# Alfred Eugene Shallowhorn v. Cal. Department of Corrections

> District Court, C.D. California · August 4, 2023

URL: https://www.frixlaw.com/law-library/cases/9984013

## Case

- **Court:** District Court, C.D. California
- **Decided:** August 4, 2023
- **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/9984013

## Opinion text

1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
ALFRED EUGENE SHALLOWHORN, ) Case No. CV 23-3652-GW (JPR)
11
)
Petitioner, )
12
) ORDER SUMMARILY DISMISSING HABEAS
v. ) PETITION AND DENYING MOTION FOR
13
) LEAVE TO FILE IT
FIDENCIO N. GUZMAN, Acting )
14
Warden,1 )
)
15
Respondent. )
16
17 On May 10, 2023, Petitioner, a state prisoner, filed a
18 Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254,
19 challenging his 1998 convictions for first-degree murder and
20 related crimes. Recognizing that the Petition on its face is
21 second or successive, he also filed a motion arguing that the
22 Petition does not fall under § 2244(b), which generally bars such
23
24 1 Fidencio N. Guzman is substituted in under Federal Rule of
Civil Procedure 25(d) as the proper Respondent because he is the
25
acting warden of Centinela State Prison, where Petitioner is
26 housed. See Centinela State Prison (CEN), Cal. Dep’t of Corr. &
Rehab., https://www.cdcr.ca.gov/Facility-Locator/CEN/ (last visited
27 July 25, 2023); (see also Pet., ECF No. 1 at 1 (throughout, the
Court uses the pagination generated by its Case Management/
28 Electronic Case Filing system)).
1
1 petitions without prior authorization from the Ninth Circuit
2 Court of Appeals. Indeed, this is not Petitioner’s first federal
3 habeas petition. On July 16, 2010, the Court denied on the
4 merits his initial petition challenging the same convictions.
5 See Orders, Shallowhorn v. Stribling, No. CV 04-8421-SVW (JPR)
6 (C.D. Cal. July 16, 2010) (ECF Nos. 70 & 71). The Ninth Circuit
7 denied his request for a certificate of appealability. See
8 Order, id. (ECF No. 81). On October 30, 2015, the Court
9 summarily denied another petition because it was successive or
10 second and he had not requested, much less received, permission
11 from the Ninth Circuit to file it. See Order, Shallowhorn v.
12 Madden, No. CV 15-8051-MMM (JPR) (C.D. Cal. Oct. 30, 2015) (ECF
13 No. 4). On March 2, 2016, he moved under Federal Rule of Civil
14 Procedure 60(b) to vacate the judgment in his original habeas
15 case, but the Court denied the motion as a disguised successive
16 petition. See Order, Stribling (ECF No. 87). The Ninth Circuit
17 again denied his requests for a certificate of appealability.
18 See Order, id. (ECF No. 91); Order, Madden (ECF No. 10). And on
19 March 16, 2017, the Court denied his renewed Rule 60(b) motion.
20 See Order, Stribling (ECF No. 93).
21 For the reasons discussed below, the Court recommends that
22 the Petition be dismissed without prejudice.
23 PETITIONER’S CLAIMS
24 I. His 1998 convictions violate due process because 2019
25 amendments to California law render the evidence in his case
26 insufficient to support the convictions. (See Pet., ECF No. 1 at
27 24-40.)
28 II. His continued incarceration violates due process
2
1 because amendments to California law have rendered his
2 convictions unconstitutional. (See id. at 41-42.)
3 III. The state court’s recent denial of his petition for
4 resentencing under California Penal Code section 1170.952
5 violates due process. (See id. at 43-52; see also Cal. Ct. App.
6 Suppl. Opening Br., ECF No. 3 at 8-22 (Petitioner alleging that
7 superior court’s denial of his section 1170.95 petition
8 constituted prejudicial error).)
9 BACKGROUND
10 In February 1998, a Los Angeles County Superior Court jury
11 convicted Petitioner of conspiracy to commit murder and three
12 counts of first-degree murder and found true his personal use of
13 a firearm and other special circumstances. (See Pet., ECF No. 1
14 at 2; Cal. Ct. App. Suppl. Opening Br., ECF No. 3 at 5.) In July
15 1998, he was sentenced to three consecutive life terms without
16 the possibility of parole. (See Pet., ECF No. 1 at 2; id., Ex. B
17 at 59.)
18 In January 2019, Senate Bill 1437
19 was enacted to “amend the felony murder rule and the
20 natural and probable consequences doctrine, as it relates
21 to murder, to ensure that murder liability is not imposed
22 on a person who is not the actual killer, did not act
23 with the intent to kill, or was not a major participant
24 in the underlying felony who acted with reckless
25 indifference to human life.” (Stats. 2018, ch. 1015, §
26
27 2 Section 1170.95 was renumbered to section 1172.6, effective
June 30, 2022. See Walker v. Cal. Sup. Ct., No. CV 22-4638-CAS(E),
28 2022 WL 11337927, at *1 n.1 (C.D. Cal. Sept. 13, 2022).
3
1 1, subd. (f).)
2 People v. Martinez, 31 Cal. App. 5th 719, 723 (2019) (as modified
3 on denial of reh’g). The bill enacted Penal Code section
4 1170.95(a) to allow those so convicted to “file a petition with
5 the court that sentenced the petitioner to have the petitioner’s
6 murder conviction vacated and to be resentenced on any remaining
7 counts.” Id.
8 On December 17, 2020, Petitioner filed a section 1170.95
9 resentencing petition in the superior court, which denied it for
10 failure to make a prima facie showing. (See Pet., Ex. A, ECF No.
11 1 at 55-57.) He appealed, and the court of appeal affirmed on
12 September 9, 2021. (See id., Ex. B at 58-62.) On November 17,
13 2021, the supreme court denied his petition for review. See Cal.
14 App. Cts. Case Info., https://appellatecases.courtinfo.ca.gov/
15 (search for “Alfred” with “Shallowhorn”; then follow “S271327”
16 hyperlink) (last visited July 25, 2023). He filed a habeas
17 petition in the supreme court (see Pet., ECF No. 1 at 53); it
18 remains pending, see Cal. App. Cts. Case Info., https://
19 appellatecases.courtinfo.ca.gov/ (search for “Alfred” with
20 “Shallowhorn”; then follow “S279952” hyperlink) (last visited
21 July 25, 2023).
22 DISCUSSION
23 I. Applicable Law
24 The Antiterrorism and Effective Death Penalty Act of 1996
25 provides, in § 2244(b), as follows:
26 (1) A claim presented in a second or successive habeas
27 corpus application under section 2254 that was
28 presented in a prior application shall be
4
1 dismissed.
2 (2) A claim presented in a second or successive habeas
3 corpus application under section 2254 that was not
4 presented in a prior application shall be dismissed
5 unless—
6 (A) the applicant shows that the claim relies on a
7 new rule of constitutional law, made
8 retroactive to cases on collateral review by
9 the Supreme Court, that was previously
10 unavailable; or
11 (B)(i) the factual predicate for the claim could
12 not have been discovered previously
13 through the exercise of due diligence;
14 and
15 (ii) the facts underlying the claim, if proven
16 and viewed in light of the evidence as a
17 whole, would be sufficient to establish
18 by clear and convincing evidence that,
19 but for constitutional error, no
20 reasonable factfinder would have found
21 the applicant guilty of the underlying
22 offense.
23 (3)(A) Before a second or successive application
24 permitted by this section is filed in the
25 district court, the applicant shall move in
26 the appropriate court of appeals for an order
27 authorizing the district court to consider the
28 application.
5
1 Not all “[h]abeas petitions that are filed second-in-time
2 are . . . second or successive.” Clayton v. Biter, 868 F.3d 840,
3 843 (9th Cir. 2017). For example, a petition is not successive
4 if it is based on a “new judgment” intervening between the denial
5 of a federal habeas petition on the merits and the filing of a
6 subsequent one. Magwood v. Patterson, 561 U.S. 320, 331-33
7 (2010); Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018) (claim
8 in second petition is not successive “if it is based on an
9 intervening state court judgment . . . notwithstanding that the
10 same claim . . . could have been brought in the first petition”
11 (emphasis in original)).
12 A state-court judgment may be “intervening” even if it
13 leaves “in place an earlier challenged conviction and sentence.”
14 Clayton, 868 F.3d at 843-44 (citing Wentzell v. Neven, 674 F.3d
15 1124 (9th Cir. 2012)). Thus, in Clayton, in which the petitioner
16 challenged the denial of a resentencing petition filed under a
17 different state-law provision than the one at issue here, the
18 Ninth Circuit held that the resentencing petition’s denial
19 “result[ed] in the entry of a new appealable order or judgment”
20 and therefore his claim challenging that denial wasn’t
21 successive. Id. at 844; see Young v. Cueva, No. CV
22 20-8304-CJC(E), 2020 WL 8455474, at *2 (C.D. Cal. Oct. 27, 2020)
23 (finding that “denial of a petition for resentencing” constituted
24 “new judgment” and that petitioner’s challenge to that denial and
25 not conviction itself was not successive).
26 But when a second-in-time petition concerns the same
27 judgment as that challenged in a prior federal petition that was
28 denied on the merits, the general prohibition on unauthorized
6
1 second or successive petitions bars consideration of the second
2 petition without prior authorization from the court of appeals.
3 See Burton v. Stewart, 549 U.S. 147, 153 (2007) (per curiam)
4 (district court properly dismissed petitioner’s second habeas
5 petition for lack of jurisdiction when he “twice brought claims
6 contesting the same custody imposed by the same judgment of a
7 state court” without first obtaining authorization from circuit
8 court).
9 II. Analysis
10 A. The Petition’s claims challenging Petitioner’s 1998
11 convictions are successive
12 Ground one alleges that “after amendments to California law,
13 the evidence in [Petitioner’s] case is constitutionally
14 insufficient to support his murder convictions and his conviction
15 of conspiracy to murder” (Pet., ECF No. 1 at 24), and ground two
16 claims that “the lack of sufficient evidence . . . renders
17 Petitioner’s convictions for murder and conspiracy
18 unconstitutional” (id. at 42).3 Such claims challenge the same
19
20 3 Petitioner’s “Motion to File Petition” relies on many of the
same cases as a similar motion accompanying his summarily dismissed
21
2015 petition. (Compare Mot. File Pet., ECF No. 2, with Mot. File
22 Pet. Habeas Corpus, Madden (ECF No. 3).) To the extent he argues
that the factual predicate for his current claims did not exist
23 until state law changed in 2019 (see Mot. File Pet., ECF No. 2 at
10-11) or that Fiore v. White, 531 U.S. 225 (2001) (per curiam),
24 saves them (see Pet., ECF No. 1 at 41-42), his argument fails
because he “does not allege that the evidence in his case never
25
supported his conviction.” Edwards v. Robertson, No. 5:23-cv-
26 00126-MEMF-KES, 2023 WL 4111372, at *8 (C.D. Cal. June 21, 2023)
(holding that “change in state law ‘does not invalidate a
27 conviction obtained under an earlier law’” (quoting Kleve v. Hill,
243 F.3d 1149, 1151 (9th Cir. 2001)). Petitioner also alleges that
28 applying § 2244(b) to bar his claims would violate the Suspension
7
1 1998 judgment as Petitioner’s initial federal habeas petition,
2 from 2004, which was denied on the merits with prejudice in 2010.
3 See Order, Stribling (ECF No. 70). Although the Petition’s first
4 two claims are premised in part on changes Senate Bill 1437 made
5 to California law (see, e.g., Pet., ECF No. 1 at 24, 27, 41),
6 they attack and seek to “vacate[]” the 1998 convictions (id. at
7 42) rather than the denial of his section 1170.95 resentencing
8 petition. Indeed, he checked the box on the form petition
9 indicating that he was challenging “a conviction and/or
10 sentence.” (Id. at 2.)
11 The state court’s denial of Petitioner’s section 1170.95
12 resentencing petition between the denial of his last federal
13 habeas petition and the filing of this one does not alter the
14 result. The superior court denied the resentencing petition in
15 its entirety and did not disturb Petitioner’s original judgment.
16 (See Pet., Ex. A, ECF No. 1 at 55-57.) As such, no intervening
17 new judgment saves the Petition’s claims challenging the 1998
18 convictions from being impermissibly successive. Compare Cole v.
19 Sullivan, 480 F. Supp. 3d 1089, 1096-97 (C.D. Cal. 2020) (denial
20 of resentencing petition under section 1170.95 did not “open the
21 door for a petitioner to bring a new challenge to an old
22 conviction that already has been challenged”; distinguishing
23 Clayton), with Magwood, 561 U.S. at 323-24, 339 (petitioner’s
24 second-in-time federal habeas petition was not impermissibly
25
26 Clause. (Mot. File Pet., ECF No. 2 at 13-18.) But the “Supreme
Court upheld § 2244(b) as consistent with the Suspension Clause of
27 the United States Constitution in Felker v. Turpin, 518 U.S. 651,
664 (1996).” Brown v. Muniz, 889 F.3d 661, 668 n.3 (9th Cir.
28 2018).
8
1 successive when state court imposed new sentence after his first
2 federal habeas petition was granted); Wentzell, 674 F.3d at 1125
3 (petitioner’s second habeas petition was not impermissibly
4 successive when state court amended judgment of conviction after
5 his first federal habeas petition was denied). Under § 2244(b),
6 then, Petitioner was required to secure an order from the Ninth
7 Circuit authorizing these claims before he filed them. See
8 Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per
9 curiam). A review of the Ninth Circuit’s docket indicates that
10 he has not asked for or obtained any such order.
11 Petitioner spends a good portion of his motion for leave to
12 file the Petition analogizing to the law governing those seeking
13 to file successive challenges to federal convictions, who have
14 resort to a statutory “escape hatch” in circumstances allegedly
15 similar to his — that is, when the statutory law governing the
16 challenged conviction has been amended favorably. (See Mot. File
17 Pet., ECF No. 2 at 16-18.) But the U.S. Supreme Court recently
18 held that the escape hatch does not apply in such circumstances.
19 See Jones v. Hendrix, 143 S. Ct. 1857, 1864 (2023). Thus, this
20 argument does not help Petitioner.
21 For all these reasons, the Petition’s first two claims are
22 successive, have not been authorized by the Ninth Circuit, and
23 must be summarily dismissed. See Burton, 549 U.S. at 153.
24 B. The Petition’s claim challenging the state court’s
25 denial of the resentencing petition is not cognizable
26 on federal habeas review
27 Ground three alleges that the state court “misinterpreted
28 both the law and the facts” when denying Petitioner’s
9
1 resentencing petition.4 (Pet., ECF No. 1 at 43 (emphasis in
2 original).) Even if that denial resulted in an intervening
3 judgment and rendered the claim not successive, see Clayton, 868
4 F.3d at 843-44; Young, 2020 WL 8455474, at *2; but see Cole, 480
5 F. Supp. 3d at 1096-97, Petitioner could not gain relief because
6 “it is not the province of a federal habeas court to reexamine
7 state-court determinations on state-law questions.” Waddington
8 v. Sarausad, 555 U.S. 179, 192 n.5 (2009) (citing Estelle v.
9 McGuire, 502 U.S. 62, 67-68 (1991)). Federal courts have
10 routinely held that challenges to denials of section 1170.95
11 resentencing petitions “pertain solely to the state court’s
12 interpretation and application of state sentencing law and
13 therefore are not cognizable” on federal habeas review. Cole,
14 480 F. Supp. 3d at 1097; Allen v. Montgomery, No. 19-1530-VBF
15 (PLA), 2020 WL 1991426, at *13 (C.D. Cal. Jan. 7, 2020) (same),
16 accepted by 2020 WL 6321762 (C.D. Cal. Oct. 26, 2020), cert. of
17 appealability denied, No. 21-55080 (9th Cir. Apr. 28, 2022); see
18 also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam)
19 (“[A] state court’s interpretation of state law . . . binds a
20 federal court sitting in habeas corpus.”).
21
22 4 As noted above, Petitioner’s May 2023 habeas petition
remains pending before the supreme court. See Cal. App. Cts. Case
23 Info., https://appellatecases.courtinfo.ca.gov/ (search for
“Alfred” with “Shallowhorn”; then follow “S279952” hyperlink) (last
24 visited July 25, 2023). Thus, his claim might not yet be
exhausted. See § 2254(b). But Petitioner’s failure to exhaust
25
does not preclude the Court from adjudicating the claim because it
26 may dismiss an unexhausted claim if it finds on de novo review that
it is not even colorable. Cf. 28 U.S.C. § 2254(b)(2); Cassett v.
27 Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005) (court may deny
unexhausted claim on merits “when it is perfectly clear that the
28 applicant does not raise even a colorable federal claim”).
10
1 Petitioner alludes to his right to due process (see Pet.,
2 ECF No. 1 at 43, 50), but that does not transform his state-law
3 claim into a cognizable federal one. See Gray v. Netherland, 518
4 U.S. 152, 163 (1996) (explaining that petitioner may not convert
5 state-law claim into federal one by making general appeal to
6 constitutional guarantee); see also Cacoperdo v. Demosthenes, 37
7 F.3d 504, 507 (9th Cir. 1994) (habeas petitioner’s mere reference
8 to Due Process Clause was insufficient to render his claims
9 viable under 14th Amendment); Walker v. Cal. Sup. Ct., No. CV
10 22-4638-CAS(E), 2022 WL 11337927, at *2 (C.D. Cal. Sept. 13,
11 2022) (petitioner’s allegation that state court violated due
12 process in denying section 1170.95 resentencing petition was not
13 sufficient to transform state-law claim into cognizable federal
14 one), accepted by 2022 WL 11269388 (C.D. Cal. Oct. 13, 2022).
15 In Clayton, the Ninth Circuit suggested in dictum that a
16 petitioner challenging the denial of a resentencing petition
17 brought under a different state statute might have a protected
18 liberty interest in the state court’s alleged failure to hold a
19 hearing on his claim. See 868 F.3d at 846 n.2. But when a
20 petitioner is “not entitled to resentencing under state law,”
21 failure to grant the requested relief is not “arbitrary or
22 capricious” and does “not deprive him of due process.” Cole, 480
23 F. Supp. 3d at 1098; see also Torricellas v. Core, No.: 22-cv-
24 1670-MMA-KSC, 2023 WL 2544558, at *7 (S.D. Cal. Mar. 15, 2023)
25 (“Supreme Court has not yet specified what requirements, if any,
26 due process imposes upon state law resentencing proceedings,” and
27 that “would alone be sufficient grounds to deny the Petition
28 because there is no ‘clearly established’ federal law on which
11
1 petitioner can rely” (citing Wright v. Van Patten, 552 U.S. 120,
2 126 (2008) (per curiam))), accepted by 2023 WL 3990053 (S.D. Cal.
3 June 13, 2023), appeal filed, No. 23-55640 (9th Cir. July 21,
4 2023).
5 Here, Petitioner asserts that he was “denied . . . the
6 relief to which he was entitled: A full hearing under the
7 reasonable doubt standard on the issue of malice.” (Pet., ECF
8 No. 1 at 51-52.) But the state court found him categorically
9 “ineligib[le] for resentencing relief under section 1170.95”
10 (id., Ex. B at 62;5 see id., Ex. A at 55 (superior court holding
11 that “jury was not instructed on either the natural and probable
12 consequences doctrine” or “the felony murder doctrine,”
13 precluding relief under section 1170.95)), and this Court is
14 bound by that decision. Richey, 546 U.S. at 76; Cole, 480 F.
15 Supp. 3d at 1098. Thus, this claim is not even colorable because
16 it lacks “a viable federal question.” Cole, 480 F. Supp. 3d at
17 1098; see also Cassett, 406 F.3d at 623-24.
18 ORDER
19 IT THEREFORE IS ORDERED that the Petition is SUMMARILY
20 DISMISSED without prejudice to its refiling should Petitioner
21
22
5 The court of appeal decision attached to the Petition is
missing even-numbered pages. (See Pet., Ex. B., ECF No. 1.) In
23 those pages, the court noted that “section 1170.95 is aimed at
vacating murder convictions not based on a finding that the
24 defendant himself acted with malice” and found that each of the
three theories of murder presented to the jury in Petitioner’s case
25
“required a finding that [he] himself acted with malice.” See
26 People v. Shallowhorn, No. B311337, 2021 WL 4099075, at *3 (Cal.
Ct. App. Sept. 9, 2021). Indeed, Petitioner acknowledges as much.
27 (See Mot. File Pet., ECF No. 2 at 7 (conceding that “[a]ll three
theories” of guilt on which he was tried “required proof of intent
28 to kill on Petitioner’s part”).)
12
1 obtain the necessary permission from the Ninth Circuit, see R. 4,
Governing § 2254 Petitions in U.S. Dist. Cts. (“If it plainly
3]/}appears . . . that the petitioner is not entitled to relief in
district court, the judge must dismiss the petition.”); C.D.
R. 72-3.2 (authorizing Magistrate Judge to prepare order
6 || summarily dismissing habeas petition for District Judge’s
7 ||) signature), and the motion for leave to file it is DENIED.
Hara Wh, hi
DATED: August 4, 2023
GEORGE H. WU
10 U.S. DISTRICT JUDGE
ad Presented by:
12 Prcndlate~
Jean P. Rosenbluth
1A U.S. Magistrate Judge
LS
16
17
18

20
21
22
23
24

26
27
28
13

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9984013. Public record. Not legal advice.