(HC) Grant v. Sherman ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 CHRIS GRANT, ) Case No.: 1:19-cv-01242-SKO (HC) ) 12 Petitioner, ) ORDER TO ASSIGN DISTRICT JUDGE TO CASE ) 13 v. ) FINDINGS AND RECOMMENDATION TO ) DISMISS PETITION 14 ) 15 STU SHERMAN, Warden, ) [TWENTY-ONE DAY OBJECTION DEADLINE] ) 16 Respondent. ) ) 17 18 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254. 20 Petitioner is currently in the custody of the California Department of Corrections and 21 Rehabilitation (“CDCR”) serving a sentence of 40 years-to-life for his convictions in Santa Clara 22 County of two counts of robbery. In this petition, Petitioner challenges a state court decision 23 upholding the CDCR’s determination that he is not entitled to parole consideration under California’s 24 Proposition 57. Upon review of the petition, it is clear that Petitioner is not entitled to habeas relief. 25 Therefore, the Court recommends that the petition be SUMMARILY DISMISSED. 26 I. PROCEDURAL BACKGROUND 27 On January 13, 2009, Petitioner was convicted of two counts of second degree robbery in 28 violation of Cal. Penal Code § 212.5(c), with multiple enhancements under Cal. Penal Code §§ 1 667(a)(1) and 1170.12(a)-(d). (Doc. 1 at 28.) On March 27, 2009, Petitioner was sentenced to a total 2 term of 40 years-to-life. (Doc. 1 at 1.) 3 On November 8, 2016, California voters adopted Proposition 57, known as “The Public Safety 4 and Rehabilitation Act of 2016.” Proposition 57 granted authority to the Secretary of the CDCR to 5 adopt new regulations governing credit earning for inmates. Thereafter, Petitioner submitted a CDCR 6 Form 22 “Inmate/Parolee Request” in which he sought early parole consideration pursuant to 7 Proposition 57. (Doc. 1 at 54.) Petitioner was advised that he was ineligible for early parole 8 consideration, because he had been convicted of a violent offense. (Doc. 1 at 54.) He requested review 9 by a supervisor, but he was again informed that he did not qualify because of his convictions for bank 10 robbery. (Doc. 1 at 54.) Petitioner then filed an administrative appeal. (Doc. 1 at 47.) His appeal was 11 denied at the first level for the same reason. (Doc. 1 at 48.) He next filed an administrative appeal at 12 the second level of review, and his appeal was rejected for the same reason. (Doc. 1 at 45-46.) 13 Petitioner then appealed to the third level of review, and the appeal was denied. (Doc. 1 at 43-44.) 14 On October 19, 2018, Petitioner filed a petition for writ of habeas corpus in the Kings County 15 Superior Court alleging that he is entitled to early parole consideration because his convictions for 16 bank robbery are not violent felonies. (Doc. 1 at 29-30.) On November 30, 2018, the superior court 17 denied the petition, noting that “Petitioner is serving a [sic] felony terms for two counts of robbery, 18 which are classified as violent felonies pursuant to [Cal.] Penal Code section 667.5, subdivision (c)(9). 19 Accordingly, Petitioner has been properly classified as a violent offender and he is not entitled to early 20 parole under Proposition 57.” (Doc. 1 at 30.) On January 7, 2019, Petitioner filed a habeas petition in 21 the California Court of Appeal, Fifth Appellate District (“Fifth DCA”). (Doc. 1 at 27.) On February 22 28, 2019, the Fifth DCA summarily denied the petition. (Doc. 1 at 27.) Petitioner then filed a habeas 23 petition in the California Supreme Court, and the petition was summarily denied on June 19, 2019. 24 (Doc. 1 at 26.) On September 6, 2019, Petitioner filed the instant federal petition in this Court. 25 II. DISCUSSION 26 A. Preliminary Review of Petition 27 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to make a preliminary 28 review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it 1 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 2 the district court . . . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Advisory 3 Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, 4 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 5 answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001). 6 B. Failure to State a Cognizable Federal Claim 7 Petitioner challenges the state court decision denying his request for early parole consideration. 8 He claims the CDCR wrongly denied his request, because his convictions for bank robbery do not 9 qualify as violent felonies for purposes of California’s Proposition 57. 10 Proposition 57 added Article I, section 32 to the California Constitution which provides: 11 § 32. Public Safety and Rehabilitation Act of 2016 12 (a) The following provisions are hereby enacted to enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order, notwithstanding 13 anything in this article or any other provision of law. 14 (1) Parole Consideration: Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the 15 full term for his or her primary offense. 16 (A) For purposes of this section only, the full term for the primary offense means the longest term of imprisonment imposed by the court for any 17 offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence. 18 (2) Credit Earning: The Department of Corrections and Rehabilitation shall have 19 authority to award credits earned for good behavior and approved rehabilitative or educational achievements. 20 (b) The Department of Corrections and Rehabilitation shall adopt regulations in furtherance of 21 these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall certify that these regulations protect and enhance public safety. 22 23 Cal. Const. art. I, § 32 (emphasis added). Essentially, Proposition 57 provides an inmate who has 24 completed his base term with a hearing before the Board of Parole Hearings. (Cal. Const. Art I, Sec. 25 32(a)). 26 For purposes of Proposition 57, violent felonies are defined in California Penal Code § 27 667.5(c). See People v. Harris, 2017 WL 423084 at *2 (Cal. App. 2017). Section 667.5(c)(9) defines 28 the meaning of violent felony to include “any robbery.” Therefore, Petitioner was convicted of a 1 violent felony rendering Proposition 57 inapplicable to his case. The state court’s determination that 2 California's Proposition 57 is inapplicable to Petitioner’s case is binding on this court. See Bradshaw 3 v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court's interpretation of state 4 law, including one announced on direct appeal of the challenged conviction, binds a federal court 5 sitting in habeas corpus”). As the Supreme Court held in Swarthout v. Cooke, 562 U.S. 216, 222 6 (2011), it is not this Court's role to determine whether California's laws or regulations were correctly 7 applied in Petitioner's case. Therefore, Petitioner's claim is not cognizable under federal habeas 8 review. 9 In addition, in Nettles v. Grounds, 830 F.3d 922, 934-35 (9th Cir. 2016), cert. denied, 137 S. 10 Ct. 645 (2017), the Ninth Circuit held that a prisoner's claim, if successful, will not necessarily lead to 11 immediate or speedier release from custody falls outside the “core of habeas corpus” and must be 12 pursued (if at all) in a civil rights action under 42 U.S.C. § 1983, rather than in a habeas action. 13 Nettles, 830 F.3d at 927-28; see, e.g., Borstad v. Hartley, 668 Fed.Appx. 696, 697 (9th Cir. 2016) 14 (success on petitioners' claims that the lengthening of intervals between parole hearings caused by 15 Marsy's Law violated their rights under Ex Post Facto Clause “would not necessarily result in a 16 shortening of their sentences. Thus, the district court in each case lacked jurisdiction to grant 28 17 U.S.C. § 2254 habeas relief. Nettles, 830 F.3d at 935–37.”). 18 In this case, success on Petitioner’s claims will not necessarily lead to immediate or more 19 speedy release from custody and therefore falls outside the core of habeas corpus. If he prevails on his 20 claim that he is entitled to relief under Proposition 57, it does not necessarily follow that he will be 21 released from prison on a date sooner than otherwise would occur. This is because Proposition 57, if 22 applicable, only makes Petitioner eligible for parole consideration, and does not command his release 23 from prison. He still must be found suitable for parole before he may be released from prison. If he 24 prevails on any of his claims, the remedy would be a parole consideration hearing rather than an 25 outright release from prison. Under Nettles, Petitioner’s only potential recourse in federal court is to 26 file a § 1983 complaint because his claim falls outside the core of habeas corpus. 27 In an appropriate case, a habeas petition may be construed as a civil rights complaint under 42 28 U.S.C. § 1983. Wilwording v. Swenson, 404 U.S. 249, 251 (1971); see Nettles, 830 F.3d at 935-36. 1 Although the court may construe a habeas petition as a civil rights complaint, it is not required to do 2 so. Since the time when Wilwording was decided there have been significant changes in the law. For 3 example, the filing fee for a habeas petition is five dollars; for civil rights cases, the fee is now $400 4 (with $50 of that fee reduced if the prisoner is allowed to proceed in forma pauperis). A prisoner is 5 now required to pay the fee, even if granted in forma pauperis status, by way of deductions from 6 income to the prisoner's trust account. See 28 U.S.C. § 1915(b). A prisoner who might be willing to 7 file a habeas petition for which he would not have to pay a filing fee might feel otherwise about a civil 8 rights complaint for which the $350 fee would be deducted from income to his prisoner trust account. 9 Also, a civil rights complaint that is dismissed as malicious, frivolous, or for failure to state a claim 10 counts as a “strike” under 28 U.S.C. § 1915(g), which is not true for habeas cases. Further, Petitioner’s 11 petition is not amenable to conversion because it does not name the proper defendant or seek the 12 correct relief. See Nettles, 830 F.3d at 936 (quoting Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 13 2005)) (in order to be converted, petition must be “‘amenable to conversion on its face, meaning that it 14 names the correct defendants and seeks the correct relief.’”) 15 It is important to note that this court has not determined that a claim would succeed if brought 16 in a civil rights action under 42 U.S.C. § 1983. The court has referred to § 1983 as “potential recourse” 17 because it would be premature in this habeas action to decide whether a claim actually could be stated 18 under 42 U.S.C. § 1983. The Court only decides today that a habeas petition is the wrong vehicle for a 19 prisoner to pursue enforcement of any federal rights he has as a result of the passage of Proposition 57. 20 III. ORDER 21 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a District Judge 22 to the case. 23 IV. RECOMMENDATION 24 The Court HEREBY RECOMMENDS that the petition be SUMMARILY DISMISSED with 25 prejudice. 26 This Findings and Recommendation is submitted to the United States District Court Judge 27 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the 28 Local Rules of Practice for the United States District Court, Eastern District of California. Within 1 twenty-one days after being served with a copy, Petitioner may file written objections with the court 2 and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate 3 Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling 4 pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the 5 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 6 1153 (9th Cir. 1991). 7 8 IT IS SO ORDERED. 9 Sheila K. Oberto Dated: September 10, 2019 /s/ . 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28