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”
How later courts described this case
- 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”
- Eighth Amendment contains no proportionality guarantee
- dismissal for failure to comply with the statute of limitations is a dismissal on the merits that renders subsequent petitions successive
- AEDPA requires petitioner to receive authorization from the court of appeals before filing second habeas petition
Written by the judges who cited it.
The opinion
_O-
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
KEVIN EDDIS MOORE, No. CV 20-04516-JGB (DFM)
Petitioner, ORDER SUMMARILY DISMISSING
PETITION
v.
GIGI MATTESON,
Respondent.
I. INTRODUCTION
On May 15, 2020, Kevin Eddis Moore (“Petitioner”), a state prisoner
proceeding pro se, constructively filed a Petition for Writ of Habeas Corpus
under 28 U.S.C. § 2254. See Dkt. 1 (“Petition”). On July 2, 2020, the Court
ordered Respondent to file a response to the Petition. See Dkt. 4. On July 9,
2020, Respondent moved to vacate the order, arguing that Petitioner’s failure
to obtain authorization to file a second or successive petition deprived the
Court of jurisdiction. See Dkt. 9. On August 14, Petitioner constructively filed
an opposition. See Dkt. 14.
Rule 4 of the Rules Governing Section 2254 Cases in the U.S. District
Courts provides that a habeas corpus petition “must” be summarily dismissed
“li]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court.” Here, Petitioner is not
entitled to the relief he seeks because his claims are either not cognizable on
federal habeas review or successive. The Petition is thus dismissed. Because
reasonable jurists could not disagree with this disposition, the Court will deny
a certificate of appealability.
Il. BACKGROUND
Petitioner was convicted in 1995 of second-degree robbery. See id. at 2.'
He also had three prior serious or violent convictions under California’s Three
Strikes Law and was sentenced to state prison for a term of twenty-five years to
life. See id.
Petitioner has filed three prior habeas corpus petitions in this Court. In
2004, Petitioner filed a § 2254 petition seeking relief from his conviction. See
Moore v. Lamargue, Case No. CV 04-09318-AHS (MAN) (C.D. Cal.), Dkt. 1.
The action was dismissed with prejudice because the petition was untimely.
See id., Dkt. 41. In 2007, Petitioner filed his second § 2254 petition. See Moore
v. Hedgpeth, Case No. CV 07-03841-AHS (MAN) (C.D. Cal.), Dkt. 1. This
second action was dismissed as an unauthorized second or successive petition.
See id., Dkt. 3. In 2012, Petitioner a filed his third § 2254 petition. See Moore
v. Yates, Case No. CV 12-09318-AHS (MAN) (C.D. Cal.), Dkt. 1. This action
was also dismissed as an unauthorized second or successive petition. See id.,
Dkt. 3.
In the instant Petition, Petitioner argues that: (1) he is entitled to
immediate parole release pursuant to the Eighth Amendment; (2) he is eligible
for early parole consideration under Proposition 57; (3) his 1985 robbery
conviction should not have counted as a strike under California Penal Code
§ 667.5; and (4) he should be allowed to withdraw his plea. See Petition at 7-
26.
' All citations are to the CM/ECF pagination.
Il. DISCUSSION
Following a review of Petitioner’s claims, the Court concludes that the
Petition should be dismissed for failure to state a cognizable claim and as
successive.
A. Failure to State a Cognizable Habeas Claim
In Ground One, Petitioner argues that he is entitled to immediate parole
release under the Eighth Amendment of the United States Constitution. See
Petition at 7-10. But Petitioner’s claim that his indeterminate life sentence 1s
disproportionate to his culpability is foreclosed by Greenholtz v. Inmates of
Neb. Penal & Corr. Complex, 422 U.S. 1, 12 (1979), which held a convicted
person has no constitutional right to be conditionally released before the
expiration of a valid sentence. See also Harmelin v. Michigan, 501 U.S. 957
(1991) (Eighth Amendment contains no proportionality guarantee).
In Ground Two, Petitioner argues that he is eligible for early parole
consideration under Proposition 57, which amended the California
Constitution to allow nonviolent offenders to be “eligible for parole
consideration after completing the full term for his or her primary offense.”
Cal. Const. art. I, § 33(a)(1). 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 Dep’t of Corrs. and Rehab., No. 17-01510, 2018 WL 489155, at *4
(E.D. Cal. Jan. 19, 2018) (collecting cases). Thus, while 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, No. 17-06126, 2018 WL 707546, at *3 (N.D. Cal. Feb. 5, 2018).
Accordingly, if Petitioner were to prevail on his Proposition 57 claim, it
would not necessarily result in a speedier release from prison. Put another way,
even if Petitioner received an earlier parole consideration, it would not compel
a grant of parole as Petitioner could still be found unsuitable based on reasons
that have not been litigated here. See Nettles v. Grounds, 830 F.3d 922, 927
(9th Cir. 2016) (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). Because success on this 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., and is thus not cognizable on federal habeas
review. See Mattox v. Koenig, No. 19-10851, 2020 WL 3841255, at *3 (C.D.
Cal. Mar. 25, 2020) (“[T]he district courts in all of the federal districts in
California agree that prisoners’ claims of eligibility for accelerated parole
consideration under Proposition 57 fail to raise a cognizable federal issue.”’)
(collecting cases).
Additionally, whether Petitioner is entitled to relief under Proposition 57
is an issue of state law. ““We accept a state court’s interpretation of state law,
and alleged errors in the application of state law are not cognizable in federal
habeas corpus.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996)
(citations omitted).
B. Successive Petition
The Antiterrorism and Effective Death Penalty Act of 1996 (““AEDPA”)
“greatly restricts the power of federal courts to award relief to state prisoners
who file second or successive habeas corpus petitions.” Tyler v. Cain, 533 U.S.
656, 661 (2001). A federal court will not consider a second or successive
federal habeas petition unless it falls one of two narrow exceptions: claims
predicated on newly discovered facts that call into question the accuracy of a
guilty verdict, and certain claims relying on new rules of constitutional law.
See id. at 661-62 (citing 28 U.S.C. § 2244(b)(1-2)). Furthermore, “|b]efore a
second or successive application permitted by this section is filed in the district
court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.” 28 U.S.C.
§ 2244(b)(3)(A).
As set forth above, Petitioner has filed at least three prior federal habeas
petitions; one was dismissed as untimely, the other two as successive. See
McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (dismissal for failure to
comply with the statute of limitations is a dismissal on the merits that renders
subsequent petitions successive). In Grounds Three and Four, Petitioner
attacks his 1995 conviction and sentence by arguing that his 1985 robbery
conviction should not have counted as a strike and thus he should be able to
withdraw his plea. See Petition at 19-26.
In light of his prior dismissals, the Court finds that, with respect to
Grounds Three and Four, the Petition is successive. Petitioner argues that
these claims are based on a new rule of constitutional law, articulated in
Sessions v. Dimaya, 138 S. Ct. 1204 (2018). See Dkt. 14 at 5-6. Even if so,
Petitioner is still required to request and obtain authorization from the Ninth
Circuit before filing a successive petition. See 28 U.S.C. § 2244(b)(3)(A);
Burton v. Stewart, 549 U.S. 147, 152-53, (2007) (AEDPA requires petitioner to
receive authorization from the court of appeals before filing second habeas
petition). Because there is no indication that petitioner has obtained such
authorization from the Ninth Circuit, the Court is without jurisdiction to
entertain Grounds Three and Four. See Cooper v. Calderon, 274 F.3d 1270,
1274 (9th Cir. 2001) (per curiam) (“When the AEDPA is in play, the district
court may not, in the absence of proper authorization from the court of
appeals, consider a second or successive habeas application.”).
IV. CONCLUSION
The Petition is DISMISSED. A certificate of appealability will not issue.
The Court finds that jurists of reason would agree that Grounds One and Two
are not cognizable on federal habeas review, and that Grounds Three and four
are successive. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner
may seek a certificate of appealability from the Court of Appeals.
Date: October 28, 2020 □ Z ( ee
JESY SIG. BERNAL
Unitkaé States District Judge
Presented by:
DOUGLAS F a—\
United States Magistrate Judge
hk