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

FERNANDO M. OLGUIN, District Judge.

Pursuant to 28 U.S.C. section 636, the Court has reviewed the 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 Judgment be entered denying and dismissing the 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 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Fernando M. Olguin, 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

Petitioner, confined at the Atascadero State Hospital ("ASH") following a 2009 criminal proceeding in which Petitioner was found not guilty by reason of insanity, filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on December 13, 2017. Petitioner contends that a 2016 conviction suffered while Petitioner was confined at ASH under a recommitment order constituted a determination that Petitioner's sanity has been restored. Petitioner seeks a transfer from ASH to state prison authorities for service of Petitioner's prison sentence or service of a parole term following the completion of Petitioner's prison sentence. Respondent filed an Answer on January 29, 2018. Petitioner filed a Reply on April 2, 2018.

On April 11, 2018, the Magistrate Judge ordered Respondent to lodge with the Court: (1) the habeas corpus petition Petitioner filed in the San Luis Obispo County Superior Court in case number 16HC-0082; and (2) the Reporter's Transcript and the Clerk's Transcript of the proceedings in People v. Cavanaugh, San Luis Obispo County Superior Court case number 16F-04612. On April 17, 2018, Respondent lodged with the Court Petitioner's habeas corpus petition in San Luis Obispo County Superior Court in case number 16HC-0082 and the case summary for that case. However, Respondent did not then lodge any Reporter's Transcript or Clerk's Transcript.

On April 18, 2018, the Magistrate Judge again ordered Respondent to lodge with the Court the Reporter's Transcript and the Clerk's Transcript of the proceedings in People v. Cavanaugh, San Luis Obispo County Superior Court case number 16F-04612. On April 30, 2018, Respondent filed a response to the April 18, 2018 Order, stating that a search for the transcripts was underway and attaching various documents contained in the San Luis Obispo County Superior Court's case file in People v. Cavanaugh, San Luis Obispo County Superior Court case number 16F-04612.

On May 10, 2018, Respondent purported to lodge the Clerk's Transcript and Volumes I through VI of the Reporter's Transcript of the proceedings in People v. Cavanaugh, San Luis Obispo County Superior Court case number 16F-04612. However, Volume IV of the Reporter's Transcript, which was supposed to contain the transcript of an August 17, 2016 "Marsden"1 hearing, was missing from Respondent's lodgment. On May 11, 2018, the Magistrate Judge ordered Respondent to lodge the missing transcript. On May 23, 2018, Respondent filed a response to the May 11, 2018 Order, stating that Respondent was endeavoring to locate the missing transcript. Respondent lodged the missing transcript on June 11, 2018.

BACKGROUND

In 2009, in criminal proceedings in Kern County Superior Court, the court committed Petitioner to the Department of State Hospitals pursuant to California Penal Code section 1026 (ECF Dkt. No. 9, Ex. 1, p. 12).2 This commitment followed a finding that Petitioner was insane at the time of the commission of the charged crimes and had not fully recovered his sanity (id.). The court determined the maximum period of commitment to be seven years (id.).

On December 17, 2015, Petitioner pushed a door against an officer at ASH, causing the officer to drop a can of pepper spray which Petitioner then picked up. See People v. Cavanaugh, 2016 WL 2178844 (Cal. App. May 18, 2017). As a result of this incident, the state filed criminal charges against Petitioner in the San Luis Obispo County Superior Court (Clerk's Transcript, ECF Dkt. No. 16, pp. 46-51).

In the meantime, on July 20, 2016, the Kern County Superior Court issued an order extending Petitioner's section 1026 commitment to October 8, 2018 (Answer, ECF Dkt. No. 9, Ex. 2, p. 14).3 The order directed the Kern County Sheriff to "effect the return of [Petitioner] to the custody of the Director at Atascadero State Hospital without undue delay for purpose of said commitment" (id.).

On August 31, 2016, Petitioner, represented by counsel, pled no contest in San Luis Obispo County Superior Court to taking a weapon from the person or presence of a public officer or peace officer in violation of California Penal Code section 148(b) (Reporter's Transcript, ECF Dkt. No. 16, pp. 21-27, 69-70; see People v. Cavanaugh, 2017 WL 2178844 (Cal. App. May 18, 2017)). The record does not indicate that any issue concerning Petitioner's competence or sanity was expressly raised or determined in the 2016 proceedings. However, it is clear from the Reporter's Transcript of those proceedings that the parties, the judges who presided over the preliminary proceedings and the judge who presided over the entry of the plea and the sentencing all were aware of the Kern County Court's recommitment order and Petitioner's confinement at ASH (see Reporter's Transcript, ECF Dkt. No. 16, pp. 15, 25, 35-36; Reporter's Transcript, ECF Dkt. No. 19, pp. 7-8).

On October 27, 2016, the San Luis Obispo County Superior Court sentenced Petitioner to a term of two years in prison (Reporter's Transcript, ECF Dkt. No. 16, p. 37). The Reporter's Transcript indicates that the court remanded Petitioner "to the custody of the authorities" (id., p. 38). The Reporter's Transcript contains no indication that the court ordered Petitioner to be remanded to the custody of any particular entity such as ASH, the sheriff's department or the California Department of Corrections and Rehabilitation ("CDCR"). However, a minute order purporting to memorialize the sentencing proceedings states that Petitioner was to be:

(Clerk's Transcript, ECF Dkt. No. 16, p. 71).

Additionally, a "Remand/Reservation Order" dated October 27, 2016 purported to commit Petitioner to state prison, and states: "Remanded to the custody of Atascadero State Hospital, to be delivered to San Luis Obispo County Sheriff for delivery to the Reception Center designated by the director of the California Department Corrections and Rehabilitation" (Respondent's April 30, 2018 Lodgment, ECF Dkt. No. 15, p. 42).

The abstract of judgment states that Petitioner was to be "remanded to the custody of the sheriff" and contains a check in a box next to the statement that Petitioner was to be delivered to "the reception center designated by the director of the California Department of Corrections and Rehabilitation" (id., p. 53). However, the abstract of judgment also contains a check in a box next to the statement: "Other (specify): remand to the custody of Atascadero State Hospital" (Clerk's Transcript, ECF Dkt. No. 16, p. 53). Petitioner apparently remains confined at ASH (see Petition, p. 1; Reply, p. 8).

On December 16, 2016, Petitioner filed a habeas corpus petition in the San Luis Obispo County Superior Court (Respondent's April 17, 2018 Lodgment, Ex. A). On July 5, 2017, the Superior Court issued a reasoned order denying the petition (Answer, ECF Dkt. No. 9, Ex. 4, pp. 18-20). Petitioner then filed habeas corpus petitions in the California Court of Appeal and the California Supreme Court, both of which were denied summarily (Petition, ECF Dkt. No. 1, pp. 9-13, 25, 27-32; Answer, ECF Dkt. No. 9, Exs. 5, 6).

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. 86, 101 (2011). 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 usually looks to the last reasoned state court decision, here the decision of the San Luis Obispo County Superior Court on habeas review. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). 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. State Law Governing Criminal Defendants Found to be Insane

California Penal Code section 1026(a) provides that, where a criminal defendant has been found to have been insane at the time the offense was committed, "unless it appears to the court that the sanity of the defendant has been recovered fully," the court may order the defendant committed to the "State Department of State Hospitals" or any other appropriate facility for care and treatment. "The purpose of committing an insanity acquittee is two-fold: to treat his mental illness and to protect him and society from his potential dangerousness." People v. Wilder, 33 Cal.App.4th 90, 101, 39 Cal.Rptr.2d 247 (1995) (citation omitted). The commitment may not exceed the maximum term of commitment for the charged offense, defined as "the longest term of imprisonment which could have been imposed for the offense or offenses of which the person was convicted." Cal. Penal Code §§ 1026.1, 1026.5. A court may extend the commitment period for a period of two years in accordance with procedures set forth in California Penal Code section 1026.5(b).

A committed person may not be released unless and until the court finds that the person's "sanity has been restored," the term of commitment has expired, or the person meets the criteria for compassionate release. Cal. Penal Code §§ 1026(b), 1026.1, 1026.2. Upon application for release, the court must hold an "outpatient placement hearing" to determine whether the person applying for restoration of sanity "would be a danger to the health and safety of others, due to mental defect, disease, or disorder, if under supervision and treatment in the community." Cal. Penal Code § 1026.2(e); see People v. Soiu, 106 Cal.App.4th 1191, 1196, 131 Cal.Rptr.2d 421 (2003). If the court determines that the applicant will not be such a danger, the court generally "shall order the applicant placed with an appropriate forensic conditional release program for one year." Cal. Penal Code § 1026.2(e). "The court shall not determine whether the applicant has been restored to sanity until the applicant has completed the one year in the appropriate forensic conditional release program, unless the community program director makes a recommendation for sooner restoration of sanity and unconditional release. . . ." Id. A "restoration of sanity" trial normally occurs following the applicant's year in a forensic conditional release program. Id. At the trial, the applicant must show that he or she is "no longer a danger to the health and safety of others due to mental defect, disease or disorder." Id.; see People v. Soiu, 106 Cal. App. 4th at 1196.

However, a person who is, "at the time of the petition or recommendation for restoration of sanity," subject to "a term of imprisonment with prison time remaining to serve" or "the imposition of a previously stayed sentence" may not be placed in a forensic conditional release program. Cal. Penal Code § 1026.2(m). In such circumstances, a finding of restoration of sanity may be made without showing that the person has participated in such a program for one year. Cal. Penal Code § 1026.2(m). If a finding of restoration of sanity is made, the person "shall be transferred to the custody of the California Department of Corrections to serve the term of imprisonment remaining or shall be transferred to the appropriate court for imposition of the sentence that is pending, whichever is applicable." Cal. Penal Code § 1026.2(m).

II. Petitioner's Contentions and the Superior Court's Denial of Petitioner's Habeas Petition

Petitioner contends state hospital officials have violated due process by assertedly failing to comply with the San Luis Obispo County Superior Court's supposed order requiring the ASH director to transport Petitioner to prison for service of his two-year prison sentence (Petition, p. 5). According to Petitioner, this 2016 prison sentence (for a crime committed in 2015) "necessarily negate[d]" the Kern County Superior Court's 2016 order recommitting Petitioner to ASH for two years (id., p. 6). Petitioner contends that the San Luis Obispo County Superior Court's order constituted an implied restoration of sanity determination, which supposedly entitles Petitioner to release from the custody of the Department of Mental Health and, eventually, release from the custody of the California Department of Corrections and Rehabilitation following the service of Petitioner's prison sentence (see Reply, pp. 2-3).

In his habeas petition filed in the San Luis Obispo Superior Court, Petitioner asserted that the ASH Medical Director had violated the San Luis Obispo County Superior Court's supposed order to deliver Plaintiff to the Sheriff for transportation to the prison Reception Center (Respondent's April 17, 2018 Lodgment, p. 6). Petitioner asserted that, although he supposedly had completed his prison term (as allegedly shortened through the application of credits), Petitioner assertedly still had not been transferred to the prison system and hence had not been able to commence a term of parole (id.).

The San Luis Obispo Superior Court denied the Petition, rejecting Petitioner's claim he was "being unjustly confined as the sentencing order [had] been satisfied" (Answer, ECF Dkt. No. 9, Ex. 4, p. 19). The Superior Court ruled that, under People v. Chavez, 160 Cal.App.4th 882, 896, 73 Cal.Rptr.3d 189 (2008), there was "no legal basis to order a state hospital commitment and a state prison sentence to run concurrently with or consecutively to one another" (Answer, ECF Dkt. No. 9, Ex. 4, p. 19). The Superior Court stated: "There is nothing in the [sentencing order (of the same court)] that suggests that the state prison sentence would in any way affect Petitioner Cavanaugh's state hospital commitment" (id.). The Superior Court ordered Petitioner's prison sentence stayed "until such time that Petitioner either regains his sanity or until Petitioner no longer meets the requirements for an extension of his commitment" (id., p. 3).

III. Analysis

Matters relating to sentencing and serving of a sentence generally are governed by state law and do not raise a federal constitutional question. See Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989), cert. denied, 499 U.S. 963 (1991); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986); Sturm v. California Adult Authority, 395 F.2d 446, 448 (9th Cir. 1967), cert. denied, 395 U.S. 947 (1969). Under narrow circumstances, however, the misapplication of state sentencing law may violate due process. See Richmond v. Lewis, 506 U.S. 40, 50 (1992). "[T]he federal, constitutional question is whether [the error] is so arbitrary or capricious as to constitute an independent due process" violation. Id. (internal quotation and citation omitted); see also Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) ("Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief."). For the reasons discussed below, under AEDPA review, the Court is unable to conclude that any such fundamental unfairness occurred here.

In People v. Chavez, supra, a jury found the defendant not guilty by reason of insanity with respect to certain offenses, but guilty and sane with respect to other offenses committed approximately seven months later. People v. Chavez, 160 Cal. App. 4th at 885. The trial court imposed a prison term on the counts as to which the defendant had been found sane, committed the defendant to a state mental hospital on the counts as to which the defendant had been found insane, and ordered the state mental hospital commitment to be served after completion of the prison term. Id. at 885-86. On appeal, the defendant argued that the court should have committed him to the state hospital and ordered his prison sentence to run concurrently with the hospital commitment. Id. at 886.

The California Court of Appeal in People v. Chavez rejected this argument, ruling that the defendant should be confined in the mental hospital until his sanity was restored. Id. at 986. The Court of Appeal stated that there was no legal basis to order the hospital commitment and the prison sentence to run either concurrently or consecutively with one another, and that under California Penal Code section 1026.2(m) the prison sentence should be stayed until such time as the defendant regained his sanity. Id.

In denying Petitioner's habeas corpus petition, the San Luis Obispo County Superior Court ruled that, under state law, including People v. Chavez, Petitioner was lawfully committed to the Department of State Hospitals (see Respondent's Lodgment 4, pp. 2-3). In accordance with People v. Chavez, the court ordered Petitioner's prison sentence stayed until such time as Petitioner regained his sanity or no longer met the requirements for an extension of his commitment (id., p. 3). This federal habeas court cannot revisit these state law determinations made by the state Superior Court. See Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009) ("we have repeatedly held that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions") (citation and internal quotations omitted); Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) ("state courts are the ultimate expositors of state law").

Petitioner contends that California Penal Code section 1026.2(m), mentioned above, "allows for releasing of a former insanity-acquittee in order to transfer them [sic] to the prison system or to the sentencing court so they can complete a former prison sentence or have a new sentence imposed" (Reply, p. 4). However, California Penal Code section 1026.2(m) applies only after a finding of restoration of sanity has been made in conformity with the procedures for restoration of sanity proceedings set forth in California Penal Code section 1026.2. See Cal. Penal Code § 1026.2(m). The San Luis Obispo County Superior Court made no express restoration of sanity finding in its October 27, 2016 sentencing order. Nothing in the present record indicates that the issue of Petitioner's sanity in 2016 was ever before that court. Certainly nothing in the record indicates that the restoration of sanity procedures set forth in California Penal Code section 1026.2 were ever invoked or followed in the San Luis Obispo proceedings. The San Luis Obispo Court's order remanding Petitioner to ASH custody and thence to the custody of the sheriff for delivery to CDCR did not require ASH to deliver Petitioner to the sheriff for delivery to CDCR prior to any determination that Petitioner's sanity had been restored in conformity with California Penal Code section 1026.2(m).4

Furthermore, section 1026.2 defines the procedures and requirements necessary for a restoration of sanity determination. Section 1026.2 does not indicate or even suggest that a plea, conviction and sentence occurring during a defendant's section 1026 commitment can imply (or substitute for) a restoration of sanity determination. Indeed, as indicated above, California Penal Code section 1026.1 expressly mandates that a person committed pursuant to section 1026 may be released "only" pursuant to the provisions of section 1026.2, or when the maximum or extended commitment term expires, or when the person meets the criteria for compassionate release (emphasis added).

As indicated above, an individual seeking a restoration of sanity determination must show in section 1026.2 proceedings that he or she is "no longer a danger to the health and safety of others due to mental defect, disease or disorder." The standard for competency to stand trial or enter a plea is different from the standard for restoration of sanity. The former standard is whether the defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" and has "a rational as well as factual understanding of the proceedings against him." Godinez v. Moran, 509 U.S. 389, 396 (1993); see also Dusky v. United States, 362 U.S. 402 (1960) (per curiam). Thus, an individual can be competent to stand trial or enter a plea, and yet still constitute "a danger to the health and safety of others due to a mental defect, disease or disorder." See, e.g., Durham v. United States, 237 F.2d 760, 761-62 (D.C. Cir. 1956); Short v. State, 1999 OK CR 15, 980 P.2d 1081, 1090 n.2 (1999), cert. denied, 528 U.S. 1085 (2000); People v. Ford, 59 Cal.App.4th Supp. 1, 4-5, 73 Cal.Rptr.2d 836 (L.A. Super. App. Div. 1997); United States v. Burns, 812 F.Supp. 190, 191-94 (D. Kan. 1993).

In sum, the San Luis Obispo court's acceptance of Petitioner's plea and sentencing in the 2016 criminal case did not necessarily signify that Petitioner then had ceased to be "a danger to the health and safety of others due to mental defect, disease or disorder" within the meaning of California Penal Code section 1026.2(e). See Greenshields v. Price, 2016 WL 7378875, at *2 (C.D. Cal. Dec. 19, 2016) (rejecting argument that the petitioner's "sanity was implicitly restored as a result of the negotiated Plea Agreement and prison sentence outlined therein"). Petitioner has not shown that the state courts misapplied state law, much less violated federal law, by ordering Petitioner's continued confinement at ASH and a stay of his prison term until a restoration of sanity determination.

Petitioner's reliance on Foucha v. Louisiana, 504 U.S. 71 (1992) ("Foucha") (see Reply, p. 6) is unavailing. In Foucha, a criminal defendant challenged a Louisiana statute which authorized the continued confinement of a defendant acquitted by reason of insanity. Id. at 78. The challenged statute authorized the state to continue to confine such a defendant even after the defendant no longer was "mentally ill" as long as the defendant remained unable to carry the burden of proving he or she was not a danger to himself or herself or to others. Id. at 78. The trial court had found the defendant not guilty by reason of insanity and had committed him to a medical facility for treatment. Id. at 73-74. Later, two doctors appointed by the trial court opined that the defendant was in "remission" from any mental illness, but the doctors declined to certify the defendant's lack of dangerousness. Id. at 74-75. In regard to the dangerousness issue, one doctor referenced the defendant's involvement in several altercations while committed. Id. at 75.

The Foucha Supreme Court held that due process forbade Louisiana from confining an insanity acquitee who no longer is "mentally ill." Id. at 77-79. In dicta, the Supreme Court commented that, if the defendant had engaged in criminal acts while committed, the state's interests could be vindicated "by the ordinary criminal processes involving charge and conviction, the use of enhanced sentences for recidivists, and other permissible ways of dealing with patterns of criminal conduct." Id. at 82. The Court also indicated, again in dicta, that if the defendant had been prosecuted for his assault on other inmates there was "little doubt that if sane he could have been convicted and incarcerated in the usual way." Id. The Foucha Court made no mention of the timing of any such incarceration with respect to a defendant confined pursuant to a finding of not guilty by reason of insanity.

The Foucha decision is distinguishable from the present case. As discussed above, nothing in Petitioner's 2016 criminal proceedings indicated Petitioner had ceased to present a danger to "the health and safety of others due to mental defect, disease or disorder" within the meaning of California Penal Code section 1026.2(e) (emphasis added). Certainly, the San Luis Obispo Court did not make any finding, express or implied, that Petitioner no longer has any "mental illness." In any event, this Court cannot grant habeas relief based on Supreme Court dicta. See White v. Woodall, 134 S.Ct. 1697, 1702 (2014) ("Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions.") (citations omitted).

For all of the foregoing reasons, the state courts' rejection of Petitioner's claim was not "contrary to," or an objectively "unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States." See 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100-03 (2011). Petitioner is not entitled to federal habeas relief.

RECOMMENDATION

For the reasons discussed above, IT IS RECOMMENDED that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) denying and dismissing the 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.