“Here, Andrade retains the 14 possibility of parole [after 50 years].”
How later courts described this case
- “Here, Andrade retains the 14 possibility of parole [after 50 years].”
- rejecting Eighth 4 Amendment challenge to sentence of 40 years for possession and distribution of nine 5 ounces of marijuana
- holding that a plaintiff was not denied due process by not 25 having an opportunity to file an opposition to a motion to dismiss when he later 26 presented his arguments in a Rule 59(e) motion
- rejecting Eighth Amendment challenge to sentence of life 2 without parole for possession of 650 grams of cocaine, despite defendant’s lack of 3 prior felony convictions
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 LORENZO SMITH, Case No. 2:22-cv-08866-DMG-PD
12 Petitioner,
ORDER ACCEPTING REPORT
13 v.
AND ADOPTING FINDINGS,
14 CONCLUSIONS, AND
RECOMMENDATIONS OF
15 L.A. MARTINEZ, Warden,
UNITED STATES
16 Respondent. MAGISTRATE JUDGE AND
DENYING CERTIFICATE OF
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APPEALABILITY
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20 Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records
21 on file, the Report and Recommendation of the United States Magistrate Judge [Doc.
22 # 17 (“Report”)], and Petitioner’s Objections to that Report [Doc. # 18
23 (“Objections”)]. The Court has engaged in a de novo review of those portions of the
24 Report to which Petitioner has objected.
25 The Report recommends dismissal of the Petition and this action after finding
26 that Petitioner is not entitled to federal habeas relief for his challenge to a parole
27 board’s ineligibility finding and to the length of his sentence. For the following
28 reasons, Petitioner’s Objections do not warrant a change to the Magistrate Judge’s
1 findings or recommendation.
2 Petitioner objects that he did not have an opportunity to file an Opposition to
3 Respondent’s Motion to Dismiss the Petition. Objections at 2–3. He alleges that he
4 constructively filed a request for an extension of time to file an Opposition on June
5 1, 2023 and submits a prison mail entry showing that he mailed something to the
6 Court and Respondent on that date. Objections at 2–3, 9. The Court never, however,
7 received any request from Petitioner for an extension of time. Petitioner’s deadline
8 to file an Opposition was March 11, 2023. He did not request an extension of time
9 before that deadline, as required by the Court’s Case Management order. [Doc. # 4
10 at 4.] Yet the Magistrate Judge sua sponte granted Petitioner an extension of time
11 until June 5, 2023. [Doc. # 14.] And after the Magistrate Judge issued the Report,
12 Petitioner filed Objections. [Doc. # 18.]
13 Given these circumstances, Petitioner had an adequate opportunity to respond
14 to the Motion to Dismiss. A litigant ordinarily is afforded an opportunity
15 “meaningfully to respond by opposing the motion to dismiss on legal grounds or by
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clarifying his factual allegations so as to conform with the requirements of a valid
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legal cause of action.” Nietzke v. Williams, 490 U.S. 319, 329–30 (1989). This
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opportunity “crystallizes the pertinent issues and facilitates appellate review of a trial
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court dismissal by creating a more complete record of the case.” Id. at 330. Here,
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although Petitioner did not file an Opposition, he did substantively respond to the
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pertinent issues raised by the Motion to Dismiss in his Objections to the Report.
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Because Petitioner had an opportunity to present his substantive arguments, he was
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not prejudiced by not filing an Opposition. See Thomassen v. United States, 835 F.2d
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727, 730 (9th Cir. 1987) (holding that a plaintiff was not denied due process by not
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having an opportunity to file an opposition to a motion to dismiss when he later
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presented his arguments in a Rule 59(e) motion). Petitioner does not specify what
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additional arguments he was prevented from raising but merely contends that the
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1 at 3. But Petitioner’s allegation of losing an opportunity to file an Opposition is, at
2 most, reliance on a “procedural error” that “did not affect [his] substantial rights.”
3 Thomassen, 835 F.2d at 730–31.
4 Petitioner’s Objections next raise multiple arguments for why his sentence of
5 38 years to life violates the Eighth Amendment. Objections at 4–7. As the Report
6 found, these arguments are time-barred because Petitioner’s conviction became final
7 in 1986. Report at 8 n.4. In any event, Petitioner’s challenges to the length of his
8 sentence are meritless for the following reasons.
9 Petitioner objects that his sentence of 38 years to life in state prison is a “de
10 facto [life without the possibility of parole] sentence” that violates the Eighth
11 Amendment. Objections at 4, 6. To the contrary, Petitioner remains eligible for
12 periodic parole review. This is a significant factor under the Eighth Amendment.
13 See Lockyer v. Andrade, 538 U.S. 63, 74 (2003) (“Here, Andrade retains the
14 possibility of parole [after 50 years].”).
15 Petitioner objects that his sentence is excessive because he was a “youthful
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offender” when he committed his offenses. Objections at 5. To the contrary, he was
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21 years old when he committed his offenses. Report at 9. The Supreme Court’s
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Eighth Amendment jurisprudence for juvenile offenders draws a bright line at age
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18. See Roper v. Simmons, 543 U.S. 551, 574 (2005) (“The age of 18 is the point
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where society draws the line for many purposes between childhood and adulthood.”);
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see also United States v. Mitchell, 502 F.3d 931, 981 (9th Cir. 2007) (recognizing
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that the Supreme Court “drew this line well aware of the ‘objections always raised
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against categorical rules[.]’”) (quoting Simmons, 543 U.S. at 574).
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Petitioner objects that “38 years of incarceration for a nonhomicidal offense is
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extremely harsh,” even though he admittedly committed a “kidnap for robbery.”
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Objections at 5. To the contrary, Petitioner’s incarceration of 38 years for a kidnap
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for robbery, which also included several incidents of violent sexual assault, is far
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1 501 U.S. 957, 996 (1991) (rejecting Eighth Amendment challenge to sentence of life
2 without parole for possession of 650 grams of cocaine, despite defendant’s lack of
3 prior felony convictions); Hutto v. Davis, 454 U.S. 370, 374 (1982) (rejecting Eighth
4 Amendment challenge to sentence of 40 years for possession and distribution of nine
5 ounces of marijuana).
6 Petitioner objects that his sentence violates the Eighth Amendment under a
7 “gross disproportionality” analysis under Solem v. Helm, 463 U.S. 277, 290–91
8 (1983). Objections at 6. To the contrary, Petitioner’s sentence failed to raise an
9 inference of gross disproportionality. His crimes, including kidnapping and several
10 incidents of sexual assault, involved extreme violence. See Solem, 463 U.S. at 292–
11 93 (“[A]s the criminal laws make clear, nonviolent crimes are less serious than crimes
12 marked by violence or the threat of violence.”).
13 Petitioner objects that he is no longer a threat to public safety. Objections at
14 7. As the Report found, however, this determination is the province of the parole
15 board, not a federal court. Report at 6.
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The Court accepts the Report and adopts it as its own findings and conclusions.
17 Accordingly, the Petition is DISMISSED WITH PREJUDICE.1 The motion to
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dismiss [Doc. # 10] is GRANTED.
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28 1 Because a copy of this Order will be sent to Petitioner, his request for an update regarding
1 Further, for the reasons stated in the Report and Recommendation, the Court
2 || finds that Petitioner has not made a substantial showing of the denial of a
3 | constitutional right and, therefore, a certificate of appealability is denied.
4 ll See 28 U.S.C. § 2253(c)(2): Fed. R. App. P. 22(b): Miller-El v. Cockrell, 537 US.
5 | 322, 336 (2003).
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DATED: September 29, 2023.
Kelly In. Aha
10 DOLLY MAFEE □
UNITED S{YATES DISTRICT JUDGE
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