-SMS (HC) Ronald Everett v. James A. Yates, No. 1:2010cv00741 - Document 26 (E.D. Cal. 2011)
Court Description: FINDINGS And RECOMMENDATIONS Re: Respondent's Motion To Dismiss The Petition (Doc. 22 ), Findings And Recommendations To Dismiss The Petition Without Leave To Amend (Docs. 22 , 1 ), Dismiss Petitioner's Request For An Evidentiary Hearing, Decline To Issue A Certificate Of Appealability, And Direct The Clerk To Close The Action, signed by Magistrate Judge Sandra M. Snyder on 6/24/2011. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 8/1/2011. (Fahrney, E)
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-SMS (HC) Ronald Everett v. James A. Yates Doc. 26 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 RONALD EVERETT, 11 Petitioner, 12 v. 13 JAMES A. YATES, 14 Respondent. 15 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—00741-AWI-SMS-HC FINDINGS AND RECOMMENDATIONS RE: RESPONDENT’S MOTION TO DISMISS THE PETITION (DOC. 22) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND (DOCS. 22, 1), DISMISS PETITIONER’S REQUEST FOR AN EVIDENTIARY HEARING, DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE ACTION 17 18 Petitioner is a state prisoner proceeding pro se with a 19 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 The matter has been referred to the Magistrate Judge pursuant to 21 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. 22 before the Court is Respondent’s motion to dismiss the petition, 23 which was filed on March 18, 2011. 24 on June 3, 2011. Pending Petitioner filed opposition No reply was filed. 25 I. 26 Because the petition was filed after April 24, 1996, the Proceeding by a Motion to Dismiss 27 effective date of the Antiterrorism and Effective Death Penalty 28 Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. 1 Dockets.Justia.com 1 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 2 1484, 1499 (9th Cir. 1997). 3 A district court may entertain a petition for a writ of 4 habeas corpus by a person in custody pursuant to the judgment of 5 a state court only on the ground that the custody is in violation 6 of the Constitution, laws, or treaties of the United States. 7 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 8 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 9 16 (2010) (per curiam). 10 28 Rule 4 of the Rules Governing Section 2254 Cases in the 11 United States District Courts (Habeas Rules) allows a district 12 court to dismiss a petition if it “plainly appears from the face 13 of the petition and any exhibits annexed to it that the 14 petitioner is not entitled to relief in the district court....” 15 The Ninth Circuit has allowed respondents to file motions to 16 dismiss pursuant to Rule 4 instead of answers if the motion to 17 dismiss attacks the pleadings by claiming that the petitioner has 18 failed to exhaust state remedies or has violated the state’s 19 procedural rules. 20 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 21 a petition for failure to exhaust state remedies); White v. 22 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 23 review a motion to dismiss for state procedural default); Hillery 24 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). 25 Thus, a respondent may file a motion to dismiss after the Court 26 orders the respondent to respond, and the Court should use Rule 4 27 standards to review a motion to dismiss filed before a formal 28 answer. See, e.g., O’Bremski v. Maass, 915 F.2d 418, See, Hillery, 533 F. Supp. at 1194 & n.12. 2 1 In this case, upon being directed to respond to the petition 2 by way of answer or motion, Respondent filed the motion to 3 dismiss. 4 found in the pleadings and in copies of the official records of 5 state parole and judicial proceedings which have been provided by 6 the parties, and as to which there is no factual dispute. 7 Because Respondent's motion to dismiss is similar in procedural 8 standing to motions to dismiss on procedural grounds, the Court 9 will review Respondent’s motion to dismiss pursuant to its 10 The material facts pertinent to the motion are to be authority under Rule 4. 11 II. 12 Petitioner alleges that he was a resident of the Pleasant Background 13 Valley State Prison (PVSP) located in Coalinga, California, 14 within the Eastern District of California, serving a sentence of 15 seven (7) years to life imposed in the Los Angeles Superior Court 16 on January 17, 1984, upon Petitioner’s conviction of kidnaping 17 for the purpose of robbery, robbery with a firearm, credit card 18 fraud, and receiving stolen property in violation of Cal. Pen. 19 Code §§ 209(b), 211, 484(f)(2), 496, and 10222.5. 20 Petitioner challenges the decision of California’s Board of 21 Parole Hearings (BPH) made after a hearing held on May 7, 2008, 22 finding Petitioner unsuitable for parole because if released, he 23 would pose an unreasonable risk of danger to society and a threat 24 to public safety. 25 decisions of the state courts upholding the BPH’s denial of 26 parole. (Id. at 17.) (Pet. 1-2.) Petitioner also challenges the 27 Petitioner raises the following claims in the petition: 28 the BPH violated Petitioner’s right to due process of law by 3 1) 1 relying on erroneous information concerning the facts of the 2 commitment offense; 2) the BPH denied Petitioner’s right to due 3 process of law by finding that the commitment offense was callous 4 and cruel in the absence of supportive documentary evidence; 3) 5 Petitioner’s right to due process of law was violated when the 6 BPH relied on disciplinary infractions that were from records of 7 a prior prison term and were unrelated to the commitment offense, 8 and failed to conduct a fact-finding process concerning the facts 9 of the disciplinary offenses; 4) Petitioner’s right to due 10 process of law was violated by the BPH’s consideration of 11 offenses as to which sentences were stayed as part of his plea 12 agreement in connection with the commitment offenses; 5) 13 Petitioner’s right to equal protection of the laws was violated 14 by the BPH’s consideration of nonviolent offenses that were 15 stayed as part of his plea agreement in connection with the 16 commitment offenses; 6) Petitioner’s right to due process of law 17 was violated because there was no evidence in the record 18 supporting the BPH’s finding that Petitioner presented a threat 19 to public safety; and 7) the BPH failed to comply with Cal. Pen. 20 Code §§ 3041 and 3041.5, state rules, and state regulations that 21 seek to impose uniform terms for offenses of similar gravity 22 because Petitioner’s sentence has become longer than the maximum 23 he would have received if he had lost at trial, and longer than 24 sentences imposed on other inmates whose crimes were also 25 considered callous and cruel. 26 (Pet. 15, 17, 20-21.) Petitioner further requested an evidentiary hearing in the 27 portion of the petition that appears to be a copy of a previously 28 filed petition for writ of habeas corpus in the California 4 1 Supreme Court. 2 to this Court, or was only directed to the state court. 3 14.) 4 It is not clear whether that request was directed (Pet. The transcript of the BPH’s decision of May 7, 2008, which 5 was submitted with the petition, reflects that Petitioner was 6 present when the reasons for the decision were stated. 7 36.) 8 present earlier during the hearing because it reflects that “all 9 parties [had] returned to the room” for the rendering of the (Pet. 23- It also supports a conclusion that Petitioner had been 10 decision. 11 decision, the BPH referred to Petitioner’s testimony, his having 12 been candid about his involvement with narcotics with the 13 specific panel of the BPH that presided over the hearing, his 14 response to a question posed by the BPH concerning his marketable 15 skills, and his statements made that day, including a closing 16 statement made to the BPH at the hearing. 17 34.) 18 hearing and took the opportunity to testify and address the BPH. 19 Petitioner also had an opportunity to seek clarification of the 20 record to include a “GED” in his file. 21 (Id. at 23.) Further, in its explanation of the (Id. at 25, 31, 33- It thus may be inferred that Petitioner attended the (Id. at 23-24.) The BPH found Petitioner unsuitable based on the commitment 22 offenses, the prosecutor’s opposition to release, a psychological 23 evaluation reflecting an anti-social personality disorder, and 24 Petitioner’s history of escalating criminal conduct, previous 25 failures on probation and parole, limited programming and self- 26 help in prison, extensive misconduct in prison, minimization of 27 his criminal conduct, and lack of preparation for release. 28 23-35.) 5 (Pet. 1 III. 2 3 Failure to State a Cognizable Due Process Claim A. Legal Standards The Supreme Court has characterized as reasonable the 4 decision of the Court of Appeals for the Ninth Circuit that 5 California law creates a liberty interest in parole protected by 6 the Fourteenth Amendment Due Process Clause, which in turn 7 requires fair procedures with respect to the liberty interest. 8 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 9 However, the procedures required for a parole determination 10 are the minimal requirements set forth in Greenholtz v. Inmates 11 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 12 Swarthout v. Cooke, 131 S.Ct. 859, 862. 13 rejected inmates’ claims that they were denied a liberty interest 14 because there was an absence of “some evidence” to support the 15 decision to deny parole. 16 17 18 19 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 20 1 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. 6 1 2 3 4 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.) 5 Swarthout, 131 S.Ct. 859, 862. The Court concluded that the 6 petitioners had received the process that was due as follows: 7 8 9 10 11 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.... That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 12 Swarthout, 131 S.Ct. at 862. 13 noted that California’s “some evidence” rule is not a substantive 14 federal requirement, and correct application of California’s 15 “some evidence” standard is not required by the Federal Due 16 Process Clause. 17 18 B. The Court in Swarthout expressly Id. at 862-63. Analysis Here, in his first, second, third and sixth claims, 19 Petitioner essentially contests the BPH’s application of the 20 “some evidence” rule. 21 Court to engage in the very type of analysis foreclosed by 22 Swarthout. 23 possibility of constitutional error or that otherwise would 24 entitle Petitioner to habeas relief because California’s “some 25 evidence” requirement is not a substantive federal requirement. 26 Review of the record for “some evidence” to support the denial of 27 parole is not within the scope of this Court’s habeas review 28 under 28 U.S.C. § 2254. In these claims, Petitioner asks this Petitioner does not state facts that point to a real 7 1 A petition for habeas corpus should not be dismissed without 2 leave to amend unless it appears that no tenable claim for relief 3 can be pleaded were such leave granted. 4 F.2d 13, 14 (9th Cir. 1971). Jarvis v. Nelson, 440 5 Here, Petitioner did not allege that he was denied an 6 opportunity to be heard or a statement of reasons for the BPH’s 7 decision. 8 petition that Petitioner attended the parole suitability hearing, 9 made statements to the BPH, and received a statement of reasons However, it is clear from the allegations in the 10 for the decisions of the BPH. 11 and the documentation attached to the petition establish that he 12 had an opportunity to be heard and a statement of reasons for the 13 decision in question. 14 Petitioner could state a tenable due process claim concerning the 15 conduct of the hearing and evidence underlying the findings of 16 the BPH. 17 Thus, Petitioner’s own allegations It therefore does not appear that Accordingly, it will be recommended that with respect to 18 Petitioner’s first, second, third, and sixth claims of due 19 process violations concerning the evidence at the parole hearing, 20 the petition be dismissed without leave to amend. 21 IV. 22 In the seventh claim, Petitioner challenges the BPH’s State Law Claims 23 failure to comply with state law that Petitioner alleges limited 24 the appropriate sentence that he should have received. 25 extent that Petitioner’s claim or claims rest on state law, they 26 are not cognizable on federal habeas corpus. 27 relief is not available to retry a state issue that does not rise 28 to the level of a federal constitutional violation. 8 To the Federal habeas Wilson v. 1 Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. 2 McGuire, 502 U.S. 62, 67-68 (1991). 3 application of state law are not cognizable in federal habeas 4 corpus. 5 Alleged errors in the Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). Accordingly, it will be recommended that Petitioner’s sixth 6 claim concerning alleged noncompliance with state law be 7 dismissed without leave to amend. 8 V. Due Process Violation Based on Consideration of Offenses as to which Sentence Was Stayed 9 Petitioner alleges that his right to due process of law was 10 violated by the BPH’s consideration of offenses as to which 11 sentence was stayed. Although in the motion to dismiss 12 Respondent seeks dismissal of the entire petition, Respondent has 13 not addressed this claim. In his opposition, Petitioner appears 14 to contend that he has already completed the sentence on the 15 counts other than the kidnaping, which would include the 16 robberies, and thus the BPH should not have considered the 17 multiple robberies in determining Petitioner’s suitability for 18 parole; further, being retained in prison on the basis of those 19 crimes is a violation of the Double Jeopardy Clause. (Opp. 9.) 20 Petitioner attached to the petition a transcript of 21 proceedings that occurred in the trial court on December 1, 1983, 22 in which Petitioner changed his previous pleas of not guilty to 23 pleas of guilty to six counts of robbery in violation of Cal. 24 Pen. Code § 211 (counts I, II, III, V, VII, and IX), one count of 25 credit card fraud in violation of Cal. Pen. Code § 484(f)(3) 26 (count IV), and one count of kidnaping for the purpose of robbery 27 in violation of Cal. Pen. Code § 209(b) (count VI). 28 9 (Pet. 44- 1 49.) 2 1984, reflects that Petitioner was sentenced on the kidnaping 3 (count VI) to a sentence of life in state prison, and on the 4 robbery and fraud charges (counts I, II, III, IV, V, VII, and IX) 5 to an aggregate term of seven (7) years in state prison to run 6 concurrently with the life sentence. 7 documentation attached to the petition does not indicate that 8 there was a plea agreement concerning staying counts or 9 sentences, or that sentence on any of the counts was ordered A transcript of a sentencing proceeding held on January 17, (Id. at 52-53.) The 10 stayed. 11 Petitioner has completed the aggregated, seven-year term that was 12 imposed for the robbery counts. 13 By virtue of the passage of time, it would appear that Insofar as Petitioner may be contending that the BPH’s 14 consideration of the robbery counts in determining parole 15 suitability was improper, Petitioner is challenging the BPH’s 16 application of the “some evidence” rule. 17 foreclosed by Swarthout. 18 Thus, such a claim is To the extent that Petitioner is contending that the BPH’s 19 consideration was foreclosed by a term of a plea agreement, 20 Petitioner has not alleged facts entitling him to relief. 21 A criminal defendant has a due process right to enforce the 22 terms of his plea agreement. 23 plea agreement must be fulfilled if they are significant 24 inducements to enter into a plea. 25 U.S. 257, 262 (1971); Buckley v. Terhune, 441 F.3d 688, 694 (9th 26 Cir. 2006). 27 measured by contract law standards. 28 Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993). Promises from the prosecution in a Santobello v. New York, 404 Plea agreements are contractual in nature and are 10 United States v. De la In construing a plea 1 agreement, a court must determine what the defendant reasonably 2 believed to be the terms of the plea agreement at the time of the 3 plea. 4 2002). 5 United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir. The construction of a state court plea agreement is a matter 6 of state law, and federal courts will defer to a state court’s 7 reasonable construction of a plea agreement. 8 Adamson, 483 U.S. 1, 6 n.3 (1987); 9 688, 695 (9th Cir. 2006). Ricketts v. Buckley v. Terhune, 441 F.3d In California, a negotiated plea 10 agreement is a form of contract and is interpreted according to 11 general contract principles and according to the same rules as 12 other contracts. 13 People v. Shelton, 37 Cal.4th 759, 767 (2006) and People v. 14 Toscano, 124 Cal.App.4th 340, 344 (2004)). 15 Buckley v. Terhune, 441 F.3d 688, 695 (citing Further, in California, the plain meaning of an agreement’s 16 language must first be considered. 17 it must be interpreted by ascertaining the objectively reasonable 18 expectations of the promisee at the time the contract was made. 19 Buckley v. Terhune, 441 F.3d 688, 695 (9th Cir. 2006). 20 ambiguity remains after a court considers the objective 21 manifestations of the parties’ intent, then the language of the 22 contract should be interpreted most strongly against the party 23 who caused the uncertainty to exist, or in favor of the 24 defendant. If the language is ambiguous, If Id. at 695-96. 25 Here, the transcript of the change of plea proceeding 26 submitted by Petitioner shows that the plea did not include any 27 conditions concerning parole, minimum sentence, or stay of any 28 sentence that would prevent the BPH from determining suitability 11 1 for parole on the basis of all of Petitioner’s criminal history. 2 Petitioner’s general allegations are undercut by the clear record 3 submitted in support of the petition. 4 24 F.3d 20, 26 (9th Cir.1994) (“Conclusory allegations which are 5 not supported by a statement of specific facts do not warrant 6 habeas relief.”). 7 See, e.g., James v. Borg, Accordingly, Petitioner has not stated facts that point to a 8 real possibility of constitutional error. 9 Section 2254 Cases in the United States District Courts, Rule 4, 10 Advisory Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915 11 F.2d 418, 420 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 12 U.S. 63, 75 n.7 (1977)). 13 See, Rules Governing Further, because the pertinent transcript of the plea 14 proceedings is before the Court, it does not appear that if leave 15 to amend were granted, Petitioner could state a tenable due 16 process claim based on a violation of his plea agreement by the 17 Board’s consideration of all offenses on which Petitioner was 18 sentenced. 19 To the extent that Petitioner claims in the opposition that 20 the BPH’s determination was a violation of his protection against 21 double jeopardy, the Court notes that the claim is not before the 22 Court because the petition is devoid of any allegations 23 concerning such a claim. 24 Further, it appears that amendment of the petition to 25 include such a claim would be futile. 26 Double Jeopardy Clause of the Fifth Amendment protects against 27 not only a second prosecution for the same offense after 28 acquittal or conviction, but also multiple punishments for the 12 It is established that the 1 same offense. 2 U.S. 389, 395-96 (1995). 3 that a “sentence be given a degree of finality that prevents its 4 later increase.” 5 (1980). 6 Id. 7 revocation of probation or parole with imposition of 8 imprisonment. 9 neither punishment nor imposition or increase of a sentence for U.S. Const. amend V; Witte v. United States, 515 However, the clause does not require United States v. DiFrancesco, 449 U.S. 117, 137 An acquittal and a sentence are critically different. Thus, there is no double jeopardy protection against Id. at 137. Likewise, the denial of parole is 10 double jeopardy purposes; rather, it is an administrative 11 decision to withhold early release. 12 599, 602 n.7 (10th Cir. 1992); Alessi v. Quinlan, 711 F.2d 497, 13 501 (2d Cir. 1983); Roach v. Board of Pardons and Paroles, State 14 of Arkansas, 503 F.2d 1367, 1368 (8th Cir. 1974); United States 15 ex rel. Jacobs v. Barc, 141 F.2d 480, 483 (6th Cir. 1944). 16 Finally, it is established that the Double Jeopardy Clause does 17 not provide the defendant with the right to know at any specific 18 point in time what the precise limit of his punishment will 19 eventually turn out to be. 20 U.S. at 137. 21 Mahn v. Gunter, 978 F.2d United States v. DiFrancesco, 499 Pursuant to California’s sentencing scheme, when a prisoner 22 receives an indeterminate sentence, such as fifteen years to 23 life, the indeterminate sentence is in legal effect a sentence 24 for the maximum term, subject only to the power of the parole 25 authority to set a lesser term; parole is an entirely 26 discretionary matter. 27 561-62 (9th Cir. 2010), overruled on other grounds in . 28 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859 (2011). Hayward v. Marshall, 603 F.3d 546, 558, 13 Probation 1 and parole are parts of the original sentence that must be 2 anticipated by a prisoner. 3 104-05 (9th Cir. 1995). 4 United States v. Brown, 59 F.3d 102, In summary, the Court concludes that insofar as Petitioner 5 contends that the BPH’s determination violated Petitioner’s right 6 to due process of law based on inconsistency with Petitioner’s 7 plea agreement, the petition should be dismissed without leave to 8 amend. 9 10 VI. Equal Protection Claim Insofar as Petitioner claims that his right to equal 11 protection of the laws was violated by the BPH’s consideration of 12 offenses that were stayed as part of his plea agreement in 13 connection with the commitment offenses, the preceding analysis 14 shows that Petitioner has not alleged, and could not allege, 15 specific facts showing such a plea agreement. 16 It may be that in alleging that he has served longer time 17 than others whose crimes were considered callous and cruel and 18 even included murder (Pet. 21:7-17), Petitioner is attempting to 19 state a claim that he suffered a denial of equal protection. 20 Prisoners are protected under the Equal Protection Clause of 21 the Fourteenth Amendment from invidious discrimination based on 22 race, religion, or membership in a protected class subject to 23 restrictions and limitations necessitated by legitimate 24 penological interests. 25 (1974); Bell v. Wolfish, 441 U.S. 520, 545-46 (1979). 26 Protection Clause essentially directs that all persons similarly 27 situated should be treated alike. 28 Cleburne Living Center, 473 U.S. 432, 439 (1985). Wolff v. McDonnell, 418 U.S. 539, 556 14 The Equal City of Cleburne, Texas v. Violations of 1 equal protection are shown when a respondent intentionally 2 discriminated against a petitioner based on membership in a 3 protected class, Lee v. City of Los Angeles, 250 F.3d 668, 686 4 (9th Cir. 2001), or when a respondent intentionally treated a 5 member of an identifiable class differently from other similarly 6 situated individuals without a rational basis, or a rational 7 relationship to a legitimate state purpose, for the difference in 8 treatment, Village of Willowbrook v. Olech, 528 U.S. 562, 564 9 (2000). 10 Here, Petitioner has not alleged facts showing that he is a 11 member of a protected class or that membership in a protected 12 class was the basis of any alleged discrimination. 13 consideration is discretionary and does not provide the basis of 14 a fundamental right. 15 (9th Cir. 1989). 16 Parole Mayner v. Callahan, 873 F.2d 1300, 1301-02 Further, Petitioner has not shown that with respect to all 17 pertinent factors of parole suitability, he is similarly situated 18 with others who may have served less time after conviction of 19 murder. 20 Finally, under California law, a prisoner’s suitability for 21 parole is dependent upon the effect of the prisoner’s release on 22 the public safety. 23 on parole unless the public safety requires a more lengthy period 24 of incarceration). 25 intended and applied to promote the legitimate state interest of 26 public safety. 27 Cir. 1998) (health and safety are legitimate state interests). 28 Petitioner has not shown or even suggested how the decision in Cal. Pen. Code § 3041(b) (mandating release California’s parole system is thus both See, Webber v. Crabtree, 158 F.3d 460, 461 (9th 15 1 the present case could have constituted a violation of equal 2 protection of the laws. 3 4 5 The Court concludes that Petitioner has not alleged specific facts showing an equal protection violation. With respect to the propriety of amending the petition to 6 state such a claim, the Court’s statement in Greenholtz 7 concerning the difference between discretionary decisions 8 concerning parole release and those resulting in revocation of 9 parole is instructive: 10 11 12 13 14 15 A second important difference between discretionary parole release from confinement and termination of parole lies in the nature of the decision that must be made in each case. As we recognized in Morrissey, the parole-revocation determination actually requires two decisions: whether the parolee in fact acted in violation of one or more conditions of parole and whether the parolee should be recommitted either for his or society's benefit. Id., at 479-480, 92 S.Ct. at 2599. “The first step in a revocation decision thus involves a wholly retrospective factual question.” Id., at 479, 92 S.Ct. at 2599. 16 17 18 19 20 21 22 23 24 25 26 The parole-release decision, however, is more subtle and depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release. Unlike the revocation decision, there is no set of facts which, if shown, mandate a decision favorable to the individual. The parole determination, like a prisoner-transfer decision, may be made “for a variety of reasons and often involve[s] no more than informed predictions as to what would best serve [correctional purposes] or the safety and welfare of the inmate.” Meachum v. Fano, 427 U.S., at 225, 96 S.Ct., at 2538. The decision turns on a “discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done.” Kadish, The Advocate and the Expert-Counsel in the Peno-Correctional Process, 45 Minn.L.Rev. 803, 813 (1961). 27 Greenholtz v. Inmates of Nebrasks Penal and Correctional Complex, 28 16 1 442 U.S. 1, 9-10 (1979). 2 are discretionary and are not subject to evaluation based on any 3 particular combination of factors of parole suitability, the fact 4 that Petitioner might posit some similarity with other inmates 5 with respect to offenses, history, or other parole suitability 6 factors would not be sufficient to entitle Petitioner to relief 7 based on the Equal Protection Clause. 8 9 10 Because parole release determinations Accordingly, it would not appear that Petitioner could state a tenable equal protection claim if he were granted leave to amend. 11 Accordingly, it will be recommended that Petitioner’s claim 12 concerning equal protection be dismissed without leave to amend. 13 VII. 14 To the extent that Petitioner challenges the decisions of Decisions of the State Courts 15 the state courts upholding the BPH’s determination (Pet. 14-16, 16 56-59), because Petitioner has not established a violation by the 17 parole authorities of his rights under the Fourteenth Amendment, 18 the decisions of the state courts upholding the authorities’ 19 decision could not have resulted in either 1) a decision that was 20 contrary to, or involved an unreasonable application of, clearly 21 established federal law, as determined by the Supreme Court of 22 the United States; or 2) a decision that was based on an 23 unreasonable determination of the facts in light of the evidence 24 presented in the state court proceedings. 25 failed to state facts concerning the state court decisions that 26 would entitle him to relief. 27 28 Thus, Petitioner has See, 28 U.S.C. § 2254(d). Therefore, it will be recommended that Petitioner’s due process claim with respect to the state court decisions should 17 1 2 likewise be dismissed without leave to amend. VIII. 3 Miscellaneous Allegations or Arguments in the Opposition to the Motion concerning the Conviction or Sentence 4 Petitioner raises numerous arguments in the opposition to 5 the motion concerning the involuntariness of his plea and alleged 6 errors concerning the proceedings that led to his conviction for 7 the commitment offenses, such as wrongful denial of a motion for 8 self-representation, ineffective assistance of appellate counsel, 9 and infirmities in his sentence. 10 11 These claims are not before the Court because they were not set forth in the petition. To the extent that Petitioner might contend that the 12 petition should be amended to include such claims, the Court 13 notes that the instant petition addresses a decision of the BPH 14 concerning parole, and not the conviction process. 15 concerning the conviction process would be more appropriately 16 heard in the district in which the conviction was sustained. 17 U.S.C. § 2241(d); Laue v. Nelson, 279 F.Supp. 265, 266 (C.D.Cal. 18 1968). 19 Los Angeles County Superior Court, claims concerning his 20 conviction are appropriately considered in the Central District 21 of California. 22 Claims 28 Because Petitioner’s convictions were sustained in the Further, the gravamen of Petitioner’s claims in the present 23 petition concerns the BPH’s denial of parole. 24 challenging the Los Angeles County conviction or sentence would 25 concern a different judgment. 26 A claim Habeas Rule 2(e) provides: 27 A petitioner who seeks relief from judgments of more than one state court must file a separate petition covering the judgment or judgments of each court. 28 Petitioner thus cannot properly challenge the judgments of two 18 1 different tribunals in a single proceeding. 2 925 F.2d 305, 308-11 (9th Cir. 1991). 3 permissible to challenge both a denial of parole by the BPH and 4 an underlying conviction in the same habeas corpus action. 5 Williams v. Sisto, No. CIV S-07-2692 WBS DAD P, 2009 WL 3300038, 6 *12 (E.D.Cal. Oct. 14, 2009). 7 Bianchi v. Blodgett, Specifically, it is not See, Accordingly, the Court concludes that Petitioner’s claims 8 concerning his conviction are not properly before the Court, and 9 thus the Court will not address them in this proceeding. 10 IX. 11 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 12 appealability, an appeal may not be taken to the Court of Appeals 13 from the final order in a habeas proceeding in which the 14 detention complained of arises out of process issued by a state 15 court. 16 U.S. 322, 336 (2003). 17 only if the applicant makes a substantial showing of the denial 18 of a constitutional right. 19 petitioner must show that reasonable jurists could debate whether 20 the petition should have been resolved in a different manner or 21 that the issues presented were adequate to deserve encouragement 22 to proceed further. 23 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 24 certificate should issue if the Petitioner shows that jurists of 25 reason would find it debatable whether the petition states a 26 valid claim of the denial of a constitutional right and that 27 jurists of reason would find it debatable whether the district 28 court was correct in any procedural ruling. 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 Miller-El v. Cockrell, 537 U.S. at 336 19 A Slack v. McDaniel, 1 529 U.S. 473, 483-84 (2000). 2 In determining this issue, a court conducts an overview of 3 the claims in the habeas petition, generally assesses their 4 merits, and determines whether the resolution was debatable among 5 jurists of reason or wrong. 6 applicant to show more than an absence of frivolity or the 7 existence of mere good faith; however, it is not necessary for an 8 applicant to show that the appeal will succeed. 9 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 10 A district court must issue or deny a certificate of 11 appealability when it enters a final order adverse to the 12 applicant. 13 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 14 debate whether the petition should have been resolved in a 15 different manner. 16 of the denial of a constitutional right. 17 18 Petitioner has not made a substantial showing Accordingly, it will be recommended that the Court decline to issue a certificate of appealability. 19 X. 20 In summary, the petition should be dismissed without leave Recommendations 21 to amend. 22 be dismissed as moot. Petitioner’s request for an evidentiary hearing should 23 Accordingly, it is RECOMMENDED that: 24 1) Respondent’s motion to dismiss the petition be GRANTED; 25 and 26 2) The petition be DISMISSED without leave to amend; and 27 3) Petitioner’s request for an evidentiary hearing be 28 DISMISSED as moot; and 20 1 2 4) The Court DECLINE to issue a certificate of appealability; and 3 4 5) The Clerk be DIRECTED to close the action because an order of dismissal would terminate the proceeding. 5 These findings and recommendations are submitted to the 6 United States District Court Judge assigned to the case, pursuant 7 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 8 the Local Rules of Practice for the United States District Court, 9 Eastern District of California. Within thirty (30) days after 10 being served with a copy, any party may file written objections 11 with the Court and serve a copy on all parties. 12 should be captioned “Objections to Magistrate Judge’s Findings 13 and Recommendations.” 14 and filed within fourteen (14) days (plus three (3) days if 15 served by mail) after service of the objections. 16 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 17 636 (b)(1)(C). 18 objections within the specified time may waive the right to 19 appeal the District Court’s order. 20 1153 (9th Cir. 1991). 21 IT IS SO ORDERED. 22 Dated: icido3 Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file June 24, 2011 Martinez v. Ylst, 951 F.2d /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 21
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