(HC) Batton v. Lizarraya ( 2019 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARIO BATTON, No. 2:19-CV-0016-KJM-DMC-P 12 Petitioner, 13 v. AMENDED ORDER 14 JOE LIZARRAYA,1 15 Respondent. 16 17 On the court’s own motion, the order at ECF No. 20 is AMENDED by this order. 18 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 19 habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 20 Judge as provided by Eastern District of California local rules. 21 On July 16, 2019, the Magistrate Judge filed findings and recommendations, 22 which were served on the parties and which contained notice that the parties may file objections 23 within the time specified therein. Plaintiff filed timely objections to the findings and 24 recommendations. 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, 26 this court has conducted a de novo review of this case. Having reviewed the file, the court finds 27 28 1 Respondent’s correct name is Joe Lizarraga. 1 the findings and recommendations to be supported by the record and by proper analysis with 2 respect to the court’s lack of jurisdiction over plaintiff’s successive petition. Because the court 3 does not have jurisdiction over the petition, it need not address the remainder of the issues raised 4 by the magistrate judge with respect to the habeas petition and so the court declines to adopt those 5 findings and recommendations. 6 Furthermore, the magistrate judge dismisses petitioner’s motion to reduce sentence 7 under California Penal Coe section 1170(d)(1), ECF No. 11, without explanation. See Finding 8 and Recommendations, ECF No. 7. A motion to reduce a sentence imposed by the federal court 9 is not subject to a successive filing rule. See United States v. Orantes-Arriaga, No. 3:16-CV- 10 02414-MA, 2017 WL 3446289, at *3 (D. Or. Aug. 10, 2017) (no rule barring court’s 11 consideration of second motion to reduce sentence based on 18 U.S.C. § 3582(c)), appeal 12 dismissed, No. 17-35648, 2018 WL 3956617 (9th Cir. May 25, 2018). However, petitioner was 13 sentenced by the state court. Therefore, his motion to reduce his sentence requests relief that is 14 outside the court’s habeas powers. “A habeas court ‘has the power to release’ a prisoner, but . . . 15 ‘[i]t cannot revise the state court judgment . . . .’” Douglas v. Jacquez, 626 F.3d 501, 504 (9th 16 Cir. 2010) (quoting Fay v. Noia, 372 U.S. 391, 430 (1963), overruled on other grounds 17 by Wainwright v. Sykes, 433 U.S. 72, 87 (1977)). Petitioner’s motion for resentencing, ECF 18 No. 11, is denied for these reasons. 19 Under Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the court 20 has considered whether to issue a certificate of appealability. Before petitioner can appeal this 21 decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 22 Where the petition is denied on the merits, a certificate of appealability may issue under 23 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 24 constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of 25 appealability indicating which issues satisfy the required showing or must state the reasons why 26 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 27 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 28 jurists of reason would find it debatable whether the district court was correct in its procedural 1 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 2 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 3 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1604 (2000)). 4 In his objections, petitioner argues his habeas petition should not be dismissed as 5 successive because his mental illness prevented him from bringing all of his claims in the first 6 habeas petition. See generally Objs., ECF No. 19. The court may consider a successive petition 7 if plaintiff shows “cause and prejudice,” a standard which mirrors the Supreme Court’s treatment 8 of procedurally defaulted claims. Schlup v. Delo, 513 U.S. 298, 318 (1995). The Ninth Circuit 9 has rejected the argument that a pro se petitioner’s mental condition should establish “cause” for a 10 procedural default, but has also stated the relevant precedent “do[es] not necessarily foreclose the 11 possibility that a pro se petitioner might demonstrate cause in a situation where a mental 12 condition rendered the petitioner completely unable to comply with a state's procedures and he 13 had no assistance.” Schneider v. McDaniel, 674 F.3d 1144, 1154 (9th Cir. 2012). This court has 14 found severe mental illness is sufficient “cause” to overcome procedural default where the 15 petitioner had very limited assistance. See ECF No. 114, Chatman v. Hill, No. 2:10-CV-00264- 16 KJM-CKD-P (E.D. Cal. Mar. 15, 2019). Accordingly, the court finds “jurists of reason would 17 find it debatable whether the district court was correct in its procedural ruling” and, for the same 18 reasons, “that jurists of reason would find it debatable whether the petition states a valid claim of 19 the denial of a constitutional right.” Morris, 229 F.3d at 780. Therefore, petitioner has satisfied 20 the requirements for a certificate of appealability on this question. Accordingly, IT IS HEREBY 21 ORDERED that: 22 1. The order at ECF No. 20 is VACATED; 23 2. The findings and recommendations filed July 16, 2019, are adopted in part, 24 as discussed above; 25 3. Respondent’s motion to dismiss (ECF No. 14) is granted; 26 4. Petitioner’s motion for resentencing (ECF No. 11) is denied; 27 ///// 28 ///// 1 5. The court issues a certificate of appealability on the question whether 2 petitioner’s mental illness prevented him from bringing his claims in his 3 first habeas petition; and 4 6. The Clerk of the Court is directed to enter judgment and close this case. 5 DATED: October 18, 2019. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28