Opinion
Case No. CV 20-1766-RGK (JPR)
02-16-2021
CLINTON DOUGLAS KING, Petitioner, v. DANIEL E. CUEVA, Acting Warden, Respondent.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE
The Court has reviewed the Petition, records on file, and Report and Recommendation of U.S. Magistrate Judge, which recommends that the Petition be denied and this action be dismissed. On January 25, 2021, Petitioner filed objections to the R. & R.; Respondent did not reply.
In his objections, Petitioner mostly simply repeats arguments from his Petition and his opposition to the motion to dismiss. For instance, he asserts that his proposition claims are cognizable on habeas review and not untimely because the claims were "not presented in a prior application" and rely "on a new rule of constitutional law." (Objs. at 2.) But as the Magistrate Judge noted, these claims are not cognizable on federal habeas review because they concern state law only, and that law's discretionary nature forecloses any procedural due process argument. (See R. & R. at 5-9, 10.)
Petitioner also objects to the Magistrate Judge's finding that his three-strikes-sentence claim was improperly successive. (Objs. at 3.) He argues that the claim is not successive "due to the judgment challenged," citing Magwood v. Patterson, 561 U.S. 320 (2010). (Objs. at 3.) Magwood held that a habeas petitioner's challenge to his second death sentence was not improperly successive because an intervening judgment had been entered on resentencing. 561 U.S. at 341-42. As the Magistrate Judge noted (R. & R. at 14), there has been no intervening judgment here. Therefore, unlike the petitioner in Magwood, Petitioner is attempting to challenge his original judgment in an improperly successive petition. See Cole v. Sullivan, 480 F. Supp. 3d 1089, ___, 2020 WL 4905528, at *5 (C.D. Cal. Aug. 19, 2020).
Having reviewed de novo those portions of the R. & R. to which Petitioner objects, the Court agrees with and accepts the findings and recommendations of the Magistrate Judge. IT THEREFORE IS ORDERED that judgment be entered denying the Petition and dismissing this action with prejudice except for Petitioner's three-strikes claim, which is dismissed without prejudice. DATED: February 16, 2021
/s/_________
R. GARY KLAUSNER
U.S. DISTRICT JUDGE