Opinion
Case No. SA CV 15-0830 RGK (JCG)
07-31-2015
KEVIN T. PERRY, Petitioner, v. CARL WOFFORD, Respondent.
ORDER SUMMARILY DISMISSING ACTION WITHOUT PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY
On May 28, 2015, petitioner Kevin T. Perry ("Petitioner"), a California prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition"). [Dkt. No. 1.] Notably, it is his fourth federal petition challenging a 2002 state court conviction and sentence for first degree burglary. Petitioner has consented to the Magistrate Judge's jurisdiction and is the only party who has appeared in this action. [See Dkt. No. 3.] Accordingly, and for the reasons discussed below, the Court finds that the Petition is an unauthorized "second or successive" petition, and summarily dismisses this action without prejudice for lack of jurisdiction. See 28 U.S.C. 2244(b); Wilhelm v. Rotman, 680 F.3d 1113, 1119-21 (9th Cir. 2012) (holding that magistrate judge had jurisdiction to dismiss action where prisoner consented and was only party to action); Holloway v. Price, 2013 WL 6145150 (C.D. Cal. Nov. 21, 2013) (magistrate judge's summary dismissal of successive habeas petition).
By way of background, Petitioner first challenged his conviction and sentence in 2011. [See C.D. Cal. Case No. SA CV 11-0692 RGK (RNB), Dkt. No. 1.] That petition was dismissed as untimely. [See id., Dkt. Nos. 26, 28.]
In 2012, Petitioner filed a second petition challenging the same conviction and sentence. [See C.D. Cal. Case No. SA CV 12-1312 RGK (RNB), Dkt. No. 1.] That petition was dismissed for lack of jurisdiction, on the grounds that Petitioner had not obtained authorization to file a "second or successive" petition. [See id., Dkt. No. 7 at 3-4.]
In 2013, Petitioner filed a third petition challenging the same conviction and sentence. [See C.D. Cal. Case No. SA CV 13-0593 RGK (RNB), Dkt. No. 1.] That petition was dismissed on the grounds that it was a "second or successive" petition containing previously presented claims. [See id., Dkt. No. 5 at 4.]
On May 28, 2015, Petitioner filed the instant Petition, in which he again challenges his 2002 conviction and sentence. (Pet. at 2.) In particular, Petitioner challenges the five-year sentencing enhancement that he received pursuant to California Penal Code § 667(a)(1). [Dkt. No. 2 ("Memorandum") at 4-5.]
However, Petitioner has again failed to obtain the Ninth Circuit's authorization to file a "second or successive" petition. See 28 U.S.C. § 2244(b).
In an effort to distinguish the instant Petition from his earlier efforts, Petitioner argues that his new claims "could [not] have been raised earlier." (Mem. at 3.) In particular, Petitioner relies on California's Proposition 36, which was enacted in 2012, and which modified California's Three Strikes Law. See generally Benson v. Chappell, 2014 WL 6389443, at *2 (C.D. Cal. Nov. 13, 2014). According to Petitioner, Proposition 36 revised § 667(a)(1) - narrowing the class of repeat offenders subject to its mandatory five-year sentencing enhancement - but did not provide any means of obtaining retroactive relief. (Mem. at 4-5.) As such, Petitioner complains, he has been unconstitutionally deprived of an opportunity to request resentencing. (Id.)
Petitioner's argument is unavailing, for three reasons.
First, even if Petitioner's claim were valid and could not have been raised earlier, it would nevertheless constitute a challenge to his original sentence. As such, the Petition is an unauthorized "second or successive" petition, which this Court lacks jurisdiction to consider. See 28 U.S.C. § 2244(b); Clayton v. Biter, 2014 WL 5420136, at *2 (C.D. Cal. Sept. 23, 2014) (dismissing petition as "second or successive" where Petitioner claimed to be "entitled to a change in his original sentence because of a change in the law"); but see Benson, 2014 WL 6389443, at *4 (holding that petition was not "second or successive" where petitioner's challenge to state court's denial of resentencing could not have been raised in earlier petition).
Second, Petitioner relies on a mistaken premise: California Penal Code § 667(a)(1) has not changed since Petitioner was sentenced in 2002. Compare Cal. Penal Code § 667(a)(1) (Deering 2001) and Cal. Penal Code § 667(a)(1) (Deering 2015).
Third, and in any event, Petitioner's claim is not cognizable on federal habeas review, because it does not allege a violation of federal law. See 28 U.S.C. § 2254(a); Peeler v. Kabban-Miller, 2012 WL 2203054, at *5 (E.D. Cal. June 14, 2012) ("The retroactivity of a state change of law is a state question[;] . . . the federal Constitution has no voice upon the subject.") (emphasis added); Dillon v. United States, 560 U.S. 817, 828 (2010) ("We are aware of no constitutional requirement of retroactivity that entitles defendants sentenced to a term of imprisonment to the benefit of subsequent [sentencing] amendments.").
For the foregoing reasons, IT IS ORDERED THAT this action be SUMMARILY DISMISSED WITHOUT PREJUDICE for lack of jurisdiction, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
Additionally, for the reasons stated above, the Court finds that Petitioner has not shown that reasonable jurists would find it debatable whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). The Court thus DECLINES to issue a certificate of appealability.
LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: July 31, 2015
/s/_________
HON. JAY C. GANDHI
UNITED STATES MAGISTRATE JUDGE