(HC) Petersen v. Sawyer ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KYLE EVAN PETERSEN, No. 1:20-cv-00371-NONE-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 13 v. PETITIONER’S PETITION FOR WRIT OF HABEAS CORPUS 14 KATHLEEN SAWYER, Director of the Federal Bureau of Prison, (Doc. No. 6) 15 Respondent. 16 17 Petitioner Kyle Peterson is a federal prisoner1 proceeding in propria persona with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his 2013 19 conviction in state court (Case No. HC15967). (Doc. No. 1 at 3, 49.) On March 5, 2013, 20 petitioner was sentenced in state court to four years of imprisonment (with 240 days of credit for 21 time served in custody) after he pled to no contest to possession of child pornography.2 (Id. at 47, 22 49–50.) Beginning in September 2018, petitioner petitioned the state trial court, appellate court, 23 then finally state supreme court for habeas relief with respect to his 2013 conviction—but all of 24 those petitions were denied. (Id. at 49–56.) Petitioner then filed the instant habeas petition on 25 March 11, 2020, raising the same arguments he had presented in state courts. (Id.) On March 16, 26 1 Petitioner was sentenced in United States v. Petersen, Case No. 1:17-cr-00255-NONE-SKO. 27 2 In California, a plea of no contest or nolo contendere “shall be considered the same as a plea of 28 guilty.” Cal. Penal Code § 1016(3). 1 2020, the assigned magistrate judge issued findings and recommendations recommending that the 2 pending petition be dismissed, reasoning that petitioner was no longer in “custody” with respect 3 to his 2013 state court conviction and that a collateral attack on that conviction by way of a 4 federal habeas petition was unavailable to him. (Doc. No. 6 at 24.) Petitioner objected to the 5 findings and recommendations on May 27, 2020. (Doc. No. 9.) 6 The court has reviewed this case de novo pursuant to 28 U.S.C. § 636 (b)(1)(C) and agrees 7 with the magistrate judge’s findings and recommendations. “The first showing a § 2254 8 petitioner must make is that he is ‘in custody pursuant to the judgment of a State court.’” 9 Lackawanna Cty. Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001) (quoting 28 U.S.C. § 2254(a)). 10 As the magistrate judge properly found, because petitioner has served and completed his four- 11 year sentence resulting from the 2013 state court conviction, he is no longer in “custody” within 12 the meaning of § 2254(a) and is thus not entitled to federal habeas relief from that sentence. 13 (Doc. No. 6 at 2.) Although petitioner disagrees with the magistrate judge’s conclusion in his 14 objections, he presents no arguments as to why he is currently in “custody” with respect to his 15 2013 conviction in state court. (Doc. No. 9 at 1–6.) Accordingly, petitioner’s objections do not 16 dissuade the court from concluding that the 2013 state conviction is “no longer open to direct or 17 collateral attack in its own right because [petitioner had] failed to pursue those remedies while 18 they were available (or because the defendant did so unsuccessfully),” and that the 2013 19 conviction “may be regarded as conclusively valid.” Lackawanna, 532 U.S. at 403 (alteration in 20 original). 21 However, even if petitioner is no longer in “custody” as a result of his 2013 state court 22 conviction, he may nonetheless seek federal habeas relief under bring a § 2254 if the object of his 23 petition is to challenge a new “sentence on the basis that the prior conviction [was] used to 24 enhance [the new] sentence” when (1) the prior conviction “was unconstitutionally obtained.” 25 Dubrin v. People of California, 720 F.3d 1095, 1099 (9th Cir. 2013). For example, such relief 26 would be available because of “a failure to appoint counsel in violation of the Sixth Amendment,” 27 Lackawanna, 532 U.S. at 404; or (2) if the prior conviction is unfounded because the petitioner 28 has “compelling evidence that he is actually innocent of the crime for which he was convicted, 1 and which he could not have uncovered in a timely manner.” Id. at 405 (emphasis added); see 2 West v. Ryan, 652 F.3d 1071, 1081 (9th Cir. 2011). The magistrate judge addressed the potential 3 applicability of the two exceptions and properly found them not to be applicable or controlling 4 here for various reasons. (Doc. No. 6 at 2–4.) Significantly, the arguments petitioner raised in 5 his objections to the pending findings and recommendations—that he was not provided the 6 criminal statute of which he was convicted to read beforehand and not afforded effective 7 assistance of counsel, so that his no contest plea was not voluntarily and intelligently made— 8 simply rehash what the state trial court have previously and persuasively discredited as 9 “unbelievable.” (Doc. No. 1 at 49–52); see Briceno v. Scribner, 555 F.3d 1069, 1076 (9th Cir. 10 2009) (“§ 2254(d) established a ‘highly deferential standard for evaluating state court rulings.’” 11 (citation omitted)). Having carefully reviewed the record and relevant law, the court finds no 12 reason to depart from findings made by the state trial court and magistrate judge. Accordingly, 13 the court concludes that there simply is no longer any federal habeas relief to be had for petitioner 14 under § 2254 with respect to his 2013 conviction in state court. 15 The court is also not persuaded that petitioner is entitled to a certificate of appealability 16 (COA) under 28 U.S.C. § 2253. “Section 2253(c)(1)(A) provides that unless a circuit justice or 17 judge issues a COA, an appeal may not be taken from ‘the final order in a habeas corpus 18 proceeding in which the detention complained of arises out of process issued by a State court.’” 19 Harbison v. Bell, 556 U.S. 180, 183 (2009). To be entitled to a COA, petitioner must make a 20 substantial showing that “reasonable jurists could debate whether (or, for that matter, agree that) 21 the petition should have been resolved in a different manner or that the issues presented were 22 adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483– 23 84 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880 (1983)). Neither of the requirements exists 24 here. The court therefore declines to issue a certificate of appealability. 25 For the reasons explained above: 26 1. The findings and recommendations, filed March 16, 2020 (Doc. No. 6), are adopted; 27 2. The petition for writ of habeas corpus is dismissed; 28 ///// WAS 4.6 UVES FERPA INNS VUE I OF EIEN TAY ST Tt 1 3. The Clerk of Court is directed to assign a district judge to this case for the purpose of 2 closing the case and then to enter judgment and close this case; and 3 4. The court declines to issue a certificate of appealability. 4 | IT IS SO ORDERED. a 5 Li. wh F Dated: _ August 19, 2020 wea rE 6 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28