Opinion
No. CV 19-10057-PSG (PLA)
12-06-2019
ANDRE LAMAR REVIS, Petitioner, v. STUART SHERMAN, Warden, Respondent.
ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF APPEALABILITY
I.
BACKGROUND
Andre Lamar Revis ("petitioner") was convicted in 2005 in the Los Angeles County Superior Court of second degree robbery and assault with a deadly weapon. He was found to have prior convictions, and was sentenced to a term of seventy years to life in state prison. (ECF No. 1-1 at 2).
For ease of reference, the Court uses the ECF-generated page numbers.
Petitioner initiated this action on April 15, 2019, by filing a Petition under 28 U.S.C. §2254 for Writ of Habeas Corpus by a Person in State Custody ("Petition") in the Ninth Circuit Court of Appeals. The Petition contains the following claims: (1) the trial court abused its discretion by denying petitioner's motion to dismiss prior convictions; (2) petitioner received ineffective assistance of counsel during sentencing; (3) petitioner should be resentenced under Propositions 36, 47, and 57; and (4) the California Department of Corrections and Rehabilitation ("CDCR") has "taken measure[s] to adversely evade implementation" of Propositions 36, 47 and 57. (ECF No. 1-1 at 1, 8, 19, 25, 33).
The Ninth Circuit treated the Petition as an application to file a second or successive habeas petition in the district court. On November 21, 2019, the Ninth Circuit determined that petitioner's claims challenging the denial of relief under California Propositions 47 and 57 were not subject to 28 U.S.C. § 2244(b), and therefore it was not necessary for petitioner to obtain permission from the Ninth Circuit to file these claims in the district court. With respect to the remaining claims in the Petition, the application was denied. The Ninth Circuit then transferred the Petition to this Court with the advisement that the Court should assess whether petitioner's claims under Propositions 47 and 57 are cognizable in a federal habeas action. (ECF No. 1). / / / / /
Petitioner has filed numerous prior federal habeas petitions challenging his 2005 conviction and sentence. (See, e.g., Case No. CV 19-3667-PSG (PLA), ECF No. 3 at 2-3).
Section 2244(b) sets forth the rules and procedures governing the filing of a second or successive federal habeas petition.
Specifically, the Ninth Circuit explained that it declined to consider petitioner's ineffective assistance and Proposition 36 claims because they were raised in a prior habeas petition filed in Case No. CV 14-3665-PSG (RNB), that was dismissed as untimely on July 18, 2014. Later, in 2017, the Ninth Circuit denied petitioner's application to file a successive petition that raised these same claims. (ECF No. 1 at 1; see Ninth Circuit Case No. 16-73155). As to the remaining claims in the Petition, petitioner's application to file a successive petition was denied for failure to make a prima facie showing under 28 U.S.C. § 2244(b)(2). (ECF No. 1 at 2).
II.
DISCUSSION
Pursuant to the Ninth Circuit's November 21, 2019, Order, the only claims in the Petition that are before the Court are petitioner's claims premised on Propositions 47 and 57. As instructed by the Ninth Circuit, the Court now assesses whether such claims are cognizable. (ECF No. 1 at 2).
Petitioner may seek federal habeas relief from his state court conviction or sentence only if he sets forth a cognizable claim alleging that he is in custody in violation of the Constitution or laws or treaties of the United States. See 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011) (per curiam); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Alleged violations relating solely to the interpretation and/or application of state law generally are not cognizable on federal habeas review. See, e.g., Rhoades v. Henry, 611 F.3d 1133, 1142 (9th Cir. 2010) ("violations of state law are not cognizable on federal habeas review"); Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) ("Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief.").
Proposition 47, which took effect in California in November 2014, "reduced the penalties for certain drug and theft-related offenses and reclassified those offenses as misdemeanors rather than felonies. [Citations.] It also added section 1170.18 to the Penal Code, which allows those previously convicted of felonies that were reclassified as misdemeanors under Proposition 47, to petition the court to have their felony convictions designated as misdemeanors." People v. Zamarripa, 247 Cal. App. 4th 1179, 1182, 202 Cal. Rptr. 3d 525 (Cal. App. 2 Dist. 2016). Here, petitioner challenges the state court's denial of his petition for resentencing under Proposition 47. Federal courts considering such a challenge have consistently found that claims arising under Proposition 47 involve only state law questions, and thus are not cognizable. See Mueck v. Anglea, 2019 WL 3564013, at *2 (E.D. Cal. Aug. 6, 2019) (finding, and also listing cases, that a claim based on Proposition 47 presents no cognizable federal question); McKinney v. Pfeiffer, 2017 WL 1078441, at *4 (C.D. Cal. Jan. 11, 2017) ("[T]o the extent petitioner is challenging the superior court's denial of his application to reduce one of his convictions to a misdemeanor pursuant to Proposition 47, such claims are not cognizable on federal habeas review."), Report and Recommendation accepted, 2017 WL 1073340 (C.D. Cal. Mar. 21, 2017); Adams v. Borders, 2016 WL 4523163, at *3 (C.D. Cal. July 29, 2016) (habeas claim pursuant to Proposition 47 not cognizable), Report and Recommendation adopted, 2016 WL 4520906 (C.D. Cal. Aug. 29, 2016). Accordingly, the Court determines that petitioner's habeas challenge based on Proposition 47 fails to present a cognizable federal claim.
Petitioner's petition for resentencing was denied by the Los Angeles County Superior Court on the ground that robbery (his commitment offense) was "not a Proposition 47 crime," and that none of petitioner's charges qualified for a sentence reduction. (See ECF No. 1-1 at 41). The Court notes that, even if petitioner's Proposition 47 claim was considered on the merits, the Court would be bound by the state court's interpretation of state law that a robbery offense is ineligible for reclassification from a felony to a misdemeanor under Proposition 47. See Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed. 2d 407 (2005) (per curiam).
The Court next considers the nature of petitioner's claim alleging a violation of Proposition 57, which was approved by California voters in November 2016 and amended the California Constitution to allow nonviolent offenders to be "eligible for parole consideration after completing the full term for [their] primary offense[s]." Cal. Const. art. I, § 32(a)(1). The "full term for the primary offense" refers to "the longest term of imprisonment imposed . . . for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence." Cal. Const., art. I, § 32(a)(1)(A). California cases addressing the application of Proposition 57 have "uniformly state[d] that Proposition 57 creates a mechanism for parole consideration, not a vehicle for resentencing." Daniels v. California Department of Corrections and Rehabilitation, 2018 WL 489155, at *4 (E.D. Cal. Jan. 19, 2018). Thus, at most, Proposition 57 provides for expanded eligibility of parole for certain convicted felons. It "does not require or provide any mechanism for state law prisoners to be resentenced by the courts in which they were convicted." Travers v. People of the State of California, 2018 WL 707546, at *3 (N.D. Cal. Feb. 5, 2018).
Here, petitioner asserts that the CDCR has "taken measure[s] to adversely evade implementation" of Proposition 57 and presumably seeks an earlier parole consideration hearing as relief. (ECF No. 1-1 at 33-35). As explained below, this claim is not cognizable because petitioner's Proposition 57 challenge does not fall within the core of habeas.
Petitioner attaches exhibits to the Petition consisting of copies of the CDCR's denials of his request for parole consideration under Proposition 57. The exhibits indicate the reasons why the CDCR denied petitioner's request, including that he is not categorized as a nonviolent offender -- i.e., the class of prisoners eligible for Proposition 57 relief - because his commitment offense of second degree robbery is listed in the California Penal Code as a violent offense. (See ECF No. 1-1 at 49-52); see also Cal. Penal Code § 667.5(c)(9) (defining "any robbery" as a violent felony).
As an overview, federal law provides "two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a [civil rights] complaint under. . . 42 U.S.C. § 1983." Muhammad v. Close, 540 U.S. 749, 750, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004). "Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus; requests for relief turning on circumstances of confinement may be presented in a § 1983 action." Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) (internal quotations and citations omitted), cert. denied, 137 S.Ct. 645 (2017). A habeas petition is the exclusive vehicle for claims brought by state prisoners that fall within "the core of habeas." Id.; see Preiser v. Rodriguez, 411 U.S. 475, 487-88, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (the "core of habeas corpus" is an attack on "the very duration of [a prisoner's] physical confinement itself). Conversely, "a § 1983 action is the exclusive vehicle for claims brought by state prisoners that are not within the core of habeas corpus." Nettles, 830 F.3d at 927. Where success on a petitioner's habeas claim would not necessarily lead to his immediate or earlier release from custody, the claim does not fall within "the core of habeas corpus." Id. at 934-35.
Here, if petitioner were to prevail on his Proposition 57 claim, this would not necessarily result in a speedier release from prison. In other words, even if petitioner received an earlier parole consideration hearing under Proposition 57, this would not compel a grant of parole as petitioner could still be found unsuitable based on reasons that have not been litigated here and are not evident from the existing record. See Nettles, 830 F.3d at 935 (noting that the parole board must consider "[a]ll relevant, reliable information" in determining parole suitability, and may deny parole "on the basis of any of the grounds presently available to it") (citations omitted). As such, petitioner's Proposition 57 claim does not fall within the core of habeas corpus, and is not cognizable on federal habeas review.
While a federal court has discretion to construe a habeas petition as a civil rights complaint, the Court declines to do so here for two reasons. First, prisoners filing civil rights actions, unlike prisoners filing habeas actions, are liable for the full amount of the $350.00 filing fee. See 28 U.S.C. § 1915(b)(1); Naddi v. Hill, 106 F.3d 275, 277 (9th Cir. 1997) (in forma pauperis provisions of 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act of 1995, do not apply to habeas actions). The Court notes that in Case No. CV 19-6626-PSG (PLA), petitioner filed a Civil Rights Complaint in this Court that alleged claims pursuant to Proposition 57. After determining that petitioner had "three strikes" under 28 U.S.C. § 1915(g), and that his Proposition 57 claims did not establish he was under the threat of real and proximate danger when he filed his Complaint, the Court concluded that he was not eligible to proceed in forma pauperis. Although petitioner was given thirty days to pay the full filing fee, he failed to do so, and the case was closed on November 1, 2019. (See Case No. CV 19-6626-PSG (PLA), ECF Nos. 1, 6, 7). Thus, petitioner has already been given the opportunity to proceed with his claims in a civil rights case, but did not do so by paying the filing fee. He remains a three-strike litigant.
Under the Prison Litigation Reform Act of 1995, 28 U.S.C. § 1915(g), a prisoner may not proceed in forma pauperis in a civil action, or appeal a civil judgment under 28 U.S.C. § 1915, "if the prisoner has, on three or more occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). --------
Second, to raise a cognizable civil rights claim, petitioner would need to demonstrate a violation of federal law. See Galen v. County of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007) ("Section 1983 requires [a plaintiff] to demonstrate a violation of federal law, not state law."). The Court notes that in civil rights actions in which prisoners have asserted claims premised on Proposition 57, courts have found that the prisoners failed to allege cognizable claims under Section 1983 because the crux of their complaints concerned an alleged violation of state law, and not federal law. See, e.g., Herrera v. Sherman, 2018 WL 3031547, at *3 (E.D. Cal. June 18, 2018); Daniels, 2018 WL 489155, at *3. Based on the allegations in the Petition, it is not clear if petitioner sets forth any cognizable civil rights claim based on an alleged violation of federal law.
In light of the foregoing, the Court finds that the Petition is not amenable to conversion to a § 1983 action. Accordingly, the Petition is dismissed without prejudice to petitioner filing a separate federal civil rights action, with the required filing fee, if he chooses to do so.
III.
CERTIFICATE OF APPEALABILITY
Under Rule 11(a) of the Rules Governing § 2254 Cases, a court must grant or deny a certificate of appealability ("COA") when entering a final order adverse to the petitioner. See also 28 U.S.C. § 2253(c).
A petitioner may not appeal a final order in a federal habeas corpus proceeding without first obtaining a COA. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A COA may issue "only if . . . [there is] a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A "substantial showing . . . includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (citation omitted); see also Sassounian v. Roe, 230 F.3d 1097, 1101 (9th Cir. 2000). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when . . . jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. at 484.
Based on the above determination that petitioner's claims are not cognizable, jurists of reason would not find it debatable whether the Court was correct in its ruling. Accordingly, a certificate of appealability is denied.
IV.
CONCLUSION
IT IS THEREFORE ORDERED that the Petition is dismissed without prejudice. A certificate of appealability is also denied. DATED: 12/6/19
/s/_________
HONORABLE PHILIP S. GUTIERREZ
UNITED STATES DISTRICT JUDGE