1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEPHEN RUSSELL FEGAN, No. 1:23-cv-01520-KES-SKO (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS, GRANTING

13 RESPONDENT’S MOTION TO DISMISS,

DENYING MOTION FOR WRIT OF NE

14 v. EXEAT, DISMISSING PETITION FOR WRIT

OF HABEAS CORPUS, DECLINING TO

15 ISSUE CERTIFICATE OF APPEALABILITY,

AND DIRECTING CLERK OF COURT TO

16 ENTER JUDGMENT AND CLOSE CASE

GISELLE MATTERSON,

17 (Docs. 29, 42) Respondent. 18

19 Petitioner Stephen Russell Fegan is a state prisoner proceeding pro se and in forma 20 pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was 21 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 22 302. 23 On May 6, 2024, the assigned magistrate judge issued findings and recommendations to 24 grant respondent’s motion to dismiss the petition for failure to state a claim. Doc. 42. Those 25 findings and recommendations were served upon all parties and contained notice that any 26 objections thereto were to be filed within thirty (30) days after service. On May 13, 2024, 27 petitioner sought an interlocutory appeal in the Ninth Circuit. Doc. 43. The appeal was 28 1 dismissed on June 11, 2024, on petitioner’s motion for voluntary dismissal. Doc. 50. In the 2 meantime, on June 5, 2024, petitioner timely filed objections to the findings and 3 recommendations. Doc. 48. 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1), the court has conducted a de 5 novo review of the case. Having carefully reviewed the file, including petitioner’s objections, the 6 court concludes that the magistrate judge’s findings and recommendations are supported by the 7 record and proper analysis. As the findings and recommendations explained, a habeas petitioner 8 may not “transform a state-law issue into a federal one merely by asserting a violation of due 9 process.” Doc. 42 at 3 (quoting Langford v. Day, 110 F.3d, 1380 (9th Cir. 1996)). 10 Each of petitioner’s four grounds for relief center on the state habeas court’s application 11 of a state resentencing law, California Penal Code § 1170.95. See Doc. 23 at 4–5. Each ground 12 for relief is considered in turn. 13 In Ground One, petitioner challenged the trial court’s entry of a summary denial order 14 without first appointing counsel, issuing an order to show cause, and holding an evidentiary 15 hearing, as petitioner contends is required by § 1170.95. Id. at 28–31. For this claim, petitioner 16 asserts that “[t]he implication of federal due process and equal protection under the United States 17 Constitutional amendments seems rather apparent.” Id. at 31. He provides no authority or 18 analysis to support that contention. This is insufficient to state a federal claim. See Johnson v. 19 Davis, No. CV 14-3056-JVS, 2014 WL 2586883, at *5 (C.D. Cal. 2014) (“Petitioner’s attempt to 20 transform his claim of an alleged misapplication of [a state law] into a claim of a violation of his 21 federal constitutional rights, by conclusory references to ‘due process’ and ‘equal protection,’ is 22 unavailing.”). 23 In Ground Two, petitioner challenges the trial court’s summary denial of his resentencing 24 petition for two other distinct reasons. First, he contends that the trial court denied resentencing 25 despite the fact that the prosecution at his original trial advanced alternate theories – first-degree 26 murder and felony murder – and therefore, he contends, did not have to prove every element of 27 each charge beyond a reasonable doubt. Doc. 23 at 35–36. Petitioner argues that this violated his 28 constitutional rights as articulated in Jackson v. Virginia, 443 U.S. 307 (1979). Doc. 23 at 32–36. 1 In Jackson, the Supreme Court held that “a federal court must entertain a claim by a prisoner that 2 . . . the evidence in support of his state conviction cannot be fairly characterized as sufficient to 3 have led a rational trier of fact to find [him] guilty beyond a reasonable doubt. . . .” 443 U.S. at 4 320–21. 5 A brief consideration of § 1170.95 and the state courts’ findings is necessary to address 6 petitioner’s contentions. The state resentencing law at issue

7 amends the [California] felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that 8 murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant 9 in the underlying felony who acted with reckless indifference to human life. It amends section 188, which defines malice, and section 10 189, which defines the degrees of murder to address felony-murder liability, and it adds section 1170.95, which provides a procedure by 11 which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained 12 convictions. 13 People v. Fegan, F081054, 2021 WL 3360125, at *3 (Cal. Ct. App. Aug. 3, 2021). 14 In the state trial and appellate court, whose decisions petitioner challenges here, petitioner 15 made the same state law argument that he raises now: He argued that “the [trial] court erred by 16 summarily denying the petitions . . . because he was prosecuted under theories of felony murder 17 and premeditated murder and the verdicts did not specify the theory of conviction.” Id. at *4. 18 The state appellate court – after explaining that petitioner was found guilty of two counts of first 19 degree murder and “was not convicted under a felony-murder theory” – answered this argument: 20 “We disagree with defendant’s contentions. Here, the record established defendant was the actual 21 killer, and the jury’s true findings on the felony-murder special-circumstance enhancements 22 rendered defendant ineligible for relief [under § 1170.95] as a matter of law.” Id. at *1, *4. 23 This court must defer to the state court’s factual findings, see 28 U.S.C. § 2254(e)(1), and 24 interpretations of state law, Bradshaw v. Richey, 564 U.S. 74, 76 (2005). As such, the state 25 court’s determination that petitioner “was not convicted under a felony-murder theory” is owed 26 deference, and petitioner’s argument thus has no merit.1 Considering this, the magistrate judge 27 1 Had all the elements of first degree murder not been proven beyond a reasonable doubt, as 28 petitioner contends, his Jackson argument might have merit. But it is based on an unfounded 1 properly recommended denying this part of the claim in Ground Two. 2 For the second distinct claim in Ground Two, petitioner argues that the trial court’s failure 3 to appoint counsel for his resentencing pursuant to California Penal Code § 1170.95(b)(3) is an 4 arbitrary deprivation of a state law right which amounts to a denial of due process. See Doc. 23 at 5 35. Petitioner relies primarily on Hicks v. Oklahoma, 447 U.S. 343 (1980), to make this point. 6 See id. 7 In Hicks, the defendant was sentenced to a mandatory sentence of 40 years under an 8 Oklahoma law that had been found unconstitutional under the Oklahoma Constitution prior to his 9 sentencing. Id. at 345. The Oklahoma Supreme Court upheld the conviction under the 10 unconstitutional sentencing law because “the jury might have [exercised their discretion to] 11 impose[] a sentence equally as harsh as that mandated by” the unconstitutional sentencing law. 12 Id. at 346. The Hicks Court held that the state courts’ application of an unconstitutional 13 sentencing law based only on the “frail conjecture” that the result might have been harmless was 14 not only the “denial of a procedural right of exclusively state concern,” but also an “arbitrary 15 deprivation” of a liberty interest “that the Fourteenth Amendment [Due Process Clause] 16 preserves.” Id. 17 Petitioner’s case is quite different from Hicks. In Hicks, the Court was primarily 18 concerned with the fact that the state courts had applied an unconstitutional law and then found 19 that the error was harmless because the result “might” (but probably would not) have been the 20 same. 440 U.S. at 346–47. Here, there is no contention that the sentencing laws applied to 21 petitioner were unconstitutional then or now. And while the state appellate court did find that the 22 trial court may have erred in denying petitioner’s second petition as successive to a prior petition 23 and described that error as “harmless” (as in Hicks), see Fegan, 2021 WL 3360125, at *5, the 24 error was truly harmless. As the state appellate court explained, petitioner was categorically 25 ineligible for resentencing under § 1170.95 based on the jury’s felony-murder special- 26

27 premise that he was prosecuted under alternate theories of first degree murder and felony-murder and that the verdict did not specify which was used to support the verdict. Fegan, 2021 WL 28 3360125, at *1. 1 circumstance findings at his original trial. Id. His claim thus would have been denied by the trial 2 court even if evaluated on the merits. This is not the same sort of “frail conjecture” identified in 3 Hicks, but rather, an application of state law to which this court must show deference. See 4 Langford, 110 F.3d at 1388–89. 5 In Ground Three, petitioner argues that the trial court erred in denying his state petition as 6 successive to a prior petition, and in Ground Four, petitioner argues that the resentencing order 7 should have been resolved by the original sentencing judge. Doc. 23 at 37–43. Both claims 8 involve only the application of state law, and petitioner cites no authority to suggest that these 9 claims implicate his federal constitutional rights. See id. 10 In sum, the magistrate judge was correct that the second amended petition sought to 11 “transform a state-law issue into a federal one merely by asserting a violation of due process” in 12 each of the four claims raised. Doc. 42 at 3 (quoting Langford, 110 F.3d at 1389). 13 Next, the court notes that on June 27, 2024, petitioner filed a motion entitled “Motion for 14 Granting a Writ of Ne Exeat under 28 U.S.C. 1651, Sec. 376.” It appears petitioner is requesting 15 a writ of ne exeat within the court’s general power to “issue all writs necessary or appropriate.” 16 28 U.S.C. § 1651(a). A writ of ne exeat is neither necessary nor appropriate in this case. “Ne 17 exeat” is defined as a Latin phrase for a court order that forbids a person involved in a legal 18 matter to leave the country or state where the court has jurisdiction. Ne Exeat, Black’s Law 19 Dictionary (12th ed. 2024); see also Gonzales v. Gutierrez, 311 F.3d 942, 947 n.8 (9th Cir. 2002). 20 In family law, it is an equitable writ restraining a person from leaving, or from removing a child 21 or property from the jurisdiction. Id. There is no basis in this habeas proceeding for petitioner’s 22 motion for a writ of ne exeat, and his motion is therefore denied. 23 In addition, the court declines to issue a certificate of appealability. A state prisoner 24 seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s denial of 25 his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 26 U.S. 322, 335–336 (2003). The controlling statute in determining whether to issue a certificate of 27 appealability is 28 U.S.C. § 2253, which provides as follows:

28 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a 1 district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 2 (b) There shall be no right of appeal from a final order in a proceeding to test 3 the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test 4 the validity of such person's detention pending removal proceedings.

5 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— 6 (A) the final order in a habeas corpus proceeding in which the 7 detention complained of arises out of process issued by a State court; or 8 (B) the final order in a proceeding under section 2255. 9 (2) A certificate of appealability may issue under paragraph (1) only if the 10 applicant has made a substantial showing of the denial of a constitutional right. 11 (3) The certificate of appealability under paragraph (1) shall indicate which 12 specific issue or issues satisfy the showing required by paragraph (2). 13 If a court denies a petitioner’s petition, the court may issue a certificate of appealability 14 only when a petitioner makes a substantial showing of the denial of a constitutional right. 28 15 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that 16 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have 17 been resolved in a different manner or that the issues presented were ‘adequate to deserve 18 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 19 Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 20 In the present case, the court finds that petitioner has not made the required substantial 21 showing of the denial of a constitutional right to justify the issuance of a certificate of 22 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 23 entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to 24 proceed further. Thus, the court declines to issue a certificate of appealability. 25 Accordingly, 26 1. The findings and recommendations issued on May 6, 2024, Doc. 42, are 27 ADOPTED IN FULL; 28 2. Respondent’s motion to dismiss, Doc. 29, is GRANTED; 1 3. Petitioner’s motion for a writ of ne exeat, Doc. 51, is DENIED; 2 4. The second amended petition for writ of habeas corpus, Doc. 23, is DISMISSED; 3 5. The Clerk of Court is directed to enter judgment and close the case; and 4 6. The court declines to issue a certificate of appealability. 5 6 7 | ITISSO ORDERED. _ 8 Dated: _ September 30, 2024 4h 9 UNITED STATES DISTRICT JUDGE

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