Kane v. Gastelo

Filing 19

REPORT AND RECOMMENDATION of United States Magistrate Judge re 1 Petition for Writ of Habeas Corpus, filed by Michael D. Kane. Objections to R&R due by 10/29/2020 and Replies due by 11/5/2020. Signed by Magistrate Judge Mitchell D. Dembin on 10/15/2020.(All non-registered users served via U.S. Mail Service)(ag)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9
10

MICHAEL D. KANE,

Case No.: 19cv1354-WQH-MDD
Petitioner,

11
12

v.

13

JOSIE GASTELO, Warden,
Respondent.

14
15

REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
RE: PETITION FOR WRIT OF
HABEAS CORPUS
[ECF No. 1]

16
17

This Report and Recommendation is submitted to United States

18

District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b)(1) and Civil

19

Local Rule 72.1(c) of the United States District Court for the Southern

20

District of California. For the reasons set forth herein, the Court

21

RECOMMENDS Michael D. Kane’s (“Petitioner” or “Kane”) Petition for Writ

22

of Habeas Corpus be DENIED.
I.

23
24
25

A.

FACTUAL BACKGROUND

State Proceedings
“[A] determination of factual issue made by a State court shall be

26

presumed to be correct.” 28 U.S.C. § 2254(e)(1). The following facts, taken

27

from the California Court of Appeal’s June 1, 2018, decision on direct review,
1
19cv1354-WQH-MDD

1

(ECF No. 8-19 (“Lodgment 9”)), have not been rebutted with clear and

2

convincing evidence and must be presumed correct. 28 U.S.C. § 2254(e)(1);

3

Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009).

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Kane was inside a tobacco shop when he noticed a frail older
man, Kevin Kelley, putting $900 in 20-dollar bills into his pants
pocket. After both men exited the store, Kelley walked to a
supermarket in the same shopping center, and Kane drove over to
the supermarket in his vehicle. Kane confronted Kelley outside the
supermarket and demanded that he hand over his money.
According to Kelley’s statement to police, Kane stated something
such as “Give me that cash outta your pocket right now or I’m gonna
stab you” or “cut you.” Kelley told police he saw something in
Kane’s hand that “looked like it could have been a knife.”
Specifically, Kelley stated he saw Kane holding something with a
black handle that could have been a folded up pocket knife or
switchblade knife. However, Kelley did not see any blade. Kelley
believed Kane was trying to hide the knife so no one could see it
but, at the same time, Kane wanted Kelley to feel threatened.
When Kelley did not immediately hand over the money, Kane
took it out of Kelley’s pocket by force, and in the process, he pushed
Kelley to the ground. After Kane fled the scene, police arrived, and
Kelley was transported to the hospital, where it was determined
that he suffered a fractured hip. Kelley underwent a partial hip
replacement surgery. While Kelley was recovering from the
surgery in a skilled nursing facility, he developed a urinary tract
infection due to a catheter that had been inserted during his stay
at the facility. Kelley then developed sepsis from the urinary tract
infection and died from septic shock 17 days after he was assaulted
and robbed by Kane.
Police located Kane by using surveillance video from the
shopping center. Two eyewitnesses to the assault and robbery
subsequently identified Kane in a photographic line up and in
court.
Kane was charged with, and convicted by a jury of, first degree
felony murder and robbery, with the further finding for the robbery
2
19cv1354-WQH-MDD

count that Kane personally used a deadly or dangerous weapon (a
knife). The information alleged that Kane incurred two prior
strikes, two prior serious felonies and three prior prison terms. The
trial court made a true finding as to all of the criminal history
allegations except for one of the prior prison terms.

1
2
3
4

After denying Kane’s Romero motion, the trial court
sentenced Kane to an indeterminate sentence of 75 years to life for
the murder conviction, and a determinate term of 11 years for the
two serious felony priors and one of the prior prison terms. A 25year-to-life sentence relating to the robbery count and a one-year
sentence for the corresponding weapon-use enhancement was
stayed pursuant to section 654. The trial court also stayed the
sentence on one of the prior prison term enhancements.

5
6
7
8
9
10
11

(Lodgment 9 at 3-5) (internal citations omitted).

12

Petitioner filed an appeal with the California Court of Appeal raising

13

four grounds for relief. (Lodgments 4, 6). The appellate court affirmed the

14

trial court in all aspects except it ordered the judgment be amended to strike

15

the prior prison term enhancement and to correct certain clerical issues.

16

(Lodgment 9). On July 11, 2018, Petitioner filed a Petition for Review with

17

the California Supreme Court raising a single argument: the trial court

18

abused its discretion and violated Petitioner’s due process rights by failing to

19

consider the option of striking one of Petitioner’s prior strike convictions.

20

(Lodgment 10). On August 15, 2018, the California Supreme Court denied

21

the petition for review without comment. (Lodgment 11).

22

B.

Federal Proceedings

23

On July 16, 2019, Petitioner, constructively filed a Petition for Writ of

24

Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF Nos. 1, 4). Following a

25

motion to dismiss and Petitioner’s failure to move for a stay of his

26

unexhausted claims, the Court dismissed all but one of the grounds for relief

27

raised in the Petition. (See ECF Nos. 7, 14, 16). Petitioner challenges his
3
19cv1354-WQH-MDD

1

conviction on the grounds that the trial court abused its discretion and

2

violated Petitioner’s due process rights by failing to consider the option of

3

striking one of Petitioner’s prior strike convictions (See ECF No. 1 at 62-66).

4

On September 8, 2020, Respondent filed an Answer and Memorandum

5

of Points in Authorities in support thereof. (ECF No. 18-1 (“Answer”)).

6

Petitioner did not file a Traverse. (See Docket).

7

II.

STANDARD OF REVIEW

8

“The statutory authority of federal courts to issue habeas corpus relief

9

for persons in state custody is provided by 28 U.S.C. § 2254, as amended by

10

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).”

11

Harrington v. Richter, 562 U.S. 86, 97 (2011). Under § 2254(d), federal

12

habeas relief for a claim adjudicated on the merits in state court is granted if

13

the state court adjudication of the claim either: “(1) resulted in a decision that

14

was contrary to, or involved an unreasonable application of, clearly

15

established Federal law, as determined by the Supreme Court of the United

16

States; or (2) resulted in a decision that was based on an unreasonable

17

determination of the facts in light of the evidence presented in the State court

18

proceeding.” 28 U.S.C. § 2254(d).

19

The state court’s decision is “contrary to” clearly established federal law

20

if it either “‘applies a rule that contradicts the governing law set forth in

21

[Supreme Court] cases’ or ‘confronts a set of facts that are materially

22

indistinguishable from a decision of [the] Court and nevertheless arrives at a

23

result different from [Supreme Court] precedent.’” Holley v. Yarborough, 568

24

F.3d 1091, 1098 (9th Cir. 2009) (quoting Williams v. Taylor, 529 U.S. 362,

25

405-06 (O’Connor, J., concurring)). The state court’s decision is “an

26

unreasonable application” of clearly established federal law “if ‘the state

27

court identifies the correct governing legal principle’ but applies the principle
4
19cv1354-WQH-MDD

1

unreasonably to the prisoner’s factual situation.” Holley, 568 F.3d at 1098

2

(quoting Williams, 529 U.S. at 413). “‘[C]learly established Federal law’ for

3

purposes of § 2254(d)(1) includes only ‘the holdings, as opposed to the dicta, of

4

[the Supreme] Court’s decisions.’” Woodall, 134 S.Ct. at 1702 (quoting Howes

5

v. Fields, 565 U.S. 499, 505 (2012)).
III. DISCUSSION

6
7

Petitioner’s sole claim is that the trial court abused its discretion and

8

violated Petitioner’s due process rights by denying his request to strike one of

9

his prior strike convictions pursuant to People v. Superior Court (Romero), 13

10

Cal. 4th 497 (1995) (“Romero motion”). (ECF No. 1 at 62-66). California trial

11

courts have the discretion to dismiss prior strikes in furtherance of justice

12

under California Penal Code Section 1385(a). Romero, 13 Cal. 4th at 529-30.

13

In ruling on a Romero motion, “the court in question must consider whether,

14

in light of the nature and circumstances of his present felonies and prior

15

serious and/or violent felony convictions, and the particulars of his

16

background, character, and prospects, the defendant may be deemed outside

17

the . . . spirit [of California’s Three Strikes law], in whole or in part, and

18

hence should be treated as though he had not previously been convicted of

19

one or more serious and/or violent felonies.” People v. Williams, 17 Cal. 4th

20

148, 161 (1998).

21

Petitioner argues the trial court did not understand its discretion to

22

strike just one of Petitioner’s prior strikes, as opposed to both of them. (ECF

23

No. 8-16 (“Lodgment 6”) at 37-38). Petitioner further argues that this

24

resulted in a sentencing decision that was arbitrary or capricious and

25

violated his Fourtheenth Amendment due process rights. (Id. at 39-40).

26

Respondent contends Petitioner’s claim is not cognizable in a federal habeas

27

proceeding. (Answer at 9).
5
19cv1354-WQH-MDD

1
2

A.

Relevant Background
Post-conviction, Petitioner filed a Romero motion to strike his prior

3

strike convictions for residential burglary from 2009 and 2011. (ECF No. 8-

4

12 (“Lodgment 2”) at 248-53). Petitioner argued that a sentence of 75-years-

5

to-life for the murder conviction plus an 11-year determinate sentence was

6

“overly harsh” in light of his “lack of intent to inflict injury.” (Id. at 249).

7

The trial court weighed the Romero factors and noted that “the majority

8

of them do not weigh in [Petitioner’s] favor.” (ECF No. 8-11 (“Lodgment 1-

9

11”) at 11). The trial court explained that the current offense of murder is “a

10

serious and violent offense,” and that the prior convictions were all within

11

“seven years of the offense date.” (Id. at 11-12). Further, Petitioner’s “crimes

12

[were] escalating in nature, going from nonviolent offenses to violent

13

offenses,” and the “victim in this case was extremely vulnerable.” (Id. at 12)

14

(explaining that Petitioner “took advantage of an elderly man.”). While

15

Petitioner’s attorney argued that he suffered from mental illness, the Court

16

indicated that there was “no documented history of mental illness.” (Id.).

17

The trial court did find one factor weighed in favor of Petitioner because

18

“the Court has adequate sentencing parameters without imposing a three

19

strikes law.” (Id. at 12-13). The trial court explained that “even if the Court

20

strikes the strikes, he’s still looking at 36-years-to-life.” (Id. at 13). However,

21

the trial court concluded that this one factor “is outweighed by the

22

overwhelming [other] factors that the Court mentioned.” (Id.). The trial

23

court denied Petitioner’s “request to strike the strikes or even one of the

24

strikes” and sentenced Petitioner as a third-strike offender to a term of 11

25

years, plus 75-years-to-life. (Id. at 15-16).

26
27

The California Court of Appeal found no abuse of discretion in the trial
court’s denial of the Romero motion, noting that the trial court applied the
6
19cv1354-WQH-MDD

1

proper legal criteria, and understood and exercised its discretion to

2

reasonably find that Petitioner did not fall outside the spirit of the Three

3

Strikes Law:1
The trial court’s comments at the hearing plainly establish
that the trial court understood and considered its discretion to
strike only one of Kane’s two strikes, as it stated that “the request
to strike the strikes or even one of the strikes is denied.” The trial
court’s statement that adequate sentencing parameters existed if it
decided to strike both the strikes does not suggest that the trial
court did not consider whether to strike only one of the strikes.
There was no need for the trial court to explain that a higher
sentence that would be applied if it struck only one of the strikes
would also be adequate, as it had already stated that a lesser
sentence of 25 years to life plus an 11-year determinate term
provided adequate sentencing parameters.

4
5
6
7
8
9
10
11
12
13

(Lodgment 9 at 13).

14

B.

Discussion
Federal habeas relief is not available for errors of state law. Estelle v.

15
16

McGuire, 502 U.S. 62, 67-68 (1991). Matters relating to state sentencing

17

laws generally do not raise a federal constitutional question. See Lewis v.

18

Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie

19

for errors of state law.”). Accordingly, Petitioner’s claim that the trial court

20

abused its discretion in denying his Romero motion is not cognizable on

21

federal habeas review. Brown v. Mayle, 283 F.3d 1019, 1040 (9th Cir. 2002),

22

vacated on other grounds by Mayle v. Brown, 538 U.S. 901 (2003); Ely v.

23
24
25
26
27

The California Court of Appeal’s decision rested on state law grounds and did not
specifically address the federal nature of Petitioner’s claim. “When a state court rejects a
federal claim without expressly addressing that claim, a federal habeas court must
presume that the federal claim was adjudicated on the merits.” Johnson v. Williams, 568
U.S. 289, 301 (2013). As such, the Court presumes the court of appeal adjudicated the
federal nature of Petitioner’s claim on the merits.
1

7
19cv1354-WQH-MDD

1

Terhune, 125 F. Supp. 2d 403, 411 (C.D. Cal. 2000) (finding that petitioner’s

2

claim that the trial court abused its discretion by refusing to strike a prior

3

strike conviction was not a cognizable federal habeas claim).

4

A misapplication of state sentencing law may violate due process if the

5

error is “so arbitrary or capricious as to constitute an independent due

6

process” violation. Richmond v. Lewis, 506 U.S. 40, 50 (1992). However,

7

Petitioner has not shown that the state court’s conclusion was arbitrary or

8

capricious. The appellate court’s finding that the trial court did not abuse its

9

discretion by denying Petitioner’s Romero motion is supported by the record

10

and is objectively reasonable. The trial court considered the specific aspects

11

of Petitioner’s serious criminal history. Although adequate sentencing

12

parameters existed if both prior strikes were stricken, the prior convictions

13

were recent, the severity of Petitioner’s crimes were escalating, murder is a

14

serious crime, the victim was extremely vulnerable, and Petitioner did not

15

have any history of mental illness. Given the record in this case, the Court

16

cannot conclude that the California Court of Appeal’s determination was

17

either contrary to, or involved an unreasonable application of, clearly

18

established federal law.
IV.

19
20

CONCLUSION

For the foregoing reasons, IT IS HEREBY RECOMMENDED that the

21

District Judge issue an Order: (1) approving and adopting this Report and

22

Recommendation, (2) directing that Judgment be entered DENYING the

23

Petition.

24

IT IS HEREBY ORDERED that no later than October 29, 2020, any

25

party to this action may file written objections with this Court and serve a

26

copy on all parties. The document should be captioned “Objections to Report

27

and Recommendation.”
8
19cv1354-WQH-MDD

1

IT FURTHER ORDERED that any reply to the objections shall be

2

filed with the Court and served on all parties no later than November 5,

3

2020. The parties are advised that failure to file objections within the

4

specified time may waive the right to raise those objections on appeal of the

5

Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).

6
7

IT IS SO ORDERED.
Dated: October 15, 2020

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
9
19cv1354-WQH-MDD