-SKO (HC) McNabb v. Yates et al, No. 1:2010cv01191 - Document 27 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS RE: Respondent's 21 Motion to Dismiss the Petition; FINDINGS and RECOMMENDATIONS recommending to Dismiss the 1 Petition with Prejudice, Dismiss Petitioner's Motion as Moot, and Decline to Issue a Certificate of Appealability signed signed by Magistrate Judge Sheila K. Oberto on 06/23/2011. Referred to Judge Wanger; Objections to F&R due by 7/27/2011. (Flores, E)
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-SKO (HC) McNabb v. Yates et al Doc. 27 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RONALD EDWARD McNABB, 10 Petitioner, 11 12 13 v. WARDEN YATES, et al., 14 Respondent. 15 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01191-OWW-SKO-HC FINDINGS AND RECOMMENDATIONS RE: RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 21, 1, 7) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITH PREJUDICE (DOCS. 1, 7), DISMISS PETITIONER’S MOTIONS AS MOOT (DOCS. 23-25), AND DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY 17 Petitioner is a state prisoner proceeding pro se and in 18 forma pauperis with a petition for writ of habeas corpus pursuant 19 to 28 U.S.C. § 2254. The matter has been referred to the 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 21 Rules 302 and 304. Pending before the Court is Respondent’s 22 motion to dismiss the petition, which was filed on February 17, 23 2011. Respondent contends that the petition is untimely and 24 fails to set forth a cognizable claim. Petitioner filed an 25 opposition to the motion on March 3, 2011, which was styled as a 26 “Motion of Opposition.” No reply was filed. 27 /// 28 1 Dockets.Justia.com 1 I. 2 Respondent has filed a motion to dismiss the petition on the Proceeding by a Motion to Dismiss 3 ground that Petitioner filed his petition outside the one-year 4 limitation period provided for by 28 U.S.C. § 2244(d)(1). 5 Respondent also argues that Petitioner failed to state a 6 cognizable claim. 7 Rule 4 of the Rules Governing Section 2254 Cases (Habeas 8 Rules) allows a district court to dismiss a petition if it 9 “plainly appears from the face of the petition and any exhibits 10 annexed to it that the petitioner is not entitled to relief in 11 the district court....” 12 The Ninth Circuit has allowed respondents to file motions to 13 dismiss pursuant to Rule 4 instead of answers if the motion to 14 dismiss attacks the pleadings by claiming that the petitioner has 15 failed to exhaust state remedies or has violated the state’s 16 procedural rules. 17 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 18 a petition for failure to exhaust state remedies); White v. 19 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 20 review a motion to dismiss for state procedural default); Hillery 21 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). 22 Thus, a respondent may file a motion to dismiss after the Court 23 orders the respondent to respond, and the Court should use Rule 4 24 standards to review a motion to dismiss filed before a formal 25 answer. 26 See, e.g., O’Bremski v. Maass, 915 F.2d 418, See, Hillery, 533 F. Supp. at 1194 & n.12. In this case, Respondent's motion to dismiss addresses the 27 untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1). 28 The material facts pertinent to the motion are mainly found in 2 1 copies of the official records of state judicial proceedings 2 which have been provided by Respondent and Petitioner, and as to 3 which there is no factual dispute. 4 filed a formal answer, and because Respondent's motion to dismiss 5 is similar in procedural standing to a motion to dismiss for 6 failure to exhaust state remedies or for state procedural 7 default, the Court will review Respondent’s motion to dismiss 8 pursuant to its authority under Rule 4. 9 10 II. Because Respondent has not Background Petitioner alleged that he was an inmate of Pleasant Valley 11 State Prison (PVSP) serving a sentence of fifteen (15) years to 12 life imposed by the Los Angeles Superior Court in August 1982 13 upon his conviction of second degree murder in violation of Cal. 14 Pen. Code § 187. 15 of California’s Board of Parole Hearings (BPH) finding Petitioner 16 unsuitable for parole after a hearing held on August 1, 2006, 17 because Petitioner presented a danger to society if released. 18 (Id. at 16.) (Pet. 3.) Petitioner challenges the decision 19 Petitioner raises the following claims in the petition: 20 the BPH abused its discretion by concluding that Petitioner would 21 pose an unreasonable risk of danger to society, 2) there was no 22 evidence of Petitioner’s callous disregard for human life, 3) the 23 BPH’s continued denial of release on parole constituted cruel and 24 unusual punishment, and 4) the BPH’s continued denial of parole 25 violated the Ex Post Facto Clause. 26 contends that the evidence of his rehabilitation that was before 27 the BPH actually supported a finding that if released, Petitioner 28 would not present an unreasonable risk of danger to society. 3 (Id. at 6-7.) 1) Petitioner 1 (Doc. 7, 4.) 2 The transcript of the hearing held on August 1, 2006, 3 reflects that Petitioner attended the hearing with counsel, was 4 given an opportunity to correct and clarify the record, discussed 5 with the BPH various factors of parole suitability, made a 6 personal statement in favor of parole in addition to his 7 counsel’s statement, and was present when the BPH announced its 8 decision and the reasoning underlying it. 9 1, 2, 5, 10, 13, 15-43, 44-47, 48-57.) (Mot., Ex. 1, doc. 21- The BPH’s reasons for 10 concluding that Petitioner posed an unreasonable danger to public 11 safety and should not receive consideration for release again for 12 four years included the especially violent and cruel commitment 13 offense and Petitioner’s criminal history, abuse of drugs and 14 resultant psychiatric problems, limited programming and 15 disciplinary history during incarceration, failure to develop a 16 marketable skill, and lack of residential plans for release. 17 (Id. at 48-57.) 18 On June 18, 2009, Petitioner filed a petition for writ of 19 habeas corpus in the Los Angeles Superior Court, which denied the 20 petition on October 16, 2009, on the ground that there was some 21 evidence to support the BPH’s findings concerning the commitment 22 offense, including Petitioner’s significant, criminal and serious 23 misconduct during incarceration, and the inadequacy of 24 Petitioner’s rehabilitative efforts. 25 60-62.) 26 27 (Mot., Ex. 2, doc. 21-2, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, Second Appellate District, on 28 4 1 November 11, 2009,1 which the court denied on December 2, 2009. 2 (Mot., Exs. 3-4, doc. 21-2, 64-75; doc. 21-1, 98.) 3 Petitioner filed a petition for writ of habeas corpus in the 4 California Supreme Court on December 15, 2009. 5 doc. 21-1, 77-89.) 6 Thereafter, (Mot., Ex. 5, Petitions for writ of habeas corpus filed in this Court were 7 dismissed without prejudice for failure to exhaust state court 8 remedies on February 25, 2008 (petition filed on October 22, 9 2007, in case no. 1:07-cv-01535-AWI-SMS-HC) and March 4, 2008 10 (petition filed on February 4, 2008, in case no. 1:08-cv-00173- 11 LJO-SMS-HC). 12 138-42; ex. 8, doc. 21-1, 143-45.) 13 (Mot., Ex. 5, doc. 21-1, 90-91; ex. 7, doc. 21-2, On January 22, 2009, the United States Court of Appeals for 14 the Ninth Circuit denied as unnecessary an application for 15 authorization to bring a successive § 2254 petition. 16 93; ex. 7, doc. 21-1, 138-40.) 17 without prejudice to Petitioner’s renewing his habeas petition 18 before the District Court. 19 (Id. at 92- The denial was specifically Id. On June 18, 2009, Petitioner filed a second petition for 20 writ of habeas corpus in the Superior Court, which the court 21 denied on October 16, 2009, on the ground that the record 22 23 24 25 26 27 28 1 Under the mailbox rule, a prisoner's pro se habeas petition is "deemed filed when he hands it over to prison authorities for mailing to the relevant court." Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001); Houston v. Lack, 487 U.S. 266, 276 (1988). The mailbox rule applies to federal and state petitions alike. Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (citing Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th. Cir. 2003), and Smith v. Ratelle, 323 F.3d 813, 816 n.2 (9th Cir. 2003)). Only some of the exhibits filed by Respondent contain the petitions, so some filing dates are reflected only in the orders denying the petitions. Thus, it may be the Petitioner actually filed the petitions a few days earlier than indicated in the respective state courts’ denial orders. However, in view of the timing of the filings, it does not appear that any discrepancy would affect the analysis or result in the present case. 5 1 contained some evidence supporting the BPH’s findings. 2 94-97.) 3 (Id. at On November 17, 2009, Petitioner filed a petition for writ 4 of habeas corpus in the California Court of Appeal, which the 5 court denied on December 2, 2009. 6 (Id. at 98.) Petitioner filed a petition for writ of habeas corpus in the 7 California Supreme Court on December 15, 2009, which the court 8 denied on June 9, 2010. 9 petition in the present case was filed on June 14, 2010.2 (Exs. 5-6, doc. 21-1, 87, 78-137.) The 10 III. 11 On April 24, 1996, Congress enacted the Antiterrorism and Statute of Limitations 12 Effective Death Penalty Act of 1996 (AEDPA). 13 to all petitions for writ of habeas corpus filed after the 14 enactment of the AEDPA. 15 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en 16 banc), cert. denied, 118 S.Ct. 586 (1997). 17 18 19 The AEDPA applies Lindh v. Murphy, 521 U.S. 320, 327 Because Petitioner filed his petition for writ of habeas corpus on June 14, 2010, the AEDPA applies to the petition. The AEDPA provides a one-year period of limitation in which 20 a petitioner must file a petition for writ of habeas corpus. 21 U.S.C. § 2244(d)(1). 22 23 28 As amended, subdivision (d) reads: (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. 24 25 26 27 28 2 Petitioner’s declaration of proof of service of the petition by mail was dated June 14, 2010; the post mark on the envelope bears the date of June 16, 2010. In Campbell v. Henry, the court declined to decide whether in determining the date of mailing, it was more appropriate to use the date on the proof of service or the date of the postmark. Campbell v. Henry, 614 F.3d 1056, 1059 n.2 (9th Cir. 2010). Because in the present case the proof of service is declared to be true under penalty of perjury and appears to reflect the time when Petitioner deposited the petition in the mail, the Court will accept the date on the proof of service. 6 1 The limitation period shall run from the latest of – 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). 16 The one-year limitation period of § 2244 applies to habeas 17 petitions brought by persons in custody pursuant to state court 18 judgments who challenge administrative decisions, such as the 19 decisions of state prison disciplinary authorities. 20 Bartlett, 391 F.3d 1061, 1063, 1065-66 (9th Cir. 2004). 21 § 2244(d)(1)(A) is inapplicable to administrative decisions; 22 rather, it is § 2244(d)(1)(D) that applies to petitions 23 challenging such decisions. 24 1081-82 (9th Cir. 2003) (parole board determination). 25 point at which the statute begins to run is the date on which the 26 factual predicate of the claim or claims presented could have 27 been discovered through the exercise of due diligence. 28 § 2244(d)(1)(D); Redd v. McGrath, 343 F.3d at 1082. Shelby v. However, Redd v. McGrath, 343 F.3d 1077, 7 Thus, the 28 U.S.C. In Redd v. 1 McGrath, the court concluded that the factual predicate of the 2 habeas claims concerning the denial of parole was the parole 3 board’s denial of the prisoner’s administrative appeal. 4 1082. Id. at 5 In Shelby and Redd, the pertinent date was the date on 6 which notice of the decision was received by the petitioner. 7 Thus, the statute of limitations was held to have begun running 8 the day after notice of the decision was received. 9 Bartlett, 391 F.3d 1061, 1066; Redd, 343 F.3d at 1082. 10 Shelby v. Here, Petitioner was present when the BPH announced its 11 decision; thus, Petitioner received notice of the initial BPH 12 panel decision on August 1, 2006. 13 decision reflects the following text after the conclusion of the 14 hearing: 15 16 17 18 19 However, the transcript of the PAROLE DENIED FOUR YEARS THIS DECISION WILL BE FINAL ON: Nov 29, 2006 YOU WILL BE PROMPTLY NOTIFIED IF, PRIOR TO THAT DATE, THE DECISION IS MODIFIED. RONALD MCNABB C-52916 DECISION PAGE 10 8/1/06 (Mot., doc. 21-1, 57.) Thus, November 29, 2006, is the date on which the factual 20 predicate of the claim or claims presented could have been 21 discovered through the exercise of due diligence. 22 thus began running on the next day, November 30, 2006, and absent 23 any tolling, Petitioner had through November 29, 2007, to file 24 his petition here. 25 251 F.3d 1243, 1245-46 (9th Cir. 2001) (holding analogously that 26 the correct method for computing the running of the one-year 27 grace period after the enactment of AEDPA is pursuant to Fed. R. 28 Civ. P. 6(a), in which the day upon which the triggering event The statute Fed. R. Civ. P. 6(a); Patterson v. Stewart, 8 1 occurs is not counted). 2 Section 2244(d)(2) provides that the time during which a 3 properly filed application for state post-conviction or other 4 collateral review with respect to the pertinent judgment or claim 5 is pending shall not be counted toward any period of limitation. 6 Once a petitioner is on notice that his habeas petition may be 7 subject to dismissal based on the statute of limitations, he has 8 the burden of demonstrating that the limitations period was 9 sufficiently tolled by providing the pertinent facts, such as 10 dates of filing and denial. 11 15 (9th Cir. 2002), abrogation on other grounds recognized by 12 Moreno v. Harrison, 245 Fed. Appx. 606 (9th Cir. 2007). 13 Smith v. Duncan, 297 F.3d 809, 814- Here, Petitioner’s first state habeas petition was filed on 14 June 18, 2009, long after the expiration of the one-year 15 limitation period at the end of November 2007. 16 filed after the expiration of the one-year limitation period does 17 not serve to toll or re-initiate the running of the limitations 18 period under 28 U.S.C. § 2244(d)(2). 19 F.3d 820, 823 (9th Cir. 2003). 20 shown a basis for tolling the running of the limitations period 21 pursuant to § 2244(d)(2). 22 A state petition Ferguson v. Palmateer, 321 Accordingly, Petitioner has not Petitioner contends that the running of the statute was 23 equitably tolled. 24 subject to equitable tolling where the petitioner has been 25 diligent, and extraordinary circumstances, such as the egregious 26 misconduct of counsel, have prevented the petitioner from filing 27 a timely petition. 28 2560 (2010). The one-year limitations period of § 2244 is Holland v. Florida, – U.S. –, 130 S.Ct. 2549, The petitioner must show that the extraordinary 9 1 circumstances were the cause of his untimeliness and that the 2 extraordinary circumstances made it impossible to file a petition 3 on time. 4 The diligence required for equitable tolling is reasonable 5 diligence, not “maximum feasible diligence.” 6 130 S.Ct. at 2565. 7 Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009). Holland v. Florida, “[T]he threshold necessary to trigger equitable tolling 8 [under AEDPA] is very high, lest the exceptions swallow the 9 rule.” 10 Spitsyn v. Moore, 345 F.3d 796, 799 (quoting Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)). 11 Petitioner alleges generally that the statute was equitably 12 tolled by his exhaustion of his claims at the state and then the 13 federal levels. 14 federal petitions were dismissed for failure to exhaust, he 15 returned to state court and filed a petition in the Superior 16 Court on June 18, 2009; each successive petition for relief 17 thereafter continued to toll the statute. 18 Petitioner contends that when the first two (Opp., doc. 22, 1.) Petitioner’s allegations appear to relate more to statutory 19 tolling pursuant to § 2244(d)(2) than to equitable tolling. 20 filing of a federal petition does not serve to toll the statute 21 of limitations pursuant to § 2244(d)(2). 22 U.S. 167, 172 (2001). 23 two earlier federal petitions, the statute continued to run. 24 The Duncan v. Walker, 533 Thus, during the pendency of Petitioner’s Further, it is demonstrated by the record that Petitioner 25 did not file his first state petition for collateral relief until 26 after the one-year limitation period had expired. 27 Petitioner does not point to any extraordinary circumstances that 28 prevented him from filing a timely petition. 10 Finally, The Court concludes 1 that Petitioner did not demonstrate that the limitations period 2 was equitably tolled. 3 In summary, the Court concludes that the petition was 4 untimely. 5 motion to dismiss the petition as untimely be granted, and that 6 the petition be dismissed as untimely. Accordingly, it will be recommended that Respondent’s 7 IV. 8 Respondent argues that the petition should be dismissed 9 10 Failure to State a Cognizable Claim because Petitioner failed to state a claim entitling him to relief in a proceeding pursuant to 28 U.S.C. § 2254. 11 A district court may entertain a petition for a writ of 12 habeas corpus by a person in custody pursuant to the judgment of 13 a state court only on the ground that the custody is in violation 14 of the Constitution, laws, or treaties of the United States. 28 15 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 16 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 17 16 (2010) (per curiam). 18 A. 19 Due Process Claim Based on the Evidence The Supreme Court has characterized as reasonable the 20 decision of the Court of Appeals for the Ninth Circuit that 21 California law creates a liberty interest in parole protected by 22 the Fourteenth Amendment Due Process Clause, which in turn 23 requires fair procedures with respect to the liberty interest. 24 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 25 26 However, the procedures required for a parole determination are the minimal requirements set forth in Greenholtz v. Inmates 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 as follows: 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 arguing that there was an absence of evidence to 8 support the BPH’s denial of parole, Petitioner asks this Court to 9 engage in the very type of analysis foreclosed by Swarthout. 10 Petitioner does not state facts that point to a real possibility 11 of constitutional error or that otherwise would entitle 12 Petitioner to habeas relief because California’s “some evidence” 13 requirement is not a substantive federal requirement. 14 the record for “some evidence” to support the denial of parole is 15 not within the scope of this Court’s habeas review under 28 16 U.S.C. § 2254. 17 Review of Insofar as Petitioner argues that the BPH abused its 18 discretion in denying parole, Petitioner appears to be relying on 19 state law concerning the determination of parole suitability. 20 the extent that Petitioner’s claim or claims rest on state law, 21 they are not cognizable on federal habeas corpus. 22 relief is not available to retry a state issue that does not rise 23 to the level of a federal constitutional violation. 24 Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. 25 McGuire, 502 U.S. 62, 67-68 (1991). 26 application of state law are not cognizable in federal habeas 27 corpus. 28 /// Federal habeas Wilson v. Alleged errors in the Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). 13 To 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). 5 Jarvis v. Nelson, 440 Here, the allegations in the petition reveal that Petitioner 6 attended the parole suitability hearing, made statements to the 7 BPH, and received a statement of reasons for the decision of the 8 BPH. 9 record of the parole proceedings establish that he had an Thus, Petitioner’s own allegations and the undisputed 10 opportunity to be heard and received a statement of reasons for 11 the decision in question. 12 Petitioner could state a tenable due process claim. It therefore does not appear that 13 Accordingly, it will be recommended that with respect to 14 Petitioner’s due process claim, Respondent’s motion to dismiss be 15 granted, and the petition be dismissed without leave to amend. 16 17 18 B. Cruel and Unusual Punishment Petitioner alleges generally that the continued denial of parole constituted cruel and unusual punishment. (Pet. 7.) 19 It is established that there is no right under the Federal 20 Constitution to be conditionally released before the expiration 21 of a valid sentence, and the states are under no duty to offer 22 parole to their prisoners. 23 S.Ct. 859, 862 (2011). 24 disproportionate” to the crime for which a defendant is convicted 25 may violate the Eighth Amendment. 26 63, 72 (2003); Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) 27 (Kennedy, J., concurring); Rummel v. Estelle, 445 U.S. 263, 271 28 (1980). Swarthout v. Cooke, 562 U.S. –, 131 A criminal sentence that is “grossly Lockyer v. Andrade, 538 U.S. Outside of the capital punishment context, the Eighth 14 1 Amendment prohibits only sentences that are extreme and grossly 2 disproportionate to the crime. 3 123, 129 (9th Cir. 1992) (quoting Harmelin v. Michigan, 501 U.S. 4 957, 1001, (1991) (Kennedy, J., concurring)). 5 “exceedingly rare” and occur in only “extreme” cases. 6 Andrade, 538 U.S. at 72-73; Rummel, 445 U.S. at 272. 7 a sentence does not exceed statutory maximums, it will not be 8 considered cruel and unusual punishment under the Eighth 9 Amendment. United States v. Bland, 961 F.2d Such instances are Lockyer v. So long as See United States v. Mejia-Mesa, 153 F.3d 925, 930 10 (9th Cir. 1998); United States v. McDougherty, 920 F.2d 569, 576 11 (9th Cir. 1990). 12 In California, Petitioner’s offense, second degree murder, 13 is generally punished by imprisonment in the state prison for a 14 term of fifteen (15) years to life. 15 Pursuant to California law, it is established that an 16 indeterminate life sentence is in legal effect a sentence for the 17 maximum term of life. 18 (1969). 19 life term in state prison is not entitled to release on parole 20 until he is found suitable for such release by the Board of 21 Parole Hearings (previously, the Board of Prison Terms). 22 Pen. Code § 3041(b); Cal. Code of Regs., tit. 15, § 2402(a). 23 Under California’s Determinate Sentencing Law, an inmate such as 24 Petitioner who is serving an indeterminate sentence for murder 25 may serve up to life in prison, but he does not become eligible 26 for parole consideration until the minimum term of confinement is 27 served. 28 actual confinement period of a life prisoner is determined by an Cal. Pen. Code § 190(a). People v. Dyer, 269 Cal.App.2d 209, 214 Generally, a convicted person serving an indeterminate In re Dannenberg, 34 Cal.4th 1061, 1078 (2005). 15 Cal. The 1 2 executive parole agency. Id. (citing Cal. Pen. Code § 3040). Here, Petitioner’s sentence of fifteen (15) years to life 3 does not exceed the statutory maximum. 4 fifty years to life for murder with use of a firearm is not 5 grossly disproportionate. 6 1204 (9th Cir. 2006). 7 facts that would entitle him to relief in a proceeding pursuant 8 to § 2254 under the Eighth Amendment’s prohibition against cruel 9 and unusual punishment. 10 Further, a sentence of Plasencia v. Alameida, 467 F.3d 1190, Accordingly, Petitioner has not stated In view of the pertinent state statutory scheme, it does not 11 appear that Petitioner could allege a tenable cruel and unusual 12 punishment claim. 13 Petitioner’s cruel and unusual punishment claim be dismissed 14 without leave to amend. 15 C. 16 Therefore, it will be recommended that Ex Post Facto Claim Petitioner alleges generally that the continued denial of 17 parole constitutes a violation of the Eighth Amendment’s Ex Post 18 Facto Clause. 19 to be based on the Ex Post Facto Clause and not the Eighth 20 Amendment. 21 (Pet. 7, 17.) The Court understands this argument Petitioner has not alleged specific facts in support of this 22 claim. 23 habeas corpus; rather, the petition must state facts that point 24 to a real possibility of constitutional error. 25 Advisory Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915 26 F.2d 418, 420 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 27 U.S. 63, 75 n.7 (1977)). 28 vague, conclusional, or palpably incredible, and that are Notice pleading is not sufficient for petitions for Habeas Rule 4, Allegations in a petition that are 16 1 unsupported by a statement of specific facts, are insufficient to 2 warrant relief and are subject to summary dismissal. 3 Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); James v. Borg, 24 4 F.3d 20, 26 (9th Cir. 1994). 5 are, therefore, subject to dismissal. Jones v. Petitioner’s general allegations 6 In view of the four-year denial of parole, however, 7 Petitioner may be basing his claim on the BPH’s application to 8 Petitioner, whose crime was committed in 1982, of 9 California’s Proposition 9, the “Victims’ Bill of Rights Act of 10 2008: Marsy’s Law,” which on November 4, 2008, effected an 11 amendment of Cal. Pen. Code § 3041.5(b)(3) that resulted in a 12 lengthening of the periods between parole suitability hearings. 13 The Constitution provides, “No State shall... pass any... ex 14 post facto Law.” 15 Clause prohibits any law which: 1) makes an act done before the 16 passing of the law, which was innocent when done, criminal; 2) 17 aggravates a crime and makes it greater than it was when it was 18 committed; 3) changes the punishment and inflicts a greater 19 punishment for the crime than when it was committed; or 4) alters 20 the legal rules of evidence and requires less or different 21 testimony to convict the defendant than was required at the time 22 the crime was committed. 23 (2000). 24 defendant violates the Ex Post Facto Clause if the new 25 regulations create a “sufficient risk” of increasing the 26 punishment for the defendant’s crimes. 27 F.3d 848, 854 (9th Cir. 2003) (citing Cal. Department of 28 Corrections v. Morales, 514 U.S. 499, 509 (1995)). U.S. Const. art I, § 10. The Ex Post Facto Carmell v. Texas, 529 U.S. 513, 522 Application of a state regulation retroactively to a 17 Himes v. Thompson, 336 When the rule 1 or statute does not by its own terms show a significant risk, the 2 respondent must demonstrate, by evidence drawn from the rule's 3 practical implementation by the agency charged with exercising 4 discretion, that its retroactive application will result in a 5 longer period of incarceration than under the earlier rule. 6 Garner v. Jones, 529 U.S. 244, 250, 255 (2000). 7 The Court notes that Petitioner has not alleged any facts 8 that would even suggest that retroactive application of 9 Proposition 9 resulted in a longer period of incarceration. 10 Further, previous amendments to Cal. Pen. Code § 3041.5, 11 which initiated longer periods of time between parole suitability 12 hearings, have been upheld against challenges that they violated 13 the Ex Post Facto Clause. 14 Corrections v. Morales, 514 U.S. 499, 509 (1995); 15 Estelle, 886 F.2d 1093, 1097-98 (9th Cir. 1989). 16 state law permitting the extension of intervals between parole 17 consideration hearings for all prisoners serving life sentences 18 from three to eight years does not violate the Ex Post Facto 19 Clause where expedited parole review was available upon a change 20 of circumstances or receipt of new information warranting an 21 earlier review, and where there was no showing of increased 22 punishment. 23 circumstances, there was no significant risk of extending a 24 prisoner’s incarceration. 25 See, e.g., California Department of Garner v. Jones, 529 U.S. at 249. Watson v. Similarly, a Under such Id. In Gilman v. Schwarzenegger, 638 F.3d 1101 (9th Cir. 2011), 26 the Ninth Circuit reversed a grant of injunctive relief to 27 plaintiffs in a class action seeking to prevent the board from 28 enforcing Proposition 9's amendments that defer parole 18 1 consideration. 2 Proposition 9 were noted to be more extensive than those before 3 the Court in Morales and Garner; however, advanced hearings, 4 which would remove any possibility of harm, were available upon a 5 change in circumstances or new information. 6 Court concluded that in the absence of facts in the record from 7 which it might be inferred that Proposition 9 created a 8 significant risk of prolonging Plaintiffs’ incarceration, the 9 plaintiffs had not established a likelihood of success on the 10 11 The court noted that the changes wrought by merits on the ex post facto claim. Id. at 1108-09. The Id. at 1110-11. This Court may take judicial notice of court records. Fed. 12 R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 13 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 14 635 n.1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981). 15 The Court takes judicial notice of the docket and specified 16 orders in the class action pending in this district, Gilman v. 17 Fisher, 2:05-cv-00830-LKK-GGH, including the order granting 18 motion for class certification filed on March 4, 2009 (Doc. 182, 19 9:7-15). 20 of California state prisoners who 1) have been sentenced to a 21 term that includes life, 2) are serving sentences that include 22 the possibility of parole, 3) are eligible for parole, and 4) 23 have been denied parole on one or more occasions. 24 further reflects that the Ninth Circuit affirmed the order 25 certifying the class. 26 The docket indicates that the Gilman class is made up The docket (Docs. 257, 258.) The Court also takes judicial notice of the order of March 27 4, 2009, in which the court described the case as including 28 challenges to Proposition 9's amendments to Cal. Pen. Code § 19 1 3041.5 based on the Ex Post Facto Clause, and a request for 2 injunctive and declaratory relief against implementation of the 3 changes. (Doc. 182, 5-6.) 4 Although Petitioner ultimately seeks release from custody 5 (pet. 35), resolution of Petitioner’s claim might well involve 6 the scheduling of Petitioner’s next suitability hearing and the 7 invalidation of state procedures used to deny parole suitability, 8 matters removed from the fact or duration of confinement. 9 types of claims have been held to be cognizable under 42 U.S.C. Such 10 § 1983 as claims concerning conditions of confinement. 11 v. Dotson, 544 U.S. 74, 82 (2005). 12 the core of habeas corpus relief. 13 U.S. 475, 485-86 (1973); Nelson v. Campbell, 541 U.S. 637, 643 14 (2004); Muhammad v. Close, 540 U.S. 749, 750 (2004). 15 Wilkinson Thus, they may fall outside See, Preiser v. Rodriguez, 411 Further, Petitioner's requested relief overlaps with the 16 relief requested in the Gilman class action. 17 a member of a class action for equitable relief from prison 18 conditions may not maintain an individual suit for equitable 19 relief concerning the same subject matter. 20 F.2d 890, 891-92 (9th Cir. 1979). 21 efficient and orderly administration of justice for a court to 22 proceed with an action that would possibly conflict, or 23 interfere, with the determination of relief in another pending 24 action, which is proceeding and in which the class has been 25 certified. 26 A plaintiff who is Crawford v. Bell, 599 It is contrary to the Here, Petitioner’s own allegations reflect that he qualifies 27 as a member of the class in Gilman. 28 jurisdiction over same subject matter and may grant the same 20 The court in Gilman has 1 relief. 2 disposition of its cases with economy of time and effort for both 3 the court and the parties. 4 U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 5 (9th Cir. 1992). 6 this Court concludes that dismissal of Petitioner’s ex post facto 7 claim in this action is appropriate and necessary to avoid 8 interference with the orderly administration of justice. 9 Crawford v. Bell, 599 F.2d 890, 892-93; see Bryant v. Haviland, 10 11 A court has inherent power to control its docket and the Landis v. North American Co., 299 In the exercise of its inherent discretion, Cf., 2011 WL 23064, *2-*5 (E.D.Cal. Jan. 4, 2011). In view of the allegations of the petition and the pendency 12 of the Gilman class action, amendment of the petition with 13 respect to such an ex post facto claim would be futile. 14 Accordingly, it will be recommended that Petitioner’s ex post 15 facto claim be dismissed without leave to amend. 16 V. 17 After the filing of the motion to dismiss, Petitioner filed Miscellaneous Motions 18 a motion for summary judgment in which he asked the Court to 19 grant him the writ of habeas corpus. 20 2011.) 21 April 4, 2011 (doc. 24), and a motion for the Court to grant his 22 petition (doc. 25, filed April 26, 2011). 23 (Doc. 23, filed March 24, He then filed a motion for a transcript of his trial on In view of the recommendation that the entire petition be 24 dismissed with prejudice, it will be further recommended that 25 Petitioner’s motions be dismissed as moot. 26 VI. 27 Unless a circuit justice or judge issues a certificate of 28 Certificate of Appealability appealability, an appeal may not be taken to the Court of Appeals 21 1 from the final order in a habeas proceeding in which the 2 detention complained of arises out of process issued by a state 3 court. 4 U.S. 322, 336 (2003). 5 only if the applicant makes a substantial showing of the denial 6 of a constitutional right. 7 petitioner must show that reasonable jurists could debate whether 8 the petition should have been resolved in a different manner or 9 that the issues presented were adequate to deserve encouragement 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 to proceed further. 11 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 12 certificate should issue if the Petitioner shows that jurists of 13 reason would find it debatable whether the petition states a 14 valid claim of the denial of a constitutional right and that 15 jurists of reason would find it debatable whether the district 16 court was correct in any procedural ruling. 17 529 U.S. 473, 483-84 (2000). 18 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 19 the claims in the habeas petition, generally assesses their 20 merits, and determines whether the resolution was debatable among 21 jurists of reason or wrong. 22 applicant to show more than an absence of frivolity or the 23 existence of mere good faith; however, it is not necessary for an 24 applicant to show that the appeal will succeed. 25 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 26 A district court must issue or deny a certificate of 27 appealability when it enters a final order adverse to the 28 applicant. Rule 11(a) of the Rules Governing Section 2254 Cases. 22 1 Here, it does not appear that reasonable jurists could 2 debate whether the petition should have been resolved in a 3 different manner. 4 of the denial of a constitutional right. 5 recommended that the Court decline to issue a certificate of 6 appealability. 7 VII. 8 In summary, it is concluded that the petition was untimely, 9 10 Petitioner has not made a substantial showing Accordingly, it will be Recommendations and that Petitioner has failed to state a claim cognizable in this proceeding. 11 Accordingly, it is RECOMMENDED that: 12 1) Respondent’s motion to dismiss the petition be GRANTED; 14 2) The petition be DISMISSED with prejudice; and 15 3) Petitioner’s motions for summary judgment, a copy of his 13 and 16 trial transcript, and to grant the petition be DISMISSED as moot; 17 and 18 19 4) The Court DECLINE to issue a certificate of appealability. 20 These findings and recommendations are submitted to the 21 United States District Court Judge assigned to the case, pursuant 22 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 23 the Local Rules of Practice for the United States District Court, 24 Eastern District of California. 25 being served with a copy, any party may file written objections 26 with the Court and serve a copy on all parties. 27 should be captioned “Objections to Magistrate Judge’s Findings 28 and Recommendations.” Within thirty (30) days after Such a document Replies to the objections shall be served 23 1 and filed within fourteen (14) days (plus three (3) days if 2 served by mail) after service of the objections. 3 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 4 636 (b)(1)(C). 5 objections within the specified time may waive the right to 6 appeal the District Court’s order. 7 1153 (9th Cir. 1991). The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 8 9 10 IT IS SO ORDERED. Dated: ie14hj June 23, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24
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