Robert Earl Hurst v. Warren L. Montgomery

INTRODUCTION

On June 21, 2021, Petitioner, a California state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the “Petition”). (Dkt. No. 1.) Petitioner, who previously filed a habeas petition in this Court attacking his 2007 conviction for attempted murder, assault with a semiautomatic firearm, and second degree robbery, see Robert Earl Hurst III v. Leland McEwan, No. EDCV 11-00594-DMG (RNB) (C.D. Cal. Jan. 13, 2012) (“Hurst I”), presents one ground for relief: “Re-sentencing pursuant to the amendment of Penal Code Section 12022.53(d) by Senate Bill 620. On October 11, 2017, the Governor signed Senate Bill 620, which amends Penal Code section 12022.53(d), effective January 1, 2018, to allow the sentencing court in its discretion to either strike or dismiss the firearm enhancements under Penal Code section 1385.” (Petition at 6.)

According to the Petition, Petitioner presented this same claim in a habeas petition to the San Bernardino Superior Court, which denied the petition on September 24, 2020. (Petition at CM/ECF Page ID 8.) In the superior court order attached to the Petition, the San…