# Christian Calderon v. Kevin Hixon

> District Court, C.D. California · September 27, 2024

URL: https://www.frixlaw.com/law-library/cases/10635067

## Case

- **Court:** District Court, C.D. California
- **Decided:** September 27, 2024
- **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/10635067

## How later opinions describe it (automated extraction)

- rejecting contention that the time 23 between petitioner’s conviction and a state court decision clarifying state law 24 should be equitably tolled

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 WESTERN DIVISION
11 CHRISTIAN CALDERON, ) No. 2:24-cv-08206-DMG-JDE
)
12 Petitioner, ) ) ORDER TO SHOW CAUSE WHY
13 v. ) ) THE PETITION SHOULD NOT BE
14 KEVIN HIXON, Warden, ) ) DISMISSED
)
15 Respondent. )
)
16

17 I.
18 INTRODUCTION
19 On September 3, 2024,1 Christian Calderon (“Petitioner”), a state prisoner
20 proceeding pro se and seeking to proceed in forma pauperis, constructively filed
21 a Petition for Writ of Habeas Corpus by a Person in State Custody under 28
22 U.S.C. § 2254, challenging his 2017 conviction. Dkt. 1 (“Petition” or “Pet.”).
23

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1 Under the mailbox rule, “a legal document is deemed filed on the date a petitioner
25 delivers it to the prison authorities for filing by mail.” Lott v. Mueller, 304 F.3d 918,
921 (9th Cir. 2002). In the absence of evidence to the contrary, courts have treated a
26
petition as delivered to prison authorities on the date the petition is signed. See
27 Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). Here, the undersigned
affords Petitioner the benefit of the mailbox rule and deems the Petition “filed” on
28 September 3, 2024, the date corresponding to the signature date of the Petition.
1 The Court reviewed the Petition under Rule 4 of the Rules Governing
2 Section 2254 Cases in the United States District Courts (“Habeas Rules”) and
3 finds it appears to suffer from several defects, rendering it subject to dismissal.
4 II.
5 PROCEDURAL HISTORY
6 In 2016, a Los Angeles County Superior Court jury found Petitioner
7 guilty of first degree murder, four counts of assault with a semiautomatic
8 firearm, and one count of shooting at an occupied vehicle. The jury also found
9 true sentence enhancement allegations. Pet. at 2 (CM/ECF pagination);
10 People v. Cordero, 2018 WL 2011609, at *2 (Cal. Ct. App. Apr. 30, 2018) (as
11 modified).2 On January 4, 2017, the trial court sentenced Petitioner to 89 years
12 to life in state prison. Pet. at 2.
13 Petitioner appealed the judgment of conviction to the California Court of
14 Appeal. Pet. at 2. In an unpublished decision dated April 30, 2018, and as
15 modified on May 21, 2018, the court of appeal vacated all enhancements
16 imposed and remanded the matter to afford the trial court an opportunity to
17 correct certain enhancements and to reconsider the firearm enhancements. The
18 judgment was affirmed in all other respects. Cordero, 2018 WL 2011609, at *9;
19 Appellate Courts Case Information (“Appellate Courts”) at
20 https://appellatecases.courtinfo.ca.gov. Petitioner’s Petition for Review was
21 denied on August 22, 2018. Pet. at 3; Appellate Courts. Petitioner did not file a
22 petition for writ of certiorari in the United States Supreme Court. Pet. at 5.
23

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2 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court takes judicial
25 notice of relevant state court records available electronically. See Holder v. Holder,
305 F.3d 854, 866 (9th Cir. 2002) (taking judicial notice of opinion and briefs filed in
26
another proceeding); United States ex rel. Robinson Rancheria Citizens Council v.
27 Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (courts “may take notice of
proceedings in other courts, both within and without the federal judicial system, if
28 those proceedings have a direct relation to matters at issue” (citation omitted)).
1 On January 23, 2019, Petitioner filed a federal habeas petition in this
2 Court, challenging the same 2017 conviction. See Calderon v. Robertson, Case
3 No. 2:19-cv-00498-DMG-JEM (C.D. Cal.), Dkt. 1. That petition was
4 ultimately dismissed without prejudice on September 9, 2019 for failure to
5 prosecute and comply with court orders. Id., Dkt. 19, 22-23.
6 Meanwhile, Petitioner was resentenced. Petitioner contends that his
7 “resentencing proceedings became denied” “[a]round May of 2022.” Pet. at 8.
8 It is unclear whether Petitioner is referring to the resentencing hearing
9 following the remittitur or a separate hearing regarding a petition for
10 resentencing under Cal. Penal Code § 11790.95. The superior court’s online
11 docket does not reflect any hearings in May 2022. See Los Angeles County
12 Superior Court (“Superior Court”) at https://www.lacourt.org. Based on the
13 superior court’s online docket, at the latest, all resentencing proceedings
14 concluded by June 16, 2022. Id. Following resentencing, Petitioner did not file
15 an appeal. Pet. at 8.
16 Thereafter, Petitioner collaterally challenged his conviction by
17 constructively filing a habeas petition in the Los Angeles County Superior
18 Court on or about July 23, 2023. Pet. at 25-33. That petition was denied on
19 September 20, 2023. Id. at 56-57. Next, petitioner constructively filed a habeas
20 petition in the California Court of Appeal on or about October 11, 2023. Id. at
21 59-65. The appellate court issued a summary denial on November 8, 2023. Id.
22 at 67. Petitioner then constructively filed a habeas petition in the California
23 Supreme Court on or about November 22, 2023, which was denied on April
24 10, 2024. Id. at 14-23, 68. Additionally, Petitioner filed one or more petitions
25 for resentencing pursuant to Cal. Penal Code § 1170.95 in the Los Angeles
26 County Superior Court. See Superior Courts.
27 / / /
28 / / /
1 III.
2 PETITIONER’S CLAIM
3 Petitioner raises a single ground for relief, asserting: “Does Petitioner
4 have a federal due process/state created liberty interest claim -to remand in
5 light of recent state high court case decisions, concerning insufficiency of
6 evidence regarding malice aforethought element[?]” Pet. at 6. Petitioner
7 contends that over a year after his resentencing proceedings concluded, the
8 California Supreme Court “began deciding a range of cases specifically
9 addressing the h[ei]ghten[ed] standard of culpability to find an actual killer
10 guilty of ‘First Degree Murder,’” citing People v. Schuller, 15 Cal. 5th 237
11 (2023); In re Lopez, 14 Cal. 5th 562 (2023); and In re Ferrell, 14 Cal. 5th 593
12 (2023). Id. at 8. Petitioner asserts:
13 First, in Lopez, supra, the primary point conceded was the
14 understanding that the “gang-murder special circumstance” did not
15 “establish the elements of first degree premeditated murder under
16 either a direct perpetrator or an aiding and abetting theory” (14
17 Cal.5th at p. 586). While, in-addition, in Ferrell, supra, the State’s
18 High Court denounced any findings of fact that would establish
19 that Penal Code § 12022.53(d) would encompass “the definition of
20 implied malice” (14 Cal.5th at pp. 603-605). While, also in
21 Schuller, supra, the Attorney General or prosecutions role is to
22 prove the absence of any affirmative defenses that would negate an
23 element of malice from a charge crime (15 Cal.5th at pp. 259-261).
24 Id. He argues these cases addressed “the very same Penal Code §§ 188, & 189
25 that Legislators amended with AB1437/775, regarding the changes to the
26 imposition of malice afterthought,” creating “changes that warrant Petitioner
27 to seek it’s liberty interest in the application of proving that Petitioner had
28 harbored the degree of malice to find [him] guilty to First Degree Murder.” Id.
1 at 9. Petitioner maintains that “although [he] did file a Senate Bill 1437
2 petition in 2019, that was denied on June of 2022[,] [i]t was not until the
3 California Supreme Court decided Lopez, supra, Ferrell, supra, Brown, supra,
4 and Schuller, supra, that Petitioner’s argument became ripe to file petitions
5 within the State Court, requesting relief on the basis that malice afterthought
6 was never proven to sustain the First Degree Murder conviction.” Id. at 10.
7 IV.
8 DISCUSSION
9 Pursuant to Rule 4 of the Habeas Rules, the Court must review the
10 Petition and, if it plainly appears from the Petition and any attached exhibits
11 that Petitioner is not entitled to relief, the Court must dismiss the Petition. The
12 Petition appears subject to dismissal for at least three reasons: (1) the Petition
13 is untimely; (2) Petitioner has not clearly set forth his ground for relief; and (3)
14 Petitioner appears to assert a non-cognizable claim.
15 A. The Petition Is Untimely
16 District courts are permitted to consider, sua sponte, whether a petition
17 is untimely and to dismiss a petition that is untimely on its face after providing
18 the petitioner with the opportunity to be heard. Day v. McDonough, 547 U.S.
19 198, 209-10 (2006); Wentzell v. Neven, 674 F.3d 1124, 1126 (9th Cir. 2012).
20 Because the Petition was filed after the effective date of the Antiterrorism and
21 Effective Death Penalty Act of 1996 (the “AEDPA”), it is subject to the
22 AEDPA’s one-year statute of limitations, as set forth at 28 U.S.C. § 2244(d).
23 See Soto v. Ryan, 760 F.3d 947, 956-57 (9th Cir. 2014). Title 28, United States
24 Code, Section 2244(d)(1) provides:
25 A 1-year period of limitation shall apply to an application
26 for a writ of habeas corpus by a person in custody pursuant to the
27 judgment of a State court. The limitation period shall run from the
28 latest of–
1 (A) the date on which the judgment became final by
2 the conclusion of direct review or the expiration of the time
3 for seeking such review;
4 (B) the date on which the impediment to filing an
5 application created by State action in violation of the
6 Constitution or laws of the United States is removed, if the
7 applicant was prevented from filing by such State action;
8 (C) the date on which the constitutional right
9 asserted was initially recognized by the Supreme Court, if
10 the right has been newly recognized by the Supreme Court
11 and made retroactively applicable to cases on collateral
12 review; or
13 (D) the date on which the factual predicate of the
14 claim or claims presented could have been discovered
15 through the exercise of due diligence.
16 Ordinarily, the AEDPA’s limitation period runs from the date on which
17 the judgment of conviction “became final by the conclusion of direct review or
18 the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
19 Petitioner was resentenced on June 16, 2022, at the latest. Because he did not
20 appeal from resentencing, his judgment became final 60 days later, on August
21 15, 2022. See Burton v. Stewart, 549 U.S. 147, 156-57 (2007) (per curiam)
22 (observing that petitioner’s limitations period did not begin to run under the
23 AEDPA until both his conviction and sentence became final by the conclusion
24 of direct review or the expiration of time for seeking such review); see also Cal.
25 R. Ct. 8.308(a) (“[A] notice of appeal . . . must be filed within 60 days after the
26 rendition of the judgment or the making of the order being appealed.”);
27 Barragan v. Koenig, 2018 WL 6004049, at *3 (C.D. Cal. Oct. 16, 2018)
28 (finding that petitioner’s judgment became final, and the AEDPA limitation
1 period commenced, 60 days after the time to file an appeal expired), accepted
2 by 2018 WL 6003840 (C.D. Cal. Nov. 15, 2018). The AEDPA limitation
3 period expired one year later on August 15, 2023.
4 To the extent Petitioner may contend he is entitled to a later trigger date
5 based on recent California Supreme Court authority, this contention is without
6 merit. Petitioner does not claim he was impeded from filing his federal petition
7 by unconstitutional state action and thereby entitled to a later trigger date
8 under Section 2244(d)(1)(B). “[C]hanges in state law” are not “impediments”
9 as contemplated by Section 2244(d)(1)(B). See Torres v. Johnson, 2015 WL
10 5025524, at *2 (C.D. Cal. June 1, 2015) (citing Shannon v. Newland, 410 F.3d
11 1083, 1087-88 (9th Cir. 2005)), accepted by 2015 WL 5031940 (C.D. Cal. Aug.
12 24, 2015); see also Castro v. Johnson, 2023 WL 8143909, at *4 (C.D. Cal.
13 Sept. 29, 2023), accepted by 2024 WL 130149 (C.D. Cal. Jan. 10, 2024).
14 Similarly, Section 2244(d)(1)(C) only applies to newly recognized rights by the
15 United States Supreme Court. See Dodd v. United States, 545 U.S. 353, 357-
16 59 (2005) (analyzing similar provision under 28 U.S.C. § 2255); Castro, 2023
17 WL 8143909, at *4 (explaining that 2244(d)(1)(C) “only applies to newly
18 recognized rights by the United States Supreme Court and does not apply to
19 new rights recognized by a change in state law”); Guerrero v. Rackley, 2018
20 WL 1305635, at *3 (C.D. Cal. Feb. 12, 2018), judgment entered by 2018 WL
21 1305055 (C.D. Cal. Mar. 9, 2018). The state supreme court cases cited are
22 matters of state law, and as such, Petitioner is not entitled to an alternate
23 trigger date under Section 2244(d)(1)(C). Finally, under Section 2244(d)(1)(D),
24 the statute of limitations runs from the “date on which the factual predicate of
25 the claim or claims presented could have been discovered through the exercise
26 of due diligence.” The “factual predicate” in Section 2244(d)(1)(D) does not
27 encompass mere changes in state law. See Shannon, 410 F.3d at 1088-89 (“If a
28 change in (or clarification of) state law, by a state court, in a case in which [the
1 petitioner] was not a party, could qualify as a ‘factual predicate,’ then the term
2 ‘factual’ would be meaningless”); Castro, 2023 WL 8143909, at *4.
3 Thus, Petitioner’s conviction became final on August 15, 2022, and the
4 AEDPA’s limitation period expired one year later on August 15, 2023. As
5 noted, Petitioner did not constructively file his Petition until September 3,
6 2024. Thus, absent tolling, the Petition appears untimely.
7 The burden of demonstrating that the AEDPA’s one-year limitation
8 period was sufficiently tolled, whether statutorily or equitably, rests with the
9 petitioner. See, e.g., Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Zepeda v.
10 Walker, 581 F.3d 1013, 1019 (9th Cir. 2009); Miranda v. Castro, 292 F.3d
11 1063, 1065 (9th Cir. 2002). For the reasons discussed herein, Petitioner has not
12 demonstrated he is entitled to sufficient tolling to render his Petition timely.
13 1. Statutory Tolling
14 “A habeas petitioner is entitled to statutory tolling of AEDPA’s one-year
15 statute of limitations while a ‘properly filed application for State post-
16 conviction or other collateral review with respect to the pertinent judgment or
17 claim is pending.’” Nedds v. Calderon, 678 F.3d 777, 780 (9th Cir. 2012)
18 (quoting 28 U.S.C. § 2244(d)(2)). Statutory tolling does not extend to the time
19 between the date a judgment becomes final and the date the petitioner files his
20 first state collateral challenge because during that time there is no case
21 “pending.” See Cross v. Sisto, 676 F.3d 1172, 1179 (9th Cir. 2012).
22 Here, Petitioner collaterally filed a state habeas petition in the Los
23 Angeles County Superior Court on or about July 23, 2023, which was denied
24 on September 20, 2023. Pet. at 25-33, 56-57. Since that petition was filed
25 within the AEDPA’s one-year limitations period, Petitioner is entitled to
26 statutory tolling for the period in which it was pending. Petitioner
27 constructively filed his next state habeas petition in the California Court of
28 Appeal on or about October 11, 2023. That petition was denied on November
1 8, 2023. Id. at 59-65, 67. Because this petition was filed within a reasonable
2 time, Petitioner also is entitled to gap tolling for the period of time between the
3 denial of his first state habeas petition and the filing of the second habeas
4 petition. See Robinson v. Lewis, 9 Cal. 5th 883, 901-02 (2020). Likewise,
5 Petitioner is entitled to statutory tolling while his second state habeas petition
6 was pending in the California Court of Appeal. Thus, Petitioner is entitled to
7 statutory tolling from July 23, 2023, the date upon which his first state habeas
8 petition was constructively filed, to November 8, 2023, when his second state
9 habeas petition was denied. Thus, the limitations period was extended by 108
10 days, to December 1, 2023.
11 However, Petitioner is not entitled to statutory tolling for the period
12 between the denial of the California Court of Appeal habeas petition and the
13 subsequent denial of his state habeas petition in the California Supreme Court.
14 The California Supreme Court denied the habeas petition, in part, because it
15 was untimely. Pet. at 68. Since the state supreme court rejected the petition on
16 the ground of untimeliness, it was not “properly filed” under Section
17 2244(d)(2). See Pace, 544 U.S. at 417 (“Because the state court rejected
18 petitioner’s [post-conviction] petition as untimely, it was not ‘properly filed,’
19 and he is not entitled to statutory tolling under § 2244(d)(2).”); Lakey v.
20 Hickman, 633 F.3d 782, 786 (9th Cir. 2011) (as amended); Thorson v. Palmer,
21 479 F.3d 643, 645 (9th Cir. 2007). It makes no difference that the superior
22 court denied the petition on alternative grounds. See Carey v. Saffold, 536 U.S.
23 214, 225-26 (2002); Bonner v. Carey, 425 F.3d 1145, 1148-49 (9th Cir. 2005),
24 amended by 439 F.3d 993 (9th Cir. 2006). Further, the Court is precluded from
25 second-guessing the correctness of the superior court’s timeliness
26 determination. See Rudin v. Myles, 781 F.3d 1043, 1054 (9th Cir. 2015) (a
27 federal court is “not at liberty to second guess” a state court’s untimeliness
28 determination). Thus, Petitioner is not entitled to statutory tolling from the
1 date the California Court of Appeal denied his second state habeas petition
2 through the date the state supreme court denied his third state habeas petition.
3 2. Equitable Tolling
4 In addition to statutory tolling, the AEDPA’s one-year statute of
5 limitations is subject to equitable tolling in appropriate cases. See Holland v.
6 Florida, 560 U.S. 631, 649 (2010). In order to be entitled to equitable tolling,
7 the petitioner must show both that: (1) he has been pursuing his rights
8 diligently; and (2) some extraordinary circumstance stood in his way and
9 prevented his timely filing. Id. The “threshold necessary to trigger equitable
10 tolling [under the AEDPA] is very high, lest the exceptions swallow the rule.”
11 Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (citation omitted). A court
12 may grant equitable tolling only where “‘extraordinary circumstances’
13 prevented an otherwise diligent petitioner from filing on time.” See Forbess v.
14 Franke, 749 F.3d 837, 839 (9th Cir. 2014). Consequently, as the Ninth Circuit
15 has recognized, equitable tolling will be justified in few cases. Spitsyn v.
16 Moore, 345 F.3d 796, 799 (9th Cir. 2003) (as amended).
17 Here, Petitioner has not asserted any facts that might warrant equitable
18 tolling, or otherwise shown that some extraordinary circumstance prevented
19 him from timely filing his Petition. To the extent Petitioner may contend that
20 the recent state law warrants equitable tolling, such change in law does not
21 constitute the requisite extraordinary circumstance warranting equitable
22 tolling. See Shannon, 410 F.3d at 1089-90 (rejecting contention that the time
23 between petitioner’s conviction and a state court decision clarifying state law
24 should be equitably tolled); Stroud v. Madden, 2020 WL 5055858, at *6 (S.D.
25 Cal. Aug. 27, 2020) (rejecting contention that change in state law justified
26 equitable tolling). Accordingly, equitable tolling does not appear to render the
27 Petition timely.
28 / / /
1 B. Other Defects
2 The Petition suffers from at least two other defects.
3 First, Petitioner has not clearly set forth his claims for relief. Habeas
4 Rules 2(c) and 4 require a statement of all grounds for relief and the facts
5 supporting each ground, facts pointing to a real possibility of constitutional
6 error, and show the relationship of the facts to the claim. See Habeas Rule 4,
7 Advisory Committee Notes to 1976 Adoption; Mayle v. Felix, 545 U.S. 644,
8 655 (2005); O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (as
9 amended). Allegations in a petition that are vague, conclusory, palpably
10 incredible, or unsupported by a statement of specific facts, are insufficient to
11 warrant relief, and are subject to summary dismissal. See, e.g., Jones v.
12 Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); James v. Borg, 24 F.3d 20, 26
13 (9th Cir. 1994); Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). Here,
14 as noted, Petitioner raises a single claim, ostensibly an insufficiency of the
15 evidence claim, relying on recent state court cases. However, he fails to
16 provide any facts in support of his claim or explain how the recent state
17 supreme court cases are applicable to him. Petitioner’s failure to clearly set
18 forth the legal and factual bases for his claim renders the Petition subject to
19 dismissal on this additional ground.
20 Second, it is unclear whether Petitioner claims he is entitled to
21 resentencing under Cal. Penal Code § 1172.6 (previously numbered as Cal.
22 Penal Code § 1170.95) as he repeatedly references Senate Bills 775 and 1437.
23 To the extent Petitioner alleges he is entitled to resentencing under Section
24 1172.6, such claim is not cognizable on federal habeas review. A district court
25 may entertain a petition for writ of habeas corpus filed by a person in state
26 custody only on the ground that he is in custody “in violation of the
27 Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a);
28 Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In conducting habeas review, a
1 federal court is limited to deciding whether a conviction violated the
2 Constitution, laws, or treaties of the United States.”). “[I]t is not the province
3 of a federal habeas court to reexamine state-court determinations on state-law
4 questions.” Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) (quoting
5 McGuire, 502 U.S. at 67-68). Matters relating to state sentencing are governed
6 by state law and generally are not cognizable on federal habeas review. See
7 Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“federal habeas corpus relief does
8 not lie for errors of state law”); Sturm v. Cal. Adult Auth., 395 F.2d 446, 448
9 (9th Cir. 1967) (per curiam) (“a state court’s interpretation of its statute does
10 not raise a federal question”); Moore v. Chrones, 687 F. Supp. 2d 1005, 1040
11 (C.D. Cal. 2010) (“A challenge to a state court’s application of state sentencing
12 laws does not create a federal question cognizable in federal habeas review.”).
13 Federal district courts have repeatedly held that “a state court’s allegedly
14 erroneous denial of resentencing” under Cal. Penal Code § 1172.6 “does not
15 raise an issue cognizable on federal habeas review.” Walker v. Cal. Supreme
16 Ct., 2022 WL 11337927, at *2 (C.D. Cal. Sept. 13, 2022), accepted by 2022
17 WL 11269388 (C.D. Cal. Oct. 13, 2022); McCavitt v. Covello, 2022 WL
18 17813204, at *2 (E.D. Cal. Dec. 12, 2022), adopted by 2023 WL 2602019
19 (E.D. Cal. Mar. 22, 2023); Carter v. Montgomery, 2021 WL 2044499, at *11
20 (C.D. Cal. Apr. 12, 2021) (“[A]ny entitlement to resentencing [under Senate
21 Bill 1437] is strictly a matter of state law to which this Court must defer”)
22 accepted by 2021 WL 2042723 (C.D. Cal. May 13, 2021); see also Bradshaw v.
23 Richey, 546 U.S. 74, 76 (2006) (per curiam) (“[A] state court’s interpretation of
24 state law . . . binds a federal court sitting in habeas corpus.”).
25 A state court’s misapplication of state law may rise to the level of a due
26 process in certain limited circumstances. Richmond v. Lewis, 506 U.S. 40, 50
27 (1992). But Petitioner cannot “transform a state-law issue into a federal one
28 merely by asserting a violation of due process.” See Langford v. Day, 110 F.3d
1 |} 1380, 1389 (9th Cir. 1997) (as modified); see also Cole v. Sullivan, 480 F.
2 ||Supp. 3d 1089, 1097 (C.D. Cal. 2020) (finding that petitioner failed to raise a
3 || “due process” claim by alleging erroneous application of state sentencing law
4 ||to find petitioner ineligible to be resentenced under Section 1170.95). Here, the
5 || Petition vaguely references “federal due process/state created liberty interest.”
6 || However, Petitioner’s allegations do not facially reflect the real possibility of
7 federal constitutional error. Petitioner’s cursory reference to the Fourteenth
8 || Amendment is insufficient to transform a state-law issue into a federal one. See
9 || Langford, 110 F.3d at 1389. Thus, to the extent Petitioner seeks resentencing
10 || under Section 1172.6, Petitioner has failed to allege a cognizable claim.
11 V.
12 ORDER
13 For the foregoing reasons, the Petition is subject to dismissal. Petitioner
14 ORDERED TO SHOW CAUSE in writing, by no later than thirty (30) days
15 || from the date of this Order, why this action should not be dismissed under
16 || Habeas Rule 4 for the reasons stated above. If Petitioner disputes that this
17 || action is untimely, he must explain clearly and in detail why it is not untimely
18 provide any available competent evidence that establishes the timeliness of
19 || this action.
20 Alternatively, instead of filing a response to the instant Order, Petitioner
21 ||may request a voluntary dismissal of this action pursuant to Federal Rule of
22 || Civil Procedure 41(a). The Clerk is directed to provide a Notice of Dismissal
23 || form. However, the Court warns any dismissed claims may be subject to the
24 || statute of limitations under Section 2244(d)(1).
29 Dated: September 27, 2024 if de,
26
27 he ee
28 nited States Magistrate Judge
13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10635067. Public record. Not legal advice.