Case 5:21-cv-00819-RGK-JDE Document 50 Filed 01/12/22 Page 1 of 5 Page ID #:498

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION

11 KENYON DARRELL BROWN, ) Case No. 5:21-cv-00819-RGK-JDE 12 ) ) 13 Petitioner, ) ORDER ACCEPTING FINDINGS )

AND RECOMMENDATION OF

14 v. ) ) UNITED STATES MAGISTRATE 15 KELLY SANTORO, Warden, ) JUDGE ) 16 ) Respondent. ) 17 ) ) 18 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the records and files 20 herein, including the Petition (Dkt. 1), Respondent’s Answer to the Petition 21 (Dkt. 21), Petitioner’s Reply (Dkt. 23), Petitioner’s Supplemental Reply (Dkt. 22 24), Petitioner’s September 23, 2021 Motion to Supplement (Dkt. 26), 23 Respondent’s Opposition to the Motion to Supplement (Dkt. 29), Petitioner’s 24 Reply to the Opposition (Dkt. 33), Petitioner’s December 1, 2021 Proposed 25 Supplement (Dkt. 38), the Report and Recommendation of the United States 26 Magistrate Judge (Dkt. 42, “Report”), Petitioner’s Objections to the Report 27 (Dkt. 47), and Petitioner’s Supplemental Objections (Dkt. 48). Having engaged 28 in a de novo review of those portions of the Report to which objections have Case 5:21-cv-00819-RGK-JDE Document 50 Filed 01/12/22 Page 2 of 5 Page ID #:499

1 been made, the Court concurs with and accepts the findings and 2 recommendation of the Magistrate Judge. 3 The Court also has considered Petitioner’s recent Motions to 4 Supplement (Dkt. 46, 49), both of which were filed after the Report was issued 5 and in violation of multiple Court orders (Dkt. 9, 15, 34, 36). In these motions, 6 Petitioner seeks to add the following grounds for relief: (1) the failure to 7 transcribe the hearing in the Mental Health Court on appeal violated his right 8 to a fair trial; (2) his sentence must be vacated in light of Assembly Bill 518; (3) 9 the California Department of Corrections and Rehabilitation (“CDCR”) has 10 violated his due process rights by failing to request the trial court to recall his 11 sentence under Cal. Penal Code § 1170(d); (4) his current sentence violates 12 Cal. Penal Code § 654 and his right to a fair trial; and (5) he should be eligible 13 for early parole consideration under Art. I, Section 32 of the California 14 Constitution. He also reasserts that he is entitled to the benefit of Assembly 15 Bills 124 and 1540 and should have been afforded mental health treatment. 16 As explained in the Report, the decision whether to grant leave to amend 17 “is within the discretion of the District Court” and may be denied where 18 amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962); Bonin 19 v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (“Futility of amendment can, by 20 itself, justify the denial of a motion for leave to amend.”). Proposed 21 amendments are futile when they are “either duplicative of existing claims or 22 patently frivolous.” Murray v. Schriro, 745 F.3d 984, 1015 (9th Cir. 2014) 23 (quoting Bonin, 59 F.3d at 846). Here, all of Petitioner’s proposed claims are 24 frivolous, and as such, allowing amendment of the Petition to add these new 25 claims would be futile. 26 As the Court has repeatedly explained in this action and others filed by 27 Petitioner, federal habeas relief is not available for errors of state law. See 28 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Petitioner’s 2 Case 5:21-cv-00819-RGK-JDE Document 50 Filed 01/12/22 Page 3 of 5 Page ID #:500

1 claims based on Cal. Penal Code § 654 and Assembly Bill 518, which amends 2 Section 654, solely involve the interpretation and/or application of state 3 sentencing laws and as such, are not cognizable on federal habeas review. 4 McGuire, 502 U.S. at 68; Smith v. Phillips, 455 U.S. 209, 221 (1982) (“A 5 federally issued writ of habeas corpus, of course, reaches only convictions 6 obtained in violation of some provision of the United States Constitution.”). 7 “Absent a showing of fundamental unfairness, a state court’s misapplication of 8 its own sentencing laws does not justify federal habeas relief.” Christian v. 9 Rhode, 41 F.3d 461, 469 (9th Cir. 1994). To state a cognizable federal habeas 10 claim based on an alleged state sentencing error, a petitioner must show that 11 the alleged error was “so arbitrary or capricious as to constitute an 12 independent due process or Eighth Amendment violation.” Richmond v. 13 Lewis, 506 U.S. 40, 50 (1992) (citation omitted). Petitioner has made no such 14 showing. As explained in the Report, Petitioner’s sentence was within the 15 limits authorized by state law and pursuant to a stipulated plea. He was not 16 punished twice for a single act in violation of Cal. Penal Code § 654; rather, he 17 was punished in accordance with Cal. Penal Code §§ 667 and 1170.12 as a 18 repeat offender. See People v. Murphy, 25 Cal. 4th 136, 154-56 (2001) (prior 19 conviction enhancements do not implicate Section 654). Petitioner’s state law 20 claims based on violations of Section 654 are frivolous. 21 Similarly, Petitioner’s claim that CDCR has failed to file a request to 22 recall his sentence under Cal. Penal Code § 1170(d) alleges, at most, a 23 violation of state law. Such claim is not cognizable under Section 2254. 24 Petitioner may not transform this state law issue into a federal claim by merely 25 asserting a violation of due process. See Langford v. Day, 110 F.3d 1380, 1389 26 (9th Cir. 1997) (as modified); Agee v. Jaime, 2020 WL 5892023, at *3 (C.D. 27 Cal. Oct. 5, 2020) (petitioner’s challenge to the denial of his request to recall 28 his sentence did not present a basis for federal habeas relief); Nichols v. 3 Case 5:21-cv-00819-RGK-JDE Document 50 Filed 01/12/22 Page 4 of 5 Page ID #:501

1 Pfeiffer, 2019 WL 4014429, at *7 (C.D. Cal. Aug. 26, 2019) (claim regarding 2 plaintiff’s request to have CDCR request to recall his sentence was not 3 cognizable on federal habeas review). 4 Petitioner’s claim that he is eligible for early parole consideration under 5 Article I, Section 32 of the California Constitution is equally unavailing. 6 Petitioner raised similar claims in Brown v. Cal. Dep’t of Corrections, et al., 7 Case No. 5:21-cv-00505-RGK-JDE (C.D. Cal.). That action was summarily 8 dismissed on April 15, 2021. As the Court explained in that action, Petitioner’s 9 claim that CDCR has failed to afford him the benefit of Proposition 57, which 10 added Article I, Section 32 to the California Constitution, is exclusively a 11 matter of state law and implicates no federal right. See Swarthout v. Cooke, 12 562 U.S. 216, 222 (2011) (per curiam) (“the responsibility for ensuring that the 13 constitutionally adequate procedures governing California’s parole system are 14 properly applied rests with California courts”); Greenholtz v. Inmates of Neb. 15 Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (“There is no constitutional or 16 inherent right of a convicted person to be conditionally released before the 17 expiration of a valid sentence.”). As in the prior action, this claim is not 18 cognizable on federal habeas review. See, e.g., Reed v. Covello, 2020 WL 19 1523578, at *1 (C.D. Cal. Feb. 26, 2020) (“the district courts in California 20 uniformly agree that prisoners’ claims of eligibility for accelerated parole 21 consideration under Proposition 57 fail to raise a cognizable federal issue”), 22 report and recommendation accepted by 2020 WL 1505721 (C.D. Cal. Mar. 23 27, 2020); Alford v. Doe, 2018 WL 1896533, at *1 (C.D. Cal. Apr. 18, 2018) 24 (concluding that claim based on Proposition 57 was not cognizable). 25 Petitioner’s proposed due process challenge to the failure to transcribe 26 the proceedings in the Mental Health Court on appeal also is frivolous. 27 Petitioner does not allege or provide any evidence showing he requested and 28 was denied a transcript of these proceeding on appeal. Nor has Petitioner made 4 ase 5:21-cv-00819-RGK-JDE Document 50 Filed 01/12/22 Page5of5 Page ID #:50

1 ||any showing of a need for the transcript by specifying how the transcript of 2 || those proceedings would have assisted him in obtaining mental health 3 ||treatment or assisted him on appeal. Again, Petitioner cites no specific 4 || evidence that the trial court failed to properly consider. Petitioner would not be 5 || entitled to habeas relief on this claim. See, e.g., Ready v. Kernan, 2020 WL 6 || 2478488, at *26-27 (C.D. Cal. Feb. 10, 2020) (rejecting claim relating to the 7 || failure to provide certain portions of petitioner’s trial transcript), report and 8 || recommendation accepted by 2020 WL 4042778 (C.D. Cal. July 17, 2020). 9 Finally, Petitioner’s remaining proposed claims were addressed in the 10 || Report, all of which are frivolous. Petitioner has not raised any new arguments 11 ||in connection with these claims or cited any specific evidence supporting his 12 ||contention he was entitled to mental health treatment. 13 IT IS THEREFORE ORDERED that: 14 1. The Report and Recommendation is approved and accepted; 15 2. Petitioner’s Motions to Supplement (Dkt. 26, 38, 46, and 49) are 16 DENIED; and 17 3. Judgment shall be entered denying the Petition and dismissing this 18 action with prejudice. 19 Due to Petitioner’s repeated violations of prior court orders by filing 20 || unauthorized documents, other than appeal-related filings or motions filed in 21 accordance with Fed. R. Civ. P. 59 and/or 60, no further filings by Petitioner 22 || will be accepted in this closed case. Dated: January 12, 2022 haccarn 24 R. GARY KLAUSNER 25 United States District Judge 26 27 28