-SKO (HC) Martinez v. Hartley, No. 1:2011cv00215 - Document 5 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Petitioner's First, Second, Third, and Fifth Claims without Leave to Amend for Failure to State a Cognizable Claim and to Decline to Issue a Certificate of Appealability; FINDINGS and RECOMMENDATIONS to Dismiss Petitioner's Fourth Claim with Leave to Amend; Objections Due in Thirty (30) Days signed by Magistrate Judge Sheila K. Oberto on 2/23/2011. Referred to Judge Oliver W. Wanger. Objections to F&R due by 3/29/2011. (Sant Agata, S)
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-SKO (HC) Martinez v. Hartley Doc. 5 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ISAAC MARTINEZ, 11 Petitioner, 12 13 14 v. JAMES D. HARTLEY, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 17 18 1:11-cv—00215-OWW-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS PETITIONER’S FIRST, SECOND, THIRD, AND FIFTH CLAIMS WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE CLAIM (Doc. 1) AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY FINDINGS AND RECOMMENDATIONS TO DISMISS PETITIONER’S FOURTH CLAIM WITH LEAVE TO AMEND (Doc. 1) OBJECTIONS DEADLINE: THIRTY (30) DAYS 19 20 Petitioner is a state prisoner proceeding pro se and in 21 forma pauperis with a petition for writ of habeas corpus pursuant 22 to 28 U.S.C. § 2254. 23 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 24 Rules 302 and 304. 25 which was filed on February 8, 2011. The matter has been referred to the Pending before the Court is the petition, 26 I. 27 Rule 4 of the Rules Governing § 2254 Cases in the United 28 Screening the Petition States District Courts (Habeas Rules) requires the Court to make 1 Dockets.Justia.com 1 a preliminary review of each petition for writ of habeas corpus. 2 The Court must summarily dismiss a petition "[i]f it plainly 3 appears from the petition and any attached exhibits that the 4 petitioner is not entitled to relief in the district court....” 5 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 6 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 7 1990). 8 grounds of relief available to the Petitioner; 2) state the facts 9 supporting each ground; and 3) state the relief requested. Habeas Rule 2(c) requires that a petition 1) specify all 10 Notice pleading is not sufficient; rather, the petition must 11 state facts that point to a real possibility of constitutional 12 error. 13 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 14 Allison, 431 U.S. 63, 75 n.7 (1977)). 15 that are vague, conclusory, or palpably incredible are subject to 16 summary dismissal. 17 Cir. 1990). 18 Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 19 corpus either on its own motion under Habeas Rule 4, pursuant to 20 the respondent's motion to dismiss, or after an answer to the 21 petition has been filed. 22 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 23 (9th Cir. 2001). 24 Advisory Committee Notes to Habeas Rule Petitioner, an inmate of the California State Prison at 25 Avenal, California, is serving a sentence of ten (10) years to 26 life imposed by the Los Angeles Superior Court in case number 27 VAO24361 on June 14, 1993. 28 decision of California’s Board of Parole Hearings (BPH), which (Pet. 4.) 2 Petitioner challenges a 1 became final on August 12, 2009, after a hearing held on April 2 14, 2009. 3 The BPH denied parole for five years. Petitioner raises the following grounds: (Id.) 1) there was no 4 evidence supporting the denial of parole, and thus Petitioner 5 suffered a violation of due process of law with respect to his 6 liberty interest; 2) there was no evidence of any nexus between 7 the reasons for parole denial and the crime or between the 8 decision and public safety; 3) the BPH violated Petitioner’s 9 right to due process of law in relying on Petitioner’s 10 confession, which was obtained in violation of Petitioner’s 11 privilege against self-incrimination; 4) the trial court’s 12 sentencing Petitioner under Cal. Pen. Code, § 667.5 violated 13 Petitioner’s rights to due process of law and double jeopardy 14 under the Fifth and Fourteenth Amendments; and 5) the BPH failed 15 to provide an individualized consideration of the parole 16 suitability factors. 17 requests “proof of claims” concerning various aspects of the BPH 18 and the California and federal governments. (Pet. 35-39.)1 19 Petitioner seeks a new parole hearing. 20 (Pet. 8-15, 28, 32.) Petitioner also (Pet. 40.) Petitioner attaches to his petition a transcript of the 21 hearing before the BPH held at Avenal State Prison on April 14, 22 2009. 23 appeared at the hearing, responded to questions from the 24 commissioners, made a closing statement, and was represented by 25 counsel who participated on Petitioner’s behalf. 26 50-77, 71-72, 77-109, 111-19.) (Pet. 44-129.) The transcript reflects that Petitioner (Pet. 46, 47, The transcript further reflects 27 28 1 The Court understands the requests to be prayers for relief and thus does not analyze them as potential claims. 3 1 that after a brief recess, the board stated its reasons for 2 denying parole. (Pet. 120-28.) 3 II. 4 Because the petition was filed after April 24, 1996, the Failure to Allege a Claim Cognizable on Habeas Corpus 5 effective date of the Antiterrorism and Effective Death Penalty 6 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 7 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 8 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 9 A district court may entertain a petition for a writ of 10 habeas corpus by a person in custody pursuant to the judgment of 11 a state court only on the ground that the custody is in violation 12 of the Constitution, laws, or treaties of the United States. 13 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 14 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 15 16 (2010) (per curiam). 16 Lindh 28 The Supreme Court has characterized as reasonable the 17 decision of the Court of Appeals for the Ninth Circuit that 18 California law creates a liberty interest in parole protected by 19 the Fourteenth Amendment Due Process Clause, which in turn 20 requires fair procedures with respect to the liberty interest. 21 Swarthout v. Cooke, 562 U.S. –, – S.Ct. -, 2011 WL 197627, *2 22 (No. 10-133, Jan. 24, 2011). 23 However, the procedures required for a parole determination 24 are the minimal requirements set forth in Greenholtz v. Inmates 25 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).2 26 27 28 2 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 4 1 Swarthout v. Cooke, 2011 WL 197627, *2. 2 rejected inmates’ claims that they were denied a liberty interest 3 because there was an absence of “some evidence” to support the 4 decision to deny parole. 5 6 7 8 9 10 11 12 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.) 13 Swarthout, 2011 WL 197627, *2. 14 petitioners had received the following process that was due: 15 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.... 16 The Court concluded that the 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, 2011 WL 197627, *3. The Court in Swarthout expressly 20 noted that California’s “some evidence” rule is not a substantive 21 22 23 24 25 26 27 28 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. 5 1 federal requirement, and correct application of California’s 2 “some evidence” standard is not required by the federal Due 3 Process Clause. 4 Id. at *3. Petitioner’s first and second claims concerning the absence 5 of evidence to support the decision and to demonstrate a nexus 6 between Petitioner’s offense or history and the public safety are 7 essentially claims concerning the merits of the decision and the 8 sufficiency of the evidence to support the decision. 9 Petitioner’s third claim concerning the BPH’s reliance on Likewise, 10 Petitioner’s confession also challenges the quality or 11 sufficiency of the evidence to support the decision. 12 claims, Petitioner does not state facts that point to a real 13 possibility of constitutional error or that otherwise would 14 entitle Petitioner to habeas relief because California’s “some 15 evidence” requirement is not a substantive federal requirement. 16 Swarthout, 2011 WL 197627, *3. 17 evidence” to support the denial of parole is not within the scope 18 of this Court’s habeas review under 28 U.S.C. § 2254. 19 In these Review of the record for “some Petitioner’s fifth claim concerning the BPH’s failure to 20 give an individualized consideration of the state’s substantive 21 factors of parole suitability is also foreclosed by Swarthout. 22 Due process of law requires only that Petitioner have an 23 opportunity to be heard; it does not require any specific degree 24 of individualized consideration. 25 With respect to amendment of the petition, a petition for 26 habeas corpus should not be dismissed without leave to amend 27 unless it appears that no tenable claim for relief can be pleaded 28 were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th 6 1 2 Cir. 1971). Petitioner did not allege that the procedures used for 3 determination of his suitability for parole were deficient 4 because of the absence of an opportunity to be heard or the lack 5 of a statement of reasons for the ultimate decision reached. 6 However, the documentation that Petitioner submitted with the 7 petition demonstrates that Petitioner cannot state a tenable 8 claim for relief based on a violation of due process with respect 9 to his first, second, third, and fifth claims. Petitioner 10 attended the parole hearing and had the right to speak at the 11 hearing and to contest the evidence against him. 12 counsel exhibited familiarity with Petitioner’s record (pet. 71), 13 and thus it may be concluded that there was effective access to 14 Petitioner’s records in advance of the hearing. 15 submission to this Court of the decision of the BPH in which the 16 reasons were stated warrants the conclusion that Petitioner 17 received a statement of reasons why parole was denied. 18 120-28.) 19 Petitioner’s Petitioner’s (Pet. Accordingly, it is concluded that with respect to the first, 20 second, third, and fifth claims, Petitioner could not state a 21 tenable due process claim for relief. 22 should not be granted with respect to these claims. 23 Thus, leave to amend Petitioner’s fourth claim concerns the sentencing court’s 24 application of a state statute (Pen. Code § 667.5) at 25 Petitioner’s sentencing in 1993. 26 enhancement of his sentence under California’s habitual criminal 27 laws was erroneous, constituted multiple punishment in 28 contravention of the Fifth Amendment’s protection against double Petitioner alleges that 7 1 jeopardy, and was a violation of due process. 2 Preliminarily the Court notes that this particular claim 3 appears to address the conduct of the sentencing court and not 4 the BPH. 5 noted that his criminal record was used against him to deny 6 parole. 7 convictions to deny parole was erroneous based on the nature of 8 his criminal history. 9 attempting to argue that the board’s consideration or weighing of However, in other parts of the petition, Petitioner (Pet. 42.) He also alleged that use of his prior (Pet. 23-24.) Petitioner may be 10 this evidence constituted a violation of the Federal 11 Constitution’s Due Process Clause. 12 raises this claim, the preceding analysis based on Swarthout 13 applies, and the claim is foreclosed. 14 To the extent Petitioner To the extent that this claim rests on the application of 15 the state’s sentencing law, it is not cognizable on federal 16 habeas corpus. 17 state issue that does not rise to the level of a federal 18 constitutional violation. 19 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 20 (1991). 21 cognizable in federal habeas corpus. 22 616, 623 (9th Cir. 2002). 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 23 With respect to due process, it is established that the 24 Sixth and Fourteenth Amendments do not require proof of the fact 25 of a prior conviction to a jury beyond a reasonable doubt in 26 order to use the prior conviction to increase a sentence. 27 v. Curry, 528 F.3d 624, 643-44 (9th Cir. 2008). 28 /// 8 Butler 1 Insofar as Petitioner alleges that the trial court’s 2 enhancement of his sentence resulted in multiple punishments 3 prohibited by the prohibition against double jeopardy, 4 Petitioner’s claim is devoid of specific facts that point to a 5 real possibility of constitutional error. 6 Jeopardy Clause of the Fifth Amendment protects against not only 7 a second prosecution for the same offense after acquittal or 8 conviction, but also multiple punishments for the same offense. 9 U.S. Const. amend. V; Witte v. United States, 515 U.S. 389, 395- (Pet. 11.) The Double 10 96 (1995). 11 terms to enhance punishment for a subsequent offense generally 12 does not constitute imposition of multiple punishments. 13 Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998) 14 (noting that recidivism has been the most traditional basis for 15 increasing an offender’s sentence, and rejecting a contention 16 that an enhancement for recidivism that significantly increased 17 the sentence must be considered an element of the offense). 18 Generally, the Double Jeopardy Clause requires only that a court 19 not exceed the authorization given to it by the legislature; if 20 the legislature enacts statutes that indicate an intent to impose 21 separate punishments, the statutes define separate offenses, and 22 the punishments do not violate the Double Jeopardy Clause. 23 United States v. Wolfswinkel, 44 F.3d 782, 783-84 (9th Cir. 1995) 24 (Congress); Ohio v. Johnson, 467 U.S. 493, 499 (1984) (state 25 legislature). 26 However, reliance on prior convictions or prison See, Further, California state courts have considered the 27 legislative intent and have upheld the use of prior convictions 28 to enhance a sentence in various contexts. 9 See, e.g., People v. 1 Acosta, 29 Cal.4th 105, 128 (2002); People v. Garcia, 25 Cal.4th 2 744, 757-58 (2001); People v. White Eagle, 48 Cal.App.4th 1511, 3 1519-20 (1996). 4 5 Therefore, Petitioner’s generalized allegations do not state a claim cognizable in habeas corpus. 6 It is possible that Petitioner might amend his petition to 7 allege specific facts concerning the use his prior convictions or 8 recidivist history. 9 of the trial court, and not the conduct of the BPH, which is the However, this claim relates to the conduct 10 gravamen of Petitioner’s claims in the present petition. 11 challenging the Los Angeles County sentence would concern a 12 different judgment of a different tribunal. 13 14 A claim Rule 2(e) of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) provides: 15 16 A petitioner who seeks relief from judgments of more than one state court must file a separate petition covering the judgment or judgments of each court. 17 Petitioner thus cannot properly challenge the judgments of two 18 different tribunals in a single proceeding. 19 925 F.2d 305, 308-11 (9th Cir. 1991). 20 permissible to challenge both a denial of parole by the BPH and 21 an underlying conviction in the same habeas corpus action. 22 Williams v. Sisto, 2009 WL 3300038, *12 (E.D.Cal. Oct. 14, 2009). 23 Amendment of the present petition to allege facts in support Bianchi v. Blodgett, Specifically, it is not 24 of Petitioner’s fourth claim would thus be proper only if the 25 remaining claims against the BPH do not go forward in this 26 action; otherwise, the result would be improper joinder of 27 claims. 28 /// 10 1 In summary, with respect to the fourth claim, Petitioner has 2 not stated a violation of due process of law or other basis for 3 relief. 4 claim for relief. 5 amend the present petition if the remaining claims against the 6 BPH are dismissed. 7 then Petitioner’s fourth claim should be dismissed without 8 prejudice to refiling it in a separate action. 9 10 It is possible that Petitioner could state a tenable III. Petitioner should be given an opportunity to If any of the claims against the BPH remain, Certificate of Appealability Unless a circuit justice or judge issues a certificate of 11 appealability, an appeal may not be taken to the Court of Appeals 12 from the final order in a habeas proceeding in which the 13 detention complained of arises out of process issued by a state 14 court. 15 U.S. 322, 336 (2003). 16 only if the applicant makes a substantial showing of the denial 17 of a constitutional right. 18 petitioner must show that reasonable jurists could debate whether 19 the petition should have been resolved in a different manner or 20 that the issues presented were adequate to deserve encouragement 21 to proceed further. 22 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 23 certificate should issue if the Petitioner shows that jurists of 24 reason would find it debatable whether the petition states a 25 valid claim of the denial of a constitutional right and that 26 jurists of reason would find it debatable whether the district 27 court was correct in any procedural ruling. 28 529 U.S. 473, 483-84 (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 A Slack v. McDaniel, In determining this issue, a court 11 1 conducts an overview of the claims in the habeas petition, 2 generally assesses their merits, and determines whether the 3 resolution was debatable among jurists of reason or wrong. 4 It is necessary for an applicant to show more than an absence of 5 frivolity or the existence of mere good faith; however, it is not 6 necessary for an applicant to show that the appeal will succeed. 7 Miller-El v. Cockrell, 537 U.S. at 338. 8 A district court must issue or deny a certificate of 9 Id. appealability when it enters a final order adverse to the 10 11 applicant. Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 12 debate whether the petition should have been resolved in a 13 different manner. 14 of the denial of a constitutional right. 15 should decline to issue a certificate of appealability. Petitioner has not made a substantial showing 16 IV. 17 Accordingly, it is RECOMMENDED that: 18 1) Accordingly, the Court Recommendation Petitioner’s first, second, third, and fifth claims be 19 DISMISSED without leave to amend for failure to state a claim 20 cognizable in a habeas corpus proceeding pursuant to 28 U.S.C. § 21 2254; and 22 23 24 25 26 27 28 2) Petitioner’s fourth claim be DISMISSED with leave to file a first amended petition within thirty days; and 3) The Court DECLINE to issue a certificate of appealability; and 3) The Clerk be DIRECTED to close the action because this order terminates the proceeding in its entirety. These findings and recommendations are submitted to the 12 1 United States District Court Judge assigned to the case, pursuant 2 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 3 the Local Rules of Practice for the United States District Court, 4 Eastern District of California. 5 being served with a copy, any party may file written objections 6 with the Court and serve a copy on all parties. 7 should be captioned “Objections to Magistrate Judge’s Findings 8 and Recommendations.” 9 and filed within fourteen (14) days (plus three (3) days if Within thirty (30) days after Such a document Replies to the objections shall be served 10 served by mail) after service of the objections. 11 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 12 636 (b)(1)(C). 13 objections within the specified time may waive the right to 14 appeal the District Court’s order. 15 1153 (9th Cir. 1991). The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 16 17 18 IT IS SO ORDERED. 19 Dated: ie14hj February 23, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 13
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