Opinion
Alphonso L Brooks, Petitioner, Pro se, McFarland, CA.
For MCCF Golden State McFarland, Respondent: Angela M Borzachillo, CAAG - Office of Attorney General, San Diego, CA.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS PROCEEDINGS
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE.
Petitioner filed a " Petition for Writ of Habeas Corpus By a Person in State Custody" on June 25, 2015. The Petition names as Respondent " MCCF Golden State McFarland, " rather than the warden having custody of Petitioner. On June 25, 2015, Petitioner also filed an " Election Regarding Consent to Proceed Before a United States Magistrate Judge, " consenting to have a Magistrate Judge conduct all further proceedings in the case. On July 20, 2015, Respondent filed an Answer and a " Consent to Proceed Before a United States Magistrate Judge, etc." Petitioner did not file a Reply within the allotted time.
BACKGROUND
An Information charged Petitioner and another person with two counts of robbery in violation of California Penal Code section 211 (Respondent's Lodgment 2). On August 15, 2014, pursuant to a plea bargain and a " Harvey waiver, " Petitioner pled guilty to one count of second degree robbery (Respondent's Lodgments 13, 14). Petitioner received a three-year prison sentence (Respondent's Lodgment 14). Petitioner apparently did not appeal.
See People v. Harvey, 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396 (1979) (prohibiting the negative consideration at sentencing of dismissed charges). A " Harvey waiver" permits the sentencing court to consider the facts of a dismissed count for purposes of sentencing and restitution. See People v. Ozkan, 124 Cal.App.4th 1072, 1073-74, 21 Cal.Rptr.3d 854 (2004).
Although Petitioner alleges he pled guilty to a violation of California Penal Code section 212.5 (see Petition, p. 2), that provision only defines the degrees of robbery. The record shows Petitioner pled guilty to a violation of California Penal Code section 211 (see Respondent's Lodgment 13).
Although Petitioner alleges that he filed an appeal and a petition for review to the California Supreme Court, the case number he provides is that of his California Supreme Court habeas corpus petition (see Petition, pp. 2-3). Respondent reportedly had been unable to locate any record of any direct appeal or petition for review (see " Memorandum of Points and Authorities in Support of Answer, etc., " p. 4). The Court takes judicial notice of the dockets of the California Court of Appeal and the California Supreme Court (see Porter v. Ollison, 620 F.3d 952, 954-55 n.1 (9th Cir. 2010) (taking judicial notice of court dockets)). These dockets do not show that anyone named Alphonso Brooks ever filed a criminal appeal or petition for review to the California Supreme Court.
Petitioner submitted a December 18, 2014 letter to the sentencing court requesting a reduction of his sentence to two years, but the sentencing court evidently took no action in response to this letter (Respondent's Lodgments 15, 17). On December 23, 2014, Petitioner filed a " Petition for Resentencing - Application for Reduction to Misdemeanor (Penal Code § 1170.18(a) or Penal Code § 1170.18(f)." The record does not reflect the disposition, if any, of this petition.
On March 20, 2015, Petitioner filed a habeas corpus petition in the California Supreme Court, which that court denied summarily on June 10, 2015 (Respondent's Lodgments 19-20).
PETITIONER'S CONTENTIONS
The Petition is not a model of clarity. Petitioner alleges: " Sentence at 85% on a 2nd Degree First Felon." In the " Supporting Facts" section of the form Petition, Petitioner alleges:
2nd Degree Robbery, First Offense Needs to be at 80% NO Weapon Non Violent No GBI Begin Time in 8-28-13 Till [sic] present
(Petition, p. 5). In an attachment to the Petition, Petitioner contends he was " unjustly oversentenced" and asserts that he " never should have been at 85%" (Petition, attachment).
DISCUSSION
I. The Court Lacks Personal Jurisdiction Over Respondent.
" A petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition." Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994); see 28 U.S.C. foll. § 2254 Rule 2(a). Where, as here, the petitioner is confined in an institutional facility, the warden or supervisor of the institutional facility is the state officer having custody of the petitioner. See Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); accord Rumsfeld v. Padilla, 542 U.S. 426, 435, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004); Stanley v. California Supreme Court, 21 F.3d at 360. " Failure to name the petitioner's custodian as a respondent deprives federal courts of personal jurisdiction." Stanley v. California Supreme Court, 21 F.3d at 360; accord Smith v. Idaho, 392 F.3d 350, 352-55 (9th Cir. 2004). Thus, the Petition's naming of " MCCF Golden State McFarland" as the sole Respondent deprives this Court of personal jurisdiction.
For the reasons discussed in section II, granting leave to amend the Petition to name a proper respondent would be an exercise in futility. Cf. Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355-56 (9th Cir.), cert. denied, 519 U.S. 1011, 117 S.Ct. 516, 136 L.Ed.2d 405 (1996) (court may deny motion to amend complaint if amendment would be futile); see also Garcia v. California, *8, 2014 WL 4162541, at *4 n.3 (C.D. Cal. Aug. 20, 2014) (amendment to name proper respondent futile where habeas petition lacked substantive merit).
II. Petitioner Is Not Entitled to Habeas Relief.
Respondent argues that Petitioner's claim of alleged sentencing error is unexhausted because Petitioner assertedly did not present the federal basis for the claim to the California Supreme Court. See 28 U.S.C. § 2254(b) - (c). For the reasons discussed below, Petitioner's claim is not " colorable, " so the Court denies the claim on the merits, regardless of whether the claim is unexhausted. See Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005), cert. denied, 546 U.S. 1172, 126 S.Ct. 1336, 164 L.Ed.2d 52 (2006) (federal habeas court may deny an unexhausted claim on the merits where that claim is not " colorable"); see also 28 U.S.C. § 2254(b)(2).
Matters relating to sentencing and serving of a sentence generally are governed by state law and do not raise a federal constitutional question. See Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989), cert. denied, 499 U.S. 963, 111 S.Ct. 1591, 113 L.Ed.2d 654 (1991); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021, 106 S.Ct. 3336, 92 L.Ed.2d 741 (1986); Sturm v. California Adult Authority, 395 F.2d 446, 448 (9th Cir. 1967), cert. denied, 395 U.S. 947, 89 S.Ct. 2021, 23 L.Ed.2d 466 (1969). Under narrow circumstances, however, the misapplication of state sentencing law may violate due process. See Richmond v. Lewis, 506 U.S. 40, 50, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992). " [T]he federal, constitutional question is whether [the error] is so arbitrary or capricious as to constitute an independent due process" violation. Id. (internal quotation and citation omitted); see also 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.").
No such fundamental unfairness occurred here. Because Petitioner's crime of robbery qualified as a violent felony under California law, see California Penal Code section 667.5(c)(9), Petitioner was not, and is not, entitled to accrue more than 15% credit. See Cal. Penal Code § 2933.1 (" Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933"); Bankuthy v. Yates, 376 Fed.App'x 694, 695 (9th Cir. 2010) (rejecting due process challenge to state's failure to award petitioner day-for-day credits; " Cal. Penal Code § 2933.1 clearly limits the sentence credits Bankruthy may earn . . . to fifteen percent."); Aung v. Beard, 2014 WL 7185336, at *2 (C.D. Cal. Dec. 15, 2014) (" As a matter of state law, the 15% rate in § 2933.1 expressly overrides the credit accrual rule in § 2933 or any other statute.") (citation omitted); see generally Contero v. Tilton, 248 Fed.App'x 778, 779-80 (9th Cir. 2007) (section 2933.1 served rational state interest in treating violent offenders more harshly).
Indeed, the abstract of judgment bears a check in the box indicating Petitioner's robbery offense was a violent felony (see Respondent's Lodgment 14).
Notwithstanding its title (" Worktime credits on sentence, etc."), section 2933, as amended in 2010, does not limit credits to those based on participation in work programs, but rather allows prisoners to receive credits based on time served. See Edwards v. Swarthout, 597 Fed.App'x 914, 915 (9th Cir. 2014).
Under California Penal Code section 667(c)(5), which is part of California's Three Strikes Law, a defendant convicted of a felony who has one or more prior serious and/or violent felony convictions may not earn credits in excess of one-fifth of the total term of imprisonment. It is unclear whether Petitioner asserts a purported right to earn 20% credit under section 667(c)(5). Nothing in the record indicates that the state charged Petitioner with any prior conviction or that Petitioner admitted any prior conviction in his criminal case. In any event, Petitioner's credit entitlement is governed by section 2933.1 because Petitioner's robbery conviction constituted a violent felony conviction within the meaning of that statute. Cf. People v. Caceres, 52 Cal.App.4th 106, 60 Cal.Rptr.2d 415 (1997) (" the 15 percent worktime credit limit for precommitment custody in section 2933.1, a statute which specifically pertains to defendants convicted of a violent felony listed in section 667.5, prevails over the 20 percent credit limit of both the Three Strikes law and initiative, which are statutes pertaining to felons in general").
Unlike Petitioner's petition for resentencing, the present Petition does not claim that Petitioner is eligible for resentencing under Proposition 47, as codified in California Penal Code section 1170.18. Although any such claim would appear to be unexhausted, any such claim also would be denied as not " colorable." See Cassett v. Stewart, 406 F.3d at 623-24. Petitioner's crime, robbery, is not among those crimes listed in section 1170.18 as qualifying for resentencing. See Cal. Penal Code § 1170.18(a); Hanson v. Barnes, 2015 WL 1789005, at *1 (C.D. Cal. Apr. 17, 2015) (defendant convicted of a crime not listed in section 1170.18(a) cannot qualify for resentencing.
Accordingly, because Petitioner has not shown that he is being held in custody in violation of the Constitution or laws or treaties of the United States, Petitioner is not entitled to habeas relief. See 28 U.S.C. § 2254(a); Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
The same result would obtain were the Court to apply the standard of review set forth in 28 U.S.C. section 2254(d). For the reasons set forth herein, the California Supreme Court's rejection of Petitioner's claims was not contrary to, or an unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d).
ORDER
For the foregoing reasons, the Petition is denied and dismissed with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
JUDGMENT
Pursuant to the " Order Denying Petition for Writ of Habeas Corpus, "
IT IS ADJUDGED that the Petition is denied and dismissed with prejudice.