(HC)Allen v. Santoro, No. 1:2015cv01413 - Document 18 (E.D. Cal. 2016)
Court Description: FINDINGS And RECOMMENDATIONS Recommending That The Court Dismiss The Petition For Failure To State A Claim On Which Relief May Be Granted (Doc. 8 ), signed by Magistrate Judge Sheila K. Oberto on 1/19/2016. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 2/22/2016. (Fahrney, E)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 KENNETH ALLEN, 10 Petitioner, 11 12 v. K. SANTORO, Warden, 13 Respondent. No. 1:15-cv-01413-LJO-SKO HC FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THE COURT DISMISS THE PETITION FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF MAY BE GRANTED (Doc. 8) 14 Petitioner, a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 15 16 28 U.S.C. § 2254, was sentenced in December 1985 to life without parole following his 17 conviction of three counts of murder. He contends that, having served more than 25 years in 18 prison and being over 60 years of age, he is entitled to a hearing to determine his suitability for 19 parole under a court order issued February 1, 2014, in the consolidated cases of Coleman v. 20 Brown (E.D. Cal.) (No. 2:90-cv-0520-LKK-DAD PC) and Plata v. Brown (N.D. Cal.) (No. C01- 21 1351 TEH) (Doc. 2766) (the “Coleman/Plata order”). Respondent moves for dismissal, arguing 22 that since Petitioner is outside the scope of the court order in Coleman/Plata cases, referring him 23 for a parole hearing cannot result in an immediate or speedier release from imprisonment. 24 Because Petitioner does not fall within the category of inmates eligible for early parole under the 25 Coleman/Plata order, the undersigned recommends that the Court dismiss the petition for failure 26 to state a cognizable claim. 27 /// 28 /// 1 1 I. 2 3 The Court Order Authorized Early Parole for Certain Inmates Petitioner seeks to enforce the early parole provisions of the Coleman/Plata order. The petition raises no constitutional or other claims. 4 The Coleman/Plata order (reproduced at Doc. 1 at 22-27) arose as part of California’s 5 6 efforts to develop comprehensive and sustainable prison population reduction reforms to comply 7 with a June 30, 2011, order requiring the State to address constitutional violations by reducing 8 overcrowding in its prisons. In extending the time period for the State’s compliance, the federal 9 courts ordered a number of interim actions, including requiring the State to “[f]inalize and 10 11 12 13 implement a new parole process whereby inmates who are 60 years of age or older and have served a minimum of twenty-five years of their sentence will be forwarded to the Board of Parole Hearings to determine suitability for parole.” See Doc. 1 at 24, ¶ 4(e). The order further directed: 14 16 In selecting inmates for release, the Compliance Officer shall consider public safety by minimizing any risk of violent re-offense. The Compliance Officer shall not be authorized to order the release of condemned inmates or inmates serving a term of life without the possibility of parole. 17 See Doc. 1 at 25, ¶ 6(a) (emphasis added). 15 18 Since Petitioner is an inmate serving a term of life without possibility of parole, the order 19 explicitly excludes him from the provisions authorizing early parole. 20 To the extent they are not inconsistent with the statutory provision or the Rules Governing 21 Section 2254 Cases, the Court may apply the Federal Rules of Civil Procedure. Rule 12 of the 22 Rules Governing Section 2254 Cases in the United States District Courts. After being served 23 with the petition, the Respondent may move to dismiss the case for failure to state a claim upon 24 which relief can be granted. F.R.Civ.P. 12(b)(6). Because the order does not apply to Petitioner, 25 who is serving a sentence of life without the possibility of parole, his petition should be 26 dismissed. 27 /// 28 2 1 2 II. Certificate of Appealability A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a 3 district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. 4 Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a 5 certificate of appealability is 28 U.S.C. § 2253, which provides: 6 7 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 8 9 10 11 12 13 14 15 16 17 18 19 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issues or issues satisfy the showing required by paragraph (2). 20 21 If a court denies a habeas petition, the court may only issue a certificate of appealability 22 "if jurists of reason could disagree with the district court's resolution of his constitutional claims 23 or that jurists could conclude the issues presented are adequate to deserve encouragement to 24 proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). 25 Although the petitioner is not required to prove the merits of his case, he must demonstrate 26 "something more than the absence of frivolity or the existence of mere good faith on his . . . 27 part." Miller-El, 537 U.S. at 338. 28 3 1 2 3 Because Petitioner does not qualify for early parole under the explicit terms of the federal court order he seeks to enforce, the undersigned finds that reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief debatable, 4 wrong, or deserving of encouragement to proceed further. Accordingly, the undersigned 5 6 7 recommends that the Court decline to issue a certificate of appealability. I. Because the petition does not allege grounds on which the Court may grant relief, the 8 9 10 Conclusion and Recommendation undersigned recommends that the Court dismiss the petition with prejudice and decline to issue a certificate of appealability. 11 These Findings and Recommendations will be submitted to the United States District 12 13 14 Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty (30) days after being served with these Findings and Recommendations, either party may file 15 written objections with the Court. The document should be captioned AObjections to Magistrate 16 Judge=s Findings and Recommendations.@ Replies to the objections, if any, shall be served and 17 filed within fourteen (14) days after service of the objections. The parties are advised that failure 18 to file objections within the specified time may constitute waiver of the right to appeal the District 19 Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. 20 21 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 IT IS SO ORDERED. 24 Dated: January 19, 2016 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 25 26 27 28 4
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