(HC) Dunckhurst v. Rackley, No. 2:2017cv02030 - Document 14 (E.D. Cal. 2019)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 3/29/2019 ORDERING petitioner's 10 application to proceed IFP is GRANTED; petitioner's 11 motion for appointment of counsel is DENIED; and the Clerk sh all randomly assign a US District Judge to this action. IT IS RECOMMENDED that petitioner's application for writ of habeas corpus be dismissed and this court decline to issue the certificate of appealability referenced in 28 U.S.C. § 2253. Assigned and referred to Judge Kimberly J. Mueller; Objections to F&R due within 21 days. (Yin, K)
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(HC) Dunckhurst v. Rackley Doc. 14 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 STEPHEN CHRISTOPHER DUNCKHURST, Petitioner, 12 ORDER AND FINDINGS & RECOMMENDATIONS v. 13 14 No. 2:17-cv-2030 AC P RON RACKLEY, Respondent. 15 16 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 17 18 19 corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. I. Application to Proceed In Forma Pauperis Examination of the in forma pauperis application reveals that petitioner is unable to afford 20 21 the costs of suit. ECF No. 10. Accordingly, the application to proceed in forma pauperis will be 22 granted. See 28 U.S.C. § 1915(a). 23 24 II. Procedural History The petition was originally filed in the Ninth Circuit Court of Appeal as an application to 25 file a second or successive petition. ECF No. 2. The Ninth Circuit denied the application as 26 unnecessary because petitioner is challenging the denial of his petition for resentencing under 27 Proposition 36. Id. The application was transferred to this court as a petition for writ of habeas 28 corpus and deemed filed on February 15, 2017. Id. at 2. 1 Dockets.Justia.com 1 Because the petition was initially filed as an application to file a second or successive 2 petition, it was not on the petition form used by this district and, as a result, it was missing nearly 3 all of the necessary information regarding petitioner’s underlying conviction and state court 4 proceedings. It was also unclear whether petitioner was challenging the denial of his petition for 5 recall, the language of the statute, or both. The petition was therefore dismissed with leave to 6 amend so that petitioner could provide the necessary information regarding his conviction and 7 clarify his grounds for relief. ECF No. 5. The first amended petition is now before the court. 8 ECF No. 9. 9 III. 10 Petition The federal petition challenges the state court’s denial of a petition to recall petitioner’s 11 2005 conviction for unlawful taking of a vehicle. ECF No. 9 at 1, 4-5. Petitioner asserts that the 12 state court denied his request to recall his sentence on the ground of a prior conviction that 13 rendered him ineligible for recall. Id. at 5. He argues that the denial, as well as the language of 14 the statute itself, violated his rights under the Sixth and Fourteenth Amendments because the 15 Third District Court of Appeal interpreted the statute differently than the Fifth District Court of 16 Appeal with respect to what constitutes a disqualifying “prior” conviction. Id. In petitioner’s 17 case, the Third District Court of Appeal held that “the disqualifying ‘prior’ conviction need only 18 occur before the court decides whether the inmate is eligible for resentencing under [Proposition 19 36].” People v. Dunckhurst, 226 Cal. App. 4th 1034, 1041 (2014). On the other hand, the Fifth 20 District Court of Appeal has held that to count as a “prior” conviction that makes a petitioner 21 ineligible, the conviction must have occurred prior to the sentence on which the petitioner seeks 22 resentencing. People v. Spiller, 2 Cal. App. 5th 1014, 1026 (2015). 23 Rule 4 of the Habeas Rules requires the court to summarily dismiss a habeas petition “[i]f 24 it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to 25 relief in the district court.” For the reasons set forth below, the petition fails to state cognizable 26 claims for relief and must be dismissed. 27 //// 28 //// 2 1 The California Court of Appeal has explained the Proposition 36 recall process as follows: 2 On November 6, 2012, [California] voters approved Proposition 36, the Three Strikes Reform Act of 2012, which amended sections 667 and 1170.12 and added section 1170.126 (hereafter the Act). . . . The Act . . . created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126.) 3 4 5 6 7 8 People v. Yearwood, 213 Cal. App. 4th 161, 167-68 (2013). Subsection (e)(3) of Penal Code § 9 1170.126 states that “[a]n inmate is eligible for resentencing if: The inmate has no prior 10 convictions for any of the offenses appearing in . . . clause (iv) of subparagraph (C) of paragraph 11 (2) of subdivision (c) of Section 1170.12.” The state court found that petitioner’s 2010 conviction 12 for assault was one of the offenses covered by California Penal Code § 1170.12(c)(2)(C)(iv), and 13 because it occurred prior to the decision on his petition for recall of sentence, it disqualified him 14 for resentencing under Proposition 36. Dunckhurst, 226 Cal. App. 4th at 1042. 15 “[I]t is not the province of a federal habeas court to reexamine state-court determinations 16 on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Middleton v. Cupp, 768 17 F.2d 1083, 1085 (9th Cir. 1985) (habeas relief “is unavailable for alleged error in the 18 interpretation or application of state law”). This includes the interpretation or application of state 19 sentencing laws. See Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (declining to 20 address “[w]hether assault with a deadly weapon qualifies as a ‘serious felony’ under California’s 21 sentence enhancement provisions [because it] is a question of state sentencing law”). The 22 exception is if “the state court’s finding was so arbitrary or capricious as to constitute an 23 independent due process . . . violation.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). It is a 24 question of state law whether “prior” refers to the date the court decides a petitioner’s eligibility 25 for resentencing or the date of the sentence for which resentencing is sought. Accordingly, 26 petitioner’s claim that the Third District Court’s of Appeal’s interpretation is wrong is not 27 cognizable in federal court. 28 //// 3 1 To the extent it appears that petitioner is attempting to argue that the state court’s 2 interpretation was arbitrary or capricious, both the allegations of the petition and the court of 3 appeal’s opinion demonstrate otherwise. Petitioner argues that the Court of Appeal should not 4 have considered the “language of voter intent” when determining how to interpret the statute 5 (ECF No. 9 at 4), and the opinion further reveals that the court analyzed the verb tense of the 6 statute in determining which event the disqualifying conviction had to precede. See Dunckhurst, 7 226 Cal. App. 4th at 1042 (“Here, the use of the present tense language ‘has’ indicates the 8 convictions must have occurred only before the time the court decides the inmate’s petition for 9 recall of sentence.”). Accordingly, there is no support for the claim that the state court’s 10 11 interpretation was arbitrary or capricious. To the extent petitioner appears to claim that the language of the statute is 12 unconstitutionally vague, his claim fails. “As a basic principle of due process under the Fifth 13 Amendment, a state law must establish adequate guidelines to govern the exercise of discretion 14 by state officials so that the law neither ‘authorizes [n]or even encourages arbitrary and 15 discriminatory enforcement.’” Hess v. Bd. of Parole & Post-Prison Supervision, 514 F.3d 909, 16 913 (9th Cir. 2008) (alteration in original) (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)). 17 “[A] state statute should not be deemed facially invalid unless it is not readily subject to a 18 narrowing construction by the state courts.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 19 (1975) (citation omitted). “The judgment of federal courts as to the vagueness or not of a state 20 statute must be made in the light of prior state constructions of the statute.” Wainwright v. Stone, 21 414 U.S. 21, 22 (1973). 22 “[A] state court’s interpretation of state law, including one announced on direct appeal of 23 the challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 24 546 U.S. 74, 76 (2005) (citations omitted). 25 26 27 28 Where an intermediate appellate state court rests its considered judgment upon the rule of law which it announces, that is a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise. This is the more so where . . . the highest court has refused to review the lower court’s decision rendered in one phase of the very litigation which is now 4 1 prosecuted by the same parties before the federal court. True, some other court of appeals . . . may in some other case arrive at a different conclusion and the [state] Supreme Court . . . , notwithstanding its refusal to review the state decision against the petitioner may hold itself free to modify or reject the ruling thus announced. . . . [However, t]he law thus announced and applied is the law of the state applicable in the same case and to the same parties in the federal court and . . . the federal court is not free to apply a different rule however desirable it may believe it to be, and even though it may think that the state Supreme Court may establish a different rule in some future litigation. 2 3 4 5 6 7 West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237-38 (1940). 8 Accordingly, this court is bound by the Third District Court of Appeal’s interpretation of 9 the statute, which cures any vagueness that might exist as to the temporal boundaries of a “prior” 10 conviction.1 Moreover, even if the court were to be persuaded that the California Supreme Court 11 would instead adopt the Fifth District Court of Appeal’s interpretation in Spiller,2 petitioner’s 12 vagueness claim still fails because that decision would equally cure any alleged vagueness. 13 Petitioner would then be left with a claim that the Third District Court of Appeal misinterpreted 14 California law. As previously explained, such an error of state law would not present a federal 15 claim for relief. Petitioner’s claim that the Third District Court of Appeal’s decision violated his right to 16 17 equal protection also fails. “The fourteenth amendment’s equal protection clause announces a 18 fundamental principle: the State must govern impartially. General rules that apply evenhandedly 19 to all persons within the jurisdiction unquestionably comply with this principle.” McQueary v. 20 Blodgett, 924 F.2d 829, 834 (1991) (citations and internal quotation marks omitted). Section 21 1170.126 applies evenhandedly, as it applies to all individuals convicted of a third strike prior to 22 the enactment of Proposition 36. However, “[t]he equal protection clause also requires that the 23 law be evenhanded as actually applied. Under the prevailing rational-basis test, plaintiffs in 24 appellant’s position bear the burden of establishing a prima facie case of uneven application.” Id. 25 at 835 (applying rational-basis test to challenge to sentencing law where alleged denial of equal 26 27 28 1 Although the California Supreme Court initially granted review of petitioner’s appeal, it later dismissed the case. ECF No. 9 at 30. 2 The California Supreme Court denied review in Spiller. 5 1 protection was not based on membership in a suspect class). “[A] mere demonstration of 2 inequality is not enough; the Constitution does not require identical treatment. There must be an 3 allegation of invidiousness or illegitimacy in the statutory scheme before a cognizable claim 4 arises: it is a ‘settled rule that the Fourteenth Amendment guarantees equal laws, not equal 5 results.’” Id. (quoting Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 273 (1979)). 6 Petitioner provides a single example of the law being applied differently, which is 7 insufficient to state a claim. See id. (finding allegations that other felons received sentences more 8 lenient that appellant for more serious offenses, even if true, were insufficient to establish a prima 9 facie case equal protection claim). Furthermore, there is no evidence of invidiousness or 10 illegitimacy in the differing outcomes, as the Fifth District Court of Appeal’s decision was 11 informed by the California Supreme Court’s decision in People v. Johnson, 61 Cal. 4th 674 12 (2015), which was issued after the Third District Court of Appeal’s ruling in petitioner’s case. 13 Spiller, 2 Cal. App. 5th at 1025-26. Nor are differences in statutory interpretation between courts 14 of appeal sufficient to show a denial of equal protection. See Habibi v. Holder, 673 F.3d 1082 15 (9th Cir. 2011) (“No court has ever held that the mere existence of a circuit split on an issue of 16 statutory interpretation violates due process or equal protection, and we decline [the] invitation to 17 do so here.). 18 Finally, even if petitioner were successful and the court found that his 2010 conviction did 19 not make him ineligible for resentencing, his success would not necessarily spell speedier release 20 because he could still be denied resentencing on the ground that he posed an unreasonable risk to 21 public safety. Cal. Penal Code § 1170.126(f). 22 26 By its terms, the statute does not create an entitlement to resentencing; the finding of a fact that renders a petitioner ineligible for resentencing deprives him or her of an opportunity to have the trial court make a discretionary determination as to whether he or she should be resentenced. Moreover, Proposition 36 does not automatically reduce, recall, or vacate any sentence by operation of law. It is up to the inmate to petition for recall of the sentence, and at all times prior to the trial court’s resentencing determination, the petitioner’s original third-strike sentence remains in effect. 27 People v. Perez, 4 Cal. 5th 1055, 1064 (2018). “[W]hen a prisoner’s claim would not ‘necessarily 28 spell speedier release,’ that claim does not lie at ‘the core of habeas corpus,’” Skinner v. Switzer, 23 24 25 6 1 562 U.S. 521, 535 n.13 (2011) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)), and “if a 2 state prisoner’s claim does not lie at ‘the core of habeas corpus,’ it may not be brought in habeas 3 corpus but must be brought, ‘if at all,’ under § 1983,” Nettles v. Grounds, 830 F.3d 922, 931 (9th 4 Cir. 2016) (internal citations omitted). Accordingly, the court lacks habeas jurisdiction over 5 petitioner’s claim. 6 IV. 7 Certificate of Appealability Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must 8 issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A 9 certificate of appealability may issue only “if the applicant has made a substantial showing of the 10 denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 11 For the reasons set forth in these findings and recommendations, a substantial showing of 12 the denial of a constitutional right has not been made in this case. Therefore, no certificate of 13 appealability should issue. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Petitioner’s application to proceed in forma pauperis (ECF No. 10) is granted. 16 2. Petitioner’s motion for appointment of counsel (ECF No. 11) is denied. 17 3. The Clerk of the Court shall randomly assign a United States District Judge to this 18 action. 19 IT IS FURTHER RECOMMENDED that: 20 1. Petitioner’s application for a writ of habeas corpus be dismissed. 21 2. This court decline to issue the certificate of appealability referenced in 28 U.S.C. 22 § 2253. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 25 after being served with these findings and recommendations, petitioner may file written 26 objections with the court. Such a document should be captioned “Objections to Magistrate 27 Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections 28 //// 7 1 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 2 Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: March 29, 2019 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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