(HC) Thompson v. Hartley, No. 1:2009cv02201 - Document 15 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that The Petition for Writ of Habeas Corpus be DISMISSED; Petition for Writ of Habeas Corpus be DENIED; Court to DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY; Clerk DIRECTED to enter JUDGMENT for Respondent; re 1 Petition for Writ of Habeas Corpus filed by Roderick K. Thompson ; referred to Judge Ishii, signed by Magistrate Judge Sheila K. Oberto on 03/18/2011. Objections to F&R due by 4/25/2011 (Martin, S)
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(HC) Thompson v. Hartley Doc. 15 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RODERICK K. THOMPSON, 11 Petitioner, 12 13 14 15 v. JAMES D. HARTLEY, Respondent. 16 17 18 19 ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv—02201-AWI-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS PETITIONER’S DUE PROCESS CLAIM CONCERNING PAROLE SUITABILITY FOR FAILURE TO STATE A CLAIM COGNIZABLE IN A PROCEEDING PURSUANT TO 28 U.S.C. § 2254 (DOC. 1) FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER’S DUE PROCESS CLAIM CONCERNING VIOLATION OF HIS PLEA BARGAIN (DOC. 1) AND TO DIRECT ENTRY OF JUDGMENT FOR RESPONDENT FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY 20 21 OBJECTIONS DEADLINE: THIRTY (30) DAYS 22 23 Petitioner is a state prisoner proceeding pro se and in 24 forma pauperis with a petition for writ of habeas corpus pursuant 25 to 28 U.S.C. § 2254. 26 Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 27 72-302 and 72-304. 28 which was filed on December 18, 2009. The matter has been referred to the Pending before the Court is the petition, Respondent filed an answer 1 Dockets.Justia.com 1 to the petition on July 28, 2010, and Petitioner filed a traverse 2 on August 19, 2010. 3 I. 4 Rule 4 of the Rules Governing § 2254 Cases in the United Consideration of Dismissal of the Petition 5 States District Courts (Habeas Rules) requires the Court to make 6 a preliminary review of each petition for writ of habeas corpus. 7 The Court must summarily dismiss a petition "[i]f it plainly 8 appears from the petition and any attached exhibits that the 9 petitioner is not entitled to relief in the district court....” 10 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 11 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 12 1990). 13 grounds of relief available to the Petitioner; 2) state the facts 14 supporting each ground; and 3) state the relief requested. 15 Notice pleading is not sufficient; rather, the petition must 16 state facts that point to a real possibility of constitutional 17 error. 18 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 19 Allison, 431 U.S. 63, 75 n.7 (1977)). 20 that are vague, conclusory, or palpably incredible are subject to 21 summary dismissal. 22 Cir. 1990). 23 Habeas Rule 2(c) requires that a petition 1) specify all Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 24 corpus either on its own motion under Habeas Rule 4, pursuant to 25 the respondent's motion to dismiss, or after an answer to the 26 petition has been filed. 27 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 28 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 2 1 Here, after the answer and traverse were filed, the United 2 States Supreme Court decided Swarthout v. Cooke, 562 U.S. –, 131 3 S.Ct. 859, 861-62 (2011). 4 the instant case, and because no motion to dismiss the petition 5 has been filed, the Court proceeds to consider both the merits of 6 the petition and whether the petition states a cognizable claim 7 for relief. Because Swarthout appears to govern 8 II. 9 Petitioner alleges that he is an inmate of the Avenal State Background 10 Prison (ASP) who is serving fifteen (15) years to life imposed in 11 the Kings County Superior Court upon Petitioner’s 1981 conviction 12 of second degree murder in violation of Cal. Pen. Code § 187(a). 13 (Pet. 1.) 14 In his first claim, Petitioner argues that the decision of 15 the California Board of Parole Hearings (BPH) finding Petitioner 16 unsuitable for parole violated his right to due process of law 17 because it was not supported by some evidence of current 18 dangerousness and was not reached by an individualized 19 consideration of the pertinent criteria. 20 appears that the decision in question followed a hearing held 21 before the BPH on March 10, 2008. 22 12-1], 5.) 23 decisions on his claims as also lacking the support of some 24 evidence to support the statutory and regulatory factors. 25 12.) 26 (Pet. 4-14.) It (Ans. [doc. 12], Ex. A [doc. Petitioner also challenges the state courts’ (Pet. In his second claim, Petitioner contends that his plea 27 agreement to enter a guilty plea to second degree murder was 28 violated by the BPH’s finding of unsuitability for parole and the 3 1 actions of the California Department of Corrections and 2 Rehabilitation (CDCR) because the bargain resulted in no benefit, 3 and his sentence is not “within the regulatory matrix of 4 punishment specified for second degree murder” in Cal. Code 5 Regs., tit. 15, § 2403(c). 6 explanation of the parole consequences of his plea or of what a 7 term of fifteen (15) years to life meant, and he alleges that he 8 has served almost twelve (12) years beyond his fifteen-year 9 minimum. (Pet. 13.) Petitioner notes the absence of any Petitioner argues that the BPH thus 10 unilaterally authorized a higher degree of punishment than 11 Petitioner bargained for in the guilty plea proceedings, and he 12 seeks specific performance of the bargain. 13 assert that the BPH has failed to acknowledge Petitioner’s good- 14 time credits, but specific facts are not stated. 15 interprets the assertion as a reference to an additional 16 consequence of the finding that Petitioner was not suitable for 17 parole. 18 He also appears to Thus, the Court (Pet. 4, 13-16.) It appears from the transcript of the hearing submitted by 19 Respondent with the answer that Petitioner attended the parole 20 hearing before the BPH on March 10, 2008. 21 147.) 22 of Petitioner. 23 reviewed his central file before the hearing, spoke to the board 24 about various suitability factors, and personally made a 25 statement. (Pet. 64, 56-124, 135-39.) 26 when the BPH stated its reasons for denying parole. 27 47.) 28 /// (Pet. [doc. 1], 52- Petitioner was represented by counsel, who spoke on behalf (Pet. 56-147, 60, 65, 130, 132-35.) 4 Petitioner Petitioner was present (Pet. 140- 1 III. Failure to Allege a Due Process Claim Cognizable in a Proceeding pursuant to 28 U.S.C. § 2254 2 Because the petition was filed after April 24, 1996, the 3 effective date of the Antiterrorism and Effective Death Penalty 4 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh 5 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 6 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 7 A district court may entertain a petition for a writ of 8 habeas corpus by a person in custody pursuant to the judgment of 9 a state court only on the ground that the custody is in violation 10 of the Constitution, laws, or treaties of the United States. 28 11 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 12 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 13 16 (2010) (per curiam). 14 The Supreme Court has characterized as reasonable the 15 decision of the Court of Appeals for the Ninth Circuit that 16 California law creates a liberty interest in parole protected by 17 the Fourteenth Amendment Due Process Clause, which in turn 18 requires fair procedures with respect to the liberty interest. 19 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 20 However, the procedures required for a parole determination 21 are the minimal requirements set forth in Greenholtz v. Inmates 22 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 23 24 25 26 27 28 1 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 5 1 Swarthout v. Cooke, 131 S.Ct. 859, 862. 2 rejected inmates’ claims that they were denied a liberty interest 3 because there was an absence of “some evidence” to support the 4 decision to deny parole. 5 6 7 8 9 10 11 12 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.) 13 Swarthout, 131 S.Ct. 859, 862. 14 petitioners had received the process that was due as follows: 15 16 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.... 17 18 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 19 Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly 20 noted that California’s “some evidence” rule is not a substantive 21 federal requirement, and correct application of California’s 22 “some evidence” standard is not required by the Federal Due 23 Process Clause. Id. at 862-63. 24 25 26 27 28 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. 6 1 Here, in his first claim, Petitioner challenges the 2 sufficiency and the weight of the evidence as determined by the 3 BPH and the state courts. 4 in the very type of analysis foreclosed by Swarthout. 5 does not state facts that point to a real possibility of 6 constitutional error or that otherwise would entitle Petitioner 7 to habeas relief because California’s “some evidence” requirement 8 is not a substantive federal requirement. 9 for “some evidence” to support the denial of parole is not within 10 11 Petitioner asks this Court to engage Petitioner Review of the record the scope of this Court’s habeas review under 28 U.S.C. § 2254. Petitioner’s sub-claim that he did not receive a 12 sufficiently individualized consideration of the evidence 13 concerning his behavior is likewise not cognizable. 14 due process to which Petitioner is entitled does not include any 15 particular degree of individualized consideration. 16 The minimal To the extent that Petitioner complains that the BPH did not 17 act or make findings in accordance with state statutory or 18 regulatory law, Petitioner is asserting a violation, or error in 19 application, of state law. 20 Petitioner’s claim rests on state law, it is not cognizable on 21 federal habeas corpus. 22 retry a state issue that does not rise to the level of a federal 23 constitutional violation. 24 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 25 (1991). 26 cognizable in federal habeas corpus. 27 616, 623 (9th Cir. 2002). 28 However, to the extent that Federal habeas relief is not available to Wilson v. Corcoran, 562 U.S. — , 131 Alleged errors in the application of state law are not Souch v. Schiavo, 289 F.3d A petition for habeas corpus should not be dismissed without 7 1 leave to amend unless it appears that no tenable claim for relief 2 can be pleaded were such leave granted. 3 F.2d 13, 14 (9th Cir. 1971). Jarvis v. Nelson, 440 4 Here, it is clear from the allegations in the petition that 5 Petitioner attended the parole suitability hearing, reviewed his 6 records before the hearing, made statements to the BPH, was 7 represented by counsel, and received a statement of reasons for 8 the decision of the BPH. 9 establish that he had an opportunity to be heard and received a Thus, Petitioner’s own allegations 10 statement of reasons for the decisions in question. 11 does not appear that Petitioner could state a tenable due process 12 claim. 13 It therefore Accordingly, it will be recommended that insofar as 14 Petitioner alleges that the BPH’s proceedings and decision 15 violated his right to due process of law, the petition be 16 dismissed without leave to amend. 17 18 19 IV. Alleged Conflict with Petitioner’s Guilty Plea A. Legal Standards 1. Habeas Standard of Decision 20 Title 28 U.S.C. § 2254 provides: 21 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim– 22 23 24 25 26 27 28 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court 8 1 proceeding. 2 (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption or correctness by clear and convincing evidence. 3 4 5 6 The Petitioner bears the burden of establishing that the decision 7 of the state court was contrary to, or involved an unreasonable 8 application of, the precedents of the United States Supreme 9 Court. 10 Lambert v. Blodgett, 393 F.3d 943, 970 n.16 (9th Cir. 2004); Baylor v.Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). 11 A state court’s decision contravenes clearly established 12 Supreme Court precedent if it reaches a legal conclusion contrary 13 to that of the Supreme Court or arrives at a different conclusion 14 on an indistinguishable set of facts. 15 U.S. 362, 405-06 (2000). 16 Supreme Court precedent or have been aware of it, "so long as 17 neither the reasoning nor the result of the state-court decision 18 contradicts [it]." 19 state court unreasonably applies clearly established federal law 20 if it either 1) correctly identifies the governing rule but then 21 applies it to a new set of facts in a way that is objectively 22 unreasonable, or 2) extends or fails to extend a clearly 23 established legal principle to a new context in a way that is 24 objectively unreasonable. 25 1142 (9th Cir.2002); see, Williams, 529 U.S. at 408-09. 26 application of law is unreasonable if it is objectively 27 unreasonable; an incorrect or inaccurate application of federal 28 law is not necessarily unreasonable. Williams v. Taylor, 529 The state court need not have cited Early v. Packer, 537 U.S. 3, 8 (2002). The Hernandez v. Small, 282 F.3d 1132, 9 An Williams, 529 U.S. at 410. 1 2. Due Process Principles concerning Plea Agreements 2 A criminal defendant has a due process right to enforce the 3 terms of his plea agreement. Promises from the prosecution in a 4 plea agreement must be fulfilled if they are significant 5 inducements to enter into a plea. Santobello v. New York, 404 6 U.S. 257, 262 (1971); Buckley v. Terhune, 441 F.3d 688, 694 (9th 7 Cir. 2006). Plea agreements are contractual in nature and are 8 measured by contract law standards. United States v. De la 9 Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993). In construing a plea 10 agreement, a court must determine what the defendant reasonably 11 believed to be the terms of the plea agreement at the time of the 12 plea. United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir. 13 2002). 14 The construction of a state court plea agreement is a matter 15 of state law, and federal courts will defer to a state court’s 16 reasonable construction of a plea agreement. Ricketts v. 17 Adamson, 483 U.S. 1, 6 n.3 (1987); Buckley v. Terhune, 441 F.3d 18 688, 695 (9th Cir. 2006). In California, a negotiated plea 19 agreement is a form of contract and is interpreted according to 20 general contract principles and according to the same rules as 21 other contracts. Buckley v. Terhune, 441 F.3d 688, 695 (citing 22 People v. Shelton, 37 Cal.4th 759, 767 (2006) and People v. 23 Toscano, 124 Cal.App.4th 340, 344 (2004)). 24 In California, the plain meaning of an agreement’s language 25 must first be considered. If the language is ambiguous, it must 26 be interpreted by ascertaining the objectively reasonable 27 expectations of the promisee at the time the contract was made. 28 10 1 Buckley v. Terhune, 441 F.3d 688, 695 (9th Cir. 2006). 2 ambiguity remains after a court considers the objective 3 manifestations of the parties’ intent, then the language of the 4 contract should be interpreted most strongly against the party 5 who caused the uncertainty to exist, or in favor of the 6 defendant. 7 8 If Id. at 695-96. B. Background Petitioner complains that although he pled guilty to second 9 degree murder and received a sentence of fifteen (15) years to 10 life, he has been in prison twelve years past the fifteen-year 11 minimum and thus has been punished as severely as a first degree 12 murderer serving twenty-five (25) years to life. Petitioner 13 argues that the finding that he was not suitable for parole thus 14 violates his plea agreement. 15 (Pet. 4, 13-16.) Petitioner characterizes the denial of parole as an 16 unauthorized imposition of the punishment for first degree 17 murder, a term of twenty-five years to life, a result which 18 Petitioner alleges was foreclosed by Petitioner’s plea agreement 19 to second degree murder, which carried a sentence of fifteen (15) 20 years to life. 21 of his agreement included no explanation of what a term of 22 fifteen years to life meant. 23 the sentence or parole consequences in open court. 24 Citing Cal. Code Reg, tit. 15, § 2403(b) and (c), Petitioner 25 alleges that after serving twenty-seven (27) years in prison, he 26 is within the “regulatory matrix of punishment specified for 27 second degree murder.” 28 argues that denial of parole nullified Petitioner’s nine years of (Pet. 13, 15.) Petitioner alleges that the terms Further, there was no discussion of (Pet. 13, 15.) 11 (Pet. 13.) Further, Petitioner 1 2 good-time credits. (Pet. 15.) Petitioner also refers to his sentence as one involving a 3 “15 year minimum.” 4 allege that he reasonably understood he was sentenced to a “term 5 of 15 years” subject to reduction by good time credits and parole 6 commencing thereafter, and that it was presumed that Petitioner 7 would be suitable for parole. 8 can be enforced only by limiting Petitioner’s “15 year term of 9 custody to time served.” 10 (Pet. 15:24) However, Petitioner appears to (Pet. 13-16.) Thus, his bargain (Pet. 16.) With respect to Petitioner’s claim concerning his plea 11 bargain, Petitioner’s petition for writ of habeas corpus filed in 12 the Kings County Superior Court was denied with the following 13 explanation: 14 15 16 In addition, Petitioner has failed to adequately demonstrate that, by denying him parole on his indeterminate sentence, the Board has somehow violated the express terms of the plea agreement reached in Kings County Superior Court Case No. 6429. (People v. Duvall, 9 Cal.4th 464, 474 (1995). 17 (Ans., Ex. 2 [doc. 12-4], 3.) Petitioner raised the same claims 18 in petitions for writs of habeas corpus filed in the California 19 Court of Appeal and the California Supreme Court; both petitions 20 were summarily denied without explanation or citation. (Ans., 21 Exs. 3-6.) 22 The Court notes that neither party provided to the Court the 23 transcript of the hearing held on the change of plea. Although 24 Petitioner alleges generally that the consequences of his plea 25 were not explained, the Court notes that the probation officer’s 26 report prepared in anticipation of Petitioner’s sentencing, which 27 was submitted to the California Supreme Court, contains a 28 12 1 synopsis of the proceedings. 2 1981, Petitioner withdrew his not guilty pleas to murder (count 3 1) and entered a plea of guilty to murder in the second degree 4 pursuant to a plea bargain by which count 2, infliction of 5 unjustifiable physical pain or mental suffering upon a child 6 under circumstances likely to produce great bodily injury or 7 death in violation of Cal. Pen. Code § 273a(1), was dismissed. 8 (Ans., doc. 12-9, 41-42.) 9 was informed of the possible punishments that could be imposed It reflects that on October 30, The report indicates that Petitioner 10 before entering his guilty plea. 11 transcript reflects that the plea bargain included dismissal of 12 the murder charge against Petitioner’s wife, who was also the 13 murdered child’s mother. 14 (Id. at 42.) The sentencing (Pet. 26.) Similarly, the transcript of the sentencing hearing reflects 15 the following statement of the sentencing judge concerning 16 Petitioner’s entry of his plea: 17 18 19 20 21 22 23 On said date, the case went to trial and on October 30th, 1981, after the fifth day, the defendants informed the Court that they decided to enter pleas of guilty. Mr. Thompson desired to enter a plea of guilty to Count 1 in a plea bargain in which the second count of the Information would be dismissed and Mrs. Thompson would enter a plea to Count II, Count I would be dismissed. The Court reexamined the defendants, and determined that they were doing this understandingly, knowingly, and voluntarily, and permitted their withdrawal of the formerly entered plea, and pleas thereupon were entered by the defendants as stated above. Both defendants applied for probation, which is the time set for hearing at this session. 24 (Pet. 30.) The sentencing court then denied Petitioner’s 25 application for probation and sentenced Petitioner to state 26 prison “for the term of 15 years to life.” (Pet. 31.) 27 There is no indication in either the probation report or the 28 13 1 transcript of the sentencing proceedings that there was any 2 specific plea agreement concerning sentence, parole, or release 3 on parole. 4 sentencing options set forth in the probation report were either 5 a state prison sentence of fifteen years to life (the prescribed 6 prison term for second degree murder), or a grant of probation, 7 which the probation officer considered inappropriate due to the 8 injuries inflicted on the three-month-old victim, and 9 Petitioner’s pre-offense threat to his wife to kill the child if (Ans., doc. 12-9, 33-48; Pet. Ex. B.) The only 10 she failed to keep the child from crying at night. 11 43-46.) 12 day diagnostic study by the Department of Corrections; the 13 prosecutor expressed agreement with the probation officer’s 14 recommendation that Petitioner be sentenced to state prison. 15 (Pet. 28.) 16 17 (Doc. 12-9, At sentencing, Petitioner’s counsel requested a ninety- C. Analysis Here, Petitioner fails to demonstrate that he is entitled to 18 habeas relief. 19 sentenced to “15 years to life with parole.” 20 Petitioner does not show that his plea agreement included any 21 term or condition concerning parole, the parole period, 22 Petitioner’s eligibility for parole, or release on parole. 23 Petitioner states in his own petition that he was (Pet. 1.) Petitioner’s allegations are not supported by a statement of 24 specific facts and thus do not warrant habeas relief. 25 v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). 26 show that the state authorities’ finding that Petitioner was not 27 suitable for parole was inconsistent with, or violated, 28 Petitioner’s plea agreement. 14 See, James Petitioner fails to 1 Petitioner asserts that his continued confinement is 2 inconsistent with his expectation of any benefit from his plea 3 bargain. 4 certainty of a more severe sentence for first degree murder, and 5 the murder charge against his wife was dismissed. 6 However, by his bargain, Petitioner avoided the Petitioner argues that the state courts improperly construed 7 his plea agreement. 8 plea agreement was ambiguous in any respect. 9 fifteen years to life clearly denotes confinement to endure for a 10 minimum of fifteen years and potentially as long as the sentenced 11 person lives. 12 time he entered his plea, objective manifestations of intent 13 reflected that Petitioner reasonably understood that he was 14 entitled to release on parole at any particular point in his 15 indeterminate sentence. 16 that the indeterminate sentence imposed was anything other than a 17 sentence for the maximum term of life, with a possibility of 18 release on parole after fifteen years if Petitioner were found 19 suitable for such release. 20 However, Petitioner has not shown that his A sentence of There is no basis for a conclusion that at the The facts do not warrant a conclusion The state court's rejection of Petitioner's claim was not 21 contrary to, or an unreasonable application of, clearly 22 established Supreme Court precedent, and was not based on an 23 unreasonable determination of the facts. 24 2254(d). 25 apply clearly established precedent of the United States Supreme 26 Court. 27 determined that Petitioner had shown nothing more than that he 28 bargained for a term of fifteen years to life with only the See, 28 U.S.C. § Petitioner has not shown that the state court failed to Further, the state court appears to have reasonably 15 1 “possibility” of release on parole. 2 483 U.S. 1, 6 n.3 (1987). See, Ricketts v. Adamson, 3 To the extent Petitioner relies on state regulations or 4 statutes that permit discretionary release after a shorter period 5 of time than Petitioner has been confined, Petitioner’s claim is 6 based on the application of state law and thus does not entitle 7 him to relief. 8 In summary, the court concludes that with respect to his due 9 process claim relating to his plea bargain, Petitioner has failed 10 to show that the state court decisions 1) were contrary to, or 11 involved an unreasonable application of, clearly established 12 Federal law, as determined by the Supreme Court of the United 13 States; or 2) resulted in a decision that was based on an 14 unreasonable determination of the facts in light of the evidence 15 presented in the State court proceeding. 16 17 Accordingly, it will be recommended that Petitioner’s claim relating to his plea bargain be denied. 18 V. 19 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 20 appealability, an appeal may not be taken to the Court of Appeals 21 from the final order in a habeas proceeding in which the 22 detention complained of arises out of process issued by a state 23 court. 24 U.S. 322, 336 (2003). 25 only if the applicant makes a substantial showing of the denial 26 of a constitutional right. 27 petitioner must show that reasonable jurists could debate whether 28 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). 16 Under this standard, a 1 that the issues presented were adequate to deserve encouragement 2 to proceed further. 3 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 4 certificate should issue if the Petitioner shows that jurists of 5 reason would find it debatable whether the petition states a 6 valid claim of the denial of a constitutional right and that 7 jurists of reason would find it debatable whether the district 8 court was correct in any procedural ruling. 9 529 U.S. 473, 483-84 (2000). 10 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 11 the claims in the habeas petition, generally assesses their 12 merits, and determines whether the resolution was debatable among 13 jurists of reason or wrong. 14 applicant to show more than an absence of frivolity or the 15 existence of mere good faith; however, it is not necessary for an 16 applicant to show that the appeal will succeed. 17 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 18 A district court must issue or deny a certificate of 19 appealability when it enters a final order adverse to the 20 applicant. 21 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 22 debate whether the petition should have been resolved in a 23 different manner. 24 of the denial of a constitutional right. 25 recommended that the Court decline to issue a certificate of 26 appealability. 27 /// 28 /// Petitioner has not made a substantial showing 17 Accordingly, it will be 1 VI. 2 Accordingly, it is RECOMMENDED that: 3 1) Recommendation The petition for writ of habeas corpus be DISMISSED 4 without leave to amend insofar as Petitioner claims that the 5 finding that he was unsuitable for parole was unsupported by some 6 evidence and constituted a violation of due process of law; and 7 2) The petition for writ of habeas corpus be DENIED insofar 8 as Petitioner claims the finding of unsuitability for parole was 9 inconsistent with, or violated, his plea bargain concerning his 10 commitment offense; and 11 12 3) The Court DECLINE to issue a certificate of appealability; and 13 4) 14 These findings and recommendations are submitted to the 15 United States District Court Judge assigned to the case, pursuant 16 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 17 the Local Rules of Practice for the United States District Court, 18 Eastern District of California. 19 being served with a copy, any party may file written objections 20 with the Court and serve a copy on all parties. 21 should be captioned “Objections to Magistrate Judge’s Findings 22 and Recommendations.” 23 and filed within fourteen (14) days (plus three (3) days if 24 served by mail) after service of the objections. 25 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 26 636 (b)(1)(C). 27 objections within the specified time may waive the right to 28 /// The Clerk be DIRECTED to enter judgment for Respondent. Within thirty (30) days after Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file 18 1 appeal the District Court’s order. 2 1153 (9th Cir. 1991). Martinez v. Ylst, 951 F.2d 3 4 IT IS SO ORDERED. 5 Dated: ie14hj March 18, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19
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