9th Cir. 1989). Therefore, “a federal court is limited to deciding

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whether a conviction violated the Constitution, laws or treaties of the United

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States.” Estelle, 502 U.S. at 67-68.

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Although Petitioner has filed his claims under 28 U.S.C. § 2254, his

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argument as to both claims is that the state courts incorrectly interpreted and

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applied California law, which he now contends was a due process and equal

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protection violation. A state law issue, however, cannot be transformed into a

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federal question simply by alleging the denial of a federal right. Langford v. Day,

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110 F.3d 1380, 1389 (9th Cir. 1997). As such, the claims presented in the FAP

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are not cognizable under federal habeas law.
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17CV422-AJB(JMA)

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III.

CONCLUSION
Based on the foregoing, the Court RECOMMENDS District Judge Battaglia

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GRANT Respondent’s Motion to Dismiss; The undersigned submits this Report

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and Recommendation to District Judge Battaglia pursuant to 28 U.S.C. §

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636(b)(1).

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IT IS ORDERED that no later than February 16, 2018, any party to this

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action may file written objections with the Court and serve a copy on all parties.

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The document should be captioned “Objections to Report and

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Recommendation.”

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IT IS FURTHER ORDERED that any reply to the objections shall be filed

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with the Court and served on all parties no later than February 23, 2018. The

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parties are advised that failure to file objections within the specified time may

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waive the right to raise those objections on appeal of the Court's order. Martinez

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v. Ylst, 951 F.2d 1153 (9th Cir.1991).

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Dated: February 1, 2018

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17CV422-AJB(JMA)