Blacher v. Pollard

Background

Marlon Jessie Blacher, a state prisoner, filed a petition under 28 U.S.C. § 2254 challenging California courts’ denial of his request for resentencing under California Penal Code § 1170.95. He also challenged conditions of confinement at Richard J. Donovan Correctional Facility and requested appointed counsel and permission to proceed without paying filing fees. The opinion states that he was representing himself.

Blacher had been convicted by a jury of first-degree felony murder, two counts of attempted second-degree robbery, and second-degree commercial burglary. He received a sentence of 25 years to life in state prison. His direct appeals and earlier state and federal collateral challenges were unsuccessful.

Resentencing claim

California Senate Bill 1437 changed California murder law and created Penal Code § 1170.95, which permits certain people convicted under felony-murder or natural-and-probable-consequences theories to seek vacatur of their murder convictions and resentencing. The state trial court denied Blacher’s request because it found that he could not satisfy the requirement that he could not be convicted of first- or second-degree murder under the amended law. The state court reasoned that the record showed he was the actual killer and that any reasonable jury would find him guilty of first-degree murder under current law. California’s appellate courts later summarily denied his petitions.

The federal court explained that federal courts generally must defer to state courts’ interpretation of state sentencing laws. A state sentencing error can support federal relief only if it is so arbitrary or capricious that it independently violates due process. The court held that the state court’s application of California law was neither erroneous nor so arbitrary or capricious as to violate due process. It therefore concluded that Blacher was not entitled to federal relief on his resentencing challenge.

Other claims and disposition

To the extent Blacher asserted new or successive claims challenging his 2009 conviction or sentence, the court dismissed those claims without prejudice to refiling if he obtained authorization from the United States Court of Appeals for the Ninth Circuit. Federal law requires that authorization before a district court may consider a second or successive habeas petition.

The court also dismissed without prejudice the claims concerning conditions at the prison, explaining that such claims should be brought in a civil-rights complaint under 42 U.S.C. § 1983 rather than in a petition challenging the validity or duration of custody.

The court dismissed the petition for a writ of habeas corpus, denied the motion for appointed counsel, and denied a certificate of appealability because reasonable jurists could not debate the court’s assessment of the constitutional claims. Based solely on Blacher’s affidavit of poverty, the court granted his application to proceed without paying filing fees. The judge signed the order on December 11, 2020.