govinfo:USCOURTS-cand-5_25-cv-06569-2

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United States District Court 
Northern District of California 
 
 
 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
 
JEREMY M. TOWNER, 
Petitioner, 
v. 
 
E. SILVA, 
Respondent. 
 

 
 
ORDER GRANTING MOTION TO 
DISMISS; DENYING CERTIFICATE 
OF APPEALABILITY 
Re: Dkt. No. 11 
 
 
Petitioner, a state prisoner, filed a pro se writ of habeas corpus pursuant to 28 U.S.C. 
§ 2254, challenging his resentencing in Santa Cruz County Superior Court. Respondent filed a 
motion to dismiss, arguing that the petition fails to state a cognizable claim for relief. ECF No. 11 
at 6. Petitioner filed an opposition (ECF No. 18) and Respondent filed a reply (ECF No. 19). For 
the reasons set forth below, the motion is granted. 
I. BACKGROUND 
In 2001, Petitioner pleaded no contest to second degree murder and robbery and admitted 
that he personally used a deadly weapon during the robbery. Motion to Dismiss, ECF No. 11 
(“MTD”), Ex. A at 1-3. Petitioner was sentenced to a prison term of 21 years to life. Id. at 3. The 
judgment was affirmed on direct review. Id. at 7. 
On January 1, 2019, California Senate Bill 1437, codified at California Penal Code section 
1170.95, became effective and provided “a procedure by which those convicted of murder can 
seek retroactive relief if the changes in law would affect their previously sustained convictions.” 
People v. Martinez, 31 Cal. App. 5th 719, 722 (2019). The change “significantly limited the scope 
of the felony-murder rule to effectuate the Legislature’s declared intent ‘to ensure that murder 
liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, 

 
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United States District Court 
Northern District of California 
or was not a major participant in the underlying felony who acted with reckless indifference to 
human life.’” People v. Strong, 13 Cal. 5th 698, 707-08 (2022). 
In 2020, Petitioner filed a petition for resentencing under section 1170.95, renumbered in 
2022 as section 1172.6, in the Santa Cruz County Superior Court. MTD, Ex. B at 1-2. The 
superior court denied the petition for failure to state a prima facie case for relief, but the California 
Court of Appeal reversed the order and remanded for an evidentiary hearing. Id. On remand, 
follow an evidentiary hearing, the superior court again denied the petition. Id., Ex. C at 2-6. The 
California Court of Appeal affirmed the decision. Id. at 1-2. The California Supreme Court 
denied review. Id., Ex. D. 
Petitioner raises the following claims regarding the resentencing hearing: (1) the trial court 
erred by considering former testimony before a grand jury and Petitioner did not waive this claim; 
(2) the trial court erred by denying the petition partially based on a harmless error analysis 
regarding the admission of certain evidence; (3) the trial court violated Petitioner’s due process 
rights by deciding an unbriefed issue; (4) the trial court erred by admitting juvenile court 
testimony; (5) there was insufficient evidence to deny the resentencing petition; and (6) counsel 
was ineffective at the resentencing hearing. 
II. ANALYSIS 
Federal courts shall “entertain an application for a writ of habeas corpus 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.” 28 U.S.C. 
§ 2254(a). “It is not the province of a federal habeas court to reexamine state-court determinations 
on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 
Whether Petitioner is entitled to resentencing under section 1170.95 is a question of state 
law and is not cognizable on federal habeas review. See Swarthout v. Cooke, 562 U.S. 216, 220 
(2011) (no federal right to be released before the expiration of a valid sentence). “Absent a 
showing of fundamental unfairness, a state court’s misapplication of its own sentencing laws does 
not justify federal habeas relief.” Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). The state 
court’s determination that Petitioner is not eligible for relief under state law binds this federal 

 
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United States District Court 
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court sitting in habeas corpus. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005). 
In denying the petition, the superior court identified the evidence that demonstrated 
Petitioner was either the actual killer, or intentionally aided and abetted a murder, or was a major 
participant who acted with reckless indifference. MTD, Ex. C at 6. The superior court relied on 
that evidence in finding that Petitioner remained liable for murder under the current law. Id. The 
California Court of Appeal affirmed the finding and the California Supreme Court denied his 
petition seeking relief. 
Even if the state courts misapplied section 1170.95 to deny relief, Petitioner does not 
present a federal habeas claim. Other district courts have reached the same conclusion and found 
that a state court’s alleged misapplication of section 1170.95 does not present a federal habeas 
claim. See, e.g., Polk v. Parker, No. 24-6460 VC, 2025 WL 1592675, at *2-3 (N.D. Cal. June 5, 
2025) (dismissing section 1170.95 claim for failure to state a federal claim); Nguyen v. Eaton, No. 
22-2656 BLF, 2023 WL 5310941, at *3 (N.D. Cal. Aug. 16, 2023) (same), certificate of 
appealability denied, No. 23-2431, 2024 WL 5485045 (9th Cir. Sep. 30, 2024); Mays v. 
Montgomery, No. 20-11614 PSG AFM, 2021 WL 2229082, at *3 (C.D. Cal. Apr. 22, 2021) 
(collecting cases), certificate of appealability denied, No. 21-55748, 2023 WL 9107328 (9th Cir. 
May 19, 2023). All of Petitioner’s claims solely involve the resentencing hearing and fail to state 
a federal claim. 
Nor does Petitioner’s allegations that counsel was ineffective state a federal claim. 
Because “[t]here is no constitutional right to an attorney in state post-conviction proceedings . . . a 
petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” 
Coleman v. Thompson, 501 U.S. 722, 752 (1991); 28 U.S.C. § 2254(i) (“The ineffectiveness or 
incompetence of counsel during Federal or State collateral post-conviction proceedings shall not 
be a ground for relief in a proceeding arising under section 2254.”). 
To the extent Petitioner argues that any state court errors violated due process, he is not 
entitled to relief. A state court’s misapplication of state sentencing law may violate due process if 
a petitioner can demonstrate both sentencing error and that the error was “so arbitrary or 
capricious as to constitute an independent due process” violation. Richmond v. Lewis, 506 U.S. 

 
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40, 50 (1992). However, a habeas petitioner “may not . . . transform a state-law issue into a 
federal one merely by asserting a violation of due process.” Langford v. Day, 110 F.3d 1380, 
1389 (9th Cir. 1996). “[O]therwise, every erroneous decision by a state court on state law would 
come here as a federal constitutional question.” Little v. Crawford, 449 F.3d 1075, 1083 n.6 (9th 
Cir. 2006) (citation omitted). 
The California Court of Appeal affirmed the denial of the resentencing petition, finding no 
error, and Petitioner has not shown – nor has the Court found – any state sentencing error that was 
so arbitrary and capricious that it violated due process. See Harris v. Cisneros, No. 22-0074 CRB, 
2022 WL 1082015, at *3 (N.D. Cal. Apr. 11, 2022) (dismissing section 1170.95 claim because 
petitioner could not show state court’s decision was arbitrary and capricious), certificate of 
appealability denied, No. 22-15715, 2023 WL 7450738 (9th Cir. Aug. 31, 2023). 
In his opposition, Petitioner states that he does not challenge the denial of the resentencing 
petition, rather he is challenging his imprisonment since his arrest in 1998. ECF No. 18 at 1. To 
the extent Petitioner argues that this petition is challenging his underlying conviction, he is not 
entitled to relief. The claims specifically challenge the denial of the resentencing petition. ECF 
No. 1 at 2, 4-7, 18-39. The claims exhausted in state court only involved the resentencing hearing. 
MTD, Ex. C. He cannot challenge the underlying conviction in this petition. 
CONCLUSION 
The motion to dismiss (ECF No. 11) is GRANTED, and the case is DISMISSED for 
failure to state a federal habeas claim. Because reasonable jurists would not find the result 
debatable, a certificate of appealability is DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 
(2000). The Clerk is requested to enter judgment and close the file. 
IT IS SO ORDERED. 
Dated: June 18, 2026 
 
 
Eumi K. Lee 
United States District Judge 

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