1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 11

KENNETH EARL WATSON, NO. CV 24-9794-MRA (AGR)

12 Petitioner, ORDER TO SHOW CAUSE WHY 13 PETITION FOR WRIT OF HABEAS v. CORPUS SHOULD NOT BE 14 DISMISSED

L. LUNDY, Warden,

15 Respondent. 16

17

18 Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State 19 Custody (“Petition”) pursuant to 28 U.S.C. § 2254. For the reasons set forth 20 below, Petitioner must show cause in writing, on or before May 30, 2025, why the 21 22 court should not recommend dismissal of the Petition for Writ of Habeas Corpus 23 for failure to state a cognizable claim for relief. 24

25

26 27 28 1 I. 2

PROCEDURAL HISTORY

3 The following procedural history is taken from available state court records. 4 5 See Fed. R. Evid. 201; Porter v. Ollison, 620 F.3d 952, 955 n.1 (9th Cir. 2010) 6 (taking judicial notice of state court docket). 7 In 1991, a Los Angeles County Superior Court jury found Petitioner guilty of 8 first-degree felony murder, attempted second-degree robbery, and conspiracy to 9 10 commit robbery in Case No. BA015290. See People v. Watson, 2022 WL 11 1766181, *1 (Cal. App. June 1, 2022). The jury also found true the felony-murder 12 special circumstance alleged under former Cal. Penal Code § 190.2(a)(17). 13 Petitioner was sentenced to life in prison without parole under former Cal. Penal 14 15 Code § 190.2(a), plus a consecutive five-year term for the conspiracy count. Id. 16 The judgment was affirmed on direct appeal in Case No. B060665. Petitioner did 17 not file a petition for review. (See https://appellatecases.courtinfo.ca.gov.) 18 In April 2020, Petitioner filed a petition for resentencing under Cal. Penal 19 20 Code § 1170.95 (now § 1172.6). Watson, 2022 WL 1766181, *1. The Superior 21 Court appointed counsel and considered briefs from both sides. Following the 22 hearing, the court denied resentencing. Id. On June 1, 2022, the California Court 23 of Appeal affirmed. Id. Petitioner did not file a petition for review in the California 24 25 Supreme Court. 26 27 28 1 Petitioner filed a Petition for Writ of Habeas Corpus (“Petition”) in this court 2 on November 8, 2024. (Dkt. No. 1.)1 3

II.

4 5 DISCUSSION 6 The Petition does not enumerate any grounds for relief or contain any 7 arguments. (Petition at 5-7.) The Petition attaches a copy of a habeas petition 8 addressed to the Los Angeles County Superior Court dated October 23, 2024, 9 10 which requests resentencing under California Senate Bill 94. (Id. at 9-14.) The 11 Petition also includes copies of the text of several California Senate Bills and a 12 page of Petitioner’s medical records. (Id. at 15-26.) 13 Out of an abundance of caution, the court construes the Petition as 14 15 asserting two grounds for relief. In Ground One, Petitioner challenges the denial 16 of resentencing under § 1172.6. In Ground Two, Petitioner seeks resentencing 17 under Senate Bill 94. 18 A. State Law Overview 19 20 1. Resentencing Under Section 1172.6 21 Effective January 1, 2019, Senate Bill 1437 amended the felony murder rule 22 and the natural and probable consequences doctrine as it relates to murder “to 23 ensure that murder liability is not imposed on a person who is not the actual killer, 24 25 did not act with the intent to kill, or was not a major participant in the underlying 26 27 1 The court cites the page numbers assigned by CM/ECF in the header of 28 the document. 1 felony who acted with reckless indifference to human life.” People v. Lewis, 11 2 Cal. 5th 952, 959 (2021). 3 “Senate Bill 1437 does not eliminate direct aiding and abetting liability for 4 5 murder because a direct aider and abettor to murder must possess malice 6 aforethought.” People v. Gentile, 10 Cal. 5th 830, 848 (2020). Under California 7 law, murder is “the unlawful killing of a human being with malice aforethought.” 8 Cal. Penal Code § 187(a). Malice may be express or implied. Cal. Penal Code 9 10 § 188(a). Malice “is express when there is a manifest intent to kill (§ 188, subd. 11 (a)(1)); it is implied if someone kills with ‘no considerable provocation . . . or when 12 the circumstances attending the killing show an abandoned and malignant heart.’ 13 (§ 188, subd. (a)(2)).” Gentile, 10 Cal. 5th at 844. The intent to kill may be 14 15 “inferred from the defendant’s acts and the circumstances of the crime.” People 16 v. Smith, 37 Cal. 4th 733, 741 (2005). 17 On a petition for resentencing, the prosecution bears the burden of proving, 18 beyond a reasonable doubt, that the petitioner is guilty of murder under California 19 20 law as amended by Senate Bill 1437. Cal. Penal Code § 1172.6(d)(3). The court 21 considers the evidence admitted at trial that is admissible under current law, as 22 well as any new or additional evidence offered by either side. Id. 23 At the hearing on the petition for resentencing, the Superior Court stated 24 25 that it had reviewed the appellate opinion and the jury instructions, announced a 26 tentative ruling, and heard the argument from both parties. Watson, 2022 WL 27 1766181, *1. The court denied the petition, finding that the prosecutor met his 28 1 burden to prove beyond a reasonable doubt that Petitioner was guilty of murder 2 under existing law as an aider and abettor with the specific intent to kill. Id. On 3 appeal, the appointed counsel submitted a Wende2 brief and Petitioner did not 4 5 submit a supplemental brief despite being given the opportunity to do so. Id. at 2. 6 The California Court of Appeal affirmed the denial of resentencing, noting that it 7 had “independently examined the entire record” and was satisfied that no 8 arguable issues exist. Id. Petitioner did not file a petition for review before the 9 10 California Supreme Court. 11 2. Senate Bill 94 12 Petitioner incorporates a petition addressed to the Superior Court that seeks 13 relief under Senate Bill 94. (Petition at 9-14.)3 Petitioner contends that Senate 14 15 Bill 94 “took effect on January 18, 2023” and “enacted [Cal.] Penal Code section 16 1172.5,” which allows individuals sentenced to life without the possibility of parole 17 to petition the court for recall of sentence and resentencing under specified 18 circumstances. (Petition at 9.) 19 20 Senate Bill 94 was introduced on January 18, 2023, and sought to add 21 section 1172.5 to the California Penal Code to allow for a recall of life without the 22 possibility of parole sentences under certain enumerated conditions. (See 23 https://legiscan.com/CA/bill/SB94/2023.) The bill died in the committee and was 24 25 26 2 People v. Wende, 25 Cal. 3d 436 (1979). 27 3 The publicly available docket for Superior Court Case No. BA015290 does 28 not reflect that this petition was ever lodged or filed with the court. 1 thus never enacted into law. Accordingly, Cal. Penal Code section 1172.5 does 2 not exist. (See https://legiscan.com/gaits/citation/760633.) 3 B. Exhaustion 4 5 Federal habeas relief is generally not available unless the petitioner has first 6 exhausted his state remedies. See Rose v. Lundy, 455 U.S. 509, 518-22 (1982). 7 A habeas petition brought by a person in state custody cannot be granted “unless 8 it appears that – (A) the applicant has exhausted the remedies available in the 9 10 courts of the State; or (B)(i) there is an absence of available State corrective 11 process; or (ii) circumstances exist that render such process ineffective to protect 12 the rights of the applicant.” 28 U.S.C. § 2254(b)(1). 13 To exhaust state remedies, a petitioner must fairly present his contentions 14 15 to the California Supreme Court. See O’Sullivan v. Boerckel, 526 U.S. 838, 842, 16 844-45 (1999). 17 The Petition does not state that Petitioner has ever presented his grounds 18 for relief before the California Supreme Court. (See Petition at 5-7.) According to 19 20 the California Appellate Courts Case database, only two matters associated with 21 a name matching Petitioner’s have been filed in California Supreme Court. Both 22 preceded the filing of the petition for resentencing under § 1172.6 and the petition 23 seeking relief under SB 94. (See https://appellatecases.courtinfo.ca.gov.)4 Thus, 24 25 the Petition appears to be wholly unexhausted. 26 4 According to the California Appellate Case database, a petitioner named 27 Kenneth Watson unsuccessfully sought habeas relief in the California Supreme Court in 1996 (Case No. S051970). A different Kenneth E. Watson 28 unsuccessfully sought habeas relief in 2019 in Case No. S257848. (Id.) 1 C. Cognizability 2 Federal habeas corpus relief is available only when a petitioner has been 3 convicted or sentenced in violation of the Constitution, laws or treaties of the 4 5 United States. 28 U.S.C. § 2254(a). Relief is not available for errors in the 6 interpretation or application of state law. See Swarthout v. Cooke, 562 U.S. 216, 7 219 (2011); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 8 Both potential bases for relief discernable from the Petition concern the 9 10 application of state sentencing laws. 11 Whether a petitioner is eligible for or entitled to resentencing under Cal. 12 Penal Code § 1172.6 (formerly § 1170.95) is an issue of state law and does not 13 give rise to a claim cognizable on federal habeas review. See Bowen v. Samuels, 14 15 2024 U.S. Dist. LEXIS 53056, *2-*3 (N.D. Cal. Mar. 25, 2024) (“Whether 16 [petitioner] is entitled to resentencing under § 1170.95 is a question of state law 17 and is not cognizable on federal habeas review.”); Walker v. Cal. Sup. Ct., 2022 18 U.S. Dist. LEXIS 191025, *4-*5 (C.D. Cal. Sept. 13, 2022) (same); Mays v. 19 20 Montgomery, 2021 WL 2229082, at *3 (C.D. Cal. Apr. 22, 2021) (collecting 21 cases), accepted by 2021 WL 2223276 (C.D. Cal. June 1, 2021); Cole v. Sullivan, 22 480 F. Supp. 3d 1089, 1097 (C.D. Cal. 2020) (collecting cases). 23 The California Court of Appeal agreed with the Superior Court’s 24 25 determination that Petitioner was not eligible for resentencing because the 26 prosecution proved beyond a reasonable doubt that he was guilty of murder 27 under existing law as an aider and abettor with the specific intent to kill. Federal 28 1 habeas review does not permit this court to second-guess a state court’s 2 determination regarding Petitioner’s eligibility for resentencing. See, e.g., Walker 3 v. Cal. Supreme Ct., No. CV 22-4638-CAS-E, 2022 WL 11337927, *2 (C.D. Cal. 4 5 Sept. 13, 2022) (collecting cases), recommendation accepted by 2022 WL 6 11269388 (C.D. Cal. Oct. 13, 2022); see also Mays v. Cates, 2023 U.S. App. 7 LEXIS 12383, *1-*2 (9th Cir. May 19, 2023) (denying certificate of appealability for 8 § 1172.6 claim as not cognizable on federal habeas review); Prado v. Williams, 9 10 2025 U.S. Dist. LEXIS 50717, *4-*5 (E.D. Cal. Mar. 19, 2025), accepted by, 2025 11 U.S. Dist. LEXIS 82362, *1-*2 (E.D. Cal. Apr. 30, 2025) (dismissing § 1172.6 12 ground for relief for failure to state cognizable habeas claim). 13 Petitioner does not invoke any federal basis for relief. “Absent a showing of 14 15 fundamental unfairness, a state court’s misapplication of its own sentencing laws 16 does not justify federal habeas relief.” Christian v. Rhode, 41 F.3d 461, 469 (9th 17 Cir. 1994); Sturm v. California Adult Authority, 395 F.2d 446, 448 (9th Cir. 1967) 18 (“state court’s interpretation of its [sentencing] statute does not raise a federal 19 20 question”). Petitioner does not allege that any fundamental unfairness occurred 21 based on the state court’s exercise of discretion regarding, or application of, state 22 sentencing laws. 23 With respect to SB 94, there cannot be a potentially cognizable claim based 24 25 on a bill that was never enacted. See United States v. Valero-Torres, Nos. CV 26 11-0712-TUC-DCB, CR 11-2364-TUC-DCB, 2012 WL 12882713, *1 (D. Ariz. 27 28 1 | January 20, 2012) (when movant seeks relief under bill that was never enacted, the “motion has no arguable basis in fact or in law’). 3 ll. 4 5 ORDER 6 Therefore, the court orders Petitioner to show cause in writing, on or before y May 30, 2025, why the court should not recommend dismissal of the Petition for 8 9 Writ of Habeas Corpus for failure to state a cognizable claim. If Petitioner does

10 | Not respond to this Order to Show Cause, the court will recommend that the 11 | District Court dismiss the Petition with prejudice. 12 13 □□ 4 ler h Keung, DATED: May 1, 2025 ' 15 ALICIA G. ROSENBERG 16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28