FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS [Doc. 10]

MICHAEL J. SENG, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent, warden of Mule Creek State Prison, is hereby substituted as the proper named respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. Respondent is represented in this action by Brian G. Smiley, of the Office of the Attorney General for the State of California.

I. BACKGROUND

Petitioner is currently in the custody of the California Department of Corrections pursuant to a judgment of the Superior Court of California, County of Fresno, upon being convicted by a jury on November 7, 1996 of first degree burglary. (See Lodged Doc. No. 1.) On January 9, 1997, Petitioner was sentenced to an indeterminate state prison term of forty (40) years to life. (Id.)

On May 29, 1998, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. (Lodged Doc. 2.) Review was denied by the California Supreme Court on September 2, 1998. (Lodged Docs. 3-4.)

While Petitioner does not provide relevant records regarding the hearing, it is clear from his claims that Petitioner recently sought to have his sentence recalled and reduced under the Three Strikes Reform Act of 2012, California Penal Code § 1170.126.1 The request was denied.

Starting in February 2013, Petitioner filed four post-conviction collateral challenges with respect to his conviction and the Three Strikes Reform Act proceeding in the state courts filed as follows:

(See Lodged Docs. 5-12.)

On August 14, 2014, Petitioner filed the instant federal Petition for Writ of Habeas Corpus in this Court. (ECF No. 1.) On October 27, 2014, Respondent filed a Motion to Dismiss the petition for failure to raise a federal question. (Mot. to Dismiss, p.1.) Petitioner filed an opposition to the motion on November 14, 2014, and Respondent filed a reply on January 14, 2015. (ECF Nos. 14, 21.)

In the Petition, Petitioner raises a single ground for relief, namely that he was improperly denied relief under the Three Strikes Reform Act. However, in his opposition to the motion, Petitioner also asserts that his sentence was cruel and unusual, and that the application of the Three Strikes Reform Act violated his rights under the Double Jeopardy clause.

II. DISCUSSION

A. Procedural Grounds for Motion to Dismiss

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court. . . ." Rule 4 of the Rules Governing Section 2254 Cases.

The Ninth Circuit has allowed respondents to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n. 12 (E.D. Cal. 1982) (same). Thus, a respondent can file a motion to dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.

B. The Three Strikes Reform Act

The relief sought in the present petition is not cognizable under federal habeas corpus. Federal habeas relief is available only to state prisoners who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§ 2241(c)(3), 2254(a). "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991); see also Swarthout v. Cooke, 562 U.S. 216, 131 S.Ct. 859, 861, 178 L. Ed. 2d 732 (2011) (per curiam) ("We have stated many times that federal habeas corpus relief does not lie for errors of state law.").

Generally, a challenge to a state court's application of state sentencing laws does not give rise to a federal question cognizable on federal habeas review. See Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L. Ed. 2d 606 (1990); Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) (holding claim that offense did not constitute a "serious felony" was not cognizable on federal habeas review because it "is a question of state sentencing law"). To state a cognizable federal habeas claim based on a claimed state sentencing error, a petitioner must show that the error was "so arbitrary or capricious as to constitute an independent due process" violation. Richmond v. Lewis, 506 U.S. 40, 50, 113 S.Ct. 528, 121 L. Ed. 2d 411 (1992).

Petitioner has failed to cite to anything in the record or elsewhere to demonstrate there was anything arbitrary or capricious in the state courts' finding that Petitioner's conviction for robbery rendered his Three Strikes sentence ineligible for recall. Petitioner relies upon Descamps v. United States, 570 U.S. ___, 133 S.Ct. 2276 (2013), for the proposition that the Reform Act violates principles set forth under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.Ct. 2348 (2000). Under, Apprendi a sentencing court's finding of priors based on the record of conviction implicates the Sixth Amendment. 530 U.S. 466. Unlike a conviction, the Three Strikes Reform Act is an ameliorative provision, and can only decrease a petitioner's sentence. This Court agrees with the holdings of California courts finding the Apprendi doctrine inapplicable to the Three Strikes Reform Act. See e.g., People v. Superior Court (Kaulick), 215 Cal.App.4th 1279, 1303-05 (2013). Petitioner has not presented a federal basis for relief with regard to his Three Strikes Reform Act proceeding.

Accordingly, the Petition should be summarily dismissed for failure to state a cognizable federal habeas claim. It is noted that no federal court addressing this issue has found federal challenges to the Three Strikes Reform Act cognizable in federal habeas. See, e.g., Green v. Hill, 2014 U.S. Dist. LEXIS 166780 (S.D. Cal. Dec. 1, 2014); De La Torre v. Montgomery, 2014 U.S. Dist. LEXIS 159368 (C.D. Cal. Oct. 7, 2014); Chesneau v. Spearman, 2014 U.S. Dist. LEXIS 164285 (C.D. Cal. Oct. 29, 2014); Cooper v. Supreme Court of California, 2014 U.S. Dist. LEXIS 8357, 2014 WL 198708, (C.D. Cal. Jan. 16, 2014); Johnson v. Spearman, 2013 U.S. Dist. LEXIS 85017, 2013 WL 3053043 (C.D. Cal. June 10, 2013); Hill v. Warden, No. 14-0662, 2014 U.S. Dist. LEXIS 40467, 2014 WL 1093041 (C.D. Cal. Mar. 18, 2014).

A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis, 440 F.2d at 14. Here, the Court concludes that it would be futile to grant Petitioner leave to amend his first claim, and recommends the claim be dismissed.

C. Cruel and Unusual Punishment

Petitioner generally alleges that his sentence and denial of relief under the Three Strikes Reform Act constituted cruel and unusual punishment in that it impermissibly extends the term of his sentence to one that is grossly disproportionate to his individual culpability for the commitment offense.

"There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners." Swarthout v. Cooke, 131 S.Ct. at 862. However, a criminal sentence that is "grossly disproportionate" to the crime for which a defendant is convicted may violate the Eighth Amendment. Lockyer v. Andrade, 538 U.S. 63, 72, 123 S.Ct. 1166, 155 L. Ed. 2d 144 (2003); Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring); Rummel v. Estelle, 445 U.S. 263, 271, 100 S.Ct. 1133, 63 L. Ed. 2d 382 (1980).

Outside of the capital punishment context, the Eighth Amendment prohibits only sentences that are extreme and grossly disproportionate to the crime. United States v. Bland, 961 F.2d 123, 129 (9th Cir. 1992) (quoting Harmelin, 501 U.S. at 1001). Such instances are "exceedingly rare" and occur in only "extreme" cases. Lockyer, 538 U.S. at 72-73; Rummel, 445 U.S. at 272. So long as a sentence does not exceed statutory maximums, it will not be considered cruel and unusual punishment under the Eighth Amendment. See United States v. Mejia-Mesa, 153 F.3d 925, 930 (9th Cir. 1998); United States v. McDougherty, 920 F.2d 569, 576 (9th Cir. 1990).

Generally, the Supreme Court has upheld prison sentences challenged as cruel and unusual and in particular, has approved recidivist punishments similar to or longer than Petitioner's 40 years to life sentence for offenses of equivalent or lesser severity. See Andrade, 538 U.S. at 77 (denying habeas relief on Eighth Amendment disproportionality challenge to Three Strikes sentence of two consecutive terms of 25 years to life for stealing $150.00 in videotapes when petitioner had a lengthy but nonviolent criminal history); Harmelin, 501 U.S. at 1008-09 (mandatory life sentence without parole for first offense of possession of more than 650 grams of cocaine is not so disproportionate as to violate the Eighth Amendment); Hutto v. Davis, 454 U.S. 370, 374-75, 102 S.Ct. 703, 70 L. Ed. 2d 556 (1982) (per curiam) (upholding non-recidivist sentence of two consecutive 25 year prison terms for possession of nine ounces of marijuana and distribution of marijuana); cf. Solem, 463 U.S. at 280-81 (sentence of life imprisonment without possibility of parole for seventh nonviolent felony violates Eighth Amendment).

Moreover, in cases arising on habeas review following the Supreme Court's decisions in Andrade and Ewing, the Ninth Circuit has frequently rejected Eighth Amendment challenges to California's Three Strikes Law sentences. See, e.g., Nunes v. Ramirez-Palmer, 485 F.3d 432, 439 (9th Cir. 2007) (sentence of 25 years to life for crime of petty theft with a prior did not offend the Constitution where petitioner had extensive and serious felony record); Taylor v. Lewis, 460 F.3d 1093, 1101-02 (9th Cir. 2006) (no Eighth Amendment violation where petitioner with prior offenses involving violence was sentenced to 25 years to life for possession of .036 grams of cocaine base); Rios v. Garcia, 390 F.3d 1082, 1086 (9th Cir. 2004) (sentence of 25 years to life for offense of petty theft with a prior imposed on petitioner with two prior robbery convictions was not objectively unreasonable); cf. Ramirez v. Castro, 365 F.3d 755, 775 (9th Cir. 2004) (finding that habeas relief was warranted in "exceedingly rare" case where petitioner with minimal criminal history and no prior state prison sentence received a Three Strikes sentence for offense of petty theft with a prior); Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008) (life sentence under California's Three Strikes law, triggered by a failure to register as a sex offender, violated the Eighth Amendment proscription against cruel and unusual punishment because there was no "rational relationship" between a failure to register and the probability defendant would recidivate as a violent criminal or sex offender).

Here, Petitioner was sentenced to 40 years to life in prison for a burglary charge, and a finding that he had previously suffered prior serious felony convictions. Petitioner's sentence is comparable to that of the defendants in Andrade and Harmelin, and allows for the possibility of parole unlike in Solem. See Andrade, 538 U.S. at 74; Taylor, 460 F.3d at 1098 (eligibility for parole, albeit after 25 years, made California Three Strikes sentence "considerably less severe than the one invalidated in Solem"). For the above reasons, and in light of controlling jurisprudence, this Court cannot find that Petitioner's sentence is grossly disproportionate to his commitment offense.

Further, the actions of the state court in denying relief under the Three Strikes Reform Act do not constitute cruel and unusual punishment. The court's decision, while lengthening his physical term of confinement, does not change his original sentence. As Petitioner is serving an indeterminate sentence, it is possible that he may be paroled, but it is also possible that he shall remain incarcerated for the entire term. Petitioner has not stated facts that would entitle him to Federal habeas relief under the Eighth Amendment's prohibition against cruel and unusual punishment.

In view of the pertinent state statutory scheme, it does not appear that Petitioner could allege a tenable cruel and unusual punishment claim. It is recommended that Petitioner's cruel and unusual punishment claim be dismissed without leave to amend.

D. Double Jeopardy

Petitioner claims that his denial of relief under the Three Strikes Reform Act violated his due process and rights under the Double Jeopardy clause.

Petitioner appears to be arguing that the Three Strikes Reform Act proceeding constituted a new punishment based on the crime of conviction and that this violated the Double Jeopardy Clause. The Double Jeopardy Clause of the Fifth Amendment commands that "[n]o person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb." "Under this Clause, once a defendant is placed in jeopardy for an offense, and jeopardy terminates with respect to that offense, the defendant may neither be tried or punished a second time for the same offense." Sattazahn v. Pennsylvania, 537 U.S. 101, 106, 123 S.Ct. 732, 154 L. Ed. 2d 588 (2003).

Petitioner's Three Strikes Reform Act proceeding was not a new trial on the charges against him and it did not result in the imposition of any new punishment. Rather, it was a hearing to determine whether Petitioner was suitable for discretionary relief from his sentence. The court's decision that Petitioner was not suitable relief did not increase his sentence nor did it alter his conviction in any way. Just like the denial of parole, the denial of relief under the act did not modify or change Petitioner's underlying sentence. See, e.g., Mayfield v. Carey, 747 F.Supp.2d 1200, 1212 (E.D. Cal. 2010) ("Petitioner's [Double Jeopardy] claim fails because the Board's decision did not subject him to either a second criminal prosecution or to multiple punishments for the commitment offense."); Desilva v. Allison, No. 1:11-cv-0263-LJO-SKO-HC, 2011 U.S. Dist. LEXIS 37340, 2011 WL 1326958, at *6 (E.D. Cal. Apr. 6, 2011) (same).

Petitioner is not entitled to federal habeas relief with respect to his Double Jeopardy claim. The Court concludes that it would be futile to grant Petitioner leave to amend his Double Jeopardy claim and recommends that the claim be dismissed without leave to amend.

III. RECOMMENDATION

Accordingly, the Court HEREBY RECOMMENDS that the motion to dismiss for Petitioner's failure to state a federally cognizable claim be GRANTED.

This Findings and Recommendation is submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after the date of service of this Findings and Recommendation, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Replies to the Objections shall be served and filed within fourteen (14) days after service of the Objections. The Finding and Recommendation will then be submitted to the District Court for review of the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(c). Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).

IT IS SO ORDERED.