(HC) Nguyen v. Acevedo, No. 2:2023cv01086 - Document 10 (E.D. Cal. 2023)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 12/06/23 RECOMMENDING that 9 Second Amended Petition be dismissed without leave to amend for failure to state a cognizable habeas claim. Referred to Judge Dale A. Drozd; Objections to F&Rs due within 14 days. (Benson, A.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAI NGUYEN, 12 13 14 15 Case No. 2:23-cv-01086-DAD-JDP (HC) Petitioner, v. FINDINGS AND RECOMMENDATIONS THAT THIS ACTION BE DISMISSED FOR FAILURE TO STATE A VIABLE FEDERAL HABEAS CLAIM ACEVEDO, ECF No. 9 Respondent. 16 17 Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus 18 under 28 U.S.C. § 2254. This is the third petition that I have reviewed in this action; I found that 19 the first two failed to state cognizable claims. ECF Nos. 6 & 8. Petitioner has now filed an 20 amended petition that, like its predecessors, fails to state a cognizable claim. ECF No. 9. I now 21 recommend that this action be dismissed. 22 The petition is before me for preliminary review under Rule 4 of the Rules Governing 23 Section 2254 Cases. Under Rule 4, the judge assigned to the habeas proceeding must examine 24 the habeas petition and order a response to the petition unless it “plainly appears” that the 25 petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); 26 Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). 27 28 Petitioner argues that the state courts violated his due process rights by rejecting his petition for resentencing under California Senate Bill 1437, which makes changes to California 1 1 Penal Code § 1170.95. ECF No. 9 at 7. As I have noted previously, that denial cannot justify 2 federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“[F]ederal habeas corpus relief 3 does not lie for errors of state law.”) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). 4 Petitioner’s attempts to recast the denial as a violation of his due process rights by alleging that 5 the state courts were “biased” or “vindictive” cannot save his claim. See Langford v. Day, 110 6 F.3d 1380, 1381 (9th Cir. 1996).1 7 Similarly, petitioner’s claims concerning the effectiveness of his counsel during 8 resentencing, to the extent he is raising any (it is difficult to tell), are non-cognizable. See 9 Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“Our cases establish that the right to appointed 10 counsel extends to the first appeal of right, and no further.”). Courts have routinely concluded as 11 much. See, e.g., Hunt v. Cicnero, No. 2:22-cv-02472-JAK-KES, 2022 U.S. Dist. LEXIS 167117, 12 *17 (C.D. Cal. Jul. 20, 2022) (“Resentencing proceedings under California Penal Code section 13 1170.95 are the type of postconviction proceedings in which there is no federal constitutional 14 right to counsel.”); King v. Bird, No. 3:22-cv-00031-TWR-MDD; 2023 U.S. Dist. LEXIS 6322, 15 *10 (S.D. Cal. Jan. 12, 2023) (“And petitioners typically do not possess a federal constitutional 16 right to counsel during state post-conviction resentencing proceedings.”). 17 Finally, petitioner’s claims concerning his initial conviction appear to be untimely. He 18 notes that the underlying conviction occurred more than twenty years ago, in 2000. ECF No. 9 at 19 1. Given that AEDPA contains a one-year of statute of limitations, there does not appear to exist 20 a scenario in which claims attacking the initial conviction can be timely. There is, for example, 21 no basis on which to conclude that the denial under section 1170.95 restarted the statute of 22 Petitioner cites the Ninth Circuit’s decision in Brown v. Atchley, 76 F.4th 862 (9th Cir. 2023) for the proposition that his state law claims do give rise to a viable federal claim. But this decision concerned whether a given federal habeas petition was successive, not whether claims that sound purely in state law, as petitioner’s do, warrant federal habeas relief. Id. at 873. Following the Ninth Circuit’s decision in Atchley, district courts have continued to hold that claims challenging state courts’ denials of resentencing under section 1170.95 do not give rise to federal habeas relief. See Green v. Lovello, No. 2:23-cv-07599-FMO-KES, 2023 U.S. Dist. LEXIS 182075, *7-8 (C.D. Cal. Oct. 10, 2023) (“Federal courts have routinely held that challenges to denials of section 1170.95 resentencing petitions pertain solely to the state court’s interpretation and application of state sentencing law and therefore are not cognizable on federal habeas review.”) (internal quotation marks omitted). 2 23 24 25 26 27 28 1 1 limitations for the original, underlying conviction. Davis v. Sullivan, 2018 U.S. App. LEXIS 2 19388, *1 (9th Cir. July 13, 2018) (“Applicant’s reliance on Clayton v. Biter, 868 F.3d 840 (9th 3 Cir. 2017), is misplaced, as he is not challenging an order resolving a resentencing petition but 4 instead is seeking to challenge his original judgment of conviction.”). Accordingly, it is RECOMMENDED that petitioner’s second amended petition, ECF No. 5 6 9, be DISMISSED without leave to amend for failure to state a cognizable habeas claim. 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 12 objections shall be served and filed within fourteen days after service of the objections. The 13 parties are advised that failure to file objections within the specified time may waive the right to 14 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 15 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 17 IT IS SO ORDERED. 18 Dated: 19 20 December 6, 2023 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3

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