# Frank Servillo v. People of The State of California

> District Court, C.D. California · May 17, 2021

URL: https://www.frixlaw.com/law-library/cases/10040890

## Case

- **Court:** District Court, C.D. California
- **Decided:** May 17, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10040890

## How later opinions describe it (automated extraction)

- applying Rule 41 to a petitioner’s request for voluntary dismissal of his habeas petition

## Opinion text

1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 WESTERN DIVISION
11
12 FRANK SERVILLO, ) No. CV 21-3905-JGB (PLA)
)
13 Petitioner, )
) ORDER TO SHOW CAUSE RE: DISMISSAL
14 v. ) OF HABEAS PETITION
)
15 PEOPLE OF THE STATE OF )
CALIFORNIA, )
16 )
Respondent. )
17 )
18
I
19
BACKGROUND
20
Frank Servillo (“petitioner”) initiated this action on May 4, 2021, by filing a Petition for Writ
21
of Habeas Corpus (“Petition”). The Petition challenges his conviction and sentence in Los Angeles
22
County Superior Court case number BA421848-01, in which a jury convicted petitioner of robbery
23
and a firearm allegation (Cal. Penal Code §§ 212.5, 12022.53(b)) in November 2014. Petitioner
24
25
26
27
28
1 was sentenced in January 2015 to a term of fifteen years in state prison.1 (ECF No. 1 at 22). The
2 Petition sets forth two grounds for relief: (1) petitioner’s sentence enhancement is “outdated”
3 because a new sentencing policy, Special Directive 20-14, supersedes the “Legal Policies Manual”
4 used by the trial court when imposing the enhancement; and (2) petitioner is entitled to a reduced
5 sentence enhancement pursuant to California Assembly Bill 1509 (“AB 1509”). (ECF No. 1 at 3-4).
6
7 II
8 DISCUSSION
9 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to conduct a
10 preliminary review of the Petition. Pursuant to Rule 4, the Court must summarily dismiss a petition
11 “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled
12 to relief in the district court.” Rule 4 of the Rules Governing Section 2254 Cases; see also
13 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Having conducted a preliminary review of
14 the Petition, the Court issues this Order to Show Cause directed to petitioner because the face
15 of the Petition suggests that his grounds for relief are not cognizable on federal habeas review,
16 and that he failed to exhaust his state court remedies.
17 A. Failure to State Cognizable Claims
18 A petitioner may seek federal habeas relief from a state court conviction or sentence if he
19 is contending that he is in custody in violation of the Constitution or laws or treaties of the United
20 States. See 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219, 131 S. Ct. 859, 178 L.
21 Ed. 2d 732 (2011) (per curiam); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed.
22 2d 385 (1991). Matters relating solely to the interpretation and/or application of state law generally
23 are not cognizable on federal habeas review. See, e.g., Rhoades v. Henry, 611 F.3d 1133, 1142
24 (9th Cir. 2010) (“violations of state law are not cognizable on federal habeas review”); Christian
25
26 1 As petitioner is in custody pursuant to a state court judgment, the Court construes the
Petition under 28 U.S.C. § 2254.
27
2 For ease of reference, the Court refers to the ECF-generated page numbers when citing
28
1 v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) (“Absent a showing of fundamental unfairness, a state
2 court’s misapplication of its own sentencing laws does not justify federal habeas relief.”).
3 In his first ground for relief, petitioner cites “Special Directive 20-14,” which sets forth the
4 Los Angeles County District Attorney’s resentencing policy that took effect on December 8, 2020.
5 See https://da.lacounty.gov/sites/default/files/pdf/SPECIAL-DIRECTIVE-20-14.pdf (last visited May
6 17, 2021). This claim relates only to the application of a county policy; it does not even implicate
7 a state law. Accordingly, Ground One does not present a federal question, and is not cognizable
8 on federal habeas review.
9 Ground Two likewise fails to state a federal question. Petitioner bases his sentencing
10 challenge on AB 1509, a California Assembly Bill concerning sentence enhancements that has
11 not yet been approved by the California State Legislature. (See California Legislative Information
12 website at https://leginfo.legislature.ca.gov/faces/billStatusClient.xhtml?bill_id=202120220AB1509
13 (last visited on May 17, 2021)). In any event, even if AB 1509 is ultimately enacted, this claim
14 would still not be cognizable as it appears to pertain only to state sentencing law.
15 B. Failure to Exhaust
16 As a matter of comity, a federal court will not entertain a habeas corpus petition unless the
17 petitioner has exhausted the available state judicial remedies on every ground presented in the
18 petition. Rose v. Lundy, 455 U.S. 509, 518-22, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The
19 habeas statute explicitly provides that a habeas petition brought by a person in state custody “shall
20 not be granted unless it appears that -- (A) the applicant has exhausted the remedies available
21 in the courts of the State; or (B)(I) there is an absence of available State corrective process; or (ii)
22 circumstances exist that render such process ineffective to protect the rights of the applicant.” 28
23 U.S.C. § 2254(b)(1). Moreover, if the exhaustion requirement is to be waived, it must be waived
24 expressly by the state, through counsel. See 28 U.S.C. § 2254(b)(3).
25 Exhaustion requires that a petitioner’s contentions be fairly presented to the state supreme
26 court. O’Sullivan v. Boerckel, 526 U.S. 838, 845-47, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); James
27 v. Giles, 221 F.3d 1074, 1077 n.3 (9th Cir. 2000). A claim has not been fairly presented unless
28 the prisoner has described in the state court proceedings both the operative facts and the federal
1 legal theory on which his claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct.
2 887, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275-78, 92 S.Ct. 509, 30 L.Ed.2d
3 438 (1971); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996).
4 Petitioner has the burden of demonstrating that exhaustion was completed. See, e.g.,
5 Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982). Here, there is no indication that petitioner has
6 presented his claims to the California Supreme Court. Accordingly, it appears that dismissal of
7 the Petition for failure to exhaust is also appropriate.
8
9 III
10 ORDER
11 In light of the foregoing, petitioner is ordered to show cause why the Petition should not be
12 dismissed. No later than June 7, 2021, petitioner must submit to the Court a response making
13 clear his arguments, if any, as to why the Petition should not be dismissed as not cognizable and
14 for failure to exhaust.
15 Alternatively, if petitioner agrees that the instant Petition should be dismissed without
16 prejudice for failure to state a cognizable claim, he may instead file a notice of voluntary dismissal
17 pursuant to Federal Rule of Civil Procedure 41(a)(1) (“Rule 41”). Rule 41 allows for the voluntary
18 dismissal of an action by a petitioner3 without prejudice and without a court order before the
19 opposing party serves either an answer or a motion for summary judgment. Fed. R. Civ. P.
20
21
22 3 Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts
provides that “[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent
23 with any statutory provisions or these rules, may be applied to a proceeding under these rules.”
See also Hilton v. Braunskill, 481 U.S. 770, 776 & n.5, 107 S. Ct. 2113, 95 L. Ed. 2d 724 (1987)
24 (Federal Rules of Civil Procedure may be applied to habeas petitions so long as they are not
inconsistent with the Rules Governing Section 2254 Cases). The Rules Governing Section 2254
25
Cases do not contain a specific provision addressing voluntary dismissals. See Clark v. Tansy,
26 13 F.3d 1407, 1411 (10th Cir. 1993) (applying Rule 41 to a petitioner’s request for voluntary
dismissal of his habeas petition); Williams v. Clarke, 82 F.3d 270, 273 (8th Cir. 1996) (“a Rule
27 41(a)(1) voluntary dismissal is both appropriate and consistent with the rules governing habeas
cases”); Woods v. Knowles, 2003 WL 21767470, at *1 (N.D. Cal. July 23, 2003). Thus, Rule 41,
28
1|| 41(a)(1); Hamilton v. Shearson-Lehman Am. Express, Inc., 813 F.2d 1532, 1534 (9th Cir. 1987).
2| Respondent has not filed either an answer or a motion for summary judgment.
3
4 kee
5 Along with this Order to Show Cause, the Court Clerk is directed to send petitioner a blank
6| Central District form titled “Notice of Dismissal Pursuant to Federal Rules of Civil Procedure 41(a)
7| or (c).”
8 Petitioner is advised that if he fails to respond as ordered by June 7, 2021, by either
9| filing a response setting forth the reasons why his claims should not be dismissed as not
10 | cognizable and for failure to exhaust, or by filing a notice of dismissal, the Petition will be
summarily dismissed for the reasons set forth above, as well as for failure to prosecute and
follow court orders.
13 Sale KX. Meson
DATED: May 17, 2021
PAUL L. ABRAMS
15 UNITED STATES MAGISTRATE JUDGE
16
17
18
19
20
21
22
23
24
25
26
27
28

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10040890. Public record. Not legal advice.