(HC) Lewis v. Veal et al, No. 2:2006cv00481 - Document 42 (E.D. Cal. 2011)
Court Description: ORDER, AMENDED FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Timothy J. Bommer on 2/3/11 that ORDERING that the 11/24/10 Order, Findings and Recommendations is hereby VACATED; Petitioner's request for an order to show cause is DENIED A S MOOT; Petitioner's request to conduct discovery is DENIED; Petitioner's request for an evidentiary hearing is DENIED; and Petitioner's request for supplemental briefing is DENIED; and RECOMMENDING that Petitioner's Petition for writ of habeas corpus be DENIED. Referred to Judge Morrison C. England; Objections due within 21 days after being served with these findings and recommendations. (Becknal, R)
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(HC) Lewis v. Veal et al Doc. 42 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 RICHARD J. LEWIS, 11 Petitioner, 12 vs. 13 2: 06 - cv - 0481 - MCE TJB M. VEAL, et al., 14 Respondents. ORDER, AMENDED FINDINGS AND 15 16 17 18 RECOMMENDATIONS ________________________________/ I. INTRODUCTION Petitioner, Richard Lewis, is a state prisoner proceeding with a petition for writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of twenty-five 20 years to life plus two years after his conviction in 1981 of first degree murder with a firearm 21 enhancement. Petitioner challenges the September 2004 decision by Governor Schwarzenegger 22 reversing the April 2004 decision by the Board of Prison Terms (the “Board”) which had granted 23 Petitioner parole. Petitioner presents several claims in his petition; specifically: (1) the 24 Governor did not exercise his discretion in the manner required by California Penal Code § 3041 25 in reversing the Board (“Claim I”); (2) the Governor exceeded his authority when he denied 26 parole by concluding that Petitioner’s commitment offense involved the infliction of torture 1 Dockets.Justia.com 1 (“Claim II”); (3) the Governor’s decision denying parole did not comport with due process 2 because the Governor’s decision regarding the circumstances of the commitment offense was not 3 supported in the record (“Claim III”); the Governor’s decision on the factors surrounding the 4 commitment offense violated Petitioner’s due process rights because it was arbitrary and 5 capricious (“Claim IV”); (5) the Governor’s decision violated Petitioner’s due process rights 6 because it relied on the unchanging factors of Petitioner’s commitment offense (“Claim V”); and 7 (6) the Governor’s role in reversing the Board’s decision violated the Ex Post Facto Clause 8 (“Claim VI”). Petitioner requests: (1) an order to show cause; (2) an order to conduct discovery 9 and/or an evidentiary hearing; and (3) an order for supplemental briefing. For the following 10 reasons, the November 24, 2010 Order, Findings and Recommendations is vacated. 11 Additionally, Petitioner’s requests are denied and it is recommended that his federal habeas 12 petition be denied. II. FACTUAL1 AND PROCEDURAL BACKGROUND 13 14 15 On the evening of July 26, 1980, Richard Lewis murdered 33-year-old Richard Cain by shooting him multiple times with a .22-caliber revolver. 16 On the day of the murder, Mr. Lewis’ girlfriend told him that Mr. Cain had made unwanted sexual advances at her two months earlier. Mr. Lewis became very angry and subsequently told his girlfriend’s sister, who was married to Mr. Cain at the time, “If you care anything about [Mr. Cain], you better tell him to get out of town.” 17 18 19 Afterward, Mr. Lewis and his girlfriend’s brother obtained a revolver and some bullets. After loading the weapon, Mr. Lewis put it under the driver seat of his car. The two men then went to the home of Mr. Lewis’ girlfriend, where they found Mr. Cain. Mr. Lewis a short while later suggested that the men go out to get some marijuana and Mr. Cain decided to go along. Mr. Lewis drove instead to a remote location, where he ordered Mr. Cain out of the car and pulled out the revolver. He then shot Mr. Cain once in the buttocks and once in the chest. Either before or in between shots, Mr. Cain asked, “What did I do?” As Mr. Cain lay wounded 20 21 22 23 24 25 1 26 The factual background of the commitment offense is taken from the Governor’s decision which reversed parole which is attached to Respondents’ answer at Ex. 3. 2 1 4 on the ground, Mr. Lewis gave the revolver to his girlfriend’s brother and told him to shoot Mr. Cain. The brother refused, and gave the revolver back to Mr. Lewis. Mr. Lewis then walked over to where Mr. Cain lay, lifted Mr. Cain’s head by the chin to look him in the face, and said, “Richard Cain, I want you to know who’s doing this to you.” Mr. Lewis then shot Mr. Cain twice in the side of the head, killing him. 5 (Resp’ts’ Answer, Ex. 3.) In 1981, Petitioner was convicted of first degree murder with a firearm 6 enhancement. On April 20, 2004, the Board conducted a subsequent parole consideration 7 hearing. The Board ultimately concluded that the Petitioner was suitable for parole and would 8 not pose an unreasonable risk of danger to society or a threat to public safety if released from 9 prison. On September 13, 2004, the Governor reversed the Board’s decision and found that 10 Petitioner would continue to pose an unreasonable risk of danger to society if paroled at that 11 time. 2 3 12 Petitioner challenged the Governor’s decision denying him parole in the Fresno County 13 Superior Court via a state habeas petition. The Superior Court denied Petitioner’s state habeas 14 petition on January 6, 2005. In denying the petition, that court stated the following: 15 Having reviewed the petition for writ of habeas corpus transferred from the superior court in the County of Marin and filed on December 28, 2004, the court finds no error justifying the requested relief. (Cf. In re Van Houten, (2004) 116 Cal.App.4th 339, In re Smith (2003) 114 Cal.App.4th 343, In re McClendon (2003) 113 Cal.App.4th 315, In re Capistran (2003) 107 Cal.App.4th 1229, and In re Rosenkrantz (2002) 29 Cal.4th 616.) The petition is denied. 16 17 18 19 20 (Resp’ts’ Answer, Ex. 5 at p. 2.) On March 3, 2005, the California Court of Appeal, Fifth 21 Appellate District summarily denied the petition without discussion or citation. On February 1, 22 2006, the California Supreme Court summarily denied the petition stating, “Petition for writ of 23 habeas corpus is denied. (See In re Rosenkrantz (2002) 29 Cal.4th 616.).” (Resp’ts’ Answer, 24 Ex. 7a at p. 2.) 25 In March 2006, Petitioner filed the instant federal habeas petition. After an answer and a 26 traverse were filed, Petitioner was appointed counsel in December 2007. On November 5, 2009, 3 1 Petitioner was released on parole. Petitioner was then ordered to show cause why his habeas 2 petition should not be dismissed in light of his release from prison on parole. Petitioner 3 responded to the order to show cause. On March 10, 2010, this Court concluded that the action 4 would not be dismissed in light of the fact that “plaintiff could still benefit by a favorable ruling 5 that may result in the shortening of his parole.” 6 On November 24, 2010, the undersigned issued Findings and Recommendations which 7 recommended that Petitioner’s federal habeas petition be denied. The Petitioner filed objections 8 to the findings and recommendations and the Respondents filed a reply to Petitioner’s objections. 9 III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS 10 An application for writ of habeas corpus by a person in custody under judgment of a state 11 court can only be granted for violations of the Constitution or laws of the United States. See 28 12 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. 13 Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). 14 Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism 15 and Effective Death Penalty Act of 1996 (“AEDPA”) applies. See Lindh v. Murphy, 521 U.S. 16 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim 17 decided on the merits in the state court proceedings unless the state court’s adjudication of the 18 claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, 19 clearly established federal law, as determined by the Supreme Court of the United States; or (2) 20 resulted in a decision that was based on an unreasonable determination of the facts in light of the 21 evidence presented in state court. See 28 U.S.C. 2254(d). Nevertheless, where a state court 22 provides no reasoning to support its conclusion as in this case, a federal habeas court 23 independently reviews the record to determine whether the state court was objectively 24 unreasonable in its application of clearly established federal law. See Musladin v. Lamarque, 25 555 F.3d 830, 835 (9th Cir. 2009); see also Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 26 2000), overruled on other grounds, Lockyer v. Andrande, 538 U.S. 63 (2003). Recently, the 4 1 United States Supreme Court reiterated that, “[w]here a state court’s decision is unaccompanied 2 by an explanation, the habeas petitioner’s burden still must be met by a showing that there was 3 no reasonable basis for the state court to deny relief.” Harrington v. Richter, No. 09-587, – S.Ct. 4 –, 2011 WL 148587, at *9 (Jan. 19, 2011). 5 As a threshold matter, this Court must “first decide what constitutes ‘clearly established 6 Federal law, as determined by the Supreme Court of the United States.’” Lockyer, 538 U.S. at 71 7 (quoting 28 U.S.C. § 2254(d)(1)). “‘[C]learly established federal law’ under § 2254(d)(1) is the 8 governing legal principle or principles set forth by the Supreme Court at the time the state court 9 renders its decision.’” Id. (citations omitted). Under the unreasonable application clause, a 10 federal habeas court making the unreasonable application inquiry should ask whether the state 11 court’s application of clearly established federal law was “objectively unreasonable.” See 12 Williams v. Taylor, 529 U.S. 362, 409 (2000). Thus, “a federal court may not issue the writ 13 simply because the court concludes in its independent judgment that the relevant state court 14 decision applied clearly established federal law erroneously or incorrectly. Rather, that 15 application must also be unreasonable.” Id. at 411. Although only Supreme Court law is binding 16 on the states, Ninth Circuit precedent remains relevant persuasive authority in determining 17 whether a state court decision is an objectively unreasonable application of clearly established 18 federal law. See Clark v. Murphy, 331 F.3d 1062, 1070 (9th Cir. 2003) (“While only the 19 Supreme Court’s precedents are binding . . . and only those precedents need be reasonably 20 applied, we may look for guidance to circuit precedents.”). 21 IV. DISCUSSION OF PETITIONER’S CLAIMS 22 A. Claim I 23 In Claim I, Petitioner asserts that the Governor did not exercise his discretion in the 24 manner required by California Penal Code § 3041. California Penal Code section 3041 sets forth 25 the state’s legislative standards for determining parole for life-sentenced prisoners. Section 26 3041(a) provides that, “”[o]ne year prior to the inmate’s minimum eligible release date a panel . . 5 1 . shall again meet with the inmate and shall normally set a parole release date.” Cal. Penal Code 2 § 3041(a). However, subsection (b) states an exception to the regular and early setting of a life 3 sentence term if the Board determines “that the gravity of the current convicted offense or 4 offenses, or the timing and gravity of current or past convicted offense or offenses, is such that 5 the consideration of public safety requires a more lengthy period of incarceration for this 6 individual.” Cal. Penal Code § 3041(b). 7 Claim I asserts that the Governor misapplied state law. As such, this Claim is not 8 cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In 9 conducting habeas review, a federal court is limited to deciding whether a conviction violated the 10 Constitution, laws or treaties of the United States.”). Petitioner is not entitled to federal habeas 11 relief on Claim I that the Governor misapplied state law. 12 B. Claims II, III, IV and V 13 Claims II, III, IV and V take issue with the Governor’s analysis in ultimately determining 14 that Petitioner was not suitable for parole. While Petitioner makes several arguments within 15 these claims, the issues presented fundamentally turn on whether the Governor’s decision 16 denying parole comported with due process under the law. 17 The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives 18 a person of life, liberty, or property without due process of law. A person alleging a due process 19 violation must first demonstrate that he or she was deprived of a protected liberty or property 20 interest, and then show that the procedures attendant upon the deprivation were not 21 constitutionally sufficient. See Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 459-60 (1989). 22 The full panoply of rights afforded a defendant in a criminal proceeding is not constitutionally 23 mandated in the context of a parole proceeding. See Pedro v. Or. Parole Bd., 825 F.2d 1396, 24 1398-99 (9th Cir. 1987). The Supreme Court has held that a parole board’s procedures are 25 constitutionally adequate if the inmate is given an opportunity to be heard and a decision 26 informing him of the reasons he did not qualify for parole. See Greenholtz v. Inmates of Neb. 6 1 2 Penal and Corr. Complex, 442 U.S. 1, 16 (1979). The landscape of a California state prisoner bringing a due process claim for a denial of 3 parole has changed with the recent United States Supreme Court decision in Swarthout v. Cooke, 4 No. 10-333, – S.Ct. –, 2011 WL 197627 (Jan. 24, 2011) (per curiam). Prior to Swarthout, the 5 Ninth Circuit held that as a matter of state law, denial of parole to California inmates must be 6 supported by at least “some evidence” demonstrating current dangerousness. See Hayward v. 7 Marshall, 603 F.3d 546, 562-63 (9th Cir. 2010) (en banc). In its decision in Cooke v. Solis, 606 8 F.3d 1206, 1213 (9th Cir. 2010) rev’d by, Swarthout, 2011 WL 197627, the Ninth Circuit had 9 held that “California’s ‘some evidence’ requirement is a component of the liberty interest created 10 11 12 13 14 15 16 17 18 19 by the parole system of the state.” Swarthout reversed the Ninth Circuit in Cooke. The Supreme Court stated that regarding a California state prisoner’s due process rights with respect to parole that: Whatever liberty interest exists is, of course, a state interest created by California law. 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. 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. 442 U.S. at 16. “The Constitution,” we held, “does not require more.” Ibid. 20 21 Swarthout, 2011 WL 197627, at *2. The Supreme Court continued by explaining that, 22 “[b]ecause the only federal right at issue is procedural, the relevant inquiry is what process [the 23 petitioners] received, not whether the state court decided the case correctly.” Id. at *3. 24 Pursuant to the decision in Swarthout, Petitioner is not entitled to federal habeas relief on 25 his due process arguments as espoused in Claims II-V. In this case, Petitioner was given an 26 opportunity to be heard at his parole suitability hearing. He also was given a statement of 7 1 reasons why parole was eventually denied by the Governor. As the Supreme Court stated in 2 Greenholtz and reaffirmed in Swarthout, that is all that is required under the Federal 3 Constitution. The fact that Petitioner was denied parole by the Governor rather than the Board 4 also does not mean that Petitioner is entitled to federal habeas relief. One of the petitioners in 5 Swarthout (Elijah Gray) had been found suitable for parole by the Board, but the Governor 6 reversed. See 2011 WL 197627, at *2. Even though it was the Governor rather than the Board 7 that found the petitioner unsuitable for parole, the United States Supreme Court made no 8 distinction regarding the due process that was due to a petitioner under such circumstances. 9 While Petitioner raises several issues regarding whether the Governor acted properly in finding 10 that Petitioner was “currently dangerous” under the relevant California parole regulations 11 scheme, a federal habeas court should not reach that issue. As the Supreme Court recently held 12 in Swarthout, “the only federal right at issue is procedural,” and the relevant inquiry is the 13 process that the petitioner received, not whether the state courts decided the case correctly. 14 See 2011 WL 197627 at *3. Therefore, Petitioner’s due process arguments do not merit federal 15 habeas relief under these circumstances.2 16 17 18 19 20 21 22 23 24 25 26 2 In Claim II, Petitioner argues that the Governor’s finding that the murder involved the infliction of torture was unsupported in the record and violated his Sixth and Fourteenth Amendment rights because it was not specifically found by the jury at trial. In support of this argument, Petitioner cites to Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004). The rule from Apprendi and its progeny is that “under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence [than the statutory maximum] must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” Cunningham v. California, 549 U.S. 270, 281 (2007). In California, the sentence for a person convicted of first degree murder is death, life without parole, or twenty-five years to life. See Cal. Penal Code § 190(a). In this case, Petitioner was sentenced to a term of years to life imprisonment, thus, the sentence is a life sentence until Petitioner is found suitable for parole. See In re Dannenberg, 34 Cal. 4th 1061, 1083-84, 23 Cal. Rptr. 3d 417, 104 P.3d 783 (2005) (“[A]n inmate whose offense was so serious to warrant, at the outset, a maximum term of life in prison, may be denied parole during whatever time the Board deems required for ‘this individual’ by ‘consideration of the public safety.’”) (quoting Cal. Penal Code § 3041(b)). The Governor’s determination that the commitment crime involved the infliction of torture does not increase the penalty for Petitioner’s crime, but rather is a decision on whether his already imposed imprisonment should continue and, therefore, Apprendi/Blakely are not applicable to this issue. 8 1 C. Claim VI 2 In his final Claim, Petitioner asserts an Ex Post Facto Clause violation when the 3 Governor reversed his parole grant. Petitioner was convicted in 1981. At that time, California 4 law provided that the Board had sole responsibility for deciding whether inmates were suitable 5 for parole. In 1988, California voters approved Proposition 89 which provided review of a parole 6 decision by the Governor. Petitioner asserts that because his conviction occurred before the 7 passage of Proposition 89, the Governor’s subsequent denial of his parole in 2004 violated the 8 Ex Post Facto Clause. 9 The Ex Post Facto Clause applies to criminal legislation that effects an increase in 10 criminal punishment, criminalizes conduct that was not previously criminal or requires proof for 11 conviction of an offense that was previously required. See Collins v. Youngblood, 497 U.S. 37, 12 42 (1990). In California Department of Corrections v. Morales, 514 U.S. 499, 514 (1995), the 13 Supreme Court stated that without evidence that the new law substantively changed the definition 14 of criminal conduct or altered the standards of parole eligibility, it “created only the most 15 speculative and attenuated risk of increasing the measure of punishment.” 16 In a factually similar case to the case at bar, the Ninth Circuit rejected an argument by a 17 petitioner that the California Governor’s reversal of the Board’s decision granting parole violated 18 the Ex Post Facto Clause. See Johnson v. Gomez, 92 F.3d 964 (9th Cir. 1996). Ultimately, the 19 Ninth Circuit found as follows: 20 21 22 23 24 25 26 In this case, Johnson is similarly unable to demonstrate that an increase in his punishment actually occurred, because, like the petitioner in Morales, he had not been granted parole under the old law. Under the old law, BPT’s decision would have been subject to no review. Johnson’s case is like Dobbert [v. Florida 432 U.S. 282 (1977)], where the petitioner could only speculate whether the jury would have imposed a life sentence had it possessed the final power to decide. Here, because the BPT’s parole decision is not final until after the expiration of the thirty-day gubernatorial review period, it cannot be said with certainty that the BPT would have granted Johnson parole had it possessed final review authority. Johnson argues that, unlike the administrative convenience purpose of the law in Morales, the purpose and effect of the law here is to 9 1 2 3 4 5 6 7 8 lengthen prison terms by making it more difficult for convicted murderers with indeterminate sentences to be released on parole. However, the law itself is neutral inasmuch as it gives the governor power to either affirm or reverse a BPT’s granting or denial of parole. Moreover, the governor must use the same criteria as the BPT. The law, therefore, simply removes final parole decisionmaking authority from the BPT and places it in the hands of the governor. We cannot materially distinguish this change in the law from that at issue in Mallet v. North Carolina, 181 U.S. [589,] at 590, 21 S.Ct. [730,] at 731. In Mallet, the Court found no ex post facto violation where the new law allowed for higher court review of intermediate court decisions, even though the petitioner would have been entitled to a final intermediate court decision at the time of his crime. We therefore conclude that the application of Proposition 89 to authorize the governor’s review of Johnson’s grant of parole did not violate the Ex Post Facto Clause. 9 10 Id. at 967 (internal citations omitted). 11 Petitioner’s arguments are similar to those that were rejected in Johnson. The Governor’s 12 review is based on the same criteria and record used by the Board. The additional layer of review 13 is neutral and does not, it and of itself, increase Petitioner’s punishment. 14 However, Petitioner also cites to Garner v. Jones, 529 U.S. 244 (2000) in support of his 15 ex post facto argument. Johnson was decided before the United States Supreme Court decided 16 Garner. In Garner, the Supreme Court addressed an as-applied ex post factor challenge to the 17 “retroactive application of a Georgia law permitting the extension of intervals between parole 18 considerations.” Id. at 246. In that case, the Court recognized that the “disadvantage” with 19 respect to an ex post facto violation can come from the terms of the statute themselves or from 20 the statute’s application to a particular defendant’s sentence. See id. at 255. The Court stated 21 that the relevant inquiry is that “[w]hen the rule does not by its own terms show a significant risk, 22 the [petitioner] must demonstrate, by evidence drawn from the rule’s practical implementation by 23 the agency charged with exercising discretion, that its retroactive application will result in a 24 longer period of incarceration than under the earlier rule.” Id. It determined that the petitioner 25 “must show that as applied to his own sentence the law created a significant risk of increasing his 26 punishment.” Id. at 255 (emphasis added). However, “[a]bsent a demonstration to the contrary, 10 1 we presume the Board follows its statutory commands and internal policies in fulfilling its 2 obligations.” Id. at 256. Thus, as the United States Court of Appeals for the District of 3 Columbia has noted: 4 Garner outlines two ways in which “significant risk” can be established by a petitioner. First, it can be established if there are facial distinctions between old and new parole/reparole regulations. Second, “when the rule does not by its own terms show a significant risk,” a claimant may also meet this burden “by [introducing] evidence drawn from the rule’s practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule.” The controlling inquiry is one of practical effect. 5 6 7 8 9 10 Fletcher v. Reilly, 433 F.3d 867, 877 (D.C. Cir. 2006) (emphases in original and citations 11 omitted). 12 Petitioner has not overcome the presumption that the Governor followed the “statutory 13 commands and internal policies in fulfilling [his] obligations.” Garner, 529 U.S. at 256. In this 14 case, the Governor’s reversal indicates that he considered petitioner’s suitability for parole in 15 accordance to the regulations and statutory commands. While Petitioner cites to several figures 16 reflecting the Governor’s high reversal rate with respect to when the Board grants parole, it does 17 not show that the Governor did not follow his respective commands in this case. See, e.g., 18 Hairston v. Kane, Civ. No. 06-1517, 2009 WL 773431, at *12 (N.D. Cal. Mar. 29, 2009) (“The 19 Governor’s reversal reflects individualized consideration of petitioner’s suitability for parole 20 according to statutory commands and regulations in fulfilling his obligation to review decisions 21 of the Board . . . the authority to review Board decisions granted to the Governor by Proposition 22 89 did not violate the Ex Post Facto Clause.”); Seiler v. Brown, Civ. No. 04-2911, 2007 WL 23 2501518, at * 5 (N.D. Cal. Aug. 30, 2007) (“Petitioner has not overcome the presumption that 24 the Governor followed the statutory commands and internal policies in fulfilling [his] 25 obligations. He has said that the governor[‘s] . . . tough on crime political stance . . . [has] 26 result[ed] in the reversal of all but eight (8) out of approximately three hundred and fifty (350) 11 1 findings of parole suitability by the Board of Prison Terms. This . . . reversal rate does not show 2 with specific facts and details that in petitioner’s case the Governor did not follow the statutory 3 commands and internal policies in fulfilling his obligation to review decisions of the BPT.”). 4 Thus, for the foregoing reasons, Petitioner is not entitled to federal habeas relief on Claim VI. 5 V. PETITIONER’S REQUESTS 6 A. Request for Order to Show Cause 7 Petitioner requests an order to show cause in his petition. (See Pet’r’s Pet. at p. 67.) 8 Respondent answered the petition on June 28, 2006. Accordingly, Petitioner’s request for an 9 order to show cause is denied as moot. 10 B. Request to Conduct Discovery 11 In his traverse, Petitioner requests discovery. (See Pet’r’s Traverse at p. 23.) Parties to a 12 habeas proceeding are not entitled to discovery as a matter of course. See Bracy v. Gramley, 520 13 U.S. 899, 904 (1997). Rather, “[a] judge may, for good cause, authorize a party to conduct 14 discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery.” 15 Rule 6(a), Rules Governing § 2254 cases; see also Bracy, 520 U.S. at 904. Good cause is shown 16 “where specific allegations before the court show reason to believe that the petitioner may, if the 17 facts are fully developed, be able to demonstrate that he is . . . entitled to relief.” Id. at 909-09 18 (internal quotation marks and citation omitted); see also Pham v. Terhune, 4900 F.3d 740, 743 19 (9th Cir. 2004). A request for discovery “must also include any proposed interrogatories and 20 requests for admission, and must specify any requested documents.” Rule 6(b), Rules Governing 21 § 2254 Cases. 22 In this case, Petitioner fails to show good cause to warrant his request for discovery. He 23 fails to include any proposed interrogatories or any request for documents. This request is 24 denied. 25 C. Request for an Evidentiary Hearing 26 Next, Petitioner requests an evidentiary hearing. Pursuant to 28 U.S.C. § 2254(e)(2), a 12 1 district court presented with a request for an evidentiary hearing must first determine whether a 2 factual basis exists in the record to support a petitioner’s claims and, if not, whether an 3 evidentiary hearing “might be appropriate.” Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 4 1999); see also Earp v. Ornoski, 431 F.3d 1158, 1166-67 (9th Cir. 2005). A petitioner requesting 5 an evidentiary hearing must also demonstrate that he has presented a “colorable claim for relief.” 6 Earp, 431 F.3d at 1167 (citations omitted). To show that a claim is “colorable,” a petitioner is 7 “required to allege specific facts which, if true, would entitle him to relief.” Ortiz v. Stewart, 149 8 F.3d 923, 934 (9th Cir. 1998) (internal quotation marks and citation omitted). 9 10 In this case, an evidentiary hearing is not warranted. Petitioner failed to demonstrate that he has a colorable claim for federal habeas relief for the reasons stated in supra Part IV. 11 D. Request for Supplemental Briefing 12 On December 5, 2008, Petitioner requested supplemental briefing in light of the 13 California Supreme Court’s decision in In re Lawrence. This court will not allow piecemeal 14 filing of supplemental briefs in this action. The applicability of In re Lawrence in this federal 15 habeas case has been alleviated by the United States Supreme Court decision in Swarthout. The 16 request is denied. 17 VI. CONCLUSION 18 For the foregoing reasons, IT IS HEREBY ORDERED that: 19 1. 20 The November 24, 2010 Order, Findings and Recommendations is hereby VACATED; 21 2. Petitioner’s request for an order to show cause is DENIED AS MOOT; 22 3. Petitioner’s request to conduct discovery is DENIED; 23 4. Petitioner’s request for an evidentiary hearing is DENIED; and 24 5. Petitioner’s request for supplemental briefing is DENIED. 25 IT IS HEREBY RECOMMENDED that Petitioner’s Petition for writ of habeas corpus be 26 DENIED. 13 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 3 after being served with these findings and recommendations, any party may file written 4 objections with the court and serve a copy on all parties. Such a document should be captioned 5 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 6 shall be served and filed within seven days after service of the objections. The parties are 7 advised that failure to file objections within the specified time may waive the right to appeal the 8 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In any objections he 9 elects to file, petitioner may address whether a certificate of appealability should issue in the 10 event he elects to file an appeal from the judgment in this case. See Rule 11, Federal Rules 11 Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability 12 when it enters a final order adverse to the applicant). 13 DATED: February 3, 2011 14 15 16 TIMOTHY J BOMMER UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 14
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