Mitchell v. Atchley, No. 4:2021cv06176 - Document 17 (N.D. Cal. 2023)
Court Description: ORDER GRANTING MOTION TO DISMISS; DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY by Judge Jon S. Tigar granting 11 Motion to Dismiss.(mll, COURT STAFF) (Filed on 9/28/2023)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 CORREY MITCHELL, 7 Petitioner, 8 v. 9 TRENT ALLEN, 10 Respondent. 11 United States District Court Northern District of California Case No. 21-cv-06176-JST ORDER GRANTING MOTION TO DISMISS; DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY Re: ECF No. 11 12 Petitioner, a state prisoner incarcerated at Salinas Valley State Prison,1 filed this pro se 13 14 action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing that the California 15 Department of Corrections and Rehabilitation (“CDCR”) has extended his sentence from 205 16 years to life to a longer sentence of 251 years to life without authority. See generally ECF Nos. 1, 17 10. Respondent has filed a motion to dismiss. ECF No. 11. Petitioner has filed an opposition, 18 ECF No. 13, and Respondent has filed a reply, ECF No. 15. For the reasons set forth below, the 19 Court GRANTS the motion to dismiss. BACKGROUND 20 21 I. 22 Petitioner’s Underlying Conviction and Sentence On March 24, 2004, Petitioner was convicted in Los Angeles County Superior Court of 23 robbery (Cal. Penal Code § 211); carjacking (Cal. Penal Code § 236); assault on an officer with a 24 semi-automatic firearm (Cal. Penal Code § 245(b); and fleeing from an officer’s pursuit (Cal. 25 Penal Code § 2800.2(a)). ECF No. 1-1 at 11. Pursuant to the Three Strikes Law, Petitioner was 26 27 28 1 In accordance with Habeas Rule 2(a) and Rule 25(d)(1) of the Federal Rules of Civil Procedure, the Clerk of the Court is directed to substitute Warden Trent Allen as Respondent because he is Petitioner’s current custodian. 1 sentenced to a term of 207 years to life with the possibility of parole. ECF No. 11 at 17-18, 74-76. On April 6, 2016, a CDCR analyst revised Petitioner’s CDCR legal status summary to 2 3 reflect a sentence of 251 years to life, stating “Per M/O and AOJ total term is 207 years to life but 4 error in calculation. Inmate was sentenced as a 3rd striker total term should be 251 years to life. 5 Entered into SOMS according to 3rd striker.” ECF No. 13 at 16-17, 50. 6 II. United States District Court Northern District of California 7 Procedural Background On or about August 10, 2021, Petitioner commenced this action by filing the instant 8 petition for a writ of habeas corpus. ECF No. 1. On August 30, 2021, the Court screened the 9 petition and found that the petition alleged that Petitioner’s primary offense was the non-violent 10 crime of assault with a firearm (Cal. Penal Code § 245(d)(2)), and that the petition claimed that 11 the failure to grant Petitioner a Proposition 57 parole hearing therefore violated the federal Equal 12 Protection Clause and Petitioner’s state constitutional right to due process. ECF No. 7 at 1-2. The 13 Court dismissed the petition for lack of habeas corpus jurisdiction, finding that success on this 14 claim would not shorten or end Petitioner’s sentence because eligibility for a Proposition 57 parole 15 hearing would not necessarily result in Petitioner’s immediate release from prison in that 16 Petitioner could be denied parole at the hearing. ECF No. 7 at 2. 17 Petitioner filed a motion for reconsideration of the dismissal, arguing that the Court only 18 considered one of his three claims for federal habeas relief. ECF No. 9. On November 16, 2022, 19 the Court granted Petitioner’s motion for reconsideration, vacated the Order of Dismissal and 20 related judgment, and reopened the case. ECF No. 10. The Court found that the petition stated 21 three cognizable claims for relief. In addition to the Proposition 57 claim dismissed by the Court, 22 the petition also presented the following two claims: (1) the CDCR had changed Petitioner’s 23 sentence without authority and (2) Petitioner’s abstract of judgment and minute order were both in 24 error. ECF No. 10 at 2-3. The Court dismissed the latter claim with prejudice because the claim 25 involved a state procedural error that had no bearing on the fundamental fairness of the trial and 26 the error did not violate any federal constitutional or statutory provision. ECF No. 10 at 3. The 27 Court found that, liberally construed, the claim that the CDCR increased Petitioner’s sentence 28 without authority stated a cognizable federal habeas claim, and ordered Respondent to file an 2 1 answer. ECF No. 10 at 4. DISCUSSION 2 3 I. Respondent argues that this habeas petition should be dismissed because (1) any error in 4 5 the legal status summary, the abstract of judgment, or the minute order is a matter of state law; 6 (2) the petition does not invoke habeas corpus jurisdiction because success on Petitioner’s claim 7 will not necessarily spell speedier release; and (3) the petition is untimely. See generally ECF 8 Nos. 11, 15. In opposition, Petitioner argues that the petition invokes the Court’s federal habeas 9 United States District Court Northern District of California Motion to Dismiss 10 jurisdiction because the August 17, 2004 re-sentencing violated the Fifth Amendment’s 11 prohibition on double jeopardy. Petitioner argues that the petition is timely because he was not 12 certain he could not bring this claim until February 18 or 27, 2019, when he received, for the first 13 time, a copy of his August 17, 2004 sentencing transcript, and could conclusively prove that the 14 minute order and abstract of judgment were incorrect; and that he is entitled to tolling of the 15 limitations period from July 17, 2019 to April 22, 2020, when he was exhausting administrative 16 remedies for this claim, and from October 24, 2020 to July 14, 2021, when he was exhausting his 17 state court remedies. Petitioner further argues that the California Supreme Court found his 18 petition to be timely on October 25, 2019, and notes that In re Mohammad was not decided until 19 January 3, 2022. 20 II. 21 Analysis The Court agrees that Petitioner’s claim alleging that the CDCR has incorrectly calculated 22 his sentence fails to state a cognizable federal habeas claim. Federal courts lack habeas 23 jurisdiction over claims by state prisoners that are not within “the core of habeas corpus.” Nettles 24 v. Grounds, 830 F.3d 922, 927, 934 (9th Cir. 2016). A prisoner’s claims are within the core of 25 habeas corpus if they challenge the fact or duration of his conviction or sentence. Id. at 934. 26 “[W]hen a prisoner’s claim would not ‘necessarily spell speedier release,’ that claim does not lie at 27 ‘the core of habeas corpus,’ and may be brought, if at all, under § 1983.” Skinner v. Switzer, 562 28 U.S. 521, 534 n.13 (2011) (citing Wilkinson v. Dotson, 544 U.S. 74, 82 ( 2005)); Nettles, 830 F.3d 3 United States District Court Northern District of California 1 at 934. Petitioner has been sentenced to an indeterminate term with the possibility of parole, with 2 a specified minimum term that he must serve before he is eligible for parole. See Cal. Penal Code 3 § 667(e)(2)(A). The CDCR’s change to Petitioner’s sentence was a change to his minimum 4 eligible parole date, not to Petitioner’s overall sentence. Accordingly, Petitioner’s claim is more 5 accurately described as challenging whether the CDCR correctly calculated the minimum term 6 that he must serve before he is eligible for parole. Whether the minimum term has been correctly 7 calculated will not necessarily “spell speedier release” because California prisoners serving 8 indeterminate sentences may be released from prison only upon the parole authority’s 9 determination that they are suitable for parole, which depends on assessment of a number of 10 factors probative of the risk to public safety. See 15 Cal. Code Regs. § 2281; In re Lawrence, 44 11 Cal.4th 1181, 1202–03 (2008). In other words, whether Petitioner’s term is 191 years to life, 207 12 years to life, or 251 years to life, Petitioner will be released only when the parole board deems him 13 suitable for parole.2 Accordingly, Petitioner’s success on the claim that the CDCR erred in 14 calculating his sentence as 251 years to life would not necessarily shorten his sentence and does 15 not invoke federal habeas jurisdiction. Nettles, 830 F.3d at 934-35. Petitioner argues that the Court has federal habeas jurisdiction because the August 17, 16 17 2004 re-sentencing violated the Fifth Amendment’s prohibition on double jeopardy. ECF No. 13 18 at 3-4. This argument was not raised in the petition. See generally ECF No. 1. To the extent that 19 Petitioner seeks leave to amend his petition to add a claim of double jeopardy, the Court DENIES 20 leave to amend because amendment would be futile. This claim appears to be unexhausted. 21 Petitioner has not presented this claim to the California Supreme Court. See generally ECF No. 1- 22 1 at 10-60 (state habeas petition filed in California Supreme Court on April 23, 2021 raising 23 claims in this petition); ECF No. 11 at 20-97 (state habeas petition filed in California Supreme 24 Court on August 6, 2019, alleging violation of equal protection and due process clauses because 25 Petitioner was not given proper consideration of his sentence, CDCR Secretary lackced authority 26 to execute judgment because judgment and minute order not properly entered, and ineffective 27 28 2 Moreover, pursuant to the Elderly Parole Program, Petitioner is eligible for parole on March 2032, ECF No. 11 at 9, far earlier than the minimum terms at issue. 4 1 assistance of counsel). Pursuant to 28 U.S.C. § 2254(b), habeas relief may not be granted unless a 2 petitioner has exhausted his state remedies, which requires that the petitioner’s contentions be 3 fairly presented to the state courts and disposed of on the merits by the highest state court. See 28 4 U.S.C. § 2254(b); see also James v. Borg, 24 F.3d 20, 24 (1994).3 Because Petitioner’s claim does not invoke federal habeas jurisdiction, the Court declines 5 6 to address Respondent’s remaining arguments. The Court GRANTS Respondent’s motion to 7 dismiss on the grounds that the petition lacks federal habeas jurisdiction. CERTIFICATE OF APPEALABILITY 8 The federal rules governing habeas cases brought by state prisoners require a district court United States District Court Northern District of California 9 10 that issues an order denying a habeas petition to either grant or deny therein a certificate of 11 appealability. See Rules Governing § 2254 Case, Rule 11(a). A judge shall grant a certificate of appealability “only if the applicant has made a 12 13 substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the 14 certificate must indicate which issues satisfy this standard. Id. § 2253(c)(3). “Where a district 15 court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) 16 is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district 17 court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 18 473, 484 (2000). Here, Petitioner has not made such a showing, and, accordingly, a certificate of 19 20 appealability will be denied. 21 // 22 // 23 // 24 25 26 27 28 3 Petitioner also presents the following additional challenges to his sentence in his opposition. Petitioner argues that when the CDCR increased his total term to 251 years to life on or about August 28, 2019, the CDCR violated his due process rights and subjected him to both arbitrary punishment and to cruel and unusual punishment. See ECF No. 13 at 1-4. To the extent that Petitioner seeks leave to amend the petition to add these additional legal claims, the Court DENIES leave to amend because these arguments also appear to be unexhausted. See generally ECF No. 1-1 at 10-60; ECF No. 11 at 20-97. 5 CONCLUSION 1 2 For the reasons stated above, the Court orders as follows. 3 1. 4 Civil Procedure, the Clerk of the Court is directed to substitute Warden Trent Allen as Respondent 5 because he is Petitioner’s current custodian. 2. 6 United States District Court Northern District of California In accordance with Habeas Rule 2(a) and Rule 25(d)(1) of the Federal Rules of The Court GRANTS Respondent’s motion to dismiss, ECF No. 11; DISMISSES 7 the petition for a writ of habeas corpus for lack of federal habeas jurisdiction; and DENIES a 8 certificate of appealability. The Clerk shall enter judgment in favor of Respondent and close the 9 file. 10 This order terminates ECF No. 11. 11 IT IS SO ORDERED. 12 13 14 Dated: September 28, 2023 ______________________________________ JON S. TIGAR United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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