Stroud v. Madden

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 DAVID L. STROUD, Case No.: 19cv1047-GPC(KSC) 12 Petitioner, REPORT AND RECOMMENDA13 v. TION RE RESPONDENT’S MOTION TO DISMISS [Doc. No. 10] 14 RAYMOND MADDEN, Warden, 15 Respondent. [16] 17 Petitioner David L. Stroud, a state prisoner proceeding pro se and in forma 18 pauperis, has filed a Petition for Writ of Habeas Corpus pursuant to Title 28, United 19 States Code, Section 2254, challenging his sentence in Riverside Superior Court Case 20 No. RIF81741. [Doc. No. 1, at p. 3.] Before the Court is respondent’s Motion to Dismiss 21 the Petition [Doc. No. 10] and petitioner’s Opposition thereto [Doc. No. 14]. 22 In the Motion to Dismiss, respondent argues that the District Court should dismiss 23 the Petition, because it is untimely based on the one-year statute of limitations in Title 28, 24 United States Code, Section 2244 (d). [Doc. No. 10-1, at pp. 3-8.] Respondent also 25 contends that the Petition should be dismissed, because it fails to state a claim for which 26 habeas relief could be granted. [Doc. No. 10-1, at p. 8.] For the reasons outlined more 27 fully below, it is RECOMMENDED that the District Court GRANT respondent’s Motion 28 to Dismiss. 1 Background 2 A jury found petitioner guilty of attempted murder with personal use of a firearm, 3 and assault with a deadly weapon with personal use of a firearm and infliction of great 4 bodily injury on the victim. The jury was unable to reach a verdict on allegations that 5 petitioner committed these offenses for the benefit of a criminal street gang, so these 6 allegations were dismissed. [Doc. No. 11-5, at pp. 1-2.] Thereafter, petitioner waived a 7 jury trial on prior conviction allegations. The trial court concluded petitioner had 8 previously been convicted of a robbery, an automobile theft, and possession of cocaine 9 and had served separate prison terms for each offense. [Doc. No. 11-5, at p. 2; Doc. No. 10 11-2, at pp. 127-129.] 11 The record includes a transcript of the sentencing hearing held on September 16, 12 1999. [Doc. No. 11-2, at pp. 1, 127-136]. On Count 1, attempted murder, the trial court 13 sentenced petitioner to a term of life “enhanced by an additional 20 years for the 14 [California Penal Code Section] 12022.53(c) allegation” (i.e., personal use of a firearm 15 during the attempted murder).1 [Doc. No. 11-2, at pp. 130-131.] The trial court also 16 imposed a five-year, serious felony enhancement because of the prior robbery offense. 17 However, the trial court did not impose a one-year enhancement because of the prior 18 prison term served on the robbery offense. Instead, the trial court ordered the prior prison 19 term allegations stricken on the robbery offense “by operation of law.” [Doc. No. 11-2, 20 at p. 131.] The trial court then added one year each for the prior prison terms served on 21 the auto theft and cocaine possession offenses. Next, the trial court summarized the 22 sentence on Count 1 as “27 years determinate, which has to be served and then he starts 23 his life term” with eligibility for parole “doubled” to 14 years “because of the operation 24 of the strike” (i.e., the “special prior allegation” for robbery). [Doc. No. 11-2, at p. 131.] 25 On Count 2, the trial court imposed a three-year prison term “enhanced by an additional [28] 1 three years for the great bodily injury allegation” and “enhanced by an additional four 2 years for the use of a firearm” for a total of ten years to be served concurrently with the 3 sentence imposed on Count 1. [Doc. No. 11-2, at p. 132.] A copy of the abstract of 4 judgment is included in the record. The sentence outlined on the abstract of judgment is 5 consistent with the sentence imposed by the trial court during the sentencing hearing. 6 [Doc. No. 11-9, at pp. 35-36.] 7 Post-Sentencing Procedural History 8 The California Court of Appeal affirmed the conviction and sentence outlined 9 above in an opinion filed on November 3, 2000. [Doc. No. 11-5, at pp. 1-3.] A petition 10 for review of this opinion was not filed in the California Supreme Court. [Doc. No. 11-6, 11 at p. 4; Doc. No. 11-7, at pp. 58-59.] 12 On April 25, 2001, petitioner filed a habeas petition in the California Supreme 13 Court raising several claims, including ineffective assistance of counsel and prosecutorial 14 misconduct. [Doc. No. 11-7, at pp. 1-4.] The California Supreme Court summarily 15 denied the petition on October 31, 2001. [Doc. No. 11-8, at p. 1.] 16 About seventeen (17) years later, on June 11, 2018, petitioner filed a habeas 17 petition in the Riverside Superior Court raising two claims: (1) the trial court erred in 18 imposing a one-year term under Section 667.5(b) based on his prior robbery offense; and 19 (2) the trial court should consider whether to dismiss or strike the firearm enhancement 20 “as permitted by the amendment of Penal Code § 12022.53(h)” in the “new[ly] enacted 21 SB 620.” [Doc. No. 11-9, at pp. 1, 7, 23, 26-30, 32.] In a reasoned opinion, the 22 Riverside Superior Court denied the June 11, 2018 petition on June 29, 2018. [Doc. No. 23 11-10, at pp. 1-2.] 24 On August 1, 2018, petitioner filed a request for reconsideration in the Riverside 25 Superior Court [Doc. No. 11-11], but this request was summarily denied. [Doc. No. 1126 12, at p. 1.] Thereafter, petitioner filed a new state habeas petition in Riverside Superior 27 Court on August 7, 2018 raising the same issues, but this petition was denied as 28 “successive” on August 9, 2018. [Doc. No. 11-13; Doc. No. 11-14, at pp. 1-2.] 1 Next, petitioner filed a habeas petition raising the same issues in the California 2 Court of Appeal on September 6, 2018. [Doc. No. 11-15, at p. 4.] The California Court 3 of Appeal summarily denied this petition on October 10, 2018. [Doc. No. 11-16.] 4 Finally, petitioner raised the same issues in a habeas petition filed in the California 5 Supreme Court, but this petition was denied on April 17, 2019. [Doc. No. 11-17, at 6 pp. 1-4; Doc. No. 11-18, at p. 1.] The instant Federal Petition was then filed in this Court 7 on June 3, 2019. [Doc. No. 1.] 8 The Federal Petition 9 The Federal Petition alleges violations of due process in connection with the 10 sentence imposed in Riverside Superior Court Case No. RIF81741, based on the same 11 arguments presented in the most recent round of state habeas petitions filed beginning on 12 June 11, 2018. First, the Petition alleges the trial court imposed and then failed to correct 13 a sentence that included a five-year enhancement and a one-year enhancement based on 14 the same set of facts in violation of the California Supreme Court’s decision in People v. 15 Jones, 5 Cal.4th 1142 (1993). Because of this alleged failure to correct an unlawful 16 sentence, petitioner claims he suffered “a miscarriage of justice” that imposed a hardship 17 on him by requiring him to spend an additional year in prison. [Doc. No. 1, at pp. 7, 2718 29.] Second, the Petition alleges the trial court imposed but failed to strike “any firearms 19 enhancement” based on retroactive application of S.B. 620. [Doc. No. 1, at p. 35.] 20 S.B. 620, effective January 1, 2018, amended Section 12022.53 to authorize trial courts 21 to strike or dismiss an enhancement at the time of sentencing. People v. Woods, 19 Cal. 22 App. 5th 1080, 1090 (2018). As noted above, the trial court in petitioner’s case imposed a 23 20-year enhancement under Section 12022.53(c) for the personal use of a firearm during 24 the attempted murder. [Doc. No. 11-2, at pp. 130-131.] 25 Discussion 26 I. Motion to Dismiss Standards. 27 A motion to dismiss under Federal Rule 12(b)(6) may be based on either a “lack of 28 a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable 1 legal theory.” Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121 (9 Cir. 2 2008) (citing Fed.R.Civ.P. 8(a)(2). A motion to dismiss should be granted if the plaintiff 3 or petitioner fails to proffer “enough facts to state a claim to relief that is plausible on its 4 face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial 5 plausibility when the plaintiff pleads factual content that allows the court to draw the 6 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 7 Iqbal, 556 U.S. 662, 678 (2009). 8 When considering a Federal Rule 12(b)(6) motion to dismiss, the Court must 9 “accept all allegations of material fact in the complaint as true and construe them in the 10 light most favorable to the non-moving party.” Cedars-Sinai Med. Ctr. v. Nat’l League 11 of Postmasters, 497 F.3d 972, 975 (9th Cir. 2007). However, it is not necessary for the 12 Court “to accept as true allegations that are merely conclusory, unwarranted deductions 13 of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979 , 14 988 (9th Cir. 2001). “[T]hreadbare recitals” of the elements of a cause of action, 15 “supported by mere conclusory statements,” are not enough. Ashcroft v. Iqbal, 556 U.S. 16 at 678 . “Factual allegations must be enough to raise a right to relief above the 17 speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. at 555 . On the other hand, “[a] 18 document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however 19 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted 20 by lawyers. . . .’” Erickson v. Pardus, 551 U.S. 89, 94 (2007). 21 II. Respondent’s Motion to Dismiss and Petitioner’s Opposition. 22 Respondent argues that the Petition should be dismissed for several reasons. First, 23 the Petition is untimely, because petitioner’s conviction became final in 2001, and the 24 one-year statute of limitations that applies to Federal habeas petitions has long since 25 expired. Second, there is no factual basis for a later start date or an extension of the one26 year statute of limitations. Third, there is no factual basis for equitable tolling of the one27 year statute of limitations under the circumstances presented in this case. Fourth, 28 respondent contends the Petition fails to state a claim for which Federal habeas relief 1 could be granted, because his claims involve sentencing matters that are governed by 2 state law and do not raise a Federal constitutional question. [Doc. No. 10-1, at pp. 3-8.] 3 In his Opposition to respondent’s Motion to Dismiss, petitioner contends his 4 Petition states a Federal claim for which relief can be granted, so the District Court 5 should consider the merits of his Petition and remand the case back to the state court to 6 re-open his case for all purposes, hear his “S.B. 620 arguments as permitted by Section 7 1260,” and “correct the unlawful sentence.” 2 [Doc. No. 14, at pp. 5-9.] Petitioner 8 believes that the state courts’ “failure to address and correct his unlawful sentence . . . 9 deprived him of due process and equal protection of the law.” [Doc. No. 14, at pp. 6, 12.] 10 According to petitioner, Section 1260 allows the state trial court to correct the alleged 11 sentencing error, and this would then re-open his case for consideration of the retroactive 12 application of S.B. 620, because S.B. 620 expressly applies “to any resentencing that may 13 occur pursuant to ‘any other law.’” [Doc. No. 14, at pp. 7-8.] 3 [Doc. No. 14, at pp. 1014 11.] 15 In his Opposition, petitioner also argues that his Petition “qualifies for statutory 16 tolling” under 28 U.S.C. Section 2244 (d)(2), because his recent state habeas petitions are 17 the equivalent of “a motion to vacate an illegal sentence.” [Doc. No. 14, at pp. 10-11.] [20] 2 Section 1260 provides as follows: “The court may reverse, affirm, or modify a 21 judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the [22] proceedings subsequent to, or dependent upon, such judgment or order, and may, if 23 proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.” Cal. Penal Code § 1260 . [24] 3 Petitioner’s Opposition further states that his Federal Petition “is also pursuant to 25 [Rule 35(a) and] Rule 35(b) of the Federal Rules of Criminal Procedure,” which allows “this Court” to reduce or vacate any sentence that was illegally imposed. [Doc. No. 14, at [26] pp. 6, 9.] However, the Federal Rules of Criminal Procedure, including Rule 35, apply 27 only to federal criminal proceedings and not to federal habeas review of state court criminal matters. U.S. ex rel. Gaugler v. Brierly, 477 F.2d 516, 523 (3d Cir. 1973). [28] 1 Petitioner’s Opposition does not otherwise address respondent’s statute of limitations 2 arguments. [Doc. No. 14, at p. 10.] 3 III. The One-Year Statute of Limitations and Statutory Tolling. 4 Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a 5 state prisoner who seeks to challenge a state court conviction must generally file a 6 Federal habeas petition within one year after “the date on which the judgment became 7 final by the conclusion of direct review or the expiration of the time for seeking such 8 review.” 28 U.S.C. § 2244 (d)(1)(A). 9 Here, as outlined above, the record shows that petitioner appealed his conviction in 10 the California Court of Appeal, which affirmed the conviction on November 3, 2000. A 11 petition for review was not filed in the California Supreme Court. [Doc. No. 11-6, at 12 p. 4; Doc. No. 11-7, at pp. 58-59.] Under California Rules of Court, the Court of 13 Appeal’s decision became final in that court thirty (30) days after the decision was filed. 14 Cal. R. Ct. 8.366(b)(1). Petitioner then had another ten (10) days after the California 15 Court of Appeal’s decision became final to file a petition for review in the California 16 Supreme Court. Cal. R. Ct. 8.500(e)(1). Therefore, as respondent contends, petitioner’s 17 conviction became final for purposes of Section 2244(d)(1)(A), and the one-year 18 limitations period began to run, on or about December 13, 2000. Absent tolling or a later 19 start date, the one-year statute of limitations would have expired after one year on 20 December 13, 2001. 21 Under AEDPA, the one-year limitations period is tolled for the “time during which 22 a properly filed application for State post-conviction or other collateral review . . . is 23 pending.” 28 U.S.C. § 2244 (d)(2). However, “[t]he statute of limitations is not tolled 24 ‘from the time a final decision is issued on direct state appeal [to] the time the first state 25 collateral challenge is filed.’ [Citation omitted.]” Roy v. Lampert, 465 F.3d 964 , 968 26 (9th Cir. 2006). This time is not tolled, because no application for “other collateral 27 review” is “pending.” See 28 U.S.C. § 2244 (d)(2). 28 / / / 1 On April 25, 2001, 133 days after the one-year statute of limitations began to run, 2 petitioner filed a habeas petition in the California Supreme Court, and the California 3 Supreme Court summarily denied the petition on October 31, 2001. [Doc. No. 11-7, at 4 pp. 1-4; Doc. No. 11-8, at p. 1.] Based on the Ninth Circuit’s decision in Roy v. Lampert, [5] 465 F.3d at 968 , the one-year statute of limitations was not tolled under Section 6 2244(d)(2) for the 133 days between the time petitioner’s state conviction became final 7 on or about November 3, 2000, and April 25, 2001, when petitioner filed his first state 8 habeas petition in the California Supreme Court. The statute of limitations was tolled 9 from April 25, 2001 until October 31, 2001, when the California Supreme Court 10 summarily denied the petition. The one-year statute of limitations also began to run 11 again on October 31, 2001. At this time, petitioner had 233 more days to file a timely 12 petition in Federal court. Absent tolling or a later start date, the statute of limitations 13 expired 233 days later, on or about June 21, 2002. 14 On June 11, 2018, about seventeen (17) years later, and long after the one-year 15 limitations period expired, petitioner began his new round of state habeas petitions. Once 16 the statute of limitations has expired, Section 2244(d)(2) does not permit the revival or 17 re-initiation of the limitations period if the petitioner begins filing a new round of state 18 habeas petitions. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Therefore, 19 unless there is some other basis for a later start date or equitable tolling, the Petition is 20 untimely, because it was filed long after the expiration of the one-year statute of 21 limitations. 22 In support of his contention that his state petitions qualify for statutory tolling, 23 because they are the equivalent of “a motion to vacate an illegal sentence,” petitioner 24 cites Tillema v. Long, 253 F.3d 494, 503 (9th Cir. 2001), overruled on other grounds by 25 Pliler v. Ford, 542 U.S. 225, 231 (2004). However, the Tillema decision does not support 26 petitioner’s contention, because the facts at issue in Tillema are not comparable to those 27 at issue here. In Tillema, 253 F.3d at 503 , the Ninth Circuit concluded that a motion to 28 vacate an illegal sentence, which was filed prior to the expiration of the one-year statute 1 of limitations, was “properly filed” under Section 2244(d)(2) and therefore tolled the 2 statute of limitations. Id. at 498-500 (emphasis added). In this case, the habeas petitions 3 filed in the state court system beginning on June 11, 2018 did challenge an alleged illegal 4 sentence. However, unlike the motion to vacate an illegal sentence in Tillema, which was 5 filed prior to the expiration of the one-year statute of limitations, the state habeas 6 petitions at issue in this case were all filed many years after the one-year statute of 7 limitations had expired. Therefore, the Tillema case does not support petitioner’s 8 argument that statutory tolling applies to make his Federal Petition timely. 9 The AEDPA does include some provisions that would delay the start of the 10 running of the statute of limitations. 28 U.S.C. §§ 2244 (d)(1)(B), (C), & (D). For 11 example, Section 2244(d)(1)(C) provides that the limitations period may begin on “the 12 date on which the constitutional right asserted was initially recognized by the [United 13 States] Supreme Court, if the right has been newly recognized by the [United States] 14 Supreme Court and made retroactively applicable to cases on collateral review.” 28 15 U.S.C. § 2244 (d)(1)(C). See also §§ 2244(d)(1)(B)&(D). 16 Respondent speculates that petitioner may believe Section 2244(d)(1)(C) applies, 17 so that the running of the one-year statute limitations in Section 2244(d) is based on a 18 newly recognized right by the passage of S.B. 620 in October 2017, making its changes 19 effective on January 1, 2018. [Doc. No. 10-1, at p. 4.] However, as respondent points 20 out, Section 2244(d)(1)(C) does not apply to make the Petition in this case timely, 21 because it only applies to newly recognized rights by the United States Supreme Court 22 and does not apply to new rights recognized by a change in state law. See, e.g., Dodd v. 23 United States, 545 U.S. 353, 357-359 (2005). 24 Sections 2244(d)(1)(B) and (D) also do not apply in this case to make the Petition 25 timely. In Shannon v. Newland, 410 F.3d 1083 (9th Cir. 2005), the Ninth Circuit held that 26 a modification or clarification of state law does not trigger a later start date for the 27 running of the one-year statute of limitations under Sections 2244(d)(1)(B) or (D). Id. at 28 1087. According to the Ninth Circuit in Shannon v. Newland, 410 F.3D 1083, a 1 modification or clarification of state law does not constitute an “impediment” to filing 2 under Section 2244(d)(1)(B) or “a factual predicate” that could not have been discovered 3 “through the exercise of due diligence” under Section 2244(d)(1)(D). Id. 4 IV. Equitable Tolling. 5 “[A] prisoner who files his federal petition for writ of habeas corpus after 6 AEDPA's one-year statute of limitations has expired may be entitled to equitable tolling.” 7 Grant v. Swarthout, 862 F.3d 914, 918 (9th Cir. 2017). However, “[e]quitable tolling 8 will not be available in most cases . . . .” Gaston v. Palmer, 417 F.3d 1030, 1034 (9th 9 Cir. 2005), reh'g granted, opinion modified on other grounds, 447 F.3d 1165 (9th Cir. 10 2006). Equitable tolling of AEDPA’s one-year limitations period applies “only if 11 extraordinary circumstances beyond a prisoner's control make it impossible to file a 12 petition on time.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Equitable 13 tolling may be appropriate where “external forces, rather than a petitioner's lack of 14 diligence, account for the failure to file a timely claim.” Id. For example, in Spitsyn v. 15 Moore, 345 F.3d 796 (9th Cir. 2003), the Ninth Circuit concluded that equitable tolling 16 was justified because of “egregious behavior” by the petitioner’s retained attorney. Id. at 17 801. 18 Here, petitioner has not presented any reason he believes equitable tolling applies 19 under the circumstances of this case. In addition, petitioner has not cited, and this Court 20 was unable to locate, any binding or persuasive authority indicating that equitable tolling 21 would apply when a habeas petitioner challenges a state court sentencing error or a 22 modification of state sentencing law many years after the sentence was imposed and 23 many years after the judgment and sentence became final. The Court has no basis to 24 conclude these facts could be considered “extraordinary circumstances” that would 25 justify equitable tolling of the one-year statute of limitations in Section 2244(d)(1). 26 Therefore, it is this Court’s view that petitioner is not entitled to equitable tolling that 27 would render the filing of his Federal Petition timely. 28 / / / 1 In sum, the Federal Petition in this case is untimely, because it was filed long after 2 the expiration of the one-year statute of limitations set forth in Section 2244(d)(1)(A), 3 and because no facts have been presented to indicate petitioner is entitled to a later start 4 date or statutory tolling under Section 2244(d)(1)(B), (C), (D) or (d)(2). Nor has 5 petitioner presented any facts to indicate he is entitled to equitable tolling based on 6 extraordinary circumstances. It is therefore RECOMMENDED that the District Court 7 GRANT respondent’s Motion to Dismiss because the Petition is untimely. 8 V. Failure to State a Claim. 9 Even if petitioner could establish that tolling or a later state date applies to render 10 his Petition timely, respondent argues he would not be entitled to relief. Respondent is 11 correct. 12 First, to the extent petitioner claims in his Petition that the state courts violated his 13 right to due process by failing to correct an alleged illegal sentence, he has not stated a 14 viable federal constitutional claim. [Doc. No. 1, at pp. 7, 27-29.] Essentially, petitioner’s 15 claim is that the state courts did not follow California law when they declined to correct a 16 sentence that petitioner believes is unlawful. “[I]t is not the province of a federal habeas 17 court to re-examine state court determinations on state law questions.” Estelle v. 18 McGuire, 502 U.S. 62, 67-68 (1991). “[A]lleged errors in the application of state law are 19 not cognizable in federal habeas review.” Langford v. Day, 110 F.3d 1380, 1389 (9th 20 Cir. 1996). Petitioner may not “transform a state-law issue into a federal one merely by 21 asserting a violation of due process.” Id. “Absent a showing of fundamental unfairness, 22 a state court’s misapplication of its own sentencing laws does not justify federal habeas 23 relief.” Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). 24 Second, to the extent petitioner contends in the Petition that his right to due process 25 was violated because the state court imposed a sentence that violates the California 26 Supreme Court’s decision in People v. Jones, 5 Cal. 4th 1142 [Doc. No. 1 at pp. 7, 2727 29], he has not stated a viable claim. A review of the state court record shows there is no 28 factual basis for petitioner’s allegation. [Doc. No. 1, at pp. 7, 27-29.] The defendant in 1 People v. Jones, 5 Cal. 4th 1142 , served three prior prison terms for three separate 2 felonies, and one of those felonies (an aggravated form of kidnapping) also qualified as a 3 “serious felony” under Section 667(a). The trial court imposed one-year enhancements 4 for the prior prison terms served on each of the three prior felony offenses under Section 5 667.5(b) and then also imposed a five-year enhancement under Section 667(a) because 6 the prior kidnapping offense qualified as a “serious felony.” People v. Jones, 5 Cal. 4th 7 at 1145. The California Supreme Court affirmed the greater “serious felony” 8 enhancement of five years under Section 667.5(b) on the prior kidnapping offense but 9 concluded the one-year enhancement imposed because of the prior prison term served on 10 the same kidnapping offense should be stricken. Id. at 1153 . In sum, the California 11 Supreme Court in People v. Jones held that a single prior, serious felony offense could 12 not be used twice to impose a prior “serious felony” enhancement under Section 667(a) 13 and to also impose a prior prison term enhancement under Section 667.5(b). Id. at 1149– 14 1150. See also People v. Baird, 12 Cal. 4th 126, 128 (1995). 15 Here, the trial court concluded petitioner had previously been convicted of three 16 felony offenses and had served a prior prison term for each offense: (1) a robbery on 17 June 21, 1993, which qualified as a “serious felony” under Section 667(a); (2) an 18 automobile theft on January 11, 1990; and (3) felony possession of cocaine on June 24, 19 1988. [Doc. No. 11-5, at p. 2; Doc. No. 11-2, at pp. 127-129.] The transcript of 20 petitioner’s sentencing hearing shows that the trial court imposed a five-year, “serious 21 felony” enhancement because of the prior robbery offense but declined to also impose a 22 one-year prior prison term enhancement for this same offense “by operation of law.” 23 [Doc. No. 11-2, at p. 131.] The trial court also imposed one-year prior prison 24 enhancements on the other two prior felonies for automobile theft and cocaine 25 possession. [Doc. No. 11-2, at p. 131.] In addition, the record includes a copy of the 26 abstract of judgment. The sentence detailed in the abstract of judgment is consistent with 27 the transcript of the sentencing hearing. [Doc. No. 11-9, at p. 35.] In short, petitioner’s 28 sentence does not violate People v. Jones, 5 Cal. 4th 1142, 1145-1153 , because the trial 1 court did not use petitioner’s prior “serious felony” robbery offense to impose two 2 separate enhancements under Sections 667(a) and 667.5(b). 3 Third, to the extent he contends his right to due process was violated because the 4 state courts did not retroactively apply S.B. 620 to his case [Doc. No. 1, at p. 35], 5 petitioner has not alleged a viable Federal claim. Once again, “[a]lleged errors in the 6 application of state law are not cognizable in federal habeas review.” Langford v. Day, [7] 110 F.3d at 1389 . Petitioner may not “transform a state-law issue into a federal one 8 merely by asserting a violation of due process.” Id. As noted above, the Petition alleges 9 the trial court imposed but failed to retroactively strike “any firearms enhancement” 10 based on retroactive application of S.B. 620, which modified Section 12022.53. [Doc. 11 No. 1, at p. 35.] The record shows that the trial court in petitioner’s case imposed a 2012 year enhancement under Section 12022.53(c) at the time he was sentenced on 13 September 16, 1999. [Doc. No. 11-2, at pp. 1, 130; Doc. No. 11-9, at p. 35.] However, 14 California courts have concluded that Senate Bill 620 only applies retroactively to 15 judgments in criminal cases that were not final as of January 1, 2018, the effective date of 16 the bill. See, e.g., People v. Fox, 34 Cal. App. 5th 1124, 1127 (2019) (stating that 17 “Senate Bill No. 620 applies to defendants whose judgments were not final when the law 18 took effect”); People v. Hurlic, 25 Cal. App. 5th 50, 56 (2018) (stating that “the courts 19 have unanimously concluded that Senate Bill No. 620’s grant of discretion to strike 20 firearm enhancements under Section 12022.53 applies retroactively to all nonfinal 21 convictions”). Therefore, even if petitioner’s challenge to the application of S.B. 620 22 was cognizable as a due process claim on Federal habeas review, which it is not, 23 petitioner would not be entitled to habeas relief. Under California law, petitioner is not 24 eligible to have his sentence reconsidered under S.B. 620, because his conviction became 25 final long before the January 1, 2018 effective date. Accordingly, IT IS 26 RECOMMENDED that respondent’s Motion to Dismiss also be GRANTED for failure 27 to state a claim. 28 / / / 1 Conclusion 2 Based on the foregoing, IT IS RECOMMENDED that the District Court GRANT 3 ||respondent’s Motion to Dismiss [Doc. No. 13], because the Petition is time-barred under 4 || Title 28, United States Code, Section 2244 (d)(2) and there are no facts to support 5 equitable tolling of the one-year limitations period. 6 This Report and Recommendation is submitted to the assigned United States 7 || District Judge pursuant to Title 28, United States Code, Section 636 (b), and Civil Local 8 ||Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of 9 || California. 10 IT IS HEREBY ORDERED that no later than April 24, 2020 any party to this 11 || action may file and serve written objections to this Report and Recommendation. The 12 document should be captioned “Objection to Report and Recommendation. 13 IT IS FURTHER ORDERED that any reply to objections shall be filed and served 14 |/no later than May J, 2020. 15 The parties are advised that failure to file objections with the specified time may 16 || waive the right to raise those objections on appear of this Court order. Martinez v. YIst, 17 F.2d 1153 , 1156 (9th Cir. 1991). 18 IT IS SO ORDERED. 19 Dated: March 24, 2020 A /; ) 20 WU LA _———_ Hori. Karen S. Crawford United States Magistrate Judge