Opinion
CV 22-1256-MCS (LAL)
06-05-2023
KEITH R. CARTER, Petitioner, v. RON BROOMFIELD, Warden, Respondent.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
HONORABLE LOUISE A. LA MOTHE, United States Magistrate Judge.
This Final Report and Recommendation is submitted to the Honorable Mark C. Scarsi, United States District Judge, under the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.
I.
PROCEEDINGS
On February 22, 2022, Keith R. Carter (“Petitioner”) filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”), presenting five claims for relief. On April 20, 2022, Respondent filed a motion to dismiss because the Petition raised several non-cognizable claims and because Claims One, Two (b) and (c), Three, and Five were unexhausted. On May 10, 2022, the previously assigned magistrate judge denied the motion to dismiss without prejudice and ordered Respondent to file an Answer. On September 27, 2022, Respondent filed an Answer, addressing the merits of the claims in addition to arguing that several claims were not cognizable on federal habeas review or were unexhausted. In response, Petitioner requested a stay and abeyance to exhaust his claims in state court. On December 8, 2022, the previously assigned magistrate judge issued a Report and Recommendation that the motion for a stay be denied because the unexhausted claims were not cognizable in a federal habeas corpus proceeding. On January 12, 2023, the District Court accepted the findings and recommendations of the previously assigned magistrate judge and denied Petitioner's motion for a stay and abeyance. Petitioner did not file a Reply to Respondent's Answer. Thus, this matter is ready for decision.
II.
PROCEDURAL HISTORY
On November 10, 2015, in Los Angeles County Superior Court, Petitioner pleaded guilty to one count of forcible rape.(Clerks' Transcript (“CT”) at 16-17.) He also admitted that he had a prior felony convictionthat qualified as a strike under California's Three Strikes Law.(CT at 17.) Pursuant to a plea agreement, the trial court sentenced Petitioner to 11 years in state prison. (CT at 17-18.)
In March 2016, a Los Angeles County Superior Court jury convicted Petitioner of evading a peace officer causing injury. (See Lodgment 1 at 2.) At sentencing, Petitioner asked the court to dismiss his prior strike conviction because he had demonstrated exemplary behavior while in prison. (Reporter's Transcript (“RT”) at 309.) The court denied the motion and sentenced Petitioner to 19 years in state prison on the evading conviction. (RT at 309-15.) Petitioner stipulated to paying the victim $74,368 in restitution. (RT at 302.)
The trial court then revisited Petitioner's sentence on the rape conviction as required by state law.Noting that the rape conviction was now the subordinate term to the evading conviction, the court recalculated Petitioner's sentence on the rape count to be three years and four months for a total sentence of 22 years and four months in prison. (CT at 19.) Thereafter, the California Department of Corrections and Rehabilitation informed the trial court that the sentence on the rape count should have been four years under state law. (CT at 26; RT at 31617.) On February 2, 2018, the court held a hearing and resentenced Petitioner to four years on the rape count, increasing his total sentence to 23 years in state prison. (CT at 20-21; RT at 32023.)
California § 1170.1(a) provides in pertinent part: “[W]hen any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, . . . and a consecutive term of imprisonment is imposed . . ., the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions [or] prison terms . . . .”
Petitioner appealed to the California Court of Appeal, claiming that the eight-month increase in his sentence was illegal and that he was entitled to a new sentencing hearing pursuant to California Senate Bill 1393. (See Lodgment 4 at 4.) On February 28, 2019, the California Court of Appeal affirmed the convictions but remanded the matter to the trial court for a new sentencing hearing. (Lodgment 4.)
California Senate Bill 1393 amended §§ 667(a) and 1385(b) to give trial courts discretion to dismiss a five-year sentence enhancement for a prior felony conviction. The law went into effect on January 1, 2019 and applies retroactively to cases not final on its effective date. See Burchett v. Martel, No. CV 19-4535-DSF (AFM), 2020 WL 1847131, at *2 (C.D. Cal. Mar. 11, 2020).
On October 16, 2020, the trial court held a resentencing hearing. (RT at 1501-10.) Noting that Petitioner had an extensive prior criminal history, that the rape conviction was “extremely violent” and involved a “vulnerable victim,” and that the evading conduct was “egregious,” the court declined to modify the sentence, again imposing 23 years in state prison. (RT at 1512-13.)
Petitioner appealed the sentence. (Lodgment 7.) On November 10, 2021, the California Court of Appeal affirmed the judgment. (Lodgment 1.) Petitioner then filed a Petition for Review in the California Supreme Court. (Lodgment 2.) On January 19, 2022, the California Supreme Court denied review. (Lodgment 3.) Finally, Petitioner filed a petition for writ of certiorari in the United States Supreme Court that was denied on May 16, 2022. (See Petition at 5.)
III.
Because Petitioner's claims challenge only his sentence, which is unrelated to the facts underlying the offenses, the Court has omitted the customary statement of facts.
Petitioner raises the following claims for habeas corpus relief:
(1) The trial court violated California Penal Code § 1170(d) and double jeopardy when it increased Petitioner's sentence by eight months;
(2) Trial and appellate counsel were ineffective for (a) failing to request that Petitioner's prior strike be dismissed at the resentencing hearing; (b) failing to object to the court's imposition of fines and fees at the resentencing hearing; and (c) failing to argue that Petitioner's sentence was invalid under California Rules of Court, Rule 4.452;
(3) The trial court abused its discretion by failing to consider all discretionary sentencing choices during the resentencing hearing;
(4) The trial court violated Petitioner's due process rights by imposing fines and fees without determining his ability to pay them; and
(5) The trial court abused its discretion by imposing an aggregate sentencing term in violation of California Rules of Court, Rule 4.452.(Petition at 5-6, 14-77.)
For clarity, when citing to Petitioner's filings, the Court cites to the page numbers applied by the electronic docketing system.
IV.
STANDARD OF REVIEW
The standard of review that applies to Petitioner's claims is stated in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”):
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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). If these standards are difficult to meet, it is because they were meant to be. As the United States Supreme Court stated in Harrington v. Richter, while the AEDPA “stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings[,]” habeas relief may be granted only “where there is no possibility fairminded jurists could disagree that the state court's decision conflicts” with United States Supreme Court precedent. Further, a state court factual determination must be presumed correct unless rebutted by clear and convincing evidence.
562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).
B. Sources of “Clearly Established Federal Law”
According to Williams v. Taylor, the law that controls federal habeas review of state court decisions under the AEDPA consists of holdings (as opposed to dicta) of Supreme Court decisions “as of the time of the relevant state-court decision.” To determine what, if any, “clearly established” United States Supreme Court law exists, a federal habeas court also may examine decisions other than those of the United States Supreme Court.Ninth Circuit cases “may be persuasive.”A state court's decision cannot be contrary to, or an unreasonable application of, clearly established federal law, if no Supreme Court decision has provided a clear holding relating to the legal issue the habeas petitioner raised in state court.
529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
Deck v. Jenkins, 814 F.3d 954, 978 n.3 (9th Cir. 2016) (citing Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 1999)); LaJoie v. Thompson, 217 F.3d 663, 669 n.6 (9th Cir. 2000).
Duhaime, 200 F.3d at 600.
Stenson v. Lambert, 504 F.3d 873, 881 (9th Cir. 2007) (“Where the Supreme Court has not addressed an issue in its holding, a state court adjudication of the issue not addressed by the Supreme Court cannot be contrary to, or an unreasonable application of, clearly established federal law.”); see also Carey v. Musladin, 549 U.S. 70, 77, 127, S.Ct. 649, 166 L.Ed.2d 482 (2006) (in the absence of a Supreme Court holding regarding the prejudicial effect of spectators' courtroom conduct, the state court's decision could not have been contrary to or an unreasonable application of clearly established federal law).
Although a particular state court decision may be both “contrary to” and an “unreasonable application of' controlling Supreme Court law, the two phrases have distinct meanings under Williams.
A state court decision is “contrary to” clearly established federal law if the decision either applies a rule that contradicts the governing Supreme Court law, or reaches a result that differs from the result the Supreme Court reached on “materially indistinguishable” facts.If a state court decision denying a claim is “contrary to” controlling Supreme Court precedent, the reviewing federal habeas court is “unconstrained by § 2254(d)(1).”However, the state court need not cite or even be aware of the controlling Supreme Court cases, “so long as neither the reasoning nor the result of the state-court decision contradicts them.”
Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam) (citing Williams, 529 U.S. at 405-06); Anderson v. Gipson, 902 F.3d 1126, 1132 (9th Cir. 2018).
Williams, 529 U.S. at 406.
Early, 537 U.S. at 8.
State court decisions that are not “contrary to” Supreme Court law may be set aside on federal habeas review only “if they are not merely erroneous, but ‘an unreasonable application' of clearly established federal law, or based on ‘an unreasonable determination of the facts.'”Accordingly, this Court may reject a state court decision that correctly identified the applicable federal rule but unreasonably applied the rule to the facts of a particular case.However, to obtain federal habeas relief for such an “unreasonable application,” a petitioner must show that the state court's application of Supreme Court law was “objectively unreasonable.”An “unreasonable application” is different from merely an incorrect one.
Id. at 11 (citing 28 U.S.C. § 2254(d)).
See Williams, 529 U.S. at 406-10, 413.
Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (“Under § 2254(d)(1)'s unreasonable application clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable.” (internal quotation marks and citations omitted)); Woodford v. Visciotti, 537 U.S. 19, 27, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002).
Williams, 529 U.S. at 409-10.
Where, as here, the California Supreme Court denied the claims without comment on direct review, the state high court's “silent” denial is considered to be “on the merits” and to rest on the last reasoned decision on these claims. In this case, this Court looks to the reasoning the California Court of Appeal stated in its decision on direct appeal.As for any federal claims that are unexhausted, the Court reviews those claims de novo.Finally, as explained below, several of Petitioner's claims are not cognizable in a federal habeas petition.
See Wilson v. Sellers, U.S. , 138 S.Ct. 1188, 1193-94, 200 L.Ed.2d 530 (2018); Ylst v. Nunnemaker, 501 U.S. 797, 803-06, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991).
Pursuant to 28 U.S.C. § 2254(b)(2), “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” Thus, “a federal court may deny an unexhausted petition on the merits . . . when it is perfectly clear that the applicant does not raise even a colorable federal claim.” Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). Because in such instances there is no decision on the merits by the high state court, review under § 2254(b)(2) is de novo. Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004) (“De novo review, rather than AEDPA's deferential standard, is applicable to a claim that the state court did not reach on the merits.”); see also Allen v. Mullin, 368 F.3d 1220, 1235 (10th Cir. 2004) (reviewing de novo an unexhausted claim and citing § 2254(b)(2)).
V.
DISCUSSION
A. Illegal Sentencing Claims
In Grounds One, Three, and Five, Petitioner claims that his sentence is illegal based on errors that occurred at the October 2020 resentencing hearing.
1. Legal Standard
Federal habeas relief is not available for an alleged error in the interpretation or application of state law.In particular, it is well settled that a trial court's alleged abuse of discretion in applying state sentencing law cannot form the basis for federal habeas relief.“Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief.”“A habeas petitioner must show that an alleged state sentencing error was ‘so arbitrary or capricious as to constitute an independent due process' violation.”
See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (holding that a state law claim cannot be transformed “into a federal one merely by asserting a violation of due process”).
See Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (denying habeas relief for claim that state sentencing court misapplied its own aggravating circumstance statute because “federal habeas corpus relief does not lie for errors of state law”).
Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994).
Nelson v. Biter, 33 F.Supp.3d 1173, 1177 (9th Cir. 2014) (quoting Richmond v. Lewis, 506 U.S. 40, 50, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992)).
2. Violation of California Penal Code § 1170(d)
In Ground One, Petitioner contends that the trial court violated § 1170(d)when his sentence was increased by eight months at resentencing. (Petition at 5, 30-38.) This claim that the sentencing court improperly applied state law during his resentencing-to correct the Petitioner's sentence for rape from three years and four months to four years-is not cognizable on federal habeas corpus.Although Petitioner argues that this increase in his sentence violated principles of double jeopardy, he cites no federal case law or federal constitutional basis for this claim. Conclusory references to due process and double jeopardy do not transform a state law claim into a cognizable federal claim.Finally, Petitioner has not demonstrated that the lawful correction of his sentence-resulting in an eight-month increase-violated fundamental fairness or was so arbitrary or capricious to violate due process.For these reasons, Ground One does not merit habeas relief.
California Penal Code §1170(d)(1) authorizes a court, at “any time upon recommendation of the secretary or the Board of Parole Hearings,” to recall a sentence and commitment and “resentence the defendant in the same manner as if they had not previously been sentenced.”
See Mills v. Marsh, No. CV 19-5237-DDP (MAA), 2020 WL 1180433, at *3 (C.D. Cal. Jan. 9, 2020)(finding claim of error under 1170(d) was “a question pertaining solely to state law, rendering it noncognizable on federal habeas review”); Nichols v. Pfeiffer, No. CV 19-6356 DSF (JC), 2019 WL 4014429, at *7 (C.D. Cal. Aug. 26, 2019) (finding claims predicated on CDCR's “fail[ure] to follow applicable rules related to petitioner's request to have the CDCR request to recall [his] sentence under section 1170(d)(1)” not cognizable because they concerned only state law).
See Munoz v. Robertson, No. CV 19-00092-ODW (MAA), 2020 WL 4905845, at *5 (C.D. Cal. May 28, 2020) (holding petitioner's “conclusory statements” that sentencing error violated double jeopardy could not “transform a state-law issue into a federal one”) (quoting Langford, 110 F.3d at 1389).
See United States v. Alverson, 666 F.3d 341, 347 (9th Cir. 1982) (“[C]orrection of an illegal sentence does not violate double jeopardy, even if the corrected sentence increases the punishment.”).
3. Failure to Consider All Discretionary Options
In Ground Three, Petitioner asserts that the sentencing court “abused its discretion” by failing to consider all discretionary sentencing choices during the resentencing hearing. (Petition at 6, 55-58.) “[A] petition alleging errors in the state post-conviction review process is not addressable through habeas corpus proceedings.”Moreover, federal courts in state habeas cases only address federal constitutional violations, not abuse of discretion under state law.Because this claim does not implicate any federal constitutional right, Ground Three fails to warrant habeas relief.
See Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989); Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997) (stating that errors in the state post-conviction proceeding were not cognizable in federal habeas corpus proceedings).
Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002); Williams v. Borg, 139 F.3d 737, 740 (9th Cir. 1998).
4. Violation of California Rule of Court 4.452
In Ground Five, Petitioner claims that the resentencing court abused its discretion under California Rule of Court 4.452by selecting the evading a peace officer causing injury conviction as the principal term in his aggregate sentence rather than the rape conviction. (Petition at 6, 75-77.) Clearly, this claim rests entirely on state law and does not raise any federal constitutional issue.Thus, Ground Five also fails because it does not raise a cognizable claim.
Under California law, when a court imposes a determinate sentence consecutive to another previously imposed determinate sentence, the sentencing court must “pronounce a single aggregate term” that “make[s] a new determination of which count, in the combined cases, represents the principal term” under the state's sentencing laws. Cal. R. Ct. 4.452.
See Jackson v. McDowell, No. CV 16-3433-VBF (GJS), 2017 WL 1425602, at *3 (C.D. Cal. Feb. 1, 2017) (“The state courts' purported failures to comply with the California Rules of Court when they denied his habeas petitions do not give rise to a cognizable federal claim.”); Saydyk v. Seibel, No. CV 14-2387-MCD (DB), 2017 WL 220306, at *4 (E.D. Cal. Jan. 19, 2017) (“The California Supreme Court's failure, if any, to comply with California rules of court in denying his habeas petition does not give rise to a cognizable federal claim.”).
B. Ineffective Assistance of Counsel
In Ground Two, Petitioner claims that trial and appellate counsel were ineffective for (a) failing to request that Petitioner's prior strike be dismissed at the resentencing hearing; (b) failing to object to the court's imposition of fines and fees at the resentencing hearing; and (c) failing to argue that Petitioner's sentence was invalid under California Rules of Court, Rule 4.452.
1. Legal Standard
In order to prevail on a claim of ineffective assistance of counsel under the United States Supreme Court decision in Strickland v. Washington, a petitioner must prove two things: (1) counsel's performance was deficient, and (2) he was prejudiced by the deficient performance.A court evaluating an ineffective assistance of counsel claim does not need to address both elements of the test if a petitioner cannot prove one of them.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Id. at 697.
To prove deficient performance, a petitioner must show that counsel's performance was below an objective standard of reasonableness.There is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.”Only if counsel's acts or omissions, examined in light of all the surrounding circumstances, fell outside this “wide range” of professionally competent assistance will petitioner prove deficient performance.Proof of deficient performance does not require habeas corpus relief if the error did not result in prejudice.Accordingly, a petitioner must also show that, but for counsel's unprofessional errors, the result of the proceedings would have been different.
Id. at 687-88.
Id. at 689.
Id. at 690.
Id. at 691.
Id. at 694.
The Strickland standard also applies to claims of ineffective assistance of appellate counsel based on the failure of counsel to raise particular claims on appeal.A habeas petitioner must show that, but for appellate counsel's failure to raise the relevant claims, there is a reasonable probability that the petitioner would have been successful on appeal. In the absence of such a showing, neither Strickland prong is satisfied.
Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
See Pollard v. White, 119 F.3d 1430, 1435-37 (9th Cir. 1997).
2. Failure to Request Dismissal of Prior Strike
Petitioner argues that trial counsel was ineffective because he failed to ask the sentencing court to dismiss the prior strike conviction applied to his rape conviction and sentence when he was resentenced in 2020. (Petition at 38-54.) He contends that the sentencing court would likely have exercised its discretion and dismissed the prior strike because it occurred nearly 30 years earlier and Petitioner had a “stellar record” while in prison. (Petition at 40.)
a. The California Court of Appeal Opinion
On appeal, the California Court of Appeal determined that counsel was not ineffective because there was no prejudice from the failure to request that the strike be dismissed:
[I]n the evading case [Petitioner] moved to dismiss a prior strike, which the trial court denied. He did not originally move to dismiss that same strike in the rape case, and upon remand opted not to move to dismiss the strike as to either case. [Petitioner] argues that his attorney's decision not to move to dismiss the strike in either case upon remand constituted ineffective assistance of counsel. We disagree.
* * *
[Petitioner] attaches to a companion petition for writ of habeas corpus his remand counsel's declaration that she had no tactical reason not to move to dismiss his prior strike, but “simply did not consider the option.”
But no objective reason exists to suppose a reasonable attorney upon remand would have filed a motion to dismiss a prior strike. The trial court had already denied such a motion in 2016, denied a similar motion to strike a prior
serious felony enhancement in 2018, and stated it did not intend to modify the sentence in any way.
Further, the record reflects no materially different circumstances nor any indication that the court had changed its mind. [Petitioner] argues that his prison record from the 2016 sentencing to the 2020 resentencing was exemplary, but there is no indication that the trial court, which in 2020 denied [Petitioner's] motion to dismiss a prior serious felony enhancement, would have considered four years of exemplary prison time to have altered its original estimation that [Petitioner] fell within the spirit of the Three Strikes laws.(Lodgment 1 at 10-12.)
b. Analysis
Here, Petitioner offers no evidence to rebut the state court's conclusion that there was no prejudice from counsel's failure to request the strike be dismissed. As the California Court of Appeal noted, the sentencing court refused to dismiss the strike in the evading case and had imposed the strike in the rape case only four years earlier. Petitioner's claim that his conduct in prison would have swayed the sentencing court to dismiss it in 2020 is entirely speculative.Accordingly, the California courts' rejection of the Petitioner's ineffective assistance of counsel claim was neither contrary to, nor involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court. Habeas relief is not warranted.
See United States v. Taylor, 802 F.2d 1108, 1119 (9th Cir. 1986) (holding vague and speculative assertions that counsel was ineffective do not meet Strickland burden); see also Fields v. Woodford, 309 F.3d 1095, 1107-08 (9th Cir. 2002) (stating petitioner must show “actual prejudice,” not mere possibility of prejudice to be granted relief under Strickland).
3. Failure to Object to Fines and Fees
In his two cases, Petitioner was ordered to pay a total of $740 in fines and fees at the time of his original sentencing. (See Lodgment 7 at 46.) Petitioner faults trial counsel for not objecting to those fines and fees when Petitioner was resentenced in 2020. (See RT at 1501-14.) Petitioner has not demonstrated that this assessment was improper under the law.
See Hammonds v. McGrath, 267 Fed.Appx. 687, 691 (9th Cir. 2008) (rejecting ineffective assistance of counsel claim based on failing to object to a restitution fine, where the fine was permitted by state law) (unpublished).
Furthermore, presumably Petitioner has the ability to pay the sum through work in prison or once he is released from prison.Thus, Petitioner has not demonstrated that counsel's failure to object at the resentencing hearing was constitutionally deficient or that, had he objected, that the sentencing court would have reduced the $740 assessment. Accordingly, Petitioner has not demonstrated that he is entitled to habeas relief on this claim.
See Villa v. Montgomery, No. CV 21-7304-ODW (SHK), 2022 WL 1158012, at *12 (C.D. Cal. Mar. 3, 2022) (“Defendant was represented by counsel at the sentencing hearing and in the absence of a timely objection, the trial court could reasonably presume the fines and fees would be paid out of defendant's future prison wages.”).
4. Failure to Object to Sentence Under California Rule of Court 4.452
Petitioner claims that trial counsel should have objected under California Rule of Court 4.452 that the sentencing court erred in selecting the evading a peace officer causing injury conviction as the principal term and the rape conviction as the subordinate term when calculating his aggregate sentence. (Petition at 7, 75-76.) He also faults appellate counsel for not raising this issue on appeal. (Petition at 75-76.)
Appellate counsel explained his reasoning for not raising the issue:
[I]n my opinion, any argument to the [California] Court of Appeal that the trial court erred and/or abused its discretion when it refused [to] redesignate the rape case as the principal term and the evading case as the subordinate term is wholly meritless, has no basis in law, and would be considered frivolous by the Court of Appeal.(Petition at 91.)
Appellate counsel does not have a constitutional duty to raise every non-frivolous issue a defendant requests.The weeding out of weaker issues is widely recognized as one of the duties of effective appellate lawyers, and counsel is not deficient for failing to raise a weak issue.Further, Petitioner has not offered any evidence that the sentencing court improperly applied California Rule of Court 4.452 in calculating his aggregate sentence in this instance.
Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).
Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).
Thus, trial counsel had no duty to object to the sentence.Nor did appellate counsel have a constitutional duty to raise meritless arguments on Petitioner's behalf on appeal.Accordingly, this claim of ineffective assistance of counsel also fails to merit habeas relief.
See Rupe v. Wood, 93 F.3d 1434, 1444-45 (9th Cir. 1996) (“[T]he failure to take a futile action can never be deficient performance.”); Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994) (holding counsel is not obligated to raise frivolous motions, and failure to do so cannot constitute ineffective assistance of counsel).
See Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001) (“[A]ppellate counsel's failure to raise issues on direct appeal does not constitute ineffective assistance when appeal would not have provided grounds for reversal.”).
C. Imposition of Fines and Fees
In Ground Four, Petitioner claims that the sentencing court erred by imposing fines and fees without first holding a hearing to determine his ability to pay them. (Petition at 6.) For the same reason, Petitioner contends that requiring him to pay restitution violates his constitutional rights. (Petition at 58-71.)
As discussed previously, a federal court may entertain a habeas petition on “behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”A claim challenging the imposition of a fine or a restitution order does not meet this jurisdictional requirement because it has no effect on the validity or duration of a prisoner's confinement.Because Ground Four challenges only the monetary assessments imposed on Petitioner, the Court is without jurisdiction to consider it. Accordingly, Petitioner is not entitled to habeas relief on this claim.
See Bailey v. Hill, 599 F.3d 976, 981-82 (9th Cir. 2010) (“§ 2254(a) does not confer jurisdiction over a state prisoner's in-custody challenge to a restitution order imposed as part of a criminal sentence.”); Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th Cir. 1998) (stating that imposition of a fine is “merely a collateral consequence of conviction” and is not sufficient to establish federal habeas jurisdiction); see also United States v. Thiele, 314 F.3d 399, 402 (9th Cir. 2002) (finding no jurisdiction under 28 U.S.C. § 2255 over claim challenging restitution fine).
VI.
RECOMMENDATION
IT THEREFORE IS RECOMMENDED that the District Court issue an Order: (1) approving and accepting this Final Report and Recommendation; and (2) directing that Judgment be entered denying the Petition and dismissing this action with prejudice.