Clinton Douglas King v. Jared D. Lozano, No. 2:2020cv01766 - Document 22 (C.D. Cal. 2021)

Court Description: ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE 18 by Judge R. Gary Klausner. IT THEREFORE IS ORDERED that judgment be entered denying the Petition and dismissing this action with prejudice except for Petitioner's three-strikes claim, which is dismissed withoutprejudice. (es)

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Clinton Douglas King v. Jared D. Lozano Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CLINTON DOUGLAS KING, Petitioner, 12 13 14 15 16 v. DANIEL E. CUEVA, Acting Warden, Respondent. ) ) ) ) ) ) ) ) ) ) Case No. CV 20-1766-RGK (JPR) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE The Court has reviewed the Petition, records on file, and 17 Report and Recommendation of U.S. Magistrate Judge, which 18 recommends that the Petition be denied and this action be 19 dismissed. On January 25, 2021, Petitioner filed objections to 20 the R. & R.; Respondent did not reply. 21 In his objections, Petitioner mostly simply repeats 22 arguments from his Petition and his opposition to the motion to 23 dismiss. For instance, he asserts that his proposition claims 24 are cognizable on habeas review and not untimely because the 25 claims were “not presented in a prior application” and rely “on a 26 new rule of constitutional law.” (Objs. at 2.) But as the 27 Magistrate Judge noted, these claims are not cognizable on 28 federal habeas review because they concern state law only, and Dockets.Justia.com 1 that law’s discretionary nature forecloses any procedural due 2 process argument. 3 (See R. & R. at 5-9, 10.) Petitioner also objects to the Magistrate Judge’s finding 4 that his three-strikes-sentence claim was improperly successive. 5 (Objs. at 3.) He argues that the claim is not successive “due to 6 the judgment challenged,” citing Magwood v. Patterson, 561 U.S. 7 320 (2010). (Objs. at 3.) Magwood held that a habeas 8 petitioner’s challenge to his second death sentence was not 9 improperly successive because an intervening judgment had been 10 entered on resentencing. 561 U.S. at 341-42. As the Magistrate 11 Judge noted (R. & R. at 14), there has been no intervening 12 judgment here. Therefore, unlike the petitioner in Magwood, 13 Petitioner is attempting to challenge his original judgment in an 14 improperly successive petition. See Cole v. Sullivan, 480 F. 15 Supp. 3d 1089, __, 2020 WL 4905528, at *5 (C.D. Cal. Aug. 19, 16 2020). 17 Having reviewed de novo those portions of the R. & R. to 18 which Petitioner objects, the Court agrees with and accepts the 19 findings and recommendations of the Magistrate Judge. IT 20 THEREFORE IS ORDERED that judgment be entered denying the 21 Petition and dismissing this action with prejudice except for 22 Petitioner’s three-strikes claim, which is dismissed without 23 prejudice. 24 25 26 DATED: )HEUXDU\ R. GARY KLAUSNER U.S. DISTRICT JUDGE 27 28 2

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