Nieber v. Robertson

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 TOREN NIEBER, Case No.: 23-cv-0174-LL-DEB

12 Petitioner,

REPORT AND

13 v. RECOMMENDATION ON

RESPONDENT’S MOTION TO

14 JEFF MACOMBER, Secretary,

DISMISS

15 Respondent.

[DKT. NO. 13]

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17 This Report and Recommendation is submitted to United States District Judge Linda

18 Lopez pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1.e.

19 I. INTRODUCTION

20 Petitioner Toren Nieber, a state prisoner proceeding pro se, has filed a Petition for

21 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“the Petition”). Dkt. No. 1.1

22 Respondent moves to dismiss the Petition, which Nieber opposes. Dkt. Nos. 14, 15. For

23 the reasons discussed below, the Court recommends GRANTING Respondent’s Motion.

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1 Unless otherwise stated, citations to electronically filed documents refer to the Court’s

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1 II. PROCEDURAL HISTORY

2 Petitioner Nieber is serving a state sentence following his convictions in San Diego

3 County Superior Court for, among other crimes, robbery of an inhabited dwelling and

4 murder. People v. Nieber, 298 Cal. Rptr. 3d 410, 420–21 (Cal. Ct. App. 2022). The

5 convictions arise out of Nieber’s participation in a home invasion robbery during which a

6 victim was shot and killed.

7 The California Court of Appeal affirmed Nieber’s conviction on direct appeal but

8 modified the judgment to strike prison priors. Id. at 420.

9 While Nieber’s appeal was pending, California adopted California Penal Code

10 § 1170.95 (later renumbered § 1172.6).2 That law “bar[s] a conviction for murder under

11 the natural and probable consequences theory as well as limit[ing] the scope of the felony-

12 murder rule . . . ‘to ensure that murder liability is not imposed on a person who is not the

13 actual killer, did not act with the intent to kill, or was not a major participant in the

14 underlying felony who acted with reckless indifference to human life.’” People v.

15 Delgadillo, 521 P.3d 360, 364 (Cal. 2022) (citation omitted), as modified and reh’g denied

16 (Feb. 15, 2023). Nonkillers are “liable for murder only if he or she, with the intent to kill,

17 assisted the actual killer in a first degree murder, or was a ‘major participant’ in the

18 underlying felony who acted ‘with reckless indifference to human life.’” People v. Silva,

19 287 Cal. Rptr. 3d 376, 387 (Cal. Ct. App. 2021) (citations omitted).

20 Section 1172.6 allows individuals convicted and sentenced under the prior (felony

21 murder) law to “file a petition with the court that sentenced the petitioner to have the

22 petitioner’s murder, attempted murder, or manslaughter conviction vacated and to be

23 resentenced on any remaining counts . . . .” Cal. Penal Code § 1172.6(a). Upon a “prima

24 facie showing that the petitioner is entitled to relief,” the sentencing court will hold a

25 “hearing to determine whether the petitioner is entitled to relief, [where] the burden of

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2 The Court uses the current statutory numbering throughout this Report and

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1 proof [is] on the prosecution to prove, beyond a reasonable doubt, that the petitioner is

2 guilty of murder or attempted murder under California law as amended . . . .” Id.

3 § 1172.6(c) and (d)(3). If, however, “there was a prior finding by a court or jury that the

4 petitioner did not act with reckless indifference to human life or was not a major participant

5 in the felony, the court shall vacate the petitioner’s conviction and resentence the

6 petitioner.” Id. § 1172.6(d)(2).

7 Nieber filed a § 1172.6 petition in the state trial court. See Nieber, 298 Cal. Rptr. 3d

8 at 416. Nieber sought resentencing under § 1172.6(d)(2) because the court found at the

9 preliminary hearing that he was not a major participant in the crime. Id. The trial court

10 denied relief under §1172(d)(2), but held an evidentiary hearing pursuant to § 1172.6(d)(3).

11 Id. Following that hearing, the trial court found Nieber was a major participant and,

12 therefore, denied his petition. Id.

13 The California Court of Appeal affirmed the denial of Nieber’s § 1172.6 petition in

14 a published opinion. Id. The Court of Appeal rejected Nieber’s argument that the ruling at

15 the preliminary hearing entitled him to resentencing under § 1172.6(d)(2). Id. at 425

16 (“[F]indings at the preliminary hearing [are] not the type of findings that automatically

17 result in vacating the convictions under section 1172.6 subsection (d)(2).”). The Court of

18 Appeal also rejected Nieber’s related argument that collateral estoppel bars relitigating

19 findings at a preliminary hearing. Id. at 426. Finally, the Court of Appeal found substantial

20 evidence supported the trial court’s conclusion that Nieber “was a major participant in the

21 underlying felony and acted with reckless indifference to human life.” See id. at 426–29.

22 The California Supreme Court denied Nieber’s Petition for Review (Dkt. No. 14-4),

23 and this Petition followed.

24 III. LEGAL STANDARDS

25 In ruling on a motion to dismiss, the court must “accept factual allegations in the

26 [Petition] as true and construe the pleadings in the light most favorable to the non-moving

27 party.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (quoting Manzarek v. St.

28 Paul Fire & Marine Ins. Co., 519 F. 3d 1025, 1031 (9th Cir. 2008)). Rule 4 of the Rules

1 Governing Section 2254 Cases authorizes summary dismissal of a habeas petition “if it

2 plainly appears from the petition and any attached exhibits that the petitioner is not entitled

3 to relief in the district court.” Id.; see also O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.

4 1990) (construing a motion to dismiss a habeas petition as a Rule 4 motion). Accordingly,

5 the Court reviews Respondent’s Motion and Petitioner’s Opposition under Rule 4. See

6 Crim v. Benov, No. 10-cv-01600-OWW-JLT, 2011 WL 1636867, at *3 (E.D. Cal. Apr. 29,

7 2011) (“[T]he Court has the inherent power under the Rules Governing Section 2254 Cases

8 to construe Respondent’s motion to dismiss as an answer on the merits and Petitioner’s

9 opposition to the motion to dismiss as a traverse.”), aff’d, 471 F. App’x 670 (9th Cir. 2012);

10 see also McFarland v. Scott, 512 U.S. 849, 856 (1994) (noting that under Rule 4, “[f]ederal

11 courts are authorized to dismiss summarily any habeas petition that appears legally

12 insufficient on its face”).3

13 State prisoners must exhaust their state court remedies before a federal court may

14 consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v. Boerckel,

15 526 U.S. 838, 842 (1999). To properly exhaust habeas claims, petitioners in California state

16 custody must “fairly present” their claims in petitions to the California Supreme Court.

17 Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999). A claim has been fairly presented

18 only if the petitioner has indicated to the court that the claim is based on federal law. Lyons

19 v. Crawford, 247 F.3d 904 (9th Cir. 2001) (as amended). “An application for a writ of

20 habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to

21 exhaust the remedies available in the courts of the State.” Cassett v. Stewart, 406 F.3d 614,

22 624 (9th Cir 2005) (“[A] federal court may deny an unexhausted petition on the merits only

23 when it is perfectly clear that the applicant does not raise even a colorable federal claim.”

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26 3 In general, exhibits attached to a pleading are “part of the pleading for all purposes.”

27 Hartmann v. Cal. Dept. of Corr. and Rehab., 707 F.3d 1114, 1124 (9th Cir. 2013) (quoting

Fed. R. Civ. P. 10(c)).

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1 IV. DISCUSSION

2 Nieber’s Petition asserts the state courts erred by: (1) ruling an order following a

3 preliminary hearing is not a “prior finding by the court” under § 1172.6(d)(2); (2) not giving

4 collateral estoppel effect to the dismissal of the special circumstances allegation at the

5 preliminary hearing; (3) finding the evidence presented at the § 1172.6(d)(3) hearing

6 established he was a major participant in the underlying crime; and (4) ignoring the “plain

7 language of [§ 1172.6(d)(2)] which specifically states that a petition shall be granted if

8 there was a prior finding that the petitioner did not act with reckless indifference to human

9 life, or was not a major participant in the felony.” Dkt. No. 1 at 6–11.

10 Respondent’s Motion contends Nieber’s Petition should be dismissed because it:

11 (1) does not contain any exhausted federal claims; and (2) fails to raise a cognizable federal

12 habeas claim.4 The Court agrees.

13 A. Exhaustion

14 Nieber alleges his first ground for relief is based upon a violation of his “fundamental

15 due process rights.” Dkt. No. 1 at 6. But Nieber did not raise a federal due process claim

16 in his petition for review to the California Supreme Court. Dkt. 14-3 at 7. Nieber, therefore,

17 has not exhausted the fundamental due process claim asserted in his first ground for relief.

18 Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner fails to alert the state

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22 4 Nieber argues Respondent waived the right to oppose his Petition by not filing an

23 opposition by the deadline originally set by the Court. Dkt. No. 15 at 2. The Court found

good cause for this failure, however, and extended the deadline. Dkt. No. 12. Respondent

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then timely filed its Motion. The cases cited by Nieber (Dkt. No. 15 at 2) do not support

25 granting his Petition under these circumstances. See, e.g., Armstrong v. Brown, 768 F.3d

975, 981 (9th Cir. 2014) (“[A]n issue will generally be deemed waived on appeal if the

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argument was not raised sufficiently for the trial court to rule on it.”) (quoting Ruiz v.

27 Affinity Logistics Corp., 667 F.3d 1318, 1322 (9th Cir. 2012)). Moreover, even a complete

“failure to respond to claims raised in a petition for habeas corpus does not entitle the

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1 court to the fact that he is raising a federal constitutional claim, his federal claim is

2 unexhausted regardless of its similarity to the issues raised in state court.”).

3 B. Failure to State a Federal Claim

4 The Court also agrees with Respondent that none of Nieber’s four grounds for relief

5 (including the first ground for relief) raises a cognizable federal habeas claim.

6 Federal courts’ habeas jurisdiction is limited to a state prisoner’s custody that

7 violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a).

8 “[V]iolations of state law are not cognizable on federal habeas review.” Rhoades v. Henry,

9 611 F.3d 1133, 1142 (9th Cir. 2010).

10 Nieber’s claims all challenge the California courts’ interpretation and application of

11 California law, specifically California Penal Code § 1172.6. These are not cognizable

12 federal claims, as multiple federal courts have held. See Torricellas v. Core, No. 22-cv-

13 1670-MMA-KSC, 2023 WL 3990053, at *4 (S.D. Cal. June 13, 2023) (“[C]ourts in this

14 circuit have held that a state court’s allegedly erroneous denial of resentencing under

15 section 1172.6 does not raise an issue cognizable on federal habeas review.”) (citing cases),

16 appeal filed, No. 23-55640 (9th Cir. July 21, 2023); Sanchez v. Bird, No. 2:23-cv-1702-

17 MCS (JDE), 2023 WL 3727256, at *2 (C.D. Cal. Apr. 21, 2023) (“[C]hallenges to denials

18 of Section [1172.6] resentencing petitions ‘pertain solely to the state court’s interpretation

19 and application of state sentencing law and therefore are not cognizable’ on federal habeas

20 review.”) (collecting cases and quoting Cole v. Sullivan, 480 F. Supp. 3d 1089, 1097 (C.D.

21 Cal. 2020)), report and recommendation adopted, No. 2:23-cv-01702-MCS (JDE), 2023

22 WL 3728677 (C.D. Cal. May 30, 2023); Huynh v. Lizarraga, No. 15-cv-1924-AGS-BTM,

23 2020 WL 1324826, at *42 (S.D. Cal. Mar. 20, 2020) (“[A]ny entitlement to relief [under

24 section 1172.6] is strictly a matter of the application of state law to which this Court must

25 defer.”).

26 This same result applies to Nieber’s first ground for relief. Although labeled a

27 “fundamental due process” claim, it is predicated on an alleged error by the state court in

28 interpreting and applying § 1172.6(d)(2) and (d)(3) of the California Penal Code. Dkt. No.

1 1 at 6–7. Nieber may not “transform a state-law issue into a federal one merely by asserting

2 a violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996); see also

3 Walker v. Cal. Sup. Ct., No. CV 22-4638-CAS(E), 2022 WL 11337927, at *2 (C.D. Cal.

4 Sept. 13, 2022) (“Petitioner’s conclusory characterization of the state courts’ alleged errors

5 as violations of due process cannot transform non-cognizable state law issues into

6 cognizable federal ones.”), adopted by 2022 WL 11269388 (C.D. Cal. Oct. 13, 2022).

7 Further, if Nieber’s Petition raised an exhausted federal due process claim, the Court

8 finds nothing arbitrary, capricious, or fundamentally unfair in the California courts’

9 application of § 1172.6 to Nieber. Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal

10 habeas review of a state court’s application of a constitutionally narrowed aggravating

11 circumstance is limited, at most, to determining whether the state court’s finding was so

12 arbitrary or capricious as to constitute an independent due process or Eighth Amendment

13 violation.”); Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) (“Absent a showing of

14 fundamental unfairness, a state court’s misapplication of its own sentencing laws does not

15 justify federal habeas relief.”). The state trial and appellate courts’ rulings that a ruling at

16 a preliminary hearing does not invoke automatic resentencing under § 1172.6(d)(2) is not

17 inconsistent with federal law. Prescott v. Santoro, 53 F.4th 470, 477 (9th Cir. 2022)

18 (“[H]abeas relief may not be granted . . . unless the adjudication of the claim . . . resulted

19 in a decision that was contrary to, or involved an unreasonable application of, clearly

20 established Federal law . . . .”) (citing 28 U.S.C. § 2254(d)); Fed. R. Crim. P. 5.1(f) (A

21 magistrate judge’s finding of no probable cause at the preliminary hearing “does not

22 preclude the government from later prosecuting the defendant for the same offense.”).

23 The Court also finds nothing arbitrary or capricious in the state courts’ factual

24 findings that the evidence presented at the § 1172.6 hearing established Nieber was a major

25 participant in the underlying crime and acted with deliberate indifference. Nieber, 298 Cal.

26 Rptr. 3d at 427–29. The evidence presented at the § 1172.6 hearing established, among

27 other things, that Nieber: (1) drove one of the victim’s stolen vehicles and attempted to use

28 a stolen credit/debit card during the robbery; (2) returned to the crime scene after his

| || attempted use of the stolen credit/debit card failed and was present when intruders forced

2 ||a gun in one victim’s face and to the back of another victim’s head; (3) was present at the

3 ||murder scene for several hours; (4) was aware of the dangers posed by the crime and of the

4 || weapons used; and (5) was present when intruders entered the home forcefully with

5 || weapons. /d. Regarding reckless indifference, the evidence showed Nieber: (1) was present

6 || for and participated in the robbery; (2) did not intervene to prevent the murder; and (3)

7 || failed to render aid at the scene to the murder victim, whom intruders left lying face down

8 |/in a pool of blood, and to the robbery victims, who were left in vulnerable positions, on the

9 || floor face down, with cloth over their faces and their hands bound behind their backs. /d.

10 || Thus, even if Nieber’s Petition presented an exhausted federal claim, it would fail on the

11 || merits.

12 Vv. CONCLUSION

13 For the foregoing reasons, IT IS HEREBY RECOMMENDED the Court issue

14 Order: (1) granting Respondent’s Motion to Dismiss; and (2) dismissing Nieber’s

15 || Petition without leave to amend.

16 IT IS HEREBY ORDERED that on or before August 2, 2024, any party to this

17 ||action may file and serve written objections to this Report and Recommendation. The

18 |}document should be captioned “Objection to Report and Recommendation.”

19 IT IS FURTHER ORDERED that any reply to objections shall be filed and served

20 or before August 9, 2024. The parties are advised that failure to file objections within

21 specified time may waive the right to raise those objections on appeal of this Court

22 || order. Martinez v YIst, 951 F.2d 1153, 1156 (9th Cir. 1991).

23 IT IS SO ORDERED.

24 || Dated: July 12, 2024

Dando oa

%6 Honorable Daniel E. Butcher

United States Magistrate Judge

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