(HC) Endsley v. Allison, No. 1:2010cv00955 - Document 13 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jennifer L. Thurston on 3/1/2011 recommending that 1 Petition for Writ of Habeas Corpus be summarily dismissed. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 3/24/2011. (Lundstrom, T)
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(HC) Endsley v. Allison Doc. 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 MARK ENDSLEY, ) ) Petitioner, ) ) v. ) ) ) KATHLEEN ALLISON, Acting Warden, ) ) Respondent. ) ____________________________________) 1:10-cv-00955-LJO-JLT HC FINDINGS AND RECOMMENDATIONS TO SUMMARILY DISMISS PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS 17 18 19 20 Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 26, 2010, Petitioner filed the instant petition for writ of habeas corpus. (Doc. 1). On 21 July 2, 2010, the Court ordered Respondent to file a response to the petition. (Doc. 6). On 22 September 3, 2010, Respondent filed the Answer. (Doc. 11). On September 7, 2010, Petitioner filed 23 his Traverse. (Doc. 12). 24 Petitioner challenges the California court decisions upholding a March 9, 2009, decision of 25 the California Board of Parole Hearings (“BPH”). Petitioner claims the California courts 26 unreasonably determined that there was some evidence that he posed a current risk of danger to the 27 public if released on parole and that the BPH’s decision was arbitrary and was not based on “some 28 evidence” in the record. U .S. D istrict C ourt E. D . C alifornia 1 Dockets.Justia.com 1 I. Preliminary Screening of the Petition. 2 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition 3 if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is 4 not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. 5 The Court must summarily dismiss a petition “[i]f it plainly appears from the petition and any 6 attached exhibits that the petitioner is not entitled to relief in the district court....” Habeas Rule 4; 7 O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 8 (9th cir. 1990). Habeas Rule 2( c) requires that a petition (1) specify all grounds of relief available to 9 the Petitioner; (2) state the facts supporting each ground; and (3) state the relief requested. Notice 10 pleading is not sufficient; rather, the petition must state facts that point to a real possibility of 11 constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O’Bremski, 915 F.2d at 12 420. Allegations in a petition that are vague, conclusory, or palpably incredible are subject to 13 summary dismissal. Hendricks, 908 F.2d at 491. 14 Further, the Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a 15 petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the 16 respondent’s motion to dismiss, or after an answer to the petition has been filed. Advisory 17 Committee Notes to Habeas Rule 8, 1976 Adoption; see Herbst v. Cook, 260 F.3d 1039 (9th 18 Cir.2001). 19 II. Failure to State a Claim Cognizable Under Federal Habeas Corpus 20 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 21 1996 (AEDPA). The AEDPA imposes various requirements on all petitions for writ of habeas 22 corpus filed after the date of its enactment. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2063 23 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en banc), cert. denied, 118 S.Ct. 586 24 (1997). The instant petition was filed on May 26, 2010, and thus, it is subject to the provisions of 25 the AEDPA. 26 Here, Petitioner alleges that he is an inmate of the California Department of Corrections and 27 Rehabilitation who is serving a sentence of life with the possibility of parole imposed in the Los 28 Angeles County Superior Court after Petitioner’s conviction for kidnaping for ransom, conspiracy, U .S. D istrict C ourt E. D . C alifornia 2 1 use of a gun, and second degree robbery. (Doc. 1, p. 12). Petitioner does not challenge either his 2 conviction or sentence; rather, Petitioner challenges the March 9, 2009 decision of the BPH finding 3 him unsuitable for parole. 4 Petitioner raises the following grounds for relief: (1) the BPH decision was not supported by 5 “some evidence” of Petitioner’s risk to public safety; (2) the BPH decision failed to establish a nexus 6 between the immutable facts of the commitment offense and Petitioner’s current risk to public 7 safety; and (3) the provisions of Proposition 9 violate Petitioner’s ex pose facto rights. (Doc. 1, pp. 8 20-30). 9 10 11 12 A. Substantive Due Process Claims And California’s “Some Evidence” Standard As discussed more fully below, the claims in the petition sound exclusively in substantive federal due process and therefore are not cognizable in these proceedings. The basic scope of habeas corpus is prescribed by statute. Subsection (c) of Section 2241 of 13 Title 28 of the United States Code provides that habeas corpus shall not extend to a prisoner unless 14 he is “in custody in violation of the Constitution.” 28 U.S.C. § 2254(a) states that the federal courts 15 shall entertain a petition for writ of habeas corpus only on the ground that the petitioner “is in 16 custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. §§ 17 2254(a)(, 2241( c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7, 120 S.Ct. 1495 (2000); Wilson v. 18 Corcoran, 562 U.S. ___, 131 S.Ct. 13, 16 (2010); see also, Rule 1 to the Rules Governing Section 19 2254 Cases in the United States District Court. The Supreme Court has held that “the essence of 20 habeas corpus is an attack by a person in custody upon the legality of that custody . . .” Preiser v. 21 Rodriguez, 411 U.S. 475, 484 (1973). Furthermore, in order to succeed in a petition pursuant to 28 22 U.S.C. § 2254, Petitioner must demonstrate that the adjudication of his claim in state court resulted 23 in a decision that was contrary to, or involved an unreasonable application of, clearly established 24 Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that 25 was based on an unreasonable determination of the facts in light of the evidence presented in the 26 State court proceeding. 28 U.S.C. § 2254(d)(1), (2). 27 28 Because California’s statutory parole scheme guarantees that prisoners will not be denied parole absent some evidence of present dangerousness, the Ninth Circuit Court of Appeals has held U .S. D istrict C ourt E. D . C alifornia 3 1 that California law creates a liberty interest in parole that may be enforced under the Due Process 2 Clause. Hayward v. Marshall, 602 F.3d 546, 561-563 (9th Cir.2010); Pearson v. Muntz, 606 F.3d 3 606, 608-609 (9th Cir. 2010); Cooke v. Solis, 606 F.3d 1206, 1213 (2010), rev’d, Swarthout v. 4 Cooke, ___ U.S.___, ___ S.Ct. ___, 2011 WL 197627 (Jan. 24, 2011). The Ninth Circuit instructed 5 reviewing federal district courts to determine whether California’s application of California’s “some 6 evidence” rule was unreasonable or was based on an unreasonable determination of the facts in light 7 of the evidence. Hayward v. Marshall. 603 F.3d at 563; Pearson v. Muntz, 606 F.3d at 608. 8 9 On January 24, 2011, the Supreme Court issued a per curiam opinion in Swarthout v. Cooke, 562 U.S.___, ___ S.Ct. ___, 2011 WL 197627 (No. 10-133, Jan. 24, 2011). In that decision, the 10 United States Supreme Court characterized as reasonable the decision of the Court of Appeals for the 11 Ninth Circuit that California law creates a liberty interest in parole protected by the Fourteenth 12 Amendment’s Due Process Clause, which in turn requires fair procedures with respect to the liberty 13 interest. Swarthout, 2011 WL 197627, *2. 14 However, the procedures required for a parole determination are the minimal requirements 15 set forth in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 12, 99 S.Ct. 16 2100 (1979).1 Swarthout v. Cooke, 2011 WL 197627, *2. In Swarthout, the Court rejected inmates’ 17 claims that they were denied a liberty interest because there was an absence of “some evidence” to 18 support the decision to deny parole. In doing so, the High Court stated as follows: 19 20 21 22 23 24 25 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 requires 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.) Swarthout, 2011 WL 197627, *2. The Court concluded that the petitioners had received the due process to which they were 26 1 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 and that due process 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 15-16. The decision maker is not required to state the evidence relied upon in coming to the decision. Id. U .S. D istrict C ourt E. D . C alifornia 4 1 2 3 4 due: 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. 5 6 Swarthout, 2011 WL 197627, *3. The Court went on to expressly point out that California’s “some 7 evidence” rule is not a substantive federal requirement, and correct application of the State’s “some 8 evidence” standard is not required by the federal Due Process Clause. Id. at *3. The Supreme Court 9 emphasized that “the responsibility for assuring that the constitutionally adequate procedures 10 governing California’s parole system are properly applied rests with California courts, and is no part 11 of the Ninth Circuit’s business.” Id. 12 Swarthout forecloses any claim premised upon California’s “some evidence” rule because 13 this court cannot entertain substantive due process claims related to a state’s application of its own 14 laws. Here, Grounds One and Two in the petition sound exclusively in substantive due process and 15 are therefore foreclosed by Swarthout. Review of the record for “some evidence,” or for a “nexus” 16 between present dangerousness and certain statutory or regulatory indicia, or reliance upon the 17 unchanging circumstances of the commitment offense to support denial of parole, are simply not 18 within the scope of this Court’s habeas review under 28 U.S.C. § 2254. Accordingly, these grounds 19 in the petition should be summarily dismissed. 20 Moreover, to the extent that these claims in the petition rest solely on state law, they are not 21 cognizable on federal habeas corpus. Federal habeas relief is not available to retry a state issue that 22 does not rise to the level of a federal constitutional violation. Wilson v. Corcoran, 562 U.S. ___, 131 23 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475 (1991). Alleged errors in 24 the application of state law are not cognizable in federal habeas corpus. Souch v. Schiavo, 289 F.3d 25 616, 623 (9th Cir. 2002). Indeed, federal courts are bound by state court rulings on questions of state 26 law. Oxborrow v. Eikenberry, 877 F.2d 1395, 1399 (9th Cir.), cert. denied, 493 U.S. 942 (1989). 27 B. Proposition 9 Violates The Federal Ex Post Facto Clause 28 In Ground Three, Petitioner contends that Proposition 9, which permits the BPH to delay an U .S. D istrict C ourt E. D . C alifornia 5 1 inmate’s next parole hearing for up to fifteen years, is a violation of the Ex Post Facto clause of the 2 federal constitution.2 The Court disagrees. 3 “The States are prohibited from enacting an ex post facto law.” Garner v. Jones, 529 U.S. 4 244, 249 (2000)(citing U.S. Const., art. I, § 10, cl. 1). “One function of the Ex Post Facto Clause is 5 to bar enactments which, by retroactive operation, increase the punishment for a crime after its 6 commission.” Id. Although retroactive changes in laws governing parole of inmates may violate the 7 Ex Post Facto Clause, “not every retroactive procedural change creating a risk of affecting an 8 inmate’s terms or conditions of confinement is prohibited.” Id. at 250. A retroactive procedural 9 change violates the Ex Post Facto Clause when it “creates a significant risk of prolonging [an 10 inmate’s] incarceration.” Id. at 251. A “speculative” or “attenuated” risk of prolonging incarceration 11 is insufficient to establish a violation of the Ex Post Facto Clause. Cal. Dept. Of Corr. V. Morales, 12 514 U.S. 499, 509 (1995). Thus, in order to establish an Ex Post Facto Clause violation, (1) an 13 inmate must show that Proposition 9, on its face, creates a significant risk of increasing the 14 punishment of California life-term inmates, or (2) the inmate must “demonstrate, by evidence drawn 15 from [Proposition 9's] practical implementation...that its retroactive application will result in a longer 16 period of incarceration than under the [prior law].” Garner, 529 U.S. at 255. 17 Prior to the enactment of Proposition 9, California law required that a state inmate receive an 18 annual parole hearing unless, when certain circumstances were present, the BPH scheduled the 19 hearing for between two and five years hence. Cal. Pen. Code § 3041.5(b)(2). In 2010, Proposition 20 9 amended California law to eliminate the annual parole hearing and permit the BPH to schedule 21 future hearings between three and fifteen years hence. Cal. Pen. Code § 3041.5(b)(3)(2010). 22 In Gilman v. Schwarzenegger, 2011 WL 198435 (9th Cir. Jan. 24, 2011), the Ninth Circuit 23 rejected an inmate’s ex post facto challenge to Proposition 9. After noting that “Proposition 9 did 24 not increase the statutory punishment for any particular offense, did not change the date of inmates’ 25 initial parole hearings, and did not change the standard by which the Board determined whether 26 inmates were suitable for parole,” the Court went on to consider the effect of the greater delays 27 2 28 To the extent that Petitioner is maintaining that Proposition 9 is a violation of state constitutional protections, the Court, for the reasons discussed previously, lacks habeas jurisdiction to resolve matters of purely state law. U .S. D istrict C ourt E. D . C alifornia 6 1 between parole hearings on the inmate’s period of incarceration, and concluded that no federal 2 violation occurred: 3 4 5 6 7 8 9 10 11 12 13 14 Even assuming, without deciding, that the statutory changes decreasing the frequency of scheduled hearings would create a risk of prolonged incarceration, the availability of advance hearings is relevant to whether the changes in the frequency of parole hearings create a significant risk that prisoners will receive a greater punishment. Garner, 529 U.S. at 256257; Morales, 514 U.S. at 512. ... Here, advance hearings are explicitly made available by statute: ‘The board may in its discretion...advance a hearing...to an earlier date, when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim’s safety does not require the additional period of incarceration of the prisoner.’ Cal. Penal Code § 3041.5(b)(4). The Board may exercise its discretion to hold an advance hearing sua sponte or at the request of a prisoner. A prisoner may request an advance hearing by submitting a written request that ‘set[s] forth the change in circumstances or new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration.” Id. § 3041.5(d)(1). The Board’s decision to deny a prisoner’s request for an advance hearing is subject to judicial review. Id. § 3041.5(d)(2). Here, as in Morales, an advance hearing by the Board ‘would remove any possibility of harm’ to prisoners because they would not be required to wait a minimum of three years for a hearing. 514 U.S. at 513. Gilman, 2011 WL at *5-6. The Ninth Circuit concluded that “[t]here were no facts in the record from which the district 15 court could infer that Proposition 9 created a significant risk of prolonging Plaintiff’s incarceration.” 16 Id. at * 8. Accordingly, there is no federal constitutional violation based on Proposition 9 and 17 therefore Petitioner’s claim to the contrary is summarily rejected. 18 C. Procedural Due Process 19 Petitioner has neither claimed nor established a violation of his federal right to procedural 20 due process. Petitioner has included a transcript of the BPH hearing. (Doc. 1, Ex. 2, p. 2 et seq.). 21 From that transcript, it is clear that Petitioner was present at the BPH hearing (id.), that he had an 22 opportunity to be heard (e.g., id., pp. 36-53), that he was represented by counsel who also attended 23 the hearing and argued on Petitioner’s behalf (e.g., id., pp. 59-65), and that Petitioner received a 24 statement of the Board’s reasons for denying parole. (Doc. 1, Ex. 2, pp. 65-73). 25 According to the Supreme Court, this is “the beginning and the end of the federal habeas 26 courts’ inquiry into whether [the prisoner] received due process.” Swarthout, 2011 WL 197627. 27 “The Constitution does not require more [process].” Greenholtz, 442 U.S. at 16. Therefore, the 28 instant petition does not present cognizable claims for relief and should be summarily dismissed. U .S. D istrict C ourt E. D . C alifornia 7 1 2 RECOMMENDATION For the foregoing reasons, the Court HEREBY RECOMMENDS that the instant petition for 3 writ of habeas corpus (Doc. 1), be SUMMARILY DISMISSED for failure to state a claim upon 4 which federal habeas relief can be granted. 5 This Findings and Recommendation is submitted to the United States District Court Judge 6 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of 7 the Local Rules of Practice for the United States District Court, Eastern District of California. 8 Within twenty (20) days after being served with a copy, any party may file written objections with 9 the court and serve a copy on all parties. Such a document should be captioned “Objections to 10 Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served and 11 filed within ten (10) court days (plus three days if served by mail) after service of the objections. 12 The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The 13 parties are advised that failure to file objections within the specified time may waive the right to 14 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 16 IT IS SO ORDERED. 17 Dated: March 1, 2011 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia 8
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