-SMS (HC) Pastrana v. Clark, No. 1:2008cv01820 - Document 25 (E.D. Cal. 2011)
Court Description: ORDER DIRECTING the Clerk to Substitute Kathleen Allison as Respondent; FINDINGS and RECOMMENDATIONS to Deny Petitioner's First, Second, and Fifth Claims; FINDINGS and RECOMMENDATIONS to Dismiss without Leave to Amend Petitioner's Third and Fourth Claims; FINDINGS and RECOMMENDATIONS to Direct the Entry of Judgment and to Decline to Issue a Certificate of Appealability; Objections Deadline: Thirty (30) Days signed by Magistrate Judge Sandra M. Snyder on 3/3/2011. Referred to Judge Oliver W. Wanger; Objections to F&R due by 4/6/2011. (Sant Agata, S)
Download PDF
<![CDATA[
-SMS (HC) Pastrana v. Clark Doc. 25 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 JAVIER PASTRANA, 11 Petitioner, 12 v. 13 KATHLEEN ALLISON, Warden, 14 Respondent. 15 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv—01820–OWW-SMS-HC ORDER DIRECTING THE CLERK TO SUBSTITUTE KATHLEEN ALLISON AS RESPONDENT FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER’S FIRST, SECOND, AND FIFTH CLAIMS FINDINGS AND RECOMMENDATIONS TO DISMISS WITHOUT LEAVE TO AMEND PETITIONER’S THIRD AND FOURTH CLAIMS 17 FINDINGS AND RECOMMENDATIONS TO DIRECT THE ENTRY OF JUDGMENT AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY 18 19 20 OBJECTIONS DEADLINE: THIRTY (30) DAYS 21 22 Petitioner is a state prisoner proceeding pro se with a 23 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 24 The matter has been referred to the Magistrate Judge pursuant to 25 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. 26 before the Court is the petition, which was filed on November 17, 27 2008. 28 Petitioner filed a timely traverse and supporting memorandum on Pending Respondent filed an answer on April 3, 2009, and 1 Dockets.Justia.com 1 April 5, 2010. 2 I. 3 Because the petition was filed after April 24, 1996, the Jurisdiction 4 effective date of the Antiterrorism and Effective Death Penalty 5 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 6 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 7 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 8 A district court may entertain a petition for a writ of 9 habeas corpus by a person in custody pursuant to the judgment of Lindh 10 a state court only on the ground that the custody is in violation 11 of the Constitution, laws, or treaties of the United States. 12 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 13 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 14 16 (2010) (per curiam). 15 28 Petitioner, an inmate of the California Substance Abuse 16 Treatment Facility and State Prison at Corcoran, California 17 (CSATF), claims that he suffered violations of his constitutional 18 rights when he was found unsuitable for parole by the California 19 Board of Parole Hearings (BPH) after a hearing held on January 20 31, 2007, at the CSATF. 21 violations of the Constitution are alleged. 22 (Pet., doc. 1-1, 67, 1.) Thus, Further, the decision challenged was made at Corcoran, 23 California, which is located within the jurisdiction of this 24 Court. 25 28 U.S.C. §§ 2254(a), 2241(a), (d). Respondent Ken Clark answered the petition on behalf of 26 Warden Clark. 27 respondent a person who had custody of the Petitioner within the 28 meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing (Doc. 10, 1:21-22.) 2 Petitioner thus named as a 1 Section 2254 Cases in the District Courts (Habeas Rules). 2 Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 3 1994). 4 5 See, Accordingly, the Court concludes that it has jurisdiction over the proceeding and over the Respondent. 6 II. 7 Fed. R. Civ. P. 25(d) provides that a court may at any time Substitution of Respondent 8 order substitution of a public officer who is a party in an 9 official capacity whose predecessor dies, resigns, or otherwise 10 11 ceases to hold office. Although Ken Clark was the warden at CSATF when the petition 12 and answer were filed, reference to the official web site of the 13 California Department of Corrections and Rehabilitation reflects 14 that the current acting warden is Kathleen Allison.1 15 16 17 18 The Court concludes that Kathleen Allison is an appropriate respondent in this action. The Clerk is therefore DIRECTED to substitute Kathleen Allison, Acting Warden, as Respondent, in place of Ken Clerk. 19 III. 20 Petitioner raises the following claims: Background 1) Petitioner’s 21 agreement to plead guilty to second degree murder and to be 22 sentenced to fifteen years to life with the possibility of parole 23 was subjected to an “ex post facto violation of his reasonable 24 understanding of his plea agreement” when he was not released on 25 26 27 28 1 The Court may take judicial notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, including undisputed information posted on official web sites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Daniels-Hall v. National Education Association –F.3d -, 2010 WL 5141247, *4 (No. 08-35531, 9th Cir. Dec. 20, 2010). 3 1 parole; 2) Petitioner’s guilty plea was invalid as involuntary 2 and unintelligent, and/or the result of ineffective assistance of 3 counsel, because he was not released on parole after fifteen 4 years; 3) the BPH violated state statutes, BPH rules, and 5 Petitioner’s Fourteenth Amendment right to due process of law 6 when it determined that Petitioner was not suitable for parole; 7 4) the BPH was enforcing a “no-parole” policy; and 5) when the 8 BPH considered facts concerning his crime and/or dismissed counts 9 that were not found by a jury or admitted by Petitioner, it 10 violated Petitioner’s Sixth and Fourteenth Amendment rights to 11 due process of law and protection against ex post facto laws. 12 (Pet. 8-18.) 13 On December 9, 1983, Petitioner pled guilty to second degree 14 murder. (Doc. 10-1, 36-37.)2 15 the parties had jointly recommended a referral to the California 16 Youth Authority (CYA) to determine if Petitioner could be housed 17 there, and the court agreed to sentence him to CYA if the 18 authority recommended retaining him there. 19 Petitioner was informed that he could face state prison if CYA 20 did not accept him or desire to retain him. 21 The court expressly informed Petitioner that if he did not stay 22 at CYA, he “would be facing a 15-to-life sentence,” and when 23 queried, Petitioner stated that he understood that. 24 38:14-22.) 25 prison, he would be subject to a five-year parole term after Review of the transcript shows that (Id. at 37:6-15.) (Id. at 38:8-13.) (Id. at Petitioner was also told that if he were sentenced to 26 27 28 2 The transcripts of the entry of Petitioner’s guilty plea and the sentencing proceedings have been lodged with this Court by Respondent in support of the answer . 4 1 release from prison. 2 been any other promises to induce his plea other than a second 3 degree murder rather than first degree, Petitioner answered, 4 “No.” 5 waiver of his rights that he had no questions. 6 20.) 7 (Id. at 38:24-28.) (Id. at 39:7-11.) When asked if there had Petitioner informed the court after On April 5, 1984, Petitioner was sentenced. (Id. at 41:13- 8 42.) 9 (Doc. 10-2, 41- sentencing hearing: 10 11 12 13 14 15 The Superior court recited the terms of the plea at the Pursuant to the case settlement arrived at by the parties, the defendant entered his plea of guilty to murder in the second degree with the indication by the court at the request of the People and Defense that the matter would be referred to California Youth Authority by way of 707.2, Welfare and Institutions Code commitment, in view of the defendant’s age, namely, 17 years of age, and that the term prescribed by law, namely, 15 to life, would be served in CYA, California Youth Authority, if the defendant were accepted there and in state prison if he were rejected. 16 (Id. at 42:1-11.) 17 sentenced him to state prison for the “term prescribed by law,” 18 which the sentencing court recited was “15 years to life.” 19 at 44:2-5.) 20 the time sentence was imposed: 21 22 23 You will be placed on a period of parole for, I believe, up to five years after you are released from prison. And if you violate parole, of course you can be returned to state prison for an additional five years. Do you understand? (Id. at 44:11-15.) 25 44:16.) 26 was given. 28 (Id. The Court stated the following concerning parole at 24 27 Petitioner was rejected by CYA, and the court Petitioner responded affirmatively. (Id. at Credit for 414 days actual time and good time/work time (Id. at 45.) In a declaration submitted with the petition, Petitioner declared that his trial counsel assured him that he would “only 5 1 serve a minimum term of 10-15 years, and then be released from 2 custody if I successfully programmed while in State Prison." 3 (Pet. 6:5-9.) 4 5 6 7 He further declared: When I was not released at the end of 10 years, I thought perhaps that I would be released at the next Board of Parole Hearings. When I was again found “unsuitable” and a “danger to the public safety” by the following Board Commissioners, I then began to suspect the rumors of a “NO-PAROLE POLICY” which specifically targeted murderers might be true. 8 (Pet., decl. of Javier Pastrana, 6:17-21.) 9 believes that his only hope for freedom is to be re-sentenced to Petitioner now 10 time served and to be released on parole, or to be discharged 11 completely because of a gross miscarriage of justice resulting 12 from his being punished in effect for first degree murder, a 13 sentence he had intended to avoid by his agreement to plead 14 guilty to second degree murder. 15 describes his continued imprisonment as a re-characterization by 16 the BPH and the California governor of his crime as a first 17 degree murder. 18 IV. (Id. at 7.) Petitioner (Id.) Untimeliness of Claims concerning Petitioner’s Plea Bargain 19 Insofar as Petitioner alleges in the first and second claims 20 that the denial of parole violated his plea agreement or rendered 21 his guilty plea involuntary, Respondent argues that the petition 22 is untimely. 23 The AEDPA provides a one-year period of limitation in which 24 a petitioner must file a petition for writ of habeas corpus. 25 U.S.C. § 2244(d)(1). As amended, subdivision (d) reads: 26 27 28 (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of – 6 28 1 2 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 3 4 5 6 7 8 9 10 11 12 13 14 15 filing an violation States is filing by (B) the date on which the impediment to application created by State action in of the Constitution or laws of the United removed, if the applicant was prevented from such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d). The Court must determine when the one-year limitation period 16 began to run. 17 Court understands Petitioner’s primary challenge to be to the 18 decision that he was not suitable for parole. 19 Petitioner challenges an administrative decision of the BPH and 20 not the judgment of conviction, the provisions of 28 U.S.C. § 21 2244(d)(1)(A) concerning the finality of the judgment of 22 conviction do not apply because a decision of a state parole 23 board is not a final judgment within the meaning of § 24 2244(d)(1)(A). 25 2003). 26 pursuant to § 2244(d)(1)(D). 27 28 With respect to Petitioner’s application, the To the extent that Redd v. McGrath, 343 F.3d 1077, 1081-82 (9th Cir. Instead, the running of the statute is determined Redd v. McGrath, 343 F.3d at 1082. Likewise, to the extent that Petitioner is challenging the validity of his plea, Petitioner is challenging a judgment of the 7 1 state court. 2 basis of events that transpired long after his sentencing 3 hearing. 4 determine the date on which the factual predicate of the claim or 5 claims presented could have been discovered through the exercise 6 of reasonable diligence. 7 However, Petitioner challenges his plea on the Application of § 2244(d)(1)(D) requires the Court to 28 U.S.C. § 2244(d)(1)(D). Petitioner was sentenced in 1984. Petitioner filed his 8 petition here on November 17, 2008. 9 understanding of his plea agreement was that he was to serve a Petitioner’s alleged 10 “minimum” of ten to fifteen years. 11 that literally understood, Petitioner’s allegations reflect that 12 he was informed that ten to fifteen years was the least he would 13 serve, not the most. 14 reasonable understanding was that the most he would serve would 15 be ten to fifteen years, that would mean that Petitioner’s 16 reasonable understanding of his plea bargain was contradicted by 17 his continued confinement by 1995 at the earliest (after the 18 passage of eleven years) and 2000 at the latest (after the 19 passage of 15 years). 20 petition here until 2008. 21 was exceeded. 22 (Pet. 6:7.) The Court notes Nevertheless, even if Petitioner’s However, Petitioner did not file his Thus, the one-year statutory period Although a properly filed state petition will toll the 23 running of the statute, Petitioner did not file a petition for 24 writ of habeas corpus in a state court until he filed a petition 25 with the Los Angeles County Superior Court on June 22, 2007. 26 (Pet. 13.) 27 tolling. 28 argument concerning, equitable tolling. Thus, Petitioner is not entitled to any statutory Petitioner does not state any grounds for, or mount any 8 1 The Court thus concludes that to the extent that 2 Petitioner’s claim is interpreted as retroactively attacking the 3 validity of his guilty plea, it is untimely. 4 V. 5 Respondent argues that even if Petitioner’s claims Denial of Petitioner’s Claim concerning Parole 6 concerning his plea’s foreclosing denial of parole were timely, 7 Petitioner has not shown that he is entitled to any relief. 8 (Ans. 4:12-15.) 9 To the extent that Petitioner is contending that denial of 10 parole was foreclosed by the terms of his plea, Petitioner has 11 not shown his entitlement to habeas corpus relief. 12 alleges that he was informed that he would spend a minimum of ten 13 to fifteen years in prison. 14 plea proceedings reflects that Petitioner acknowledged in open 15 court that the agreement was to enter a guilty plea in exchange 16 for a sentence of fifteen years to life with possible release on 17 parole thereafter; no other promises were made, and there was no 18 promise that release on parole would occur at any specific time. 19 Petitioner However, the clear record of the Petitioner states that the failure to advise him at the time 20 of his plea that he was being sentenced to life without the 21 possibility of parole rendered his plea unintelligent or 22 involuntary. 23 Petitioner was sentenced to life with the possibility of parole. 24 Further, the fact that Petitioner has been found unsuitable for 25 parole does not establish that Petitioner was actually sentenced 26 to life without the possibility of parole. 27 28 (Pet. 25.) However, the record clearly shows that Petitioner declared that trial counsel assured him of serving a minimum of ten to fifteen years followed by release if 9 1 Petitioner successfully programmed. 2 The law governing claims concerning ineffective assistance 3 of counsel is clearly established for the purposes of the AEDPA 4 deference standard set forth in 28 U.S.C. § 2254(d). 5 Roe, 151 F.3d 1226, 1229 n.2 (9th Cir. 1998). Canales v. 6 To demonstrate ineffective assistance of counsel in 7 violation of the Sixth and Fourteenth Amendments, a convicted 8 defendant must show that 1) counsel’s representation fell below 9 an objective standard of reasonableness under prevailing 10 professional norms in light of all the circumstances of the 11 particular case; and 2) unless prejudice is presumed, it is 12 reasonably probable that, but for counsel’s errors, the result of 13 the proceeding would have been different. 14 Washington, 466 U.S. 668, 687-94 (1984); Lowry v. Lewis, 21 F.3d 15 344, 346 (9th Cir. 1994). 16 omissions of counsel that are alleged to have been deficient. 17 Strickland, 466 U.S. 690. 18 that is applied on direct appeal and in a motion for a new trial. 19 Strickland, 466 U.S. 697-98. 20 Strickland v. A petitioner must identify the acts or This standard is the same standard Here, counsel’s assurance was in essence a representation of 21 possible release after Petitioner served at least ten to fifteen 22 years in prison, and it was expressly based on successful 23 programming, a condition that was and is substantially amorphous 24 and uncertain with respect to both the substance of success and 25 the identity of the entity that would determine whether or not 26 success had been achieved. 27 28 Thus, the Court concludes that Petitioner has not shown that the BPH’s finding that he was unsuitable was inconsistent with, 10 1 or significantly undermined, a knowing and voluntary plea. 2 Further, Petitioner has not alleged specific facts showing that 3 counsel failed to render ineffective assistance because counsel’s 4 alleged representations have not been shown to have been false or 5 substandard. 6 The Court thus concludes that insofar as Petitioner claims 7 that the denial of parole was inconsistent with or precluded by 8 his plea, Petitioner has not shown that he was entitled to 9 relief. Petitioner’s first and second claims should be denied. 10 IV. 11 Petitioner alleges that his rights under the Due Process Failure to State a Cognizable Due Process Claim 12 Clause were violated by the denial of his parole because the BPH 13 actually had a policy to deny parole to murderers, the BPH failed 14 to apply the law governing the parole suitability factors 15 properly, and there was an absence of “some evidence” to support 16 the BPH’s findings that Petitioner continued to pose a threat to 17 public safety. 18 (Pet. 16-17, 25-27) The Supreme Court has characterized as reasonable the 19 decision of the Court of Appeals for the Ninth Circuit that 20 California law creates a liberty interest in parole protected by 21 the Fourteenth Amendment Due Process Clause, which in turn 22 requires fair procedures with respect to the liberty interest. 23 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 24 25 However, the procedures required for a parole determination are the minimal requirements set forth in Greenholtz v. Inmates 26 27 28 11 1 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).3 2 Swarthout v. Cooke, 131 S.Ct. 859, 862. 3 rejected inmates’ claims that they were denied a liberty interest 4 because there was an absence of “some evidence” to support the 5 decision to deny parole. 6 7 8 9 10 11 12 13 In Swarthout, the Court The Court stated: There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners. (Citation omitted.) When however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication–and federal courts will review the application of those constitutionally required procedures. In the context of parole, we have held that the procedures required are minimal. In Greenholtz, we found that a prisoner subject to a parole statute similar to California’s received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied. (Citation omitted.) 14 Swarthout, 131 S.Ct. 859, 862. 15 petitioners had received the process that was due: 16 17 The Court concluded that the They were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied.... 18 19 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether 20 3 21 22 23 24 25 26 27 28 In Greenholtz, the Court held that a formal hearing is not required with respect to a decision concerning granting or denying discretionary parole; it is sufficient to permit the inmate to have an opportunity to be heard and to be given a statement of reasons for the decision made. Id. at 16. The decision maker is not required to state the evidence relied upon in coming to the decision. Id. at 15-16. The Court reasoned that because there is no constitutional or inherent right of a convicted person to be released conditionally before expiration of a valid sentence, the liberty interest in discretionary parole is only conditional and thus differs from the liberty interest of a parolee. Id. at 9. Further, the discretionary decision to release one on parole does not involve restrospective factual determinations, as in disciplinary proceedings in prison; instead, it is generally more discretionary and predictive, and thus procedures designed to elicit specific facts are unnecessary. Id. at 13. In Greenholtz, the Court held that due process was satisfied where the inmate received a statement of reasons for the decision and had an effective opportunity to insure that the records being considered were his records, and to present any special considerations demonstrating why he was an appropriate candidate for parole. Id. at 15. 12 1 [the petitioners] received due process. 2 Swarthout, 131 S.Ct. at 862. 3 noted that California’s “some evidence” rule is not a substantive 4 federal requirement, and correct application of California’s 5 “some evidence” standard is not required by the federal Due 6 Process Clause. 7 The Court in Swarthout expressly Id. at 862-63. Here, in his third and fifth claims, Petitioner challenges 8 the sufficiency of the evidence to support the BPH’s decision. 9 He also challenges the BPH’s consideration of facts concerning 10 his commitment offense or dismissed counts that were not found by 11 a jury or admitted by Petitioner. 12 the merits of the application of California’s “some evidence” 13 standard to the facts in his case. 14 Petitioner is thus challenging However, Petitioner has not stated facts that point to a 15 real possibility of constitutional error or that otherwise would 16 entitle Petitioner to habeas relief because California’s “some 17 evidence” requirement is not a substantive federal requirement. 18 Review of the record for “some evidence” to support the denial of 19 parole is not within the scope of this Court’s habeas review 20 under 28 U.S.C. § 2254. 21 Further, in Petitioner’s first claim concerning 22 consideration of the facts of crimes of which Petitioner was not 23 convicted and which may have been dismissed pursuant to a plea 24 bargain, Petitioner is again requesting this Court to evaluate 25 the evidence relied upon in the state proceedings. 26 set forth, Swarthout forecloses this claim. 27 28 As previously To the extent that Petitioner’s claims concerning the propriety of the BPH’s finding of unsuitability rest on state 13 1 law, they are not cognizable on federal habeas corpus. 2 habeas relief is not available to retry a state issue that does 3 not rise to the level of a federal constitutional violation. 4 Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle 5 v. McGuire, 502 U.S. 62, 67-68 (1991). 6 application of state law are not cognizable in federal habeas 7 corpus. Federal Alleged errors in the Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). 8 Accordingly, the Court concludes that insofar as Petitioner 9 seeks to review the substance of the BPH’s decision in the third 10 and fifth claims, Petitioner does not state a claim for a 11 violation of due process of law or other basis for habeas relief. 12 Insofar as Petitioner complains of a no-parole policy, 13 Petitioner has not alleged any facts pointing to a possibility of 14 relief. 15 A petition for habeas corpus should not be dismissed without 16 leave to amend unless it appears that no tenable claim for relief 17 can be pleaded were such leave granted. 18 F.2d 13, 14 (9th Cir. 1971). 19 Jarvis v. Nelson, 440 The Court notes that Petitioner does not allege that the 20 procedures used for determination of his suitability for parole 21 were deficient because of the absence of either an opportunity to 22 be heard or a statement of reasons for the ultimate decision 23 reached. 24 that Petitioner attended the parole hearing, responded to the 25 questions asked by the commissioners, and made a statement to the 26 board. 27 and he waived the right to be represented by counsel at the 28 hearing. The documentation submitted by Petitioner demonstrates Petitioner had reviewed his records before the hearing, Petitioner was present when the decision was rendered 14 1 and the reasons for the decision were stated. 2 3-80, 5, 11-66, 64-66, 67-80.) 3 statement of the Board’s reasons for finding him unsuitable for 4 parole. (Pet., doc. 1-1, Petitioner thus received a 5 It therefore appears from the face of the petition and the 6 attached documentation that Petitioner received the minimal due 7 process that was required. 8 in parole without the requisite due process of law. 9 appears that Petitioner could not state a tenable due process 10 11 He was not denied a liberty interest Further, it claim for relief were leave to amend granted. Accordingly, it will be recommended that Petitioner’s due 12 process claims concerning the sufficiency or propriety of the 13 evidence considered by the BPH, and his claim consisting of 14 generalized allegations of a “no-parole policy,” be dismissed 15 without leave to amend. 16 V. Consideration of the Facts of Petitioner’s Commitment Offense 17 Petitioner alleges generally that the BPH considered 18 unspecified facts of the crime that were not proven or found by a 19 jury or admitted by Petitioner when he pled guilty to second 20 degree murder.4 (Pet. 18.) However, Petitioner does not specify 21 the facts to which he refers. 22 The transcript of the hearing before the BPH reflects that 23 while under the influence of drugs to the extent that he could 24 not remember killing the victim, Petitioner assaulted a 25 26 27 28 4 The Court notes that at all times pertinent to Petitioner’s case, Cal. Pen. Code § 189 defined first degree murder as murder perpetrated by various weapons or devices, murder perpetrated in the commission of or attempt to commit specified crimes, or murder perpetrated by lying in wait, torture, or any other kind of willful, deliberate, and premeditated killing; all other kinds of murder were categorized as second degree murder. It does not appear that Petitioner’s offense necessarily involved any of the circumstances that would have rendered it a first degree murder. 15 1 seventeen-year-old female visitor who owed him money and 2 strangled her. 3 hearing, Petitioner had supplied the version of the offense that 4 was considered by the BPH. 5 Petitioner’s offense to have been extremely callous and cruel 6 because Petitioner had strangled a nude young woman during a 7 sexual encounter and then removed the body from the house. 8 doc. 1-1, 67-69.) (Pet., doc. 1-1, 13-16, 35-37.) (Id. at 14.) Years before the The BPH considered (Pet, 9 Reference to the transcript of Petitioner’s entry of his 10 guilty plea reflects that Petitioner was informed that he gave up 11 his right to remain silent and waived that right; he further 12 affirmed that he understood that the court would obtain a 13 probation report and a report from the Youth Authority, and that 14 Petitioner would be sentenced on the basis of the report. 15 10-1, 41:1-12, 21-25.) 16 factual basis for the plea. 17 (Doc. It was stipulated that there was a (Id. at 42.) The Court concludes that Petitioner has not shown that the 18 BPH considered facts that were not admitted by Petitioner and 19 considered at the initial sentencing hearing. 20 alleged specific facts in support of the claim. 21 Petitioner has not shown that either Petitioner’s offense or 22 punishment has been aggravated or increased by the actions of the 23 BPH. 24 Petitioner has not Further, Accordingly, any claims concerning violation of the Ex Post 25 Facto Clause or the Sixth and Fourteenth Amendments based on such 26 factual assertions are without merit and should be denied. 27 VI. 28 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 16 1 appealability, an appeal may not be taken to the Court of Appeals 2 from the final order in a habeas proceeding in which the 3 detention complained of arises out of process issued by a state 4 court. 5 U.S. 322, 336 (2003). 6 only if the applicant makes a substantial showing of the denial 7 of a constitutional right. 8 petitioner must show that reasonable jurists could debate whether 9 the petition should have been resolved in a different manner or 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a 10 that the issues presented were adequate to deserve encouragement 11 to proceed further. 12 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 13 certificate should issue if the Petitioner shows that jurists of 14 reason would find it debatable whether the petition states a 15 valid claim of the denial of a constitutional right and that 16 jurists of reason would find it debatable whether the district 17 court was correct in any procedural ruling. 18 529 U.S. 473, 483-84 (2000). 19 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 20 the claims in the habeas petition, generally assesses their 21 merits, and determines whether the resolution was debatable among 22 jurists of reason or wrong. 23 applicant to show more than an absence of frivolity or the 24 existence of mere good faith; however, it is not necessary for an 25 applicant to show that the appeal will succeed. 26 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 27 A district court must issue or deny a certificate of 28 appealability when it enters a final order adverse to the 17 1 applicant. 2 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 3 debate whether the petition should have been resolved in a 4 different manner. 5 of the denial of a constitutional right. 6 recommended that the Court decline to issue a certificate of 7 appealability. 8 VII. 9 Accordingly, it is RECOMMENDED that: 10 11 Petitioner has not made a substantial showing Accordingly, it will be Recommendations 1) Petitioner’s first, second, and fifth claims be DENIED; 2) Petitioner’s third and fourth claims be DISMISSED and 12 13 without leave to amend because the claims are not cognizable in a 14 proceeding pursuant to 28 U.S.C. § 2254; and 15 16 17 18 3) The Clerk be DIRECTED to enter judgment for Respondent; and 4) The Court DECLINE to issue a certificate of appealability. 19 These findings and recommendations are submitted to the 20 United States District Court Judge assigned to the case, pursuant 21 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 22 the Local Rules of Practice for the United States District Court, 23 Eastern District of California. 24 being served with a copy, any party may file written objections 25 with the Court and serve a copy on all parties. 26 should be captioned “Objections to Magistrate Judge’s Findings 27 and Recommendations.” 28 and filed within fourteen (14) days (plus three (3) days if Within thirty (30) days after Such a document Replies to the objections shall be served 18 1 served by mail) after service of the objections. 2 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 3 636 (b)(1)(C). 4 objections within the specified time may waive the right to 5 appeal the District Court’s order. 6 1153 (9th Cir. 1991). The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 7 8 IT IS SO ORDERED. 9 Dated: icido3 March 3, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
