Locke v. Paramo

Filing 18

ORDER: (1) Overruling Petitioner's Objection; (2) Adopting Report and Recommendation; (3) Granting Respondent's Motion to Dismiss; and (4) Dismissing With Prejudice Petitioner's Petition Signed by Judge Janis L. Sammartino on 1/8/2018 (All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARVIN K. LOCKE,

Case No.: 17-CV-453 JLS (JMA)
Petitioner,

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v.

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ORDER: (1) OVERRULING
PETITIONER’S OBJECTION; (2)
ADOPTING REPORT AND
RECOMMENDATION; (3)
GRANTING RESPONDENT’S
MOTION TO DISMISS; AND (4)
DISMISSING WITH PREJUDICE
PETITIONER’S PETITION

DANIEL PARAMO, Warden,

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Respondent.

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(ECF Nos. 8, 14.)

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Presently before the Court is Petitioner Marvin K. Locke’s Petition for a Writ of

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Habeas Corpus, (“Petition,” ECF No. 1), Respondent’s Response to the Petition, (“Opp’n,”

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ECF No. 5), and Petitioner’s Traverse, (“Traverse,” ECF No. 12). Magistrate Judge Jan

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M. Adler issued a Report and Recommendation, (“R&R,” ECF No. 13), recommending

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that the Court deny Petitioner’s Petition. While Petitioner did not file any objections to the

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R&R, he filed a Motion for Certificate of Appealability, which includes objections to the

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R&R, (“CoA MTN,” ECF No. 17). The Court addresses Petitioner’s arguments in his

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Motion.

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Having considered the Parties’ arguments and the law, as well as all supporting

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documents, the Court ADOPTS Judge Adler’s Report and Recommendation, DENIES

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Petitioner’s Motion for Certificate of Appealability, and DISMISSES WITH

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PREJUDICE Petitioner’s Petition.

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BACKGROUND

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Judge Adler’s Report and Recommendation contains a complete and accurate

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recitation of the relevant portions of the factual and procedural histories underlying the

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Petitioner’s Petition.

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background as set forth therein.

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(See R&R 1–7.)1

This Order incorporates by reference the

LEGAL STANDARD

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

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court’s duties regarding a magistrate judge’s report and recommendation. The district court

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“shall make a de novo determination of those portions of the report . . . to which objection

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is made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also United

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States v. Raddatz, 447 U.S. 667, 673–76 (1980). In the absence of a timely objection,

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however, “the Court need only satisfy itself that there is no clear error on the face of the

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record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s

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note (citing Campbell v. U.S. Dist. Court, 510 F.2d 196, 206 (9th Cir. 1974)).

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ANALYSIS

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In his Petition, Petitioner alleges (1) a petition for writ of habeas corpus review is an

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appropriate vehicle for a second or successive petition; and (2) his conviction for second-

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degree murder is invalid under Johnson v. United States, 135 S. Ct. 2551 (2015). (Petition

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Pin citations refer to the CM/ECF page numbers electronically stamped at the top of each page.
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6–7; Traverse 11–12.) Judge Adler recommends this Court find the first issue moot and

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deny Petitioner’s claim on the second issue. (R&R 10, 13.) In his Motion for Certificate

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of Appealability, Petitioner states he is entitled to a Certificate of Appealability for various

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reasons. (CoA MTN 3.) Petitioner then objects to various portions of the R&R as to the

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second issue. This Court will review, de novo, those parts of the R&R to which Plaintiff

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objects and will review for clear error the parts of the R&R to which Plaintiff does not

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object.

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I.

Ground One

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Petitioner argues “a petition for writ of habeas corpus review is appropriate [sic]

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vehicle for second or successive [sic] petition.” (Petition 6.) Judge Adler recommends

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denying this claim as moot because this is Petitioner’s first federal habeas petition. (R&R

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10.) The Court finds no error in this finding and ADOPTS the R&R as to this claim. The

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claim is DENIED AS MOOT.

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II.

Ground Two

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A jury found Petitioner guilty of second degree murder and assault with a firearm.

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(See ECF No. 6-24.) A finding was also made that Petitioner committed the offense for

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the benefit of a street gang. (Id.) Petitioner challenges his conviction of second degree

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murder as invalid under Johnson v. United States, 135 S. Ct. 2551 (2015). (See Traverse

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11–12.) In Johnson, the Supreme Court found a clause in the Armed Career Criminal Act

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(“ACCA”) to be unconstitutionally vague. 135 S. Ct. at 2555–56. The ACCA increases

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one’s prison time if he has three or more earlier convictions for a “serious drug offense” or

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“violent felony.” Id. at 2555. One definition of “violent felony” is: “burglary, arson, or

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extortion, involves use of explosives, or otherwise involves conduct that presents a serious

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potential risk of physical injury to another.” Id.; see 18 U.S.C. § 924(e)(2)(B) (emphasis

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added). The Court found the italicized clause in this definition to be unconstitutionally

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vague. 135 S. Ct. at 2557.

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Here, Petitioner argues the phrase “inherently dangerous to human life” in the

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second degree felony murder statute is unconstitutionally vague, like the clause in Johnson.
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(Traverse 11.)

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because he was not convicted for second degree felony murder. (R&R 11–12.) Judge

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Adler also determined there is no evidence the jury was given any instruction as to a felony

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murder charge. (Id. at 12.) Judge Adler recommends the Court deny this claim.

Judge Adler found that Petitioner has no standing to bring this claim

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In response, Petitioner argues he was found guilty of express and implied malice,

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with a street gang allegation attached. (CoA MTN 3.) He argues the prosecutor “elevate[d]

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the criminality of murder” and the jury could not give “credence to a possible lesser

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charge.” (Id.) 2 It is unclear what Petitioner is arguing and how this relates to Judge Adler’s

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finding. It is true Petitioner’s charge was enhanced by the finding he committed the offense

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for the benefit of a street gang. To the extent Petitioner is making new arguments beyond

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those in his Petition, the Court does not consider them. See Marshall v. Chater, 75 F.3d

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1421, 1426–27 (10th Cir. 1996) (“Issues raised for the first time in objections to the

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magistrate judge’s recommendation are deemed waived.”); see also United States v.

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Howell, 231 F.3d 615, 621 (9th Cir. 2000) (holding that the district court, in reviewing

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objections to a magistrate judge’s report and recommendation, is not required to consider

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evidence that was not presented to the magistrate judge).

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Petitioner also argues an ambiguous jury instruction was given. (CoA MTN 4.) His

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argument is unclear; he may be arguing the jury instruction for the street gang allegation

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should not list crimes, or, he may be arguing it is “unreasonable” for the jury instruction to

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list the crimes listed in California Penal Code section 189. (Id.; see ECF No. 6-12, at 147

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(jury instruction for Street Gang Allegation).) First, Petitioner has never before argued the

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jury instructions were ambiguous, so the Court does not consider the argument here. To

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the extent Petitioner argues the Street Gang Allegation jury instruction was improperly

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given, the Court disagrees. Evidence was presented that Petitioner killed the victim

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Petitioner also refers to CALJIC 3.31 as evidence the jury could not consider a lesser charge. (CoA
MTN 3 (citing ECF No. 6-12, at 116).) But this jury instruction, “Concurrence of Act and Specific
Intent,” has nothing to do with felony murder.
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because Petitioner stated the victim made gang-related comments and gestures. (ECF No.

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6-18, at 2–6.) An expert testified that Petitioner was a gang member and Petitioner killed

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the victim for the purpose of enhancing the reputation of himself and his gang. (Id. at 4.)

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Petitioner argues Judge Adler erred in finding that “inherently dangerous to human

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life” was not part of the jury instructions. (CoA MTN 5.)

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references an appendix which contains all the jury instructions given to the jury at this trial.

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(ECF No. 6-12, at 77–160.) Two of the instructions given were Jury Instruction 8.30 and

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8.31, which pertain to second degree murder, not felony murder. (Id. at 121–22.)3 The

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Court agrees with Judge Adler: “there is simply no mention of the felony murder rule

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anywhere in the jury instructions” given to the jury in Petitioner’s case. (R&R 13 (citing

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ECF No. 6-12, at 77–160).) There is also no reference to “inherently dangerous to human

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life.” Thus, because the felony-murder rule has nothing to do with Petitioner’s case, he has

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no standing to argue the felony-murder rule is unconstitutional.

In his Petition, Petitioner

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Petitioner further objects to the R&R, stating the elements of his case “proved that

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the facts as interpreted amount to ‘inherently dangerous to human life.’” (CoA MTN 5.)

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While this may be true, and while the jury may have deemed Petitioner’s actions dangerous

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when they convicted Petitioner of second degree murder, this does not elevate Petitioner’s

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conviction to felony murder, and he was not convicted of felony murder. Thus, the Court

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DENIES Petitioner’s second claim WITH PREJUDICE.

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III.

Certificate of Appealability

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In order to obtain a certificate of appealability, a petitioner must make “a substantial

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showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). Specifically,

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if a court denies a petition, a certificate of appealability may only be issued “if jurists of

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reason could disagree with the district court’s resolution of his constitutional claims or that

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jurists could conclude the issues presented are adequate to deserve encouragement to

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Jury Instruction 8.32 pertains to felony murder; there is no indication this instruction was given at
Petitioner’s trial. (See ECF No. 1-3, at 9 (Superior Court Judge Rodriguez finding the same).)
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proceed further.” Miller–El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v.

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McDaniel, 529 U.S. 473, 484 (2000).

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Petitioner argues jurists could disagree with the Court’s resolution of his

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constitutional claims and that jurists could conclude the issues presented are adequate to

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deserve encouragement to proceed further. (CoA MTN 6 (citing Miller-El, 537 U.S. 327).)

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The Court finds that Petitioner did not make a substantial showing of the denial of a

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constitutional right, the issues are not debatable among jurists of reason, and a court could

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not resolve the issues in a different manner. See Miller-El, 537 U.S. at 327. The Court

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therefore DENIES a certificate of appealability.

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CONCLUSION

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Given the foregoing, the Court ADOPTS the R&R, (ECF No. 13), OVERRULES

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Petitioner’s Objections, (ECF No. 17), and DENIES Petitioner’s Motion for a Certificate

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of Appealability, (id.). Because this concludes the litigation in this matter, the Clerk

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SHALL close the file.

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IT IS SO ORDERED.
Dated: January 8, 2018

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