(HC) Chavis v. Haviland, No. 2:2009cv02606 - Document 13 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 08/23/11 recommending that petitioner's application for a writ of habeas corpus be denied Referred to Judge Lawrence K. Karlton. Objections due within 21 days. (Plummer, M)
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(HC) Chavis v. Haviland Doc. 13 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 REGINALD CHAVIS, SR., 11 12 13 14 Petitioner, vs. JOHN W. HAVILAND, Respondent. 15 16 No. CIV S-09-2606 LKK DAD P FINDINGS & RECOMMENDATIONS / Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas 17 corpus pursuant to 28 U.S.C. § 2254. Petitioner raises several challenges to the decision of the 18 California Board of Parole Hearings (hereinafter “Board”) to deny him parole at his parole 19 consideration hearing held on June 14, 2007. The matter has been fully briefed by the parties and 20 is submitted for decision. Upon careful consideration of the record and the applicable law, the 21 undersigned will recommend that petitioner’s application for habeas corpus relief be denied. 22 I. Procedural Background 23 Petitioner is confined pursuant to a 1991 judgment of conviction entered against 24 him in the Sacramento County Superior Court on charges of attempted murder and mayhem. 25 (Doc. No. 1 at 1; Doc. No. 11 at 1.) Pursuant to that conviction, petitioner was sentenced to 26 seven years to life plus eight years in state prison. (Id.) 1 Dockets.Justia.com 1 As noted above, the parole consideration hearing that is placed at issue by the 2 instant federal habeas petition was held on June 14, 2007. (Doc. No. 1 at 48.) Petitioner 3 appeared at and participated in that hearing. (Id. at 50, et seq.) Following deliberations held at 4 the conclusion of the hearing, the Board panel announced their decision to deny petitioner parole 5 for two years as well as the reasons for that decision. (Id. at 135-44.) 6 Petitioner first challenged the Board’s 2007 decision in a petition for writ of 7 habeas corpus filed in the Los Angeles County Superior Court. (Answer, Ex. 1.) The Superior 8 Court denied that petition in a reasoned decision on the merits of petitioner’s claims. (Id.) On 9 June 2, 2008, petitioner filed a petition for writ of habeas corpus in the California Court of 10 Appeal challenging the Board’s 2007 decision finding him unsuitable for parole. (Answer, Ex. 11 2.) That petition was summarily denied. (Id.) On July 18, 2008, petitioner filed a petition for 12 review in the California Supreme Court. (Answer, Ex. 3.) The Supreme Court denied that 13 petition with citations to In re Clark, 5 Cal.4th 750 (1993) and In re Miller, 17 Cal.2d 734 (1941). 14 (Id.)1 15 On September 17, 2009, petitioner filed his federal application for habeas relief in 16 this court. Therein, petitioner contends that the Board’s 2007 decision to deny him parole, and 17 its decision to defer his next parole suitability hearing for two years, was not supported by “some 18 evidence” that he posed a current danger to society if released from prison, as required under 19 California law. Petitioner also raises several challenges to the conduct of the 2007 hearing. 20 Specifically, he contends that: (1) the hearing was not held in timely manner; (2) he was unable 21 22 23 24 25 26 1 Respondent argues that the California Supreme Court’s citation to In re Clark and In re Miller in denying review constitutes a state procedural bar which precludes this court from considering the merits of petitioner’s claims. A reviewing court need not invariably resolve the question of procedural default prior to ruling on the merits of a claim where the default issue turns on difficult questions of state law. Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997); see also Busby v. Dretke, 359 F.3d 708, 720 (5th Cir. 2004). Under the circumstances presented here, this court finds that petitioner’s claims can be resolved more easily by addressing them on the merits. Accordingly, this court will assume that petitioner’s claims are not procedurally defaulted and will address them on the merits. 2 1 to meet with his counsel for a sufficient period of time before the hearing commenced; (3) he was 2 not allowed to read his supporting exhibits into the record and the panel members did not have 3 sufficient time to read and consider these exhibits prior to issuing their decision; (4) the Board 4 improperly refused to order an updated psychological examination for petitioner prior to his 2007 5 hearing; (5) the Board violated California Penal Code § 5011 by requiring petitioner to admit his 6 guilt of the commitment offense as a condition to a favorable suitability decision; (6) the Board 7 improperly considered a letter from the Sacramento County Sheriff when determining whether 8 petitioner was suitable for parole even though the letter was not provided to petitioner prior to the 9 hearing; (7) the Board found petitioner unsuitable for parole based, in part, on his failure to 10 sufficiently participate in prison programming, even though petitioner is denied such 11 programming because of his race; and (8) the Board improperly deferred petitioner’s next 12 suitability hearing for a period of two years. Finally, petitioner claims that the Board’s 2007 13 decision violated his Eighth Amendment right to be free from cruel and unusual punishment and 14 his Fourteenth Amendment right to equal protection of the laws. 15 II. Standards of Review Applicable to Habeas Corpus Claims 16 An application for a writ of habeas corpus by a person in custody under a 17 judgment of a state court can be granted only for violations of the Constitution or laws of the 18 United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the 19 interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 20 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 21 1149 (9th Cir. 2000). 22 23 24 25 26 Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim 3 1 (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 2 3 4 (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. 5 For purposes of applying § 2254(d)(1), “clearly established federal law” consists 6 of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. 7 Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 8 (2000)). Nonetheless, “circuit court precedent may be persuasive in determining what law is 9 clearly established and whether a state court applied that law unreasonably.” Stanley, 633 F.3d at 10 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010). 11 A state court decision is “contrary to” clearly established federal law if it applies a 12 rule contradicting a holding of the Supreme Court or reaches a result different from Supreme 13 Court precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 14 (2003). Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may 15 grant the writ if the state court identifies the correct governing legal principle from the Supreme 16 Court’s decisions, but unreasonably applies that principle to the facts of the prisoner’s case.2 17 Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 18 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court “may not issue the writ 19 simply because that court concludes in its independent judgment that the relevant state-court 20 decision applied clearly established federal law erroneously or incorrectly. Rather, that 21 application must also be unreasonable.” Williams, 529 U.S. at 412. See also Schriro v. 22 Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal 23 habeas court, in its independent review of the legal question, is left with a ‘firm conviction’ that 24 2 25 26 Under § 2254(d)(2), a state court decision based on a factual determination is not to be overturned on factual grounds unless it is “objectively unreasonable in light of the evidence presented in the state court proceeding.” Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (quoting Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004)). 4 1 the state court was ‘erroneous.’”). “A state court’s determination that a claim lacks merit 2 precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of 3 the state court’s decision.” Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) 4 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for 5 obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s 6 ruling on the claim being presented in federal court was so lacking in justification that there was 7 an error well understood and comprehended in existing law beyond any possibility for fairminded 8 disagreement.” Harrington,131 S. Ct. at 786-87. 9 If the state court’s decision does not meet the criteria set forth in § 2254(d), a 10 reviewing court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. 11 Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th 12 Cir. 2008) (en banc) (“[I]t is now clear both that we may not grant habeas relief simply because 13 of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by 14 considering de novo the constitutional issues raised.”). 15 The court looks to the last reasoned state court decision as the basis for the state 16 court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 17 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning 18 from a previous state court decision, this court may consider both decisions to ascertain the 19 reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en 20 banc). “When a federal claim has been presented to a state court and the state court has denied 21 relief, it may be presumed that the state court adjudicated the claim on the merits in the absence 22 of any indication or state-law procedural principles to the contrary.” Harrington, 131 S. Ct. at 23 784-85. This presumption may be overcome by a showing “there is reason to think some other 24 explanation for the state court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 25 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides 26 no reasoning to support its conclusion, a federal habeas court independently reviews the record to 5 1 determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; 2 Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is 3 not de novo review of the constitutional issue, but rather, the only method by which we can 4 determine whether a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 5 853. Where no reasoned decision is available, the habeas petitioner still has the burden of 6 “showing there was no reasonable basis for the state court to deny relief.” Harrington, 131 S. Ct. 7 at 784. 8 9 When it is clear, however, that a state court has not reached the merits of a petitioner’s claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a 10 federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. 11 Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 12 2003). 13 III. Petitioner’s Claims 14 A. Due Process 15 As noted above, petitioner seeks federal habeas relief on due process grounds, 16 arguing that the Board’s 2007 decision to deny him parole for two years, and the findings upon 17 which that denial was based, were not supported by “some evidence” as required under 18 California law. 19 The Due Process Clause of the Fourteenth Amendment prohibits state action that 20 deprives a person of life, liberty, or property without due process of law. A litigant alleging a 21 due process violation must first demonstrate that he was deprived of a liberty or property interest 22 protected by the Due Process Clause and then show that the procedures attendant upon the 23 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 24 490 U.S. 454, 459-60 (1989). 25 A protected liberty interest may arise from either the Due Process Clause of the 26 United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 6 1 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 2 221 (2005). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States 3 Constitution does not, of its own force, create a protected liberty interest in a parole date, even 4 one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of 5 Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or inherent right of a convicted 6 person to be conditionally released before the expiration of a valid sentence.”). However, a 7 state’s statutory scheme, if it uses mandatory language, “creates a presumption that parole release 8 will be granted” when or unless certain designated findings are made, and thereby gives rise to a 9 constitutional liberty interest. Greenholtz, 442 U.S. at 12. See also Allen, 482 U.S. at 376-78. 10 California’s parole scheme gives rise to a liberty interest in parole protected by the 11 federal Due Process Clause. Pirtle v. California Bd. of Prison Terms, 611 F.3d 1015, 1020 (9th 12 Cir. 2010); McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002); see also Swarthout v. 13 Cooke, 562 U.S. ___ , ___, 131 S. Ct. 859, 861-62 (2011) (finding the Ninth Circuit’s holding in 14 this regard to be a reasonable application of Supreme Court authority); Pearson v. Muntz, 639 15 F.3d 1185, 1191 (9th Cir. 2011) (“[Swarthout v.] Cooke did not disturb our precedent that 16 California law creates a liberty interest in parole.”) In California, a prisoner is entitled to release 17 on parole unless there is “some evidence” of his or her current dangerousness. In re Lawrence, 18 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). 19 In Swarthout, the Supreme Court reviewed two cases in which California 20 prisoners were denied parole - in one case by the Board, and in the other by the Governor after 21 the Board had granted parole. Swarthout, 131 S. Ct. at 860-61. The Supreme Court noted that 22 when state law creates a liberty interest, the Due Process Clause of the Fourteenth Amendment 23 requires fair procedures, “and federal courts will review the application of those constitutionally 24 required procedures.” Id. at 862. The Court concluded that in the parole context, however, “the 25 procedures required are minimal” and that the “Constitution does not require more” than “an 26 opportunity to be heard” and being “provided a statement of the reasons why parole was denied.” 7 1 Id. (citing Greenholtz, 442 U.S. at 16). The Supreme Court therefore rejected Ninth Circuit 2 decisions that went beyond these minimal procedural requirements and “reviewed the state 3 courts’ decisions on the merits and concluded that they had unreasonably determined the facts in 4 light of the evidence.” Swarthout, 131 S. Ct. at 862. In particular, the Supreme Court rejected 5 the application of the “some evidence” standard to parole decisions by the California courts as a 6 component of the federal due process standard. Id. at 862-63.3 See also Pearson, 639 F.3d at 7 1191. 8 9 Under the Supreme Court’s decision in Swarthout this court may not review whether California’s “some evidence” standard was correctly applied in petitioner’s case. 131 S. 10 Ct. at 862-63; see also Miller v. Oregon Bd. of Parole and Post-Prison Supervision, 642 F.3d 11 711, 716 (9th Cir. 2011) (“The Supreme Court held in [Swarthout v.] Cooke that in the context 12 of parole eligibility decisions the due process right is procedural, and entitles a prisoner to 13 nothing more than a fair hearing and a statement of reasons for a parole board’s decision[.]”); 14 Roberts v. Hartley, 640 F.3d 1042, 1045-46 (9th Cir. 2011) (under the decision in Swarthout, 15 California’s parole scheme creates no substantive due process rights and any procedural due 16 process requirement is met as long as the state provides an inmate seeking parole with an 17 opportunity to be heard and a statement of the reasons why parole was denied); Pearson, 639 18 F.3d at 1191 (“While the Court did not define the minimum process required by the Due Process 19 Clause for denial parole under the California system, it made clear that the Clause’s requirements 20 were satisfied where the inmates ‘were allowed to speak at their parole hearings and to contest 21 ///// 22 23 24 25 26 3 In its per curiam opinion the Supreme Court did not acknowledge that for twenty-four years the Ninth Circuit had consistently held that in order to comport with due process a state parole board’s decision to deny parole had to be supported by “some evidence,” as defined in Superintendent v. Hill, 472 U.S. 445 (1985), that bore some indicia of reliability. See Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (9th Cir. 1987); McQuillion v. Duncan, 306 F.3d 895, 904 (9th Cir. 2002) (“In Jancsek . . . we held that the process that is due in the parole rescission setting is the same as the Supreme Court outlined in Superintendent v. Hill . . . .”) 8 1 the evidence against them, were afforded access to their records in advance, and were notified as 2 to the reasons why parole was denied.’”) 3 Here, the federal habeas petition pending before the court reflects that petitioner 4 was represented by counsel at his 2007 parole suitability hearing. (Doc. No. 1 at 50.) As set 5 forth above, the record also establishes that at that hearing petitioner was given the opportunity to 6 be heard and received a statement of the reasons why parole was denied for two years by the 7 Board panel. That is all the process that was due petitioner under the U.S. Constitution. 8 Swarthout, 131 S. Ct. 862; see also Miller, 642 F.3d at 716; Roberts, 640 F.3d at 1045-46; 9 Pearson, 639 F.3d at 1191. As the Supreme Court made clear in Swarthout, the U.S. 10 Constitution does not entitle petitioner to any other procedural safeguards, including a timely 11 parole suitability hearing in conformity with state regulations. Id. In particular, petitioner’s 12 claims that his suitability hearing was not held in timely manner, that he was unable to meet with 13 his counsel for a sufficient period of time before the hearing commenced, that the Board 14 improperly refused to order an updated psychological examination prior to his 2007 hearing, that 15 the Board required him to admit his guilt in connection with his commitment offense as a 16 condition to a favorable suitability decision, that the Board improperly considered a letter from 17 the Sacramento County Sheriff when determining whether he was suitable for parole even though 18 the letter was not provided to petitioner prior to the hearing, and that the Board found him 19 unsuitable for parole based, in part, on his failure to sufficiently participate in prison 20 programming, lack merit. Under the Supreme Court’s holding in Swarthout, such protections are 21 not guaranteed by the federal due process clause in the parole suitability context. 22 23 For these reasons, it now plainly appears that petitioner is not entitled to federal habeas relief with respect to his due process claims.4 24 4 25 26 As set forth above, petitioner argues that he was not allowed to read into the record all of his exhibits supporting his release on parole. However, the record reflects that the Commissioners took all of petitioner’s exhibits with them into the deliberating room and that they considered those exhibits before issuing their decision. (Doc. No. 1 at 134, 135.) Petitioner 9 1 B. Eighth Amendment 2 Petitioner claims that the Board’s 2007 decision finding him unsuitable for parole 3 also constitutes cruel and unusual punishment, in violation of the Eighth Amendment. (Doc. No. 4 1 at 5.) He explains that the Board’s failure to “do a proportionality analysis. . . rises to the level 5 of cruel and unusual punishment as Petitioner has already exceeded the matrix for uniform terms 6 for like crimes, and nearly surpassed that for the more serious offense of homicide.” (Id. at 9.) 7 Petitioner claims that the Board violated his Eighth Amendment rights by failing to give “due 8 consideration and individual consideration” to the procedural objections raised by his attorney 9 prior to the 2007 suitability hearing. (Id. at 18.) He claims that his Eighth Amendment rights 10 were also violated when he was prevented from meeting with his counsel sufficiently in advance 11 of the 2007 hearing, and when he was prevented from attending “programming” in prison, all 12 because of “illegal race discrimination policies.” (Id.) Finally, petitioner claims that “cruel and 13 unusual punishment occurs in denial of equal protections, which potentially extend time served; 14 beyond an individual with identical term, who’s not put under race base[d] restrictions and/or 15 discontinuances.” (Id. at 19.) 16 California parole guidelines require setting a “base term for each life prisoner who 17 is found suitable for parole.” 15 California Code of Regulations (“C.C.R.”) § 2403(a). The 18 “base term” is “established by utilizing the appropriate matrix of base terms” provided in 15 19 C.C.R. § 2403. 15 C.C.R. § 2403(a). Here, however, petitioner has not yet been found suitable 20 for parole, “which is a prerequisite for the determination of a ‘base term’ and the calculation of a 21 parole date.” Murphy v. Espinoza, 401 F. Supp.2d 1048, 1055 (C.D. Cal. 2005). See also Irons 22 v. Carey, 505 F.3d 846, 851 n.3 (9th Cir. 2007) (A “‘determination of an individual inmate's 23 24 25 26 speculates that the Board members did not have enough time to read all of his exhibits because the panel took only fourteen minutes to render a decision. However, the Commissioners stated that they had considered petitioner’s exhibits and there is no evidence in the record before this court to the contrary. The court also rejects any suggestion that petitioner was unable to be heard at the suitability hearing because of the Commissioners’ refusal to allow him to read all of his exhibits into the record. Petitioner was heard and the Board panel considered his exhibits. 10 1 suitability for parole under section 3041, subdivision (b) must precede any effort to set a parole 2 release date under the uniform-term principles of section 3041, subdivision (a).’”) (quoting In re 3 Dannenberg, 34 Cal.4th 1061, 1079-80 (2005)); Cal. Penal Code § 3041(b) (The Board “shall set 4 a release date unless it determines that the gravity of the current convicted offense or offenses, or 5 the timing and gravity of current past convicted offense or offenses, is such that consideration of 6 the public safety requires a more lengthy period of incarceration for this individual, and that a 7 parole date, therefore, cannot be fixed at this meeting.”); 15 C.C.R. § 2402(a) (The Board “shall 8 first determine whether the life prisoner is suitable for release on parole. Regardless of the length 9 of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment 10 of the [Board] the prisoner will pose an unreasonable risk of danger to society if released from 11 prison.”). “In other words, absent a determination of parole suitability by the [Board], there is no 12 ‘base term.’” Murphy, 401 F. Supp.2d at 1055. See also Cal. Penal Code § 3041(b); 15 C.C.R. 13 2403(a). Essentially, the matrix is irrelevant to making a parole suitability determination. 14 Instead, the Board ignores the matrix and examines the record to determine whether the prisoner 15 poses a current danger to society. Dannenberg, 34 Cal.4th at 1098. Here, because petitioner has 16 not yet been found suitable for release on parole, he remains subject to an indeterminate life 17 sentence. See Irons, 505 F.3d at 851 (“Under California law, prisoners serving an indeterminate 18 sentence for . . . murder ‘may serve up to life in prison, but [ ] become eligible for parole 19 consideration after serving minimum terms of confinement.’” (quoting Dannenberg, 34 Cal.4th at 20 1078). 21 The United States Supreme Court has held that the Eighth Amendment includes a 22 “narrow proportionality principle” that applies to terms of imprisonment. See Harmelin v. 23 Michigan, 501 U.S. 957, 996 (1991) (Kennedy, J., concurring). See also Taylor v. Lewis, 460 24 F.3d 1093, 1097 (9th Cir. 2006). However, successful challenges in federal court to the 25 proportionality of particular sentences are “exceedingly rare.” Solem v. Helm, 463 U.S. 277, 26 289-90 (1983). See also Ramirez v. Castro, 365 F.3d 755, 775 (9th Cir. 2004). “The Eighth 11 1 Amendment does not require strict proportionality between crime and sentence. Rather, it 2 forbids only extreme sentences that are ‘grossly disproportionate’ to the crime.” Harmelin, 501 3 U.S. at 1001 (Kennedy, J., concurring) (quoting Solem v. Helm, 463 U.S. at 288). Thus, in 4 Lockyer v. Andrade, the United States Supreme Court held that it was not an unreasonable 5 application of clearly established federal law for the state appellate court to affirm a sentence of 6 two consecutive 25 year-to-life imprisonment terms for a petty theft with a prior conviction 7 involving theft of $150.00 worth of videotapes under California’s “Three Strikes” law. Andrade, 8 538 U.S. at 75. Similarly, in Ewing v. California, 538 U.S. 11, 29 (2003), the United States 9 Supreme Court held that a sentence of 25 years-to-life in prison imposed on a grand theft 10 conviction involving the theft of three golf clubs from a pro shop under California’s “Three 11 Strikes” law was not grossly disproportionate and did not violate the Eighth Amendment. 12 In assessing the compliance of a non-capital sentence with the proportionality 13 principle, a reviewing court must consider “objective factors” to the extent possible. Solem, 463 14 U.S. at 290. Foremost among these factors are the severity of the penalty imposed and the 15 gravity of the offense. “Comparisons among offenses can be made in light of, among other 16 things, the harm caused or threatened to the victim or society, the culpability of the offender, and 17 the absolute magnitude of the crime.” Taylor, 460 F.3d at 1098.5 18 19 This court finds that petitioner’s sentence does not fall within the type of “exceedingly rare” circumstance that would support a finding that his sentence violates the 20 21 22 23 24 25 26 5 As noted by the court in Taylor, the United States Supreme Court has also suggested that reviewing courts compare the sentences imposed on other criminals in the same jurisdiction, and also compare the sentences imposed for commission of the same crime in other jurisdictions. 460 F.3d at 1098, n.7. However, “consideration of comparative factors may be unnecessary; the Solem Court ‘did not announce a rigid three-part test.’ See Harmelin, 501 U.S. at 1004, 111 S. Ct. 2680 (Kennedy, J., concurring). Rather, ‘intrajurisdictional and interjurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.’ Id. at 1004-05, 111 S. Ct. 2680; see also Rummel v. Estelle, 445 U.S. 263, 282 (1980) (‘Absent a constitutionally imposed uniformity inimical to traditional notions of federalism, some State will always bear the distinction of treating particular offenders more severely than any other State.’).” Id. 12 1 Eighth Amendment. Petitioner was convicted of attempted murder and mayhem. In Harmelin, 2 the petitioner received a sentence of life imprisonment without the possibility of parole for 3 possessing 672 grams of cocaine and yet the U.S. Supreme Court found no violation of the 4 Eighth Amendment. In light of the Harmelin decision, as well as the decisions in Andrade and 5 Ewing, which imposed sentences of twenty-five years to life for petty theft convictions, the 6 sentence imposed on petitioner that is challenged here cannot be said to be grossly 7 disproportionate. Because petitioner does not raise an inference of gross disproportionality, this 8 court need not compare petitioner’s sentence to the sentences of other defendants in other 9 jurisdictions. This is not a case where “a threshold comparison of the crime committed and the 10 sentence imposed leads to an inference of gross disproportionality.” Solem, 463 U.S. at 1004-05. 11 Nor did petitioner’s inability to participate in prison programming or the Board’s failure to give 12 adequate consideration to the procedural objections raised by his attorney prior to the 2007 13 hearing, or to allow petitioner additional time with his counsel in advance of the suitability 14 hearing, render his sentence cruel and unusual. 15 For all of these reasons, the state courts’ rejection of petitioner’s Eighth 16 Amendment claim was not an unreasonable application of the proportionality standard 17 announced by the United States Supreme Court. Accordingly, this claim for relief should be 18 rejected. 19 20 C. Equal Protection Petitioner also claims that the Board’s failure to find him suitable for parole 21 violated his Fourteenth Amendment right to equal protection of the laws. He contends that the 22 Board improperly found him unsuitable for parole based, in part, on his failure to participate in 23 prison “programming,” even though the prison at which he is incarcerated has “policies utilizing 24 race as the deciding factor determining which race of individuals gets ‘programming’ (but which 25 excludes your petitioner because of ethnicity).” (Doc. No. 1 at 10, 20.) Petitioner also alleges 26 that in June of 2007 he received a pass to meet with his counsel but was not permitted to attend 13 1 the meeting “on the basis of being a ‘black’ classified individual, who was getting penalized 2 from CDCR’s illegal policy imposing punishment using race as the deciding factor.” (Id. at 15.) 3 Petitioner contends that “‘racism operations’ automatically inject ‘grouped’ penalties, and 4 consequences, into your petitioner’s purported individualized considerations, which can not be 5 extracted.” (Id. at 19.) 6 A petitioner raising an equal protection claim in the parole context must 7 demonstrate that he was treated differently from other similarly situated prisoners and that the 8 Board lacked a rational basis for its decision. McGinnis v. Royster, 410 U.S. 263, 269-70 9 (1973); McQueary v. Blodgett, 924 F.2d 829, 835 (9th Cir. 1991). Petitioner has failed to show 10 that any other inmate who was similarly situated to him was granted a parole date. Petitioner has 11 also failed to demonstrate that the Board violated his equal protection rights by applying a 12 different suitability standard to him than that applied to others similarly situated. Petitioner’s 13 assertion that the prison system does not allow prison programming or adequate visits with 14 counsel for Black inmates is unsupported by anything in the record before this court and 15 therefore does not support his Equal Protection claim.6 Accordingly, petitioner is not entitled to 16 relief with respect to the claim that his equal protection rights were violated by the Board’s 17 conclusion in 2007 that he was not suitable for release on parole. 18 CONCLUSION 19 20 For the reasons set forth above, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas corpus be denied. 21 These findings and recommendations are submitted to the United States District 22 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 23 6 24 25 26 Petitioner includes an exhibit with his petition which reflects that Black inmates in Facility 1 at his institution of confinement were restricted to “modified program” pending further investigation of an incident where a Black inmate allegedly assaulted a southern Hispanic inmate. (Doc. No. 1-1 at 12.) Disciplinary action such as that referred to by petitioner in this exhibit does not constitute a policy to deny programming to Black inmates and does not support a claim of violation of the Equal Protection Clause. 14 1 one days after being served with these findings and recommendations, any party may file written 2 objections with the court and serve a copy on all parties. Such a document should be captioned 3 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 4 shall be served and filed within fourteen days after service of the objections. Failure to file 5 objections within the specified time may waive the right to appeal the District Court’s order. 6 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 7 1991). 8 In any objections he elects to file, petitioner may address whether a certificate of 9 appealability should issue in the event he files an appeal of the judgment in this case. See Rule 10 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 11 certificate of appealability when it enters a final order adverse to the applicant); Hayward v. 12 Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc) (prisoners are required to obtain a certificate of 13 appealability to review the denial of a habeas petition challenging an administrative decision 14 such as the denial of parole by the parole board), overruled in part by Swarthout, 131 S. Ct. 859 15 (2011). 16 DATED: August 23, 2011. 17 18 19 20 DAD:8: chavis2606.hc 21 22 23 24 25 26 15
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