-SMS (HC) Foster v. Harley, et al., No. 1:2010cv01683 - Document 15 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS RE: Respondent's Motion to Dismiss the Petition 12 , 1 , 2 ; FINDINGS and RECOMMENDATIONS to Dismiss the Petition Without Leave to Amend 1 , 2 , DISMISS Motion as Moot 10 , Decline to Issue a Certificate of App ealability, and Direct the Clerk to Close the Case, signed by Magistrate Judge Sandra M. Snyder on 6/17/11: Matter referred to Judge Ishii; Objections due within thirty (30) days of being served with the F&Rs, Reply due within fourteen (14) days (+3 days if served by mail) after service of the objections.(Hellings, J)
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-SMS (HC) Foster v. Harley, et al. Doc. 15 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 FEASTER FOSTER, 11 Petitioner, 12 v. 13 WARDEN JAMES D. HARLEY, 14 Respondent. 15 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01683-AWI-SMS-HC FINDINGS AND RECOMMENDATIONS RE: RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 12, 1, 2) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND (DOCS. 1, 2), DISMISS MOTION AS MOOT (DOC. 10), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE 17 18 Petitioner is a state prisoner proceeding pro se with a 19 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 The matter has been referred to the Magistrate Judge pursuant to 21 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 304. 22 the Court is the Respondent’s motion to dismiss the petition, 23 which was filed on March 23, 2011. 24 opposition on April 11, 2011. Pending before Petitioner filed an No reply was filed. 25 I. 26 Because the petition was filed after April 24, 1996, the Proceeding by a Motion to Dismiss 27 effective date of the Antiterrorism and Effective Death Penalty 28 Act of 1996 (AEDPA), the AEDPA applies to the petition. Lindh v. 1 Dockets.Justia.com 1 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 2 1484, 1499 (9th Cir. 1997). 3 A district court may entertain a petition for a writ of 4 habeas corpus by a person in custody pursuant to the judgment of 5 a state court only on the ground that the custody is in violation 6 of the Constitution, laws, or treaties of the United States. 7 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 8 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 9 16 (2010) (per curiam). 28 10 Rule 4 of the Rules Governing Section 2254 Cases in the 11 District Courts (Habeas Rules) allows a district court to dismiss 12 a petition if it “plainly appears from the face of the petition 13 and any exhibits annexed to it that the petitioner is not 14 entitled to relief in the district court....” 15 The Ninth Circuit has allowed respondents to file motions to 16 dismiss pursuant to Rule 4 instead of answers if the motion to 17 dismiss attacks the pleadings by claiming that the petitioner has 18 failed to exhaust state remedies or has violated the state’s 19 procedural rules. 20 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 21 a petition for failure to exhaust state remedies); White v. 22 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 23 review a motion to dismiss for state procedural default); Hillery 24 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). 25 Thus, a respondent may file a motion to dismiss after the Court 26 orders the respondent to respond, and the Court should use Rule 4 27 standards to review a motion to dismiss filed before a formal 28 answer. See, e.g., O’Bremski v. Maass, 915 F.2d 418, See, Hillery, 533 F. Supp. at 1194 & n.12. 2 1 In this case, upon being directed to respond to the petition 2 by way of answer or motion, Respondent filed the motion to 3 dismiss. 4 found in the pleadings and in copies of the official records of 5 state parole and judicial proceedings which have been provided by 6 the parties, and as to which there is no factual dispute. 7 Because Respondent's motion to dismiss is similar in The material facts pertinent to the motion are to be 8 procedural standing to motions to dismiss on procedural grounds, 9 the Court will review Respondent’s motion to dismiss pursuant to 10 its authority under Rule 4. 11 II. 12 Petitioner alleged in the petition that he was an inmate of Background 13 the Avenal State Prison at Avenal, California, serving a sentence 14 of fifteen (15) years to life imposed by the Fresno County 15 Superior Court on October 14, 1994, upon Petitioner’s conviction 16 of second degree murder in violation of Cal. Pen. Code § 187. 17 (Pet. 1, 7-9.) 18 California’s Board of Parole Hearings (BPH) made after a hearing 19 held on March 4, 2009, finding Petitioner unsuitable for release 20 on parole for three years. Petitioner challenges the decision of (Pet. 13.) 21 Petitioner raises the following claims in the petition: 22 the BPH’s decision that Petitioner posed a risk of danger to 23 society was not supported by some evidence and thus violated 24 Petitioner’s right to due process of law under the Fourteenth 25 Amendment; 2) application of Proposition 9 to impose a three-year 26 deferral of Petitioner’s next parole hearing violated the Ex Post 27 Facto Clause; 3) application of Proposition 9 to Petitioner to 28 impose a three-year deferral of Petitioner’s next parole 3 1) 1 suitability hearing violated Petitioner’s right to due process of 2 law under the Fourteenth Amendment by abrogating the terms of his 3 plea agreement; and 4) state court decisions upholding the BPH’s 4 determination failed to apply California’s “some evidence” 5 standard and constituted an unreasonable determination of the 6 facts in light of the evidence in the record. 7 (Pet. 12-13.) Petitioner alleges that at his initial parole consideration 8 hearing held on October 29, 2003, parole was denied for three (3) 9 years. Petitioner’s next parole suitability hearing was held on 10 December 19, 2006, and the BPH denied parole for two (2) years. 11 (Pet. 32.) 12 of this petition, parole was denied for three (3) years under 13 Proposition 9. 14 On March 4, 2009, at the hearing which is the subject (Id. at 33.) The transcript of the hearing held on March 4, 2009 (doc. 2, 15 134-223), which was submitted by Petitioner with the petition, 16 shows that Petitioner attended the hearing, was given an 17 opportunity to correct or clarify the record and submit 18 documentation, gave sworn testimony to the BPH regarding numerous 19 factors of parole suitability, and made a statement on his own 20 behalf. 21 allegations reflect that at the hearing, Petitioner received a 22 statement of the BPH’s reasons for finding that Petitioner 23 presented a danger to the public and thus was unsuitable for 24 parole. 25 Petitioner’s prior criminality, previous failures on grants of 26 probation and in juvenile hall, gang activity, drug and alcohol 27 use, dropping out of school, minimization of his offense, and 28 lack of insight. (Id. at 134, 137, 139, 141-208.) Petitioner’s The reasons included the commitment offense and (Pet. 34-35; doc. 2, 209-23.) 4 1 The Fresno County Superior Court denied Petitioner’s 2 petition for writ of habeas corpus on September 8, 2009, 3 reasoning that there was some evidence to support the BPH’s 4 findings concerning the commitment offense, Petitioner’s lack of 5 insight and remorse, and his minimization of the crime. 6 application of Proposition 9 had not increased Petitioner’s 7 sentence. 8 that his plea bargain contained any terms stating that he would 9 be entitled to a parole hearing every year; Petitioner had not Further, Finally, Petitioner had failed to allege facts showing 10 shown any effect of Proposition 9 on his plea bargain because 11 under previous law (Cal. Pen. Code § 3041.5), the BPH had the 12 discretion to deny parole for as much as five years. 13 54.) 14 (Pet. 51- The California Court of Appeal, Fifth Appellate District 15 denied Petitioner’s petition for writ of habeas corpus on 16 February 3, 2010, with citations to state court authority 17 concerning the application of the “some evidence” standard. 18 (Pet. 56.) 19 review on March 24, 2010. The California Supreme Court denied a petition for (Pet. 58.) 20 III. 21 Because the petition was filed after April 24, 1996, the Failure to State a Cognizable Due Process Claim 22 effective date of the Antiterrorism and Effective Death Penalty 23 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 24 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 25 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 26 A district court may entertain a petition for a writ of 27 habeas corpus by a person in custody pursuant to the judgment of 28 a state court only on the ground that the custody is in violation 5 Lindh 1 of the Constitution, laws, or treaties of the United States. 28 2 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 3 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 4 16 (2010) (per curiam). 5 The Supreme Court has characterized as reasonable the 6 decision of the Court of Appeals for the Ninth Circuit that 7 California law creates a liberty interest in parole protected by 8 the Fourteenth Amendment Due Process Clause, which in turn 9 requires fair procedures with respect to the liberty interest. 10 11 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). However, the procedures required for a parole determination 12 are the minimal requirements set forth in Greenholtz v. Inmates 13 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 14 Swarthout v. Cooke, 131 S.Ct. 859, 862. 15 rejected inmates’ claims that they were denied a liberty interest 16 because there was an absence of “some evidence” to support the 17 decision to deny parole. 18 19 In Swarthout, the Court The Court stated: There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty 20 1 21 22 23 24 25 26 27 28 In Greenholtz, the Court held that a formal hearing is not required with respect to a decision concerning granting or denying discretionary parole; it is sufficient to permit the inmate to have an opportunity to be heard and to be given a statement of reasons for the decision made. Id. at 16. The decision maker is not required to state the evidence relied upon in coming to the decision. Id. at 15-16. The Court reasoned that because there is no constitutional or inherent right of a convicted person to be released conditionally before expiration of a valid sentence, the liberty interest in discretionary parole is only conditional and thus differs from the liberty interest of a parolee. Id. at 9. Further, the discretionary decision to release one on parole does not involve restrospective factual determinations, as in disciplinary proceedings in prison; instead, it is generally more discretionary and predictive, and thus procedures designed to elicit specific facts are unnecessary. Id. at 13. In Greenholtz, the Court held that due process was satisfied where the inmate received a statement of reasons for the decision and had an effective opportunity to insure that the records being considered were his records, and to present any special considerations demonstrating why he was an appropriate candidate for parole. Id. at 15. 6 1 2 3 4 5 6 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.) 7 Swarthout, 131 S.Ct. 859, 862. The Court concluded that the 8 petitioners had received the process that was due as follows: 9 10 11 12 13 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. 14 Swarthout, 131 S.Ct. at 862. 15 noted that California’s “some evidence” rule is not a substantive 16 federal requirement, and correct application of California’s 17 “some evidence” standard is not required by the federal Due 18 Process Clause. 19 The Court in Swarthout expressly Id. at 862-63. Here, in seeking review of the application of California’s 20 “some evidence” standard, Petitioner asks this Court to engage in 21 the very type of analysis foreclosed by Swarthout. 22 does not state facts that point to a real possibility of 23 constitutional error or that otherwise would entitle Petitioner 24 to habeas relief because California’s “some evidence” requirement 25 is not a substantive federal requirement. 26 for “some evidence” to support the denial of parole is not within 27 the scope of this Court’s habeas review under 28 U.S.C. § 2254. 28 Petitioner Review of the record Petitioner cites state law concerning consideration of 7 1 parole suitability factors and the application of the “some 2 evidence” standard. 3 claims rest on state law, they are not cognizable on federal 4 habeas corpus. 5 state issue that does not rise to the level of a federal 6 constitutional violation. 7 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 8 (1991). 9 cognizable in federal habeas corpus. 10 To the extent that Petitioner’s claim or Federal habeas relief is not available to retry a Wilson v. Corcoran, 562 U.S. — , 131 Alleged errors in the application of state law are not Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). 11 Accordingly, it is concluded that Petitioner’s due process 12 claim concerning the evidence should be dismissed because it is 13 not cognizable in a proceeding pursuant to 28 U.S.C. § 2254. 14 A petition for habeas corpus should not be dismissed without 15 leave to amend unless it appears that no tenable claim for relief 16 can be pleaded were such leave granted. 17 F.2d 13, 14 (9th Cir. 1971). 18 Jarvis v. Nelson, 440 Here, Petitioner did not allege that at the parole hearing, 19 he lacked an opportunity to be heard or a statement of reasons. 20 Further, his own allegations and supporting documentation reflect 21 that Petitioner attended the parole suitability hearing, made 22 statements to the BPH, and received a statement of reasons for 23 the decision of the BPH. 24 establish that he had an opportunity to be heard and a statement 25 of reasons for the decision in question. 26 appear that Petitioner could state a tenable due process claim. 27 28 Thus, Petitioner’s own allegations It therefore does not Accordingly, it will be recommended that Petitioner’s due process claim concerning the evidence be dismissed without leave 8 1 2 to amend. Likewise, because Petitioner has not established a violation 3 by the parole authorities of his rights under the Fourteenth 4 Amendment, the decisions of the state courts upholding the BPH’s 5 decision could not have resulted in either 1) a decision that was 6 contrary to, or involved an unreasonable application of, clearly 7 established federal law, as determined by the Supreme Court of 8 the United States; or 2) a decision that was based on an 9 unreasonable determination of the facts in light of the evidence 10 presented in the state court proceedings. 11 Petitioner argues that the BPH or state courts made an 12 unreasonable determination of the facts in light of the evidence 13 presented at the parole hearing, Petitioner is challenging the 14 application of the “some evidence” standard and thus does not 15 state a cognizable claim for relief. Further, insofar as 16 The Court concludes that Petitioner has failed to state 17 facts concerning the state court decisions that would entitle him 18 to relief. 19 due process claim with respect to the state court decisions 20 should likewise be dismissed without leave to amend. 21 22 IV. See, 28 U.S.C. § 2254(d). Therefore, Petitioner’s Ex Post Facto Claim Petitioner was sentenced in 1994. Petitioner raises an ex 23 post facto claim because the BPH applied to Petitioner’s case 24 California’s Proposition 9, the “Victims’ Bill of Rights Act of 25 2008: Marsy’s Law,” which on November 4, 2008, effected an 26 amendment of Cal. Pen. Code § 3041.5(b)(3) that resulted in 27 lengthening the periods between parole suitability hearings. 28 The Constitution provides, “No State shall... pass any... ex 9 1 post facto Law.” 2 Clause prohibits any law which: 1) makes an act done before the 3 passing of the law, which was innocent when done, criminal; 2) 4 aggravates a crime and makes it greater than it was when it was 5 committed; 3) changes the punishment and inflicts a greater 6 punishment for the crime than when it was committed; or 4) alters 7 the legal rules of evidence and requires less or different 8 testimony to convict the defendant than was required at the time 9 the crime was committed. U.S. Const. art I, § 10. The Ex Post Facto Carmell v. Texas, 529 U.S. 513, 522 10 (2000). 11 defendant violates the Ex Post Facto Clause if the new 12 regulations create a “sufficient risk” of increasing the 13 punishment for the defendant’s crimes. 14 F.3d 848, 854 (9th Cir. 2003) (citing Cal. Department of 15 Corrections v. Morales, 514 U.S. 499, 509 (1995)). 16 or statute does not by its own terms show a significant risk, the 17 respondent must demonstrate, by evidence drawn from the rule's 18 practical implementation by the agency charged with exercising 19 discretion, that its retroactive application will result in a 20 longer period of incarceration than under the earlier rule. 21 Garner v. Jones, 529 U.S. 244, 250, 255 (2000). 22 Application of a state regulation retroactively to a Himes v. Thompson, 336 When the rule Previous amendments to Cal. Pen. Code § 3041.5, which 23 initiated longer periods of time between parole suitability 24 hearings, have been upheld against challenges that they violated 25 the Ex Post Facto Clause. 26 Corrections v. Morales, 514 U.S. 499, 509 (1995); 27 Estelle, 886 F.2d 1093, 1097-98 (9th Cir. 1989). 28 has been held that a state law permitting the extension of See, e.g., California Department of 10 Watson v. Similarly, it 1 intervals between parole consideration hearings for all prisoners 2 serving life sentences from three to eight years did not violate 3 the Ex Post Facto Clause where expedited parole review was 4 available upon a change of circumstances or receipt of new 5 information warranting an earlier review, and where there was no 6 showing of increased punishment. 7 was no significant risk of extending a prisoner’s incarceration. 8 Garner v. Jones, 529 U.S. at 249. 9 Under such circumstances, there In Gilman v. Schwarzenegger, - F.3d -, No. 10-15471, 2011 WL 10 198435, at *2 (9th Cir. Jan. 24, 2011), the Ninth Circuit 11 reversed a grant of injunctive relief to plaintiffs in a class 12 action seeking to prevent the board from enforcing Proposition 13 9's amendments that defer parole consideration. 14 that the changes wrought by Proposition 9 were noted to be more 15 extensive than those before the Court in Morales and Garner; 16 however, advanced hearings, which would remove any possibility of 17 harm, were available upon a change in circumstances or new 18 information. 19 of facts in the record from which it might be inferred that 20 Proposition 9 created a significant risk of prolonging 21 Plaintiffs’ incarceration, the plaintiffs had not established a 22 likelihood of success on the merits on the ex post facto claim. 23 Id. at *8. 24 Id. at *6. The court noted The Court concluded that in the absence This Court may take judicial notice of court records. Fed. 25 R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 26 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 27 635 n.1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981). 28 The Court takes judicial notice of the docket and specified 11 1 orders in the class action pending in this district, Gilman v. 2 Fisher, 2:05-cv-00830-LKK-GGH, including the order granting 3 motion for class certification filed on March 4, 2009 (Doc. 182, 4 9:7-15), which indicates that the Gilman class is made up of 5 California state prisoners who 1) have been sentenced to a term 6 that includes life, 2) are serving sentences that include the 7 possibility of parole, 3) are eligible for parole, and 4) have 8 been denied parole on one or more occasions. 9 reflects that the Ninth Circuit affirmed the order certifying the The docket further 10 class. 11 of the order of March 4, 2009, in which the court described the 12 case as including challenges to Proposition 9's amendments to 13 Cal. Pen. Code § 3041.5 based on the Ex Post Facto Clause, and a 14 request for injunctive and declaratory relief against 15 implementation of the changes. 16 (Docs. 257, 258.) The Court also takes judicial notice (Doc. 182, 5-6.) Here, resolution of Petitioner’s claim might well involve 17 the scheduling of Petitioner’s next suitability hearing and the 18 invalidation of state procedures used to deny parole suitability, 19 matters removed from the fact or duration of confinement. 20 types of claims have been held to be cognizable under 42 U.S.C. 21 § 1983 as claims concerning conditions of confinement. 22 v. Dotson, 544 U.S. 74, 82 (2005). 23 the core of habeas corpus relief. 24 U.S. 475, 485-86 (1973); Nelson v. Campbell, 541 U.S. 637, 643 25 (2004); Muhammad v. Close, 540 U.S. 749, 750 (2004). 26 Such Wilkinson Thus, they may fall outside See, Preiser v. Rodriguez, 411 Further, the relief Petitioner requests overlaps with the 27 relief requested in the Gilman class action. 28 that a plaintiff who is a member of a class action for equitable 12 It is established 1 relief from prison conditions may not maintain an individual suit 2 for equitable relief concerning the same subject matter. 3 Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979). 4 because it is contrary to the efficient and orderly 5 administration of justice for a court to proceed with an action 6 that would possibly conflict with or interfere with the 7 determination of relief in another pending action, which is 8 proceeding and in which the class has been certified. 9 This is Here, Petitioner’s own allegations reflect that he qualifies 10 as a member of the class in Gilman. 11 jurisdiction over same subject matter and may grant the same 12 relief. 13 disposition of its cases with economy of time and effort for both 14 the court and the parties. 15 U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 16 (9th Cir. 1992). 17 this Court concludes that dismissal of Petitioner’s ex post facto 18 claim in this action is appropriate and necessary to avoid 19 interference with the orderly administration of justice. 20 Crawford v. Bell, 599 F.2d 890, 892-93; see Bryant v. Haviland, 21 2011 WL 23064, *2-*5 (E.D.Cal. Jan. 4, 2011). 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, Cf., 22 A petition for habeas corpus should not be dismissed without 23 leave to amend unless it appears that no tenable claim for relief 24 can be pleaded were such leave granted. 25 F.2d 13, 14 (9th Cir. 1971). 26 petition and the pendency of the Gilman class action, amendment 27 of the petition with respect to the ex post facto claim would be 28 futile. Jarvis v. Nelson, 440 In view of the allegations of the 13 1 2 Accordingly, it will be recommended that Petitioner’s ex post facto claim be dismissed without leave to amend. 3 V. 4 Petitioner argues that the application of Proposition 9 Due Process Claim concerning Petitioner’s Plea Bargain 5 violated his plea bargain because with respect to his plea, he 6 understood from a conversation with his counsel in the presence 7 of the prosecutor that he would be considered for parole every 8 year or every three (3) years. 9 presence of the prosecutor, he was informed by his defense Petitioner declared that in the 10 attorney that he would go to prison, would be going before the 11 parole board every one (1) or three (3) years, and would be 12 paroled after service of the minimum term, provided he did not 13 get into any trouble, and he educated himself. 14 Petitioner alleged that he had been charged with felony murder, 15 and counsel’s “articulation” induced him to accept a plea to 16 second degree murder. 17 for the statement, he would not have “entered such a deal....” 18 (Pet., doc. 2, 228.) 19 on September 16, 1994, reflect that a second count was dismissed, 20 and an enhancement was stricken. 21 (Id. at 46-47, 49.) (Pet. 45-46.) If it had not been Minutes of the change of plea hearing held (Pet., doc. 2, 6.) A criminal defendant has a due process right to enforce the 22 terms of his plea agreement. 23 plea agreement must be fulfilled if they are significant 24 inducements to enter into a plea. 25 U.S. 257, 262 (1971); Buckley v. Terhune, 441 F.3d 688, 694 (9th 26 Cir. 2006). 27 measured by contract law standards. 28 Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993). Promises from the prosecution in a Santobello v. New York, 404 Plea agreements are contractual in nature and are 14 United States v. De la In construing a plea 1 agreement, a court must determine what the defendant reasonably 2 believed to be the terms of the plea agreement at the time of the 3 plea. 4 2002). 5 United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir. The construction of a state court plea agreement is a matter 6 of state law, and federal courts will defer to a state court’s 7 reasonable construction of a plea agreement. 8 Adamson, 483 U.S. 1, 6 n.3 (1987); 9 688, 695 (9th Cir. 2006). Ricketts v. Buckley v. Terhune, 441 F.3d In California, a negotiated plea 10 agreement is a form of contract and is interpreted according to 11 general contract principles and according to the same rules as 12 other contracts. 13 People v. Shelton, 37 Cal.4th 759, 767 (2006) and People v. 14 Toscano, 124 Cal.App.4th 340, 344 (2004)). 15 Buckley v. Terhune, 441 F.3d 688, 695 (citing In California, the plain meaning of an agreement’s language 16 must first be considered. 17 be interpreted by ascertaining the objectively reasonable 18 expectations of the promisee at the time the contract was made. 19 Buckley v. Terhune, 441 F.3d 688, 695 (9th Cir. 2006). 20 ambiguity remains after a court considers the objective 21 manifestations of the parties’ intent, then the language of the 22 contract should be interpreted most strongly against the party 23 who caused the uncertainty to exist, or in favor of the 24 defendant. If the language is ambiguous, it must If Id. at 695-96. 25 Respondent argues that Petitioner has failed to provide 26 proof or documentation of the terms of his plea agreement; thus, 27 he has not stated a claim for relief. 28 documentation, Petitioner does not set forth specific allegations 15 In addition to a lack of 1 that the plea agreement itself contained a term conditioning the 2 change of plea on consideration of parole suitability at stated 3 periods or intervals. 4 Notice pleading is not sufficient for petitions for habeas 5 corpus; rather, the petition must state facts that point to a 6 real possibility of constitutional error. 7 Advisory Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915 8 F.2d 418, 420 (9th Cir. 1990) (quoting Blackledge v. Allison, 431 9 U.S. 63, 75 n.7 (1977)). Habeas Rule 4, Allegations in a petition that are 10 vague, conclusional, or palpably incredible, and that are 11 unsupported by a statement of specific facts, are insufficient to 12 warrant relief and are subject to summary dismissal. 13 Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); James v. Borg, 24 14 F.3d 20, 26 (9th Cir. 1994). 15 Jones v. Here, an understanding based on a conversation with counsel 16 is not necessarily objectively reasonable in light of advisements 17 and colloquies that normally occur at later, formal proceedings 18 upon the change of plea. 19 concerning the likelihood of discretionary release on parole in 20 the future do not amount to specific promises that will be 21 enforced. 22 Mere predictions or speculation More fundamentally, with respect to Petitioner’s several 23 parole suitability hearings, the Court notes that according to 24 Petitioner’s own allegations, Petitioner received denials of 25 parole for three, two, and three years, respectively. 26 33.) 27 time the plea was entered is that Petitioner understood that he 28 would be considered for parole every one or three years. (Pet. 32- The allegation concerning Petitioner’s understanding at the 16 1 A habeas petitioner must allege facts that show that he was 2 prejudiced by an alleged constitutional violation. 3 Cardwell, 604 F.2d 1245, 1247 (9th Cir. 1979); cf., Brecht v. 4 Abrahamson, 507 U.S. 619, 637 (1993) (determining that habeas 5 relief is warranted when an error resulted in actual prejudice, 6 or had a substantial and injurious effect or influence in 7 determining the jury’s verdict). 8 that Petitioner’s understanding that he would receive parole 9 suitability consideration every three years was predicated on the Wacht v. Here, even if it were assumed 10 express terms of a plea agreement, Petitioner has not shown that 11 he suffered any prejudice from the application of Proposition 9 12 to his case at the parole proceedings in 2009. 13 parole hearings did not exceed three years. 14 state trial court noted, even before Petitioner was sentenced in 15 1994, Cal. Pen. Code § 3041.5(b)(2) permitted deferring 16 consideration of parole suitability for two, three, or five years 17 under various circumstances. 18 The time between Further, as the 1990 Cal. Stat. ch. 1053, § 1. In view of the foregoing analysis, it is not logically 19 possible that Petitioner could allege facts showing that the 20 BPH’s denial of parole for three years constituted a prejudicial 21 denial of due process of law in violation of his plea agreement. 22 Accordingly, it will be recommended that insofar as 23 Petitioner alleges a due process claim in connection with his 24 plea agreement, the petition be dismissed without leave to amend. 25 VI. 26 On January 24, 2011, Petitioner filed a document entitled, Petitioner’s Motion for an Order to Show Cause 27 “MOTION FOR ORDER TO SHOW CAUSE,” in which he requested that the 28 Court require the Respondent to answer the petition. 17 However, on 1 that date the Court directed Respondent to file a response to the 2 petition by way of answer or motion. 3 4 (Doc. 7.) Accordingly, it will be recommended that Petitioner’s motion be dismissed as moot. 5 VII. 6 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 7 appealability, an appeal may not be taken to the Court of Appeals 8 from the final order in a habeas proceeding in which the 9 detention complained of arises out of process issued by a state 10 court. 11 U.S. 322, 336 (2003). 12 only if the applicant makes a substantial showing of the denial 13 of a constitutional right. 14 petitioner must show that reasonable jurists could debate whether 15 the petition should have been resolved in a different manner or 16 that the issues presented were adequate to deserve encouragement 17 to proceed further. 18 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 19 certificate should issue if the Petitioner shows that jurists of 20 reason would find it debatable whether the petition states a 21 valid claim of the denial of a constitutional right and that 22 jurists of reason would find it debatable whether the district 23 court was correct in any procedural ruling. 24 529 U.S. 473, 483-84 (2000). 25 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 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 26 the claims in the habeas petition, generally assesses their 27 merits, and determines whether the resolution was debatable among 28 jurists of reason or wrong. Id. 18 It is necessary for an 1 applicant to show more than an absence of frivolity or the 2 existence of mere good faith; however, it is not necessary for an 3 applicant to show that the appeal will succeed. 4 Cockrell, 537 U.S. at 338. Miller-El v. 5 A district court must issue or deny a certificate of 6 appealability when it enters a final order adverse to the 7 applicant. 8 9 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could debate whether the petition should have been resolved in a 10 different manner. 11 of the denial of a constitutional right. 12 13 Petitioner has not made a substantial showing Accordingly, it will be recommended that the Court decline to issue a certificate of appealability. 14 VII. 15 Accordingly, it is RECOMMENDED that: 16 1) Respondent’s motion to dismiss the petition be GRANTED; 2) The petition for writ of habeas corpus be DISMISSED 17 18 19 20 21 22 23 24 Recommendations and without leave to amend; and 3) Petitioner’s motion for an order to show cause be DISMISSED as moot; and 4) The Court DECLINE to issue a certificate of appealability; and 5) The clerk be DIRECTED to close the case because an order 25 of dismissal would terminate the proceeding in its entirety. 26 These findings and recommendations are submitted to the 27 United States District Court Judge assigned to the case, pursuant 28 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 19 1 the Local Rules of Practice for the United States District Court, 2 Eastern District of California. 3 being served with a copy, any party may file written objections 4 with the Court and serve a copy on all parties. 5 should be captioned “Objections to Magistrate Judge’s Findings 6 and Recommendations.” 7 and filed within fourteen (14) days (plus three (3) days if 8 served by mail) after service of the objections. 9 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § Within thirty (30) days after Such a document Replies to the objections shall be served The Court will 10 636 (b)(1)(C). 11 objections within the specified time may waive the right to 12 appeal the District Court’s order. 13 1153 (9th Cir. 1991). The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 14 15 IT IS SO ORDERED. 16 Dated: icido3 June 17, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 20
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