Cook v. Sisto
Filing
22
ORDER signed by Chief Judge Robert H. Whaley on 5/14/2010 ORDERING 1 Petition for Writ of Habeas Corpus is DENIED; and the Court issues a Certificate of Appealability on the issue of whether Petitioner has shown that he is entitled to habeas relief on his claim that the state violated his due process rights by not providing a written basis for its determination that Petitioners suitability hearings should be held less frequently than annually. Civil Case Terminated. CASE CLOSED. (Matson, R)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 B e fo re the Court is Petitioner's Amended Petition for Writ of Habeas Corpus, J E FFR Y IAN COOK, P e titio ne r, v. D .K . SISTO, Warden, Respondent. ORDER DENYING HABEAS P E T I T I O N ; ISSUING COA N O . CV-07-387-RHW U N IT E D STATES DISTRICT COURT E A S T E R N DISTRICT OF CALIFORNIA
1 6 2 8 U.S.C. Section 2254 (Ct. Rec. 7). Petitioner is a state prisoner currently 1 7 c o nfine d at the California State Prison, Solano, in Vacaville, California, and is 1 8 p ro c e e d ing pro se. 19 P e titio n e r plead guilty to first degree murder (Cal. Penal Code § 187) and
2 0 w a s sentenced to an indeterminate term of twenty-five years to life imprisonment. 21 Petitioner filed a Writ of Habeas Corpus with Sacramento County Superior
2 2 C o u rt, asserting that the state of California had violated the plea agreement when it 2 3 fa ile d to provide Petitioner with a timely parole hearing. This petition was denied. 2 4 He then filed a Petition with the California Court of Appeal and the California 2 5 S u p re m e Court. These petitions were summarily denied. 26 On February 26, 2007, Petitioner filed a Petition for Writ of Habeas Corpus
2 7 in the Eastern District of California and asserted four grounds for relief: (1) the state 2 8 fa ile d to comply with state law in violation of Petitioner's due process rights; (2) O R D E R DENYING HABEAS PETITION; ISSUING COA ~ 1
1 P e titio n e r has a constitutional right to have the state comply with their part of the 2 p le a agreement; (3) Petitioner must be permitted to withdraw his plea; and (4) plea 3 a g re e m e n ts are contracts requiring the state to live up to their part of the contract. 4 Petitioner asserted that the state of California failed to provide him with a timely 5 p a ro le consideration hearing; he has a right to have a panel made up of a cross6 s e c tio n of society; and his sentence has been illegally increased beyond that 7 a llo w e d by law. Petitioner asserted that had he known that the state would violate 8 th e terms of the plea agreement, he would have never waived his constitutional 9 rig h ts and plead guilty. 10 On April 11, 2007, Magistrate Judge Gregory Hollows dismissed the petition
1 1 w ith leave to amend (Ct. Rec. 6). Judge Hollows noted that Petitioner did not 1 2 a lle g e that an actual term of his plea agreement was that the parole suitability 1 3 p a n e ls would be composed of members of the public who were not ex-law 1 4 e n fo rc e m e n t officers and victims rights advocates, and that Petitioner did not 1 5 id e n tify any particular parole suitability hearing panel of his own that included 1 6 b ia s e d members or cite to an example of bias shown by a panel member at one of 1 7 h is hearings. Finally, Judge Hollows noted that Petitioner did not allege that a 1 8 s p e c ific term of his plea agreement provided that he receive timely parole hearings, 1 9 o r describe any of the untimely parole hearings he allegedly received. 20 O n May 5, 2007, Petitioner filed an Amended Petition for Writ of Habeas
2 1 C o rp u s (Ct. Rec. 7). In his amended petition, Petitioner argued that his plea 2 2 a g re e m e n t was violated because he did not receive timely parole hearings and 2 3 b e c a u s e the members of the parole hearing panels were biased. He also asserted 2 4 th a t his due process rights were violated based on an untimely parole suitability 2 5 h e a rin g . He stated that on August 11, 2004, he was denied parole for one year, but 2 6 d id not receive his next suitability hearing until February 16, 2006six months late. 27 Judge Hollows issued a Report and Recommendations recommending that
2 8 th e action be dismissed (Ct. Rec. 8). Judge Lawrence Karlton declined to adopt the O R D E R DENYING HABEAS PETITION; ISSUING COA ~ 2
1 R e p o rt and Recommendation (Ct. Rec. 9). Judge Karlton liberally construed 2 P e titio n e r's Amended Petition and concluded that Petitioner stated a cognizable 3 c la im that the state violated his due process rights by failing to comply with state 4 la w in the timing of his suitability hearings. Specifically, Judge Karlton found that 5 a n individual's federal due process rights may be implicated when a state 6 e rro n e o u s ly applies state law, and this failure can be a basis for habeas relief under 7 A E D P A . Judge Karlton, relying on In re Jackson, found that an inmate has a 8 p ro c e d u ra l due process interest in the state's compliance with the parole statutes. 9 U n d e r California Penal Code section 3041.5(b)(2), if an inmate is found
1 0 u n s u ita b le for parole, "[t]he board shall hear [the] case annually thereafter," unless 1 1 a n exception applies. An exception applies if the board determines that it is not 1 2 re a s o n a b le to expect that parole would be granted the following year and states its 1 3 b a s is for this determination. Cal. Penal Code § 3041.5(b)(2)(A)-(B). In that case, 1 4 th e board may hold the next suitability hearing two years later or up to five years 1 5 la te r for an inmate who has been convicted of murder. Id. 16 In a subsequent Order, the state was ordered to address whether it violated
1 7 P e titio n e r's due process rights by not providing a written basis for its determination 1 8 th a t Petitioner's suitability hearings should be held less frequently than annually 1 9 (C t. Rec. 10). 20 21 S TANDARD OF REVIEW In order to succeed with his § 2254 petition, Petitioner must establish that he
2 2 is in custody in violation of the Constitution or laws or treaties of the United States. 2 3 28 U.S.C. § 2254(a). Petitioner must also establish that his claims were adjudicated 2 4 o n the merits in state court proceedings and that the adjudication of the claim 2 5 " re s ulte d in a decision that was contrary to, or involved an unreasonable application 2 6 o f, clearly established Federal law, as determined by the Supreme Court of the 2 7 U nite d States; or resulted in a decision that was based on an unreasonable 2 8 d e te rmina tio n of the facts in light of the evidence presented in the State court O R D E R DENYING HABEAS PETITION; ISSUING COA ~ 3
1 p ro c e e d ing." § 2254(d). A determination of a factual issue made by the State court 2 s ha ll be presumed to be correct. § 2254(e). Petitioner has the burden of rebutting 3 the presumption of correctness by clear and convincing evidence. Id. 4 A state court's decision is "contrary to" clearly established federal law only
5 w he re "the state court arrives at a conclusion opposite to that reached by [the 6 S up re me ] Court on a question of law or if the state court decides a case differently 7 tha n [the Supreme] Court has on a set of materially indistinguishable facts." 8 W illia m s v. Taylor, 529 U.S. 362, 412-24 (2000). There is an "unreasonable 9 a p p lic a tio n" of clearly established federal law when a state court "correctly 1 0 id e ntifie s the governing legal rule but applies it unreasonably to the facts of a 1 1 p a rtic ula r prisoner's case." Id. at 407-08. A state court decision can also involve an 1 2 unre a s o na b le application of clearly established precedent "if the state court either 1 3 unre a s o na b ly extends a legal principle from [the Supreme Court's] precedent to a 1 4 ne w context where it should not apply or unreasonably refuses to extend that 1 5 p rinc ip le to a new context where it should apply." Id. at 407. The state court's 1 6 e rro r must be one that the habeas court concludes is objectively unreasonable, not 1 7 me re ly erroneous or incorrect. Id. at 409-11. 18 19 A NALYSIS T h e Sacramento County Superior Court issued a written opinion, addressing
2 0 P e titio n e r's challenges to the Board of Parole Hearings itself and to the alleged 2 1 d e la y in his parole suitability hearing (Ct. 15-2, Ex. 2). The court noted that it had 2 2 p re v io u s ly dismissed Petitioner's challenge to the make-up of the Board. It noted 2 3 th a t Petitioner was afforded his parole consideration when he obtained a hearing on 2 4 F e b ru a ry 15, 2006, and therefore, his claim was moot. The court denied the 2 5 p e titio n . 26 In his federal proceedings, Judge Karlton read Petitioner to be alleging that
2 7 b e c a u s e the parole hearing did not take place within the one-year period, the Board 2 8 im p lic itly determined that the exception applied and implicitly determined that the O R D E R DENYING HABEAS PETITION; ISSUING COA ~ 4
1 p a ro le eligibility hearing would be in two years. The record relies on this 2 c o n c lu s io n . 3 The Board of Prison Terms State Prisoner Hearing Decision Face Sheet (Ct.
4 R e c . 15-2, Ex. B) explicitly indicates that parole was denied by one year. In 5 a d d itio n , the Board recommended that Petitioner get self-help when available, stay 6 d is c ip lin e free, and continue positive programming. Under the California statute, 7 n o written findings were required, since parole was denied for one year. If the 8 B o a rd had determined it would hold the hearing in two years, the hearing date 9 w o u ld have been in August, 2006. Yet, the hearing was held in February, 2006. 1 0 Moreover, the document clearly states that parole is denied for one year. The Court 1 1 fin d s that no written documentation was required to set forth the reasons for 1 2 a p p ly in g the exception to the one-year rule because at the time parole was denied, 1 3 th e re was no indication that the Board intended anything other than to deny parole 1 4 fo r one year. Moreover, Petitioner has not shown that even if he was entitled to a 1 5 w ritte n explanation because the Board issued a multi-year denial, this is anything 1 6 b u t a violation of state law. As such, even if the state statute was violated, such a 1 7 v io la tio n would not entitle Petitioner to habeas relief. 18 T h is does not mean that Petitioner could not allege that the delay in the
1 9 s u b s e q u e n t parole hearing was a violation of his due process rights. He did make 2 0 s u c h a claim to the California Court of Appeals and the Supreme Court. Indeed, he 2 1 p re s e n te d these claims as a breach of contract claim and sought to withdraw from 2 2 h is plea agreement. The California courts' denial of this claim was not contrary to 2 3 o r an unreasonable application of federal law. Petitioner ultimately received his 2 4 h e a rin g and thus already received the only remedy to which he would be entitled. 2 5 See Burnett v. Lampert, 432 F.3d 996, 999 (9 th Cir. 2005) (discussing mootness); 2 6 B e n n y v. U.S. Parole Comm'n, 295 F.3d 977, 989-90 (9 th Cir. 2002) (holding that 2 7 re m e d y for federal prisoner entitled to parole termination hearing was mandamus 2 8 p e titio n ordering hearing). Moreover, Petitioner has not shown that the six-month O R D E R DENYING HABEAS PETITION; ISSUING COA ~ 5
1 d e la y in his receipt of his parole hearing violated due process. He has not shown 2 th a t the delay was unreasonable or prejudicial. See Hopper v. United States Parole 3 C o m m 'n ., 702 F.2d 842, 847 (9 th Cir. 1983). Moreover, even if Petitioner's due 4 p ro c e s s rights were violated by the six-month delay, this would not be grounds for 5 h a b e a s reliefrather, the proper course of action would be a § 1983 action for 6 dam ages. 7 F o r the reasons stated in Magistrate Judge Hollow's Report and
8 R e c o m m e n d a tio n s , the Court dismisses Petitioner's claim that his due process 9 rig h ts were violated because panel members of his suitability hearings were biased. 10 11 CERTIFICATE OF APPEALABILITY B e c a u s e this is the Court's final order in this matter, the December 1, 2009
1 2 a m e n d m e n ts to Rule 11(a) of the Federal Rules Governing Section 2254 Cases 1 3 re q u ire the Court to determine in this Order whether a certificate of appealability 1 4 s h o u ld issue. The Court finds additional briefing on this issue unnecessary. 15 T h e Antiterrorism and Effective Death Penalty Act of 1996 requires a habeas
1 6 p e titio n e r appealing the denial of a 28 U.S.C. § 2254 to obtain a certificate of 1 7 a p p e a la b ility . 28 U.S.C. § 2253(c). A court may issue a certificate of appealability 1 8 o n ly if the "applicant has made a substantial showing of the denial of a 1 9 c o n s titu tio n a l right." 28 U.S.C. § 2253(c)(2). A petitioner must show that 2 0 " re a s o n a b le jurists could debate whether . . . the petition should have been resolved 2 1 in a different manner or that the issues presented were adequate to deserve 2 2 e n c o u ra g e m e n t to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) 2 3 (in te rn a l quotations omitted). The decision to issue a certificate of appealability 2 4 tu rn s not on the court's assessment of the applicant's chances for success on appeal, 2 5 b u t whether the appeal would raise material and debatable questions. See Miller-El 2 6 v . Cockrell, 537 U.S. 322, 342 (2003). 27 H e re , Judge Karlton concluded that Petitioner stated a claim for relief. This
2 8 c o u rt disagreed. Therefore, Petitioner has made a showing that reasonable jurists O R D E R DENYING HABEAS PETITION; ISSUING COA ~ 6
1 c o u ld debate whether Petitioner should be afforded habeas relief. 2 3 Accordingly, IT IS HEREBY ORDERED: 1. Petition under 28 U.S.C. 2254 for Writ of Habeas Corpus by a Person in
4 S ta te Custody (Ct. Rec. 1) is DENIED. 5 2. The Court issues a Certificate of Appealability on the issue of whether
6 P e titio n e r has shown that he is entitled to habeas relief on his claim that the state 7 v io la te d his due process rights by not providing a written basis for its determination 8 th a t Petitioner's suitability hearings should be held less frequently than annually. 9 I T IS SO ORDERED. The District Court Executive is directed to enter this
1 0 O rd e r, forward copies to counsel and petitioner, and close the file. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 O R D E R DENYING HABEAS PETITION; ISSUING COA ~ 7
C:\WINDOWS\Temp\n otes101AA1\order.wpd
D A T E D this 14 th day of May, 2010.
s/Robert H. Whaley ROBERT H. WHALEY United States District Judge
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