3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || CHRISTOPHER M. CHILDERS, Case No.: 3:19-cv-01779-H-RBM 12 Petitioner, REPORT AND 13 || Vv: RECOMMENDATION OF UNITED 14 || LAURA ELDRIDGE, Warden, ENS NOTION 0 15 Respondent.) DISMISS 16 [Docs. 1, 7] 17 18 I. INTRODUCTION 19 On September 16, 2019, Petitioner Christopher M. Childers (“Petitioner”), a state 20 || prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (“the Petition”) under 21 U.S.C. § 2254, (Doc. 1.) According to the Petition, Petitioner was convicted of the 22 \|primary offense of carjacking in 2012 in the San Diego County Superior Court. □□□□ at 1 23 (citing San Diego Cnty. Super. Ct. Case No, §CD231261).) Carjacking is a violent felony 24 || under California law. CAL. PENAL CODE § 667.5(c)(17). As outlined below, the California 25 ||Department of Corrections and Rehabilitation (“CDCR”) excluded violent felonies from 26 || California’s Proposition 57 (“Prop 57”) parole scheme. CAL. CODE REGS. tit. 15, §§ 3490, 27 }}3490{c). Petitioner challenges CDCR’s regulation classifying carjacking as a violent 28 || felony, which excludes Petitioner from Prop 57 early parole consideration. (Doc. 1 at 3.) ]

1 Before the Court are the underlying Petition and Respondent Laura Eldridge’s 2 ||(“Respondent”) Motion to Dismiss the Petition (“Motion to Dismiss”). (Docs. 1, 7.) 3 || Petitioner did not file an opposition to the Motion to Dismiss. After a thorough review of 4 papers on file, the facts, and the applicable law, the undersigned respectfully 5 ||recommends that Respondent’s Motion to Dismiss be GRANTED and that the Petition be 6 || DISMISSED. 7 Il. BACKGROUND & PROCEDURAL HISTORY 8 Pursuant to Bell Atl. Corp. v. Twombly, the Court takes all material allegations from 9 ||the Petition as true. See 550 U.S. 544, 555 (2007). The background and the underlying 10 conviction, direct appeal, enactment of Prop 57, and resulting state habeas proceeding are 11 || outlined below. 12 A. Underlying Offense 13 In 2011, Roy Rodriguez was driving his vehicle on the highway. (Doc. 1 at 6.} 14 || Traffic slowed to a stop, and Rodriguez stopped his vehicle. Vd.) Rodriguez observed 15 || Petitioner walk toward his vehicle with a gun. (/d.) Petitioner pointed his gun at Rodriquez 16 || and told Rodriguez to “get out.” Ud.) Rodriguez complied, and Petitioner drove off in the 17 |ivehicle. Ud.) The following day, officers found the stolen vehicle, arrested Petitioner, 18 searched the trunk of the vehicle, and recovered a nonfunctioning “replica .45 caliber Colt 19 ||Commander” pistol. Ud. at 7, 15.) 20 B. Conviction 21 In 2012, a jury found Petitioner guilty of carjacking (CAL. PENAL CODE § 215) and 22 ||unlawful possession of a firearm (CAL. PENAL CODE § 12021(a)(1)). (Doc, 1 app. 1, at 23 ||50.) The jury also found true that Petitioner personally used a handgun (CAL. PENAL CODE 24 12022.53(b)). Ud.) Petitioner admitted a prior serious felony conviction (CAL. PENAL 25 ||CODE § 667(a)(1)); a prior strike conviction (CAL. PENAL CODE §§ 667(b)-(i), 668, 26 || 1170.12); and a prior prison conviction (CAL. PENAL CODE § 667.5(b)). (Ud. at 50-51.) 27 Court sentenced Petitioner to seventeen years in confinement, which included an out- 28 || on-bail enhancement for the carjacking. (/d. at 51.)

] C. Direct Appeal 2 In 2013, Petitioner appealed his conviction to the California Court of Appeal. (Doc. 3 at 2.) The Court of Appeal affirmed in part, reversed in part, and remanded. (See id. at 4 21-23 (citing Cal. Ct. App. Case No. D062971).) The Court of Appeal only reversed the 5 || out-on-bail enhancement portion of the sentence. (/d. at 22.) 6 D. Prop 57 7 In 2016, California voters passed Prop 57 which added a provision to the California 8 || Constitution to read: “[a]ny person convicted of a nonviolent felony offense and sentenced 9 || to a state prison shall be eligible for parole consideration after completing the ful/ term for 10 || [their] primary offense.” CAL. CONST. art. I, § 32, subd. (a){1} (hereafter [§] 32(a)(1)) 11 ||(emphasis added). Section 32(a)(1)(A) defines “the full term for the primary offense” as 12 ||“the longest term of imprisonment imposed by the court for any offense, excluding the 13 ||imposition of an enhancement, consecutive sentence, or alternative sentence.” See In re 14 || Edwards, 26 Cal. App. 5th 1181, 1184 (Cal. Ct. App. 2018). Prop 57 authorized CDCR to 15 || promulgate California regulations clarifying that violent felonies are excluded from the 16 || parole scheme, wherein “violent felony” is defined in California Penal Code § 667.5(c). 17 || CAL. CODE REGS. tit. 15, §§ 3490, 3490(c). Under California law, the crime of carjacking 18 ||is classified as a violent felony. CAL. PENAL CODE § 667.5(c)(17). CDCR implemented 19 || these regulations, and this is what Petitioner challenged in state habeas proceedings as well 20 ||as in the instant case. 21 E. CDCR Appeals 22 Petitioner submitted appeals to CDCR to review his parole eligibility. (Doc. 1 at 24- 23 ||26.) CDCR rejected all three of Petitioner’s parole appeals. (/d.) First, on January 7, 2019, 24 || CDCR rejected Petitioner’s appeal for failing to support his “general allegation” with “facts 25 ||or...an act or decision consistent with the allegation.” (/d. at 24.) Second, on January 26 2019, CDCR rejected his appeal for being unripe. Ud. at 25.) Third, on January 24, 27 ||2019, CDCR rejected his appeal for being outside its jurisdiction. (/d. at 26.) 28

1 F. State Habeas Corpus Proceedings 2 Petitioner filed a petition for writ of habeas corpus in California state court. (Doc. 1 3 3-4.) In April 2019, the San Diego County Superior Court denied Petitioner’s habeas 4 petition. (Doc. 1 at 3; see also Doc. | app. 1, at 49-53.) In Superior Court, Petitioner cited 5 || Johnson v, United States, arguing that his carjacking offense is a nonviolent offense for 6 Prop 57 purposes. (Doc. | at 3 (citing 559 U.S. 133 (2010).) 7 In May 2019, the California Court of Appeal denied Petitioner’s habeas petition. 8 ||(Doc. ft app. 2, at 54-57.) In August 2019, the Supreme Court of California denied 9 || Petitioner’s habeas petition in an en banc decision without comment. (Doc. 1 app. 3, at 10 || 58-59.) li Il. LEGAL STANDARD 12 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “may be based 13 either a ‘lack of a cognizable legal theory’ or ‘the absence of sufficient facts alleged 14 |\/under a cognizable legal theory.”” Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 15 1121-22 (9th Cir. 2008) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 16 ||(9th Cir. 1990)). The court must dismiss a cause of action that fails to state a claim upon 17 which relief can be granted. FED. R. Civ. P. 12(b)(6). All material allegations in the 18 complaint, “even if doubtful in fact,” are assumed true. Twombly, 550 U.S. at 555. At the 19 same time, however, allegations in the complaint “must be enough to raise a right to relief 20 above the speculative level.” Jd. 21 IV. DISCUSSION 22 Petitioner contends CDCR erred in classifying his carjacking offense as a violent 23 ||felony and failing to consider him for early parole under Prop 57. (Doc. | at 15.) His 24 |/entire argument is predicated upon Johnson. (See infra Part IV.A.i.1. p. 6.) Petitioner 25 |/argues his carjacking offense does not have the requisite “physical force” to be considered 26 ||a violent felony, as in Johnson. (Doc. | at 15 (citing 559 U.S. at 140).) Respondent 27 ||counters that the Petition should be dismissed, because it fails to state a cognizable federal 28

I habeas corpus claim. (Doc. 7 at 1-4.) Respondent contends a challenge to a state entity’s 2 || application of state law is not a federal issue. (/d. at 4-5.) 3 Analyzing the parties’ arguments, the undersigned respectfully recommends the 4 ||Respondent’s Motion to Dismiss be GRANTED and the Petition be DISMISSED. 5 A. Federal Habeas Corpus Relief 6 A prisoner is entitled to federal habeas relief only if he is held in custody in violation 7 || of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a) (2018); see 8 || Wilson v. Corcoran, 562 U.S. 1, 1-2 (2010) (per curiam). 9 The Antiterrorism and Effective Death Penalty Act (‘AEDPA”), 28 U.S.C. § 2244 10 ||(2018), applies to federal habeas petitions filed after April 24, 1996. Woodford v. Garceau, 11 U.S. 202, 210 (2003) (citing Lindh v. Murphy, 521 U.S. 320, 336-37 (1997)). The 12 Petition here was filed on September 16, 2019, thus, AEDPA applies. (Doc. 1); see 13 || Woodford, 538 U.S. at 204. Under AEDPA, a writ of habeas corpus shall not be granted 14 a claim adjudicated on the merits in state court unless the claim (1) “resulted in a 15 |jdecision that was contrary to, or involved an unreasonable application of, clearly 16 || established Federal Law” as determined by the Supreme Court; or (2) resulted in a decision 17 ||“based on an unreasonable determination of the facts” considering evidence presented in 18 ||state court. 28 U.S.C. §§ 2254(d)(1), (2). 19 Federal habeas relief is unavailable for state law errors. Estelle v. McGuire, 502 20 || U.S. 62, 67-68 (1991) (stating, “it is not the province of a federal habeas court to reexamine 21 ||state-court determinations on state-law questions.”); Wilson, 562 U.S. at 5. Moreover, a 22 ||mere error of state law is not a denial of due process. Swarthout v. Cooke, 562 U.S. 216, 23 (2011) (internal citations omitted). 24 1. Analysis 25 Here, Petitioner fails to state a cognizable federal habeas corpus claim, as he 26 j|challenges CDCR’s application of its own regulations and the laws of the state of 27 |\California. See Rhoades v. Henry, 611 F.3d 1133, 1142 (9th Cir. 2010). Moreover, 28 || Petitioner’s requested relief is outside “the core of habeas corpus” relief, as success on the

1 |{merits of Petitioner’s claim does not necessarily lead to a speedier release. Nettles v. 2 || Grounds, 830 F.3d 922, 934 (9th Cir. 2016). 3 1. Petitioner Failed to State a Cognizable Federal Habeas Claim 4 If a petition raises only a violation of state law and no federal claim is presented, 5 || then the petition is subject to dismissal for failure to state a claim. See O’Bremski v. Maass, 6 F.2d 418, 420 (9th Cir. 1990). Stated differently, a petition is not cognizable “where 7 || the petitioner fails to allege a federal claim.” Clayton v. Biter, 868 F.3d 840, 845 (9th Cir. 8 2017) (citing Park v. Cal., 202 F.3d 1146, 1149-50 (9th Cir. 2000)). Unless arising to the 9 || level of a due process violation, state law errors are not cognizable federal habeas claims. 10 || See Lewis v. Jeffers, 497 U.S. 764, 781 (1990); Rhoades, 611 F.3d at 1142. “Habeas corpus 11 j/relief is ‘unavailable for alleged error in the interpretation or application of state law.’” 12 || Windham v. Merkle, 163 F.3d 1092, 1107 (9th Cir. 1998) (quoting Middleton v. Cupp, 768 13 || F.2d 1083, 1085 (9th Cir. 1985)). 14 Petitioner cites Johnson to support his argument that carjacking is not a violent 15 ||/felony, and at a minimum, it should be reclassified as a nonviolent felony. (Doc. 1 at 15- 16 || 16 (citing 559 U.S. 133).) Under this theory, Plaintiff contends he should be eligible for 17 ||early parole consideration under Prop 57. (Doc. 1 at 15-16.) In Johnson, the Court 18 || analyzed the meaning of “physical force” in the Armed Career Criminal Act—a federal 19 || statute—and whether the Florida felony offense of battery fit within that meaning. 20 || Johnson, 559 U.S. at 138 (citing in 18 U.S.C. § 924(e)(2)(B)(i)). The Court held the Florida 21 felony offense of battery did not have an element of “physical force against another” to 22 |/constitute a violent felony under the Armed Career Criminal Act. Johnson, 559 U.S. at 23 |) 135 (citing 18 U.S.C. § 924(e)(1)); but see US. v. Davis, 139 S. Ct. 2319, 2336 (2019) 24 || (holding 18 U.S.C. § 924 unconstitutional). The Court found this issue a question of federal 25 not state law. Johnson, 559 U.S. at 138. Importantly, the Court defined “violent 26 || felony” for purposes of federal law only. /d. at 140-41. The Court stated it was “not bound 27 || by a state court’s interpretation of a similar—or even identical—state statute.” See id. 28

l Here, Petitioner contends CDCR erred in its promulgation of early parole regulations 2 failing to classify the carjacking offense as a nonviolent felony. (Doc. 1 at 15-16.) In 3 other words, Petitioner alleges a state agency erred in interpreting and applying his state 4 ||law criminal offense for purposes of an amendment to the California State Constitution, 5 Prop 57. Ud.) As such, the Petition alleges only a violation of state law. Without a 6 || federal claim, the Petition fails to allege a cognizable federal habeas claim and is thus 7 || subject to dismissal. Clayton, 868 F.3d at 845; O’Bremski, 915 F.2d at 420. 8 2. Relief Requested is Not within the Core of Habeas Corpus 9 “[I]f a state prisoner’s claim does not lie at ‘the core of habeas corpus,’ it may not 10 brought in habeas corpus but must be brought, ‘if at all,’ under [42 U.S.C.] § 1983.” 11 || Nettles, 830 F.3d at 934. To fall within “the core of habeas corpus,” success on the merits 12 ||must “necessarily lead to his immediate or earlier release from confinement... .” Jd. at 13 |}935 (citing Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011) (stating, “when a prisoner’s 14 |\claim would not necessarily spell speedier release, that claim does not lie at ‘the core of 15 habeas corpus’... .”)). 16 Here, Petitioner’s claim does not fall within “the core of habeas corpus,” because it 17 || would not “necessarily lead to his immediate or earlier release” from state prison. Nettles, 18 F.3d at 934. Prop 57 only provides parole consideration once the prisoner serves “the 19 || full term for [their] primary offense.” CAL. CONST. art. I, § 32, subd. (a)(1), Even if 20 || Petitioner succeeded on the merits, early parole consideration would not “necessarily lead 21 ||to his immediate or [early] release” from prison. See Nettles, 830 F.3d at 934. Early parole 22 ||review is not an automatic grant of parole: the parole board would still need to consider 23 ||‘‘all relevant, reliable information” to determine “suitability for parole.” Jd. at 935. The 24 || parole board could deny Petitioner parole “on the basis of any grounds presently available 25 it.” See id. Therefore, Petitioner’s claim for relief, even if successful on the merits, is 26 || outside “the core of habeas corpus.” Jd. at 934. 27 In sum, Petitioner failed to state a cognizable federal habeas corpus claim when he 28 challenged CDCR’s application and interpretation of California state law. Rhoades, 611

1 F.3d at 1142; Windham, 163 F.3d at 1107. Even still, the relief falls outside “the core of 2 || habeas corpus” for not necessarily leading to Petitioner’s immediate or earlier release from 3 ||confinement. Nettles, 830 F.3d at 935. Thus, the Petition should be dismissed. 4 Vv. CONCLUSION 5 For the reasons given, the Court respectfully recommends Respondent’s Motion to 6 || Dismiss be GRANTED thereby DISMISSING the Petition. 7 This Report and Recommendation is submitted to the United States District Judge 8 || assigned to this case, under 28 U.S.C. § 636(b)(1), and Civil Local Rules 72.1(d) and HC.2 9 || of the United States District Court for the Southern District of California. Any party may 10 || file written objections with the Court and serve a copy on all parties on or before June 24, 11 |}2020. The document should be captioned “Objections to Report and Recommendation.” 12 || Any reply to the Objections shall be served and filed on or before July 15, 2020. The 13 || parties are advised that failure to file objections within the specific time may waive the 14 |) right to appeal the District Court’s Order. Martinez v. Yist, 951 F.2d 1153, 1157 (9th Ctr. 15 |) 1991). 16 IT IS SO ORDERED. 17 || DATE: June 3, 2020 .

19 ON. RUTH BERMUDEZ MONTENEGRO

UNITED STATES MAGISTRATE JUDGE

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