Opinion
Civil No. 05cv0323 WQH (RBB).
January 30, 2006
REPORT AND RECOMMENDATION RE: DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS [DOC. NO. 1]
Petitioner Laurince O'Sheigh Simpson, an individual proceeding pro se, filed his Petition for Writ of Habeas Corpus [doc. no. 1] in the United States District Court for the Central District of California on January 27, 2005. (Pet. 1.) The Petition was transferred to this Court on February 14, 2005 [doc. no. 1]. (Mem. Order Transferring Pet. 1). Simpson presents one ground for habeas relief. (Pet. 6.) He alleges that the San Diego Superior Court violated his Fifth and Fourteenth Amendment rights regarding double jeopardy and "due liberty" when it denied his habeas petition seeking credit for time ordered served concurrently with the reinstated sentence in the criminal case underlying the pending Petition. (Id. at 6A.) On July 11, 2005, Respondent filed an Answer [doc. no. 18] to Simpson's Petition for Writ of Habeas Corpus, a Memorandum of Points and Authorities in Support of Answer [doc. no. 19], and a Notice of Lodgment [doc. no. 20].
After reviewing the Petition, Respondent's Answer and Memorandum, and the Lodgments, this Court finds that Petitioner is not entitled to the relief requested and recommends that his Petition for Writ of Habeas Corpus be DENIED for the reasons outlined below.
I. PROCEDURAL BACKGROUND
On November 1, 1999, Simpson presented the cashier of a Sport Chalet in San Diego, California, with merchandise he said he was returning for cash, but for which he had actually never paid; he had removed the merchandise from the sales floor only moments before. (Lodgment No. 2, Rep.'s Tr. of Prelim. Examination, 5-6, 13.) An information was filed on November 4, 1999, charging Simpson with petty theft with a prior conviction and giving false information to a peace officer. (Lodgment No. 1, Clerk's Tr. vol. 1, 1-4.
On February 2, 2000, Petitioner pled guilty to petty theft with a prior conviction. (Id. at 9; Lodgment No. 2, Rep.'s Tr. vol. 1 of 3, 4, 8, Feb. 2, 2000.) The trial court imposed a seven-year suspended sentence. (Lodgment No. 2, Rep.'s Tr. vol. 1 of 3, 23-24, Feb. 2, 2000.) Petitioner was to serve 365 days in state prison (with a credit for 231 days already served), followed by substance abuse treatment in a rehabilitation facility and three years of formal probation. (Id. at 24-25; Lodgment No. 1, Clerk's Tr. vol. 1, 42-43.) Simpson stated that he understood that if he violated his probation conditions, he would be required to serve the entire seven-year sentence in state prison. (Lodgment No. 2, Rep.'s Tr. vol. 1 of 3, 28, Feb. 2, 2000.)
On April 20, 2000, Petitioner was transferred from the San Diego Sheriff's custody to the California Department of Corrections ("CDC") for a parole violation connected to a prior, unrelated offense. (Lodgment No. 1, Clerk's Tr. vol. 1, 45.) Simpson was released from CDC's custody on May 11, 2000, but he failed to report to probation. (Id. at 48.1.)
The record is unclear about what the prior offense was or what Simpson had done to violate his parole in that matter. (See Lodgment No. 1, Clerk's Tr. vol. 1, 48; Lodgment No. 6,People v. Simpson, No. D039144, slip op. at 3 (Cal.Ct.App. Jan. 9, 2003).)
On October 6, 2000, Petitioner was arrested for attempting to buy narcotics in Orange County. (Id. at 49.) On October 4, 2001, Petitioner admitted violating his probation conditions by committing a separate crime. (Lodgment No. 2, Rep.'s Tr., vol. 2 of 3, 3, Oct. 4, 2001.) The court subsequently revoked Simpson's probation and ordered him sentenced to seven years in state prison (minus credit for 327 days of time served in custody). (Lodgment No. 2, Rep.'s Tr., vol. 3 of 3, 10, Nov. 13, 2001; Lodgment No. 1, Clerk's Tr. vol. 1, 117.) The seven-year sentence was to run concurrently with Petitioner's sentence from Orange County on his conviction for attempt to purchase illegal drugs. (Lodgment No. 2, Rep.'s Tr. vol. 3 of 3, 10-11, Nov. 13, 2001.)
On July 10, 2002, Simpson filed an appeal with the California Court of Appeal on the ground that the trial court erred in computing his time credits. (Lodgment No. 3, Appellant's Opening Brief at 6, People v. Simpson, No. D039144 (Cal.Ct.App. Jan. 9, 2003).) The court of appeal modified the sentence, awarding Petitioner an additional seven days credit because of errors in calculation of pretrial custody. (Lodgment No. 6, Simpson, No. D039144, slip op. at 3-4.) However, the appellate court held the trial court did not err in failing to credit time served for the Orange County drug offense to Simpson's San Diego case because the record did not show that the sentences for the Orange County conviction and the separate parole revocation were attributable to the same conduct. (Id. at 3.)
On January 24, 2003, Petitioner filed a Petition for Review in the California Supreme Court alleging that he was denied due process under the Fifth and Fourteenth Amendments when the trial court miscalculated his time credits. (Lodgment No. 7, Petition for Review at 1, People v. Simpson, No. S113438 (Cal. filed Jan. 24, 2003).) The supreme court denied the petition for review without opinion, stating that the denial was "without prejudice to filing a petition for a writ of habeas corpus." (Lodgment No. 8, People v. Simpson, No. S11348, order at 1 (Cal. Mar. 26, 2003).)
Simpson filed a writ of habeas corpus with the San Diego Superior Court on August 20, 2003, claiming that: (1) The trial court violated his Fifth and Fourteenth Amendment rights against double jeopardy when it failed to award him credits due under California Penal Code sections 2900.5(a)-(b), 2931, and 4019; and (2) his trial attorney rendered ineffective assistance of counsel in violation of Petitioner's Sixth Amendment rights because his attorney failed to pursue credits owed during sentencing. (Lodgment No. 9, Petition for Writ of Habeas Corpus at 3-3A, 6,Simpson v. San Diego County Sup. Ct., No. HC17492 (Cal.Super.Ct. filed Aug. 20, 2003).)
The superior court denied habeas relief, explaining that: (1) The conduct from the Orange County case and the San Diego case were separate, and therefore Simpson was not entitled to credit for the time served on the Orange County case, and (2) Petitioner was not prejudiced by his attorney's failure to pursue the credits. (Lodgment No. 10, In re Simpson, No. HC17492, order at 7-8 (Cal.Super.Ct. Sept. 22, 2003).)
On October 6, 2003, Petitioner filed a petition for reconsideration of writ of habeas corpus with the superior court. (Lodgment No. 11, Petition for Reconsideration at 1, Simpson v. California, No. HC17492 (Cal.Super.Ct. filed Oct. 6, 2003).) The next day, Petitioner filed a petition for writ of habeas corpus with the state court of appeal, claiming: (1) The trial court erred in not awarding credits for his time served in Orange County, and (2) he was denied effective assistance of trial counsel in connection with the parole revocation hearing in his San Diego case. (Lodgment No. 13, Petition for Writ of Habeas Corpus at 15, 22, In re Simpson, No. D043036 (Cal.Ct.App. filed Oct. 7, 2003).)
The superior court denied the motion for reconsideration, stating it did not have jurisdiction to reconsider because of a potential conflict with the forthcoming California Court of Appeal decision. (Lodgment No. 12, In re Simpson, No. HC17492, order at 2 (Cal.Super.Ct. Oct. 31, 2003).) On December 5, 2003, the court of appeal denied Simpson's petition for writ of habeas corpus. (Lodgment No. 16, In re Simpson, No. D043036, order at 1-2 (Cal.Ct.App. Dec. 5, 2003).)
On December 19, 2003, Petitioner filed a petition for writ of habeas corpus with the California Supreme Court, claiming: (1) The trial court erred in failing to give him credit for the time served on the Orange County case when the Orange County crime was the basis for parole revocation in this case, and (2) Petitioner was denied effective assistance of trial counsel because she failed to bring Simpson to court in San Diego in a timely manner to ensure that he served the two sentences concurrently or received the proper credits. (Lodgment No. 17, Petition for Writ of Habeas Corpus at 15, 23, In re Simpson, No. S121351 (Cal. filed Dec. 19, 2003).) The California Supreme Court denied the petition without opinion or citation. (Lodgment No. 18, In re Simpson, slip op. at 1 (Cal. Nov. 10, 2004).)
On January 27, 2005, Petitioner filed the pending Petition for Writ of Habeas Corpus in the United States District Court for the Central District of California. (Pet. 6) He claims that when the trial court denied his habeas petition seeking applied sentencing credits Simpson believed were attributable to the same conduct, his Fifth and Fourteenth Amendment rights against double jeopardy were violated, and he was deprived of his constitutional "due liberty." (Id.) On February 7, 2005, the Petition was transferred to this Court [doc. no. 1].
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C.A. § 2244 (West 1994 Supp. 2005), applies to all federal habeas petitions filed after April 24, 1996. Woodford v. Garceau, 538 U.S. 202, 204 (2003) (citing Lindh v. Murphy, 521 U.S. 320, 326 (1997)). AEDPA sets forth the scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.28 U.S.C.A. § 2254(a) (West 1994); see also Reed v. Farley, 512 U.S. 339, 347 (1994); Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991). Because Simpson's Petition was filed on January 27, 2005, AEDPA applies to this case. See Woodford, 538 U.S. at 204.
In 1996, Congress "worked substantial changes to the law of habeas corpus." Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997). Amended § 2254(d) now reads:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C.A. § 2254(d) (West Supp. 2005).
To present a cognizable federal habeas corpus claim, a state prisoner must allege that his conviction was obtained "in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C.A. § 2254(a). Petitioner must allege that the state court violated his federal constitutional rights. See Reed, 512 U.S. at 347; Hernandez, 930 F.2d at 719; Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir. 1990).
A federal district court does "not sit as a `super' state supreme court" with general supervisory authority over the proper application of state law. Smith v. McCotter, 786 F.2d 697, 700 (5th Cir. 1986); see also Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (holding that federal habeas courts must respect a state court's application of state law); Jackson, 921 F.2d at 885 (concluding that federal courts have no authority to review a state's application of its law). Federal courts may grant habeas relief only to correct errors of federal constitutional magnitude. Oxborrow v. Eikenberry, 877 F.2d 1395, 1400 (9th Cir. 1989) (stating that federal courts are not concerned with errors of state law unless they rise to level of a constitutional violation).
The Supreme Court, in Lockyer v. Andrade, 538 U.S. 63, (2003), stated that "AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1) — whether a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law." Id. at 71 (citation omitted). In other words, a federal court is not required to review the state court decision de novo. Id. Rather, a federal court can proceed directly to the reasonableness analysis under § 2254(d)(1). Id.
The "novelty" in § 2254(d)(1) is "the reference to `Federal law, as determined by the Supreme Court of the United States.'"Lindh v. Murphy, 96 F.3d 856, 869 (7th Cir. 1996) (en banc),rev'd on other grounds, 521 U.S. 320 (1997) (emphasis added). Section 2254(d)(1) "explicitly identifies only the Supreme Court as the font of `clearly established' rules." Id. "[A] state court decision may not be overturned on habeas corpus review, for example, because of a conflict with Ninth Circuit-based law."Moore, 108 F.3d at 264. "[A] writ may issue only when the state court decision is `contrary to, or involved an unreasonable application of,' an authoritative decision of the Supreme Court."Id.; see also Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996); Childress v. Johnson, 103 F.3d 1221, 1225 (5th Cir. 1997); Devin v. DeTella, 101 F.3d 1206, 1208 (7th Cir. 1996).
Furthermore, with respect to the factual findings of the trial court, AEDPA provides:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.28 U.S.C.A. § 2254(e)(1) (West Supp. 2005).
III. DISCUSSION
Petitioner alleges the trial court violated his Fifth and Fourteenth Amendment rights to be free from double jeopardy and deprived him of "Constitutional due liberty" when it denied his habeas petition seeking sentencing credits which Simpson believes were attributable to the same conduct as the conduct which resulted in his seven-year sentence. (Pet. 6.) Respondent argues that calculation of sentencing credits is not a cognizable federal habeas claim. (Answer at 2.)
Simpson's due process or "due liberty" claim appears to be that he was subjected to double jeopardy, which is discussed below. "Generally, a federal appellate court may not review a state sentence that is within the statutory limits. We may vacate a sentence, however, if it was imposed in violation of due process." Walker v. Endell, 850 F.2d 470, 476 (9th Cir. 1987) (citing Williams v. Duckworth, 738 F.2d 828, 831 (7th Cir. 1984), cert denied, 469 U.S. 1229 (1985); Brothers v. Dowdle, 817 F.2d 1388, 1390 (9th Cir. 1987)). A violation of due process in connection with sentencing would occur if the sentence was based on materially false information, or on "a conviction infected with Constitutional error." Id. at 477 (citing United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986); United States v. Tucker, 404 U.S. 443, 447-48 (1972)). Because Petitioner's sentence is within California statutory limits and not challenged based on the judge using materially false information or an erroneous underlying conviction, no due process violation occurred. Thus, the Court addresses only Simpson's double jeopardy claim in full.
Generally, sentencing is a matter of state law and, therefore, does not raise a federal constitutional question. See Dennis v. Poppel, 222 F.3d 1245, 1258 (10th Cir. 2000). However, Simpson argues that he was sentenced twice for the same conduct, which is a violation of the Fifth Amendment's protection against double jeopardy. (Pet. 6); see U.S. Const. amend. V. "[W]hether the application of state law violated a defendant's double jeopardy rights is a question of federal law." Falcone v. Stewart, 120 F.3d 1082, 1085 (9th Cir. 1997) (citation omitted),vacated on other grounds, 524 U.S. 947 (1998).
The Double Jeopardy clause of the Fifth Amendment provides that no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. "This protection applies to both successive punishments and to successive prosecutions for the same criminal offense." United States v. Dixon, 509 U.S. 688, 696 (1993) (citation omitted).
However, Supreme Court case law holds "there is no double jeopardy protection against revocation of probation and the imposition of imprisonment." United States v. DiFrancesco, 449 U.S. 117, 137 (1980) (citing Thomas v. United States, 327 F.2d 795 (10th Cir.), cert denied, 377 U.S. 1000 (1964). In discussing whether separate sentencing for probation violations and unrelated crimes puts a defendant in double jeopardy, the Supreme Court has held:
Where the acts of violation are criminal in their own right, they may be the basis for separate prosecution, which would raise an issue of double jeopardy if the revocation of supervised release were also punishment for the same offense. Treating postrevocation sanctions as part of the penalty for the initial offense, however (as most courts have done), avoids these difficulties. . . . We therefore attribute postrevocation penalties to the original conviction.Johnson v. United States, 529 U.S. 694, 700-01 (2000) (citingUnited States v. Wyatt, 102 F.3d 241, 244-45 (7th Cir. 1996) (rejecting double jeopardy challenge on ground that sanctions for violating the conditions of supervised release are part of the original sentence); United States v. Beals, 87 F.3d 854, 859-60 (7th Cir. 1996) (noting that punishment for noncriminal violations must be justified by reference to original crimes),overruled on other grounds, United States v. Withers, 128 F.3d 1167 (7th Cir. 1997); United States v. Meeks, 25 F.3d 1117, 1123 (2nd Cir. 1994) (noting absence of constitutional procedural protections in revocation proceedings); Gagnon v. Scarpolli, 411 U.S. 778, 782 (1973) ("stating that [p]robation revocation . . . is not a stage of a criminal prosecution").
Additionally, the Ninth Circuit has "establishe[d] unambiguously that double jeopardy does not preclude criminal prosecution for conduct which also serves as the basis for aparole or probation revocation." United States v. Soto-Olivas, 44 F.3d 788, 789 (9th Cir. 1995) (emphasis in original) (citing United States v. Redd, 759 F.2d 699 (9th Cir. 1985); Standlee v. Rhay, 557 F.2d 1303, 1304 (9th Cir. 1977);Bible v. Arizona, 449 F.2d 111 (9th Cir. 1971), cert denied, 405 U.S. 994 (1972)). The Ninth Circuit's rationale is as follows:
Revocation of parole or probation is regarded as reinstatement of the sentence for the underlying crime, not as punishment for the conduct leading to the revocation. Parole and probation are part of the original sentence. Their continuance is conditioned on compliance with stated conditions — if the defendant does not comply with those conditions, parole and probation may be revoked. Revocation does not extend the original sentence, it simply alters the conditions under which it is served. The fact that the events which lead to revocation may also constitute a second crime does not mean the revocation itself is punishment for the second crime.United States v. Brown, 59 F.3d 102, 104-05 (9th Cir. 1995) (internal citations omitted).
Moreover, in California "a parole or probation revocation proceeding does not implicate the double jeopardy ban because a probation revocation hearing is not a criminal trial on a new charge and does not authorize criminal punishment." In re Marco A., 50 Cal. App. 4th 1516, 1522, 58 Cal. Rptr. 2d 540, 544 (1996) (emphasis added) (citing Lucido v. Super. Ct., 51 Cal. 3d 335, 343 n. 5, 795 P.2d 1223, 1227, 272 Cal. Rptr. 767, 771 (1990); In re Coughlin, 16 Cal. 3d 52, 60-61, 545 P.2d 249, 254-55, 127 Cal. Rptr. 337, 342-43 (1976)). California follows the Supreme Court precedent set in Johnson v. United States and treats postrevocation sanctions as part of the initial offense, so as not to implicate issues of double jeopardy. See People v. Callejas, 85 Cal. App. 4th 667, 677-78, 102 Cal. Rptr. 2d 363, 370-71 (2000). Because California treats postrevocation sanctions as part of the punishment for the original offense, the state's sentencing scheme avoids violations of the Double Jeopardy Clause in situations similar to those faced by Petitioner. See Johnson v. United States, 529 U.S. at 700-01.
Simpson pled guilty to petty theft with a prior (Lodgment No. 1, Clerk's Tr. vol. 1, 9-11) and was sentenced to seven years in state prison (Lodgment No. 2, Rep.'s Tr. vol. 1 of 3, 23-24, Feb. 2, 2000). The judge suspended Petitioner's sentence and placed him on probation. (Id. at 24, 28.) He violated probation when he was arrested in Orange County for attempting to purchase illegal drugs. (Lodgment No. 2, Rep.'s Tr., vol. 2 of 3, 3-4, Oct. 4, 2001.) The court ordered Petitioner to begin serving the seven years, his initial sentence from the petty theft conviction. (Lodgment No. 2, Rep.'s Tr. vol. 3 of 3, 10, Nov. 13, 2001; Lodgment No. 6, Simpson, No. D039144, slip op. at 2). The eighteen-month sentence imposed in Orange County was for the unrelated drug conviction. (Lodgment No. 2, Rep.'s Tr. vol. 3 of 3, 8, Nov. 13, 2001.)
Separate sentencing for both the probation violation and the underlying, unrelated criminal offense is not a violation of the Fifth Amendment protection against double jeopardy. Johnson, 529 U.S. at 700-01; Brown, 59 F.3d at 104-05. Therefore, the San Diego Superior Court's denial of Simpson's habeas petition challenging his full seven-year sentence was consistent with federal law, not "contrary to, or . . . an unreasonable application of, clearly established Federal law." 28 U.S.C.A. § 2254(d).
Even if the record is read as Simpson suggests, he fares no better. The California Court of Appeal disposed of Petitioner's contention that the sentencing judge told him that his time in custody on the Orange County conviction would run concurrent with the sentence on his San Diego case. (Lodgment No. 6, People v. Simpson, D039144, slip op. at 3.) The appellate court opinion indicated that under section 2900.5 of the California Penal Code, unless the proceedings are attributable to the same conduct, the trial court lacked authority to set concurrent sentences. (Id.) In any event, Petitioner did not carry his burden of showing that he is entitled to relief. (Id.) In this case, Petitioner's sentencing raises an issue of state law that does not give rise to habeas relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
IV. CONCLUSION
Simpson's Petition for Writ of Habeas Corpus should be DENIED because the superior court's denial of habeas relief was consistent with federal law.This Report and Recommendation will be submitted to the United States District Court judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Any party may file written objections with the Court and serve a copy on all parties on or before February 15, 2006. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed on or before February 28, 2006. The parties are advised that failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).