Billy Basaldua v. George Jaime

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] 11 BILLY BASALDUA, Case No. 5:20-cv-01156-SVW (KES) 12 Petitioner, ORDER TO SHOW CAUSE WHY 13 v. PETITION SHOULD NOT BE 14 GEORGE JAIME, Warden, DISMISSED FOR FAILURE TO STATE A FEDERAL CLAIM 15 Respondent. [16] 17 I. 18 BACKGROUND 19 In June 2020, the Court received from Billy Basaldua (“Petitioner”) a 20 Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 21 U.S.C. § 2254 . (Dkt. 1 [“Petition”].) In 2017, Petitioner pled guilty and was 22 convicted of conspiracy to commit a felony with a firearm. (Id. at 2.) He 23 challenges his 10-year sentence, which included both a five-year gang enhancement 24 and one-year prison prior enhancement under California law, as an “unauthorized 25 sentence” based on “insufficient evidence.” (Id. at 5, 18.) 26 Petitioner does not seek to set aside his guilty plea. (Id. at 13.) Rather, he 27 asks the Court to “apply its judicial discretion and remove the gang enhancement [28] 1 from the plea agreement and resentence” him or to “strike the five-year sentence” 2 enhancement. (Id. at 14, 16.) He appears to argue that the State should not have 3 charged him with the gang enhancement, because there would have been 4 insufficient evidence to support it if his case had gone to trial. (Id. at 14-16.) He 5 contends that there was no evidence that he had the specific intent to commit a 6 crime to “promote, further, or assist in any criminal conduct by gang members[,]” 7 and at trial, the prosecution could not have relied on a gang expert to supply such 8 evidence. (Id. at 14-15.) He contends that applying the gang enhancement to him 9 violated various California statutes and case law. (Id.) 10 He also asks the Court to “apply its discretion and strike the one-year prison 11 prior” due to California Senate Bill (“SB”) 1393. (Id. at 18.) “On September 30, 12 2018, the Governor signed Senate Bill 1393 which, effective January 1, 2019, … 13 allow[s] a court to exercise its discretion to strike or dismiss a prior serious felony 14 conviction for sentencing purposes.” People v. Garcia, 28 Cal. App. 5th 961 , 971 15 (2018). SB 1393 “could constitutionally be applied … to all cases not yet final 16 when Senate Bill 1393 becomes effective on January 1, 2019.” Id. at 973 . It is 17 unclear why Petitioner, who was sentenced in 2017 and did not appeal, contends 18 that SB 1393 applies to him. 19 II. 20 LEGAL STANDARD 21 Rule 4 of the Rules Governing Section 2254 Cases in the United States 22 District Courts requires the district court to dismiss a habeas petition “[i]f it plainly 23 appears from the petition and any attached exhibits that the petitioner is not entitled 24 to relief in the district court....” “Thus, Rule 4 explicitly allows a district court to 25 dismiss summarily the petition on the merits when no claim for relief is stated.” 26 Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983). [28] 1 III. 2 DISCUSSION 3 Regarding Petitioner’s claim that his sentence is “unauthorized,” federal 4 habeas review is limited to claims for relief based on federal law. “[I]t is not the 5 province of a federal habeas court to reexamine state-court determinations on state6 law questions. In conducting habeas review, a federal court is limited to deciding 7 whether a conviction violated the Constitution, laws, or treaties of the United 8 States.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Petitioner’s claims 9 alleging that his sentence must be modified under the California penal code, 10 California case law, and/or SB 1393 appear to be based exclusively on state law – 11 not federal law. 12 To the extent Petitioner claims that the prosecutor committed misconduct by 13 charging him with the gang enhancement despite insufficient evidence, this claim 14 also fails. “In our system, so long as the prosecutor has probable cause to believe 15 that the accused committed an offense defined by statute, the decision whether or 16 not to prosecute, and what charge to file or bring before a grand jury, generally rests 17 entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). 18 “Accordingly, it is improper for a prosecutor to bring charges against a criminal 19 defendant in the absence of probable cause.” Hovey v. Ayers, 458 F.3d 892 , 921 20 (9th Cir. 2006). California law defines probable cause as “some rational ground for 21 assuming the possibility that the offense charged has been committed and the 22 accused is guilty of it.” Id. at 921-22 (quoting People v. Aday, 226 Cal. App. 2d 23 520, 526-27 (1964)). Petitioner fails to plead facts sufficient to show that the 24 prosecutor lacked probable cause to charge him with the gang enhancement. The 25 Petition is silent as to the facts of the charged conspiracy. 26 Even if Petitioner could allege more facts, any claim of prosecutorial 27 misconduct would appear to be an impermissible challenge to pre-plea events. See 28 Tollett v. Henderson, 411 U.S. 258, 267 (1973) (“When a criminal defendant has 1 | solemnly admitted in open court that he is in fact guilty of the offense with which 2 | he is charged, he may not thereafter raise independent claims relating to the 3 || deprivation of constitutional rights that occurred prior to the entry of the guilty 4 | plea.”’). While there is an exception to the Tollett bar for jurisdictional errors, the 5 | exception is limited to “only those claims in which, judged on the face of the 6 | indictment and record, the charge in question is one which the state may not 7 | constitutionally prosecute.” United States v. Johnston, 199 F.3d 1015 , 1019-20 n.3 8 | (9th Cir. 1999) (citing United States v. Broce, 488 U.S. 563, 574-76 (1989)). 9 For all these reasons, the Petition does not appear to state a claim for federal 10 | habeas relief. 11 IV. 12 CONCLUSION 13 IT IS HEREBY ORDERED that, on or before July 10, 2020, Petitioner is 14 | ordered to show cause why the Petition should not be dismissed for failure to state a 15 | federal claim for relief and/or failure to state a federal claim that is not barred by 16 | Tollett. Alternatively, Petitioner may voluntarily dismiss this action to pursue 17 | further relief from the state courts concerning his claims of sentencing error under 18 | state law. [19] 20 | DATED: June 10, 2020 TV. crams Sst? 1 KAREN E. SCOTT UNITED STATES MAGISTRATE JUDGE