Woods v. Pollard

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA — 10 — 11 DARYL K. WOODS, Case No.: 21-CV-111-MMA(WVG) 12 Petitioner, REPORT AND 13 v. RECOMMMENDATION ON RESPONDENT’S MOTION TO 14 POLLARD, Warden, DISMISS 15 Respondent. [Doc. No. 7.] — 16 — — 17 — 18 Petitioner Daryl Woods, a state prisoner proceeding pro se, filed a petition for a writ 19 habeas corpus pursuant to 28 U.S.C. section 2254 . He alleges that his federal constitutional 20 rights were violated and his freedom is being withheld without cause. (Doc. No. 1 at 5.) 21 Petitioner alleges that California Petition 57 and California Assembly Bill 965 allow for 22 his early release. (Id.) Further, he notes that he is denied “qualified liberty” and therefore 23 his Fourteenth Amendment rights are violated. (Id.) Respondent has filed a motion to 24 dismiss, and the petitioner subsequently filed an opposition.1 The Court has reviewed the — 25 — — 26 — 1 The opposition filed by Petitioner has been docketed as a “traverse” in the electronic court 27 filings. However, since this is a motion to dismiss, “opposition” is the correct terminology and will be used throughout this document despite the document’s title assigned in the — 28 — 1 Petition, motion to dismiss, and opposition. For the reasons discussed below, the Court 2 recommends that the motion to dismiss be GRANTED without leave to amend. 3 I. FACTUAL BACKGROUND 4 Petitioner is currently an inmate at the Richard J. Donovan Correctional Facility. 5 (Doc. No. 1 at 1.) In 2008, he pleaded guilty to seven counts of second-degree robbery.2 6 (Id. at 3.) Further, he admitted he had eleven prior convictions that were considered serious 7 felonies and/or strikes, and that he committed one of the robberies while on bail. (Id. at 17, 8 31.) The trial court dismissed ten of the prior strikes. (Id. at 18-19.) Consequently, the court 9 sentenced Petitioner to a total of twenty-seven years in prison. (Id.) 10 Petitioner filed the Petition on January 19, 2021, when it was received by the Clerk 11 of Court. (Doc. No. 1, Attachment 1.) Petitioner relies on California Proposition 57 and 12 California Assembly Bill 965 as grounds for infringement of his constitutional rights. (Id. 13 at 5.) He contends that these state policies, now implemented into law, have not been made 14 available to him. (Id.) Therefore, he alleges that by being considered ineligible for these 15 programs, he has been denied “qualified liberty” and his Fourteenth Amendment rights 16 have been infringed. (Id.) Petitioner argues that both the San Diego Superior Court and the 17 California Court of Appeal “admitted” on August 3, 2020, and August 25, 2020, 18 respectively, that his current conviction is not violent. (Id.) 19 II. PROCEDURAL BACKGROUND 20 Following a conviction for robbery on January 30, 2008, Petitioner appealed his 21 conviction to the California Court of Appeal. (Id. at 2, 18.) His appointed counsel asked 22 the court to review the record for error and whether Petitioner’s pleas were constitutionally 23 valid. (Id.) The California Court of Appeal affirmed Petitioner’s conviction on August 28, 24 2008. (Id.) — 25 — — 26 — — 27 — 2 The Court takes notice of all state court documents lodged by the Petitioner. See Smith v. — 28 — 1 On April 1, 2008, Petitioner filed his first petition for writ of habeas corpus in the 2 San Diego Superior Court. (Id. at 18.) He contended that his due process rights were 3 violated when he was not brought before a Magistrate Judge within forty-eight hours of his 4 arrest. (Id.) The petition was dismissed, as the court lacked jurisdiction over the petition 5 since Petitioner had a pending appeal. (Id.) 6 On November 5, 2008, Petitioner filed his second petition for writ of habeas corpus 7 in the San Diego Superior Court. (Id. at 4, 18.) He cited five reasons in his petition as 8 grounds for writ of habeas corpus. (Id.) First, he noted again that that his due process rights 9 were violated when he was not brought before a Magistrate Judge within forty-eight hours 10 of his arrest. (Id. at 18.) Additionally, Petitioner contended that (2) his due process rights 11 were violated during a police line-up; (3) there was insufficient evidence that he committed 12 a robbery; (4) two sentencing errors; and (5) ineffective assistance of counsel. (Id.) The 13 petition was denied in whole. (Id.) 14 On July 20, 2020, Petitioner filed his third petition for writ of habeas corpus in the 15 San Diego Superior Court. (Id. at 4.) He claimed (1) he was eligible to be resentenced under 16 Proposition 47, now Penal Code section 1170.18; and (2) he was eligible for early parole 17 under Proposition 57 and the resulting state constitutional amendment, Article I, Section 18 32 of the California Constitution. (Id. at 18.) 19 Petitioner’s claim for resentencing under Proposition 47 was denied, as his robbery 20 conviction was not a listed penal code violation for which Proposition 47 could provide 21 retroactive relief. (Id. at 20.) Further, his second claim regarding early parole consideration 22 under Proposition 57 was also denied, as Petitioner’s robbery offense was categorized as a 23 violent felony. (Id. at 21.) Plainly, the court noted, violent felonies are not eligible for 24 consideration for early parole that is permitted for non-violent felons. (Id.) 25 On August 25, 2020, Petitioner filed a petition for writ of habeas corpus with the 26 California Court of Appeal. (Id. at 4.) Petitioner cited three grounds for his petition: 27 (1) the reclassification of his robbery convictions as misdemeanors and subsequent 28 resentencing under Proposition 47; (2) a recall of his sentence under Penal Code section 1 1170; and (3) consideration for non-violent parole under Proposition 57. (Id. at 32-33.) He 2 also alleged that his first and third claims were improperly denied by the San Diego 3 Superior Court in his previous petition. (Id. at 32.) The Court of Appeal did not address the 4 claim involving the Superior Court since an order denying habeas corpus relief is not 5 appealable. (Id. at 32.) The correct procedure would have been to file a new petition with 6 the Court of Appeal, which Petitioner did successfully accomplish with his three stated 7 claims. (Id.) Therefore, the court only considered the three stated grounds. (Id.) 8 Petitioner’s first ground was denied by the Court of Appeal. (Id.) Similar to the 9 Superior Court, the Court of Appeal noted that Petitioner’s robbery convictions were not 10 enumerated offenses that could be reduced to misdemeanors. (Id.) 11 Regarding the second ground in his petition, the Court of Appeal denied a recall of 12 Petitioner’s sentence. (Id. at 32-33.) The court noted that after 120 days from commitment, 13 a sentence can only be recalled at the recommendation of the secretary of the Board of 14 Parole, not at the request of a defendant. (Id.) 15 Finally, the third ground citing Proposition 57 was again denied by the Court of 16 Appeal, as the proposition only applies to non-violent felonies, and Petitioner’s robbery 17 convictions are violent. (Id.) 18 On September 17, 2020, Petitioner appealed to the Supreme Court of California, 19 which summarily denied the petition. (Id. at 4, 8.) 20 On January 19, 2021, Petitioner filed the Petition in this Court. (Id. at 1.) 21 III. LEGAL STANDARD 22 A motion to dismiss a petition for writ of habeas corpus is viewed as a request to 23 dismiss under Rule Four of the Rules Governing section 2254. See O’Bremski v. Maass, — 24 — 915 F.2d 418, 420 (9th Cir. 2001). Rule Four states: “If it plainly appears from the petition 25 and any attached exhibits that the petitioner is not entitled to relief in the district court, the 26 judge must dismiss the petition.” — 27 — — 28 — 1 IV. DISCUSSION 2 A. Petitioner Does Not Provide a Valid or Discernible Constitutional Claim 3 1. Petitioner’s Claims are Purely a Matter of State Law 4 Petitioner does not allege any cognizable federal claim. Rather, he only asserts an 5 error of state law. However, such a claim is not cognizable under federal habeas review. 6 It is outside the scope of this Court’s review to consider errors of state law. See 7 Swarthout v. Cooke, 562 U.S. 216, 222 (2011). In Swarthout, a California law created a 8 liberty interest in parole. Id. at 220 . However, the liberty interest was created by the state 9 of California rather than the federal government. Id. No right existed under the United 10 States Constitution to be conditionally released before the expiration of a valid sentence. — 11 — Id. Here, if a liberty interest was created, it would have been created by the state of 12 California, not by the federal government. Therefore, this Court should not determine 13 whether Proposition 57 or Assembly Bill 965 should be applicable to Petitioner. 14 Because there is no federal issue or constitutional violation, this Court should not 15 entertain Petitioner’s claim. Hence, the motion to dismiss should be granted. 16 2. Petitioner Does Contend He is Being Held in Violation of the Constitution, 17 Laws, or Treaties of the United States. 18 In order for a state prisoner to be entitled to federal habeas corpus relief, he must be 19 held “in custody in violation of the Constitution or laws or treaties of the United States.” — 20 — 28 USC § 2254 (a). If a petition only raises a violation of state law, then no federal claim 21 has been presented, and consequently, the petition is subject to dismissal based on failure 22 to state a claim. O’Bremski, 915 F.2d at 420 . Federal habeas corpus relief is not available 23 as a remedy when a petitioner simply alleges that something has violated a general notion 24 of fairness or a federal procedural right. See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th 25 Cir. 1985). Rather, a petitioner must show that the United States Constitution or a federal 26 law specifically protects against the alleged injustice or unfairness. See id. at 1086 . The 27 burden rests with the Petitioner to prove facts that would entitle them to relief. See 28 O’Bremski, 915 F.2d at 423 (citing Townsend v. Sain, 372 U.S. 293, 312 (1963)). 1 Here, the Petition contains only one ground for relief. (Doc. No. 1 at 5.) Petitioner 2 writes: “Allege Fourteenth Amendment of the United States Constitution, Federal Due 3 Process Violation to Withhold Petitioners Liberty (Freedom) Without Cause.” (Id.) 4 Petitioner’s basis for this claim is that California State Proposition 57 and California 5 Assembly Bill 965 are applicable to him and allow for his early release.3,4 (Id. at 5-6.) 6 However, the underlying premise of his claim—that California laws somehow create a 7 federal interest–is faulty. 8 Petitioner cites a violation of the Fourteenth Amendment as his grounds for federal 9 habeas corpus relief. (Doc. No. 1 at 5.) However, while Petitioner generically asserts that 10 his constitutional rights have been violated, he offers no cognizable basis for a violation of 11 any federal right. (Id.) The only basis Petitioner cites is the lack of the application of 12 California State Proposition 57 and California State Assembly Bill 965 to his case. (Id.) 13 However, both Proposition 57 and Assembly Bill 965 were pieces of state legislation which 14 are now codified in California law, Cal Const, Art. I § 32; Cal. Penal Code § 3051 , and an 15 error of state law is not a cognizable basis for federal habeas relief. Swarthout, 562 U.S. at 16 222. 17 Simply asserting unspecified violations of due process cannot “transform a state law 18 issue into a federal one.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). Petitioner 19 does not provide any evidence that he is being held in violation of the Constitution, laws, 20 or treaties of the United States. (Doc. No. 1 at 5.) Instead, he attempts to appeal to a general — 21 — — 22 — 23 3 Proposition 57 was a California state proposition approved by California voters in November 2016. Proposition 57 would allow for some non-violent offenders to have early — 24 — parole consideration if they had served the full term of their primary offense. Proposition 25 57 has been implemented into the California Constitution in Article I Section 32. — 26 — 4 California Assembly Bill 965 was a California State Assembly Bill approved by Governor 27 Gavin Newsom in October 2019. The Bill amended Section 3051 of the California Penal Code by requiring a parole hearing for youth offenders in California within six months of — 28 — 1 notion of unfairness and withholding of liberty by generally citing the Fourteenth 2 Amendment. However, he fails to state a specific federal right guaranteed by the 3 Constitution or laws of the United States that would transform his purely state law claims 4 into a federal issue. (Id.) Ultimately, besides generally citing to a violation of due process, 5 Petitioner does not state any specific federal right which is being violated. (Id.) 6 Petitioner’s Opposition does not cure his deficient Petition. He raises various 7 extraneous arguments regarding civil procedure, issues with jurisdiction, state court cases, 8 and political viewpoints to support the Petition. (Doc. No. 8 at 2-3.) However, none of 9 these matters are relevant to his Petition and are often nonsensical or political in nature. 10 Further, Petitioner strives to establish a cognizable claim in his Opposition by 11 arguing that Respondent’s silence regarding exhaustion of state claims somehow creates a 12 cognizable claim under 28 U.S.C. section 2254 (b). (Id.) Petitioner’s assertion of exhaustion 13 of state claims is a red herring and a misguided attempt to manufacture a cognizable claim 14 before this Court. Respondent has not raised the failure to exhaust as a basis to dismiss the 15 Petition. Exhaustion is not an issue here. 16 Put simply, Petitioner has not raised any federal claim. A petitioner bears the burden 17 of alleging specific facts to show a federal right is involved. O’Bremski, 915 F.2d at 421 . 18 Petitioner has not met his burden. 19 B. Petitioner’s Claim Also Does Not Fall Within the Core of Habeas Corpus 20 In addition to the failure to raise a cognizable federal claim, Petitioners’ claim is not 21 within the core of habeas corpus. Respondent argues that regardless of eligibility to 22 participate in parole programs resulting from Proposition 57 and Assembly Bill 965, these 23 enactments would not necessarily result in a shortened sentence or immediate release. 24 (Doc. No. 7 at 5:1-26.) Respondent is correct. 25 A petition for writ of habeas corpus is the exclusive avenue for claims advanced by 26 state prisoners that fall within the core of habeas corpus. See Nettles v. Grounds, 830 F.3d 27 922, 934 (9th Cir. 2016). Typically, a state prisoner’s claims are within the core of habeas 28 corpus if the claims challenge the facts or duration regarding the conviction or sentence. 1 See id. at 934. Further, the core of habeas corpus can attack the duration of physical 2 confinement. See Preiser v. Rodriguez, 411 U.S. 475 at 487-88 (1973). However, if a 3 successful petition brought by a state prisoner would not necessarily lead to an immediate 4 or speedy release from custody, then the claims raised in that petition would fall outside 5 the core of habeas corpus. See Nettles 830 F.3d 922 at 927-28 . Therefore, the claims raised 6 by the state prisoner, if pursued, should be done through the mechanism of a civil rights 7 claim through 42 U.S.C.S. section 1983 . See id. 8 Here, Petitioner does not allege that the application of Proposition 57 to his case 9 would lead to his immediate or speedier release. He merely asserts that he should be eligible 10 for non-violent early parole now that Proposition 57 has been implemented into California 11 law. (Doc. No. 1 at 3.) However, even if Proposition 57 somehow applied to Petitioner 12 despite his violent felony convictions, this case would still fall outside the core of habeas 13 corpus because Proposition 57 would only entitle him to consideration for a parole hearing 14 rather than immediate release or the certainty of a lower sentence. See Smith v. Pearman, 15 No. 19CV3683-SI, 2019 U.S. Dist. LEXIS 172923 , at *3-6 (N.D. Cal. Oct. 4, 2019) 16 (finding Proposition 57 created only a new avenue for parole consideration and parole 17 could be denied). Mere eligibility for a parole hearing is insufficient to establish habeas 18 jurisdiction. Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (holding that if a further 19 event (such as the outcome of a future parole hearing) could separately prevent an earlier 20 release from prison, the claim “falls outside of the core of habeas corpus.”). Consequently, 21 Petitioner’s claim under Proposition 57 is not within the core of habeas corpus. 22 Second, Petitioner also cannot demonstrate how State Assembly Bill 965 would lead 23 to his immediate release or a shortened sentence. He does not supply any information 24 regarding why or how State Assembly Bill 965 would apply to him. However, even 25 assuming this legislation applies to Petitioner, he would nonetheless be ineligible for 26 habeas relief because AB 365 merely affects the timing of when parole hearings are held 27 and has no bearing on whether he will actually be granted parole or earlier release. His 28 argument here fails for the same reason as his Proposition 57 argument above. 1 Since success on the merits here would merely make Petitioner eligible for 2 || consideration for an earlier parole hearing and would not necessarily lead to his immediate 3 || release, his claim is not within the core of habeas corpus. 4 Vv. CONCLUSION 5 This Court RECOMMENDS that Respondent’s motion to dismiss be GRANTED 6 || and the Petition be DISMISSED without leave to amend. 7 This Report and Recommendation is submitted to the United States District Judge 8 || assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1) and Federal Rule 9 || of Civil Procedure 72(b). 10 IT IS ORDERED that no later than September 29, 2021, any party to this action 11 file written objections with the Court and serve a copy on all parties. The document 12 be captioned “Objections to Report and Recommendation.” 13 IT IS FURTHER ORDERED that any reply to the objections shall be filed with the 14 || Court and served on all parties no later than October 20, 2021. The parties are advised that 15 failure to file objections within the specified time may waive the right to raise those 16 || objections on appeal of the Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 17 || IT IS SO ORDERED. 18 || DATED: August 6, 2021 LN SS 20 Hon. William V. Gallo 71 United States Magistrate Judge — 22 — — 23 — — 24 — ail 6 Because Petitioner’s claim is barred as a matter of law, leave to amend should be denied. Accord Stephens v. Kunz, No. CV19-1008-AB(KS), 2019 U.S. Dist. LEXIS 212017 , at 27 || *10-11 (C.D. Cal. Sept. 18, 2019), report and recommendation adopted, 2019 U.S. Dist. 28 LEXIS 212014 (C.D. Cal. Dec. 6, 2019) (dismissing prisoner's Proposition 57 equal protection claims without leave to amend).