The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 DAI NGUYEN, No. 2:23-cv-01086-DAD-JDP
12 Petitioner,
13 v. ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, DISMISSING
14 ACEVEDO, PETITION FOR WRIT OF HABEAS
CORPUS, AND DENYING MOTION TO
15 Respondent. APPOINT COUNSEL
16 (Doc. Nos. 9, 10, 14)
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19 Petitioner Dai Nguyen is a state prisoner proceeding pro se and in forma pauperis with a
20 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a
21 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
22 On December 7, 2023, the assigned magistrate judge issued findings and
23 recommendations, recommending that the pending second amended petition for federal habeas
24 relief be dismissed without leave to amend for failure to state a cognizable claim for federal
25 habeas relief (Doc. No. 10 at 3), largely on the same grounds upon which the magistrate judge
26 previously dismissed petitioner’s original and first amended petitions (see Doc. Nos. 6, 8).
27 Specifically, the magistrate judge first concluded that because petitioner is seeking relief under
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1 California Senate Bill 1437,1 an issue involving only the interpretation of state law, petitioner has
2 not stated a cognizable federal habeas claim (Doc. No. 10 at 1–2) (citing Lewis v. Jeffers, 497
3 U.S. 764, 780 (1990)), and that “petitioner’s attempts to recast the denial as a violation of his due
4 process rights by alleging that the state courts were ‘biased’ or ‘vindictive’ cannot save his claim”
5 (id.) (citing Langford v. Day, 110 F.3d 1380 (9th Cir. 1996)). Second, the magistrate judge
6 concluded that petitioner’s claims concerning the effectiveness of his counsel during the
7 resentencing proceedings did not present a cognizable federal habeas claim, either, because there
8 is no federal constitutional right to counsel in state postconviction resentencing proceedings
9 conducted under California Penal Code § 1170.95. (Id. at 2.) Third, the magistrate judge
10 concluded that petitioner’s claims concerning his underlying conviction, which occurred in 2000,
11 were untimely in light of the one-year statute of limitations imposed by the Antiterrorism and
12 Effective Death Penalty Act. (Id. at 2.) The magistrate judge further noted that “[t]here is, for
13 example, no basis on which to conclude that the denial under section 1170.95 restarted the statute
14 of limitations for the original, underlying conviction.” (Id. at 2–3.)
15 These findings and recommendations were served on all parties and contained notice that
16 any objections thereto were to be filed within fourteen (14) days of service, and that any response
17 to objections were to be filed within fourteen (14) days after service of the objections. (Id. at 3.)
18 Petitioner timely filed his objections on December 18, 2023. (Doc. No. 11.)
19 In his objections, petitioner largely repeats arguments and cites to case law that he
20 presented in his second amended petition and that the assigned magistrate judge already
21 considered and properly rejected. First, petitioner argues that the magistrate judge “did not make
22 a finding on petitioner[’s] claim [that] the sentence, or denial of resentencing[,] is arbitrary or
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1 On September 30, 2018, then-California governor Brown signed Senate Bill No. 1437, which
24 amended California Penal Code §§ 188 and 189 and created Penal Code § 1170.95. The
legislation limited accomplice liability in California for felony murder and murder under the
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natural and probable consequences theory, and provided a petition procedure through which
qualifying defendants could seek to vacate their murder convictions and obtain resentencing. The
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amendments went into effect on January 1, 2019. See Cal. Const., art. IV, § 8(c). “Effective
27 June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6. The court continues
to refer to this statute as section 1170.95 to be consistent with the petition.” Green v. Lovello,
28 No. 2:23-cv-07599-FMO-KES, 2023 WL 6613013, at *1 n.1 (C.D. Cal. Oct. 10, 2023).
1 capricious” and thereby violated petitioner’s due process rights under the Fourteenth Amendment.
2 (Id. at 1–4) (citing Richmond v. Lewis, 506 U.S. 40 (1992)); see also Richmond, 506 U.S. at 50
3 (“[T]he question to be decided by a federal court on petition for habeas corpus is not whether the
4 state sentencer committed state-law error . . . . Rather, the federal, constitutional question is
5 whether such reliance is ‘so arbitrary or capricious as to constitute an independent due process or
6 Eighth Amendment violation.’”). Petitioner further argues that “[t]he state courts clearly
7 show[ed] bias and vindictiveness” during his resentencing proceedings. (Id. at 3.) Petitioner’s
8 objections in this regard provide no basis upon which to decline to adopt the pending findings and
9 recommendations, in which the magistrate judge concluded, as discussed above, that “petitioner’s
10 attempts to recast the denial [of his resentencing petition] as a violation of his due process rights
11 by alleging that the state courts were ‘biased’ or ‘vindictive’ cannot save his claim.” (Doc.
12 No. 10 at 1–2); see also Green, 2023 WL 6613013, at *7–8 (“That Petitioner has invoked his
13 federal constitutional right to due process does not transform his state law claims into cognizable
14 federal claims”).
15 Second, petitioner argues that the magistrate judge, in recommending that petitioner’s
16 ineffective assistance of counsel claim be dismissed due to petitioner’s lack of a federal
17 constitutional right to counsel, failed to consider that “courts have ruled that denial of petition
18 [under] section 1170.95 is [a] new judgment,” such that petitioner did have a federal
19 constitutional right to counsel in those proceedings. (Doc. No. 11 at 4) (citing Magwood v.
20 Patterson, 561 U.S. 320 (2010); Gideon v. Wainwright, 372 U.S. 335 (1963); Douglas v.
21 California, 372 U.S. 353 (1963)). However, the Supreme Court’s decision in Magwood, cited by
22 petitioner, addressed whether a habeas petition was successive, see Magwood, 561 U.S. 320, and
23 does not support petitioner’s argument in this regard. As the magistrate judge noted in the
24 pending findings and recommendations, district courts in this circuit have routinely found that
25 there is no federal constitutional right to counsel in resentencing proceedings under § 1170.95.
26 (See Doc. No. 10 at 2); see, e.g., Hunt v. Cicnero, No. 2:22-cv-02472-JAK-KES, 2022 WL
27 17224722, at *7 (C.D. Cal. July 20, 2022) (“Resentencing proceedings under California Penal
28 Code section 1170.95 are the type of postconviction proceedings in which there is no federal
1 constitutional right to counsel.”), report and recommendation adopted, 2022 WL 17225020 (C.D.
2 Cal. Sept. 14, 2022). Petitioner’s objections therefore provide no basis upon which to decline to
3 adopt the findings and recommendation that petitioner’s ineffective assistance of counsel claim be
4 dismissed.
5 Third, petitioner argues that, contrary to the conclusions of the pending findings and
6 recommendations, he is not seeking to challenge his initial conviction and that “the issue of
7 restarting [the] statute of limitations for [his] initial conviction is not being address[ed] in this
8 petition.” (Doc. No. 11 at 5.) Instead, petitioner argues in his objections that the “statute under
9 which petitioner was denied resentencing is unconstitutionally vague in warning what criminal
10 conduct is prohibited.”2 (Id.) The court notes that in his second amended petition, petitioner
11 argued that “the statute under which petitioner was originally convicted has now become vague in
12 warning what criminal conduct is prohibited.” (Doc. No. 9 at 15 (emphasis added); see also id. at
13 5). In any event, in neither his second amended petition nor his objections does petitioner point to
14 any specific language he claims to be vague in either the statute under which he was convicted or
15 the statute under which he was denied resentencing. (See Doc. Nos. 9 at 15–16; 11 at 5–7.) The
16 only specific phrase that petitioner claims is unconstitutionally vague is the phrase “even if death
17 was not intended,” as used in a model California jury instruction. (See Doc. No. 9 at 16.)
18 Petitioner then does not mention this phrase in his objections, instead quoting the California
19 model instruction but not explaining how or if the challenged language is also unconstitutionally
20 vague. (See Doc. No. 11 at 5–7.) Nor does petitioner explain how the phrase “even if death was
21 not intended” is unconstitutionally vague. The court declines to find that phrase, or any of the
22 relevant, applicable statutes, to be unconstitutionally vague. Accordingly, petitioner’s objections
23 provide no basis upon which to decline to adopt the pending findings and recommendations.
24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a
25 de novo review of this case. Having carefully reviewed the entire file, including petitioner’s
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28 2 Petitioner’s exact argument is unclear in this regard.
1 objections, the court concludes that the findings and recommendations are supported by the
2 record and proper analysis.
3 Having found that petitioner is not entitled to habeas relief, the court now turns to whether
4 a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no
5 absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only
6 allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C.
7 § 2253. The court should issue a certificate of appealability if “reasonable jurists could debate
8 whether (or, for that matter, agree that) the petition should have been resolved in a different
9 manner or that the issues presented were ‘adequate to deserve encouragement to proceed
10 further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation omitted).
11 In the present case, the court finds that reasonable jurists would not find the court’s
12 determination that the petition should be dismissed debatable or wrong, or that petitioner should
13 be allowed to proceed further. Therefore, the court declines to issue a certificate of appealability.
14 See Banks v. Sherman, No. 1:20-cv-01225-DAD-EPG, 2021 WL 1754383, at *1–2 (E.D. Cal.
15 May 4, 2021) (declining to issue a certificate of appealability where the petitioner’s claims were
16 dismissed because denial of relief under § 1170.95 did not present a cognizable federal habeas
17 claim).
18 Additionally, on September 16, 2024, petitioner filed a motion for appointment of
19 counsel. (Doc. No. 14.) In that motion, petitioner seeks counsel “in the event that the court
20 grants traverse and [an] evidentiary hearing” or to assist petitioner in the event that petitioner
21 must undertake discovery. (Id. at 1.) Because the court will dismiss the pending second amended
22 petition and decline to issue a certificate of appealability, petitioner’s motion for appointment of
23 counsel will be denied as moot in light of this order.
24 Accordingly,
25 1. The findings and recommendations issued on December 7, 2023 (Doc. No. 10) are
26 adopted in full;
27 2. The second amended petition for writ of habeas corpus (Doc. No. 9) is dismissed;
28 3. The court declines to issue a certificate of appealability;
1 4. Petitioner’s motion to appoint counsel (Doc. No. 14) is denied as moot in light of this
2 order; and
3 5. The Clerk of the Court is directed to close this case.
4 IT IS SO ORDERED.
> | Dated: _ October 23, 2024 Dal A. 2, sxe
6 DALE A. DROZD
5 UNITED STATES DISTRICT JUDGE
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