-SKO (HC) Brown v. Hartley, No. 1:2010cv01200 - Document 12 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS re: Respondent's 10 Motion to Dismiss the Petition; Findings and Recommendations to Dismiss the 1 Petition Without Leave to Amend; Findings and Recommendations to Decline to Issue a Certificate of Appealability and to Direct the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 6/23/11. Referred to Judge O'Neill. Objections Deadline: Thirty Days. (Gonzalez, R)
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-SKO (HC) Brown v. Hartley Doc. 12 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 CEDRICK RAY BROWN, 9 Petitioner, ) ) ) ) ) ) ) ) ) ) ) ) 10 v. 11 J. HARTLEY, Warden, 12 Respondent. 13 14 1:10-cv—01200-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS RE: RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 10, 1) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND (DOC. 1) FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO CLOSE THE CASE 15 OBJECTIONS DEADLINE: THIRTY (30) DAYS 16 17 Petitioner is a state prisoner proceeding pro se with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 19 The matter has been referred to the Magistrate Judge pursuant to 20 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending 21 before the Court is Respondent’s motion to dismiss the petition 22 filed on February 7, 2011. Petitioner filed opposition to the 23 motion on February 24, 2011. No reply was filed. 24 I. Proceeding by a Motion to Dismiss 25 Because the petition was filed after April 24, 1996, the 26 effective date of the Antiterrorism and Effective Death Penalty 27 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh 28 1 Dockets.Justia.com 1 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 2 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 3 A district court must award a writ of habeas corpus or issue 4 an order to show cause why it should not be granted unless it 5 appears from the application that the applicant is not entitled 6 thereto. 7 Section 2254 Cases in the United States District Courts (Habeas 8 Rules) permits the filing of “an answer, motion, or other 9 response,” and thus it authorizes the filing of a motion in lieu 28 U.S.C. § 2243. Rule 4 of the Rules Governing 10 of an answer in response to a petition. 11 Court broad discretion to take “other action the judge may 12 order,” including authorizing a respondent to make a motion to 13 dismiss based upon information furnished by respondent, which may 14 show that a petitioner’s claims suffer a procedural or 15 jurisdictional infirmity, such as res judicata, failure to 16 exhaust state remedies, or absence of custody. 17 Advisory Committee Notes, 1976 Adoption and 2004 Amendments. 18 Rule 4 confers upon the Habeas Rule 4, In light of the broad language of Rule 4, this circuit has 19 held that motions to dismiss are appropriate in cases that 20 proceed pursuant to 28 U.S.C. § 2254 and present procedural 21 issues that might limit consideration of the merits of the 22 petition. 23 (proceeding under Rule 4 to consider a motion to dismiss for 24 failure to raise any issue of federal law, which was based on the 25 insufficiency of the facts as alleged in the petition to justify 26 relief as a matter of law); White v. Lewis, 874 F.2d 599, 602-03 27 (9th Cir. 1989) (considering procedural default in state court on 28 a motion to dismiss); Hillery v. Pulley, 533 F.Supp. 1189, 1194 O’Bremski v. Maas, 915 F.2d 418, 420 (9th Cir. 1990) 2 1 n.12 (E.D.Cal. 1982) (finding it appropriate to consider failure 2 to exhaust state remedies on a motion to dismiss after receipt of 3 evidence pursuant to Rule 7(a) to clarify whether or not the 4 possible defect, not apparent on the face of the petition, might 5 preclude a hearing on the merits). 6 The filing of a motion to dismiss instead of an answer was 7 authorized by the Court’s order of December 7, 2010, which 8 referred to the possibility of Respondent’s filing a motion to 9 dismiss and set forth a briefing schedule if such a motion were 10 filed. 11 that the filing of a motion to dismiss is expressly authorized by 12 Habeas Rule 4. 13 Adoption and 2004 Amendments; Gutierrez v. Griggs, 695 F.2d 1195, 14 1198 (9th Cir. 1983). 15 (Order, doc. 4, 3-4.) It is established in this circuit Habeas Rule 4 Advisory Committee Notes, 1976 Further, Habeas Rule 7 permits the Court to direct the 16 parties to expand the record by submitting additional materials 17 relating to the petition and to authenticate such materials, 18 which may include letters predating the filing of the petition, 19 documents, exhibits, affidavits, and answers under oath to 20 written interrogatories propounded by the judge. 21 7(a), (b). 22 that a defect not apparent on the face of the petition may 23 preclude a hearing on the merits, the Court may proceed to 24 determine a motion to dismiss. 25 1189, 1196. 26 Habeas Rule If, upon expansion of the record, the Court perceives Hillery v. Pulley, 533 F.Supp. In Blackledge v. Allison, 431 U.S. 63, 80-81 (1977), the 27 United States Supreme Court suggested that summary judgment 28 standards should be used to test whether facially adequate 3 1 allegations have a sufficient basis in fact to warrant plenary 2 presentation of evidence. 3 record in a given case could demonstrate that an evidentiary 4 hearing is unnecessary. 5 advised that there might be cases in which expansion of the 6 record would provide evidence against a petitioner’s contentions 7 so overwhelming as to justify a conclusion that an allegation of 8 fact does not raise a substantial issue of fact. 9 circumstances, the petitioner is entitled to “careful The Court noted that expansion of the Id. at 81. The Court specifically Id. In such 10 consideration and plenary processing of (his claim,) including 11 full opportunity for presentation of the relevant facts.” 12 82-83. 13 Id. at Summary judgment standards were likewise applied in Hillery 14 v. Pulley, 533 F.Supp. 1189, 1197 (E.D.Cal. 1982), where the 15 Court stated: 16 17 18 19 20 21 22 23 24 The standards under Rule 56 are well known (footnote omitted). To paraphrase them for purposes of habeas proceedings, it may be said that a motion to dismiss a petition for habeas corpus made after expansion of the record may only be granted when the matters on file reveal that there is no genuine issue of material fact “which if resolved in accordance with the petitioner’s contentions would entitle him to relief... (citation omitted). Only if it appears from undisputed facts... that as a matter of law petitioner is entitled to discharge, or that as a matter of law he is not, may an evidentiary hearing be avoided.” (Citation omitted.) 533 F.Supp. 1197. In the present case, the record was expanded in connection 25 with the motion to dismiss to include facts concerning 26 Petitioner’s presentation of his claims to the state courts. 27 Pursuant to the foregoing standards, this expansion of the record 28 may permit summary disposition of the petition without a full 4 1 evidentiary hearing. 2 Accordingly, pursuant to Habeas Rule 4, the Court will 3 review the facts alleged in the petition and as reflected in the 4 evidentiary materials submitted by the parties in connection with 5 the motion to dismiss. 6 II. 7 Respondent argues that the petition should be dismissed Failure to Exhaust State Court Remedies 8 because Petitioner failed to exhaust his state court remedies 9 with respect to the claims raised in the petition. 10 A petitioner who is in state custody and wishes to challenge 11 collaterally a conviction by a petition for writ of habeas corpus 12 must exhaust state judicial remedies. 13 The exhaustion doctrine is based on comity to the state court and 14 gives the state court the initial opportunity to correct the 15 state's alleged constitutional deprivations. 16 Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 17 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 18 1988). 19 28 U.S.C. § 2254(b)(1). Coleman v. A petitioner can satisfy the exhaustion requirement by 20 providing the highest state court with the necessary jurisdiction 21 a full and fair opportunity to consider each claim before 22 presenting it to the federal court, and demonstrating that no 23 state remedy remains available. 24 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 25 1996). 26 was given a full and fair opportunity to hear a claim if the 27 petitioner has presented the highest state court with the claim's 28 factual and legal basis. Picard v. Connor, 404 U.S. 270, A federal court will find that the highest state court Duncan v. Henry, 513 U.S. 364, 365 5 1 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 2 (1992), superceded by statute as stated in Williams v. Taylor, 3 529 U.S. 362 (2000) (factual basis). 4 Additionally, the petitioner must have specifically told the 5 state court that he was raising a federal constitutional claim. 6 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 7 (9th Cir.2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v. 8 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 9 F.3d 1240, 1241 (9th Cir. 1998). 10 11 12 13 14 15 16 17 18 In Duncan, the United States Supreme Court reiterated the rule as follows: In Picard v. Connor, 404 U.S. 270, 275...(1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "'opportunity to pass upon and correct’ alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 19 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule 20 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 21 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 22 Cir. 2001), stating: 23 24 25 26 27 28 Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law. See, Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is "self-evident," Gatlin v. Madding, 6 1 2 3 4 5 6 7 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7... (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds, see, e.g., Hiivala v. Wood, 195 F.3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); Crotts, 73 F.3d at 865. ... In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is. 8 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as 9 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 10 2001). 11 Where none of a petitioner’s claims has been presented to 12 the highest state court as required by the exhaustion doctrine, 13 the Court must dismiss the petition. Raspberry v. Garcia, 448 14 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 15 481 (9th Cir. 2001). The authority of a court to hold a mixed 16 petition in abeyance pending exhaustion of the unexhausted claims 17 has not been extended to petitions that contain no exhausted 18 claims. Raspberry, 448 F.3d at 1154. 19 Here, Petitioner challenges the decision of California’s 20 Board of Parole Hearings (BPH) made after a hearing held on July 21 8, 2009, finding Petitioner unsuitable for parole. (Pet. 1, 9, 22 11, 27-30.) Respondent appended to the motion to dismiss 23 printouts of state court decisions and dockets to show that when 24 Respondent’s motion to dismiss was filed on February 7, 2011, 25 Petitioner had not filed a petition for review in the California 26 Supreme Court regarding the claims raised in the present 27 petition. 28 7 1 In response, Petitioner asked the Court to take judicial 2 notice of the Court’s characterization of Petitioner’s exhaustion 3 of state court remedies in a case previously pending in this 4 Court – namely, Cedric Brown v. J. Hartley, 1:10-cv-00652-LJO- 5 DLB-HC.1 6 2010, in that case reflect that Petitioner’s claims concerned the 7 alleged inconsistency of the BPH’s reasoning for denying 8 Petitioner parole at various parole consideration hearings from 9 1999 through 2007, and alleged unfairness in Petitioner’s 2007 The findings and recommendations filed on October 1, 10 parole hearing. 11 petition concerned other decisions of the BPH, a showing of 12 exhaustion of state court remedies with respect to Petitioner’s 13 previous claims does not serve to demonstrate exhaustion of state 14 remedies with respect to claims concerning a later hearing. 15 Petitioner has not provided any further evidence of exhaustion of 16 the pertinent claims. (Doc. 14, 1:20-25.) Because the previous 17 Because of the passage of time since the filing of the 18 pending motion to dismiss, the Court has reviewed and takes 19 judicial notice of the pendency of proceedings in state court by 20 viewing the website of the California Courts.2 21 second habeas corpus petition concerning the pertinent claims was Petitioner’s 22 23 24 1 The Court may take judicial notice of court records. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981). 25 2 26 27 28 The web address is http://www.courts.ca.gov/supremecourt/htm. The Court may take judicial notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, including undisputed information posted on official web sites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir. 2010). 8 1 filed in the California Court of Appeal, Fifth Appellate 2 District, in case no. F060850, and was denied on January 6, 2011. 3 Petitioner filed a petition for writ of habeas corpus in the 4 California Supreme Court on February 22, 2011, in case number 5 S190854. 6 refers to Petitioner’s claims concerning the 2009 parole 7 decision. 8 Supreme Court, this Court cannot be certain. 9 has been no showing that the claim concerning the 2009 hearing It is possible that this pending habeas proceeding However, without a copy of the petition filed in the In any event, there 10 was presented to the California Supreme Court or was ruled on by 11 the Court. 12 Although non-exhaustion of remedies has been viewed as an 13 affirmative defense, it is the petitioner’s burden to prove that 14 state judicial remedies were properly exhausted. 15 § 2254(b)(1)(A); Darr v. Burford, 339 U.S. 200, 218-19 (1950), 16 overruled in part on other grounds in Fay v. Noia, 372 U.S. 391 17 (1963); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981). 18 If available state court remedies have not been exhausted as to 19 all claims, a district court must dismiss a petition. 20 Lundy, 455 U.S. 509, 515-16 (1982). 21 28 U.S.C. Rose v. Here, Petitioner did not establish exhaustion of state court 22 remedies in the petition. 23 record of the state proceedings pending at the time the motion 24 was filed, the record did not show that Petitioner raised before 25 the state courts the challenges to the unsuitability finding that 26 he raises here. 27 Respondent’s motion, Petitioner has not taken the opportunity to 28 establish exhaustion. Although the Respondent provided the Further, although Petitioner was served with 9 1 The court, therefore, concludes that Petitioner has failed 2 to meet his burden to establish exhaustion of state court 3 remedies. 4 dismiss the petition for failure to exhaust state court remedies 5 be granted. Accordingly, it will be recommended that the motion to 6 III. 7 In an abundance of caution, and in light of what may be Failure to State a Cognizable Due Process Claim 8 ongoing attempts on the part of Petitioner to exhaust his state 9 court remedies, the Court will consider Respondent’s additional 10 contention that the claim raised by Petitioner is not cognizable 11 in a proceeding pursuant to 28 U.S.C. § 2254. 12 A. 13 Background In the petition, Petitioner alleged that he was a resident 14 of Avenal State Prison at Avenal, California, serving a sentence 15 of twenty-five (25) years to life for first degree murder. 16 1.) 17 support the BPH’s decision that Petitioner posed a danger if 18 released; thus, Petitioner’s rights under the Fourteenth 19 Amendment as well as the California Constitution were violated. 20 Petitioner argues that the BPH misused a 2008 psychological 21 report and appellate court narrative of the facts of the offense 22 that reflected Petitioner dragged the victim of a robbery or 23 otherwise intended harm to the victim. 24 the evidence actually supported a finding of suitability. 25 27, 6-31.) 26 (Pet. Petitioner contends that the record is devoid of evidence to Petitioner contends that (Pet. The transcript of the parole suitability hearing held on 27 July 8, 2009, was submitted by Respondent in connection with the 28 motion to dismiss. (Mot., Ex. 1, Doc. 10-1, 36-135.) 10 The 1 transcript reflects that Petitioner attended the hearing (doc. 2 10-1, 36, 132), received documents before the hearing and had an 3 opportunity to present documentary evidence (id. at 46-48), 4 addressed the BPH panel under oath with respect to multiple 5 parole suitability factors (id. at 49-123), and made a personal 6 statement in favor of parole (id. at 129-31). 7 Petitioner appeared at the hearing, advocated on Petitioner’s 8 behalf, and gave a closing statement in favor of Petitioner’s 9 suitability for release on parole. 10 11 An attorney for (Doc. 10-1, 36, 39, 50, 116, 125-29.) Further, Petitioner was present when the BPH announced its 12 reasons for denying parole for three years, which included the 13 commitment offense, Petitioner’s lack of insight and limited 14 sense of responsibility for his actions, his psychological 15 evaluation, and his criminal history. 16 132-34.) 17 B. (Mot., Ex. 1, doc. 10-1, Analysis 18 A district court may entertain a petition for a writ of 19 habeas corpus by a person in custody pursuant to the judgment of 20 a state court only on the ground that the custody is in violation 21 of the Constitution, laws, or treaties of the United States. 28 22 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 23 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 24 16 (2010) (per curiam). 25 The Supreme Court has characterized as reasonable the 26 decision of the Court of Appeals for the Ninth Circuit that 27 California law creates a liberty interest in parole protected by 28 the Fourteenth Amendment Due Process Clause, which in turn 11 1 requires fair procedures with respect to the liberty interest. 2 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 3 However, the procedures required for a parole determination 4 are the minimal requirements set forth in Greenholtz v. Inmates 5 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).3 6 Swarthout v. Cooke, 131 S.Ct. 859, 862. 7 rejected inmates’ claims that they were denied a liberty interest 8 because there was an absence of “some evidence” to support the 9 decision to deny parole. 10 11 12 13 14 15 16 17 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.) 18 Swarthout, 131 S.Ct. 859, 862. 19 petitioners had received the process that was due as follows: The Court concluded that the 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 2 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.... 3 4 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 5 Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly 6 noted that California’s “some evidence” rule is not a substantive 7 federal requirement, and correct application of California’s 8 “some evidence” standard is not required by the Federal Due 9 Process Clause. Id. at 862-63. 10 Here, Petitioner asks this Court to engage in the very type 11 of analysis foreclosed by Swarthout. Petitioner does not state 12 facts that point to a real possibility of constitutional error or 13 that otherwise would entitle Petitioner to habeas relief because 14 California’s “some evidence” requirement is not a substantive 15 federal requirement. Review of the record for “some evidence” to 16 support the denial of parole is not within the scope of this 17 Court’s habeas review under 28 U.S.C. § 2254. 18 Petitioner cites the California constitution and state 19 statutory and regulatory law concerning the parole process and 20 parole suitability factors. To the extent that Petitioner’s 21 claim or claims rest on state law, they are not cognizable on 22 federal habeas corpus. Federal habeas relief is not available to 23 retry a state issue that does not rise to the level of a federal 24 constitutional violation. Wilson v. Corcoran, 562 U.S. — , 131 25 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 26 (1991). Alleged errors in the application of state law are not 27 cognizable in federal habeas corpus. 28 13 Souch v. Schiavo, 289 F.3d 1 2 616, 623 (9th Cir. 2002). It thus appears that insofar as Petitioner attempts to state 3 a claim concerning the evidence based on the Due Process Clause 4 of the Fourteenth Amendment, Petitioner has failed to state a 5 claim that would entitle him to relief in this proceeding. 6 A petition for habeas corpus should not be dismissed without 7 leave to amend unless it appears that no tenable claim for relief 8 can be pleaded were such leave granted. 9 F.2d 13, 14 (9th Cir. 1971). 10 Jarvis v. Nelson, 440 Here, Petitioner did not claim that he lacked an opportunity 11 to be heard or a statement of reasons. 12 in the petition reveal that Petitioner attended the parole 13 suitability hearing, made statements to the BPH, and received a 14 statement of reasons for the decisions of the BPH and the 15 governor. 16 transcript of the hearing establish that he had an opportunity to 17 be heard and a statement of reasons for the decisions in 18 question. 19 state a tenable due process claim. 20 21 However, the allegations Thus, Petitioner’s own allegations and the undisputed It therefore does not appear that Petitioner could Accordingly, it will be recommended that Petitioner’s due process claim be dismissed without leave to amend. 22 IV. 23 Petitioner raises an ex post facto claim based on the BPH’s Ex Post Facto Claim 24 application of Marsy’s Law to Petitioner, which resulted in an 25 increase in the period between Petitioner’s parole suitability 26 hearings from one year, which had been ordered at a previous 27 parole hearing in 2008, to three years. 28 understands Petitioner’s mention of “Marsy’s Law” (pet. 11) to be 14 (Pet. 11-12.) The Court 1 a reference to California’s Proposition 9, the “Victims’ Bill of 2 Rights Act of 2008: Marsy’s Law,” which on November 4, 2008, 3 effected an amendment of Cal. Pen. Code § 3041.5(b)(3) that 4 resulted in a lengthening of the periods between parole 5 suitability hearings. 6 The Constitution provides, “No State shall... pass any... ex 7 post facto Law.” 8 Clause prohibits any law which: 1) makes an act done before the 9 passing of the law, which was innocent when done, criminal; 2) U.S. Const. art I, § 10. The Ex Post Facto 10 aggravates a crime and makes it greater than it was when it was 11 committed; 3) changes the punishment and inflicts a greater 12 punishment for the crime than when it was committed; or 4) alters 13 the legal rules of evidence and requires less or different 14 testimony to convict the defendant than was required at the time 15 the crime was committed. 16 (2000). 17 defendant violates the Ex Post Facto Clause if the new 18 regulations create a “sufficient risk” of increasing the 19 punishment for the defendant’s crimes. 20 F.3d 848, 854 (9th Cir. 2003) (citing Cal. Department of 21 Corrections v. Morales, 514 U.S. 499, 509 (1995)). 22 or statute does not by its own terms show a significant risk, the 23 respondent must demonstrate, by evidence drawn from the rule's 24 practical implementation by the agency charged with exercising 25 discretion, that its retroactive application will result in a 26 longer period of incarceration than under the earlier rule. 27 Garner v. Jones, 529 U.S. 244, 250, 255 (2000). 28 /// Carmell v. Texas, 529 U.S. 513, 522 Application of a state regulation retroactively to a 15 Himes v. Thompson, 336 When the rule 1 Previous amendments to Cal. Pen. Code § 3041.5, which 2 initiated longer periods of time between parole suitability 3 hearings, have been upheld against challenges that they violated 4 the Ex Post Facto Clause. 5 Corrections v. Morales, 514 U.S. 499, 509 (1995); 6 Estelle, 886 F.2d 1093, 1097-98 (9th Cir. 1989). 7 state law permitting the extension of intervals between parole 8 consideration hearings for all prisoners serving life sentences 9 from three to eight years does not violate the Ex Post Facto See, e.g., California Department of Watson v. Similarly, a 10 Clause where expedited parole review was available upon a change 11 of circumstances or receipt of new information warranting an 12 earlier review, and where there was no showing of increased 13 punishment. 14 circumstances, there was no significant risk of extending a 15 prisoner’s incarceration. 16 Garner v. Jones, 529 U.S. at 249. Under such Id. In Gilman v. Schwarzenegger, - F.3d -, No. 10-15471, 2011 WL 17 198435, at *2 (9th Cir. Jan. 24, 2011), the Ninth Circuit 18 reversed a grant of injunctive relief to plaintiffs in a class 19 action seeking to prevent the board from enforcing Proposition 20 9's amendments that defer parole consideration. 21 that the changes wrought by Proposition 9 were noted to be more 22 extensive than those before the Court in Morales and Garner; 23 however, advanced hearings, which would remove any possibility of 24 harm, were available upon a change in circumstances or new 25 information. 26 of facts in the record from which it might be inferred that 27 Proposition 9 created a significant risk of prolonging 28 Plaintiffs’ incarceration, the plaintiffs had not established a Id. at *6. The court noted The Court concluded that in the absence 16 1 likelihood of success on the merits on the ex post facto claim. 2 Id. at *8. 3 This Court may take judicial notice of court records. Fed. 4 R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 5 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 6 635 n.1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981). 7 The Court takes judicial notice of the docket and specified 8 orders in the class action pending in this district, Gilman v. 9 Fisher, 2:05-cv-00830-LKK-GGH, including the order granting 10 motion for class certification filed on March 4, 2009 (Doc. 182, 11 9:7-15), which indicates that the Gilman class is made up of 12 California state prisoners who 1) have been sentenced to a term 13 that includes life, 2) are serving sentences that include the 14 possibility of parole, 3) are eligible for parole, and 4) have 15 been denied parole on one or more occasions. 16 reflects that the Ninth Circuit affirmed the order certifying the 17 class. 18 of the order of March 4, 2009, in which the court described the 19 case as including challenges to Proposition 9's amendments to 20 Cal. Pen. Code § 3041.5 based on the Ex Post Facto Clause, and a 21 request for injunctive and declaratory relief against 22 implementation of the changes. 23 (Docs. 257, 258.) The docket further The Court also takes judicial notice (Doc. 182, 5-6.) Although Petitioner ultimately seeks release from custody 24 (pet. 31), resolution of Petitioner’s claim may well involve the 25 scheduling of Petitioner’s next suitability hearing and the 26 invalidation of state procedures used to deny parole suitability 27 – matters removed from the fact or duration of confinement. 28 types of claims have been held to be cognizable under 42 U.S.C. 17 Such 1 § 1983 as claims concerning conditions of confinement. 2 v. Dotson, 544 U.S. 74, 82 (2005). 3 the core of habeas corpus relief. 4 U.S. 475, 485-86 (1973); Nelson v. Campbell, 541 U.S. 637, 643 5 (2004); Muhammad v. Close, 540 U.S. 749, 750 (2004). 6 Wilkinson Thus, they may fall outside See, Preiser v. Rodriguez, 411 Further, the relief Petitioner requests overlaps with the 7 relief requested in the Gilman class action. 8 a member of a class action for equitable relief from prison 9 conditions may not maintain an individual suit for equitable A plaintiff who is 10 relief concerning the same subject matter. 11 F.2d 890, 891-92 (9th Cir. 1979). 12 efficient and orderly administration of justice for a court to 13 proceed with an action that would possibly conflict with or 14 interfere with the determination of relief in another pending 15 action, which is proceeding and in which the class has been 16 certified. 17 Crawford v. Bell, 599 It is contrary to the Here, Petitioner’s own allegations reflect that he qualifies 18 as a member of the class in Gilman. 19 jurisdiction over same subject matter and may grant the same 20 relief. 21 disposition of its cases with economy of time and effort for both 22 the court and the parties. 23 U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 24 (9th Cir. 1992). 25 this Court concludes that dismissal of Petitioner’s ex post facto 26 claim in this action is appropriate and necessary to avoid 27 interference with the orderly administration of justice. 28 Crawford v. Bell, 599 F.2d 890, 892-93; see Bryant v. Haviland, The court in Gilman has A court has inherent power to control its docket and the Landis v. North American Co., 299 In the exercise of its inherent discretion, 18 Cf., 1 2011 WL 23064, *2-*5 (E.D.Cal. Jan. 4, 2011). 2 A petition for habeas corpus should not be dismissed without 3 leave to amend unless it appears that no tenable claim for relief 4 can be pleaded were such leave granted. 5 F.2d 13, 14 (9th Cir. 1971). 6 petition and the pendency of the Gilman class action, amendment 7 of the petition with respect to the ex post facto claim would be 8 futile. 9 10 Jarvis v. Nelson, 440 In view of the allegations of the Accordingly, it will be recommended that Petitioner’s ex post facto claim be dismissed without leave to amend. 11 V. 12 Petitioner alleges very generally that he suffered a Eighth Amendment Violation 13 violation of his rights under the Fifth and Eighth Amendments of 14 the Constitution. 15 (Pet. 30-31.) The basis of Petitioner’s Fifth Amendment claim is 16 uncertain. 17 violated his Fifth Amendment rights. 18 allege any facts to support such a claim or to suggest that he 19 could allege a claim under the Fifth and Fourteenth Amendments. Petitioner concludes generally that the decision Petitioner has failed to 20 With respect to Petitioner’s claim under the Eighth 21 Amendment, there is an absence of focused, supportive factual 22 allegations. 23 the BPH’s repeated denials of parole were unfair and arbitrary, 24 it is assumed that Petitioner is alleging that the failure to 25 release Petitioner violated his Eighth Amendment rights. 26 However, in view of Petitioner’s assertions that It is established that there is no right under the 27 Constitution to be conditionally released before the expiration 28 of a valid sentence, and the states are under no duty to offer 19 1 parole to their prisoners. 2 S.Ct. 859, 862 (2011). 3 “grossly disproportionate” to the crime for which a defendant is 4 convicted may violate the Eighth Amendment. 5 538 U.S. 63, 72 (2003); Harmelin v. Michigan, 501 U.S. 957, 1001 6 (1991) (Kennedy, J., concurring); Rummel v. Estelle, 445 U.S. 7 263, 271 (1980). 8 Eighth Amendment prohibits only sentences that are extreme and 9 grossly disproportionate to the crime. Swarthout v. Cooke, 562 U.S. –, 131 However, a criminal sentence that is Lockyer v. Andrade, Outside of the capital punishment context, the United States v. Bland, 10 961 F.2d 123, 129 (9th Cir. 1992) (quoting Harmelin v. Michigan, 11 501 U.S. 957, 1001, (1991) (Kennedy, J., concurring)). 12 instances are 13 cases. 14 at 272. 15 not be considered cruel and unusual punishment under the Eighth 16 Amendment. 17 (9th Cir. 1998); United States v. McDougherty, 920 F.2d 569, 576 18 (9th Cir. 1990). 19 Such “exceedingly rare” and occur in only “extreme” Lockyer v. Andrade, 538 U.S. at 72-73; Rummel, 445 U.S. A sentence that does not exceed statutory maximums will See United States v. Mejia-Mesa, 153 F.3d 925, 930 Here, Petitioner was sentenced to twenty-five (25) years to 20 life for first degree murder in violation of Cal. Pen. Code § 21 187. 22 degree murder has been held not to be cruel and unusual 23 punishment under the Eighth Amendment. 24 971 F.2d 200, 211 (9th Cir. 1991). 25 for first degree felony murder has been held not to violate the 26 Eighth Amendment. 27 1978). 28 without parole for first degree murder has been held not to be (Pet. 38.) A sentence of life imprisonment for first United States v. LaFleur, Likewise, life imprisonment Guam v. Sablan, 584 F.2d 340, 341 (9th Cir. Even for a young offender, a mandatory sentence of life 20 1 grossly disproportionate. 2 (9th Cir. 1996). 3 Harris v. Wright, 93 F.3d 581, 585 Petitioner thus has not alleged facts showing that his 4 continued incarceration reflects or constitutes a grossly 5 disproportionate sentence. 6 pointing to a real possibility of Eighth and Fourteenth Amendment 7 error. 8 present in order for an Eighth Amendment claim to be stated, it 9 does not appear that Petitioner could state a tenable claim of Nor has Petitioner alleged facts Further, considering the extreme facts that must be 10 cruel and unusual punishment under the Eighth and Fourteenth 11 Amendments. 12 13 Accordingly, it will be recommended that Petitioner’s Fifth and Eighth Amendment claim be dismissed without leave to amend. 14 VI. 15 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 16 appealability, an appeal may not be taken to the Court of Appeals 17 from the final order in a habeas proceeding in which the 18 detention complained of arises out of process issued by a state 19 court. 20 U.S. 322, 336 (2003). 21 only if the applicant makes a substantial showing of the denial 22 of a constitutional right. 23 petitioner must show that reasonable jurists could debate whether 24 the petition should have been resolved in a different manner or 25 that the issues presented were adequate to deserve encouragement 26 to proceed further. 27 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 28 certificate should issue if the Petitioner shows that jurists of 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 21 A 1 reason would find it debatable whether the petition states a 2 valid claim of the denial of a constitutional right and that 3 jurists of reason would find it debatable whether the district 4 court was correct in any procedural ruling. 5 529 U.S. 473, 483-84 (2000). 6 Slack v. McDaniel, In determining this issue, a court conducts an overview of 7 the claims in the habeas petition, generally assesses their 8 merits, and determines whether the resolution was debatable among 9 jurists of reason or wrong. Id. It is necessary for an 10 applicant to show more than an absence of frivolity or the 11 existence of mere good faith; however, it is not necessary for an 12 applicant to show that the appeal will succeed. 13 Cockrell, 537 U.S. at 338. Miller-El v. 14 A district court must issue or deny a certificate of 15 appealability when it enters a final order adverse to the 16 applicant. Rule 11(a) of the Rules Governing Section 2254 Cases. 17 Here, it does not appear that reasonable jurists could 18 debate whether the motion or petition should have been evaluated 19 or resolved in a different manner. 20 substantial showing of the denial of a constitutional right. 21 Accordingly, it will be recommended that the Court decline to 22 issue a certificate of appealability. Petitioner has not made a 23 VII. 24 The Court concludes that Respondent’s motion to dismiss 25 Petitioner’s due process claim concerning the evidence should be 26 granted. 27 petition, because Petitioner has failed to state facts that would 28 entitle him to relief in a proceeding pursuant to 28 U.S.C. § Recommendations Further, with respect to the remaining claims in the 22 1 2254, the claims should be dismissed. 2 Accordingly, it is RECOMMENDED that: 3 1) Respondent’s motion to dismiss be GRANTED; and 4 2) The petition be DISMISSED without leave to amend; and 5 3) The Court DECLINE to issue a certificate of 6 appealability; and 7 8 4) The Clerk be DIRECTED to close the case because an order of dismissal would terminate the case in its entirety. 9 These findings and recommendations are submitted to the 10 United States District Court Judge assigned to the case, pursuant 11 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 12 the Local Rules of Practice for the United States District Court, 13 Eastern District of California. 14 being served with a copy, any party may file written objections 15 with the Court and serve a copy on all parties. 16 should be captioned “Objections to Magistrate Judge’s Findings 17 and Recommendations.” 18 and filed within fourteen (14) days (plus three (3) days if 19 served by mail) after service of the objections. 20 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 21 636 (b)(1)(C). 22 objections within the specified time may waive the right to 23 appeal the District Court’s order. 24 1153 (9th Cir. 1991). Within thirty (30) days after Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 25 26 IT IS SO ORDERED. 27 Dated: ie14hj June 23, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 28 23
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