1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KAMAU DAVIS ATUATASI, Case No.: 22cv1469-JO (NLS)

12 Petitioner, REPORT AND 13 v. RECOMMENDATION:

14 WARREN MONTGOMERY, Warden, et (1) GRANTING DEFENDANT’S al., 15 MOTION TO DISMISS; Respondents. 16 (2) STRIKING PLAINTIFF’S 17 AMENDED COMPLAINT; and

18 (3) DENYING PLAINTIFF’S 19 MOTION FOR STAY AND ABEYANCE 20

21 [ECF Nos. 7, 8]

22 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a 23 Petition for a Writ of Habeas Corpus pursuant to

. ECF No. 1. Pending 24 before the Court is Respondent’s motion to dismiss (ECF No. 7), and Petitioner’s motion 25 for stay and abeyance (ECF No. 8). Petitioner filed an opposition to the motion to 26 dismiss, and on the same day, filed an amended petition. ECF Nos. 10, 11. After due 27 consideration and for the reasons discussed below, the Court RECOMMENDS that 28 1 Respondents’ motion to dismiss be GRANTED, the amended complaint be STRICKEN, 2 and Petitioner’s motion for stay and abeyance be DENIED. 3 I. BACKGROUND 4 On September 26, 2022, Petitioner filed a writ of habeas corpus. In the petition, he 5 claims that “[t]his federal petition does not challenge Petitioner’s criminal conviction. 6 This federal petition presents a federal question to the court regarding whether the Cal. 7 Const. Art I Sec 32(a)(1)(A) creates a liberty interest triggering due process protections.” 8

. Proposition 57, approved on November 8, 2016 and effective November 9, 9 2016, amended § 32 of Article 1 of the California Constitution to state that “[a]ny person 10 convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for 11 parole consideration after completing the full term for his or her primary offense.” Cal. 12 Const. art. I, § 32(a)(1). 13 Petitioner was convicted under California Penal Code § 245(a)(2) for assault with a 14 firearm and under § 245(b) for assault with a semiautomatic firearm, with an 15 enhancement under § 12022.5(a) for personal use of a firearm. ECF No. 1 at 2. During 16 sentencing, Petitioner was also found to have been previously convicted of a prior serious 17 felony strike under California Penal Code § 422. ECF No. 1-3 at 9. Petitioner was 18 sentenced to a term of 36 years and 4 months. Id. 19 Petitioner claims that on two separate occasions, on February 27, 2019 and March 20 25, 2019, he sought parole consideration under Proposition 57, but was denied because he 21 did not qualify since his offenses were not nonviolent. Id. at 10. Petitioner appealed this 22 determination through the California Department of Corrections and Rehabilitation’s 23 (CDCR) appeals process, but was denied relief. Id. 24 Petitioner then filed a state writ of habeas corpus petition that was denied by the 25 trial court. Id. at 11. In the denial, the trial court rejected Petitioner’s argument that his 26 primary offense under § 245(b) was nonviolent because the § 12022.5 enhancement 27 qualifies as a violent felony, as defined under § 667.5(c). ECF No. 1-11 at 2-3. 28 Petitioner appealed this decision, arguing that Proposition 57 requires the exclusion of the 1 firearm enhancement for the purposes of determining whether the primary offense was 2 violent. ECF No. 1 at 11. The court of appeals also denied his writ on appeal. ECF No. 3 1 at 11. First, the court explained that the definition of a violent felony is outlined in 4 § 667.5, which includes firearm enhancements, such as under § 12022.5 that Petitioner 5 was convicted of. ECF No. 1-13 at 3-4. The court also explained Petitioner’s apparent 6 confusion—§ 32 does state that, for the purposes of determining when an inmate who has 7 a nonviolent felony offense may be eligible for parole consideration, terms that were 8 added on for enhancements must be excluded in that calculation. Id. at 4; see Cal. Const. 9 art. I, § 32 (a)(1)(A). However, this “exclusion” does not have anything to do with the 10 determination of who is eligible under Proposition 57 and nothing in this section requires 11 exclusion of enhancements for this determination. ECF No. 1-13 at 4. Finally, Petitioner 12 filed for review with the California Supreme Court but was summarily denied on 13 September 22, 2021. ECF No. 1-14. 14 II. MOTION TO DISMISS 15 The first motion pending before the Court is Respondents’ motion to dismiss. ECF 16 No. 7. Respondents argue that the petition must be dismissed because it raises only state 17 law issues that are not cognizable on federal habeas review, and because it challenges 18 parole eligibility which does not necessarily result in speedier release from prison, which 19 is also not cognizable on federal habeas review. The Court agrees that Petitioner’s 20 petition is not cognizable on federal habeas relief on several grounds. 21 First, federal habeas relief only lies where a prisoner’s challenge is on the “legality 22 of [his] custody” and he is seeking to “secure release from illegal custody.” Preiser v. 23 Rodriguez,

(1973). Thus, where a claim “would not necessarily lead 24 to [the prisoner’s] immediate or earlier release from confinement,” it cannot be brought in 25 a habeas corpus petition. Nettles v. Grounds,

(9th Cir. 2016) (en 26 banc). This is because that even if a prisoner was found to be eligible under Proposition 27 57, that “does not necessarily make petitioner eligible for an earlier release from prison” 28 since the parole board would still need to consider “all relevant, reliable information” to 1 determine “suitability for parole.”

. Thus, if a claim was viable at all, it 2 would have to be brought under § 1983. Id. 3 Based on these established principles, many courts in this circuit have consistently 4 held that the possibility of parole under Proposition 57 does not state a legitimate habeas 5 corpus claim. Bowers v. Sullivan, No. 219CV10991ABSP,

, at *5 6 (C.D. Cal. Mar. 16, 2022), report and recommendation adopted, No. 219CV10991ABSP, 7

(C.D. Cal. June 30, 2022) (petitioner’s habeas petition seeking 8 reclassification of his carjacking conviction and firearm enhancement as nonviolent for 9 Proposition 57 purposes does not “fall within the core of habeas corpus because the 10 remedy would not necessarily result in an earlier or immediate release”); Morgan v. 11 Gastelo, No. CV 20-3538 JAK (MRW),

, at *1 (C.D. Cal. Oct. 15, 12 2020), report and recommendation adopted, No. CV 20-3538 JAK (MRW),

7186738 (C.D. Cal. Dec. 3, 2020) (claim for classification of robbery offense as 14 nonviolent is not legitimate habeas claim); Gleghorn v. Gastelo, No. CV 20-5942-CJC 15 (PLA),

, at *4 (C.D. Cal. July 7, 2020) (same); Medlock v. Lozono, No. 16 2:19-CV-04228-GW-JDE,

, at *12 (C.D. Cal. Jan. 22, 2020), report 17 and recommendation adopted, No. 219CV04228GWJDE,

(C.D. Cal. 18 Feb. 19, 2021) (same); Blanco v. Asuncion, No. 18CV2005-JLS(KSC),

2144452, at *2 (S.D. Cal. May 16, 2019), report and recommendation adopted sub nom. 20 Blanco v. Diaz, No. 18-CV-2005 JLS (KSC),

(S.D. Cal. Aug. 6, 2019) 21 (same); Alexander v. Gastelo, No. SACV1800788JFWSHK,

, at *2 22 (C.D. Cal. Jan. 29, 2019), report and recommendation adopted, No. 23 818CV00788JFWSHK,

(C.D. Cal. Mar. 8, 2019) (same). 24 Thus, for identical reasons here, Petitioner’s claim cannot be brought on federal 25 habeas review. Petitioner appears to even acknowledge the same in his petition—stating 26 that courts have never determined whether there is a liberty interest created under 27 § 32(a)(1) and thus, prior cases have been brought under § 1983. However, Petitioner 28 fails to give any argument as to why this Court should treat his claim any differently from 1 the many other district courts cited above that have declined to treat claims under 2 Proposition 57 as cognizable under habeas relief. The Court cannot do so here either. 3 Second, even if such a claim was cognizable under federal habeas, Petitioner’s 4 claim fails for other reasons. Ultimately, Petitioner’s claim is that he should be eligible 5 for relief under Proposition 57 because his offense should not be considered violent and 6 his firearm enhancement should be ignored. Although petitioner alleges a due process 7 violation, he may not “transform a state-law issue into a federal one merely by asserting a 8 violation of due process.” Langford v. Day,

(9th Cir. 1996). It is 9 well established, and Petitioner even recognizes, that federal habeas corpus cannot lie for 10 an error of state law. Estelle v. McGuire,

(1991); see

11 (a) (habeas relief can be brought “only on the ground that [prisoner] is in custody in 12 violation of the Constitution or laws or treaties of the United States”). Thus, Petitioner’s 13 argument, to the extent it is that the state court misapplied § 32 or any of the sections of 14 the California Penal Code to determine that he was ineligible under Proposition 57, 15 would lie in state law and is not a federal claim. Wilson v. Biter, No. 1:18-CV-00841- 16 SKO,

, at *2 (E.D. Cal. June 26, 2018) (“Petitioner’s claim is not 17 cognizable under federal habeas review because Petitioner is only asserting a violation or 18 misinterpretation of state law and Section 2254 provides a remedy only for the violation 19 of the Constitution or laws or treaties of the United States.”). 20 Third, even construed as a claim arising under the Due Process Clause, Petitioner’s 21 claim still fails because he has not established that he has a liberty interest that has been 22 created by § 32(a)(1). To the contrary, district courts within this Circuit that have 23 considered this issue have generally declined to find such a liberty interest in parole 24 eligibility under Proposition 57. See Bowers v. Sullivan, No. 219CV10991ABSP, 2022

, at *3 (C.D. Cal. Mar. 16, 2022), report and recommendation adopted, No. 26 219CV10991ABSP,

(C.D. Cal. June 30, 2022) (“The Ninth Circuit 27 has not decided whether Proposition 57 creates a liberty interest in good time credits or 28 parole eligibility, and district courts that have addressed this issue have expressed doubt 1 that Proposition 57 creates such a liberty interest.”); Rodriguez v. Anderson, No. 2 EDCV181181AGAGR,

, at *5 (C.D. Cal. Aug. 5, 2019), report and 3 recommendation adopted sub nom. Luis Rodriguez v. Anderson, No. 4 EDCV181181AGAGR,

(C.D. Cal. Nov. 18, 2019) (finding “doubtful” 5 that petitioner can show liberty interest in being considered for parole under Proposition 6 57); Jones v. California State Superior Cts., No. 117CV00232LJOBAMPC,

2287952, at *5 (E.D. Cal. May 18, 2018) (“The court is not convinced that there is 8 mandatory language in Proposition 57 creating a constitutionally protected liberty interest 9 in parole eligibility.”); Daniels v. California Dep’t of Corr. & Rehab., No. 10 117CV01510AWIBAM,

, at *4 (E.D. Cal. Jan. 19, 2018) (holding 11 same); cf. Hunter v. California Dep’t of Corr. & Rehab., No. 219CV01588WBSCKDP, 12

, at *2 (E.D. Cal. Mar. 27, 2020), report and recommendation adopted, 13 No. 219CV01588WBSCKD,

(E.D. Cal. July 22, 2020) (declining to 14 find liberty interest in good time credits under Proposition 57). The Court is persuaded 15 by the weight of authority that there is no cognizable liberty interest in parole created by 16 Proposition 57. 17 At least one district court did find that “arguable” that the “shall” language in 18 Proposition 57 may have created a liberty interest, but the court still dismissed the claim. 19 Stephens v. Kunz, No. CV 19-1008-AB (KS),

, at *4 (C.D. Cal. Sept. 20 18, 2019), report and recommendation adopted, No. CV 19-1008-AB (KS),

6700938 (C.D. Cal. Dec. 6, 2019). The Stephens court did not ultimately make the 22 determination as to whether a liberty interest exists, but held that regardless, the prisoner 23 could not show that he was denied constitutionally required procedures.

In the 24 context of parole, all that is required to be constitutionally sufficient is if the prisoner is 25 provided with an opportunity to be heard and a statement of why parole was denied. 26 Swarthout v. Cooke,

(2011). Nothing in the petition suggests that 27 Petitioner was not given the opportunity to be heard or was denied an explanation of the 28 reasons for the denial. Rather, Petitioner’s disagreement appears to be with the 1 substantive decision. Thus, even under a due process argument, the Court finds that 2 petitioner has failed to show that his rights were violated. 3 The Court notes that along with Petitioner’s opposition to the motion to dismiss, he 4 also filed an amended complaint. ECF No. 11. The Court has reviewed the amended 5 petition and finds that the deficiencies outlined above are not cured in the amended 6 complaint. Accordingly, for all the reasons above, the Court RECOMMENDS that 7 Respondents’ motion to dismiss be GRANTED. The Court also RECOMMENDS that 8 the amended complaint be STRICKEN from the docket. 9 III. MOTION FOR STAY AND ABEYANCE 10 Also pending before the Court is Petitioner’s motion for stay and abeyance. ECF 11 No. 8. In the motion , petitioner asks the Court to stay the instant proceedings while his 12 collateral review habeas is still pending in front of the California Supreme Court.

13 Petitioner states that his collateral review state habeas is “based on testimonial double 14 hearsay in violation of the Confrontation Clause.” Id. at 3. 15 A petitioner generally has two methods available to request a stay. The first is a 16 Rhines stay, as enunciated in Rhines v. Weber,

(2005). This “stay and 17 abeyance” procedure applies to mixed petitions, that is, petitions which contain both 18 exhausted and unexhausted claims. Under this procedure, Petitioner must demonstrate 19 there are arguably meritorious claims which he wishes to return to state court to exhaust, 20 that he is diligently pursuing his state court remedies with respect to those claims, and 21 that good cause exists for his failure to timely exhaust his state court remedies.

at 22 277-78. 23 The second is a King/Kelly stay. King v. Ryan,

(9th Cir. 2009); 24 Kelly v. Small,

(9th Cir. 2003). Under this “withdrawal and abeyance” 25 procedure, a petitioner withdraws any unexhausted claims he may have and asks the 26 Court to stay the proceedings and hold the fully-exhausted petition in abeyance while 27 they return to state court to exhaust the unexhausted claims they wish to bring. King, 564 28 F.3d at 1141-42. After exhaustion, the petitioner must seek permission to amend the 1 petition to include the newly exhausted claims after exhaustion is complete. Id. Under 2 this procedure Petitioner is not required to demonstrate good cause for his failure to 3 timely exhaust, but the newly exhausted claims must be either timely under the statute of 4 limitations or “relate back” to timely claims in the fully-exhausted petition, that is, they 5 must share a “common core of operative facts” with the previously exhausted claims. Id. 6 at 1142-43 (quoting Mayle v. Felix,

(2005)). 7 Though in his motion, Petitioner cites to Rhines and argues that his unexhausted 8 claims are not “plainly meritless” and that he has good cause in requesting for a stay, the 9 Rhines stay and abeyance is not applicable to a petition with only exhausted claims—as 10 Petitioner has here. Patton v. Beard, No. 14cv0569–BEN (BLM),

, at 11 *6 (S.D. Cal. April 20, 2015) (finding the Rhines stay procedure inapplicable to fully- 12 exhausted petition because the petition was not mixed and construing the petitioner’s 13 request for a Rhines stay as a request for a Kelly stay); see King,

(“‘(t)he 14 two approaches are distinct: Rhines applies to stays of mixed petitions, whereas the three- 15 step procedure applies to stays of fully exhausted petitions.’”) (quoting Jackson v. Roe, 16

(9th Cir. 2005)). Petitioner has not sought to amend his petition to add 17 in the purportedly unexhausted claims. Thus, Petitioner may only ask for a stay under 18 King/Kelly at this juncture. 19 Because the Court recommends dismissing the only claim in this current petition, 20 there is no viable claim in the petition and the stay is not warranted here at this time.1 See 21 Sepulveda v. McEwen, No. CV 11-7680-MMM MLG,

, at *1 (C.D. 22 Cal. Dec. 6, 2011), report and recommendation adopted, No. CV 11-7680-MMM MLG, 23

(C.D. Cal. Dec. 30, 2011) (dismissing petition and declining to issue 24

25 1 Even if the Court were to permit Petitioner leave to amend his complaint to add in his 26 unexhausted claims, his new amended petition would only have unexhausted claims and 27 the Ninth Circuit has declined to extend Rhines to that situation. Rasberry v. Garcia,

(9th Cir. 2006) (declining to extend the stay and abeyance procedure to 28 1 || stay under King/Kelly because no claims remained in petition). Thus, the Court 2 ||, RECOMMENDS that Petitioner’s motion for stay and abeyance be DENIED. 3 IV. CONCLUSION 4 As outlined herein, the undersigned RECOMMENDS Respondents’ motion to 5 dismiss be GRANTED, the amended complaint be STRICKEN, and Petitioner’s motion 6 stay and abeyance be DENIED. This report and recommendation is submitted to the 7 || United States District Judge assigned to this case pursuant to

(b)(1). 8 IT IS ORDERED that no later than June 16, 2023, any party to this action may 9 || file written objections and serve a copy on all parties. The document should be captioned 10 “Objections to Report and Recommendation.” 11 IT IS FURTHER ORDERED that any reply to the objections must be filed and 12 || served on all parties no later than June 30, 2023. 13 The parties are advised that failure to file objections within the specified time may 14 || waive the right to raise those objections on appeal of the Court’s order. Martinez v. □□□□□

, 1157 (9th Cir. 1991). 16 IT IS SO ORDERED. 17 Dated: May 25, 2023

19 Hon. Nita L. Stormes 50 United States Magistrate Judge

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