ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

ANDRÉ BIROTTE, JR., District Judge.

Pursuant to 28 U.S.C. section 636, the Court has reviewed the First Amended Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that: (1) Petitioner's "Motion for Evidentiary Hearing, etc." is denied; and (2) Judgment shall be entered denying and dismissing the First Amended Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable André Birotte, Jr., United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

On April 24, 2017, Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody." The Petition alleged three grounds for relief.

On May 11, 2017, Respondent filed a "Motion to Dismiss Petition, etc." The Motion to Dismiss argued that Petitioner's claims were not cognizable and that Grounds Two and Three of the Petition were fatally vague, conclusory and unclear. On June 9, 2017, Petitioner filed a "Motion in Opposition, etc.," constituting Petitioner's opposition to the Motion to Dismiss. The "Motion in Opposition, etc." alleged additional factual detail and attached purported copies of Petitioner's plea agreement and a state court minute order.

On June 22, 2017, the Magistrate Judge issued a Minute Order construing Petitioner's "Motion in Opposition, etc." as including a request for leave to amend the Petition. The Magistrate Judge: (1) ordered Petitioner to file all additional evidence Petitioner desired the Court to consider in the action; (2) ordered Respondent to file a transcript of Petitioner's 2007 plea hearing, if available, and copies of all petitions filed by Petitioner in his 2016-17 state collateral review proceedings; (3) deemed the Motion to Dismiss denied without prejudice; and (4) ordered Respondent to file an Answer to the Petition as deemed amended/supplemented by Petitioner's subsequent filings.

On August 2, 2017, Respondent lodged various documents including a declaration of a Legal Analyst in the Correctional Writs and Appeals Section of the California Attorney General's Office. This declaration stated that the search for a transcript of Petitioner's 2007 plea hearing had been unsuccessful. Petitioner did not file any additional evidence within the allotted time.

On August 24, 2017, the Magistrate Judge ordered Petitioner to file a First Amended Petition: (1) alleging all claims Petitioner desired to assert in the action; (2) alleging specific facts supporting each of Petitioner's claims; and (3) attaching all evidence supporting each of Petitioner's claims. See Minute Order, filed August 24, 2017.

On September 15, 2017, Petitioner filed a First Amended Petition. On October 10, 2017, Respondent filed an Answer. On November 27, 2017, Petitioner filed a Traverse.

On December 11, 2017, Petitioner filed a "Request for Leave of Court to File Motion for Discovery, etc." On December 18, 2017, the Magistrate Judge issued a Minute Order denying the request, citing Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011).

Meanwhile, on December 14, 2017, Petitioner filed a "Motion for Evidentiary Hearing, etc."

BACKGROUND

On May 7, 2007, Petitioner pled nolo contendere to one count of second degree robbery in violation of California Penal Code section 211 and one count of assault with a stun gun or taser in violation of California Penal Code section 244.5(b) (First Amended Petition, Exs. F, L; Respondent's October 10, 2017 Lodgment 1, p. AG-001; Respondent's August 2, 2017 Lodgment 4, pp. 4-5).1 Petitioner also admitted having suffered a prior conviction qualifying as a prior serious felony conviction within the meaning of California Penal Code section 667(a)(1) and also qualifying as a strike within the meaning of California's Three Strikes Law, California Penal Code sections 667(b) — (i) and 1170.12(a) — (d)2 (First Amended Petition, Exs. F, L; Respondent's October 10, 2017 Lodgment 1; Respondent's August 2, 2017 Lodgment 4, pp. 4-5). Pursuant to the Three Strikes Law, the court deemed Petitioner to be a "second striker" and sentenced Petitioner to a total term of twenty-one years and four months (First Amended Petition, Ex. F, p. 6, & Ex. G; Respondent's August 2, 2017 Lodgment 4, pp. 6-7).

On March 20, 2015, Petitioner filed an inmate appeal alleging an error in the computation of his earliest possible release date (First Amended Petition, Ex. B). Petitioner argued that he supposedly should have received 20% credits until February of 2014 and 33.3% credits thereafter (id.). Petitioner's appeal was denied at the first level of review (id., Exs. B, C). Petitioner appealed to the second level of review requesting, inter alia, a computation review hearing (id., Ex. B). Petitioner's appeal was denied at the second level of review, inter alia on the ground that Petitioner supposedly was not entitled to a computation review hearing (id., Exs. B, D). Petitioner appealed to the third and final level of review, inter alia challenging the denial of a computation review hearing (id., Ex. B). A third level administrator found that the second level reviewers had erred in finding that Petitioner was not entitled to a computation review hearing (id., Ex. E). The administrator denied relief, however, because Petitioner assertedly was not entitled to the credits Petitioner sought (id., Ex. E). Accordingly, Petitioner's appeal was denied at the third level (id.).

On August 24, 2016, Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, contending that prison officials' calculation of credits at 15% supposedly violated Petitioner's plea agreement (Respondent's August 2, 2017 Lodgment 1). The Superior Court denied the petition on August 26, 2016, in a brief order stating that: (1) Petitioner failed to allege facts establishing a prima facie case for habeas relief; and (2) the petition was vague and conclusory (Respondent's October 10, 2017 Lodgment 3, p. AG-0010). Petitioner filed a habeas corpus petition in the California Court of Appeal, claiming that prison officials had denied Petitioner a computation review hearing and had calculated Petitioner's credits in asserted violation of Petitioner's plea agreement (Respondent's October 10, 2017 Lodgment 4). On November 2, 2016, the Court of Appeal denied the petition summarily (First Amended Petition, Ex. J; Respondent's October 10, 2017 Lodgment 5). Petitioner filed a habeas corpus petition in the California Supreme Court, alleging the same two claims and adding a "miscarriage of justice" claim (Respondent's October 10, 2017 Lodgment 6). The California Supreme Court summarily denied the petition on February 15, 2017 (First Amended Petition, Ex. K; Respondent's October 10, 2017 Lodgment 7).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. Prison officials' refusal to conduct a computation review hearing allegedly violated due process (Ground One);

2. The limitation of Petitioner's credits to 15% allegedly violated Petitioner's plea agreement (Ground Two); and

3. Petitioner allegedly suffered a "miscarriage of justice" because: (1) the state courts assertedly declined to consider the merits of Petitioner's constitutional claims (Traverse, p. 3); and (2) the state courts' decisions assertedly were "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement" (Traverse, p. 8) (Ground Three).3

STANDARD OF REVIEW

Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 565 U.S. 34, 38 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application" prong of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).

"In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been `objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. at 101. This is "the only question that matters under § 2254(d)(1)." Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.

In applying these standards, the Court ordinarily looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. at 102; see also Cullen v. Pinholster, 563 U.S. 170, 188 (2011).

Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

DISCUSSION

I. The Failure to Conduct a Computation Review Hearing Does Not Merit Federal Habeas Relief.

To the extent Petitioner alleges that the denial of a computation review hearing violated state law or prison regulations, any such claim fails. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (federal habeas relief unavailable for state law errors).

The Court need not and does not determine whether the denial of a computation review hearing violated Petitioner's federal due process rights. Assuming arguendo a violation of due process, for the reasons discussed below such violation was harmless under Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) ("Brecht"). Brecht forbids a grant of federal habeas relief for a non-structural error unless the error had a "substantial and injurious effect or influence" on the outcome of the case. Id. No such effect or influence proceeded from the denial of a computation review hearing.

Under California Penal Code section 2933, a nonviolent offender generally may earn sentence reduction credits at a rate of fifty percent.4 However, the Three Strikes Law provides that, "[n]otwithstanding any other law, the total amount of credits awarded to a "second strike" offender "shall not exceed one-fifth of the total term of imprisonment imposed. . . ." Cal. Penal Code §§ 667(c)(5); 1170.12(a)(5). Petitioner appears to argue that this Three Strikes Law provision entitles Petitioner to earn 20% credits. However, this provision is a limitation, not an authorization; the provision prescribes a maximum, not a minimum. See In re Cervera, 24 Cal.4th 1073, 1078, 103 Cal.Rptr.2d 762, 16 P.3d 176 (2001) (20% credit limitation does not authorize credits against indeterminate sentences "or indeed against any terms of imprisonment").

Moreover, California Penal Code section 2933.1(a) provides: "Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit. . . ." Under section 2933.1, a "defendant convicted of a violent felony can earn a maximum of 15 percent in custody credits, thereby ensuring that he or she serves at least 85 percent of the sentence imposed." People v. Singleton, 155 Cal.App.4th 1332, 1337, 66 Cal.Rptr.3d 738 (2007) (citation omitted).

At the time of Petitioner's conviction, robbery was, and still is, a violent felony listed in subdivision (c) of Section 667.5. See Cal. Penal Code § 667.5(c)(9). Accordingly, Petitioner was, and is, entitled to only 15% credits. See Cal. Penal Code § 2933.1(a); Bankuthy v. Yates, 376 Fed. App'x 694, 695 (9th Cir. 2010) (rejecting due process challenge to state's failure to award violent offender day-for-day credits; "Cal. Penal Code §2933.1 clearly limits the sentence credits Bankruthy may earn . . . to fifteen percent."); Brooks v. MCCF Golden State McFarland, 2015 WL 4999496, at *3 (C.D. Cal. Aug. 20, 2015) (petitioner convicted of robbery subject to section 2933.1 limitation of credits to 15%); Aung v. Beard, 2014 WL 7185336, at *2 (C.D. Cal. Dec. 15, 2014) ("As a matter of state law, the 15% rate in § 2933.1 expressly overrides the credit accrual rule in § 2933 or any other statute.") (citation omitted); see also Contero v. Tilton, 248 Fed. App'x 778, 779-80 (9th Cir. 2007) (section 2933.1 serves rational interest in treating violent offenders more harshly).

Nevertheless, Petitioner appears to argue a purported entitlement to receive greater than 15% credits under two consolidated federal court class actions, Coleman v. Brown, United States District Court for the Eastern District of California case number 2:90-0520-LKK DAD (PC), and Plata v. Brown, United States District Court for the Northern District of California case number C01-1351-THE (see First Amended Petition, attachment, p. 1). On February 10, 2014, a three judge district court issued an order in Coleman and Plata concerning the calculation of credits for non-violent second strike offenders, in an effort to ameliorate overcrowding in California prisons.5 The court inter alia ordered the California Department of Corrections and Rehabilitation to increase credits prospectively for non-violent second-strike offenders by awarding such offenders 33.3% credits (emphasis added). See also Miller v. Rickley, 2016 WL 7480265, at *4 (C.D. Cal. Nov. 22, 2016), adopted, 2016 WL 7485672 (C.D. Cal. Dec. 29, 2016) (describing order). On December 12, 2014, the California Department of Corrections and Rehabilitation issued a "Report to the 3JP on the Court-Ordered Parole Process for Non-Violent, Non-Sex Registrant, Second-Strike Offenders Who Have Served 50% of Their Sentence," setting forth a procedure whereby qualified inmates may earn 33.3% credits (see "Defendants' Report on New Parole Process, etc.," filed December 1, 2014 in Plata v. Brown, Docket No. 2826). Both the February 10, 2014 court order and the Report state that inmates whose current conviction is for a "violent" offense are not eligible for 33.3% credits. The Report defines "violent" offense as that term is defined in California Penal Code section 667.5(c).

To the extent Petitioner contends that his 15% credit limitation violated the court orders in the Coleman and Plata cases, Petitioner's contention fails as a matter of law. First, the orders issued in Coleman and Plata do not give rise to any constitutional entitlement because "the orders do not create or expand on a plaintiff's constitutional rights." Espinoza v. Saldivar, 2016 WL 7159249, at *3 (E.D. Cal. Dec. 8, 2016) (citations omitted). Second, because Petitioner's robbery conviction constituted a "violent felony," and the Plata/Coleman orders apply only to non-violent felonies, Petitioner would not be entitled to earn more than 15% credits under Plata and Coleman in any event. See Jones v. Director of Corrections, 2017 WL 2839623, at *6 (June 30, 2017) (even assuming the existence of a liberty interest in credits authorized by Plata and Coleman, the petitioner was a violent offender and did not have any "legitimate claim of entitlement to anything more than 15 percent worktime credits") (citation omitted); Perez v. Donovan, 2016 WL 7974656, at *6 (C.D. Cal. Dec. 12, 2016), adopted, 2017 WL 354683 (C.D. Cal. Jan. 24, 2017) (it is "perfectly clear" that the Plata and Coleman credit provisions are inapplicable to an inmate convicted of a violent felony).

Petitioner further argues that, because he assertedly received 20% credits against a prior sentence, he should receive such credits against his current sentence (see First Amended Petition, Ex. H, second page). This specious argument lacks merit. Petitioner reportedly received "2nd striker (20%/33%)" credits in connection with a 2000 conviction for attempted robbery (id.). With the exception of attempted murder, however, an attempt to commit a crime is not deemed a violent offense unless the attempted crime is a felony punishable by life in prison or unless the defendant inflicted great bodily injury or used a firearm in the commission of the offense. See People v. Ibarra, 134 Cal.App.3d 413, 425, 184 Cal.Rptr. 639 (1982) (attempt to commit offenses listed in section 667.5 not a violent offense);6 Cal. Penal Code § 667(c), 664. Therefore, Petitioner's prior attempted robbery conviction did not preclude the application of 20% credits. However, Petitioner's current conviction is for robbery, not attempted robbery. Robbery is a violent felony which precludes the application of 20% credits. See Cal. Penal Code §§ 667.5(c)9, 2933.1(a).

Thus, a computation review hearing could have reached no other conclusion than the conclusion that Petitioner's credits are limited to 15% as a matter of law. Consequently, the failure to hold a computation review hearing did not have any "substantial and injurious" effect or influence on the ultimate calculation of Petitioner's credits. See Robles v. Cate, 2009 WL 1155653, at *2-3 (E.D. Cal. Apr. 29, 2009) (rejecting claim that denial of computation review hearing concerning allegedly improper limitation of credits to 15% violated due process, where the petitioner's commitment offense was a violent felony). Petitioner is not entitled to federal habeas relief on Ground One of the First Amended Petition.

II. Petitioner Has Failed to Demonstrate an Entitlement to Federal Habeas Relief on His Claim That the 15% Credit Limitation Assertedly Violated Petitioner's Plea Agreement.

When a guilty plea rests in any significant degree on an agreement with the government, the agreement ordinarily must be fulfilled. Santobello v. New York, 404 U.S. 257, 262 (1971); Gunn v. Ignacio, 263 F.3d 965, 969 (9th Cir. 2001). The party asserting a breach of an agreement bears the burden of proving the underlying facts establishing a breach. See United States v. Laday, 56 F.3d 24, 26 (5th Cir. 1995); see also United States v. Packwood, 848 F.2d 1009, 1011 (9th Cir. 1988). "Plea agreements are contractual in nature and are measured by contract law standards." Brown v. Poole, 337 F.3d 1155, 1159 (9th Cir. 2003) (citation and quotations omitted). In determining the intent of the parties respecting the terms of a plea agreement, "the relevant intent is objective, . . . not a party's subjective intent." Buckley v. Terhune, 441 F.3d 688, 695 (9th Cir. 2006), cert. denied, 550 U.S. 913 (2007) (citations and quotations omitted), disapproved on other grounds, Kernan v. Cuero, 138 S.Ct. 4 (2017).

Petitioner contends that the limitation of his credits to 15% purportedly violated Petitioner's plea agreement (First Amended Petition, attachment, p. 4; Traverse, p. 7). Petitioner appears to argue that, because the plea agreement provided for a second strike sentence under the Three Strikes Law, and because the Three Strikes Law provides that the total amount of credits awarded shall not exceed one-fifth of the total term of imprisonment imposed, Petitioner's agreement to a second strike sentence per se entitles him to 20% credits (First Amended Petition, attachment p. 4; see Traverse, p. 7). Petitioner relies on two exhibits to the First Amended Petition: (1) a document entitled "Guilty Plea in the Superior Court"; and (2) the minutes of Petitioner's sentencing hearing.

The "Guilty Plea in Superior Court" states, among other things, that Petitioner would receive a total sentence of twenty-one years and four months (First Amended Petition, Ex. L, p. 1). The sentencing minute order reflects the imposition of the agreed sentence of twenty-one years and four months (First Amended Petition, Ex. M). Neither document contains any agreement concerning the percentage at which post-conviction credits would be calculated.

As discussed above, the provision of the Three Strikes Law stating that credits may not exceed 20% sets a maximum, not a minimum. Any subjective belief by Petitioner that he would receive 20% credits is irrelevant. See Buckley v. Terhune, 441 F.3d at 695 (in determining the intent of parties to a plea bargain, "the relevant intent is objective, . . . not a party's subjective intent").

Furthermore, the abstract of judgment tends to belie Petitioner's claim. The abstract of judgment indicates that Petitioner received 40 days of "local conduct" presentence credits pursuant to California Penal Code section 2933.1, which limits presentence credits to 15% (see Respondent's October 10, 2016 Lodgment 1, p. AG-0002). See Cal. Penal Code § 2933.1(c). The abstract of judgment suggests that nothing in the plea agreement affected the application of section 2933.1 to the calculation of Petitioner's credits.

In sum, Petitioner has not met his burden to demonstrate that his plea agreement contained an extraordinary promise that, contrary to the law limiting the credits of second strike robbers to 15%, Petitioner actually would receive credits at the rate of 20%. The state courts' rejection of Petitioner's unsupported claim was not contrary to, or an unreasonable application of, any clearly established law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 101 (2011). Petitioner is not entitled to federal habeas relief on Ground Two of the First Amended Petition.

III. Petitioner Is Not Entitled to Federal Habeas Relief on His "Miscarriage of Justice" Claim.

Ground Three of the First Amended Petition is confused. Petitioner appears to contend the state court(s) refused to consider Petitioner's constitutional claims (Traverse, p. 3). Petitioner also appears to contend the state court(s)' decisions assertedly were "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement" under the AEDPA standard of review (Traverse, p. 8).

As indicated above, the Superior Court denied Petitioner's habeas petition both on the merits and, alternatively, on a procedural ground.7 See Phelps v. Alameida, 569 F.3d 1120, 1125-26 n.8 (9th Cir. 2009), cert denied, 558 U.S. 1137 (2010) (state court's denial of habeas petition for failure to state prima facie case constitutes a denial on the merits); Maas v. Superior Court, 1 Cal. 5th 962, 977-78, 209 Cal.Rptr.3d 571, 383 P.3d 637 (2016) ("When a judge summarily denies a habeas corpus petition for failure to state a prima facie case for relief, . . . the judge has resolved a contested issue of law against the petitioner, that is, the judge has decided that the factual allegations set forth in the petition, even assuming they are true, do not entitle the petitioner to relief."). The state courts did not refuse to decide any constitutional issues presented to them. Indeed, it appears Petitioner implicitly concedes that the state courts reached the merits, for he argues that those merits determinations were unreasonable under the AEDPA standard of review.8

To the extent Petitioner complains of the state courts' relative lack of explanation in denying Petitioner's habeas petitions, such complaints fail to state a basis for federal habeas relief. See, e.g., Owens v. Nool, 2010 WL 144364 (N.D. Cal. Jan. 5, 2010) (dismissing habeas petitioner's claim that the California Court of Appeal "erred in failing to state, in a written opinion, its reasons for denying petitioner's petition"); Stewart v. Sisto, 2008 WL 5178835, at *1 (E.D. Cal. Dec. 10, 2008) ("there is no federal constitutional prohibition preventing state courts from disposing of [the petitioner's] post-conviction claims in a summary fashion. Nor is there a federal requirement that state courts consider post-conviction claims with a full discussion of the merits"); Grant v. Rivers, 920 F.Supp. 769, 783 (E.D. Mich. 1996) ("The failure of the Michigan Court of Appeals to explain its dispositive opinion more completely does not render the decision constitutionally defective; nor is it a ground for relief in federal court on collateral review") (citation omitted).

To the extent Petitioner contends a purported "miscarriage of justice" assertedly excuses some perceived procedural default, any such claim is unavailing. First, procedural default is not at issue in this case because, as noted above, Respondent has not raised this issue. Second, and in any event, Petitioner's "miscarriage of justice" argument lacks merit for the reasons discussed below.

To the extent Petitioner claims a "miscarriage of justice" occurred because Petitioner supposedly is actually innocent, any such claim fails. Neither the Supreme Court nor the Ninth Circuit has ever recognized a freestanding claim of actual innocence. See Herrera v. Collins, 506 U.S. 390, 404-05 (1993); Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014); see also United States v. Quiroz, 706 Fed. App'x 423, 423 (9th Cir. 2017) (recognizing absence of such authority). In the absence of United States Supreme Court case law authorizing a freestanding claim of actual innocence, Petitioner is not entitled to habeas relief on any such claim. See Wright v. Van Patten, 552 U.S. 120, 126 (2008) ("Because our cases give no clear answer to the question presented, . . . it cannot be said that the state court unreasonably applied clearly established Federal law") (citation, internal brackets and quotations omitted); Carey v. Musladin, 549 U.S. 70, 77 (2006) ("Given the lack of holdings from this Court [on issue presented], it cannot be said that the state court "unreasonabl[y] applied clearly established Federal law.") (internal brackets and citation omitted).

To the extent Petitioner invokes the "miscarriage of justice" exception to the procedural default doctrine, that exception only applies if a petitioner can show that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327 (1995) ("Schlup"); see also Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008), cert. denied, 556 U.S. 1211 (2009) ("the miscarriage of justice exception is limited to those extraordinary cases where the petitioner asserts his innocence and establishes that the court cannot have confidence in the contrary finding of guilt") (original emphasis). In order to make a credible claim of actual innocence, a petitioner must "support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324; see also Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003), cert. denied, 541 U.S. 998 (2004) (holding that "habeas petitioners may pass Schlup's test by offering `newly presented' evidence of actual innocence"); Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) ("[A] claim of actual innocence must be based on reliable evidence not presented at trial.").

Petitioner has produced no evidence, much less new evidence, to demonstrate his alleged actual innocence of the charges to which he pled no contest. In any event, Petitioner's plea tends to refute any claim of actual innocence. See Johnson v. Medina, 547 Fed. App'x 880, 885 (9th Cir. 2013) (petitioner's plea "simply undermine[d]" his claim of actual innocence); Chestang v. Sisto, 522 Fed. App'x 389, 390 (9th Cir.), cert. denied, 134 S.Ct. 622 (2013) (petitioner's plea "seriously undermine[d]" his claim of actual innocence); Stonebarger v. Williams, 458 Fed. App'x 627, 629 (9th Cir. 2011), cert. denied, 566 U.S. 927 (2012) (denying certificate of appealability on claim of actual innocence, where no reasonable juror would deem petitioner to be actually innocent in light of his confession, his guilty plea and the lack of any facts inconsistent with guilt); People v. McNabb, 228 Cal.App.3d 462, 470-71, 279 Cal.Rptr. 11 (1991) ("the issue of guilt or innocence is waived by a guilty plea").9

For the foregoing reasons, Petitioner is not entitled to federal habeas relief on Ground Three of the First Amended Petition.

IV. Petitioner Is Not Entitled to an Evidentiary Hearing.

Where, as here, a state court adjudicates a petitioner's claims on the merits, "evidence introduced in federal court has no bearing on § 2254(d)(1) review." See Cullen v. Pinholster, 563 U.S. 170, 185 (2011); see also Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013), cert. denied, 134 S.Ct. 2823 (2014) (Pinholster's preclusion of a federal evidentiary hearing applies to section 2254(d)(2) claims as well as section 2254(d)(1) claims). In any event, Petitioner has failed to demonstrate that an evidentiary hearing would reveal anything material to any of Petitioner's claims. Therefore, Petitioner's Motion for Evidentiary Hearing, etc." should be denied.

RECOMMENDATION

For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; (2) denying Petitioner's "Motion for Evidentiary Hearing, etc."; and (3) denying and dismissing the First Amended Petition with prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.