Opinion
Case No. 2:19-cv-10558-JVS-JC
2020-08-19
Walter Lee COLE, Petitioner, v. W.J. SULLIVAN, Respondent.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus and Supplements thereto (collectively, "Petition"), all documents submitted by the parties in connection with the Motion to Vacate the Magistrate Judge's January 3, 2020 Order ("Motion to Vacate"), and all of the records herein, including the July 7, 2020 Report and Recommendation of United States Magistrate Judge ("Report and Recommendation"). The Court approves and accepts the Report and Recommendation.
IT IS HEREBY ORDERED that (1) the Motion to Vacate is granted; (2) the Petition and this action are dismissed without prejudice; and (3) the Clerk shall (a) enter Judgment accordingly; and (b) refer the Petition to the Ninth Circuit pursuant to Ninth Circuit Rule 22-3(a).
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on petitioner and on respondent's counsel.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Jacqueline Chooljian, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable James V. Selna, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I. SUMMARY
On December 13, 2019, petitioner Walter Lee Cole, a prisoner in state custody who is proceeding pro se , formally filed a Petition for Writ of Habeas Corpus ("Current Petition"). (Docket No. 1). The Current Petition purports to challenge a judgment in Los Angeles County Superior Court Case No. A903092 ("State Case"). Petitioner thereafter submitted two additional Petitions for Writ of Habeas Corpus which also purport to challenge the judgment in the State Case, and which this Court directed the Clerk to file as Supplements to the Current Petition (Docket Nos. 4, 7) (respectively "Supplement" and "Second Supplement," collectively "Supplements").
On January 3, 2020, this Court issued an Order Governing Proceedings Involving Petition for Writ of Habeas Corpus by a Person in State Custody ("January Order") which, among other things, noted that the Current Petition and Supplements might well be partially or entirely successive, but that the Court deemed it prudent to allow respondent to address the issue in light of Clayton v. Biter, 868 F.3d 840 & 846 n.2 (9th Cir. 2017) (observing that due process challenge based on the denial of Proposition 36 resentencing without a hearing may be cognizable where the petitioner raises a question that is not yet clearly decided). (Docket No. 10). On February 13, 2020, respondent filed a Motion to Vacate [the January Order] ("Motion to Vacate") and lodged supporting documents ("Lodged Docs."), arguing that: (1) the Current Petition and Supplements are successive and this Court lacks jurisdiction to consider them because petitioner filed a prior federal habeas petition seeking relief from his conviction in the State Case that was dismissed as untimely and petitioner did not obtain Ninth Circuit authorization to file a second or successive petition; and (2) Clayton v. Biter does not compel a contrary conclusion because (a) petitioner is not challenging a new state court judgment; (b) even assuming the denial of petitioner's petition for resentencing constitutes a new state court judgment, it does not save the Current Petition and Supplements from being successive as petitioner therein purportedly challenges only his underlying conviction and not the denial of the petition for resentencing; and (c) further assuming petitioner is asserting claims directed to the denial of the resentencing petition, any such claims would be based on state sentencing law and would not be cognizable in these proceedings. (Docket No. 14).
On February 18, 2020, the Court ordered respondent to file a supplemental brief addressing Ninth Circuit authority holding that a petition challenging a new intervening judgment entered at least as a result of a successful/partially-successful post-judgment application is not second or successive even if the petition challenges only undisturbed portions of the original judgment. See Docket No. 16 (citing Morales v. Sherman, 949 F.3d 474, 476 (9th Cir. 2020) (petition challenging intervening judgment resulting from successful Proposition 47 petition not successive; declining to address whether unsuccessful effort to obtain relief under Proposition 36 may result in issuance of new, intervening judgment) (emphasis original); Gonzalez v. Sherman, 873 F.3d 763, 773-74 (9th Cir. 2017) (petition challenging intervening judgment resulting from successful motion to correct presentence credits not successive even though it challenges unaltered portions of original judgment); Wentzell v. Neven, 674 F.3d 1124, 1126-27 (9th Cir. 2012) (petition challenging intervening judgment resulting from partially successful state habeas petition not successive even if it challenges only undisturbed portions of original judgment) (citing Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010) ), cert. denied, 569 U.S. 989, 133 S.Ct. 2336, 185 L.Ed.2d 1095 (2013) ).
On February 28, 2020, respondent filed a Supplemental Brief on Successiveness distinguishing the foregoing authorities because each case involved an amended judgment – not the original judgment which remains in effect in the State Case. Respondent reasons:
... Petitioner is not attacking an amended judgment. Instead, he is challenging the same unaltered judgment that he already challenged in a prior federal habeas proceeding. Therefore, the Petition is unquestionably successive. Moreover, allowing a petitioner to challenge his original judgment in federal court a second time, merely because he filed a petition for resentencing in state court that was denied, would create a loophole in the bar against second or successive petitions that any habeas petitioner could pass through. That is, any state inmate who has already filed a federal habeas petition challenging his original state court judgment could simply file a petition for resentencing in state court – no matter how frivolous that petition might be – and then file another federal habeas petition challenging the original judgment after the petition for resentencing is denied. Respondent is aware of no law that permits the strict limitations on second or successive
petitions to be so easily and completely bypassed.
See Docket No. 17 at 1-2.
On March 30, 2020, petitioner filed an opposition to the Motion to Vacate with exhibits, raising a state procedural default-type argument that respondent has not met his asserted burden in establishing that the Current Petition is successive, or that the second or successive bar is an independent and adequate rule to prevent federal review. (Docket No. 18).
For the reasons stated below, the Motion to Vacate should be granted and the Current Petition, the Supplements, and this action should be dismissed without prejudice for lack of jurisdiction to the extent petitioner challenges the judgment in the State Case because petitioner did not obtain the requisite authorization from the Court of Appeals to file a successive petition, or – to the extent petitioner challenges the denial of his petition for resentencing – for failure to state a cognizable or viable federal claim. Further, the Clerk of the Court should be directed to refer the Current Petition and Supplements to the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit") pursuant to Ninth Circuit Rule 22-3(a).
Ninth Circuit Rule 22-3(a) provides in pertinent part: "Any petitioner seeking authorization to file a second or successive 2254 petition ... in the district court must file an application in the Court of Appeals demonstrating entitlement to such leave under 28 U.S.C. § 2254 .... If a second or successive petition ... is mistakenly submitted to the district court, the district court shall refer it to the [C]ourt of [A]ppeals."
II. PERTINENT BACKGROUND/PROCEDURAL HISTORY
The facts and procedural history set forth in this section are derived from the California Supreme Court docket available online at https://appellatecases.courtinfo.ca.gov/, and the petitions and court records in the Central District of California (CDCA) and the Ninth Circuit in the following cases of which this Court takes judicial notice: (1) Walter Lee Cole v. D.K. Sisto, et al., CDCA Case No. CV 08-5390 GAF(MLG) ("First Federal Petition" or "First Federal Action"); (2) Walter Cole v. D.K. Sisto, et. al, Ninth Circuit Case No. 08-56689 ("First Ninth Circuit Action"); (3) Walter Lee Cole v. Holland, CDCA Case No. 16-4286 SJO(JC) ("Second Federal Petition" or "Second Federal Action"); (4) Walter Cole v. Kim Holland, Ninth Circuit Case No. 16-71997 ("Second Ninth Circuit Action"); and (5) Walter Lee Cole v. Holland, Ninth Circuit Case No. 16-56103 ("Third Ninth Circuit Action"). See Fed. R. Evid. 201 ; Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012) (court may take judicial notice of undisputed matters of public record including documents on file in federal or state courts).
A. The State Case
On November 23, 1982, petitioner was convicted of second degree murder with a two-year firearm enhancement. On October 6, 1983, the court sentenced petitioner to a total term of seventeen years to life in state prison. Thereafter, the California Court of Appeal affirmed the judgment and the California Supreme Court denied review. Petitioner appears to have sought, and been denied post-conviction relief in state court on multiple occasions.
B. First Federal Petition/First Federal Action and First Ninth Circuit Action
On February 4, 2008, petitioner formally filed the First Federal Petition. On August 20, 2008, the assigned Magistrate Judge issued a Report and Recommendation ("First R&R") recommending that the First Federal Petition be dismissed with prejudice because it was untimely. On September 23, 2008, the assigned District Judge accepted and adopted the First R&R and ordered that judgment be entered dismissing the First Federal Petition with prejudice. Judgment was entered accordingly on September 24, 2008.
On October 6, 2008, petitioner filed a Notice of Appeal. On September 28, 2009, the Ninth Circuit denied petitioner's request for a certificate of appealability in the First Ninth Circuit Action.
C. Second Federal Petition/Second Federal Action and Second and Third Ninth Circuit Actions
In June 2016, petitioner formally filed the Second Federal Petition. Though petitioner framed his claims in the Second Federal Petition as challenges to the California Supreme Court's most recent rejection of a state habeas petition challenging the judgment in the State Case, petitioner again effectively challenged the judgment in the State Case. Because the record did not reflect that petitioner had obtained authorization from the Ninth Circuit to file the Second Federal Petition in District Court, on June 20, 2016, the Court issued an order dismissing the Second Federal Petition and action without prejudice and referred the Second Federal Petition to the Ninth Circuit.
On June 21, 2020, this Court's referral of the Second Federal Petition to the Ninth Circuit effectively initiated the Second Ninth Circuit Action. On September 14, 2016, the Ninth Circuit denied petitioner leave to file a second or successive petition in the Second Ninth Circuit Action.
Meanwhile, on July 21, 2016, petitioner filed a Notice of Appeal, seeking a certificate of appealability to appeal this Court's June 20, 2016 dismissal order, and effectively initiating the Third Ninth Circuit Action. On December 9, 2016, the Ninth Circuit denied petitioner's request for a certificate of appealability in the Third Ninth Circuit Action.
D. Petitioner's State Petitions For Resentencing
Petitioner filed habeas petitions with the California Supreme Court in Case No. S257616 on August 23, 2019, in Case No. S258619 on October 17, 2019, and in Case No. S258648 on October 18, 2019, raising, inter alia , claims challenging his second degree murder conviction, citing California Senate Bill 1437. The California Supreme Court denied such petitions without comment on November 13, 2019. See Exhibits filed with the Current Petition and Supplements (copies of petitions/orders).
"Senate Bill 1437 was enacted to ‘amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ " People v. Martinez, 31 Cal. App. 5th 719, 723, 242 Cal.Rptr.3d 860, as modified on denial of reh'g (Feb. 13, 2019), review denied (May 1, 2019) (citation omitted). The legislation amended California Penal Code sections 188 and 189 and added section 1170.95, "which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions." People v. Martinez, 31 Cal. App. 5th at 722, 242 Cal.Rptr.3d 860. As of January 1, 2019, any person convicted of felony murder under a natural and probable consequences doctrine prior to the change in law can petition the sentencing court to vacate the conviction and resentence them on any remaining counts, if they could not have been convicted of murder because of the changes to California Penal Code sections 188 and 189. See Cal. Penal Code § 1170.95 (permitting state courts to vacate convictions of aiders and abettors of murder who were not the actual killer and whose convictions were obtained under a theory of felony murder or as the natural and probable consequence of committing some other felony).
On or around August 24, 2019, petitioner petitioned the sentencing court in the State Case for resentencing under Section 1170.95. See Exhibits filed with Supplement (containing copy of petition). On November 18, 2019, the sentencing court denied the petition, finding that petitioner was not eligible for resentencing since petitioner was the actual killer in the State Case – the record established that petitioner shot the victim in the back of the head with a shotgun. See Lodged Doc. 8 (order denying same).
On January 23, 2020, petitioner filed a habeas petition with the California Supreme Court in Case No. S260346, presumably challenging the state court's denial of the Section 1170.95 petition. On February 19, 2020, the California Supreme Court denied such petition without comment.
Such petition is not in the record.
E. Current Petition and Supplements
As detailed below, in December 2019, petitioner filed the Current Petition and Supplements challenging the underlying judgment in the State Case. The record does not reflect that petitioner has obtained authorization from the Ninth Circuit to file the Current Petition and Supplements in District Court.
A search of the PACER system reflects that petitioner has not sought permission to file a second or successive petition from the Ninth Circuit since the Second Ninth Circuit Action in which the Ninth Circuit denied him such leave, and has not filed anything with the Ninth Circuit since 2018.
III. DISCUSSION
This Court is without jurisdiction to consider the Current Petition and Supplements to the extent they challenge the judgment in the State Case, and finds that petitioner's claims are not cognizable or viable to the extent they challenge the denial of his resentencing petition.
Absent authorization from the Ninth Circuit, petitioner may not bring another habeas petition challenging the underlying judgment in the State Case in district court. See 28 U.S.C. § 2244 ; see also Burton v. Stewart, 549 U.S. 147, 152-53, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007). As the Court previously advised petitioner in the Second Federal Action, a district court lacks jurisdiction to consider the merits of a second or successive habeas petition in the absence of proper authorization from a court of appeals. See Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam) (citation omitted), cert. denied, 538 U.S. 984, 123 S.Ct. 1793, 155 L.Ed.2d 677 (2003).
Contrary to petitioner's assertion (see Docket No. 18), it is petitioner, not respondent, who bears the burden to establish this Court's jurisdiction to consider his second or successive petition. See 28 U.S.C. § 2244(b)(2) ; see also Brown v. Muniz, 889 F.3d 661, 667-68 (9th Cir. 2018) (discussing burden for filing a second or successive petition where, as here, petitioner challenges the same state court judgment as challenged by a prior petition), cert. denied, ––– U.S. ––––, 139 S. Ct. 841, 202 L.Ed.2d 610 (2019).
Petitioner's claims purport to challenge the validity of his underlying conviction and/or sentence from 1982 and 1983 in the State Case, respectively, raising issues with: (1) the constitutionality of California's second degree felony murder rule in light of Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015) (interpreting the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B) ) and Senate Bill 1437 (Current Petition, Grounds One, Three and Four); (2) the jury instructions given at his trial in light of California Senate Bill 1487 (Current Petition, Ground Two; Supplement, Grounds One, Three; Second Supplement, Grounds One through Five); and (3) the fact that allegedly he was tried in "prison garb" (Second Supplement, Ground Six). Construing the Current Petition and Supplements liberally, petitioner may also be challenging the state court's denial of his Section 1170.95 petition for resentencing. See Current Petition, Ground Four; Supplement, Ground Two; Second Supplement (citing petitioner's second degree murder conviction and Senate Bill 1437).
Some of the exhibits filed with the Second Supplement (i.e. , jury instructions, a California Court of Appeal decision, a motion to appear in civilian clothing, and trial transcript excerpts) are from a different case for assault. See Second Supplements Exhibits B and D (referencing People v. Cole, Solano County Superior Court Case No. FCR240917, which was tried in 2007, and People v. Cole, Cal. Ct. App. Case No. A120544, from 2008). If petitioner is intending to challenge his 2007 conviction and sentence, he has not done so in these proceedings. In any event, the CDCA would not be an appropriate venue to assert any such challenge as the foregoing conviction occurred in the Eastern District of California where petitioner is also currently housed.
The Court is without jurisdiction to consider petitioner's challenges to his underlying conviction and/or sentence. The state courts denied resentencing relief and did not disturb petitioner's original judgment. See Lodged Doc. 8; Exhibits to Current Petition and Supplements. Thus, the judgment petitioner is attacking is his original judgment. Absent clear Ninth Circuit authority providing that an unsuccessful petition for resentencing somehow opens the door for a petitioner to bypass the second or successive bar to have a court hear claims beyond those based solely on the denial of the petition for resentencing, the Court cannot reach petitioner's successive claims.
In Clayton v. Biter, a panel of the Ninth Circuit held that denial of a petition for resentencing under California Penal Code § 1170.126 "results in the entry of a new appealable order or judgment" and "therefore constitutes a new judgment." Id. 868 F.3d at 844. The Clayton Court was presented with a federal habeas petition challenging the denial of the resentencing petition (and not the underlying conviction), which was not second or successive. Id. Subsequently, in Brown v. Muniz, 889 F.3d at 667, another panel observed that "a petition is not second or successive if it is based on an intervening state court judgment – e.g. , a new sentencing determination – notwithstanding that the same claim challenging a conviction (or even the new sentence) could have been brought in the first petition." Brown v. Muniz, 889 F.3d at 667 (citations omitted; emphasis original); see also Gonzalez v. Sherman, 873 F.3d 763 (petition challenging intervening judgment resulting from successful motion to correct presentence credits not successive even though it challenged unaltered portions of original judgment); Wentzell v. Neven, 674 F.3d at 1124 (petition challenging intervening judgment resulting from partially successful state habeas petition not successive even if it challenged only undisturbed portions of original judgment).
In this case, if the state courts had granted petitioner any relief on his resentencing claims, petitioner could argue under the foregoing authorities that the Court should hear his claims going to his original conviction as well as his resentencing claims due to a new, intervening judgment. However, this is not what occurred. Petitioner was denied relief altogether by the state courts. See Morales v. Sherman, 949 F.3d at 476 (declining to address whether an unsuccessful effort to obtain relief under Proposition 36 may result in issuance of new, intervening judgment for second or successive bar; petitioner had filed a successful Proposition 47 petition resulting in a new judgment rendering the petition at issue not successive). The Court finds persuasive respondent's reasoning that the denial of resentencing relief should not open the door for a petitioner to bring a new challenge to an old conviction that already has been challenged, versus a challenge to the resentencing decision, absent authorization to file a second or successive petition. To find otherwise would deprive the second or successive bar of any practical effect.
To the extent petitioner may be challenging the state courts' denial of his petition for resentencing under California Penal Code section 1170.95, his claims pertain solely to the state court's interpretation and application of state sentencing law and therefore are not cognizable. See 28 U.S.C. § 2254(a) (federal habeas relief lies only where a person is "in custody in violation of the Constitution or laws or treaties of the United States"); Wilson v. Corcoran, 562 U.S. 1, 5, 131 S.Ct. 13, 178 L.Ed.2d 276 (2010) ("federal habeas corpus relief does not lie for errors of state law") (quoting Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) ); Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (a state court's interpretation of state law binds federal court sitting in habeas corpus); Souch v. Schaivo, 289 F.3d 616, 622-23 (9th Cir.) (state prisoner's challenge to trial court's exercise of discretion under state sentencing law fails to state federal habeas claim), cert. denied, 537 U.S. 859, 123 S.Ct. 231, 154 L.Ed.2d 98 (2002) ; see also, e.g., Huynh v. Lizarraga, 2020 WL 1324826, at *42 (S.D. Cal. Mar. 20, 2020) (applying foregoing authority to claim challenging validity of conviction under Section 1170.95, where petitioner was ineligible for resentencing because he was the actual killer), appeal filed, No. 20-55343 (9th Cir. Apr. 1, 2020); Walker v. Pfeiffer, 2019 WL 7194557 (C.D. Cal. Dec. 26, 2019) (same; observing that the petitioner would not qualify for resentencing under Section 1170.95 given the jury findings in his case), appeal filed, No. 20-55132 (9th Cir. Feb. 6, 2020); Esparza v. Lizarraga, 2019 WL 6749449, at *3 (C.D. Cal. Aug. 7, 2019) (same), report and recommendation adopted, 2019 WL 5589040 (C.D. Cal. Oct. 28, 2019), appeal filed, No. 19-56299 (9th Cir. Nov. 12, 2019); Baker v. Muniz, 2019 WL 3500561, at *3 (E.D. Cal. Aug. 1, 2019) (same); Davis v. Munoz, 2019 WL 2424540 (C.D. Cal. May 2, 2019) (same), report and recommendation adopted, 2019 WL 2424107 (C.D. Cal. June 7, 2019).
A state court's misapplication of state sentencing law may violate due process if a petitioner can demonstrate both state sentencing error and that the error was "so arbitrary or capricious as to constitute an independent due process" violation. Richmond v. Lewis, 506 U.S. 40, 50, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992). However, a habeas petitioner "may not ... transform a state-law issue into a federal one merely by asserting a violation of due process." Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996), cert. denied, 522 U.S. 881, 118 S.Ct. 208, 139 L.Ed.2d 144 (1997) ; see also Carter v. Koenig, 2019 WL 6331375, at *4-5 (C.D. Cal. Oct. 30, 2019) ("fact that Petitioner characterizes [ Section 1170.95 claims] claims as a violation of his federal constitutional rights is not sufficient, without more, to state a federal claim"), report and recommendation adopted, 2019 WL 6330638 (C.D. Cal. Nov. 22, 2019) ; accord Contreras v. Rackley, 2018 WL 1258234, at *2 (S.D. Cal. Mar. 9, 2018) (claim that petitioner was denied "due process" and "equal protection" by allegedly erroneous application of state sentencing law to find petitioner ineligible for resentencing under Proposition 36, did not raise a cognizable federal habeas corpus claim); Hillard v. Kernan, 2017 WL 201612, at *11 (S.D. Cal. Jan. 17, 2017) (same where petitioner alleged a "due process" violation for failure of state courts to give full consideration to petitioner's evidence, where the record was clear that the petitioner was ineligible for resentencing under Proposition 36); Cooper v. Supreme Court of California, 2014 WL 198708, at *2 (C.D. Cal. Jan. 16, 2014) (same for "due process" challenge to denial of Proposition 36 application); but see Clayton v. Biter, 868 F.3d at 846 n.2 (observing that due process challenge based on the denial of Proposition 36 resentencing without a hearing may be cognizable where the petitioner raises a question that is not yet clearly decided).
The Clayton footnote provides:
In briefly passing on the nature of Clayton's due process claim, the district court stated that it was not cognizable because it failed to state a federal claim. As noted in the text, Clayton's petition alleged a violation of his due process rights when the state court denied his resentencing petition without a hearing, thereby depriving him of a liberty interest without due process. Federal due process challenges to state adjudications of state substantive rights are generally cognizable. This may be particularly true where, as here, a pro se petitioner raises a question not yet clearly decided.
Clayton, 868 F.3d at 846 n.2. (citing, inter alia, Swarthout v. Cooke, 562 U.S. 216, 221, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011) and Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 9-12, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) ). To create a liberty interest, the state law must include "mandatory language" giving rise to a presumption that relief will be granted when or unless certain designated findings are made. Bd. of Pardons v. Allen, 482 U.S. 369, 377-78, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987). Here, petitioner does not allege that he was denied due process by the sentencing court's denial of his Section 1170.95 petition without a hearing. Section 1170.95 requires a petitioner to make a prima facie showing that he is entitled to resentencing before a hearing may be held. See Cal. Penal Code § 1170.95(c) -(d). Petitioner did not make such a showing in his case because he reportedly was not convicted of felony murder or murder under a natural and probable consequences theory – petitioner was the actual killer in his case. (Lodged Doc. 8).
Here, the sentencing court held as a matter of state law that petitioner categorically was not eligible to be resentenced pursuant to Section 1170.95 because the record showed that he was the actual killer in his case – he was not convicted on a felony murder or aiding an abetting theory. See Lodged Doc. 8. This Court is bound by the state courts' interpretation and application of Section 1170.95 in petitioner's case. See Bradshaw v. Richey, 546 U.S. at 76, 126 S.Ct. 602 ("a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus"). Because petitioner apparently was not entitled to resentencing under state law, the failure to grant him such relief was not "arbitrary or capricious" and did not deprive him of due process.
It is appropriate for a sentencing court to deny a Section 1170.95 petition based on the lack of a prima facie showing where review of the court's file indicates the petitioner is ineligible for resentencing. See People v. Law, 48 Cal. App. 5th 811, 820-21, 262 Cal.Rptr.3d 268 (2020) (trial court not limited to allegations in petition and may consider entire record of conviction and subsequent appellate opinion in determining whether petitioner has stated prima facie case for relief under Section 1170.95 ).
In sum, the Court lacks jurisdiction to consider petitioner's second and successive claims going to his original conviction in the State Case, and any resentencing claims are without merit because petitioner has not shown that his challenge to the state courts' denial of his resentencing petitions presents a viable federal question.
IV. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the District Judge issue an Order: (1) approving and accepting this Report and Recommendation; (2) granting respondent's Motion to Vacate; (3) dismissing the Current Petition, the Supplements and this action without prejudice; (4) directing the Clerk of the Court to refer the Current Petition and Supplements to the Ninth Circuit; and (5) directing that Judgment be entered accordingly.