1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 RUDOLPH ELLIS, ) No. CV 20-11563-JLS (PLA) ) 13 Petitioner, ) ORDER DISMISSING PETITION ) 14 v. ) ) 15 SUPERIOR COURT OF CALIFORNIA, ) ) 16 Respondent. ) ) 17 18 I. 19 BACKGROUND 20 Rudolph Ellis (“petitioner”) initiated this action on December 22, 2020, by filing a Petition 21 for Writ of Habeas Corpus (“Petition”). Petitioner was convicted in 2007 of two counts of first 22 degree murder (Cal. Penal Code § 187(a)) and two counts of assault with a firearm (Cal. Penal 23 Code § 245(a)(2)), along with firearm and gang enhancements (Cal. Penal Code §§ 186.22(b), 24 12022.5(a), 12022.53(d)).1 (ECF No. 1 at 2, 17-20). Petitioner was originally sentenced to a term 25 of 140 years and 8 months to life in state prison. His sentence included, in relevant part, 10-year 26 27 1 As petitioner is in custody pursuant to a state court judgment, the Court construes the 1 term enhancements on counts 1 and 3 (the first degree murder counts) pursuant to California 2 Penal Code § 186.22(b)(1)(C). People v. Ellis, 2009 WL 3385754, at *1, *20 (Cal. App. 2 Dist. 3 Oct. 22, 2009). 4 On appeal, the California Court of Appeal reversed the judgment, finding that the trial court 5 erred in imposing the 10-year term enhancements on the first degree murder counts. Rather, the 6 court of appeal explained, the trial court should have applied subdivision section 186.22(b)(5) to 7 those counts, which prohibits parole for a prisoner with a life sentence until the prisoner has 8 served a minimum of 15 calendar years. The matter was remanded with instructions for the trial 9 court “to delete the 10-year consecutive term enhancements imposed on counts 1 and 3 pursuant 10 to Penal Code section 186.22, subdivision (b)(1)(C), and to provide 15-year minimum parole 11 eligibility dates on those counts pursuant to subdivision (b)(5) of Penal Code section 186.22.” 12 Ellis, 2009 WL 3385754, at *20, *24. 13 On July 16, 2010, the trial court modified petitioner’s sentence in accordance with the court 14 of appeal’s instructions, resulting in a reduced term of 120 years and 8 months to life. See People 15 v. Ellis, 2011 WL 2207478, at *1 (Cal. App. 2 Dist. June 8, 2011). In relevant part, the trial court’s 16 minute order addressing the sentence modification states: “The ten year consecutive term 17 enhancement . . . as to counts 1 and 3 are stricken and the court orders a 15 year minimum parole 18 eligibility date pursuant to Penal Code Section 186.22(b)(5).” (ECF No. 1 at 15-16). 19 Petitioner raises a single ground for relief in the Petition that challenges the accuracy of the 20 amended abstract of judgment that was prepared following the 2010 sentence modification. He 21 asserts that “[a]lthough the trial court imposed a court order of a 15 year minimum parole eligibility 22 date[,] they failed to correct it in the abstract of judg[]ment, and only corrected it in petitioner’s 23 minute orders.” (ECF No. 1 at 3). As a consequence, his “sentence is incorrect and needs to be 24 recalculated.” (Id.). Petitioner further asserts that, due to the failure to correct the enhancements 25 on the abstract of judgment, the California Department of Corrections and Rehabilitation (“CDCR”) 26 calculated 2025 as the year he becomes eligible for parole -- which is nearly twenty years after 27 his incarceration began in 2006 -- and thus violates the trial court’s 2010 minute order imposing 1 II. 2 DISCUSSION 3 Following a careful review, the Court determines that the Petition should be dismissed for 4 the reasons set forth below. 5 A. Failure to State a Cognizable Claim 6 A petitioner may seek federal habeas relief from a state court conviction or sentence if he 7 is contending that he is in custody in violation of the Constitution or laws or treaties of the United 8 States. See 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, 219, 131 S. Ct. 859, 178 L. 9 Ed. 2d 732 (2011) (per curiam); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed. 10 2d 385 (1991). Matters relating solely to the interpretation and/or application of state law generally 11 are not cognizable on federal habeas review. See, e.g., Rhoades v. Henry, 611 F.3d 1133, 1142 12 (9th Cir. 2010) (“violations of state law are not cognizable on federal habeas review”). 13 Petitioner’s allegations in the instant Petition do not present a federal question. Even if the 14 abstract of judgment did not accurately reflect petitioner’s sentence as he contends, his claim 15 presents, at most, a state law issue. Accordingly, petitioner’s ground for relief is not cognizable 16 on federal habeas review.2 See, e.g., Uy v. Hill, 2019 WL 5420277, at *2-3 (C.D. Cal. Oct. 23, 17 2019) (claim that an error in the abstract of judgment prevented the CDCR from correctly 18 19 2 Similarly, to the extent petitioner is challenging the calculation of his minimum eligible parole date, his claim is not cognizable as it only involves state law issues. Moreover, the Court 20 notes that “[c]hallenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus[.].” Nettles v. Grounds, 830 F.3d 922, 927 (9th Cir. 2016) 21 (quotations and citation omitted). A habeas petition is the exclusive vehicle for claims brought by state prisoners that fall within “the core of habeas.” Id.; see Preiser v. Rodriguez, 411 U.S. 475, 22 487-88, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973) (the “core of habeas corpus” is an attack on “the 23 very duration of [a prisoner’s] physical confinement”). Where success on a petitioner’s habeas claim would not necessarily lead to his immediate or earlier release from custody, the claim does 24 not fall within “the core of habeas corpus.” Nettles, 830 F.3d at 934-35. Here, even if petitioner received an earlier minimum eligible parole date, that would not 25 necessarily lead to his earlier release from confinement. At this point, it is entirely speculative whether petitioner will be granted parole after he becomes eligible, as the parole board reviews 26 many factors prior to making a parole suitability determination. See Cal. Code Regs. tit. 15, § 27 2281(b). Thus, because an earlier parole hearing will not necessarily affect the duration of petitioner’s confinement, the Court lacks habeas jurisdiction over any challenge to the calculation 1 calculating the petitioner’s sentence was not cognizable on federal habeas review); Hernandez 2 v. Spearman, 2018 WL 3202672, at *14 (C.D. Cal. Jan. 22, 2018) (“Even if the abstract of 3 judgment did not correctly reflect petitioner’s sentence, petitioner’s claim would raise, at most, an 4 issue of state law not cognizable on federal habeas review.”), report and recommendation 5 accepted, 2018 WL 2095845 (C.D. Cal. May 4, 2018); Stewart v. Super. Ct. of Riverside, 2016 WL 6 519630, at *3 (C.D. Cal. Feb. 8, 2016) (“Even [if] the California Superior Court somehow made an 7 error in completing the Amended Abstract of Judgment that is strictly an administrative issue with 8 the state court and does not state a federal question or a constitutional violation.”). In any 9 event, contrary to petitioner’s assertions, the amended abstract of judgment attached to the 10 Petition correctly reflects the modified sentence. (See ECF No. 1 at 17-20). Consistent with the 11 trial court’s 2010 minute order striking the 10-year term enhancements as to counts 1 and 3, there 12 are no 10-year term enhancements listed for counts 1 and 3 in the amended abstract of judgment. 13 The amended abstract of judgment also includes the following language: “Pursuant to the Order 14 of the Court of Appeal, defendant must serve a minimum of 15 calendar years on counts 1 and 15 3 before he is eligible for parole.” 3 (Id. at 17-18). Thus, even if petitioner’s claim were cognizable, 16 it lacks support, as there is no apparent discrepancy between the 2010 minute order and the 17 amended abstract of judgment. 18 B. The Petition Is Unexhausted 19 Dismissal is also warranted for failure to exhaust state court remedies. 20 As a matter of comity, a federal court will not entertain a habeas corpus petition unless the 21 petitioner has exhausted the available state judicial remedies on every ground presented in the 22 petition. Rose v. Lundy, 455 U.S. 509, 518-22, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982). The 23 habeas statute explicitly provides that a habeas petition brought by a person in state custody “shall 24 not be granted unless it appears that -- (A) the applicant has exhausted the remedies available 25 26 3 Per the California Court of Appeal’s instructions, the trial court ordered the 10-year term 27 enhancements under § 186.22(b) to be stricken for counts 1 and 3. The section 186.22(b) term enhancements remained in effect for counts 4 and 5 (assault with a firearm). (See ECF No. 1 at 1 in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) 2 circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 3 U.S.C. § 2254(b)(1). Moreover, if the exhaustion requirement is to be waived, it must be waived 4 expressly by the state, through counsel. See 28 U.S.C. § 2254(b)(3). 5 Exhaustion requires that a petitioner’s contentions be fairly presented to the state supreme 6 court. O’Sullivan v. Boerckel, 526 U.S. 838, 845-47, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999); 7 James v. Giles, 221 F.3d 1074, 1077 n.3 (9th Cir. 2000). A claim has not been fairly presented 8 unless the prisoner has described in the state court proceedings both the operative facts and the 9 federal legal theory on which his claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 10 S. Ct. 887, 130 L. Ed. 2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275-78, 92 S. Ct. 509, 30 11 L. Ed. 2d 438 (1971); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). 12 Petitioner has the burden of demonstrating that exhaustion was completed. See, e.g., 13 Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982). Here, there is no indication that petitioner has 14 presented the instant claim to the California Supreme Court. Accordingly, dismissal of the Petition 15 for failure to exhaust is appropriate. 16 C. The Petition Appears to Be Successive and Untimely 17 Although the Court finds dismissal is warranted for failure to state a cognizable claim and 18 failure to exhaust, additional grounds for dismissal may exist. 19 First, it appears that the Petition may be successive. A federal habeas petition is 20 successive if it raises claims that were or could have been adjudicated on the merits in a previous 21 petition. Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) (per curiam). A successive 22 claim that was not presented in a prior habeas petition must be dismissed unless certain 23 exceptions apply.4 See 28 U.S.C. § 2244(b)(2)(A), (B). Even when an exception applies that 24 4 A successive claim that was not raised in a prior petition shall be dismissed unless: 25 (A) the applicant shows that the claim relies on a new rule of constitutional law, 26 made retroactive to cases on collateral review by the Supreme Court, that was 27 previously unavailable; or 1 prevents dismissal, there is an additional hurdle: before filing in the district court, a petitioner must 2 request and obtain an order from the court of appeals that authorizes the district court to consider 3 the successive petition. 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 152-53, 127 S. 4 Ct. 793, 166 L. Ed. 2d 628 (2007) (AEDPA requires petitioner to receive authorization from the court 5 of appeals before filing a second habeas petition). 6 The Court notes that, several years after the amended judgment was issued in 2010, 7 petitioner filed a federal habeas petition on February 11, 2013, in Case No. CV 13-993-JLS (PLA), 8 in which he challenged his conviction (the “2013 Petition”). (See CV 13-993, ECF No. 1). The 9 2013 Petition was dismissed on the merits with prejudice, and judgment was entered on May 8, 10 2014. (Id., ECF Nos. 31-33). The Ninth Circuit rejected petitioner’s notice of appeal as untimely. 11 (Id., ECF No. 58). 12 Given the above timeline, petitioner could have raised the instant claim disputing the 13 amended abstract of judgment in his 2013 Petition. Accordingly, as the 2013 Petition was 14 dismissed on the merits with prejudice, the instant Petition appears to be successive. 15 Additionally, it appears the instant Petition was filed after the expiration of the one-year 16 statute of limitations for federal habeas claims. See 28 U.S.C. § 2244(d). In most cases, the 17 limitations period starts to run from “the date on which the judgment became final by conclusion 18 of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). 19 This period is “statutorily tolled” while a “properly filed application for State post-conviction or other 20 collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 21 2244(d)(2). 22 23 4(...continued) (B)(i) the factual predicate for the claim could not have been discovered previously 24 through the exercise of due diligence; and 25 (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for 26 constitutional error, no reasonable factfinder would have found the applicant guilty 27 of the underlying offense. 1 Here, after petitioner’s sentence was modified in 2010, he unsuccessfully appealed the 2 amended judgment, with the California Court of Appeal denying his appeal on June 8, 2011, and 3 the California Supreme Court denying review on August 17, 2011. He also filed a round of habeas 4 petitions in the California courts. His final state petition was denied by the California Supreme 5 Court on February 27, 2013.5 (See CV 13-993, ECF No. 31 at 2). There is no indication that 6 petitioner filed any subsequent state habeas petitions. Thus, even if statutory tolling applied 7 through February 2013 when petitioner’s final state habeas petition was denied, the one-year 8 limitations period would have expired long before the instant Petition was filed on December 22, 9 2020.6 10 11 III. 12 CERTIFICATE OF APPEALABILITY 13 A petitioner may not appeal a final order in a federal habeas corpus proceeding without first 14 obtaining a certificate of appealability (“COA”). See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 15 A COA may issue “only if . . . [there is] a substantial showing of the denial of a constitutional right.” 16 28 U.S.C. § 2253(c)(2). A “substantial showing . . . includes showing that reasonable jurists could 17 debate whether (or, for that matter, agree that) the petition should have been resolved in a 18 different manner or that the issues presented were ‘adequate to deserve encouragement to 19 proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 20 (2000) (citation omitted); see also Sassounian v. Roe, 230 F.3d 1097, 1101 (9th Cir. 2000). 21 22 5 Although petitioner indicates in the Petition that the California Court of Appeal denied an 23 appeal in 2015, and that the California Supreme Court denied review in 2016 (see ECF No. 1 at 4), no record of these filings was found on the California Appellate Courts Case Information 24 website. (See https://appellatecases.courtinfo.ca.gov/). 25 6 While the one-year statute of limitations is subject to equitable tolling, there is no indication that petitioner could satisfy the requirements for such tolling by showing (1) he had 26 been pursuing his rights diligently, and (2) an “extraordinary circumstance” stood in his way that 27 prevented him from timely filing. See Holland v. Florida, 560 U.S. 631, 645, 649, 130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 161 L. “When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when. . . jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and 4] jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at 484. 6 Here, petitioner has not made a substantial showing that he was deprived of a constitutional 7|| right. Furthermore, reasonable jurists would find that the Court correctly determined that the 8 || Petition should be dismissed for failure to state a cognizable claim and failure to exhaust. Accordingly, a certificate of appealability is denied. 10 11 IV. 12 ORDER 13 IT |S THEREFORE ORDERED thatthe Petition is dismissed without prejudice for failure to state a cognizable claim and failure to exhaust. A certificate of appealability is also denied. 15 DATED: January 19, 2021 /s/_ JOSEPHINE L. STATON

HONORABLE JOSEPHINE L. STATON

17 UNITED STATES DISTRICT JUDGE 18 Presented by: 20 Jae K. Mamet ~~ PAULL.ABRAMS

UNITED STATES MAGISTRATE JUDGE

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