1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CHARLES EDWARD LUCKETT, Case No. 22-cv-06634-HSG

8 Petitioner, ORDER GRANTING MOTION TO DISMISS; DISMISSING PETITION 9 v. WITH PREJUDICE; DENYING CERTIFICATE OF APPEALABILITY 10 WARDEN O’BRIAN BAILEY, Re: Dkt. No. 12 11 Respondent.

12

13 14 Petitioner, an inmate at Valley State Prison in Chowchilla, California,1 filed this pro se 15 writ of habeas corpus pursuant to

, challenging the state court denial of his Cal. 16 Penal Code § 1172.6 resentencing petition. Dkt. No. 1 at 1, 7. Now pending before the Court is 17 Respondent’s motion to dismiss. Dkt. No. 12. Petitioner has filed an opposition, Dkt. No. 13, and 18 Respondent has filed a reply, Dkt. No. 14. For the reasons set forth below, the Court GRANTS 19 Respondent’s motion to dismiss; DISMISSES the petition with prejudice; and DENIES a 20 certificate of appealability. 21 DISCUSSION 22 I. Procedural Background 23 On July 17, 2015, Petitioner was convicted by a jury of murder committed while engaged 24 in attempted robbery and with personal use of a firearm,

, 190.2(2)(17)(A), 25 12022.5(a). Dkt. No. 1 at 1, 7. Petitioner was sentenced to a term of twenty-five years to life 26 1 In accordance with Rule 25(d) of the Federal Rules of Civil Procedure and Rule 2(a) of the Rules 27 Governing Habeas Corpus Cases Under Section 2254, the Clerk of the Court is directed to 1 without parole for first-degree murder, life without parole for special circumstance murder, and 2 five years for use of a firearm. Dkt. No. 1 at 1, 7. 3 In 2019, Petitioner petitioned the state trial court to vacate his murder conviction and for 4 resentencing pursuant to

. See People v. Luckett, C No. A161197, 2021

, at *1 (Cal. Ct. App. Oct. 18, 2021). The trial court appointed counsel, issued an 6 order to show cause, and denied the petition on the merits.

Petitioner appealed the denial of 7 his Section 1170.95 petition to the state appellate court, and also requested that the state appellate 8 court strike the probation investigation fee, as well as other fines, fees, and assessments imposed 9 by the court.

On October 18, 2021, the state appellate court affirmed the denial of the Section 10 1170.95 petition, struck the portion of the judgment imposing the probation investigation fee 11 pursuant to Calif. Assembly Bill No. 1869 (2019-2020 Reg. Sess., Stats. 2020, ch. 92, § 2; 12 Assembly Bill 1869), and declined to address the other fines, fees, and assessments. See id. On 13 November 19, 2021, Petitioner filed a petition for review with the California Supreme Court, 14 which was denied on December 22, 2021. See People v. Luckett, Cal. Sup. Ct. C No. S271872. 15 On or about October 27, 2022, Petitioner filed this action pursuant to

,2 16 arguing that the state court erred in denying him relief under

(which 17 has now been renumbered as

); and that the fees, assessments, and 18 restitution fines must be stricken because they were imposed without first holding a hearing on his 19 ability to pay. Dkt. No. 1. On February 16, 2023, the Court found that the first claim stated a 20 cognizable claim for federal habeas relief:

21 Liberally construed, the petition’s first claim [that the state court’s denial of his petition for resentencing pursuant to

, which has now been 22 renumbered as

, denied him due process because there was insufficient evidence that the nonshooter acted with the required mens rea] states a 23 cognizable claim for federal habeas relief, see In re Winship,

(1970) (criminal defendant may be convicted only upon proof beyond reasonable doubt of every 24 fact necessary to constitute crime with which he is charged), and merits an answer from Respondent, see Zichko v. Idaho,

(9th Cir. 2001) (federal courts must 25

26 2 Petitioner has previously filed a federal habeas petition in this court, challenging his underlying conviction. See Luckett v. Neuschmid, C No. 18-cv-7670 HSG; see also Dkt. No. 11 at 1-3 27 (setting forth detailed recounting of Petitioner’s habeas filing history in the federal courts). The construe pro se petitions for writs of habeas corpus liberally). In relevant part, Section 1 1172.6 provides that, at the resentencing hearing, if the prosecution fails to prove, beyond a reasonable doubt, that the petitioner is guilty of murder under California law as amended 2 by the changes to Section 188 or 189 made effective January 1, 2019, the prior conviction, and any allegations and enhancements attached to the conviction “shall be vacated.” Cal. 3 Penal Code § 1172.6(d)(3). Although resentencing under Section 1172.6 is a state remedy, the denial of a Section 1172.6 resentencing petition could potentially give rise to a due 4 process claim if relief were warranted under the statute but denied, i.e., if the evidence were no longer sufficient to support a conviction of murder or attempted murder because of 5 the changes to

or § 189, made effective January 1, 2019. See, e.g., People v. Torres,

, 1180 (Cal. Ct. App. 2020) (in discussing 6 defendant’s resentencing request pursuant to then Section 1170.95, stating that “[t]here is . . . a possibility that Torres was punished for conduct that is not prohibited by section 190.2 7 as currently understood, in violation of Torres’s constitutional right to due process . . . because it would be unjust for a court to permit a court to deny a petitioner relief on the 8 basis of facts that the jury did not necessarily find true, and which may not be sufficiently supported by the record.”). 9 10 Dkt. No. 5 at 4. The Court dismissed the second claim with prejudice because success on this 11 claim would not impact Petitioner’s ability to be released from custody, as required for federal 12 habeas jurisdiction. The Court ordered Respondent to show cause as to why Petitioner was not 13 entitled to relief on the cognizable claim. See generally Dkt. No. 5. 14 On March 23, 2023, the Court granted Petitioner’s unopposed request to stay the action 15 pending the resolution of Ninth Circuit case no. 21-15391, Luckett v. Neuschmid. Dkt. No. 8. 16 On or about April 4, 2024, Petitioner filed a request to lift the stay and reopen this action. 17 Dkt. No. 9. 18 On June 17, 2024, the Court lifted the stay and reopened this action. Dkt. No. 11. 19 II. Motion to Dismiss (Dkt. No. 12) 20 Respondent has filed a motion to dismiss this petition for failing to state a cognizable claim 21 for federal habeas relief. Respondent argues that claims challenging denials of

1170.953 resentencing petitions allege errors in the application of a state sentencing law, and 23 therefore are not cognizable in federal habeas. In support of this argument, Respondent cites to 24 various cases in which California federal district courts have dismissed

25 resentencing claims as state law claims which are not cognizable in federal habeas. Dkt. No. 12 at 26 3 In 2022,

was amended and renumbered as

. 27 Because Petitioner invokes Section 1170.95, and because most of the case law cited herein 1 4-5. Respondent further argues that the Court erred in finding that the

2 resentencing claim stated a cognizable claim because (1) a federal habeas petitioner may not 3 transform a state-law issue into a federal one simply by asserting a violation of due process, citing 4 to Langford v. Day,

(9th Cir. 1996); and (2) a state court’s interpretation of 5 state law binds a federal court sitting in habeas corpus, and here the state appellate court found that 6 Petitioner was not entitled to relief under

, a state law. Dkt. No. 12 at 7 5-6. Finally, Respondent argues that the Court’s reliance on People v. Torres,

1168, 1180 (Cal. Ct. App. 2020), is misplaced because (1) Torres is a California court decision 9 and therefore cannot be the basis for federal habeas relief; and (2) Torres was abrogated by People 10 v. Lewis,

(Cal. 2021). Dkt. No. 12 at 6. 11 In his opposition, Petitioner argues that the denial of Section 1172.6 resentencing petition 12 violated the Due Process Clause’s requirement that a conviction be supported by substantial 13 evidence because there was insufficient evidence that he acted with the required mens rea of 14 reckless indifference to human life. See generally Dkt. No. 13.4 15 Petitioner fails to state a claim to the extent he alleges that the state court erred in its 16 application of its own state sentencing law because federal habeas corpus relief does not lie for 17 errors of state law. See Wilson v. Corcoran,

(2010); Bradshaw v. Richey,

(2005). District courts throughout California have rejected similar challenges to denial of 19 Section 1170.95 petitions, on the grounds that these challenges pertain solely to the state court’s 20 interpretation and application of state sentencing law and are therefore not cognizable on federal 21 habeas review. Galaz v. Calif., No. 2:24-CV-07517-DOC-KES,

, at *4 (C.D. 22 Cal. Oct. 11, 2024), report and recommendation adopted, No. 2:24-CV-07517-DOC-KES, 2024

(C.D. Cal. Nov. 15, 2024) (collecting cases); Muhammad v. Matteson, No. 2:23-CV- 24 2517-DAD-DMC-P,

, at *2 (E.D. Cal. Aug. 13, 2024), report and 25 4 The Court does not address the other arguments presented by Petitioner in his opposition because 26 they challenge the underlying conviction, and not the denial of the resentencing petition. For example, Petitioner argues that he was prevented from presenting exculpatory third-party 27 culpability evidence to the jury and that the trial court “erred prejudicially in failing to fully 1 recommendation adopted, No. 2:23-CV-02517-DC-DMC (HC),

(E.D. Cal. 2 Nov. 8, 2024) (collecting cases); Nieber v. Macomber, No. 23-CV-0174-LL-DEB,

3405612, at *3 (S.D. Cal. July 12, 2024) (collecting cases); Calderon v. Covello, No. 22-CV- 4 03881 BLF (PR),

, at *3 (N.D. Cal. Aug. 22, 2023), certificate of appealability 5 denied, No. 23-2450 (9th Cir. Sept. 30, 2024) (collecting cases); Esparza v. Lizarraga, Case No. 6 17-3168 AB MAA,

, at *3 (C.D. Cal. Aug. 7, 2019), report and 7 recommendation adopted,

(C.D. Cal. Oct. 28, 2019), certificate of 8 appealability denied, No. 19-56299 (9th Cir. March 5, 2021). 9 Petitioner argues that his federal due process rights were violated because there was 10 insufficient evidence to support the denial of his state resentencing petition. Petitioner’s argument 11 involves a state proceeding created exclusively by state law to shorten his sentence. There is no 12 federal right to be resentenced from a valid conviction and sentence. See Swarthout v.

, 220 (2011). 14 A state court’s misapplication of state sentencing law may violate due process if a 15 petitioner can demonstrate both state sentencing error and that the error was “so arbitrary or 16 capricious as to constitute an independent due process” violation. Richmond v. Lewis,

(1992). However, a habeas petitioner “may not . . . transform a state-law issue into a 18 federal one merely by asserting a violation of due process.” Langford v. Day,

, 19 1389 (9th Cir. 1996). 20 Here, the record does not support a finding of state sentencing error, much less an error so 21 arbitrary or capricious as to constitute an independent due process violation. Petitioner was 22 convicted in 2015 of first-degree murder with a felony-murder special circumstance and a personal 23 use of firearm enhancement (

(a), 190.2(a)(17(A), 12022.5(a). People v. 24 Luckett, C No. A161197,

, at *1 (Cal. Ct. App. Oct. 18, 2021) (“Luckett 25 Resentencing”). In 2018, the California Senate passed Bill 1437 (2018), which “amend[ed] the 26 felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to 27 ensure that murder liability is not imposed on a person who is not the actual killer, did not act with 1 indifference to human life.” Stats. 2018, ch. 1015, § 1, subd. (f). Cal. Senate Bill 1437 amended 2

, which defines malice, and amended

, which defined 3 the degrees of murder, but after amendment, addressed felony murder liability. Cal. Senate Bill 4 1437 also added

, which allows those “convicted of felony murder or 5 murder under a natural and probable consequences theory . . . [to] file a petition with the court that 6 sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced 7 on any remaining counts . . .”

(a) (2019). Cal. Senate Bill 1437 did not 8 change the requirements for finding a felony-murder special circumstance set forth in Cal. Penal 9 Code § 190.2, which is what Petitioner was convicted of, and these requirements are the same as 10 the new requirements for felony-murder following the enactment of Cal. Senate Bill 1437. Luckett 11 Resentencing,

, at *3. 12 A review of the record indicates that there was sufficient evidence presented to support the 13 trial court’s finding that Petitioner acted with reckless indifference to human life, as required by 14

to sustain a felony murder special circumstance. The state superior court 15 reviewed the record and the evidence presented after the evidentiary hearing and found that the 16 evidence established beyond a reasonable doubt that Petitioner aided and abetted the attempted 17 robbery with a direct intent to kill and that he was a major participant in the crime who acted with 18 reckless indifference to human life. The state superior court cited the following evidence to 19 support its conclusion: Petitioner and his cohort arrived at the restaurant at time when they would 20 be able to stay until the restaurant closed; made an effort to identify the manager; Petitioner was 21 armed with a gun; when the manager was grabbed by his accomplice, Petitioner held the crowd at 22 bay by brandishing a gun; and witnesses testified that Petitioner exhorted his accomplices to kill 23 the manager if he would not produce the cash quickly.

. The state appellate court found 24 that the superior court correctly followed the law in reaching its conclusions and that there was 25 substantial evidence to support the superior court’s decision in denying the Section 1170.95 26 petition. In reaching its conclusion, the state appellate court cited numerous state cases where 27 defendants who engaged in similar behavior as Petitioner – for example, were physically present 1 exhorted an accomplice to shoot the manager — had been found to be recklessly indifferent to 2 || human life as a matter of law. Jd. at *3-*5. 3 The Court GRANTS Respondent’s motion to dismiss for failure to state a cognizable 4 || federal claim. Petitioner’s claim alleges an error of state sentencing law, for which federal habeas 5 relief does not lie. Moreover, Petitioner has not shown any state sentencing error, much less that 6 || there was an error so arbitrary or capricious that it violated his due process rights. 7 Il. Denying Certificate of Appealability 8 The federal rules governing habeas cases brought by state prisoners require a district court 9 that issues an order denying a habeas petition to either grant or deny therein a certificate of 10 appealability. See Rules Governing § 2254 Case, Rule 11(a). A judge shall grant a certificate of 11 appealability “only if the applicant has made a substantial showing of the denial of a constitutional 12 || right,”

(c)(2), and the certificate must indicate which issues satisfy this standard. 5 13

§ 2253(c)(3). “Where a district court has rejected the constitutional claims on the merits, the 14 showing required to satisfy § 2253(c) is straightforward: [t]he petitioner must demonstrate that 3 15 || reasonable jurists would find the district court’s assessment of the constitutional claims debatable 16 or wrong.” Slack v. McDaniel,

(2000). Here, Petitioner has not made such a 3 17 showing, and, accordingly, a certificate of appealability will be denied. CONCLUSION 19 For the foregoing reasons, the Court GRANTS Respondent’s motion to dismiss the petition 20 || for failure to state a cognizable federal habeas claim; DISMISSES this petition with prejudice; and 21 DENIED a certificate of appealability. 22 This order terminates Dkt. No. 12. 23 IT IS SO ORDERED. 24 || Dated: 2/21/2025 25 Abeer 5 Abe 26 HAYWOOD S. GILLIAM, JR. United States District Judge 27 28