(HC) Schuster v. Clark, No. 1:2010cv01983 - Document 14 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Grant Respondent's 10 MOTION to DISMISS the Petition; FINDINGS and RECOMMENDATION to Dismiss the 1 Petition Without Leave to Amend, 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 5/31/2011, referred to Judge Ishii. Objections to F&R due by 7/5/2011. (Marrujo, C)
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(HC) Schuster v. Clark Doc. 14 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 THOMAS C. SCHUSTER, 11 Petitioner, 12 13 14 v. KEN CLARK, Warden, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01983-AWI-SKO-HC FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 10, 1) FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND, TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND TO DIRECT THE CLERK TO CLOSE THE CASE 17 18 Petitioner is a state prisoner proceeding pro se and in 19 forma pauperis with a petition for writ of habeas corpus pursuant 20 to 28 U.S.C. § 2254. 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 22 Rules 302 and 304. 23 motion to dismiss the petition filed on January 28, 2011. 24 February 7, 2011, Petitioner filed objections, which were deemed 25 to be his opposition to the motion. 26 reply. The matter has been referred to the Pending before the Court is Respondent’s On Respondent did not file a 27 I. 28 Because the petition was filed after April 24, 1996, the Proceeding pursuant to Respondent’s Motion to Dismiss 1 Dockets.Justia.com 1 effective date of the Antiterrorism and Effective Death Penalty 2 Act of 1996 (AEDPA), the AEDPA applies to the petition. 3 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 4 1484, 1499 (9th Cir. 1997). Lindh v. 5 A district court may entertain a petition for a writ of 6 habeas corpus by a person in custody pursuant to the judgment of 7 a state court only on the ground that the custody is in violation 8 of the Constitution, laws, or treaties of the United States. 9 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 10 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 11 16 (2010) (per curiam). 12 28 Rule 4 of the Rules Governing Section 2254 Cases (Habeas 13 Rules) allows a district court to dismiss a petition if it 14 “plainly appears from the face of the petition and any exhibits 15 annexed to it that the petitioner is not entitled to relief in 16 the district court....” 17 The Ninth Circuit has allowed respondents to file motions to 18 dismiss pursuant to Rule 4 instead of answers if the motion to 19 dismiss attacks the pleadings by claiming that the petitioner has 20 failed to exhaust state remedies or has violated the state’s 21 procedural rules. 22 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss 23 a petition for failure to exhaust state remedies); White v. 24 Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to 25 review a motion to dismiss for state procedural default); Hillery 26 v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same). 27 Thus, a respondent may file a motion to dismiss after the Court 28 orders the respondent to respond, and the Court should use Rule 4 See, e.g., O’Bremski v. Maass, 915 F.2d 418, 2 1 standards to review a motion to dismiss filed before a formal 2 answer. 3 See, Hillery, 533 F. Supp. at 1194 & n.12. In this case, upon being directed to respond to the petition 4 by way of answer or motion, Respondent filed the motion to 5 dismiss. 6 contained in the pleadings and in copies of the official records 7 of state parole and judicial proceedings which have been provided 8 by the parties, and as to which there is no factual dispute. 9 Because Respondent's motion to dismiss is similar in procedural 10 standing to motions to dismiss on procedural grounds, the Court 11 will review Respondent’s motion to dismiss pursuant to its 12 authority under Rule 4. The material facts pertinent to the motion are 13 II. 14 In the verified petition, Petitioner alleges that he is an Background 15 inmate of the California Substance Abuse Treatment Facility 16 (CSATF) at Corcoran, California, serving a sentence of seventeen 17 (17) years to life imposed by the San Bernardino County Superior 18 Court upon Petitioner’s conviction in November 1989 of second 19 degree murder with use of a firearm in violation of Cal. Pen. 20 Code §§ 187 and 12022.5. 21 (Pet. 1.) Petitioner challenges the decision of California’s Board of 22 Parole Hearings (BPH) made after a hearing held on January 30, 23 2009, finding Petitioner unsuitable for parole and denying parole 24 for three years. 25 BPH’s miscellaneous decision to schedule Petitioner’s next parole 26 hearing in one year instead of three years, and the decisions of 27 the state courts upholding the BPH’s denial of parole. 28 (Pet. 4, 10, 135.) He also challenges the Petitioner submitted with his petition the transcript of 3 1 Petitioner’s parole hearing held on January 30, 2009. 2 154.) 3 hearing (pet. 61, 63), received all pertinent documents before 4 the hearing and had an opportunity to correct or clarify anything 5 in his records (pet. 66, 68), discussed various factors of parole 6 suitability with the board (pet. 69-120), and declined to give a 7 personal statement in his own behalf (pet. 131). 8 appeared on Petitioner’s behalf and made a statement in favor of 9 parole. (Pet. 61- The transcript reflects that Petitioner attended the An attorney (Pet. 61, 67-68, 103, 124-31.) 10 Petitioner was also present when the BPH stated its reasons 11 for concluding that Petitioner posed a present risk of danger to 12 society and a threat to public safety if released, which included 13 the commitment offense that BPH characterized as cold-blooded; 14 Petitioner’s prior criminality; his minimization of his role in 15 the offense and lack of insight; his lack of credibility in 16 describing the commitment offense; and the prosecutor’s 17 opposition to Petitioner’s release. 18 (Pet. 135-53.) Petitioner further complains of action taken by the BPH on 19 April 20, 2009, modifying from three years to one year the period 20 of time before another parole hearing would be held. 21 36, 57-60). 22 the commitment offense had been carried out in a dispassionate 23 and calculated manner; Petitioner’s insistence that the victim 24 had threatened him and was pulling a knife when Petitioner fired 25 his shotgun; and Petitioner’s failure to understand the nature 26 and magnitude of his offense and to demonstrate insight and 27 remorse. 28 decision, the BPH relied on factors that had not been the subject (Pet. 35- In that decision, the BPH relied on the following: (Pet. 58-59.) Petitioner argues that in the modified 4 1 of findings at the principal parole hearing held in January. 2 Further, he argues that there is an absence of some evidence in 3 the record to support the findings that the offense was carried 4 out in a dispassionate and calculated manner and that Petitioner 5 failed to demonstrate insight or remorse. 6 Petitioner cites state case law to support his arguments. 7 Petitioner argues that pursuant to Cal. Code of Regs., tit. 15, 8 § 2041(h), Petitioner and his appointed attorney should have been 9 given an opportunity to respond in writing before the 10 (Pet. 36-39.) miscellaneous decision became final. 11 In his opposition, Petitioner admitted that he was given an 12 opportunity to be heard at his parole hearing but denies that he 13 was given a valid statement of reasons for the decision. 14 Petitioner argues that the BPH’s recitation of standardized 15 suitability factors and rote statement of the facts of the crime 16 were insufficient reasons according to state court decisions 17 concerning the appropriate application of the parole laws. (Doc. 18 11, 1-2.) 19 Petitioner lists the following claims in the petition: 1) 20 there was no record evidence of current dangerousness before the 21 BPH, and thus its finding of unsuitability was not supported by 22 some evidence; 2) the BPH’s reliance on unchanging factors was 23 insufficient because the evidence was stale and unreliable; 3) 24 the use of facts not found by a jury or admitted to by Petitioner 25 violates Petitioner’s understanding of his plea agreement; and 4) 26 the state courts’ rulings affirming the BPH’s decision were 27 unreasonable determinations of the facts in light of the 28 evidence. (Pet. 4-5.) The Court notes that Petitioner also 5 1 appears to allege in his third claim that the BPH’s reliance on 2 facts not admitted by Petitioner in his guilty plea or found by a 3 jury violated his rights to due process under Apprendi v. New 4 Jersey, 530 U.S. 466 (2000). 5 6 7 (Pet. 33-35.) Petitioner seeks an evidentiary hearing and an order directing his release from custody. III. (Pet. 42-43.) Failure to State a Cognizable Due Process Claim concerning the Evidence 8 The Supreme Court has characterized as reasonable the 9 decision of the Court of Appeals for the Ninth Circuit that 10 California law creates a liberty interest in parole protected by 11 the Fourteenth Amendment Due Process Clause, which in turn 12 requires fair procedures with respect to the liberty interest. 13 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 14 However, the procedures required for a parole determination 15 do not include the full panoply of rights available to a person 16 facing criminal charges. Instead, the procedures required for 17 discretionary parole suitability proceedings are the minimal 18 requirements set forth in Greenholtz v. Inmates of Neb. Penal and 19 Correctional Complex, 442 U.S. 1, 12 (1979).1 Swarthout v. 20 21 22 23 24 25 26 27 28 1 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 6 1 Cooke, 131 S.Ct. 859, 862. 2 inmates’ claims that they were denied a liberty interest because 3 there was an absence of “some evidence” to support the decision 4 to deny parole. 5 6 7 8 9 10 11 12 In Swarthout, the Court rejected 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.) 13 Swarthout, 131 S.Ct. 859, 862. 14 petitioners had received the process that was due as follows: 15 16 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.... 17 18 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 19 Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly 20 noted that California’s “some evidence” rule is not a substantive 21 federal requirement, and correct application of California’s 22 “some evidence” standard is not required by the Federal Due 23 Process Clause. Id. at 862-63. 24 Here, in his first and second claims, Petitioner argues that 25 there was a lack of some evidence to support the BPH’s finding of 26 unsuitability. Thus, in these claims, Petitioner asks this Court 27 28 demonstrating why he was an appropriate candidate for parole. 7 Id. at 15. 1 to engage in the very type of analysis foreclosed by Swarthout. 2 Petitioner does not state facts that point to a real possibility 3 of constitutional error or that otherwise would entitle 4 Petitioner to habeas relief because California’s “some evidence” 5 requirement is not a substantive federal requirement. 6 the record for “some evidence” to support the denial of parole is 7 not within the scope of this Court’s habeas review under 28 8 U.S.C. § 2254. Review of 9 Petitioner cites state law concerning the granting of 10 parole, the procedures to be followed in connection with parole 11 applications, and the appropriate weight to be given to evidence 12 concerning factors of parole suitability. 13 Petitioner’s claim or claims rest on state law, they are not 14 cognizable on federal habeas corpus. 15 not available to retry a state issue that does not rise to the 16 level of a federal constitutional violation. 17 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 18 U.S. 62, 67-68 (1991). 19 state law are not cognizable in federal habeas corpus. 20 Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). 21 To the extent that Federal habeas relief is Wilson v. Corcoran, Alleged errors in the application of Souch v. Petitioner complains of the absence of some evidence to 22 support the BPH’s later modification of the decision to shorten 23 the time before Petitioner’s next suitability hearing. 24 respect, Petitioner raises the same types of non-cognizable 25 claims, namely, arguments concerning the weight given to the 26 evidence and the sufficiency of the evidence to support the BPH’s 27 decision. 28 evidence” to support the BPH’s decision. In this These claims concern whether or not there was “some 8 They are subject to 1 dismissal for the same reasons as those supporting dismissal of 2 the claims concerning the evidence supporting the BPH’s initial 3 decision. 4 prejudice from the later decision. Further, Petitioner does not show that he suffered any 5 A petition for habeas corpus should not be dismissed without 6 leave to amend unless it appears that no tenable claim for relief 7 can be pleaded were such leave granted. 8 F.2d 13, 14 (9th Cir. 1971). 9 allegations in the petition that Petitioner attended the parole Jarvis v. Nelson, 440 Here, it is apparent from the 10 suitability hearing and spoke with the commissioners; he thus had 11 an opportunity to be heard. 12 reasons for the decision of the BPH. 13 allegations and documentation establish that he received all 14 process that was due. 15 Petitioner could state a tenable due process claim. 16 Further, he received a statement of Thus, Petitioner’s own It, therefore, does not appear that Accordingly, it will be recommended that with respect to 17 Petitioner’s first and second due process claims concerning the 18 evidence supporting the BPH’s decisions, the Respondent’s motion 19 to dismiss the petition be granted, and Petitioner’s due process 20 claims concerning the evidence be dismissed without leave to 21 amend. 22 IV. 23 Respondent's motion to dismiss addresses only Petitioner's Claim concerning Petitioner’s Plea Agreement 24 due process claims concerning the "some evidence" standard. 25 Court proceeds to consider the adequacy of Petitioner's 26 additional claims pursuant to the authority conferred by the 27 Habeas Rules, which permit the Court to dismiss a petition for 28 writ of habeas corpus either on its own motion under Habeas Rule 9 The 1 4, pursuant to a respondent's motion to dismiss, or after an 2 answer to the petition has been filed. 3 to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 4 1039, 1042-43 (9th Cir. 2001). 5 Advisory Committee Notes In his third claim, Petitioner argues that the BPH’s use of 6 facts not found by a jury or admitted by Petitioner violated 7 Petitioner’s understanding of the plea agreement he made with 8 respect to the commitment offense. 9 pled guilty to second degree murder, but the plea agreement did Petitioner alleges that he 10 not contain descriptions of Petitioner’s offense that were relied 11 on by the BPH as reasons for finding Petitioner unsuitable. 12 descriptions to which Petitioner refers are the BPH’s 13 characterizations of the commitment offense as “calculated and 14 dispassionate,” and of Petitioner’s motive for the crime as 15 “inexplicable.” 16 The (Pet. 5.) Petitioner also alleges that being denied parole after 17 twenty years of doing all that was asked of him by the BPH and 18 all he could do to rehabilitate himself is contrary to what 19 Petitioner reasonably understood when entering into his plea 20 agreement, and thus it is a denial of due process. 21 (Pet. 35.) Petitioner alleges that his plea bargain stipulated that his 22 offense would be treated solely as a second degree murder, which 23 by definition is a crime that lacks premeditation and 24 deliberation. 25 guilty to second degree murder, an offense which permits a grant 26 of parole, he cannot be punished as he would be punished for 27 first degree murder. 28 to avoid the possibility of a longer sentence; because he has Petitioner appears to allege that because he pled One reason why he chose to plead guilty was 10 1 been found unsuitable for parole, Petitioner has not received 2 what he bargained for when he pled guilty. 3 Petitioner pled to first degree murder, he would have already 4 satisfied the custody requirement for such a conviction. 5 35.) 6 7 A. (Pet. 32-33.) Had (Pet. Background The declaration of Petitioner executed on November 17, 1989, 8 in the trial court in connection with the change of his plea to 9 guilty reflects that Petitioner pled guilty to second degree 10 murder with personal use of a firearm. 11 that he understood that the maximum punishment he could receive 12 for each crime was as follows: 13 years in state prison to life in state prison; and for use of a 14 firearm, two years in state prison. 15 that he also understood that any state prison commitment would be 16 followed by a period of parole of three to four years. 17 declared that he freely and voluntarily pled guilty because he 18 was guilty, and/or because he had been advised of risking the 19 possibility of a longer sentence or conviction of more serious 20 charges, and/or because the District Attorney and the court had 21 agreed to a plea of second degree murder with an admission of 22 personal use of a firearm. 23 Petitioner stated: 24 25 26 (Pet. 259.) He declared for second degree murder, fifteen Id. (Id. at 260.) Petitioner declared (Id.) In the declaration, Except as otherwise stated herein, no one has promised or suggested to me that I will receive a lighter sentence, probation, reward, immunity or anything else to get me to plead guilty/nolo contendere (no contest) as indicated. 27 (Pet. 260.) 28 explained everything in the declaration to him with sufficient Petitioner also declared that his attorney had 11 He 1 time for Petitioner to consider it. 2 declared that he had explained the contents of the declaration to 3 Petitioner. 4 5 B. (Id.) His attorney likewise (Id.) Analysis of the Terms of Petitioner’s Plea Bargain A criminal defendant has a due process right to enforce the 6 terms of his plea agreement. 7 plea agreement must be fulfilled if they are significant 8 inducements to enter into a plea. 9 U.S. 257, 262 (1971); Buckley v. Terhune, 441 F.3d 688, 694 (9th Promises from the prosecution in a Santobello v. New York, 404 10 Cir. 2006). 11 measured by contract law standards. 12 Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993). 13 agreement, a court must determine what the defendant reasonably 14 believed to be the terms of the plea agreement at the time of the 15 plea. 16 2002). 17 Plea agreements are contractual in nature and are United States v. De la In construing a plea United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir. The construction of a state court plea agreement is a matter 18 of state law, and federal courts will defer to a state court’s 19 reasonable construction of a plea agreement. 20 Adamson, 483 U.S. 1, 6 n.3 (1987); 21 688, 695 (9th Cir. 2006). 22 agreement is a form of contract and is interpreted according to 23 general contract principles and according to the same rules as 24 other contracts. 25 People v. Shelton, 37 Cal.4th 759, 767 (2006) and People v. 26 Toscano, 124 Cal.App.4th 340, 344 (2004)). 27 28 Ricketts v. Buckley v. Terhune, 441 F.3d In California, a negotiated plea Buckley v. Terhune, 441 F.3d 688, 695 (citing In California, the plain meaning of an agreement’s language must first be considered. If the language is ambiguous, it must 12 1 be interpreted by ascertaining the objectively reasonable 2 expectations of the promisee at the time the contract was made. 3 Buckley v. Terhune, 441 F.3d 688, 695 (9th Cir. 2006). 4 ambiguity remains after a court considers the objective 5 manifestations of the parties’ intent, the language of the 6 contract should be interpreted most strongly against the party 7 who caused the uncertainty to exist, or in favor of the 8 defendant. 9 If Id. at 695-96. Here, Petitioner fails to allege facts that would entitle 10 him to habeas relief. 11 sentenced to “17 years-to-life” for second degree murder with use 12 of a firearm. 13 agreement included any term or condition concerning parole, the 14 parole period, Petitioner’s eligibility for parole, or release on 15 parole. 16 His own petition states that he was (Pet. 1.) Petitioner does not show that his plea Petitioner’s conclusional allegations are not supported by a 17 statement of specific facts and thus do not warrant habeas 18 relief. 19 Petitioner fails to show that state authorities’ finding that 20 Petitioner was not suitable for parole was inconsistent with, or 21 violated, Petitioner’s plea agreement. See, James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994). 22 Petitioner asserts that his continued confinement is 23 inconsistent with his expectation of any benefit from his plea 24 bargain. 25 all that was asked of him by the BPH for twenty years is contrary 26 to his expectations concerning his plea. 27 bargain, Petitioner avoided the certainty of a more severe 28 sentence for first degree murder. He asserts that being denied parole after having done 13 However, by his (Pet. 33.) Further, 1 Petitioner has not alleged specific facts showing that an actual 2 grant of parole was the subject of a promise exchanged in the 3 bargain; he has alleged facts supporting only a generalized 4 expectation of the possibility of release on parole. 5 Petitioner has not shown that his plea agreement was 6 ambiguous in any respect. 7 life clearly denotes confinement to endure for a minimum of 8 seventeen years and potentially as long as the sentenced person 9 lives. A sentence of seventeen (17) years to This is consistent with California law, pursuant to which 10 it is established that an indeterminate life sentence is in legal 11 effect a sentence for the maximum term of life. 12 269 Cal.App.2d 209, 214 (1969). 13 People v. Dyer, Generally, a convicted person serving an indeterminate life 14 term in state prison is not entitled to release on parole until 15 he is found suitable for such release by the Board of Parole 16 Hearings (previously, the Board of Prison Terms). 17 § 3041(b); Cal. Code of Regs., tit. 15, § 2402(a). 18 California’s Determinate Sentencing Law, an inmate such as 19 Petitioner who is serving an indeterminate sentence for murder 20 may serve up to life in prison, but he does not become eligible 21 for parole consideration until the minimum term of confinement is 22 served. 23 actual confinement period of a life prisoner is determined by an 24 executive parole agency. 25 Cal. Pen. Code Under In re Dannenberg, 34 Cal.4th 1061, 1078 (2005). The Id. (citing Cal. Pen. Code § 3040). Here, there is no basis for a conclusion that at the time 26 the plea was entered, objective manifestations of intent 27 reflected that Petitioner reasonably understood that he was 28 entitled to release on parole at any particular point in his 14 1 indeterminate sentence. 2 that the indeterminate sentence imposed was anything other than a 3 sentence for the maximum term of life, with a possibility of 4 release on parole after seventeen (17) years if Petitioner were 5 found suitable for such release. 6 The facts do not warrant a conclusion Any rejection by state courts of Petitioner's claim was not 7 contrary to, or an unreasonable application of, clearly 8 established Supreme Court precedent, and it was not based on an 9 unreasonable determination of the facts. See, 28 U.S.C. 10 § 2254(d). 11 apply clearly established precedent of the United States Supreme 12 Court. 13 court to have determined that Petitioner had simply shown that he 14 bargained for a term of seventeen (17) years to life with only 15 the “possibility” of release on parole. 16 Adamson, 483 U.S. 1, 6 n.3 (1987). 17 relies on state regulations or statutes that permit discretionary 18 release after a shorter period of time than Petitioner has been 19 confined, Petitioner’s claim is based on the application of state 20 law and thus does not entitle Petitioner to relief. 21 Petitioner has not shown that a state court failed to Further, it would have been reasonable for the state See, Ricketts v. To the extent Petitioner The record of the pertinent proceedings involving 22 Petitioner’s change of plea before the Court does not contain any 23 evidence of a promise concerning parole release. 24 does not appear that Petitioner could allege a tenable due 25 process claim concerning his plea if leave to amend were granted. 26 Accordingly, it will be recommended that Petitioner’s due process 27 claim concerning his plea bargain be dismissed without leave to 28 amend. 15 It, therefore, 1 2 C. Apprendi Claim In his third claim, Petitioner argues that he suffered an 3 Apprendi2 violation because the BPH made findings of fact 4 concerning the circumstances and nature of the commitment offense 5 that were not either found by a jury beyond a reasonable doubt or 6 admitted by Petitioner in connection with his plea. 7 contends that when he was found unsuitable, he was exposed to 8 punishment exceeding the statutory maximum for first or second 9 degree murder. 10 Petitioner (Pet. 33.) Petitioner asserts that Blakely v. Washington, 542 U.S. 296 11 (2004) held that the statutory maximum punishment for second 12 degree murder is a minimum term of fifteen (15) years if based 13 solely on facts reflected in a jury’s verdict or admitted by the 14 defendant. 15 BPH’s findings concerning the nature of his commitment offense 16 when he entered his plea, the findings violate his due process 17 rights. 18 (2002), which held that a trial judge’s determination of the 19 presence or absence of aggravating or mitigating factors that 20 govern the choice of the death penalty was a violation of the 21 defendant’s Sixth and Fourteenth Amendment right to a trial by 22 jury in capital prosecutions. 23 He argues that because he did not expressly admit the Petitioner also cites Ring v. Arizona, 536 U.S. 584 In Apprendi, the Court held that any fact other than a 24 prior conviction that is necessary to support a sentence 25 exceeding the maximum authorized by the facts established by a 26 plea of guilty or a jury verdict must be admitted by a defendant 27 28 2 The reference is to Apprendi v. New Jersey, 530 U.S. 466 (2000). 16 1 or proved to a jury beyond a reasonable doubt. 2 Jersey, 530 U.S. 466, 490; United States v. Booker, 543 U.S. 220, 3 244 (2005). 4 the Court held that the “statutory maximum for Apprendi purposes 5 is the maximum sentence a judge may impose solely on the basis of 6 the facts reflected in the jury verdict or admitted by the 7 defendant.” 8 9 Apprendi v. New In Blakely v. Washington, 542 U.S. 296, 303 (2004), Blakely, 542 U.S. at 303. Cal. Pen. Code § 190(a) provides generally that first degree murder is punishable by death or imprisonment for twenty-five 10 (25) years to life; second degree murder is punishable by 11 imprisonment for fifteen (15) years to life. 12 noted, in California, an indeterminate sentence of fifteen years 13 to life is in legal effect a sentence for the maximum term of 14 life, subject only to the power of the parole authority to set a 15 lesser term. 16 As previously People v. Dyer, 269 Cal.App.2d 209, 214 (1969). Based on the foregoing, the Court concludes that in denying 17 parole, the BPH did not increase Petitioner’s sentence beyond the 18 statutory maximum of life imprisonment for second degree murder. 19 The Court is mindful of the discretionary and predictive nature 20 of the evaluations made by the BPH in considering release of an 21 inmate on parole. 22 and Corr. Complex, 442 U.S. 1, 9-10 (1979). 23 aware of any Supreme Court authority applying the principles of 24 Apprendi to parole proceedings. 25 was not entitled to a jury trial or proof beyond a reasonable 26 doubt in his parole proceedings. 27 U.S. 112, 120 (2001) (no right to jury trial or proof beyond a 28 reasonable doubt in proceedings to revoke probation); United See, Greenholtz v. Inmates of Nebraska Penal The Court is not The Court notes that Petitioner 17 United States v. Knights, 534 1 States v. Huerta-Pimentel, 445 F.3d 1220, 1225 (9th Cir. 2006) (a 2 judge’s finding by a preponderance of the evidence that a 3 defendant violated the conditions of supervised release does not 4 raise a concern regarding the Sixth Amendment); see, Swarthout v. 5 Cooke, 131 S.Ct. at 862. 6 relatively minimal processes of Greenholtz. 7 which concerns a right to jury trial and proof beyond a 8 reasonable doubt to a jury, does not appear to be applicable to 9 parole proceedings. 10 Instead, Petitioner was entitled to the Thus, Apprendi, The Court concludes that Petitioner did not allege facts 11 that would entitle him to relief on the basis of a denial of due 12 process of law from the absence of a jury trial or jury finding 13 concerning the circumstances of his offense. 14 of the apparent inapplicability of the Apprendi concepts to 15 parole proceedings, it does not appear that Petitioner could 16 allege a tenable Apprendi claim for relief. 17 Further, in light Thus, it will be recommended that Petitioner’s due process 18 claim relating to the Apprendi decision be dismissed without 19 leave to amend. 20 V. 21 In his fourth claim, Petitioner alleges that the state Decisions of the State Courts 22 courts’ rulings affirming the BPH’s decision were unreasonable 23 determinations of the facts in light of the evidence. 24 In this claim, Petitioner appears to challenge the state 25 court’s decisions upholding the BPH’s determinations of fact. 26 However, as the preceding discussion of the Swarthout case 27 reflects, the application of the “some evidence” rule to the 28 facts relevant to parole eligibility is not within the scope of 18 1 this Court’s review in a proceeding pursuant to 28 U.S.C. § 2254. 2 Accordingly, the Court concludes that with respect to his fourth 3 claim concerning unreasonable determinations of fact, Petitioner 4 has failed to state facts entitling him to relief. 5 claim is not cognizable in a proceeding pursuant to 28 U.S.C. 6 § 2254, it will be recommended that the claim be dismissed 7 without leave to amend. 8 9 Because the In sum, the Court concludes that with respect to all the claims set forth in the petition, Petitioner has failed to state 10 facts that entitle him to relief or point to a real possibility 11 of constitutional error. 12 Respondent’s motion to dismiss the petition without leave to 13 amend be granted and the petition be dismissed without leave to 14 amend. Thus, it will be recommended that 15 VI. 16 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 17 appealability, an appeal may not be taken to the Court of Appeals 18 from the final order in a habeas proceeding in which the 19 detention complained of arises out of process issued by a state 20 court. 21 U.S. 322, 336 (2003). 22 only if the applicant makes a substantial showing of the denial 23 of a constitutional right. 24 petitioner must show that reasonable jurists could debate whether 25 the petition should have been resolved in a different manner or 26 that the issues presented were adequate to deserve encouragement 27 to proceed further. 28 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 19 A 1 certificate should issue if the Petitioner shows that jurists of 2 reason would find it debatable whether the petition states a 3 valid claim of the denial of a constitutional right and that 4 jurists of reason would find it debatable whether the district 5 court was correct in any procedural ruling. 6 529 U.S. 473, 483-84 (2000). 7 Slack v. McDaniel, In determining this issue, a court conducts an overview of 8 the claims in the habeas petition, generally assesses their 9 merits, and determines whether the resolution was debatable among 10 jurists of reason or wrong. 11 applicant to show more than an absence of frivolity or the 12 existence of mere good faith; however, it is not necessary for an 13 applicant to show that the appeal will succeed. 14 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 15 A district court must issue or deny a certificate of 16 appealability when it enters a final order adverse to the 17 applicant. 18 It does not appear that reasonable jurists could debate whether 19 the petition should have been resolved in a different manner. 20 Petitioner has not made a substantial showing of the denial of a 21 constitutional right. 22 23 Rule 11(a) of the Rules Governing Section 2254 Cases. Therefore, it will be recommended that the Court decline to issue a certificate of appealability. 24 VII. 25 Accordingly, it is RECOMMENDED that: 26 1) Respondent’s motion to dismiss without leave to amend Recommendation 27 Petitioner’s first and second due process claims concerning some 28 evidence be GRANTED; and 20 1 2 2) Petitioner’s third and fourth claims be DISMISSED without leave to amend; and 3 4 3) The petition for writ of habeas corpus be DISMISSED without leave to amend; and 5 6 4) appealability; and 7 8 The Court DECLINE to issue a certificate of 5) The Clerk be DIRECTED to close the case because an order of dismissal would terminate the action 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 May 31, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 28 21
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