(HC) Mueck v. Anglea ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN MUECK, No. 2:18-cv-2619-TLN-EFB P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 HUNTER ANGLEA, 15 Respondent. 16 17 Petitioner is a state prisoner who, proceeding without counsel, seeks a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. He filed his petition on September 24, 2018. ECF No. 1. 19 On October 1, 2018, the court directed respondent to submit an answer or a motion in response to 20 the petition. ECF No. 8. On November 29, 2018, respondent filed a motion to dismiss 21 (“motion”) (ECF No. 14) wherein he argues that the immediate petition fails to raise a federal 22 question. Petitioner filed an opposition on March 20, 2019 (ECF No. 20) and, accordingly, the 23 motion is now ready for disposition. 24 Background 25 The California Court of Appeal recited the following procedural background: 26 In February 2012, defendant pleaded guilty to offering to bribe a witness (§ 137, subd. (a)), and admitted two prior strike offenses. On 27 June 4, 2012, he was sentenced to 25 years to life in state prison. 28 1 In July 2014, defendant filed a petition to recall his sentence and for resentencing pursuant to section 1170.126. 2 Later in July 2014, the Proposition 36 court determined that 3 defendant had presented a prima facie case for relief and set the matter for a qualification hearing. 4 In October 2014, the Proposition 36 court referred the matter to 5 probation for an updated report for resentencing. 6 On November 4, 2014, California voters approved Proposition 47, which took effect November 5, 2014 (Cal. Const., art. II, §10, subd. 7 (a).) 8 On November 14, 2014, the People filed a brief in opposition to defendant's petition, arguing that his release would present an 9 unreasonable risk of danger to public safety under section 1170.126, subdivision (f). 10 On November 19, 2014, the Proposition 36 court ordered the parties 11 to file supplemental briefs addressing whether Proposition 47's definition of “unreasonable risk of danger to public safety” was 12 applicable to determining suitability for resentencing under Proposition 36. 13 In early December 2014, both sides filed their respective briefs, and 14 thereafter, the People filed two additional briefs on the issue. In their third supplemental brief filed January 2, 2015, the People alerted the 15 court to the Fifth Appellate District's recent decision in People v. Valencia, supra, 232 Cal.App.4th 514, holding that Proposition 47's 16 definition of “unreasonable risk of danger to public safety” does not apply to resentencing petitions under Proposition 36.1 (Valencia, at 17 p. 519, 533.) 18 On January 14, 2015, a hearing was held on defendant's suitability for resentencing. As a preliminary matter, the Proposition 36 court 19 indicated that it would follow the Fifth Appellate District's decision in People v. Valencia and would not utilize the Proposition 47 20 definition of “unreasonable risk of danger to public safety” in considering defendant's petition. The Proposition 36 court then found 21 that resentencing would pose an unreasonable risk of danger to public safety and denied the petition. 22 23 Lodg. Doc. No. 7 (ECF No. 16-7 at 2-3). Before the state court of appeal, petitioner argued that 24 the Proposition 36 court erred in refusing to apply the “unreasonable risk of danger to public 25 safety” definition contained in Proposition 47. Id. at 2. The court of appeal rejected that 26 argument. Id. at 2, 7. Petitioner sought review from the California Supreme Court on the same 27 1 [footnote three in original text] As set forth above, ante footnote 2, the California 28 Supreme Court granted review in that case on February 18, 2015. 1 issue (Lodg. Doc. No. 8, ECF No. 16-8) and, on November 29, 2017, it dismissed his petition for 2 review (Lodg. Doc. No. 9, ECF No. 16-9). 3 Petitioner now argues that his Fourteenth Amendment right to due process was violated 4 when the Proposition 36 court, in determining he was an “unreasonable risk of danger to public 5 safety” refused to apply Proposition 47’s definition of the same. 6 Standard of Review 7 In the context of federal habeas claims, a motion to dismiss is construed as arising under 8 Rule 4 of the Rules Governing Section 2254 in the United States District Courts which “explicitly 9 allows a district court to dismiss summarily the petition on the merits when no claim for relief is 10 stated.” O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (quoting Gutierrez v. Griggs, 11 695 F.2d 1195, 1198 (9th Cir. 1983)). Accordingly, a respondent is permitted to file a motion to 12 dismiss after the court orders a response, and the court should use Rule 4 standards in reviewing 13 the motion. See Hillery v. Pulley, 533 F. Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982). Rule 4 14 specifically provides that a district court may dismiss a petition if it “plainly appears from the 15 face of the petition and any exhibits annexed to it that petitioner is not entitled to relief in the 16 district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 17 Analysis 18 Respondent argues that this claim presents no cognizable federal question. The court 19 agrees.2 It is well settled that federal habeas relief is not available for errors of state law. Estelle 20 v. McGuire, 502 U.S. 62, 67 (1991). And petitioner’s claim is purely one of state law. Other 21 federal courts considering habeas claims arising under Propositions 36 or 47 have consistently 22 found as much. See, e.g., Garza v. Borders, 2017 U.S. Dist. LEXIS 7072, at *3-5 (E.D. Cal. Jan. 23 18, 2017) (“Petitioner fails to advance any colorable claim of a violation of the U.S. Constitution” 24 in challenging the state court's refusal to resentence him under Proposition 47); Foster v. 25 California, 2018 U.S. Dist. LEXIS 74653, at *8 (C.D. Cal. May 2, 2018) (“A claim premised on 26 either Proposition 36 or Proposition 47 is not cognizable on federal habeas review.”); Cowan v. 27 2 Accordingly, the court declines to reach respondent’s separate argument regarding the 28 timeliness of the petition. 1 || Gastelo, 2018 U.S. Dist. LEXIS 149487, *11 (S.D. Cal. Aug. 13, 2018) (“[T]o the extent that 2 || Petitioner seeks to challenge the state courts’ specific determination that he was ineligible for 3 || resentencing under Proposition 36, that claim is not cognizable in this case because it turns solely 4 | on the interpretation of state law.”). And petitioner may not, as he attempts to do here, convert a 5 || state law claim into a federal one simply by characterizing his claims as federal constitutional 6 || violations. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1997) (‘[The petitioner] may not 7 |... transform a state-law issue into a federal one merely by asserting a violation of due process’’); 8 || see also Adams v. Borders, 2016 U.S. Dist. LEXIS 115880, at *8 (C.D. Cal. July 29, 2016) (“The 9 | fact that Petitioner may be attempting to characterize his claim concerning resentencing under 10 || Proposition 47 as a federal constitutional claim is not sufficient to render it cognizable.”) (internal 11 || citation omitted). 12 Conclusion 13 Accordingly, it is RECOMMENDED that respondent’s motion to dismiss (ECF No. 14) 14 | be GRANTED and the petition be DISMISSED for failure to state a cognizable federal question. 15 These findings and recommendations are submitted to the United States District Judge 16 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 17 || after being served with these findings and recommendations, any party may file written 18 || objections with the court and serve a copy on all parties. Such a document should be captioned 19 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 20 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 21 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). In 22 || his objections petitioner may address whether a certificate of appealability should issue in the 23 || event he files an appeal of the judgment in this case. See Rule 11, Rules Governing 24 || § 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a 25 | final order adverse to the applicant). 26 | DATED: August 6, 2019. tid, PDEA EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 28