Harrington v. Covello

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 || STEVE HARRINGTON, Case No.: 19-cv-1824-LAB-RBM

12 Petitioner, REPORT AND

13 || V. RECOMMENDATION OF UNITED

14 || PATRICK COVELLO, Warden, (1) RESP OND RT MORON To

15 Respondent.| DISMISS; AND

16 (2) PETITIONER’S MOTION TO

AMEND PETITION

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18 [Docs. 1, 7, 11]

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20 L. INTRODUCTION

21 On September 20, 2019, Petitioner Steve Harrington (“Petitioner”), a state prisoner

22 || proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus (“the

23 || Petition”) under 28 U.S.C. § 2254. (Docs. 1, 4.) Petitioner was convicted of first-degree

24 ||residential burglary and sentenced in the San Diego County Superior Court. (Doc. 1 at 1

25 ||(citing San Diego Cnty. Super. Ct. Case No. SCD216977); Doc. 7-1 Ex. 1, at 10-11.) First-

26 || degree burglary is a violent felony under California law. CAL. PENAL CODE § 667.5(c)(21).

27 || As outlined below, the California Department of Corrections and Rehabilitation (“CDCR”)

28 ||excluded violent felonies from California’s Proposition 57 (“Prop 57”) parole scheme.

1 || CAL. CODE REGS. tit. 15, §§ 3490, 3490(c). Liberally construing the Petition, Petitioner

2 ||alleges CDCR erred in excluding him from Prop 57 early parole consideration. (See Doc.

3 || 1 at 6.)

4 Before the Court are the underlying Petition, Respondent Patrick Covello’s

5 ||(“Respondent”) Motion to Dismiss the Petition (“Motion to Dismiss”), and Petitioner’s

6 || Opposition to the Motion to Dismiss (“Opposition”). (Docs. 1, 7, 11.) Also before the

7 ||Court is a “Request for Extension of Time to Amend and Appointment of Counsel” that

8 || Petitioner included within his Opposition. (Doc. 11 at 7-8.) Combining an opposition brief

9 a motion within the same filing violates Civil Local Rule 5.1(m). See CivLR 5.1(m)

10 || (stating, “[a]ll documents submitted for filing must be filed and captioned separately.”)

11 |}(emphasis added). Nonetheless, pro se litigants are relieved from “strict application of

12 |}procedural rules.” See Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013).

13 ||Construing the motion filing liberally, it is construed as two motions: (1) a Motion to

14 || Amend the Petition (“Motion to Amend’); and (2) a Motion to Appoint Counsel. The

15 ||Motion to Amend will be addressed herein, but the Court will address the Motion to

16 || Appoint Counsel in a separate Order.

17 After a thorough review of the papers on file, the facts, and the applicable law, the

18 || undersigned respectfully recommends that Petitioner’s Motion to Amend be DENIED,

19 || Respondent’s Motion to Dismiss be GRANTED, and that the Petition be DISMISSED.

20 Il. BACKGROUND & PROCEDURAL HISTORY

2) Taking all material allegations from the Petition as true, the underlying offense,

22 || conviction, direct appeal, enactment of Prop 57, and resulting state habeas proceedings are

23 || outlined below. See Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007).

24 A. Underlying Offense

25 In 2008, Petitioner kicked in the door of a home, entered, rammaged through a few

26 ||rooms, and left with a backpack and numerous valuables. (Doc. 7-1 Ex. 2, at 16.) An

27 || occupant of the home was present during the burglary. U/d.) At the time of arrest, Petitioner

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1 the stolen items in his possession. (Doc. 7-1 Ex. 2, at 16.) Petitioner’s shoes matched

2 ||the mark left on the kicked door. (/d.)

3 B. Conviction

4 A jury found Petitioner guilty of first-degree burglary (CAL. PENAL CODE § 459) and

5 found he had suffered ten prior convictions (CAL. PENAL CODE § 667(a)(1)). (See

6 || Doc. 7-1 Ex. 1, at 11 & Ex. 2, at 15-16; see also Doc. | at 2 (citing San Diego Cnty. Super.

7 ||Ct. Case No. SCD216977).) The court determined the prior convictions qualified as five

8 || prior prison terms, two serious felony prior convictions and two strikes. (Doc. 7-1, Ex. 2

9 |}at 15-16.) The court dismissed the prison priors and one of the strikes and sentenced

10 || Petitioner to eighteen years in prison: eight years for residential burglary with five-year

11 |jenhancements for each serious felony prior. (/d.)

12 C. Direct Appeal

13 In 2011, the California Court of Appeal affirmed the judgment of the Superior Court.

14 ||(Doc. 1 at 2-3 (citing Cal. Ct. App. Case No. D056964); Doc. 7-1 Ex. 2, at 15-20.)

15 || Petitioner alleges he filed a petition with the California Supreme Court to review the court’s

16 || decision, but he did not indicate a result or list a case number. (Doc. | at 3.)

17 D. Prop 57

18 In 2016, California voters passed Prop 57 which added a provision to the California

19 || Constitution to read: “[a]ny person convicted of a nonviolent felony offense and sentenced

20 a state prison shall be eligible for parole consideration after completing the full term for

21 || [their] primary offense.” CAL. CONST. art. I, § 32, subd. (a)(1) (hereafter [§] 32(a)(1))

22 ||(emphasis added). Section 32(a)(1)(A) defines “the full term for the primary offense” as

23 ||“the longest term of imprisonment imposed by the court for any offense, excluding the

24 |/imposition of an enhancement, consecutive sentence, or alternative sentence.” See In re

25 || Edwards, 26 Cal. App. 5th 1181, 1184 (Cal. Ct. App. 2018). Prop 57 authorized CDCR to

26 promulgate California regulations clarifying that violent felonies are excluded from the

27 parole scheme, wherein “violent felony” is defined in section 667.5(c) of the California

28 ||Penal Code. CAL. CODE REGS. tit. 15, § 3490(c).

l Because first-degree burglary is a violent felony under California law, Petitioner is

2 eligible for Prop 57 consideration. CAL. PENAL CODE § 667.5(c)(21). Petitioner

3 ||challenged his exclusion from Prop 57 early parole consideration in state habeas

4 || proceedings as well as in this case.

5 E. State Habeas Corpus Proceedings

6 Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal.

7 ||(Doc. 1 at 3-4 (citing Cal. Ct. App. Case No. HC21267).) Petitioner argued CDCR denied

8 equal protection under the laws by “excluding second-strike offenders from early

9 || parole.” Ud.) On May 2, 2019, the California Court of Appeal denied the petition. (/d.)

10 On May 31, 2019, Petitioner filed a petition for writ of habeas corpus in the

11 || California Supreme Court. (/d. at 4 (citing Cal. Case No. S256097).) Petitioner raised the

12 ||same grounds for relief as raised in the California Court of Appeal. (/d.) The California

13 |}Supreme Court denied the petition. (/d.)

14 Til. LEGAL STANDARD

15 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “may be based

16 either a ‘lack of a cognizable legal theory’ or ‘the absence of sufficient facts alleged

17 under a cognizable legal theory.”” Johnson v. Riverside Healthcare Sys., 534 F.3d 1116,

18 || 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

19 || (9th Cir. 1990)). The court must dismiss a cause of action that fails to state a claim upon

20 || which relief can be granted. FED. R. Civ. P. 12(b)(6). All material allegations in the

21 |/complaint, “even if doubtful in fact,” are assumed true. Twombly, 550 U.S. at 555. At the

22 ||same time, however, allegations in the complaint “must be enough to raise a right to relief

23 || above the speculative level.” Jd.

24 IV. DISCUSSION

25 As an initial matter, a petitioner cannot transform a state-law issue into a federal one

26 || by a cursory mention of a constitutional violation. See Langford v. Day, 110 F.3d 1380,

27 || 1389 (9th Cir. 1996) cert. denied, 522 U.S. 881 (1997). Liberally construing the Petition,

28 || Petitioner has two contentions: (1) he is eligible for Prop 57 early parole consideration,

1 ||because his burglary is a non-violent felony offense; and (2) CDCR erred in excluding

2 Petitioner from Prop 57 early parole in violation of the “Equal Protection Clause” of the

3 ||Fourteenth Amendment. (Doc. 1 at 5-6; Doc. 11 at 1); U.S. CONST. amend. XIV, § 1.

4 Respondent contends the Petition should be dismissed for two reasons: (1) the claim does

5 ||not lie at the core of federal habeas corpus; and (2) it fails to state a cognizable federal

6 ||habeas claim. (Doc. 7-1 at 2-6.) Petitioner’s Opposition clarifies that the sole issue before

7 ||the Court is that his first-degree burglary conviction is a nonviolent felony.! (Doc. 11 at 1

8 (stating, “the only issue that Petitioner is and was not a violent crime [sic].”).) Petitioner

9 || also filed a Motion to Amend. (/d. at 7-8.)

10 A. Motion to Amend

11 Petitioner requests leave to amend the Petition. (Doc. 11 at 7.) But Petitioner failed

12 ||to offer any basis to grant the Motion to Amend. (See id. at 7-8.) Other than bare

13 ||conclusory allegations of harm, Petitioner offers no specific portion of the Petition to

14 ||amend, no new grounds for relief, and no new supporting facts. (See generally id.)

15 Having reviewed Petitioner’s Motion to Amend, the undersigned respectfully

16 ||recommends the Motion to Amend be DENIED without prejudice.

17 B. Federal Habeas Corpus Relief

18 A prisoner is entitled to federal habeas relief only if he is held in custody in violation

19 the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a) (2018); see

20 || Wilson v. Corcoran, 562 U.S. 1, 1-2 (2010) (per curiam).

21 The Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244

22 ||(2018), applies to federal habeas petitions filed after April 24, 1996. Woodford v. Garceau,

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Petitioner’s Opposition also raises several new issues for the first time: violation of his Due Process

rights, liberty interest, the Fourth Amendment, and exhaustion of his claims. (See generally Doc. 11.)

25 || Petitioner is prohibited from alleging new facts for the first time in his Opposition. See Schneider v.

Cal. Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); see also Clegg v. Cult Awareness

26 || Network, 18 F.3d 752, 754 (9th Cir. 1994). “The court’s obligation to read the pleadings liberally in pro

se cases extends to facts actually contained in the pleadings and does not grant a pro se petitioner free

27 || rein to raise new facts and theories in his opposition.” See Saifullah v. Cruzen, No. 15-cv-01739 LHK

28 (PR), 2017 WL 4865601, at *3 (N.D. Cal. Oct. 26, 2017). Thus, the undersigned will not address new

issues and or theories raised for the first time in the Opposition.

1 1538 U.S. 202, 210 (2003) (citing Lindh v. Murphy, 521 U.S. 320, 336-37 (1997)). The

2 ||Petition here was filed on September 20, 2019, thus, AEDPA applies. (Doc. 1); see

3 || Woodford, 538 U.S. at 204. Under AEDPA, a writ of habeas corpus shall not be granted

4 a claim adjudicated on the merits in state court unless the claim (1) “resulted in a

5 |idecision that was contrary to, or involved an unreasonable application of, clearly

6 established Federal law” as determined by the Supreme Court; or (2) resulted in a decision

7 \|“based on an unreasonable determination of the facts” considering evidence presented in

8 ||state court. 28 U.S.C. § 2254(d)(1)-(d)(2).

9 Federal habeas relief does not lie for state law errors. Estelle v. McGuire, 502 U.S.

10 ||62, 67-68 (1991) (stating, federal habeas relief “does not lie for errors of state law . . . it is

11 ||/not the province of a federal habeas court to reexamine state-court determinations on state-

12 ||law questions.”); Wilson, 562 U.S. at 5. Moreover, a mere error of state law is not a denial

13 || of due process. Swarthout v. Cooke, 562 U.S. 216, 222 (2011) (internal citations omitted).

14 i. Petitioner Failed to State a Cognizable Federal Habeas Claim

15 Here, Petitioner fails to state a cognizable federal habeas corpus claim. Petitioner’s

16 || argument as to his eligibility for Prop 57 early parole consideration challenges CDCR’s

17 || application of its own regulations and the laws of the state of California. This raises only

18 || an error of state law, not federal law. See Rhoades v. Henry, 611 F.3d 1133, 1142 (9th Cir.

19 ||2010). Moreover, Petitioner’s bare, conclusory allegation of a violation of his equal

20 || protection rights fails to state a claim. See Twombly, 550 U.S. at 555 (stating, “[flactual

21 || allegations must be enough to raise a right to relief above the speculative level... .”); see

22 James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). Finally, Petitioner’s requested relief is

23 |;outside “the core of habeas corpus,” as success on the merits of the claim does not

24 ||necessarily lead to a speedier release. Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir.

25 2016).

26 1. A State Law Error is Not a Cognizable Federal Claim

27 If a petition raises only a violation of state law and no federal claim is presented,

28 || then the petition is subject to dismissal for failure to state a claim. See O’Bremski v. Maass,

1 F.2d 418, 420 (9th Cir. 1990). Stated differently, a petition is not cognizable “where

2 || the petitioner fails to allege a federal claim.” Clayton v. Biter, 868 F.3d 840, 845 (9th Cir.

3 ||2017) (citing Park v. Cal., 202 F.3d 1146, 1149-50 (9th Cir. 2000)). Unless arising to the

4 || level of a due process violation, state law errors are not cognizable federal habeas claims.

5 || See Lewis v. Jeffers, 497 U.S. 764, 781 (1990); Rhoades, 611 F.3d at 1142. A petitioner

6 not transform a state-law issue into a federal one by a mere cursory mention of a

7 constitutional violation. See Langford, 110 F.3d at 1389. “Habeas corpus relief is

8 || ‘unavailable for alleged error in the interpretation or application of state law.’” Windham

9 Merkle, 163 F.3d 1092, 1107 (9th Cir. 1998) (quoting Middleton v. Cupp, 768 F.2d 1083,

10 || 1085 (9th Cir. 1985)).

11 Here, Petitioner cites People v. Gallardo to support his claim that CDCR erred in

12 excluding him from Prop 57 early parole consideration. (Doc. 1 at 6 (citing 4 Cal. 5th 120,

13 || 125 (2017)).) Gallardo, a California Supreme Court case, involved application of a state

14 || law recidivist sentencing scheme in the context of the Sixth Amendment right to a jury

15 |/trial. /d. at 134-36. The case also involved a state judge’s impermissible factual inquiry

16 a prior plea. Jd. at 137. Gallardo is a state supreme court’s interpretation of its state

17 || law and state court actions and whether they comport with the Sixth Amendment right to a

18 trial. Jd. at 134-40. Contrary to Gallardo, Petitioner is challenging a state law issue—

19 || interpretation and application of Prop 57—in federal court. And Petitioner does not allege

20 ||a Sixth Amendment violation. Thus, Gallardo has no application to the present case.

21 Petitioner cites two additional cases to support his Petition: In re Edwards, 26 Cal.

22 || App. 5th 1181 (Cal. Ct. App. 2018), and In re McGhee, 34 Cal. App. 5th 902 (Cal. Ct. App.

23 2019). (Doc. 11 at 1-2,5.) The state appellate court in Jn re Edwards analyzed and voided

24 ||a CDCR regulation excluding inmates incarcerated for a life term as inconsistent with Prop

25 ||57. 26 Cal. App. 5th at 1 188, 1192-93. Similarly, the state appellate court in In re McGhee

26 || analyzed and voided a CDCR screening and referral regulation as inconsistent with Prop

27 \|57. 34 Cal. App. 5th at 905, 914. Neither case is applicable here. Both cases are state

28 ||courts interpreting and voiding a state agency’s regulations as inconsistent with a state

1 || constitutional amendment. These cases highlight that Petitioner’s claim alleges a violation

2 || of state law, which is not a cognizable federal habeas claim. Estelle, 502 U.S. at 67-68.

3 Here, Petitioner contends CDCR erred in its promulgation of clarifying regulations

4 || by classifying his crime as violent and excluding him, a “second-strike offender,” from

5 ||Prop 57 early parole consideration. (Doc. 1 at 5-6; Doc. 11 at 1 (stating “Petitioner is and

6 || was not a violent crime [sic].”).) In other words, Petitioner alleges a state agency erred in

7 interpreting and applying his state law criminal offense in connection with an amendment

8 the California State Constitution, i.e., Prop 57. (Doc. | at 5-6 (stating “the regulations

9 ||implemented by CDCR are in direct conflict with the California Constitution.”).)

10 Without a federal claim, the Petition fails to allege a cognizable claim for federal

11 ||habeas relief. Thus, the Petition should be dismissed. Clayton, 868 F.3d at 845;

12 || O’Bremski, 915 F.2d at 420.

13 2. Petition Fails to State a Claim for Equal Protection Violations

14 Petitioner broadly argues his equal protection rights were violated when CDCR

15 allegedly denied him early parole consideration. (See Doc. 1 at 5-6.) Respondent counters

16 || that Petitioner made only a cursory mention of the federal Constitution and therefore failed

17 ||to transform his state-law claim into a federal one. (See Doc. 7-1 at 5 (citing Langford,

18 F.3d at 1389; Wilson, 562 U.S. at 5; Watts v. Bonneville, 879 F.2d 685, 687 (9th Cir.

19 || 1989)).)

20 The Equal Protection Clause “is essentially a direction that all persons similarly

21 situated should be treated alike.” See, e.g., City of Cleburne, Tex. v. Cleburne Living Ctr.,

22 11473 U.S. 432, 439 (1985).

23 To establish an equal protection violation, Petitioner must first demonstrate “that the

24 ||[challenged] statute, either on its face or in the manner of its enforcement, results in

25 ||members of a certain group being treated differently from other persons based on

26 ||membership in that group.” McLean v. Crabtree, 173 F.3d 1176, 1185 (9th Cir. 1999).

27 ||““Second, if it is demonstrated that a cognizable class is treated differently, the court must

28 analyze under the appropriate level of scrutiny whether the distinction made between the

1 ||two groups is justified.” McLean, 173 F.3d at 1185. (citation and quotations omitted).

2 || Unless a legislative classification warrants heightened review because it targets a suspect

3 ||class or burdens the exercise of a fundamental right, the Equal Protection Clause requires

4 || only that the classification be rationally related to a legitimate state interest. See Vacco v.

5 || Quill, 521 U.S. 793, 799 (1997).

6 The Equal Protection Clause applies strict scrutiny if the aggrieved party is a member

7 || ofa protected or suspect class or otherwise suffers the unequal burdening of a fundamental

8 |jright. City of Cleburne, 473 U.S. at 439-40. “Government actions that do not... involve

9 suspect classifications will be upheld if [they] are rationally related to a legitimate state

10 interest.” Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1208 (9th Cir. 2005).

11 Here, Petitioner merely broadly alleges CDCR denied him equal protection of the

12 || law when it denied him early parole consideration. (Doc. 1 at 5-6.) He fails to allege either

13 discriminatory intent or set forth any facts supporting his conclusory claim. (See id.)

14 || Nowhere in the Petition does Petitioner allege that membership in a protected class was the

15 || basis of any alleged discrimination. (/d.) In the Opposition, Petitioner fails to even address

16 ||his equal protection argument. (See generally Doc. 11.)

17 In reviewing the Petition and Opposition, Petitioner presented no evidence of

18 || Respondent’s discriminatory intent and there is no factual basis for an inference of an intent

19 ||to discriminate based upon an impermissible characteristic. Maynard v. City of San Jose,

20 ||37 F.3d 1396, 1404 (9th Cir. 1994) (stating, “[i]ntentional discrimination means that a

21 defendant acted at least in part because of a petitioner’s protected status.”). On federal

22 || habeas review, “[c]onclusory allegations [unsupported] by a statement of specific facts do

23 ||not warrant habeas relief.” See, e.g., James, 24 F.3d at 26; see also City of Cleburne, 473

24 at 440 (holding a party alleging an equal protection claim must allege he was treated

25 || differently from similarly situated individuals). As in James, Petitioner’s conclusory equal

26 || protection allegation is unsupported by a statement of specific facts. (See generally Doc.

27 Thus, Petitioner’s equal protection claim does not warrant habeas relief. See Twombly,

28 U.S. at 555; see also James, 24 F.3d at 26.

1 ii. Relief Requested is Not within the Core of Habeas Corpus

2 “{I]f a state prisoner’s claim does not lie at ‘the core of habeas corpus,’ it may not

3 ||be brought in habeas corpus but must be brought, ‘if at all,’ under [42 U.S.C.] § 1983.”

4 || Nettles, 830 F.3d at 934. To fall within “the core of habeas corpus,” success on the merits

5 ||must “necessarily lead to his immediate or earlier release from confinement... .” Jd. at

6 ||935 (citing Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011)).

7 Here, Petitioner’s claim does not fall within “the core of habeas corpus.” Prop 57

8 ||only provides parole consideration once the prisoner serves “the full term for [their]

9 || primary offense.” CAL. CONST. art. I, § 32, subd. (a)(1). Even if Petitioner succeeded on

10 merits, early parole consideration would not “necessarily lead to his immediate or

11 || [early] release” from prison. See Nettles, 830 F.3d at 934. Early parole review is not an

12 ||automatic grant of parole: the parole board would still need to consider “all relevant,

13 ||reliable information” to determine “suitability for parole.” Jd. at 935. The parole board

14 || could deny Petitioner parole “on the basis of any grounds presently available to it.” See id.

15 || Therefore, Petitioner’s claim for relief, even if successful on the merits, is outside “the core

16 || of habeas corpus.” Id. at 934.

17 In sum, Petitioner failed to state a cognizable federal habeas corpus claim. Rhoades,

18 F.3d at 1142; Windham, 163 F.3d at 1107; see James, 24 F.3d at 26. Further, the relief

19 ||requested falls outside “the core of habeas corpus” for not necessarily leading to

20 || Petitioner’s immediate or earlier release from confinement. Nettles, 830 F.3d at 935. Thus,

21 Motion to Dismiss should be GRANTED and the Petition be DISMISSED.

22 Vv. CONCLUSION

23 For the reasons given, the Court respectfully recommends Petitioner’s Motion to

24 |;Amend be DENIED without prejudice, and Respondent’s Motion to Dismiss be

25 ||GRANTED thereby DISMISSING the Petition.

26 This Report and Recommendation is submitted to the United States District Judge

27 || assigned to this case under 28 U.S.C. § 636(b)(1), Civil Local Rules 72.1(d) and HC.2 of

28 || the United States District Court for the Southern District of California. Any party may file

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1 |} written objections with the Court and serve a copy on all parties on or before July 8, 2020.

2 ||The document should be captioned “Objections to Report and Recommendation.” Any

3 ||reply to the Objections shall be served and filed on or before July 29, 2020. The parties

4 ||are advised that failure to file objections within the specific time may waive the right to

5 || appeal the District Court’s Order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).

6 IT ISSO ORDERED.

7 ||DATE: June 17, 2020

: Reese foiling □□ D_

9 ON. RUTH BERMUDEZ MONTENEGRO

UNITED STATES MAGISTRATE JUDGE

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