1 2 3

JS-6

4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 Case No. CV 23-772 MWF (MRW) 13 GERALD LEE MILLER, JR.,

ORDER DISMISSING ACTION

14 Petitioner, 15 v. 16 KATHLEEN ALLISON CDCR SECRETARY, et al., 17 Respondents. 18 19 20 The Court dismisses this habeas corpus action without leave to 21 amend for failure to state a cognizable claim. 22 * * * 23 Background 24 1. This is a habeas action involving a state prisoner under 25 28 U.S.C. § 2254. (Docket # 1.) Petitioner is currently serving a forty-year 26 term in state prison based on his 1998 conviction for attempted murder and 27 other charges. (Docket # 18 at 3.) A small portion of Petitioner’s state 28 1 criminal sentence consists of enhancements for prior prison terms he 2 served. 3 2. California Senate Bill 483 (effective January 2022) invalidated 4 most prior prison term enhancements under state law. SB 483 also 5 established a timeline for state courts to resentence eligible prisoners. The 6 Attorney General acknowledges that Petitioner is eligible for resentencing 7 under SB 483 by the end of 2023, although that resentencing may not lead 8 to a shorter term in custody.1 (Docket # 18 at 3.) Petitioner’s resentencing 9 application is currently in process.2 10 3. In the interim, he filed various habeas petitions in the state 11 court to expedite his SB 483 resentencing. Those petitions were generally 12 denied as premature in light of the ongoing resentencing proceedings, and 13 for failing to state a claim for habeas relief. (Docket # 1 at 19, 21.) 14 4. This federal action followed. The original petition asserted a 15 variety of unclear claims for consideration. After Magistrate Judge Wilner 16 screened the original petition, Petitioner filed a supplemental statement. 17 (Docket # 10, 15.) In that statement, Petitioner clarified his claim to argue 18 that the rejection of his state court habeas actions regarding the SB 483 19 resentencing process violated the Suspension Clause of the U.S. 20 Constitution and the due process provisions of the Fourteenth Amendment. 21 (Docket # 1 at 12-13; Docket # 15 at 3.) 22 1 The statute states that any resentencing “shall result in a lesser sentence than the one originally imposed as a result of the elimination of the 23 repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.” Cal. Penal C. 24 § 1172.75(d)(1). The Attorney General contends that the nature of Petitioner’s underlying offenses raise considerable public safety concerns that weigh against a 25 sentence reduction. (Docket # 23 at 7.) 26 2 According to the Attorney General’s filings, that hearing was supposed to occur in June or July 2023. (Docket # 18 at 4; # 23 at 3 n.1.) The 27 assigned magistrate judge reviewed the Superior Court online docket; the hearing now appears to be scheduled for September 2023. (lacourt.org/ 28 criminalcasesummary for case no. TA037989 (accessed July 24, 2023).) 1 5. Judge Wilner solicited a response from the Attorney General. 2 (Docket # 17.) The Attorney General moved to dismiss the petition. 3 (Docket # 18.) The Attorney General contends that Petitioner’s state law 4 claim does not present a federal issue upon which relief may be granted. 5 (Id. at 5.) The matter is now fully briefed. (Docket # 21 (opposition); # 23 6 (reply).) 7 Relevant Law 8 6. To obtain habeas relief, a state prisoner must properly allege 9 that s/he is in custody pursuant to a state court judgment adjudicated on 10 the merits that “resulted in a decision that was contrary to, or involved an 11 unreasonable application of, clearly established Federal law, as determined 12 by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). 13 Habeas corpus relief is reserved for claims in which a prisoner contends 14 that a federal constitutional error affects “the validity of the prisoner’s 15 continued incarceration.” Ramirez v. Galaza, 334 F. 3d 850, 856 (9th Cir. 16 2003). 17 7. A state prisoner must fairly present a federal constitutional 18 claim for habeas consideration. Rose v. Lundy, 455 U.S. 509 (1982). A 19 prisoner cannot “transform a state-law issue into a federal one merely by 20 asserting a violation of due process.” Langford v. Day, 110 F.3d 1380, 1389 21 (9th Cir. 1996). 22 * * * 23 8. The Suspension Clause of the U.S. Constitution provides that 24 the “privilege of a Writ of Habeas Corpus shall not be suspended.” U.S. 25 Const., art. I, § 9, cl. 2. However, the Suspension Clause “is not restrictive 26 of state, but only of national action.” Gasquet v. Lapeyre, 242 U.S. 367, 27 369 (1917); Woodruff v. Chappell, No. CV 13-5064 SVW, 2014 WL 202601 28 1 at *1 (C.D. Cal. 2014) (“any obligations arising out of the Suspension 2 Clause fall on Congress and the federal courts, not on the courts of the 3 State of California.”) As such, “the refusal by state authorities to entertain 4 a petition for a writ of habeas corpus [ ] does not raise a federal question.” 5 Geach v. Olsen, 211 F.2d 682, 684 (7th Cir. 1954) (emphasis added); Shove 6 v. Chappelle, No. CV 13-1475 R, 2013 WL 942115 at *3 (C.D. Cal. 2013) 7 (same); Catlin v. Davis, 2019 WL 6885017 at *276 (E.D. Cal. 2019) (same). 8 Analysis 9 9. Petitioner has not stated a cognizable federal habeas claim. 10 Petitioner’s action in this Court is premised on his belief that the state 11 courts violated the Suspension Clause by refusing to grant habeas relief to 12 expedite his resentencing. (Docket # 15 at 3.) 13 10. However, because the Suspension Clause does not apply to the 14 states, the state courts’ handling of Petitioner’s state habeas petitions 15 cannot raise a cognizable claim for habeas relief. Gasquet, 242 U.S. at 369; 16 Woodruff, 2014 WL 202601 at *1; Shove, 2013 WL 942115 at *3. It also 17 means that Petitioner is not in custody in violation of a clearly established 18 statement of federal law that the state courts unreasonably applied; 19 There is none. 28 U.S.C. § 2254(d). 20 * * * 21 11. Moreover, as the Attorney General notes, Petitioner’s claim 22 that the state courts’ treatment of his habeas claims somehow violated his 23 due process interests is patently frivolous. 24 12. Petitioner may well have some form of liberty interest in the 25 resentencing procedure as enacted under state law. But he has failed to 26 demonstrate that the state courts have “arbitrarily” denied that procedure 27 to him. Hicks v. Oklahoma, 447 U.S. 343, 346 (1980). To the contrary, the 28 1 | state courts do not appear to have infringed any aspect of the clear text of 2 | the state penal code section regarding SB 483 resentencing. Petitioner’s 3 | sentence was identified by CDCR for consideration by the statutory 4 | deadline. (Cal. Penal C. § 1172.75(b)(1-2).) Further, the separate deadline 5 | by which a state court must consider his case for recall and resentencing 6 | (December 31, 2023) has not expired yet. Ud. at 1172.75(c)(2).) Based on 7 | the ongoing nature of the criminal resentencing process, the Court discerns 8 | no colorable due process violation. Ramirez, 334 F. 3d at 856; Langford, 9 | 110 F.3d at 1389. 10 ke * 11 Therefore, the present action is DISMISSED without leave to amend 12 | for failure to state a claim.® 13 IT IS SO ORDERED. 14 □ | 15 | Dated: August 10, 2023 16 CHAEL W. FITZ LD United States District Judge 17 18 Presented by: 19 20 [ 21 99 HON. MICHAEL R. WILNER

UNITED STATES MAGISTRATE JUDGE

23 24 25 26 27 3 It is apparent that Petitioner cannot amend his petition to state a claim regarding his future resentencing proceedings. Lopez v. Smith, 203 F.3d 28 | 1122 (9th Cir. 2000).