Holmes v. Frauenheim

• Decision Date: 08 May 2015
• Docket Number: Case No. SACV 14-1591 GHK (SS)
• Court: U.S. District Court — Central District of California
• Parties: STANLEY EUGENE HOLMES, Petitioner, v. S. FRAUENHEIM, Warden, Respondent.

STANLEY EUGENE HOLMES, Petitioner, v. S. FRAUENHEIM, Warden, Respondent.

Case No. SACV 14-1591 GHK (SS)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

May 8, 2015

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable George H. King, Chief United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

I.INTRODUCTION

On September 25, 2014, Stanley Eugene Holmes ("Petitioner") filed a "Memorandum of Points and Authorities to Treat Petition as a Writ of Mandate" ("Petition"), which seeks to have Petitioner's criminal sentence modified pursuant to recentlyenacted state law.¹ (Dkt. No. 2). The Court liberally construed the pending Petition as a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, see Brown v. Vasquez, 952 F.2d 1164, 1166 n.7 (9th Cir. 1992) ("[F]ederal courts have a responsibility to construe liberally pro se prisoners' vaguely-framed pleadings as habeas petitions where the interests of justice demand[.]"), and required Respondent to answer the Petition. (Dkt. No. 4).

On February 4, 2015, Respondent filed an Answer to the Petition with an accompanying Memorandum of Points and Authorities ("Ans. Mem."), and also lodged ten documents. (Dkt. Nos. 15-16). Petitioner filed a Reply on February 27, 2015. (Dkt. No. 20). For the reasons discussed below, it is recommended that the Petition be DENIED and that this action be DISMISSED with prejudice.

II.PRIOR PROCEEDINGS

On March 1, 2000, an Orange County Superior Court jury found Petitioner guilty of one count of possession of a firearm by a felon in violation of California Penal Code ("P.C.")§ 12021(a)(1), and one count of evading a police officer while driving in willful or wanton disregard for safety in violation of California Vehicle Code § 2800.2. (Lodgment 2 at 16; Lodgment 3 at 1). The trial court also found it to be true that Petitioner had numerous prior convictions under California's Three Strikes Law, P.C. §§ 667(b)-(i) and 1170.12(a)-(d). (Lodgment 2 at 17-19). On April 21, 2000, the trial court sentenced Petitioner to two concurrent terms of twenty-five years to life in state prison. (Lodgment 2 at 21). Petitioner appealed his convictions and sentence to the California Court of Appeal, which affirmed the judgment on November 9, 2011. (Lodgment 3). The California Supreme Court denied direct review without comment on January 23, 2002. (Lodgment 4).

On December 5, 2002, Petitioner filed a habeas petition in Orange County Superior Court, which denied the petition on December 24, 2002.² On January 23, 2003, the California Court of Appeal denied an identical petition. Petitioner next filed a habeas petition in the California Supreme Court, which denied the petition without comment or citation to authority on October 15, 2003.

On October 23, 2003, Petitioner filed the Prior Petition in this Court. On June 17, 2005, the Court denied Petitioner's claims and dismissed the Prior Petition with prejudice. (Lodgment 5).

On April 9, 2013, in Orange County Superior Court, Petitioner filed an application for recall and resentencing pursuant to California's Three Strikes Reform Act of 2012 ("the Act"), which the trial court denied on April 11, 2013. (Dkt. No. 1 at 1; Lodgment 2 at 23).

On April 30, 2013, Petitioner, represented by the Orange County Public Defender, filed a petition to recall sentence and for a new sentencing hearing in Orange County Superior Court. (Dkt. No. 1 at 28; Lodgment 2 at 23). However, at a hearing on July 12, 2013, Petitioner's counsel moved to take the petition off calendar. (Lodgment 2 at 25). The Superior Court interpreted the motion as a request to withdraw the petition and thereafter ordered the petition withdrawn. (Id.).

On April 10, 2014, Petitioner, now proceeding pro se, filed an "Ex Parte Motion" in the California Court of Appeal, which the California Court of Appeal construed as a writ of mandate and denied on May 15, 2014. (Lodgments 6-7).

On June 5, 2014, Petitioner filed a Petition for Writ of Mandate in the California Supreme Court. (Lodgment 8). On July 29, 2014, the California Supreme Court transferred the action tothe Court of Appeal "for consideration in light of Hagan v. Superior Court," 57 Cal. 2d 767 (1962), and with instructions to deny the petition if it was "substantially identical to a prior petition." (Lodgment 9). On August 28, 2014, the Court of Appeal denied the Petition for Writ of Mandate. (Lodgment 10).

III.PETITIONER'S CLAIMS

Petitioner asserts that the trial court violated his right to due process by denying Petitioner "the right to be personally present at various hearing[s]" to consider his eligibility for a sentence reduction under the Act. (Petition at 2, 10, 23-29).³ Petitioner also contends the Act, as applied in his case, violates the Ex Post Facto Clause by retroactively eliminating Petitioner's "vested" right to resentencing and also runs afoul of the Double Jeopardy Clause.⁴ (Id. at 10, 20-22).

IV.STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011). Under AEDPA's deferential standard, a federal court may grant habeas relief only if the state court adjudication was contrary to or an unreasonable application of clearly established federal law, as determined by the Supreme Court, or was based upon an unreasonable determination of the facts. Id. at 100 (citing 28 U.S.C. § 2254(d)). "This is a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt[.]" Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011) (citations and internal quotation marks omitted).

"Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citations and internal quotation marks omitted); 28 U.S.C. § 2254(b-c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). "A petitioner satisfies the exhaustion requirement by 'fully and fairly presenting each claim to the highest state court.'" Greenway v. Schriro, 653 F.3d 790, 801(9th Cir. 2011) (citation omitted); Picard v. Connor, 404 U.S. 270, 275-76 (1971).

Here, although Petitioner filed a petition in the California Supreme Court raising due process and double jeopardy claims, the California Supreme Court did not rule on the petition but instead transferred it to the California Court of Appeal, stating "[i]n the event the Court of Appeal determines that this petition is substantially identical to a prior petition, the repetitious petition must be denied." (Lodgments 8-9). The California Court of Appeal subsequently denied the petition, (Lodgment 10), but Petitioner apparently did not seek further review in the California Supreme Court. (See Petition at 1; Ans. Mem. at 2-3). Therefore, the pending Petition is completely unexhausted. Roberts v. Arave, 847 F.2d 528, 529 (9th Cir. 1988); see also Rollins v. Superior Court of Los Angeles, 706 F. Supp. 2d 1008, 1011 (C.D. Cal. 2010) (claims raised in habeas corpus petitions to the California Supreme Court were "never 'fairly presented' for purposes of exhaustion" when the "California Supreme Court did not consider Petitioner's claims on the merits" but instead "transferred [the petitions] to the California Court of Appeal with instructions that they be dismissed if found to be repetitious").

Respondent, however, did not seek to dismiss the pending Petition as unexhausted, but instead stated that Petitioner "appears to have exhausted his state remedies by presenting his claim to the California Supreme Court in a petition forreview[,]" (Answer at 2), and argued that the Petition should be denied on the merits. (Ans. Mem. at 3-8). Thus, Respondent has expressly waived the exhaustion requirement, see 28 U.S.C. 2254(b)(3) ("A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement."); Mann v. Ryan, 774 F.3d 1203, 1212 n.2 (9th Cir. 2014) ("[T]he state expressly waived the exhaustion requirement [as to Mann's ineffective assistance of counsel claim] when, in its answer to Mann's amended habeas petition, it stated that Mann exhausted this claim" and it responded to the claim on the merits); Sharrieff v. Cathel, 574 F.3d 225, 230 (3d Cir. 2009) ("Here, by conceding exhaustion in its answer to Sharrieff's habeas petition, the State clearly, explicitly, and unambiguously waived the exhaustion requirement."),⁵ and the Court will review Petitioner's claims de novo. Cone v. Bell, 556 U.S. 449, 472 (2002); Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004); see also Berghuis v. Thompkins, 560 U.S. 370, 390 (2010) ("Courts can . . . deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review[.]").

V.DISCUSSION

"On November 6, 2012, the California electorate approved Proposition 36, otherwise known as the Three Strikes Reform Act of 2012. . . , which became effective the next day." Teal v. Superior Court, 60 Cal. 4th 595, 596 (2014); People v. Chubbuck, 231 Cal. App. 4th 737, 740 (2014). Among other things, the Act "created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified,...