Turner v. Foss

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 TYRONE T. TURNER, Case No.: 19cv1878 GPC (RBM)

12 Petitioner,

ORDER : (1) GRANTING

13 v. MOTION TO DISMISS; and (2)

DENYING CERTIFICATE OF

14 TAMMY FOSS, Warden,

APPEALABILITY

15 Respondent.

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17 I. INTRODUCTION

18 Petitioner Tyrone Turner is a state prisoner proceeding pro se with a Petition for

19 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition” or “Pet.”). Turner

20 challenges the Board of Parole Hearings (BPOH) improperly denied him a youth offender

21 parole hearing pursuant to California Penal Code § 3051(b). The Court has read and

22 considered the Petition, [ECF No. 1], the Motion to Dismiss [ECF No. 14], the Reply to

23 the Motion to Dismiss, the lodgments and other documents filed in this case, and the

24 legal arguments presented by both parties. For the reasons discussed below, the Court

25 GRANTS the Motion to Dismiss and DISMISSES the case with prejudice. The Court

26 also DENIES a Certificate of Appealability.

27 / / /

28 / / /

1 II. FACTUAL AND PROCEDURAL BACKGROUND

2 Turner was convicted of murder with special circumstances in 1996 and was

3 sentenced to life without the possibility of parole. (Pet., ECF No. 1 at 1-2.) After

4 unsuccessfully challenging the validity of his conviction on direct appeal and on state

5 habeas corpus review, Turner filed a state habeas corpus petition in the San Diego

6 Superior Court in 2015 alleging that his ineligibility for a youth offender parole hearing

7 under the newly enacted California Penal Code § 3051 violated his equal protection

8 rights because prisoners who have been sentenced to life without the possibility of parole,

9 were not eligible for youth offender parole hearings while other, similarly situated

10 prisoners were. (Lodgment No. 1, ECF No. 15-1.) The Superior Court denied the

11 petition in a written opinion, concluding that Turner had failed to establish an equal

12 protection violation because he had not established he was similarly situated to those who

13 were entitled to the hearing under § 3051. (Lodgment No. 2, ECF No. 15-2 at 3-4.)

14 Next, Turner filed a habeas corpus petition in the California Court of Appeal

15 raising the same issue as he did in his superior court petition. (Lodgment No. 3, ECF No.

16 15-3.) The state appellate court denied the petition on the same grounds as the superior

17 court. (Lodgment No. 4, ECF No. 15-4.) He then raised these same claims in a habeas

18 corpus petition he filed in the California Supreme Court. (Lodgment No. 5, ECF No. 15-

19 5.) The state supreme court denied the petition without citation of authority. (Lodgment

20 No. 6, ECF No. 15-6.)

21 Beginning in 2018, Turner began filing another round of state habeas corpus

22 petitions after California Penal Code § 3051 was amended to include individuals who had

23 committed their offenses before twenty-five years-of-age alleging the statute violated

24 equal protection principles by filing a petition for writ of habeas corpus in the San Diego

25 Superior Court. (Lodgment No. 7, ECF No. 15-7.) The superior court denied the petition

26 because Turner had raised the same challenge to the statute in his previous habeas corpus

27 petitions. (Lodgment No. 8, ECF No. 15-8.) Turner then filed a habeas corpus petition

28 raising his equal protection challenge in the California Court of Appeal, which denied the

1 petition on state procedural grounds, stating that Turner’s claim had already been raised

2 and rejected in his 2015 petitions and citing In re Martin, 44 Cal.3d 1, 27, fn. 3 (1987), In

3 re Reno, 55 Cal.4th 428, 496-497 (2012) and In re Clark, 5 Cal.4th 750, 769 (1993).

4 (Lodgment Nos. 9-10, ECF Nos. 15-9–15-10.) Finally, Turner raised his equal protection

5 claim in a habeas corpus petition he filed in the California Supreme Court, which denied

6 it as repetitive, citing In re Miller, 17 Cal.3d 734, 735 (1941). (Lodgment Nos. 11-12,

7 ECF Nos. 15-11–15-12.)

8 Turner filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 in this Court on

9 September 27, 2019. (ECF No. 1.) Respondent filed a motion to dismiss on February 2,

10 2020. (ECF No. 14.) Turner filed a reply to the motion on June 18, 2020. (ECF No. 26.)

11 III. ANALYSIS

12 Turner’s sole claim concerns California Penal Code § 3051, which established

13 youth offender parole hearings for some offenders who committed their crimes before a

14 certain age. Cal. Penal Code § 3051 (West 2019). California Penal Code §§ 3051(b)(1)-

15 (3) provides youth offender parole hearings for offenders who committed their crimes

16 before the age of 25 and received sentences of less than life without the possibility of

17 parole (LWOP). Cal. Penal Code § 3051(b)(1)-(3). Section (b)(4) deals with offenders

18 who were sentenced to LWOP. For those offenders, the California legislature determined

19 that only persons who had committed their crimes before the age of 18 would be eligible

20 for a youth offender parole hearing. Cal. Penal Code § 3051(b)(4). The section reads, in

21 pertinent part, as follows:

22 (b)(1) A person who was convicted of a controlling offense that was

committed when the person was 25 years of age or younger and for which

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the sentence is a determinate sentence shall be eligible for release on parole

24 at a youth offender parole hearing during the person’s 15th year of

incarceration. The youth parole eligible date for a person eligible for a youth

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offender parole hearing under this paragraph shall be the first day of the

26 person's 15th year of incarceration.

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(2) A person who was convicted of a controlling offense that was committed

28 when the person was 25 years of age or younger and for which the sentence

1 is a life term of less than 25 years to life shall be eligible for release on

parole at a youth offender parole hearing during the person’s 20th year of

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incarceration. The youth parole eligible date for a person eligible for a youth

3 offender parole hearing under this paragraph shall be the first day of the

person’s 20th year of incarceration.

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5 (3) A person who was convicted of a controlling offense that was committed

when the person was 25 years of age or younger and for which the sentence

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is a life term of 25 years to life shall be eligible for release on parole at a

7 youth offender parole hearing during the person’s 25th year of incarceration.

The youth parole eligible date for a person eligible for a youth offender

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parole hearing under this paragraph shall be the first day of the person’s 25th

9 year of incarceration.

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(4) A person who was convicted of a controlling offense that was committed

11 before the person had attained 18 years of age and for which the sentence is

life without the possibility of parole shall be eligible for release on parole at

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a youth offender parole hearing during the person’s 25th year of

13 incarceration. The youth parole eligible date for a person eligible for a youth

offender parole hearing under this paragraph shall be the first day of the

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person’s 25th year of incarceration.

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16 Cal. Penal Code § 3051.

17 The legislation was passed “to account for neuroscience research that the human

18 brain – especially those portions responsible for judgment and decisionmaking –

19 continues to develop into a person’s mid-20s.” People v. Wilkes, 46 Cal. App. 5th 1159,

20 1166 (2020) citing People v. Edwards, 34 Cal. App. 5th 183, 198 (2019).

21 Turner, who was 18 at the time he committed his crimes and was sentenced to

22 LWOP, is not eligible for a youth offender parole hearing pursuant to California Penal

23 Code § 3015. (Pet., ECF No. 1 at 7; Lodgment No. 4, ECF No. 15-4 at 1.) Turner argues

24 this exclusion violates equal protection principles because he is similarly situated to

25 individuals who are afforded hearings under the provision but is being treated differently.

26 Specifically, Turner notes that he is similarly situated to those offenders covered by

27 § 3051(b)(1)-(3) because the scientific rationale behind providing youth offender

28 hearings to those under the age of 25 applies to him and yet he is not afforded a youth

1 offender parole hearing under the statute because he was sentenced to LWOP. (Pet., ECF

2 No. 1 at 6-8.) Turner also contends he is similarly situated to offenders who are provided

3 a youth offender parole hearing pursuant to § 3051(b)(4) but is being treated differently

4 because of an arbitrary age classification. (Id.) Respondent argues Turner’s claim is not

5 cognizable on federal habeas corpus review because a favorable resolution of the claim

6 would not necessarily result in Turner’s earlier release from custody. (Mot. to Dismiss,

7 ECF No. 14 at 5.) In the alternative, Respondent contends Turner’s claims are

8 procedurally defaulted and unexhausted. (Id. at 5-9.)

9 A. Turner’s Claim is not Cognizable on Habeas Corpus

10 In Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016), the Ninth Circuit held that the

11 sole method for prisoners to challenge the fact of their conviction or the duration of their

12 confinement was through a writ of habeas corpus. Other claims, if they are to be brought

13 at all, must be brought via a civil rights complaint pursuant to 42 U.S.C. § 1983. Id. at

14 934-35. District Courts in California have addressed these cases differently depending on

15 the specific claim and relief requested in determining whether a challenge such as

16 Turner’s can be brought via habeas corpus. Several cases conclude that an equal

17 protection challenge to § 3051 is not within the core of habeas corpus because it would

18 not necessarily result in a speedier release from prison but rather only a youth offender

19 parole hearing following which a petitioner may or may or may not be granted parole.

20 See Johnson v. Lozano, 2020 WL 959253 (C.D. Cal., Jan. 17, 2020); Soun v. Arnold,

21 2017 WL 6039665, at *1 (N.D. Cal., Dec. 6, 2017); Woods v. Matzen, 2017 WL

22 10545384, at *2-3 (C.D. Cal. Aug. 11, 2017) (same); Glass v. Kernan, 2017 WL

23 2296960, at *2-3 (C.D. Cal. Apr. 19, 2017) (same), report and recommendation adopted,

24 2017 WL 2296963 (C.D. Cal. May 23, 2017). Other courts have concluded that such

25 challenges do lie within the core of habeas when coupled with a request to be resentenced

26 pursuant to California Penal Code § 1170(d)(2), which allows a defendant who was under

27 the age of 18 at the time of the commission of the offense and was sentenced to prison for

28 life without the possibility of parole to petition the sentencing court for recall and

1 resentencing after serving 15 years of the sentence. Cal. Penal Code § 1170(d)(2); see

2 Adams v. Frauenheim, 2018 WL 3046939, at *3 (N.D. Cal., June 14, 2018) (finding that

3 because petitioner alleged he was entitled to consideration under the resentencing and

4 parole provisions of California Penal Code §§ 1070(d)(2) and 3051, the challenge could

5 be brought in a habeas corpus petition); Thomas v. Arnold, 2018 WL 279975, at *3 (S.D.

6 Cal. Jan. 3, 2018) (finding that Nettles did not bar habeas action in which petitioner

7 seeking relief under California Penal Code § 3051 “request[ed] re-sentencing, and in the

8 alternative, access to a parole hearing”).

9 Turner does not ask to be resentenced under California Penal Code § 1170(d)(2),

10 and indeed he would not be eligible to be resentenced under that provision because he

11 was not under 18 years of age at the time he committed the offenses. See

12 § 1170(d)(2)(A)(i) (stating that “a defendant who was under 18 years of age at the time of

13 the commission of the offense for which the defendant was sentenced to imprisonment

14 for life without the possibility of parole . . . may . . . petition for recall and resentencing”

15 after serving 15 years.) Accordingly, the Court adopts the reasoning of Johnson, Soun,

16 Woods and Glass and concludes that Turner’s claim equal protection claim is not within

17 “the core of habeas corpus,” and must be brought, if at all, via civil rights complaint

18 pursuant to 42 U.S.C. § 1983. Nettles, 830 F.3d at 934-35.

19 B. Exhaustion and Procedural Default

20 Respondent contends Turner’s claim is unexhausted because the state supreme

21 court did not reach the merits of his claim. (Mot. to Dismiss, ECF No. 14 at 8-9.)

22 Habeas petitioners who wish to challenge either their state court conviction or the length

23 of their confinement in state prison, must first exhaust state judicial remedies. 28 U.S.C.

24 § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state

25 judicial remedies, a California state prisoner must present the California Supreme Court

26 with a fair opportunity to rule on the merits of every issue raised in his or her federal

27 habeas petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. Turner raised

28 his equal protection challenge to California Penal Code § 3051 in the two habeas corpus

1 petitions he filed in the California Supreme Court. (See Lodgment No. 5, ECF No. 15-5

2 at 3-4, Lodgment No. 11, ECF No. 15-11 at 3-4.) Therefore, the claim is exhausted.

3 Moreover, “[a] habeas petitioner who has defaulted his federal claims in state court meets

4 the technical requirements for exhaustion; there are no state remedies any longer

5 “available” to him.” Coleman v. Thompson, 501 U.S. 722, 732 (1991), citing 28 U.S.C.

6 § 2254(b) and Engle v. Isaac, 456 U.S. 107, 125-26, n. 28 (1982). In any event, “a

7 federal court may deny an unexhausted claim on the merits where ‘it is perfectly clear

8 that the applicant does not raise even a colorable federal claim.’” Cassett v. Stewart, 406

9 F.3d 614, 623 (9th Cir. 2005). Further, the Court need not determine whether the claim is

10 procedurally defaulted because it fails on the merits for the reasons discussed below. See

11 Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (finding that it is proper to

12 proceed to merits where procedural bar issue more complicated and result is the same);

13 Lambrix v. Singletary, 520 U.S. 518, 522-25 (1997) (holding that a federal court need not

14 invariably resolve a state procedural bar issue first where it presents complicated issues

15 of state law and the other issue is easily resolvable against the petitioner).

16 D. Turner’s Equal Protection Rights Have Not Been Violated

17 Even if Turner could bring his equal protection claim via a writ of habeas corpus,

18 he has not established a violation of the Equal Protection Clause of the Fourteenth

19 Amendment. The Equal Protection Clause “is essentially a direction that all persons

20 similarly situated should be treated alike.” See City of Cleburne, Tex. v. Cleburne Living

21 Ctr., 473 U.S. 432, 439 (1985); see also Vacco v. Quill, 521 U.S. 793, 799, (1997) (citing

22 Plyler v. Doe, 457 U.S. 202, 216 (1982) and Tigner v. Texas, 310 U.S. 141, 147 (1940);

23 Fraley v. Bureau of Prisons, 1 F.3d 924, 926 (9th Cir. 1993) (per curiam). The Supreme

24 Court has described the required inquiry this way:

25 The general rule is that legislation is presumed to be valid and will be

sustained if the classification drawn by the statute is rationally related to a

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legitimate state interest. Schweiker v. Wilson, 450 U.S. 221, 230, 101 S.Ct.

27 1074, 1080, 67 L.Ed.2d 186 (1981); United States Railroad Retirement

Board v. Fritz, 449 U.S. 166, 174-175, 101 S.Ct. 453, 459-460, 66 L.Ed.2d

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1 368 (1980); Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 942, 59

L.Ed.2d 171 (1979); New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct.

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2513, 2516, 49 L.Ed.2d 511 (1976). When social or economic legislation is

3 at issue, the Equal Protection Clause allows the States wide latitude, United

States Railroad Retirement Board v. Fritz, supra, 449 U.S., at 174, 101

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S.Ct., at 459; New Orleans v. Dukes, supra, 427 U.S., at 303, 96 S.Ct., at

5 2516, and the Constitution presumes that even improvident decisions will

eventually be rectified by the democratic processes. The general rule gives

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way, however, when a statute classifies by race, alienage, or national origin.

7 These factors are so seldom relevant to the achievement of any legitimate

state interest that laws grounded in such considerations are deemed to reflect

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prejudice and antipathy – a view that those in the burdened class are not as

9 worthy or deserving as others. For these reasons and because such

discrimination is unlikely to be soon rectified by legislative means, these

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laws are subjected to strict scrutiny and will be sustained only if they are

11 suitably tailored to serve a compelling state interest. McLaughlin v. Florida,

379 U.S. 184, 192, 85 S.Ct. 283, 288, 13 L.Ed.2d 222 (1964); Graham v.

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Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971). Similar

13 oversight by the courts is due when state laws impinge on personal rights

protected by the Constitution. Kramer v. Union Free School District No. 15,

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395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Shapiro v. Thompson,

15 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Skinner v. Oklahoma

ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942).

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17 City of Cleburne, 473 U.S. at 440; see also Grutter v. Bollinger, 539 U.S. 306, 326

18 (2003) (strict scrutiny defined as whether a statute is “narrowly tailored to further

19 compelling governmental interests”).

20 California Penal Code § 3051 does not classify by race, alienage, or national

21 origin, Turner does not allege that he is a member of a protected class or that his

22 membership in a protected class was the basis of any alleged discrimination, and

23 there are no facts in the Petition that lead this Court to believe that such is the case.

24 Thus, the statute must be reviewed under the “rational basis” test to determine

25 whether the distinctions it makes are “rationally related to a legitimate state

26 interest.” City of Cleburne, 473 U.S. at 440; Fields v. Palmdale Sch. Dist., 427

27 F.3d 1197, 1208 (9th Cir. 2005) (“Government actions that do not . . . involve

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

2 state interest.”)

3 “The Constitution ‘does not mandate adoption of any one penological theory . . .

4 [and] [s]electing the sentencing rationales is generally a policy choice to be made by state

5 legislatures, not federal courts. Ewing v. California, 538 U.S. 11, 25 (2003). “A

6 sentence can have a variety of justifications, such as incapacitation, deterrence,

7 retribution, or rehabilitation. [citations omitted].” Id. Here, California decided to deny

8 youthful parole hearings to individuals who committed crimes serious enough to receive

9 a sentence of life without the possibility of parole after reaching the age of 18 while

10 granting such hearings to those who were under the age of 18 when they committed their

11 crimes.1 This decision is rationally related to the state’s goal of releasing on parole those

12 individuals who are most likely to succeed on parole, not reoffend and successfully

13 rehabilitate.

14 IV. CONCLUSION

15 For the foregoing reasons, the Petition is DENIED. Rule 11 of the Rules

16 Following 28 U.S.C. § 2254 require the District Court to “issue or deny a certificate of

17 appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C.

18 foll. § 2254 (West 2019). A COA will issue when the petitioner makes a “substantial

19 showing of the denial of a constitutional right.” 28 U.S.C. § 2253 (West 2019); Pham v.

20 Terhune, 400 F.3d 740, 742 (9th Cir. 2005). A “substantial showing” requires a

21 demonstration that “‘reasonable jurists would find the district court’s assessment of the

22 constitutional claims debatable or wrong.’” Beaty v. Stewart, 303 F.3d 975, 984 (9th

23 Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, the Court

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26 1 California is prohibited from imposing or enforcing mandatory sentences of life without the possibility

of parole to juveniles. See Miller v. Alabama, 567 U.S. 460 (2012) (prohibiting mandatory sentences of

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life without the possibility of parole for juvenile offenders) and Montgomery v. Louisiana, __ U.S. __,

28 136 S. Ct. 718 (2016) (making the prohibition of mandatory sentences of life without the possibility of

1 ||concludes Turner has not made the required showing, and therefore a certificate of

2 || appealability is DENIED.

3 IT IS SO ORDERED.

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5 || Dated: July 14, 2020

6 2 apho Co

7 Hon. Gonzalo P. Curiel

United States District Judge

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