1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES E. TURNER, Case No.: 21cv0432-WQH (KSC) 12 Petitioner, ORDER: 13 v. (1) DENYING PETITIONER’S

MOTION TO DISMISS;

14 NEIL McDOWELL, Warden, (2) DENYING PETITION FOR A Respondent. 15 WRIT OF HABEAS CORPUS; and 16 (3) DENYING A CERTIFICATE OF

APPEALABILITY

17 18 Hayes, Judge: 19 On March 3, 2021, Petitioner James E. Turner, a state prisoner proceeding pro se, 20 filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1). 21 On August 17, 2021, Respondent filed an Answer and lodged the state court record. (ECF 22 Nos. 14-15). On September 7, 2021, Petitioner filed a Traverse. (ECF No. 16). On 23 October 21, 2021, Petitioner filed a Motion to Dismiss this action with leave to amend his 24 Petition after he seeks resentencing under a state law set to go into effect on January 1, 25 2022.1 (ECF No. 18). 26

27 1 Although this case was referred to United States Magistrate Judge Karen S. Crawford 28 1 I. Background 2 On July 27, 2007, Petitioner entered a guilty plea to voluntary manslaughter with a 3 gang enhancement and was sentenced by San Diego County Superior Court Judge Joan P. 4 Weber to twenty-one years in prison. (ECF No. 15-1 at 29-33). He claims here that his 5 rights under the Sixth, Eighth and Fourteenth Amendments were violated when his 2019 6 state court petition for resentencing was denied (Claim One), and because the trial court 7 failed to establish a factual basis for his plea, which lacks a factual basis (Claim Two). 8 (ECF No. 1 at 5). 9 Respondent answers that habeas relief is unavailable because Claim One does not 10 present a cognizable federal claim, is unexhausted, and lacks merit, and Claim Two is 11 untimely, fails to present a cognizable federal claim, and lacks merit. (ECF No. 14-1 at 12 17-27). Petitioner replies that his claims are timely, exhausted, and meritorious, and 13 requests an evidentiary hearing. (ECF No. 16 at 1-2). Petitioner’s Motion to Dismiss seeks 14 to dismiss his Petition without prejudice so that he can file an amended petition after he 15 litigates a petition for resentencing in state court that he intends to file when a new state 16 law takes effect January 1, 2022. (ECF No. 18). 17 II. State Court Proceedings 18 An Information filed on March 28, 2006, in the San Diego County Superior Court 19 charged Tony Lessie, Petitioner, and Petitioner’s cousin Joseph Isaac Turner with the 20 murder of Rusty Seau. (ECF No. 15-1 at 10-12). The Information alleged Lessie 21 personally used a handgun during the commission of the murder, that all three men 22 committed the murder for the benefit of, at the direction of, and in association with a 23 criminal street gang, and that Petitioner and his cousin were principals in a murder in which 24 at least one principal personally used a firearm. (Id.). 25 The California Appellate Court described the facts of this case as follows: 26

27 Recommendation nor oral argument are necessary for the disposition of this matter. See 28 1 One evening in June 2005, 16-year-old Rusty [Seau] was walking down a street in Oceanside. As he approached a residence, he was confronted by 2 Turner, Turner’s cousin Joseph, and Tony [Lessie]. A physical altercation 3 ensued. As Tony would confess, he pulled out a handgun during the fight and fired shots at Rusty, killing him. 4

5 (ECF No. 15-12 at 3). 6 Lessie was tried and testified he shot Seau as an initiation into Petitioner’s gang but 7 only after Petitioner threatened to beat or kill him if he did not shoot. People v. Lessie, 47 8 Cal. 4th 1152, 1157 (2010). On November 6, 2006, Lessie was acquitted of first degree 9 murder but convicted of second degree murder with the use of a firearm, with the jury 10 deadlocked on the gang enhancement. On July 27, 2007, pursuant to a plea bargain, 11 Petitioner pleaded guilty to the lesser included offense of voluntary manslaughter with a 12 gang enhancement and stipulated that the preliminary hearing transcript provided a factual 13 basis for his plea. (ECF No. 15-1 at 31-33). Petitioner was sentenced to a stipulated prison 14 term of 21 years, consisting of the 11-year upper term for voluntary manslaughter with a 15 10-year gang enhancement. (Id. at 29-33). 16 Petitioner did not appeal, but on November 1, 2007, he filed a habeas petition along 17 with a request to withdraw his plea, contending it was coerced and there was no evidence 18 to support the gang enhancement since Lessie had been acquitted of the same enhancement. 19 (ECF No. 15-3 at 1). The trial court appointed advisory counsel, who reported to the court 20 there was no legitimate basis to withdraw the plea (ECF No. 15-2 at 23-24), and the petition 21 was denied for that reason after a hearing (ECF No. 15-3 at 1). Petitioner filed a habeas 22 petition raising the same claim in the appellate court, which denied relief on September 5, 23 2008, stating that Petitioner “has not shown his plea was other than knowing and voluntary 24 and he received the benefit of the bargain.” (Id. at 1-2). 25 Petitioner filed a second habeas petition in the trial and appellate courts claiming he 26 entered his plea while under the influence of prescription medication and his counsel was 27 ineffective for not investigating the effects of the medication. (ECF No. 15-4 at 1-2). 28 Those petitions were denied on May 6, 2009, and March 17, 2011, respectively because 1 there was no evidentiary support for the claims, which should have been raised in the prior 2 habeas petition. (Id. at 1-6; ECF No. 15-5 at 5-9). Petitioner filed a third habeas petition 3 in the appellate court alleging a conflict of interest with his trial attorney, which was denied 4 on April 26, 2011, on the basis he failed to show the existence of a conflict and failed to 5 raise the issue in the trial court. (ECF No. 15-6 at 1-2). 6 On January 1, 2019, Petitioner filed a petition for resentencing in the trial court 7 pursuant to California Penal Code Section 1170.95, which sets forth a procedure for 8 defendants convicted of felony murder or natural and probable consequences murder to 9 petition to have their convictions vacated. (ECF No. 15-7 at 39-45). Petitioner relied on 10 California Senate Bill 1437, which became effective the date of his petition for 11 resentencing and amended “the felony murder rule and the natural and probable 12 consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed 13 on a person who is not the actual killer, did not act with the intent to kill, or was not a major 14 participant in the underlying felony who acted with reckless disregard for life.” People v. 15 Martinez, 31 Cal. App. 5th 719, 723 (2019). The trial court denied the petition on February 16 4, 2019, finding Petitioner was not eligible for relief because he had not been convicted of 17 murder. (ECF No. 15-7 at 53-54). 18 Petitioner was appointed counsel and appealed the denial of his petition for 19 resentencing, where he argued, as he does in Claim One, that the change in law contained 20 in Senate Bill 1437 should apply to persons like him who risked a murder conviction under 21 a theory of felony murder or natural and probable consequences murder but agreed to plead 22 guilty to manslaughter. (ECF No. 15-9 at 10). On February 19, 2020, in a published 23 opinion, the appellate court affirmed the denial of the petition for resentencing, finding that 24 “the legislative history confirms that a defendant who faces murder liability under the 25 natural and probable consequences doctrine, but pleads guilty to manslaughter in lieu of 26 trial, is not eligible for resentencing under section 1170.95.” People v. Turner, 45 Cal. 27 App. 5th 428, 438 (Cal. App. Ct. 2020). The court stated: 28 Having found that Senate Bill 1437 does not extend to defendants convicted 1 of manslaughter, we acknowledge that in hindsight, Turner would have fared better by pleading guilty to murder. Because his liability would have been 2 premised on Rusty’s killing being a natural, probable, and foreseeable 3 consequence of his participation in the assault, he could have petitioned for relief under section 1170.95. Instead, he pleaded guilty to voluntary 4 manslaughter, in the process admitting every element of that offense. 5 Id. at 439 (noting that voluntary manslaughter is not a lesser included offense of felony 6 murder or natural and probable consequences murder). The court expressed sympathy to 7 Petitioner and defendants like him, stating that “[b]y admitting voluntary manslaughter, 8 Turner seems worse off for pleading guilty to a crime he likely could not have committed.” 9 Id. at 440. 10 The appellate court went on to state that “[i]f there is a problem, it may lie in the 11 adequacy of the factual basis for Turner’s plea,” as “a bare statement that a factual basis 12 exists, without inquiry, is inadequate.” Id. at 440. The court noted it was understandable 13 that a judge provided with a charging document generically alleging murder and a 14 stipulation to use the preliminary hearing transcript for a factual basis might not scrutinize 15 whether the facts supported a factual basis for voluntary manslaughter because “voluntary 16 manslaughter during a sudden quarrel or in imperfect self-defense ‘is considered a lesser 17 necessarily included offense of intentional murder.’” Id. at 432 n.5 (quoting People v. 18 Breverman, 19 Cal. 4th 142, 154 (1998)). The appellate court concluded that a claim 19 challenging the factual basis of the plea was not before it at that time. Id. at 441 n.10. 20 Petitioner sought review in the state supreme court, which denied relief on May 13, 2020, 21 in an order that stated: “The petition for review is denied. The request for an order directing 22 depublication of the opinion is denied.” (ECF No. 15-14 at 1). 23 On November 20, 2020, Petitioner filed a habeas petition in the state trial court 24 claiming, as he does in Claim Two here, that the trial judge failed to ascertain a factual 25 basis for his plea and the plea lacks a factual basis, as there is no evidence to support a 26 voluntary manslaughter conviction or a gang enhancement. (See ECF No. 15-15 at 41). 27 The trial court denied the petition on November 23, 2020, as untimely and on the basis that 28 1 Petitioner could have raised his claims in his prior state habeas petitions but did not, and in 2 any case failed to make a prima facie showing of an entitlement to relief. (Id. at 40-42). 3 On December 29, 2020, Petitioner filed a pro se habeas petition in the state appellate court 4 raising the same claim. (Id. at 1-45). The appellate court denied relief on December 31, 5 2020, on the basis that: (1) the petition was barred by the failure to obtain a certificate of 6 probable cause needed to attack the validity of a guilty plea, (2) the petition was untimely 7 because it was filed more than 13 years after sentencing with no explanation for the delay, 8 (3) the petition was barred as repetitive and successive to prior habeas petitions filed by 9 Petitioner, and (4) claims challenging the sufficiency of evidence to support a conviction 10 are not cognizable on habeas. (ECF No. 15-16 at 2). Petitioner raised the same claim in 11 the state supreme court in a pro se habeas petition which was denied on May 12, 2021, in 12 an order that stated: “The petition for writ of habeas corpus is denied. (See In re Waltreus 13 (1965) 62 Cal.2d 218, 225 [courts will not entertain habeas corpus claims that were rejected 14 on appeal].)” (ECF No. 15-18 at 1). 15 Petitioner states in his Motion to Dismiss that the California Legislature recently 16 passed Senate Bill 775, which provides resentencing eligibility under Senate Bill 1437 for 17 persons like him who pleaded guilty to manslaughter to avoid a murder conviction. (ECF 18 No. 18 at 1-2). He requests this action be dismissed without prejudice so that he can amend 19 his federal habeas petition after he has sought resentencing under Senate Bill 775, which 20 is set to go into effect on January 1, 2022. (Id. at 1). 21 III. Petitioner’s Claims 22 (1) The trial court’s order denying the petition for resentencing must be reversed 23 because the court was unaware that Senate Bill 1437 and Penal Code Section 1170.95 24 applies to guilty pleas to manslaughter entered to avoid trial on charges which could lead 25 to a murder conviction under the felony murder rule or a natural and probable consequences 26 theory of murder. (ECF No. 1 at 5). The Petition summarily claims violations of the Sixth, 27 Eighth and Fourteenth Amendments and references briefs filed in the state appellate and 28 supreme courts on direct appeal of the denial of the petition for resentencing. (Id. at 5, 9- 1 54). Appointed appellate counsel argued in those briefs that the trial court’s denial of relief 2 was predicated on an incorrect interpretation of state law in violation of federal due process. 3 (ECF No. 15-9 at 12). The Traverse clarifies that in addition to that federal due process 4 claim, Petitioner is bringing claims for cruel and unusual punishment in violation of the 5 Eighth Amendment for serving a prison term for a crime he did not commit, and denial of 6 equal protection in violation of the Fourteenth Amendment because he was treated 7 differently than defendants who benefit from the change in law. (ECF No. 16 at 8). 8 (2) The state court failed to ascertain a factual basis for Petitioner’s guilty plea, 9 which lacks a factual basis. (ECF No. 1 at 5). Although the Petition identifies no federal 10 basis for this claim, Petitioner states in the Traverse that he is bringing the same Sixth, 11 Eighth and Fourteenth Amendment claims as in Claim One. (ECF No. 16 at 8-14). 12 IV. Discussion 13 As set forth herein, federal habeas relief is denied as to Claim One because the state 14 court adjudication of the federal due process aspect is objectively reasonable and because 15 the Eighth and Fourteenth Amendment aspects are procedurally defaulted and without 16 merit. Federal habeas relief is denied with respect to Claim Two because it is untimely. 17 An evidentiary hearing is unnecessary on either claim. Petitioner’s Motion to Dismiss 18 without prejudice to amend after he has sought resentencing under Senate Bill 775 is denied 19 without prejudice to file a new federal habeas petition if his resentencing petition is denied. 20 A. Legal Standards 21 Under the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. 22 L. No. 104-132, 110 Stat. 1214, in order to obtain federal habeas relief with respect to a 23 claim which was adjudicated on the merits in state court, a federal habeas petitioner must 24 demonstrate that the state court adjudication of the claim: “(1) resulted in a decision that 25 was contrary to, or involved an unreasonable application of, clearly established Federal 26 law, as determined by the Supreme Court of the United States; or (2) resulted in a decision 27 that was based on an unreasonable determination of the facts in light of the evidence 28 presented in the State court proceeding.” 28 U.S.C. § 2254(d). 1 A state court’s decision may be “contrary to” clearly established Supreme Court 2 precedent (1) “if the state court applies a rule that contradicts the governing law set forth 3 in [the Court’s] cases” or (2) “if the state court confronts a set of facts that are materially 4 indistinguishable from a decision of [the] Court and nevertheless arrives at a result different 5 from [the Court’s] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state 6 court decision may involve an “unreasonable application” of clearly established federal 7 law, “if the state court identifies the correct governing legal rule from this Court’s cases 8 but unreasonably applies it to the facts of the particular state prisoner’s case.” Id. at 407. 9 In order to satisfy § 2254(d)(2), the factual findings relied upon by the state court must be 10 objectively unreasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 11 To the extent the Court can reach the merits of federal claims which have not been 12 adjudicated on the merits in state court, de novo review is required. Pirtle v. Morgan, 313 13 F.3d 1160, 1167-68 (9th Cir. 2002). Under such a review, “state court judgments of 14 conviction and sentence carry a presumption of finality and legality and may be set aside 15 only when a state prisoner carries his burden of proving that (his) detention violates the 16 fundamental liberties of the person, safeguarded against state action by the Federal 17 Constitution.” Hayes v. Brown, 399 F.3d 972, 978 (9th Cir. 2005) (en banc). However, 18 the reasoning on any related claim by the state court is relevant. See Frantz v. Hazey, 533 19 F.3d 724, 738 (9th Cir. 2008) (holding that where the reasoning of the state court is relevant 20 it must be part of a federal habeas court’s consideration even under de novo review). 21 B. Claim One 22 Petitioner alleges in Claim One that his rights under the Sixth, Eighth and Fourteenth 23 Amendments were violated by the denial of his petition for resentencing under Senate Bill 24 1437 and California Penal Code Section 1170.95. (ECF No. 1 at 5). He incorporates by 25 reference and attaches to the Petition in support of this claim state court briefs filed in the 26 appellate and supreme courts by counsel on direct appeal of the denial of his petition for 27 resentencing, which included as the sole federal claim that federal due process was denied 28 because the state court erroneously interpreted state law. (Id. at 5, 9-54; ECF No. 15-9 at 1 12, (citing Townsend v. Burke, 334 U.S. 736, 741 (1948) (reversing denial of federal habeas 2 relief where “prisoner was sentenced on the basis of assumptions concerning his criminal 3 record which were materially untrue . . . [which] is inconsistent with due process of law.”) 4 and United States v. Tucker, 404 U.S. 443, 447 (1972) (“a sentence founded at least in part 5 upon misinformation of constitutional magnitude” violates federal due process))). 6 Respondent answers that: (1) Claim One does not present a cognizable federal issue 7 because it relies on an error of state law and this Court is required to defer to the state court 8 finding that Senate Bill 1437 and California Penal Code § 1170.95 do not apply here, 9 (2) Petitioner cannot transform his state law claim into a federal claim by summarily 10 claiming violations of the Sixth, Eighth and Fourteenth Amendments as he has done in the 11 Petition, (3) any federal claim is unexhausted because the federal nature of Claim One has 12 never been presented to the state courts, and (4) the application of state law by the state 13 courts to deny Claim One was not so arbitrary or capricious as to amount to a federal due 14 process violation, the only possible cognizable federal claim. (ECF No. 14-1 at 17-22). 15 Petitioner replies that Claim One alleges his federal constitutional rights have been 16 and are being violated because: (1) he was convicted of a crime for which he is actually 17 innocent in violation of due process guaranteed by the Sixth Amendment, (2) he is serving 18 a state prison sentence for a crime he did not commit which amounts to cruel and unusual 19 punishment in violation of the Eighth Amendment, and (3) he is being denied equal 20 protection of the laws in violation of the Fourteenth Amendment because he is being treated 21 differently than defendants who benefit from the changes in the law by Senate Bill 1437 22 and California Penal Code Section 1170.95. (ECF No. 16 at 8). Petitioner contends he 23 presented the essence of his federal claims to the state courts on direct appeal of the denial 24 of his petition for resentencing, and argues that even to the extent they were not properly 25 presented in state court and are now procedurally defaulted in this Court he is able to 26 overcome the default by showing actual innocence. (Id. at 5-7). 27 Petitioner’s appointed counsel presented Claim One to the state appellate court on 28 direct appeal of the denial of his petition for resentencing, arguing that the trial court erred 1 in finding that the provisions of Senate Bill 1437 and California Penal Code 2 Section 1170.95 did not apply to him simply because he was not convicted of murder, 3 which violated federal due process because it was made based on an erroneous 4 interpretation of state law. (ECF No. 15-9 at 11-12 (citing Tucker, 404 U.S. at 447 (“a 5 sentence founded at least in part upon misinformation of constitutional magnitude” violates 6 due process) and Townsend, 334 U.S. at 741 (reversing denial of federal habeas relief 7 where “prisoner was sentenced on the basis of assumptions concerning his criminal record 8 which were materially untrue . . . [which] is inconsistent with due process of law.”))). 9 The appellate court denied the claim in a reasoned opinion on the basis that Petitioner 10 was not entitled to resentencing because California Senate Bill 1437 and California Penal 11 Code Section 1170.95 do not apply to defendants like Petitioner who pleaded guilty to 12 manslaughter to avoid a conviction for felony murder or natural and probable consequences 13 murder. (ECF No. 15-12). The appellate court did not explicitly address the federal due 14 process aspect of the claim, and the state supreme court summarily denied review without 15 explanation. (Id.; ECF No. 15-14.) The state supreme court is presumed to have adopted 16 the appellate court’s reasoning. See Ylst v. Nunnemaker, 501 U.S. 797, 803-06 (1991) 17 (“Where there has been one reasoned state judgment rejecting a federal claim, later 18 unexplained orders upholding that judgment or rejecting the same claim [are presumed to] 19 rest upon the same ground.”) 20 Although federal habeas relief is generally not available for claims based solely on 21 state law violations, there is a well-established exception where a state court’s application 22 of state law is arbitrary or capricious. See Richmond v. Lewis, 506 U.S. 40, 50 (1992) 23 (holding that a state court’s application of state law does not rise to the level of a federal 24 due process violation unless it was so arbitrary or capricious as to constitute an independent 25 due process violation); Knapp v. Cardwell, 667 F.2d 1253, 1260 (9th Cir. 1982) (“Federal 26 courts will not review a state supreme court’s interpretation of its own statute unless that 27 interpretation is clearly untenable and amounts to a subterfuge to avoid federal review of a 28 deprivation by the state of rights guaranteed by the Constitution.”) In addition, “[u]nder 1 the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport 2 with prevailing notions of fundamental fairness.” California v. Trombetta, 467 U.S. 479, 3 485 (1984); see also Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991) (“The 4 issue for [a federal habeas court], always, is whether the state proceedings satisfied due 5 process; the presence or absence of a state law violation is largely beside the point.”) And, 6 as Petitioner’s appointed counsel pointed out to the state appellate court, federal due 7 process may be violated where a state court relies on an erroneous interpretation of the 8 facts or law. See Townsend, 334 U.S. at 741 (reversing denial of habeas relief where 9 counsel “could have taken steps to see that the conviction and sentence were not predicated 10 on misinformation or misreading of court records, a requirement of fair play”); Tucker, 404 11 U.S. at 447 (“a sentence founded at least in part upon misinformation of constitutional 12 magnitude” violates federal due process). 13 Although Respondent is correct that Petitioner cannot federalize Claim One by 14 presenting a conclusory statement in the Petition that his rights under the Sixth, Eighth and 15 Fourteenth Amendments were violated, “[t]he Supreme Court has instructed the federal 16 courts to liberally construe the ‘inartful pleading’ of pro se litigants.” Eldridge v. Block, 17 832 F.2d 1132, 1137 (9th Cir. 1987), quoting Boag v. MacDougall, 454 U.S. 364, 365 18 (1982); see also Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) (holding that liberal 19 construction of pro se prisoner petitions is especially important as to which claims are 20 presented). Under such a liberal construction of the pleadings in this action, Petitioner 21 alleges the denial of his petition for resentencing resulted in fundamental unfairness in 22 violation of (1) due process protected by the Sixth Amendment because the denial of his 23 petition for resentencing was based on an incorrect interpretation of state law resulting in 24 his conviction for a crime he did not and could not have committed to remain in place, 25 (2) cruel and unusual punishment in violation of the Eighth Amendment because he is 26 serving a term of imprisonment for a crime he did not commit, and (3) denial of equal 27 protection of the laws in violation of the Fourteenth Amendment because he is being treated 28 differently than defendants who benefit from the changes in the law by Senate Bill 1437 1 and California Penal Code Section 1170.95. (ECF No. 16 at 8). 2 Habeas petitioners who wish to challenge either their state court conviction or the 3 length of their confinement in state prison must first exhaust state judicial remedies. 28 4 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state 5 judicial remedies, a California state prisoner must present the California Supreme Court 6 with a fair opportunity to rule on the merits of every issue raised in his or her federal habeas 7 petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. The Court can deny 8 habeas relief on the merits of an unexhausted claim but only when it does not present a 9 colorable claim. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus 10 may be denied on the merits, notwithstanding the failure of the applicant to exhaust the 11 remedies available in the courts of the state.”); but see Cassett v. Stewart, 406 F.3d 614, 12 623-24 (9th Cir. 2005) (holding that a claim may be denied under 28 U.S.C. § 2254(b)(2) 13 only where “it is perfectly clear that the petitioner has no hope of prevailing”). 14 The Court rejects Petitioner’s contention that he submitted any of the federal bases 15 of Claim One to the state courts other than his federal due process claim. His briefs in the 16 state courts on direct appeal of the denial of his petition for resentencing were drafted by 17 appointed counsel and do not reference any federal claim other than a due process violation 18 arising from the state court applying a misinterpretation of state law. The briefs did not 19 place the state courts on notice that Petitioner was raising an Eighth or Fourteenth 20 Amendment claim. 21 Nevertheless, the Eighth and Fourteenth Amendment bases for Claim One are now 22 technically exhausted despite the failure to raise them in state court because Petitioner no 23 longer has state court remedies available to him. See Phillips v. Woodford, 267 F.3d 966, 24 974 (9th Cir. 2001) (“[T]he district court correctly concluded that [the] claims were 25

26 2 To the extent Petitioner erred in failing to articulate the complete federal nature of Claim 27 One in the Petition rather than in the Traverse, given his pro se status and the lack of prejudice to Respondent, the Court would grant leave to amend the Petition to include the 28 1 nonetheless exhausted because ‘a return to state court for exhaustion would be futile.’”); 2 Cassett, 406 F.3d at 621 n.5 (“A habeas petitioner who has defaulted his federal claims in 3 state court meets the technical requirements for exhaustion; there are no state remedies any 4 longer ‘available’ to him.” (quoting Coleman v. Thompson, 501 U.S. 722, 732 (1991))); 5 see also Coleman, 501 U.S. at 735 n.1 (holding that a procedural default arises when “the 6 court to which the petitioner would be required to present his claims in order to meet the 7 exhaustion requirement would now find the claims procedurally barred”). It has been 8 nearly one and a half years since the direct appeal of the denial of Petitioner’s petition for 9 resentencing became final by the denial of his petition for review in the state supreme court 10 on May 13, 2020 (ECF No. 15-14), and it is clear that were Petitioner to return to state 11 court now in an attempt to re-present two new federal bases for the same claim he would 12 be untimely under state law. See Walker v. Martin, 562 U.S. 307, 312-21 (2011) (holding 13 that California’s timeliness rule requiring that a petitioner must seek relief without 14 “substantial delay” as “measured from the time the petitioner or counsel knew, or should 15 reasonably have known, of the information offered in support of the claim and the legal 16 basis for the claim,” is clearly established and consistently applied); Bennett v. Mueller, 17 322 F.3d 573, 581 (9th Cir. 2003) (“We conclude that because the California untimeliness 18 rule is not interwoven with federal law, it is an independent state procedural ground.”); 19 Coleman, 501 U.S. at 735 (federal habeas review if precluded where a state procedural bar 20 rests on a state ground which is “independent” of federal law and “adequate” to forever bar 21 federal review); see also Harris v. Reed, 489 U.S. 255, 268 (O’Connor, J., concurring) 22 (“[I]n determining whether a remedy for a particular constitutional claim is ‘available,’ the 23 federal courts are authorized, indeed required, to assess the likelihood that a state court will 24 accord the habeas petitioner a hearing on the merits of his claim.”) 25 The Court can address the merits of the procedurally defaulted claims if Petitioner 26 can demonstrate cause for his failure to satisfy the state procedural rule and prejudice 27 arising from the default, or that a fundamental miscarriage of justice would result from the 28 Court not reaching the merits of the defaulted claim. Coleman, 501 U.S. at 750. As 1 discussed below, Petitioner alleges he can overcome the default by showing he is actually 2 innocent. See Schlup v. Delo, 513 U.S. 298, 327 (1995) (fundamental unfairness needed 3 to overcome a procedural default may be shown where petitioner establishes that “a 4 constitutional violation has probably resulted in the conviction of one who is actually 5 innocent”). 6 1. Federal due process 7 Petitioner claims the state court incorrectly found he was not eligible for 8 resentencing under Senate Bill 1437 and California Penal Code Section 1170.95 and 9 violated federal due process by relying on that incorrect reading of state law in denying his 10 petition for resentencing. The Court looks through the silent denial by the state supreme 11 court to the last reasoned state court decision and applies the provisions of 28 U.S.C. § 12 2254(d) to the appellate court opinion on direct appeal, which states: 13 Turner’s statutory eligibility presents a question of law. We 14 independently consider the scope of Senate Bill 1437 to assess whether it 15 provides relief to a defendant like Turner who was convicted of manslaughter by plea. (See People v. Prunty (2015) 62 Cal.4th 59, 71, 192 Cal.Rptr.3d 309, 16 355 P.3d 480 (de novo review).) As with any question of statutory 17 interpretation, “our primary task is to give effect to the Legislature’s intended purpose in enacting the law.” (People v. Hubbard (2016) 63 Cal.4th 378, 386 18 (Hubbard).) “We begin with the statute’s text, assigning the relevant terms 19 their ordinary meaning, while also taking account of any related provisions and the overall structure of the statutory scheme. (Citation.) Essential is 20 whether our interpretation, as well as the consequences flowing therefrom, 21 advances the Legislature’s intended purpose. (Citation.) Where the statutory text admits of more than one reasonable interpretation, we may consider 22 various extrinsic aids—including the legislative history—to the extent they 23 are helpful in illuminating that purpose.” (Ibid.)

24 a. Defendants Who Pled Guilty to Voluntary Manslaughter Are 25 Not Entitled to Relief.

26 Subdivision (a) of section 1170.95 allows “(a) person convicted of 27 felony murder or murder under a natural and probable consequences theory” to file a petition “to have (his or her) murder conviction vacated and to be 28 1 resentenced on any remaining counts.” (Italics added.) Likewise, section 1170.95, subdivision (d) defines the available relief as the vacating of a 2 “murder conviction.” (Italics added.) As the People suggest, the petitioning 3 prerequisites and available relief indicate that the Legislature intended to limit relief to those convicted of murder under a theory of felony murder or natural- 4 and-probable-consequences murder. Indeed, the Legislature declared in 5 uncodified portions of Senate Bill 1437 that it sought “to amend the felony murder rule and the natural and probable consequences doctrine, as it relates 6 to murder,” to limit circumstances in which “murder liability” may be 7 imposed. (Stats. 2018, ch.1015, § 1, subd. (f), italics added in both quotes; see People v. Valencia (2017) 3 Cal.5th 347, 362 (“‘In considering the purpose 8 of legislation, statements of the intent of the enacting body contained in a 9 preamble, while not conclusive, are entitled to consideration.’”).)

10 Relying on the clear language of the statute, courts including ours have 11 concluded that section 1170.95 is unambiguous and does not provide relief to persons convicted of manslaughter. (People v. Cervantes, 44 Cal.App.5th 12 884, 886 (2020) (“The plain language of the statute is explicit; its scope is 13 limited to murder convictions.”), accord, People v. Flores (2020) 38 Cal.App.5th 1087, ____ (2020), 2020 Cal.App. Lexis 83, p. *9. For similar 14 reasons, other courts have rejected claims that the statute extends relief to 15 those convicted of attempted murder. (Lopez, supra, 38 Cal.App.5th at p. 1104, rev. granted; Munoz, supra, 39 Cal.App.5th at p. 754, rev. granted; 16 People v. Medrano (2019) 42 Cal.App.5th 1001, 1015-1016; People v. Larios 17 (2019) 42 Cal.App.5th 956, 970.) These decisions reason that the statutory scheme unequivocally applies only to murder convictions. (E.g., Cervantes, 18 supra, 44 Cal.App.5th at 886; Munoz, at p. 754.) 19 Turner reads Senate Bill 1437 to potentially provide relief for 20 defendants convicted of voluntary manslaughter by plea, relying on language 21 in subdivision (a)(2) of section 1170.95 referencing one of the conditions a petitioning defendant must satisfy. Such a defendant must declare that he or 22 she “was convicted of first degree or second degree murder following a trial 23 or accepted a plea offer in lieu of a trial at which the petitioner could be convicted of first or second degree murder.” (§ 1170.95, subd. (a)(2), italics 24 added.) Turner emphasizes that this provision does not expressly require a 25 defendant to have accepted a plea offer for murder, but he ignores the introductory language in section 1170.95, subdivision (a) that limits petitions 26 to persons “convicted of . . . murder.” (Italics added.) 27 Moreover, even if Turner were correct that an ambiguity exists, the 28 1 legislative history demonstrates he is not entitled to relief. (See also California School Employees Assn. v. Governing Board (1994) 8 Cal.4th 333, 2 340 (even “if the statutory language is clear and unambiguous,” a court may 3 consult legislative history to “determine whether the literal meaning of a statute comports with its purpose”).) A year before Senate Bill 1437 was 4 enacted, the Legislature passed a resolution highlighting the need for reform 5 “to limit convictions and subsequent sentencing in both felony murder cases and aider and abettor matters prosecuted under (the) ‘natural and probable 6 consequences’ doctrine.” (Sen. Conc. Res. No. 48, Stats. 2017 (2017-2018 7 Reg. Sess.), res. ch. 175 (Senate Concurrent Resolution 48).) The “whereas” clauses in Senate Concurrent Resolution 48 noted the harsh sentences for 8 persons convicted of first- and second-degree murder, low rates of parole, and 9 less culpable mental states for liability based on felony murder and natural- and-probable-consequences murder. (Ibid.) Citing Medina, supra, 46 Cal.4th 10 913, which held gang members liable for a fatal shooting by their codefendant 11 during an assault, Senate Concurrent Resolution 48 expressed concern that “individuals lacking the mens rea and culpability for murder (were) being 12 punished as if they were the ones who committed the fatal act.” (Sen. Conc. 13 Res. 48, supra.) With the Assembly concurring, the Senate resolved to consider reforms to calibrate a defendant’s punishment to his or her 14 culpability. (Ibid.; see generally, Lopez, supra, 38 Cal.App.5th at p. 1098, 15 rev. granted (discussing Senate Concurrent Resolution 48).)

16 In February 2018, Senator Skinner introduced Senate Bill 1437, and the 17 bill proceeded to the Senate Committee on Public Safety. The associated committee report highlighted lengthy punishments for first- and second- 18 degree murder and referenced the need “to restore proportional responsibility 19 in the application of California’s murder statute.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as introduced 20 Feb. 16, 2018, pp. 2-3; see Pen. Code, § 190, subd. (a).). In providing 21 background on murder liability, the report explained that murder was “the most egregious form of homicide,” required malice, and (critically) was 22 distinguishable from manslaughter “because the element of ‘malice’ is 23 required to be convicted of murder.” (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1437, supra, p. 4.) 24

25 Senate Bill 1437 then proceeded to the Senate Appropriations Committee. Again, the associated report distinguished murder from 26 manslaughter “due to the additional element of malice, which may be express 27 or implied.” (Sen. Com. on Appropriations, Analysis of Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as introduced Feb. 16, 2018, p. 2.) Evaluating the 28 1 bill’s fiscal impact, the report cited “CDCR reports that a snapshot on December 31, 2017 showed 14,473 inmates were serving a term for the 2 principal offense of first-degree murder and 7,299 were serving a term for the 3 principal offense of second-degree murder.” (Id. at p. 3.)

4 With minor amendments, Senate Bill 1437 proceeded to the Senate 5 floor. A bill analysis highlighted the lengthy prison terms for first- and second-degree murder. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d 6 reading analysis of Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as amended 7 May 25, 2018, pp. 1-2.) After clearing the Senate, the draft bill was sent to the Assembly Committee on Public Safety, whose report likewise commented 8 on the mandatory life terms for murder. (Assem. Com. on Public Safety, 9 Analysis of Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as amended May 25, 2018, pp. 3-4, 5.) Quoting bill proponents, the Public Safety Committee’s 10 report suggested reform measures would have to look beyond nonviolent 11 offenders “(t)o meaningfully reduce prison populations and repair the harm of decades of mass incarceration.” (Id. at p. 7.) Senate Bill 1437 next reached 12 the Assembly Committee on Appropriations, whose report again noted the 13 lengthy prison terms for murder and suggested reform to permit “individuals previously sentenced on a theory of felony murder to petition for resentencing 14 if they meet specified qualifications.” (Assem. Com. on Appropriations, 15 Analysis of Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as amended May 25, 2018, pp. 1-2.) 16

17 Amendments were made in the Assembly before Senate Bill 1437 reached a floor vote. Significant for our purposes, the Assembly revised the 18 petitioning procedure now found in section 1170.95, subdivision (a). As 19 passed by the Senate, the introductory clause provided: “A defendant may submit a request to have his or her conviction vacated and petition for 20 resentencing when all of the following conditions apply . . . .” (Sen. Bill No. 21 1437 (2017-2018 Reg. Sess.) as amended May 25, 2018, § 6.) The Assembly amended this language to its enacted form: “A person convicted of felony 22 murder or murder under a natural and probable consequences theory may file 23 a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and be resentenced on any remaining counts when 24 all of the following conditions apply . . . .” (Sen. Bill No. 1437 (2017-2018 25 Reg. Sess.) as amended Aug. 20, 2018, § 4; see Pen. Code, § 1170.95, subd. (a).) The bill passed the Assembly; the Senate concurred in the Assembly 26 amendments, and Senate Bill 1437 was signed into law. 27 We draw a few broad points from this detailed history. First, the 28 1 Legislature understood the distinction between murder and manslaughter and focused its efforts on revising accomplice liability under a felony murder or 2 natural and probable consequences theory. Second, nearly every committee 3 report and analyses made note of the life sentences imposed for defendants convicted of first- or second-degree murder. One report based cost estimates 4 on the number of inmates serving terms for first- or second-degree murder. 5 Finally, the petitioning procedure was restricted by amendment to apply to persons convicted of felony murder or murder under a natural and probable 6 consequences theory. Viewed together, the legislative history confirms that a 7 defendant who faces murder liability under the natural and probable consequences doctrine, but pleads guilty to manslaughter in lieu of trial, is not 8 eligible for resentencing under section 1170.95. The trial court did not err in 9 summarily denying relief.

10 b. No Absurdity Results from This Construction 11 Turner objects that our construction of section 1170.95, subdivision (a) 12 to categorically deny relief to those convicted by plea of manslaughter would 13 create absurd consequences. “Courts may, of course, disregard even plain language which leads to absurd results or contravenes clear evidence of a 14 contrary legislative intent.” (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 15 1105.) But our interpretation does neither. The uncodified legislative declarations and findings in Senate Bill 1437 make repeated references to 16 “murder,” underscoring the need to amend the natural and probable 17 consequences doctrine “as it relates to murder,” but include no references to manslaughter. The petitioning prerequisites and available relief all 18 presuppose a murder conviction. And the legislative history underscores that 19 the Legislature did not intend to extend relief to persons like Turner, who were convicted of manslaughter by plea. 20

21 Nor does our construction produce absurdity by undermining the Legislature’s goal to calibrate punishment to culpability. The punishment for 22 manslaughter is already less than that imposed for first- or second-degree 23 murder, and the determinate sentencing ranges of 3, 6, or 11 years for voluntary manslaughter and 2, 3, or 4 years for involuntary manslaughter 24 permit a sentencing judge to make punishment commensurate with a 25 defendant’s culpability based on aggravating and mitigating factors. (Pen. Code, § 193, subds. (a)-(b); see Munoz, supra, 39 Cal.App.5th at pp. 757-758, 26 rev. granted.) Providing relief solely to defendants convicted of murder under 27 a felony-murder or natural-and-probable consequences theory does not conflict with the Legislature’s stated objective to make “statutory changes to 28 1 more equitably sentence offenders in accordance with their involvement in homicides.” (Stats. 2018, ch.1015, § 1, subd. (b).) 2

3 3. The Factual Basis Requirement

4 Having found that Senate Bill 1437 does not extend to defendants 5 convicted of manslaughter, we acknowledge that in hindsight, Turner would have fared better by pleading guilty to murder. Because his liability would 6 have been premised on Rusty’s killing being a natural, probable, and 7 foreseeable consequence of his participation in the assault, he could have petitioned for relief under section 1170.95. Instead he pleaded guilty to 8 voluntary manslaughter, in the process admitting every element of that 9 offense. (See In re Chavez (2003) 30 Cal.4th 643, 649.)

10 A voluntary manslaughter is an intentional and unlawful killing without 11 malice usually based on a sudden quarrel, heat of passion or imperfect self- defense. (Breverman, supra, 19 Cal.4th at p. 154; see Pen. Code, § 192.) As 12 the People state, “neither felony-murder nor the natural and probable 13 consequences doctrine are theories on which one can commit voluntary manslaughter.” (See People v. Price (2017) 8 Cal.App.5th 409, 430 14 (“Voluntary manslaughter thus is not a lesser included offense of felony 15 murder”); Chiu, supra, 59 Cal.4th at pp. 164-165 (natural and probable consequences doctrine holds aiders and abettors of a target crime liable for 16 nontarget offenses they have naturally, probably, and foreseeably put in 17 motion).) By admitting voluntary manslaughter, Turner seems worse off for pleading guilty to a crime he likely could not have committed. 18

19 If there is a problem, it may lie in the adequacy of the factual basis for Turner’s plea. Before a court can approve a conditional plea of guilty or no 20 contest to a felony, it must “inquir(e) . . . of the defendant to satisfy itself that 21 the plea is freely and voluntarily made, and that there is a factual basis for the plea.” (§ 1192.5.) Whatever method employed, a bare statement that a factual 22 basis exists, without inquiry, is inadequate. (See generally, People v. Holmes 23 (2004) 32 Cal.4th 432, 436; People v. Palmer (2013) 58 Cal.4th 110, 118 (Palmer).) The factual basis inquiry serves an important purpose: 24

25 “One of the primary reasons an innocent defendant might plead guilty is ‘the disparity in punishment between conviction by plea 26 and conviction at trial.’ (Citation.) Such a disparity is 27 particularly likely to be a motivating factor for a plea when the charges expose the defendant to a potentially lengthy term or 28 1 other severe punishment, and the prosecution offers substantially reduced punishment in exchange for a plea of guilty or no 2 contest. The Legislature could rationally have believed this 3 situation—a negotiated plea—creates an especially high risk the defendant will plead to a crime he or she did not commit and for 4 which no factual basis can be established. Section 1192.5, third 5 paragraph, is designed to protect against that result.”

6 (People v. Hoffard (1995) 10 Cal.4th 1170, 1182 (Hoffard).) 7 In the wake of Senate Bill 1437, there may be other cases like Turner’s. 8 But defining crimes and prescribing punishment is the Legislature’s role. (In 9 re Lynch (1972) 8 Cal.3d 410, 414.) And the adequacy of the court’s factual basis inquiry is not before us. We are sensitive to Turner’s perception that he 10 is in custody “for a crime he did not commit” and to his frustrated expectation 11 that after Senate Bill 1437 “he would get his case heard.” Yet we are constrained to conclude Senate Bill 1437 does not provide him an avenue for 12 relief. 13 Turner, 45 Cal. App. 5th at 434-41 (footnotes omitted). 14 The state appellate court explicitly addressed and rejected Petitioner’s claim that the 15 trial court erred in finding he was not entitled to resentencing under Senate Bill 1437 and 16 California Penal Code Section 1170.95. The appellate court did not explicitly address the 17 claim, which was properly presented to the court, that the misapplication of those laws by 18 the trial court violated federal due process, although the court impliedly rejected that 19 federal claim by rejecting the claim of trial court error. “When a federal claim has been 20 presented to a state court and the state court has denied relief, it may be presumed that the 21 state court adjudicated the claim on the merits in the absence of any indication or state-law 22 procedural principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). “The 23 presumption may be overcome when there is reason to think some other explanation for 24 the state court’s decision is more likely.” Id. at 99-100. There is no basis in the record to 25 rebut the presumption that the state court reached the merits of Petitioner’s federal due 26 process claim. Id.; see also Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (holding 27 that AEDPA deference does not apply only where “no adjudication on the merits in state 28 1 court was possible”). Petitioner bears the burden of “showing there was no reasonable 2 basis for the state court to deny relief.” Richter, 562 U.S. at 98. 3 After the state court issued its opinion, California courts consistently rejected 4 Petitioner’s reading of those state laws, further undermining any contention the application 5 of the state law is arbitrary or capricious or based on a misinterpretation of the law. See 6 People v. Sanchez, 48 Cal. App. 5th 914, 916 (Cal. App. Ct. 2020) (defendant charged with 7 first degree murder with gang enhancement who entered guilty plea to voluntary 8 manslaughter and admitted enhancement not entitled to § 1170.95 relief); People v. Flores, 9 44 Cal. App. 5th 985, 989-90 (Cal. App. Ct. 2020) (defendant charged with murder with 10 robbery and gang enhancements who entered guilty plea to voluntary manslaughter and 11 admitted enhancements not entitled to § 1170.95 relief); People v. Cervantes, 44 Cal. App. 12 5th 884, 887 (Cal. Ct. App. 2020) (defendant charged with murder who entered guilty plea 13 to manslaughter not entitled to § 1170.95 relief). 14 Petitioner has failed to show that the determination by the state court that he is not 15 eligible for resentencing under Senate Bill 1437 and California Penal Code 16 Section 1170.95 because he was not convicted of murder is incorrect, much less that it is 17 so arbitrary or capricious as to amount to a federal due process violation or amounts to 18 subterfuge to avoid review of his federal claim. See Richmond, 506 U.S. at 50 (holding 19 that a state court’s application of state law does not rise to the level of a federal due process 20 violation unless it was so arbitrary or capricious as to constitute an independent due process 21 violation); Knapp, 667 F.2d at 1260 (“Federal courts will not review a state supreme court’s 22 interpretation of its own statute unless that interpretation is clearly untenable and amounts 23 to a subterfuge to avoid federal review of a deprivation by the state of rights guaranteed by 24 the Constitution.”); Trombetta, 467 U.S. at 485 (“Under the Due Process Clause of the 25 Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of 26 fundamental fairness.”). 27 The state court adjudication of Petitioner’s federal due process aspect of Claim One 28 is neither contrary to, nor an unreasonable application of, clearly established federal law, 1 and does not involve an unreasonable determination of the facts. 28 U.S.C. § 2254(d); 2 Williams, 529 U.S. at 405-07; Miller-El, 537 U.S. at 340. 3 2. Eighth and Fourteenth Amendments 4 Petitioner claims his right to be free from cruel and unusual punishment under the 5 Eighth Amendment has been violated because he is serving a term of imprisonment for a 6 crime he did not commit, and that he has been denied equal protection of the laws in 7 violation of the Fourteenth Amendment because he is being treated differently than 8 defendants who benefit from the changes in the law by Senate Bill 1437 and California 9 Penal Code Section 1170.95. (ECF No. 16 at 8). As set forth above, Petitioner did not 10 present these aspects of Claim One to the state court and they are procedurally defaulted. 11 Petitioner attempts to overcome the default by arguing he is actually innocent of 12 voluntary manslaughter, stating that he “did not kill Rusty Seau and the idea never entered 13 [his] mind” and he therefore could not have been convicted of manslaughter. (ECF No. 16 14 at 11). He argued in state court that he would not have pleaded guilty to the gang 15 enhancement if he had known his co-defendant Tony Lessie would be acquitted of the gang 16 allegations at his trial, even though Lessie’s jury deadlocked on the gang enhancement 17 almost eight months before Petitioner entered his guilty plea. (ECF No. 15-17 at 7). He 18 also argued in state court that Lessie’s acquittal on the gang enhancement means there is 19 no evidence to support Petitioner’s gang enhancement. (Id.). 20 In order to establish actual innocence sufficient to satisfy the “exacting gateway 21 standard established by the Supreme Court in Schlup” to overcome a procedural default, 22 “a petitioner must show that, in light of all the evidence, including evidence not introduced 23 at trial, ‘it is more likely than not that no reasonable juror would have found petitioner 24 guilty beyond a reasonable doubt.’” Majoy v. Roe, 296 F.3d 770, 775-76 (9th Cir. 2002) 25 (quoting Schlup, 513 U.S. at 324); see also Schlup, 513 U.S. at 327 (requiring presentation 26 of “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical 27 evidence” establishing that “a constitutional violation has probably resulted in the 28 conviction of one who is actually innocent.”) This Court “must consider ‘all the evidence,’ 1 old and new, incriminating and exculpatory, without regard to whether it would necessarily 2 be admitted under ‘rules of admissibility that would govern at trial.’” House v. Bell, 547 3 U.S. 518, 538 (2006) (quoting Schlup, 513 U.S. at 327-28). “A petitioner need not show 4 that he is ‘actually innocent’ of the crime he was convicted of committing; instead, he must 5 show that ‘“a court cannot have confidence in the outcome of the trial.’” Majoy, 296 F.3d 6 at 776 (quoting Carriger v. Stewart, 132 F.3d 463, 478 (9th Cir. 1997)) (en banc). 7 Before Petitioner entered his guilty plea, his co-defendant Tony Lessie was 8 convicted by a jury of second degree murder while intentionally and personally using a 9 firearm and sentenced to forty years to life in prison. See Lessie, 47 Cal. 4th at 1157. The 10 state supreme court stated that Lessie’s “confessions were generally consistent with the 11 other evidence admitted at trial, including his own testimony,” which showed that: 12 Defendant [Lessie] claimed he had been forced to shoot by James Turner, with whom he had been living. Turner, who used the gang moniker “Black Jack” 13 and claimed membership in gangs affiliated with the Crips, forced a 14 confrontation with Seau and another man over an offense given earlier in the day. Defendant, who used the moniker “Blue Devil,” denied belonging to a 15 gang but admitted wanting to join. On the way to the confrontation, riding in 16 a car with defendant and two others, Turner gave defendant a pistol and told him he “better shoot. You got to shoot somebody.” Defendant described the 17 shooting as “like an initiation thing” and believed he would be beaten or killed 18 as “discipline” if he did not do as he was told. Upon arriving at the scene of the confrontation, defendant, Turner and the others found that Seau and his 19 companion did not want to fight. Turner nevertheless “banged” on Seau by 20 announcing his gang affiliation, which Seau in turn mocked, and Turner and a companion then attacked Seau. At this point, Turner shouted at defendant 21 to shoot. As Seau attempted to run away, defendant shot him fatally in the 22 back.

23 Id. 24 Lessie confessed during two custodial interrogations which took place in September 25 2005 and January 2006, id. at 1157-60, which formed the basis of a motion to sever the 26 trials filed on August 18, 2006, a copy of which is in this Court’s file in Lessie’s own 27 28 1 federal habeas action. See ECF No. 13-2 at 27-150 in Lessie v. Virga, So. Dist. Ca. Case 2 No. 10cv2065-IEG (RBB). Lessie told police that he and Petitioner were passing out flyers 3 and attempted to speak to a woman passing by, who refused to speak to them, and when 4 they later went to visit Petitioner’s girlfriend outside her nearby workplace they 5 encountered two rival male gang members talking to her who told Lessie and Petitioner 6 they should not have spoken to the other woman because she was one of their girlfriends, 7 and told Lessie and Petitioner where to meet them to fight. Id. at 126-27. Lessie said they 8 retrieved a gun from Petitioner’s apartment where they were joined by Petitioner’s cousin, 9 Petitioner gave Lessie the gun, instructed him how to use it, told him he had to shoot one 10 of the men or be disciplined by being jumped or killed, and then drove to the meeting place 11 where the men said they did not want to fight but Petitioner and his cousin started a fight 12 and Lessie shot Seau on Petitioner’s order. Id. at 127-34. Petitioner’s girlfriend told police 13 that shortly after the shooting he hid the gun in the trunk of her car and said he had gotten 14 into an argument with several men and went to meet them to fight but encountered different 15 men, and they got into an argument and Seau happened to walk by and was shot. Id. at 37- 16 39. Several witnesses identified Petitioner as present during the shooting and one indicated 17 he heard Petitioner or his cousin tell Lessie to shoot Seau. Id. at 53-68. 18 On November 6, 2006, Lessie was found not guilty of first degree murder but guilty 19 of second degree murder with true findings on the firearm use allegation, with the jury 20 deadlocked on the gang enhancement for which a mistrial was declared, and his post- 21 conviction motion to have his conviction reduced to voluntary manslaughter was denied. 22 Id. at 267-69. Petitioner entered his guilty plea over eight months later, on July 27, 2007, 23 well after he was or should have been aware of the outcome of Lessie’s trial and the 24 evidence presented there, namely, that Lessie approached the victim on the orders of 25 Petitioner to shoot someone in order to show his commitment to joining Petitioner’s gang 26

27 3 The Court takes judicial notice of its own proceedings as they “have a direct relation to 28 1 or suffer discipline, that Petitioner instigated an argument based on gang affiliations, and 2 that Lessie shot the victim on Petitioner’s orders in fear he would be beaten or killed if he 3 refused. Lessie, 47 Cal. 4th at 1157. 4 Petitioner presents no new evidence in support of his Schlup claim, but argues that 5 the circumstances changed when murder liability under state law was redefined and when 6 his co-defendant was acquitted of the same gang enhancement with which he was charged. 7 Under the Schlup standard, Petitioner’s failure to produce evidence precludes a finding that 8 “a court cannot have confidence in the outcome” of his voluntary manslaughter conviction. 9 Majoy, 296 F.3d at 776. Existing evidence of Petitioner’s intent and role in the underlying 10 felony further undermines a claim of actual innocence. See Salazar v. Spearman, No. 11 LACV 19-8996-JAK (LAL), 2021 WL 4539080, at *9-10 (C.D. Cal. Aug. 30, 2021) 12 (finding voluntary manslaughter appropriate where petitioner enlisted a fellow gang 13 member to help hunt down rival gang member following an altercation who shot and killed 14 the rival gang member, and rejecting petitioner’s contention he could not have been guilty 15 of any crime without being the shooter or having intent to kill) (citing People v. Beeman, 16 35 Cal. 3d 547, 561 (1984) (“a person aids and abets the commission of a crime when he 17 or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the 18 intent or purpose of committing, encouraging, or facilitating the commission of the offense, 19 (3) by act or advice aids, promotes, encourages or instigates, the commission of the 20 crime.”)). 21 Even were Petitioner to overcome the default, his claim lacks merit. The standard 22 of review for claims that are technically exhausted and procedurally defaulted is unclear. 23 Slovik v. Yates, 556 F.3d 747, 751 n.4 (9th Cir. 2009). However, denial of such a claim 24 under a de novo review assures a finding that habeas relief is unavailable irrespective of 25 any procedural default or failure to exhaust. See Berghuis v. Thompkins, 560 U.S. 370, 26 390 (2010) (holding that when the standard of review is unclear, a federal habeas court 27 may conduct a de novo review to deny a petition “because a habeas petitioner will not be 28 entitled to a writ of habeas corpus if his or her claim is rejected on de novo review.”) 1 The Eighth Amendment aspect of Claim One fails because the cruel and unusual 2 punishment clause “forbids only extreme sentences that are ‘grossly disproportionate’ to 3 the crime.” United States v. Harris, 154 F.3d 1082, 1084 (9th Cir. 1998) (quoting Harmelin 4 v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring) (life without parole for 5 possession of 650 grams of cocaine did not constitute cruel and unusual punishment)). 6 Petitioner has made no showing that his 11-year sentence for voluntary manslaughter and 7 10-year gang enhancement are in any manner disproportionate to his participation in the 8 killing of Rusty Seau, which he admitted at his plea hearing he participated in for the 9 benefit of, at the direction of, and in association with a criminal street gang, and which the 10 evidence at Lessie’s trial showed he ordered Lessie to shoot Seau for the benefit of 11 Petitioner’s gang and threatened to kill or injure Lessie if he did not shoot Seau. 12 Petitioner’s Fourteenth Amendment equal protection claim is also without merit. 13 Federal equal protection “is essentially a direction that all persons similarly situated should 14 be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). 15 Petitioner is not similarly situated to the persons who benefit from the changes in the law 16 by Senate Bill 1437 and California Penal Code Section 1170.95, who are people convicted 17 of murder under a felony murder theory or a natural and probable consequences theory. 18 Accordingly, habeas relief is denied as to the Eighth and Fourteenth Amendment 19 aspects of claim one on the basis they are procedurally defaulted and without merit. 20 C. Claim Two 21 Petitioner alleges in Claim Two that the state court failed to ascertain a factual basis 22 for the plea, which lacks a factual basis. (ECF No. 1 at 5). Petitioner does not identify a 23 federal basis for this claim in the Petition, but states in the Traverse that Claim Two 24 presents the same Sixth, Eighth and Fourteenth Amendment claims as Claim One. (ECF 25 No. 16 at 8-14). Respondent answers that Claim Two is untimely because it was filed at 26 least nine years after expiration of the one-year federal statute of limitations, it fails to 27 present a cognizable federal claim because the entry of a guilty plea on the advice of 28 counsel generally forecloses all collateral attacks other than jurisdictional claims, and it 1 lacks merit because the change in law does not apply to him and there is no prohibition 2 against inconsistent verdicts regarding the gang enhancement. (ECF No. 14-1 at 22-27). 3 Petitioner presented Claim Two to the trial court in a habeas petition filed on 4 November 20, 2020. (See ECF No. 15-15 at 41). The trial court denied the petition on 5 November 23, 2020, on the basis that Petitioner could have raised this claim in one of his 6 three prior state habeas petitions but did not, that it was untimely, and that he failed to make 7 a prima facie showing of an entitlement to relief. (Id. at 40-42). On December 29, 2020, 8 Petitioner filed a pro se habeas petition in the state appellate court raising the same claim. 9 (Id. at 1-45.) The appellate court denied relief on December 31, 2020, on the basis that: 10 (1) the petition was barred by the failure to obtain a certificate of probable cause needed to 11 attack the validity of a guilty plea, (2) it was untimely because it was filed more than 13 12 years after sentencing with no explanation for the delay, (3) it was barred as repetitive and 13 successive to prior habeas petitions filed by Petitioner, and (4) because claims challenging 14 the sufficiency of evidence to support a conviction are not cognizable on habeas. (ECF 15 No. 15-16 at 2). Petitioner raised the claim in the state supreme court in a pro se habeas 16 petition which was denied on May 12, 2021, in an order which stated: “The petition for 17 writ of habeas corpus is denied. (See In re Waltreus (1965) 62 Ca.2d 218, 225 [courts will 18 not entertain habeas corpus claim that were rejected on appeal].)” (ECF No. 15-18 at 1). 19 He presented the same federal claim in state court as he does here. (ECF No. 15-15 at 4- 20 5; ECF No. 15-17 at 17; ECF No. 16 at 8-12). Respondent contends the claim is untimely 21 because it was filed after expiration of the one-year statute of limitations in 28 U.S.C. § 22 2244. (ECF No. 14-1 at 22-24.) 23 A one-year statute of limitations applicable to federal habeas petitions pursuant to 24 28 U.S.C. § 2254 begins to run at the latest of— 25 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 26

27 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is 28 1 removed, if the applicant was prevented from filing by such State action;

2 (C) the date on which the constitutional right asserted was initially 3 recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral 4 review; or 5 (D) the date on which the factual predicate of the claim or claims 6 presented could have been discovered through the exercise of due diligence. 7 28 U.S.C. § 2244(d)(1)(A)-(D). 8 Because Claim Two relies on events of which Petitioner was aware when he entered 9 his guilty plea, 28 U.S.C. § 2244(d)(1)(A) provides the triggering date. Since he did not 10 appeal his guilty plea, the triggering date is the last day he could have filed an appeal. 11 Gonzalez v. Thaler, 565 U.S. 134, 137 (2012). Petitioner entered his guilty plea on July 12 27, 2007. (ECF No. 15-1 at 33.) His appeal was due 60 days later, September 25, 2007. 13 See Roberts v. Marshall, 627 F.3d 768, 771 (9th Cir. 2010) (citing Cal. R. Ct. 8.308(a)). 14 The one-year federal statute of limitations began to run the next day. Patterson v. Stewart, 15 251 F.3d 1243, 1246 (9th Cir. 2001). Thus, Petitioner had until September 24, 2008 to 16 timely file a federal habeas petition challenging his plea. 17 Petitioner filed his federal Petition in this action on March 3, 2020, over eleven years 18 late. Even to the extent he is entitled to statutory tolling of the limitations period during 19 the time he was pursuing state habeas petitions from November 1, 2007 to April 26, 2011, 20 the statute of limitations would have expired on April 25, 2012, and the Petition is still 21 nearly eight years late. There is no basis for equitable tolling. To the extent Petitioner 22 contends he can establish actual innocence to excuse the untimely filing his contention is 23 without merit as discussed above in Claim One. 24 Federal habeas relief is denied as to Claim Two because relief is precluded by 25 Petitioner’s failure to file his Petition within the one-year statute of limitations for federal 26 habeas petitions filed pursuant to 28 U.S.C. § 2244. 27 /// 28 1 V. Evidentiary Hearing 2 Petitioner requests an evidentiary hearing in his Traverse. (ECF No. 16 at 2). The 3 request is denied because even assuming the allegations in his Petition are true the state 4 court record provides an adequate basis to adjudicate his claims. See Campbell v. Wood, 5 18 F.3d 662, 679 (9th Cir. 1994) (holding that an evidentiary hearing is not necessary where 6 the federal claim can be denied on the basis of the state court record, and where the 7 allegations, even if true, do not provide a basis for relief). 8 VI. Petitioner’s Motion to Dismiss 9 Petitioner requests this action be dismissed without prejudice, so that he can file an 10 amended petition after he has pursued resentencing pursuant to Senate Bill 775, which he 11 contends will go into effect on January 1, 2022, and will make Senate Bill 1437 applicable 12 to defendants like him who pleaded guilty to manslaughter to avoid a murder conviction. 13 (ECF No. 18). There is no basis to stay this action or allow Petitioner to amend his Petition 14 after seeking relief under Senate Bill 775. Assuming Petitioner is denied relief in state 15 court and assuming he can articulate a federal habeas claim arising from that denial, he 16 may file a new federal habeas petition asserting those new federal claims which have not 17 yet arisen and which would have no relevance to the claims presented in the instant Petition 18 challenging the 2019 state court finding that Senate Bill 1437 is not applicable to him and 19 the factual basis of his 2007 plea. 20 VII. Certificate of Appealability 21 The Court is required to grant or deny a Certificate of Appealability when entering 22 a final order adjudicating a 28 U.S.C. § 2254 habeas petition. See Rule 11, rules foll. 28 23 U.S.C. § 2254. “[T]he only question [in determining whether to grant a Certificate of 24 Appealability] is whether the applicant has shown that jurists of reason could disagree with 25 the district court’s resolution of his constitutional claims or that jurists could conclude the 26 issues presented [including procedural issues] are adequate to deserve encouragement to 27 proceed further.” Buck v. Davis, 580 U.S. ___, 137 S.Ct. 759, 773 (2017). Applying that 28 standard, a Certificate of Appealability is not appropriate as to any claim presented in the 1 || Petition or Traverse. 2 || VIII. Conclusion and Order 3 Based on the foregoing, the Petition for a Writ of Habeas Corpus (ECF No. 1) 1s 4 ||denied, Petitioner’s Motion to Dismiss (ECF No. 18) is denied, and a Certificate of 5 || Appealability is denied. The Clerk of Court shall enter judgment accordingly. 6 7 || Dated: November 8, 2021 Nitta Ze. A a 8 Hon, William Q. Hayes 9 United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30