Sawyer v. Burton ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 TIMOTHY SAWYER, Case No.: 21-CV-58 TWR (BLM) 10 Petitioner, ORDER: 11 v. (1) GRANTING IN PART AND DENYING 12 ROBERT BURTON, Warden, et al., IN PART RESPONDENT’S MOTION TO 13 Respondents. DISMISS PETITION FOR WRIT OF HABEAS CORPUS (ECF No. 7); 14 (2) DISMISSING PETITION; AND 15 (3) GRANTING A CERTIFICATE OF APPEALABILITY 16 17 Timothy Sawyer (“Petitioner”) is a state prisoner proceeding pro se with a Petition 18 for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner alleges 19 violations of the due process, equal protection, and cruel and unusual punishment clauses 20 of the federal Constitution arising from the state court denial of his petition for recall of his 21 commitment, resentencing/modification of his judgment and dismissal of prior convictions 22 pursuant to Cal. Penal Code §§ 1170(d) and 1016.8 and due to alleged breach of contract. 23 (Id. at 6-7, 21-23.) Respondent has filed a motion to dismiss, asserting the Petition is 24 untimely and not cognizable on federal habeas review. (ECF No. 7.) 25 The Court has read and considered the Petition (ECF No. 1), the Motion to Dismiss 26 and Memorandum of Points and Authorities in Support of the Motion to Dismiss (ECF 27 Nos. 7, 7-10), the lodgments filed in this case (ECF Nos. 7-1 through 7-9), the Opposition 28 to the Motion to Dismiss (ECF No. 8) and the arguments presented by both parties. For 1 the reasons discussed below, the Court GRANTS in part and DENIES in part 2 Respondent’s motion to dismiss (ECF No. 7), DISMISSES the Petition, and GRANTS a 3 Certificate of Appealability. 4 I. FACTUAL AND PROCEDURAL BACKGROUND 5 In April 1998, Petitioner was sentenced to 74 years to life in San Diego Superior 6 Court case number SCE 183626 for convictions of corporal injury to a spouse, negligent 7 discharge of a firearm, and possession of a firearm by a felon, in addition to five prior 8 felony convictions. (ECF No. 1 at 37, see also CT 197, 227, ECF No. 7-2 at 205, 235.) 9 Petitioner appealed the judgment in case number SCE 183626 to the California Court 10 of Appeal; apart from issuing a correction to the abstract of judgment to reflect the finding 11 of four enhancements due to prior felony convictions rather than five, the state appellate 12 court affirmed the judgment on July 16, 1999. (ECF No. 7-1.) On September 29, 1999, 13 the California Supreme Court summarily denied a petition for review. (ECF No. 7-4.) 14 In June 2000, Petitioner was sentenced to 49 years to life in San Diego Superior 15 Court case number SCE 201397 for convictions of robbery and possession of a firearm by 16 a felon, in addition to enhancements for weapon use and prior convictions. (See ECF No. 17 1 at 48-49.) 18 On July 31, 2000, Petitioner initiated a federal habeas action in this district and filed 19 a First Amended Petition (“FAP”) on December 5, 2000, in which he challenged his 20 conviction in SCE 183626, alleging: (1) error in the trial court’s exclusion of evidence; (2) 21 jury instructional error and (3) cumulative error. (See ECF Nos. 1, 8 in So. Dist. Ca. Case 22 No. 00cv1601-K-JFS.) On August 26, 2002, the assigned Magistrate Judge issued a Report 23 and Recommendation (“R&R”) recommending denial of the FAP with prejudice. (See 24 ECF No. 26 in So. Dist. Ca. Case No. 00cv1601-K-JFS.) In an October 23, 2002 Order, 25 the Court adopted the R&R, denied the FAP with prejudice and entered judgment 26 accordingly. (See ECF Nos. 27, 28 in So. Dist. Ca. Case No. 00cv1601-K-JFS.) 27 On June 10, 2020, Petitioner filed a petition in the San Diego Superior Court seeking 28 recall and resentencing in SCE 183626 with respect to the prior conviction enhancements 1 (“recall/resentencing petition”), which was denied on July 13, 2020. (ECF Nos. 7-5, 7-6.) 2 On September 4, 2020, the California Court of Appeal dismissed the appeal after finding 3 the superior court’s order was not appealable. (ECF No. 7-7.) On October 4, 2020, 4 Petitioner filed a petition for review in the California Supreme Court, which the state 5 supreme court summarily denied on November 10, 2020. (ECF Nos. 7-8, 7-9.) 6 In the instant Petition, Petitioner alleges federal Constitutional violations arising 7 from the state court denial of his recall/resentencing petition.1 (ECF No. 1 at 6-7, 21-23.) 8 Respondent moves to dismiss the Petition as barred by the one-year federal statute of 9 limitations and “because the claims seek noncognizable relief for already served terms 10 based on plea-bargained convictions.” (ECF No. 7 at 1.) 11 II. JUDGMENT CHALLENGED IN INSTANT FEDERAL PETITION 12 As an initial matter, the Court resolves what may be a lack of clarity as to which 13 judgment Petitioner intends to challenge in the instant federal Petition, as a Petitioner may 14 not challenge more than one judgment in a single habeas corpus petition brought pursuant 15 to 28 U.S.C. § 2254. See Rule 2(e), Rules Governing Section 2254 Cases, 28 U.S.C. foll. 16 § 2254. In the Petition, Petitioner references an April 2000 San Diego County Superior 17 Court judgment in case number SCE 201397 for robbery in violation of Cal. Penal Code § 18 211 and for possession of a firearm by a felon in violation of Cal. Penal Code § 12021, 19 20 While neither party recognized or acknowledged Petitioner filed a prior challenge to his 1 21 1998 judgment, to the extent there is a question of whether the instant Petition is therefore also subject to dismissal as second or successive, the Court notes the Ninth Circuit has 22 previously held that a petition challenging the denial of a state court resentencing petition 23 on due process grounds was not a second or successive petition. See Clayton v. Biter, 868 F.3d 840, 843 (9th Cir. 2017). The Clayton Court reasoned that “under California law, a 24 resentencing petition does not challenge the underlying conviction or sentence; rather, it 25 seeks to obtain the benefits of [a new state law] and results in the entry of a new appealable order or judgment,” noting the denial of such a petition “therefore constitutes a new 26 judgment.” Id. at 844. In view of Clayton, the Court is not persuaded the instant federal 27 Petition is second or successive, given the two claims raised in the Petition allege federal error arising from the state court’s denial of Petitioner’s recall/resentencing petition. 28 1 along with a sentence of 74 years to life. (See ECF No. 1 at 1.) Petitioner also references 2 “current convictions” for negligent discharge of a firearm, robbery and possession of a 3 firearm by a felon and “prior convictions” for robbery and grand theft with a firearm. (Id. 4 at 30.) Yet, as noted above, Petitioner’s sentence in case number SCE 201397 was issued 5 in June 2000 and he was sentenced to 49 years to life (id. at 48-49), while Petitioner’s 6 sentence for the earlier and separate conviction in San Diego Superior Court case number 7 SCE 183626 for corporal injury to a spouse, negligent discharge of a firearm, possession 8 of a firearm by a felon, and four prior felony convictions was issued in April 1998 and 9 resulted in a sentence of 74 years to life. (See id. at 34-37.) 10 Petitioner indicates he previously raised the only two grounds for relief presented in 11 the instant Petition, “PC 1170(d) (Recall Commitment/Resentencing)” [sic] and “PC 12 1016.8 (Modify Judgement/Priors)” [sic], in the California Court of Appeal in case number 13 D077830, which the appellate court denied on September 4, 2020. (See ECF No. 1 at 2.) 14 Petitioner also indicates he previously raised the same two issues in the California Supreme 15 Court in case number S264930, which the state supreme court denied on November 10, 16 2020. (Id. at 2, 6-7.) Upon review, Petitioner’s recall/resentencing petition filed in San 17 Diego County Superior Court lists SCE 183626, and not SCE 201397, as the conviction 18 and sentence at issue. (See ECF No. 7-5 at 2.) Additionally, the state appellate court’s 19 order dismissing the appeal lists case number SCE 183626, and not SCE 201397, as the 20 relevant conviction and sentence in that action. (See ECF No. 1 at 35; see also ECF No. 21 7-7 at 2.) In the petition for review filed in the California Supreme Court, Petitioner again 22 listed D077830 as the relevant appellate court case number and SCE 183626 as the relevant 23 San Diego Superior Court conviction and judgment, and did not list or reference SCE 24 201397. (See ECF No. 7-8 at 2.) 25 As noted above, the two grounds for relief presented in the instant Petition were only 26 presented in state court as challenges to the state court denial of the recall/resentencing 27 petition with respect to Petitioner’s 1998 conviction and judgment in SCE 183626, and do 28 not appear to have ever been raised in connection with the conviction and judgment in SCE 1 201397. Moreover, the federal Petition specifically articulates the sentence at issue is 2 Petitioner’s 74 years to life sentence, which again was issued in SCE 183626, not in SCE 3 201397. (See id. at 1, 36-37, 48-49.) 4 Meanwhile, Respondent’s motion to dismiss fails to address or even mention 5 Petitioner’s conviction and judgment in San Diego Superior Court case number SCE 6 201397; instead, it only addresses Petitioner’s conviction and judgment in San Diego 7 Superior Court case number SCE 183626. (See e.g. ECF No. 7-10 at 2-3.) Respondent 8 has filed nine lodgments in support of the motion to dismiss which also relate solely to 9 Petitioner’s judgment and appeal of judgment in San Diego Superior Court case number 10 SCE 183626. (See ECF Nos. 7-1 through 7-9.) Additionally, in the opposition to 11 Respondent’s motion to dismiss, Petitioner “admits he’s been adjudicated via 12 conviction/sentence under statutes Penal Codes 273.5; 246.3; 12021; 12022.5; 12022.7 (i.e. 13 Personal Use Firearm to Inflict Bodily Injury on Spouse; Gross Negligence [sic] Discharge 14 of Firearm with Great Body Injury; and Ex-Felon Possession of a Gun)” and that he “was 15 sentenced to 74-years to life via 3-Strikes Law Penal Code 667(b)-(i).” (ECF No. 8 at 2 16 (emphasis omitted).) 17 Accordingly, because Petitioner clearly intends to challenge the denial of the state 18 court recall/resentencing petition with respect to his sentence of 74 years to life, and 19 because the grounds for relief raised in the instant Petition were presented in the state 20 appellate and supreme courts as challenges to the denial of recall/resentencing as to 21 Petitioner’s 1998 conviction and sentence and not to his 2000 conviction and sentence, the 22 Court construes the instant Petition as challenging the state superior court’s July 13, 2020 23 denial of Petitioner’s recall/resentencing petition with respect to the 1998 conviction and 24 judgment in case number SCE 183626.2 25 26 2 Were the Court to construe the instant Petition as challenging Petitioner’s 2000 judgment 27 in case SCE 201397 or denial of resentencing as to that judgment, if he has in fact brought one in state court, it appears the Petition would be subject to dismissal for failure to exhaust 28 1 III. DISCUSSION 2 Respondent has filed a motion to dismiss “because [the Petition] is barred by the 3 one-year federal statute of limitations and because the claims seek noncognizable relief for 4 already served terms based on plea-bargained convictions.” (ECF No. 7 at 1.) As discussed 5 below, the Petition is not untimely and as such does not warrant dismissal on those grounds 6 but the Petition does warrant dismissal based on noncognizability. 7 A. Statute of Limitations 8 Respondent first contends the Petition is untimely and dismissal is required, 9 asserting Petitioner’s conviction became final in 1999 and there are no grounds for either 10 statutory or equitable tolling sufficient to render the Petition timely. (ECF No. 7-10 at 4.) 11 However, upon review, the Court is not persuaded the Petition is untimely given that the 12 two claims presented challenge the state superior court’s July 2020 denial of Petitioner’s 13 recall/resentencing petition, rather than Petitioner’s 1998 judgment itself. 14 28 U.S.C. § 2244(d) provides: 15 (1) A 1-year period of limitation shall apply to an application for a writ of 16 habeas corpus by a person in custody pursuant to the judgment of a State court. 17 The limitation period shall run from the latest of-- 18 (A) the date on which the judgment became final by the conclusion of direct 19 review or the expiration of the time for seeking such review; 20 (B) the date on which the impediment to filing an application created by State 21 action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 22 23 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme 24 Court and made retroactively applicable to cases on collateral review; or 25 26 instant Petition have only been raised in state court as a recall/resentencing petition with 27 respect to Petitioner’s 1998 judgment in case number SCE 183626, as noted above. Again, Petitioner does not appear to have presented any recall/resentencing petition with respect 28 1 (D) the date on which the factual predicate of the claim or claims presented 2 could have been discovered through the exercise of due diligence. 3 4 The Ninth Circuit has held that a petition challenging the denial of a state court 5 resentencing petition on due process grounds was not a second or successive petition, 6 reasoning that “under California law, a resentencing petition does not challenge the 7 underlying conviction or sentence; rather, it seeks to obtain the benefits of [a new state 8 law] and results in the entry of a new appealable order or judgment,” and as such, the denial 9 of such a petition “therefore constitutes a new judgment.” Clayton, 868 F.3d at 843-44. 10 Because the July 13, 2020 state superior court denial of the recall/resentencing 11 petition constitutes a “new judgment” under Clayton, upon application of section 12 2244(d)(1)(A), it is apparent the one-year limitation period did not begin to run until that 13 new judgment became final by the conclusion of direct review, that is, after the California 14 Supreme Court’s November 10, 2020 denial of the petition for review. Thus, because 15 Petitioner filed his federal Petition challenging the state court denial of the 16 recall/resentencing petition on January 11, 2021, well within a year of the date the 17 judgment became final by the conclusion of direct review, the Petition is timely.3 18 Accordingly, the Court DENIES Respondent’s motion to dismiss the Petition based on the 19 statute of limitations. 20 B. Cognizability of Claims 21 Respondent also asserts the Petition should be dismissed because the claims 22 challenge his prior convictions used to enhance his current sentence, specifically the plea 23 bargains which resulted in those convictions, and as such are not cogniziable under the 24 Supreme Court’s holding in Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 25 26 3 Because the Court finds the Petition is timely under 28 U.S.C. § 2244(d)(1)(A), it is 27 unnecessary to consider Petitioner’s assertion he is entitled to statutory and/or equitable tolling. (See ECF No. 8 at 3-5.) 28 1 402-04 (2001). (ECF No. 7-10 at 6-7.) 2 In Ground One of the Petition, Petitioner asserts a federal due process violation 3 arising from the state court denial of his recall/resentencing petition, citing Cal. Penal Code 4 § 1170(d) and the Fifth and Fourteenth Amendments to the federal Constitution. (ECF No. 5 1 at 6.) In Ground Two, Petitioner asserts a federal due process violation arising from the 6 state court denial of modification of his judgment and refusal to dismiss his prior 7 convictions based on breach of contract, citing Cal. Penal Code § 1016.8 and the Fifth and 8 Fourteenth Amendments to the federal Constitution. (Id. at 7.) Petitioner also contends 9 the state court denial of his resentencing petition constitutes an abuse of discretion, violates 10 equal protection, and amounts to cruel and unusual punishment in violation of the Eighth 11 and Fourteenth Amendments to the federal Constitution. (Id. at 21-23.) 12 To the exent Petitioner challenges the correctness of the state court’s application of 13 state law in concluding he was ineligible for resentencing, his arguments are not cognizable 14 on federal habeas review because they are based entirely on the interpretation and 15 application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the 16 province of a federal habeas court to reexamine state-court determinations on state-law 17 questions.”); see also Rhoades v. Henry, 611 F.3d 1133, 1142 (9th Cir. 2010) (“[V]iolations 18 of state law are not cognizable on federal habeas review.”) Indeed, the Supreme Court 19 “ha[s] repeatedly held that a state court’s interpretation of state law, including one 20 announced on direct appeal of the challenged conviction, binds a federal court sitting in 21 habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citing McGuire, 502 U.S. at 22 67-68; Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)). 23 In a July 13, 2020 order, the San Diego County Superior Court denied Petitioner’s 24 recall/resentencing petition, stating Petitioner “has not shown how Penal Code section 25 1016.8 is applicable to his case, as the [Petitioner] has not shown that he entered into plea 26 agreements that required him to waive future benefits of changes in the law that would 27 apply retroactively,” that “[t]he enactment of the Three Strikes law did not provide the 28 [Petitioner] with a benefit,” and concluding “Penal Code section 1016.8 is not relevant to 1 the issue raised by [Petitioner].” (ECF No. 7-6 at 3.) The state appellate court dismissed 2 Petitioner’s appeal of that order, stating “[t]he right of appeal is statutory and a judgment 3 or order is not appealable unless expressly made so by statute,” and “[w]here, as here, the 4 trial court did not have jurisdiction to modify the [petitioner’s] sentence, the court’s order 5 denying resentencing is not an appealable order.” (ECF No. 7-7 at 2 (citations omitted).) 6 The state court’s conclusion the statute in question, Cal. Penal Code § 1016.8(b) (stating 7 that “[a] provision of a plea bargain that requires a defendant to generally waive future 8 benefits of legislative enactments, initiatives, appellate decisions, or other changes in the 9 law that may retroactively apply after the date of the plea is void as against public policy”), 10 did not apply to Petitioner’s judgment is not cognizable on federal habeas review because 11 the decision was based solely on the state court’s application of state law.4 See McGuire, 12 502 U.S. at 67-68; see also Rhoades, 611 F.3d at 1142. 13 That said, a petitioner’s contention that the trial court’s sentencing decision in his 14 case violated his federal constitutional rights could prove cognizable on federal habeas 15 review. This is because a state court sentencing error can present a cognizable federal 16 claim if the state court decision was “so arbitrary or capricious” that it “constitute[d] an 17 independent due process . . . violation.” Richmond v. Lewis, 506 U.S. 40, 50 (1992) (“[T]he 18 question to be decided by a federal court on petition for habeas corpus is not whether the 19 20 21 4 Upon review of the recall/resentencing petition filed in the state superior court, Petitioner did not raise or mention Cal. Penal Code § 1170(d), which provides for recall and 22 resentencing of determinate sentences under certain circumstances and includes judgments 23 entered pursuant to plea agreements. Petitioner attached to the recall/resentencing petition a 2013 state superior court order denying his request for sentence modification brought 24 pursuant to Cal. Penal Code § 1170.126 (see ECF No. 7-5 at 11-12), which provides for 25 recall and modification of indeterminate sentences under certain circumstances. To the extent the Court could construe the instant Petition as contesting the state court’s rejection 26 of Petitioner’s request for sentencing modification under Cal. Penal Code § 1170.126, any 27 such claim is also not cognizable on federal review because the state court decision was again based solely on the state court’s application of state law. See id.; see McGuire, 502 28 1 state sentencer committed state-law error,” but instead, whether the state court decision 2 was “‘so arbitrary or capricious as to constitute an independent due process or Eighth 3 Amendment violation.’”) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1994)). However, 4 the mere mention of federal constitutional guarantees such as due process, equal protection, 5 or cruel and unusual punishment, cannot “transform” a state law issue into a claim of 6 federal error. See e.g., Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (“Langford 7 may not, however, transform a state-law issue into a federal one merely by asserting a 8 violation of due process. We accept a state court’s interpretation of state law, and alleged 9 errors in the application of state law are not cognizable in federal habeas corpus.”) 10 (citations omitted). 11 The Court recognizes it must construe Petitioner’s contentions liberally. Porter v. 12 Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“Prisoner pro se pleadings are given the benefit 13 of liberal construction.”). Even so, Petitioner fails to articulate, much less explain how the 14 state court’s conclusion that Cal. Penal Code § 1016.8 was not applicable to his case was 15 “arbitrary or capricious” such that it could potentially constitute an independent federal due 16 process violation. Instead, Petitioner has simply offered summary lists of United States 17 Supreme Court, Ninth Circuit, California district court, and California state court cases 18 under the headings “Cruel and Unusual Punishment,” “Due Process” and “Equal 19 Protection,” without any accompanying explanation as to their relevance to the his 20 situation, much less any explanation as to how the cited federal constitutional principles 21 were violated in his own case. (See ECF No. 1 at 21-23.) Such cursory allegations are 22 insufficient to state a federal claim of error. See e.g., Langford, 110 F.3d at 1389. In any 23 event, as discussed above, the state court determination that the state resentencing statute 24 was not applicable to Petitioner’s case is binding on this Court. See Bradshaw, 546 U.S. 25 at 76 (“We have repeatedly held that a state court’s interpretation of state law, including 26 one announced on direct appeal of the challenged conviction, binds a federal court sitting 27 in habeas corpus.”) (citing McGuire, 502 U.S. at 67–68; Mullaney, 421 U.S. at 691). 28 It also appears Petitioner seeks resentencing (along with, or as an alternative to, 1 remand of Petitioner’s case from this Court to state court for resentencing) from this Court 2 itself. (See e.g., ECF No. 1 at 24-26, 29.) To the extent Petitioner seeks resentencing or 3 remand for resentencing by this Court, the Court is in accord with the conclusion of other 4 district courts in California that such a contention fails to state a federal claim for relief. 5 See e.g. Mills v. Marsh, 2020 WL 1180433, at * 3 (C.D. Cal. Jan. 9, 2020) (collecting cases 6 and recommending denial of federal petition seeking resentencing pursuant to Cal. Penal 7 Code § 1170(d)(1) for failing to state a federal claim for relief) (citing Christian v. Rhode, 8 41 F.3d 461, 469 (9th Cir. 1994) (“Absent a showing of fundamental unfairness, a state 9 court’s misapplication of its own sentencing laws does not justify federal habeas relief.”)). 10 Finally, Petitioner also contends his current conviction “was enhanced via a breach 11 of duty and contract,” because prior to the enactment of the Three Strikes law, he was only 12 subject to a maximum five year penalty based on plea-bargained agreements. (ECF No. 1 13 at 29.) Petitioner specifically references “prior convictions” for robbery and grand theft 14 firearm and identifies two prior robbery convictions he suffered in 1982. (See id. at 20, 15 29.) 16 Petitioner similarly argued in state court “that his case was enhanced based on a 17 breach of contract of the prior plea bargains, as the Three Strikes law was not in effect 18 when he entered into his plea agreements in the cases that constituted the felony strike 19 priors in the present case,” and there too asserted a violation of the contract clauses of both 20 the state and federal constitutions. (ECF No. 7-6 at 2-3.) The state superior court 21 concluded that “the fact that the sentence on [Petitioner’s] current case was increased 22 because [Petitioner] had suffered prior convictions for offenses now included within the 23 Three Strikes law does not affect [Petitioner’s] plea agreements in the prior cases,” 24 reasoning that “[t]he Three Strikes law is punishing [Petitioner] for his current conviction, 25 not his prior convictions,” and “the terms of the plea agreements in the prior cases have not 26 been modified and there is no breach of contract.” (Id. at 3-4.) 27 Given the state court’s conclusion was based on its interpretation and application of 28 state law, the matter is not cognizable on federal habeas review. See McGuire, 502 U.S. at 1 67-68; see also Rhoades, 611 F.3d at 1142. The Court is bound by the state court’s 2 determination that the terms of Petitioner’s prior plea agreements were not impacted by the 3 state’s implementation of the Three Strikes law, which the state court concluded punished 4 Petitioner for his current, and not his past, convictions. See Bradshaw, 546 U.S. at 76. 5 To the extent Petitioner attempts in the instant Petition to challenge his plea 6 agreements resulting in one or more of his prior convictions which were later used to 7 enhance his sentence in case number SCE 183626, such a challenge is precluded here. As 8 Respondent correctly observes, “inmates may not attack prior convictions that are later 9 used to enhance sentences unless, for example, they do so on the grounds that they did not 10 have counsel at the time of the prior conviction.” (ECF No. 7-10 at 6 (citing Lackawanna, 11 532 U.S. at 402-04).) In Lackawanna, the Supreme Court instructed that: “[O]nce a state 12 conviction is no longer open to direct or collateral attack in its own right because the 13 defendant failed to pursue those remedies while they were available (or because the 14 defendant did so unsuccessfully), the conviction may be regarded as conclusively valid,” 15 and “[i]f that conviction is later used to enhance a criminal sentence, the defendant 16 generally may not challenge the enhanced sentence through a petition under § 2254 on the 17 ground that the prior conviction was unconstitutionally obtained.” Lackawanna, 532 U.S. 18 at 403-04 (citation omitted). 19 Petitioner’s prior convictions are no longer open to collateral attack on federal 20 habeas review. While the prior convictions were used to enhance his sentence in case 21 number SCE 183626, Petitioner is in custody pursuant to that 1998 conviction, and is not 22 currently in custody pursuant to any of those prior convictions. See 28 U.S.C. § 2254(a) 23 (“The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an 24 application for a writ of habeas corpus in behalf of a person in custody pursuant to the 25 judgment of a State court only on the ground that he is in custody in violation of the 26 Constitution or laws or treaties of the United States.”) (emphasis added). 27 Petitioner fails to allege (much less show) that either of the two exceptions 28 recognized by Lackawanna applies here, and a review of the record offers no support for 1 the application of either exception. First, there is no indication Petitioner was without 2 counsel when he was convicted in the prior cases; in fact, the record reflects Petitioner was 3 represented by counsel in each of the four prior convictions used to enhance his sentence 4 in case number SCE183626. (See CT 28-33 (1974 conviction in case number CR30651); 5 CT 34-40 (1977 conviction in case number CR39627); CT 41-46 (1982 conviction in case 6 number CR59776); CT 47-55 (1982 conviction in case number CR59352).); see 7 Lackawanna, 532 U.S. at 404 (“When an otherwise qualified § 2254 petitioner can 8 demonstrate that his current sentence was enhanced on the basis of a prior conviction that 9 was obtained where there was a failure to appoint counsel in violation of the Sixth 10 Amendment, the current sentence cannot stand and habeas relief is appropriate.”).) Nor 11 does Petitioner allege, much less show, that he was prevented from pursuing or obtaining 12 review of any of these prior convictions until the present time. See Lackawanna, 532 U.S. 13 at 406 (recognizing an exception in the situation where “a habeas petition directed at the 14 enhanced sentence may effectively be the first and only forum available for review of the 15 prior conviction”). As such, to the extent Petitioner is attempting in the instant federal 16 Petition to challenge his prior convictions, such a challenge is not cognizable. See 28 17 U.S.C. 2254(a); see also Lackawanna, 532 U.S. at 403-06. 18 Accordingly, for the reasons discussed above, the Court is persuaded Petitioner’s 19 claims fail to state a federal claim for habeas relief and GRANTS Respondent’s motion to 20 dismiss based on lack of cognizability. 21 IV. CERTIFICATE OF APPEALABILITY 22 A petitioner may not appeal “the final order in a habeas corpus proceeding in which 23 the detention complained of arises out of process issued by a State court” except where “a 24 circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)(1)(A). 25 “A certificate of appealability may issue . . . only if the applicant has made a substantial 26 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme 27 Court has further explained: “When the district court denies a habeas petition on procedural 28 grounds without reaching the prisoner’s underlying constitutional claim, a certificate of 1 appealability should issue when the prisoner shows, at least, that jurists of reason would 2 || find it debatable whether the petition states a valid claim of the denial of a constitutional 3 || right and that jurists of reason would find it debatable whether the district court was correct 4 its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this instance, it 5 ||is evident the Court’s instant ruling is procedural in nature, because the Court concludes 6 || dismissal of the Petition is warranted based on cognizability concerns prior to substantive 7 review of Petitioner’s claims. 8 Upon review of the standard outlined in Slack, the Court concludes a certificate of 9 || appealability should issue in this instance because reasonable jurists could find debatable 10 || the correctness of the Court’s procedural rulings concerning cognizability. See Slack, 529 11 ||U.S. at 484; see also 28 U.S.C. § 2253(c); see also Clayton, 868 F.3d at 846 n.2. 12 || Accordingly, the Court GRANTS a certificate of appealability from its order of dismissal 13 || limited to the issue of cognizability. 14 CONCLUSION AND ORDER 15 As discussed above, the Court DENIES Respondent’s motion to dismiss based on 16 |/the statute of limitations, GRANTS Respondent’s motion to dismiss based on lack of 17 || cognizability (ECF No. 7), and DISMISSES this action with prejudice. The Court 18 || GRANTS a Certificate of Appealability from this order of dismissal limited to the issue of 19 || cognizability. 20 IT IS SO ORDERED. 21 ||Dated: August 3, 2021 —_—— 22 | od) (2 re 73 Honorable Todd W. Robinson United States District Judge 25 26 27 28