1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 ERIC PHILLIPS, J91735, Case No. 21-cv-06615-CRB (PR)

7 Petitioner, ORDER TO SHOW CAUSE 8 v.

9 RON BROOMFIELD, Acting Warden, (ECF No. 4) 10 Respondent.

11 Petitioner, a state prisoner incarcerated at San Quentin State Prison (SQSP), has filed a pro 12 se petition for a writ of habeas corpus under

challenging his exclusion from 13 consideration for a recommendation for resentencing under California Penal Code section 14 1170(d)(1). Petitioner also seeks leave to proceed in forma pauperis under

. 15 BACKGROUND 16 In October 1995, an Alameda County Superior Court jury found petitioner guilty of one 17 count of second-degree murder, one count of premeditated attempted murder, one count of 18 discharging a firearm at an inhabited dwelling and one count of assault with a deadly weapon. 19 The superior court sentenced petitioner to an indeterminate term of 38 years to life in state prison. 20 In April 2018, the Board of Parole Hearings (BPH) concluded that petitioner was not 21 suitable for parole and determined that the appropriate denial period was 5 years. 22 In September 2018, petitioner sought a recommendation from the California Department of 23 Corrections and Rehabilitation (CDCR) for the sentencing court to recall and resentence him 24 based on exceptional conduct in prison as provided for in California Penal Code section 25 1170(d)(1). But his request and subsequent appeals were denied at all levels of review on the 26 grounds that California Code of Regulations, Title 15, sections 3076, 3076.1 and 3076.2 exclude 27 from consideration for a recommendation for resentencing prisoners scheduled for a parole 1 In June 2020, petitioner filed a petition for a writ of habeas corpus in Alameda County 2 Superior Court claiming that sections 3076, 3076.1 and 3076.2 violate equal protection by treating 3 him differently than other indeterminately sentenced state prisoners. The superior court denied the 4 petition in a reasoned opinion filed on October 15, 2020, and the state court of appeal and supreme 5 court summarily denied the petition on January 28, 2021 and August 11, 2021, respectively. 6 DISCUSSION 7 A. Standard of Review 8 This court may entertain a petition for a writ of habeas corpus “in behalf of a person in 9 custody pursuant to the judgment of a State court only on the ground that he is in custody in 10 violation of the Constitution or laws or treaties of the United States.”

(a). 11 It shall “award the writ or issue an order directing the respondent to show cause why the 12 writ should not be granted, unless it appears from the application that the applicant or person 13 detained is not entitled thereto.”

§ 2243. 14 B. Claims 15 California Penal Code section 1170(d)(1) authorizes a court, on its own motion within 120 16 days after sentencing, or at any time upon recommendation from CDCR or BPH, to recall a 17 sentence and resentence a prisoner to a lesser sentence.

(d)(1). The 18 resentencing court may reduce a prisoner’s term of imprisonment and modify the judgment, 19 including a judgment entered after a plea agreement, if it is “in the interest of justice,” and may 20 consider postconviction factors, including, but not limited to, the prisoner’s disciplinary record 21 and record of rehabilitation while incarcerated, evidence that reflects whether age, time served, 22 and diminished physical condition, if any, have reduced the prisoner’s risk of future violence, and 23 evidence that reflects that circumstances have changed since the prisoner’s original sentencing so 24 that the prisoner’s continued incarceration is no longer in the interest of justice.

25 But California Code of Regulations, Title 15, section 3076.1 provides that prisoners shall 26 be excluded from consideration of a recommendation to the sentencing court for recall and 27 resentencing based on exceptional conduct if they are an indeterminately sentenced prisoner who 1 parole hearing, regardless of the decision by the Board of Parole Hearings.” Cal. Code Regs., tit. 2 15, § 3076.1(b)(2)(F). 3 Liberally construed, petitioner’s claim that section 3076.1 violates equal protection by 4 treating him differently than other indeterminately sentenced state prisoners appears to state an 5 arguably colorable claim for relief under § 2254 and merits an answer from respondent. See 6 Zichko v. Idaho,

(9th Cir. 2001) (federal courts must construe pro se 7 petitions for writs of habeas corpus liberally). 8 CONCLUSION 9 For the foregoing reasons and for good cause shown, 10 1. Petitioner’s request to proceed in forma pauperis (ECF No. 4) is GRANTED. 11 2. The clerk shall serve electronically a copy of this order upon the respondent and the 12 respondent’s attorney, the Attorney General of the State of California, at the following email 13 address: [email protected]. The petition and the exhibits thereto are available via 14 the Electronic Case Filing System for the Northern District of California. The clerk shall serve by 15 mail a copy of this order on petitioner. 16 3. Respondent shall file with the court and serve on petitioner, within 60 days of the 17 issuance of this order, an answer conforming in all respects to Rule 5 of the Rules Governing 18 Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted. 19 Respondent shall file with the answer and serve on petitioner a copy of all portions of the state 20 trial record that have been transcribed previously and that are relevant to a determination of the 21 issues presented by the petition. 22 If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the 23 court and serving it on respondent within 30 days of his receipt of the answer. 24 4. Respondent may file a motion to dismiss on procedural grounds in lieu of an 25 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 26 2254 Cases. If respondent files such a motion, petitioner must serve and file an opposition or 27 statement of non-opposition not more than 28 days after the motion is served and filed, and ] is served and filed. 2 5. Petitioner is reminded that all communications with the court must be served on 3 || respondent by mailing a true copy of the document to respondent’s counsel. Petitioner must also 4 || keep the court and all parties informed of any change of address. 5 IT IS SO ORDERED. 6 || Dated: November 2, 2021 7 2A CHARLES R. BREYER 8 United States District Judge 9 10 1] 12

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