(HC) Wilson v. Walker et al, No. 2:2007cv02752 - Document 42 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 02/14/11 recommending that petitioner's request for an evidentiary hearing be denied; and petitioner's application for a writ of habeas corpus be denied. Referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)
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(HC) Wilson v. Walker 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 STEVE WILSON, 11 Petitioner, 12 No. CIV S-07-2752 GEB EFB P vs. 13 J. WALKER, Warden, et al., 14 Respondents. FINDINGS & RECOMMENDATIONS / 15 Petitioner is a state prisoner proceeding in propria persona with a petition for a writ of 16 17 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the decision of the California 18 Board of Parole Hearings (hereinafter “Board”) to deny him parole at a parole consideration 19 hearing held on September 21, 2005. Upon careful consideration of the record and the 20 applicable law, the undersigned recommends that petitioner’s application for habeas corpus relief 21 be denied. 22 I. Procedural Background Petitioner is confined pursuant to a 1982 judgment of conviction entered against him in 23 24 the Inyo County Superior Court following his conviction on a charge of first degree murder. 25 //// 26 //// 1 Dockets.Justia.com 1 Pet. at 1.1 Pursuant to that conviction, petitioner was sentenced to twenty-five years to life in 2 state prison. Id. 3 The parole consideration hearing that is placed at issue by the instant petition was held on 4 September 21, 2005. Dckt. 1-1 at 66. Petitioner appeared at and participated in the hearing. 5 Dckt. 1-1 at 66-124; Dckt. 1-2 at 1-36. Following deliberations held at the conclusion of the 6 hearing, the Board panel announced their decision to deny petitioner parole for four years and 7 the reasons for that decision. Dckt. 1-2 at 37-45. 8 Petitioner filed three habeas petitions in California courts challenging the denial of 9 parole. On May 22, 2006, petitioner filed a habeas petition in the Inyo County Superior Court. 10 Answer, Ex. 1. On June 26, 2006, that petition was denied. Id., Ex. 2. On October 20, 2006, 11 petitioner filed a habeas petition in the California Court of Appeal for the Third Appellate 12 District. Id., Ex. 3. The Court of Appeal denied the petition on November 2, 2006, without 13 prejudice to filing in the Court of Appeal for the Fourth Appellate District. Id., Ex. 4. On May 14 21, 2007, petitioner filed a habeas petition in the California Supreme Court. Id., Ex. 5. That 15 petition was summarily denied on October 10, 2007. Id., Ex. 6. 16 II. Standards for a Writ of Habeas Corpus 17 18 Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim: 19 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 20 21 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 22 23 28 U.S.C. § 2254(d). 24 //// 25 1 26 Page number citations such as these are to the page number reflected on the court’s CM/ECF system and not to page numbers assigned by the parties. 2 1 Under section 2254(d)(1), a state court decision is “contrary to” clearly established 2 United States Supreme Court precedents “if it ‘applies a rule that contradicts the governing law 3 set forth in [Supreme Court] cases’, or if it ‘confronts a set of facts that are materially 4 indistinguishable from a decision’” of the Supreme Court and nevertheless arrives at a different 5 result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 6 (2000)). 7 Under the “unreasonable application” clause of section 2254(d)(1), a federal habeas court 8 may grant the writ if the state court identifies the correct governing legal principle from the 9 Supreme Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s 10 case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ simply because 11 that court concludes in its independent judgment that the relevant state-court decision applied 12 clearly established federal law erroneously or incorrectly. Rather, that application must also be 13 unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is “not 14 enough that a federal habeas court, in its independent review of the legal question, is left with a 15 ‘firm conviction’ that the state court was ‘erroneous.’”) 16 The court looks to the last reasoned state court decision as the basis for the state court 17 judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). See also Barker v. Fleming, 423 18 F.3d 1085, 1091 (9th Cir. 2005) (“When more than one state court has adjudicated a claim, we 19 analyze the last reasoned decision”). Where the state court reaches a decision on the merits but 20 provides no reasoning to support its conclusion, a federal habeas court independently reviews the 21 record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. 22 Lewis, 223 F.3d 976, 982 (9th Cir. 2000). 23 III. Petitioner’s Claims 24 A. Due Process 25 Petitioner’s first claim is that the Board’s 2005 decision violated his right to due process 26 because it was not support by “any evidence” that he was unsuitable for parole. Pet. at 5. He 3 1 argues that his commitment offense, standing alone, is insufficient to demonstrate he is currently 2 dangerous, and that numerous other factors indicate he is ready to be paroled. Id. at 5-13.2 3 The Due Process Clause of the Fourteenth Amendment prohibits state action that 4 deprives a person of life, liberty, or property without due process of law. A litigant alleging a 5 due process violation must first demonstrate that he was deprived of a liberty or property interest 6 protected by the Due Process Clause and then show that the procedures attendant upon the 7 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 8 490 U.S. 454, 459-60 (1989). 9 A protected liberty interest may arise from either the Due Process Clause of the United 10 States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 11 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 221 12 (2005) (citations omitted). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The 13 United States Constitution does not, of its own force, create a protected liberty interest in a 14 parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); 15 Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or 16 inherent right of a convicted person to be conditionally released before the expiration of a valid 17 sentence.”); see also Hayward v. Marshall, 603 F.3d 546, 561 (9th Cir. 2010) (en banc). 18 However, “a state’s statutory scheme, if it uses mandatory language, ‘creates a presumption that 19 parole release will be granted’ when or unless certain designated findings are made, and thereby 20 gives rise to a constitutional liberty interest.” Greenholtz, 442 U.S. at 12). See also Allen, 482 21 U.S. at 376-78; 22 2 23 24 25 26 Petitioner also alleges that the Board’s decision violated his rights pursuant to the Sixth and Eighth Amendments. Pet. at 5. He does not elaborate on these claims in the body of the petition. Accordingly, they should be denied as vague and conclusory. Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (“‘[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief’”) (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)). In any event, petitioner has failed to demonstrate that the Board’s decision rendered his sentence cruel and unusual, in violation of the Eighth Amendment, or violated his Sixth Amendment rights in any way. 4 1 California’s parole scheme gives rise to a liberty interest in parole protected by the 2 federal due process clause. Swarthout v. Cooke, 562 U.S. ___ (2011), No. 10-333, 2011 WL 3 197627, at *2 (Jan. 24, 2011) (per curiam). In California, a prisoner is entitled to release on 4 parole unless there is “some evidence” of his or her current dangerousness. In re Lawrence, 44 5 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). 6 However, the United States Supreme Court has held that correct application of California’s 7 “some evidence” standard is not required by the federal Due Process Clause. Swarthout, 2011 8 WL 197627, at *2. Rather, the inquiry on federal habeas is whether the petitioner has received 9 “fair procedures” for vindication of the liberty interest in parole given by the state. Id. In the 10 context of a parole suitability hearing, a petitioner receives adequate process when he/she is 11 allowed an opportunity to be heard and a statement of the reasons why parole was denied. Id. at 12 **2-3 (federal due process satisfied where petitioners were “allowed to speak at their parole 13 hearings and to contest the evidence against them, were afforded access to their records in 14 advance, and were notified as to the reasons why parole was denied”); see also Greenholtz, 442 15 U.S. at 16. 16 Here, the record reflects that petitioner was present at the 2005 parole hearing, that he 17 participated in the hearing, and that he was provided with the reasons for the Board’s decision to 18 deny parole. Pursuant to Swarthout, this is all that due process requires. Accordingly, petitioner 19 is not entitled to relief on his claim that the Board’s 2005 decision finding him unsuitable for 20 parole violated his right to due process. 21 B. Ex Post Facto 22 Petitioner’s second claim is that the decision of the Board in 2005 to deny him parole for 23 four years, instead of one year, violates the Ex Post Facto Clause because “extending his 24 hearings from once annually to once every four years is a law that was enacted long after his 25 commitment offense of May 30, 1979.” Pet. at 5; Traverse at 8. In essence, petitioner is 26 claiming that the four-year parole denial rendered by the Board in 2005 violated the Ex Post 5 1 Facto Clause because he should have been entitled to annual parole suitability hearings based on 2 the law in effect at the time of his commitment offense in 1979. 3 The Constitution provides that “No State shall . . . pass any . . . ex post facto Law.” U.S. 4 CONST. art. I, § 10. See also Garner v. Jones, 529 U.S. 244, 249 (2000). A law violates the Ex 5 Post Facto Clause of the United States Constitution if it: (1) punishes as criminal an act that was 6 not criminal when it was committed; (2) makes a crime’s punishment greater than when the 7 crime was committed; or (3) deprives a person of a defense available at the time the crime was 8 committed. Collins v. Youngblood, 497 U.S. 37, 52 (1990). The Ex Post Facto Clause “is aimed 9 at laws that retroactively alter the definition of crimes or increase the punishment for criminal 10 acts.” Souch v. Schaivo, 289 F.3d 616, 620 (9th Cir. 2002)). See also Cal. Dep't of Corr. v. 11 Morales, 514 U.S. 499, 504 (1995). The Ex Post Facto Clause is also violated if: (1) state 12 regulations have been applied retroactively to a defendant; and (2) the new regulations have 13 created a “sufficient risk” of increasing the punishment attached to the defendant's crimes. 14 Himes v. Thompson, 336 F.3d 848, 854 (9th Cir. 2003). Not every law that disadvantages a 15 defendant is a prohibited ex post facto law. In order to violate the clause, the law must 16 essentially alter “the definition of criminal conduct” or increase the “punishment for the crime.” 17 Lynce v. Mathis, 519 U.S. 433, 441-42 (1997). 18 As petitioner points out, California Penal Code § 3041.5 has been amended several times 19 since the date of his conviction to allow for longer periods of time between parole suitability 20 hearings. Ex Post Facto challenges to those amendments have all been rejected. See Gilman v. 21 Schwarzenegger, ___ F.3d ___, No. 10-15471, 2011 WL 198435 (9th Cir. Jan. 24, 2011) (2010 22 change in Cal. Penal Code § 3041.5 to increase maximum deferral period of parole suitability 23 hearings from five years to fifteen years not a violation of Ex Post Facto Clause because there 24 was no evidence longer defferal period created a sufficient risk of increasing punishment); 25 Morales, 514 U.S. at 509 (1981 amendment to Cal. Penal Code § 3041.5, which increased 26 maximum deferral period of parole suitability hearings to five years did not violate the Ex Post 6 1 Facto Clause because it simply altered the method of setting a parole release date and did not 2 create a meaningful “risk of increasing the measure of punishment attached to the covered 3 crimes”); Watson v. Estelle, 886 F.2d 1093, 1097-98 (9th Cir. 1989) (not a violation of the Ex 4 Post Facto Clause to apply § 3041.5(b)(2)(A) to prisoners sentenced to life imprisonment prior to 5 the implementation of California's Determinate Sentence Law in 1977); Clifton v. Attorney 6 General Of the State of California, 997 F.2d 660, 662 n.1 (9th Cir. 1993) (same). In light of 7 these cases, petitioner is not entitled to relief on his ex post facto claim.3 8 C. Equal Protection 9 In his third ground for relief, petitioner claims that the Board’s 2005 decision finding him 10 unsuitable for parole violated his right to equal protection of the laws. Pet. at 14. Petitioner cites 11 several state cases wherein prisoners were given a parole date, and he points out some 12 similarities between his crime of conviction and theirs. Id. at 14-15. A petitioner raising an 13 equal protection claim in the parole context must demonstrate that he was treated differently 14 from other similarly situated prisoners and that the Board lacked a rational basis for its decision. 15 McGinnis v. Royster, 410 U.S. 263, 269-70 (1973); McQueary v. Blodgett, 924 F.2d 829, 835 16 (9th Cir. 1991). Petitioner has failed to show that any other inmate who was similarly situated to 17 him was granted a parole date. As respondent points out, petitioner was treated equally to other 18 indeterminate life-term inmates seeking parole in that he was given a hearing pursuant to state 19 law where his individual circumstances were considered in determining whether he was suitable 20 3 21 22 23 24 25 26 In his traverse, petitioner states that he is aware of these cases but argues that his case “may differ” because: (1) the California Office of Administrative Law “struck down the Parole Board’s policy not to permit lifers to present witnesses at parole hearings, yet, the Parole Board continues to deny lifer inmates to have witnesses at their hearings;” (2) members of the California Parole Board do not reflect “a cross-section of the racial, sexual, economic, and geographic features of the state,” in violation of the California Penal Code; (3) the Board is improperly “denying inmates parole not based on their ‘current’ danger to society but rather on their subjective degree of ‘insight;’ and (4) the Board uses “their own doctors of Psychology” to conduct evaluations on potential parolees, which results in significantly fewer positive evaluations. Traverse at 9-10. These arguments do not convince this court that the Board’s decision to postpone petitioner’s next suitability hearing for four years constituted an Ex Post Facto violation. 7 1 for parole. For these reasons, petitioner is not entitled to relief on his claim that his equal 2 protection rights were violated by the Board’s conclusion in 2005 that he was not suitable for 3 parole. 4 D. Violation of Plea Agreement 5 In his final claim, petitioner argues that the Board’s 2005 decision finding him unsuitable 6 for parole and its refusal to set a release date violated the terms of his plea agreement. Pet. at 14. 7 He states that he was told by his trial attorney that he would “serve a total of seventeen years in 8 prison for a term of twenty five years to life.” Id. In his petition for a writ of habeas corpus filed 9 in the California Supreme Court, petitioner attached his own declaration, in which he explains 10 that: (1) he “was offered a plea bargain from the District Attorney’s office through my attorney 11 of record for a period of 25 years to life;” (2) his attorney told him he “would only have to do a 12 total of seventeen years in prison on the plea bargain of twenty five years to life;” and (3) his 13 attorney told him to tell the judge at the plea colloquy that he “was not made any promises,” 14 despite having been told by his counsel that he would only serve seventeen years. Answer, Dckt. 15 35-3, at 103. Petitioner also points out that he told the Commissioners at the Board hearing in 16 2005 that when he arrived at Folsom prison to serve his prison term, he informed the guards that 17 his attorney had told him he would “get out after 17 years.” See Dckt. 35-4 at 31-32. According 18 to petitioner, the guards told him he would not be getting out in 17 years and that his attorney did 19 not have “the authority to tell [him] that.” Id. at 31. 20 Plea agreements are contractual in nature and are construed using the ordinary rules of 21 contract interpretation. United States v. Transfiguracion, 442 F.3d 1222, 1228 (9th Cir. 2006); 22 Brown v. Poole, 337 F.3d 1155, 1159 (9th Cir. 2003). Courts will enforce the literal terms of the 23 plea agreement but must construe any ambiguities against the government. United States v. 24 Franco-Lopez, 312 F.3d 984, 989 (9th Cir. 2002). “[W]hen a plea rests in any significant degree 25 on a promise or agreement of the prosecutor, so that it can be said to be a part of the inducement 26 or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 8 1 (1971). In construing a plea agreement, this court must determine what petitioner reasonably 2 believed to be its terms at the time of the plea. United States v. Anderson, 970 F.2d 602, 607 3 (9th Cir. 1992), as amended, 990 F.2d 1163 (9th Cir. 1993). 4 Petitioner has failed to demonstrate that the Board’s decision finding him unsuitable for 5 parole violated the terms of his plea agreement. There is nothing in the record which reflects a 6 promise by the prosecutor or the trial judge that petitioner would be released or granted parole at 7 any particular time or even before the expiration of his life term. This court may not grant 8 habeas relief based upon petitioner’s unsupported statement that his attorney told him he would 9 be released after seventeen years. In any event, a prediction by petitioner’s attorney as to when 10 he might be released on parole does not constitute an “agreement of the prosecutor, so that it can 11 be said to be part of the inducement or consideration of the plea agreement.” Santobello, 404 12 U.S. at 262. In the absence of an agreement that can be specifically enforced, the Board is not 13 required to find petitioner eligible for parole upon completion of a set term of years. Rather, 14 consideration of parole suitability remains within the sound discretion of the Board. Cal. Penal 15 Code § 3041. Accord, Atkins v. Davison, 687 F. Supp.2d 964, 975-76 (C.D. Cal. 2009). The 16 decision of the state courts rejecting petitioner’s claim in this regard is not contrary to or an 17 unreasonable application of federal law, nor is it based on an unreasonable determination of the 18 facts of this case. Accordingly, petitioner is not entitled to relief on this claim. 19 IV. Request for Evidentiary Hearing 20 Petitioner requests an evidentiary hearing on his claims. Traverse at 3. 21 Pursuant to 28 U.S.C. § 2254(e)(2), an evidentiary hearing is appropriate under the 22 following circumstances: 23 (e)(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that- 24 25 26 (A) the claim relies on//// 9 (I) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or 1 2 (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and 3 4 (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense[.] 5 6 7 Under this statutory scheme, a district court presented with a request for an evidentiary 8 hearing must first determine whether a factual basis exists in the record to support a petitioner’s 9 claims and, if not, whether an evidentiary hearing “might be appropriate.” Baja v. Ducharme, 10 187 F.3d 1075, 1078 (9th Cir. 1999). See also Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 11 2005); Insyxiengmay v. Morgan, 403 F.3d 657, 669-70 (9th Cir. 2005). A petitioner requesting 12 an evidentiary hearing must also demonstrate that he has presented a “colorable claim for relief.” 13 Earp, 431 F.3d at 1167 (citing Insyxiengmay, 403 F.3d at 670, Stankewitz v. Woodford, 365 F.3d 14 706, 708 (9th Cir. 2004) and Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001)). To show 15 that a claim is “colorable,” a petitioner is “required to allege specific facts which, if true, would 16 entitle him to relief.” Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998) (internal quotation 17 marks and citation omitted). 18 The court concludes that no additional factual supplementation is necessary in this case 19 and that an evidentiary hearing is not appropriate with respect to the due process claim raised in 20 the instant petition. The facts alleged in support of these claims, even if established at a hearing, 21 would not entitle petitioner to federal habeas relief. Therefore, petitioner’s request for an 22 evidentiary hearing should be denied. 23 //// 24 //// 25 //// 26 //// 10 1 V. Conclusion 2 Accordingly, IT IS HEREBY RECOMMENDED that: 3 1. Petitioner’s request for an evidentiary hearing be denied; and 4 2. Petitioner’s application for a writ of habeas corpus be denied. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 7 after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 10 within the specified time may waive the right to appeal the District Court’s order. Turner v. 11 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 In any objections he elects to file, petitioner may address whether a certificate of 13 appealability should issue in the event he files an appeal of the judgment in this case. See Rule 14 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 15 certificate of appealability when it enters a final order adverse to the applicant); Hayward v. 16 Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (prisoners are required to obtain a certificate of 17 appealability to review the denial of a habeas petition challenging an administrative decision 18 such as the denial of parole by the parole board). 19 DATED: February 14, 2011. 20 21 22 23 24 25 26 11
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