-TJB (HC)Hyde v. Moore, No. 2:2009cv03240 - Document 18 (E.D. Cal. 2011)
Court Description: AMENDED FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Timothy J. Bommer on 2/4/11 recommending Petitioner's application for a writ of habeas corpus 1 be denied. REFFERED TO Judge Frank C. Damrell, Jr..; parties may file written objections within 21 days after being served. (Carlos, K)
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-TJB (HC)Hyde v. Moore Doc. 18 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 PAUL E. HYDE, 11 Petitioner, 12 vs. 13 No. CIV S-09-3240-FCD-TJB STEVE MOORE, 14 Respondent. 15 / 16 17 AMENDED FINDINGS AND RECOMMENDATIONS I. INTRODUCTION Petitioner Paul E. Hyde is a state prisoner proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, it is recommended that 19 habeas relief be denied. 20 21 22 II. BACKGROUND Petitioner is currently serving a sentence of seven years to life. Pet’r’s Pet. 1, ECF No. 1;1 see also Hyde v. Moore, No. CIV S-08-1365-FCD-TJB, 2010 WL 4321606, at *1 (E.D. Cal. 23 24 25 26 1 The Case Management/Electronic Case Files (CM/ECF) docketing and file system is implemented, which allows the parties to electronically file pleadings and documents. For pleadings or documents submitted in paper format, the filing is scanned and stored electronically into the CM/ECF system, except for lodged documents. Each page of the electronic filing is numbered chronologically, whether or not the party numbered it. If the filing is lengthy, the 1 Dockets.Justia.com 1 Oct. 26, 2010). “In 1973, at age 19, in the Los Angeles County Superior Court [C]ase No. 2 A068239, [Petitioner] was convicted of first degree murder (§ 187; count 5), four counts of 3 robbery of the first degree (§ 211; counts 1, 2, 6 & 7), assault with a deadly weapon with the 4 intent to commit murder (former § 217; count 3), and assault by means of force likely to produce 5 great bodily injury and with a deadly weapon (§ 245, subd. (a)(1); count 4), each with the 6 personal use of a firearm (§ 12022.5).” Hyde, 2010 WL 4321606, at *1 (quoting In re Hyde, 154 7 Cal. App. 4th 1200, 1202, 65 Cal. Rptr. 3d 162 (2007)) (internal quotation marks omitted). 8 In the instant action, Petitioner challenges the decision by the California Board of Parole 9 Hearings (the “Board”) denying Petitioner parole. Petitioner appeared before the Board on April 10 11 19, 2007. Dated August 16, 2007, Petitioner’s petition for writ of habeas corpus was filed in the 12 Los Angeles County Superior Court challenging the Board’s decision.2 See Resp’t’s Answer Ex. 13 1, ECF No. 10. In a decision dated October 29, 2007, the Superior Court issued a reasoned 14 decision denying parole. See Resp’t’s Answer Ex. 2. 15 On April 8, 2008, Petitioner sought relief in the California Court of Appeal, Second 16 Appellate District. See Resp’t’s Answer Ex. 3. On May 8, 2008, the California Court of Appeal 17 denied the petition without comment or citation. See Resp’t’s Answer Ex. 4. 18 On June 9, 2008, Petitioner sought relief in the California Supreme Court. See Resp’t’s 19 Answer Ex. 5. On December 17, 2008, the California Supreme Court denied the petition with 20 only a citation to People v. Duvall, 9 Cal. 4th 464, 474, 37 Cal. Rptr. 2d 259, 886 P.2d 1252 21 (1995). See Resp’t’s Ex. 6. 22 23 24 25 26 document is divided into parts. Here, when a page number for a filed pleading or document is cited, the CM/ECF page number is used when available, which may not coincide with the page number that the parties used. 2 The Superior Court’s decision states Petitioner filed his state habeas petition on July 20, 2007, see Resp’t’s Answer Ex. 2, at 2, but the record in the instant case does not reflect that date. See Resp’t’s Answer Ex. 1. 2 1 On November 20, 2009, Petitioner filed the instant federal petition for writ of habeas 2 corpus. See Pet’r’s Pet. Respondent filed an answer to the petition on October 22, 2010, see 3 Resp’t’s Answer, to which Petitioner filed a traverse on November 2, 2010. See Pet’r’s Traverse, 4 ECF No. 11. 5 6 III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS An application for writ of habeas corpus by a person in custody under judgment of a state 7 court can be granted only for violations of the Constitution or laws of the United States. 28 8 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. 9 Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). 10 This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, 11 the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Lindh v. Murphy, 521 12 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359, 362 (9th Cir. 1999). Under 13 AEDPA, federal habeas corpus relief also is not available for any claim decided on the merits in 14 state court proceedings unless the state court’s adjudication of the claim: 15 16 17 18 (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) 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. 19 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. 20 Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). 21 In applying AEDPA’s standards, the federal court must “identify the state court decision 22 that is appropriate for our review.” Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). 23 “The relevant state court determination for purposes of AEDPA review is the last reasoned state 24 court decision.” Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). 25 “Where there has been one reasoned state judgment rejecting a federal claim, later unexplained 26 orders upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst v. 3 1 Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts 2 must conduct an independent review of the record to determine whether the state court clearly 3 erred in its application of controlling federal law, and whether the state court’s decision was 4 objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). “The 5 question under AEDPA is not whether a federal court believes the state court’s determination 6 was incorrect but whether that determination was unreasonable--a substantially higher 7 threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). 8 “When it is clear, however, that the state court has not decided an issue, we review that question 9 de novo.” Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 10 545 U.S. 374, 377 (2005)). 11 IV. CLAIMS FOR REVIEW 12 The petition for writ of habeas corpus sets forth four grounds for relief, which are 13 identical to the grounds discussed in the previous findings and recommendations. Hyde, 2010 14 WL 4321606, at *10. First, Petitioner argues that the Board erred because of “continued reliance 15 on the commitment offense which will never change.” Pet’r’s Pet. pt. 1, at 6. Second, Petitioner 16 asserts he is entitled to parole because he served “beyond the maximum time contained in the 17 matrix.” Id. Third, Petitioner claims his due process rights were violated at the parole hearing. 18 Id. Fourth, Petitioner alleges there is “no evidence of current risk.” Id. For the following 19 reasons, Petitioner’s allegations lack merit. 20 A. Procedural Default and Exhaustion 21 The California Supreme Court denied Petitioner’s state habeas petition on procedural 22 grounds, with only a citation to People v. Duvall, 9 Cal. 4th 464, 474, 37 Cal. Rptr. 2d 259, 886 23 P.2d 1252 (1995). See Resp’t’s Answer Ex. 6. Arguably, Petitioner may have procedurally 24 defaulted his entire petition. However, Respondent only contends Petitioner failed to exhaust his 25 matrix argument in state court. Specifically, “Respondent admits that Petitioner exhausted his 26 state court remedies on his some evidence claim, and denies that Petitioner exhausted his state 4 1 court remedies to the extent they are interpreted more broadly to include systematic issues 2 beyond the 2007 parole hearing.” Resp’t’s Answer 2. Since Petitioner argues his due process 3 rights were also violated because his imprisonment “exceed[s] the maximum time contained in 4 the matrix,” Pet’r’s Pet. pt. 1, at 15, Respondent implies only that Petitioner failed to exhaust this 5 claim. 6 7 1. Legal Standard for Procedural Default and Exhaustion “Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available 8 state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the ‘opportunity to pass upon 9 and correct’ alleged violations of prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 10 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)); see Rose v. Lundy, 11 455 U.S. 509, 522 (1982) (“[W]e hold that a district court must dismiss habeas petitions 12 containing both unexhausted and exhausted claims.”). “The state courts have been given a 13 sufficient opportunity to hear an issue when the petitioner has presented the state court with the 14 issue’s factual and legal basis.” Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999) (citing 15 Duncan, 513 U.S. at 365 (legal basis); Correll v. Stewart, 137 F.3d 1404, 1411-12 (9th Cir. 16 1998) (factual basis)). “A petitioner has satisfied the exhaustion requirement if: (1) he has 17 ‘fairly presented’ his federal claim to the highest state court with jurisdiction to consider it[;] . . . 18 or (2) he demonstrates that no state remedy remains available.” Johnson v. Zenon, 88 F.3d 828, 19 829 (9th Cir. 1996) (citations omitted). 20 Regardless of whether the claim was raised on direct appeal or in a post-conviction 21 proceeding, the exhaustion doctrine requires that each claim be fairly presented to the state’s 22 highest court. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Although the exhaustion 23 doctrine requires only the presentation of each federal claim to the highest state court, the claims 24 must be presented in a posture that is acceptable under state procedural rules. See Sweet v. Cupp, 25 640 F.2d 233, 237-38 (9th Cir. 1981). An appeal or petition for post-conviction relief that is 26 denied by the state courts on procedural grounds, where other state remedies are still available, 5 1 does not exhaust the petitioner’s state remedies. See Pitchess v. Davis, 421 U.S. 482, 488 2 (1979); Sweet, 640 F.2d at 237-38. 3 A habeas petition is procedurally defaulted when the last reviewing state court dismissed 4 it for failure to comply with a state rule of procedure. Trest v. Cain, 522 U.S. 87, 88-90 (1997); 5 Lambright v. Stewart, 241 F.3d 1201, 1205 (9th Cir. 2001). When the procedural rule is 6 independent of federal law and adequate to support the judgment, federal review of the claims is 7 barred unless the petitioner can demonstrate either cause for the default and actual prejudice 8 resulting from the alleged constitutional violations, or that failure to consider the claims will 9 result in a fundamental miscarriage of justice. Carter v. Giurbino, 385 F.3d 1194, 1196-97 (9th 10 Cir. 2004) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). Procedural default is an 11 affirmative defense, and once the respondent has adequately pled the existence of independent 12 and adequate state procedural grounds, the burden to place that defense in issue shifts to the 13 petitioner. Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). 14 15 2. Analysis of Procedural Default The last court to review Petitioner’s claims was the California Supreme Court, which 16 issued a one sentence denial of the petition, citing People v. Duvall, 9 Cal. 4th 464, 474, 37 Cal. 17 Rptr. 2d 259, 886 P.2d 1252 (1995). See Lodged Doc. 6. Under California law, a citation to 18 Duvall indicates that a petitioner has failed to state his claim with sufficient particularity for the 19 state court to examine the merits of the claim, and/or has failed to “include copies of reasonably 20 available documentary evidence supporting the claim, including pertinent portions of trial 21 transcripts and affidavits or declarations.” Duvall, 9 Cal. 4th at 474, 37 Cal. Rptr. 2d 259, 886 22 P.2d 1252. A failure to comply with this requirement is a pleading defect subject to cure by 23 amendment. 24 Here, Respondent has waived the affirmative defense of procedural default by failing to 25 raise it in the answer, and “[a] court . . . is not ‘required’ to raise the issue of procedural default 26 sua sponte.” Trest, 522 U.S. at 89; see Resp’t’s Answer 2 (“Respondent admits that Petitioner 6 1 exhausted his state court remedies on his some evidence claim, and denies that Petitioner 2 exhausted his state court remedies to the extent they are interpreted more broadly to include 3 systematic issues beyond the 2007 parole hearing.”). Rather, “a district court may raise the 4 defense of procedural default sua sponte if to do so serves the interests of justice, comity, 5 federalism, and judicial efficiency.” Windham v. Merkle, 163 F.3d 1092, 1100 (9th Cir. 1998) 6 (citation omitted). In the instant case, Petitioner’s state petition appears to satisfy the Duvall 7 pleading requirements, because it “both (i) states fully and with particularity the facts upon which 8 relief is sought . . . as well as (ii) includes copies of reasonably available documentary evidence 9 supporting the claim, including pertinent portions of trial transcripts and affidavits or 10 declarations.” Duvall, 9 Cal. 4th at 474, 37 Cal. Rptr. 2d 259, 886 P.2d 1252 (citations omitted). 11 Raising the issue of procedural default sua sponte here will not serve the interests of justice and 12 comity because the refusal by the California Supreme Court to consider the merits of Petitioner’s 13 claims does not appear to be supported by the record, and because Respondent has waived the 14 affirmative defense of procedural default. 15 3. Analysis of Exhaustion 16 Here, Petitioner raised the matrix argument in his state habeas petitions to the California 17 Court of Appeal and the California Supreme Court, but not in his state habeas petition to the 18 Superior Court. Compare Resp’t’s Answer Ex. 3, at 13, 19 (California Court of Appeal), and 19 Resp’t’s Answer Ex. 5, pt. A, at 13 (California Supreme Court), with Resp’t’s Answer Ex. 1 20 (Superior Court). “[T]he California Constitution provides that each of the three levels of state 21 courts -- Superior Courts, Courts of Appeal, and the Supreme Court -- has ‘original jurisdiction 22 in habeas corpus proceedings.’” Gaston v. Palmer, 387 F.3d 1004, 1010 (9th Cir. 2004) (quoting 23 Cal. Const. art. VI, § 10), amended for other reasons by 447 F.3d 1165 (9th Cir. 2006). A 24 California prisoner may file an original habeas petition in each of the three courts, and each court 25 may exercise its original jurisdiction. See, e.g., In re Clark, 5 Cal. 4th 750, 760-62, 21 Cal. Rptr. 26 2d 509, 855 P.2d 729 (1993) (noting petitioner’s first habeas application was filed in California 7 1 Supreme Court). Since Petitioner presented the matrix argument to the California Supreme 2 Court, “the highest state court with jurisdiction to consider it,” Johnson, 88 F.3d at 829, this 3 claim is exhausted. 4 Even if Petitioner’s claim is unexhausted, an application for a writ of habeas corpus may 5 be denied on the merits, notwithstanding the applicant’s failure to exhaust available state 6 remedies. 28 U.S.C. § 2254(b)(2). A federal court considering a habeas petition may deny an 7 unexhausted claim on the merits when it is perfectly clear that the claim is not “colorable.” 8 Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). Here, Petitioner’s matrix argument also 9 fails on the merits, and this matter is now ready for decision. See infra Part IV.C. 10 B. Grounds One, Three and Four: Due Process and Some Evidence 11 Petitioner claims the California courts unreasonably determined that there was some 12 evidence he posed a current risk of danger to the public if released. Because California’s 13 statutory parole scheme guarantees that prisoners will not be denied parole absent some evidence 14 of present dangerousness, the Ninth Circuit Court of Appeals held that California law creates a 15 liberty interest in parole that may be enforced under the Due Process Clause. Cooke v. Solis, 606 16 F.3d 1206, 1213 (9th Cir. 2010), rev’d, Swarthout v. Cooke, No. 10-333, ___ U.S. ___, 2011 WL 17 197627 (Jan. 24, 2011); Pearson v. Muntz, 606 F.3d 606, 608-09 (9th Cir. 2010); Hayward v. 18 Marshall, 603 F.3d 546, 561-63 (9th Cir. 2010). The Ninth Circuit instructed reviewing federal 19 district courts to determine whether California’s application of California’s “some evidence” rule 20 was unreasonable or was based on an unreasonable determination of the facts in light of the 21 evidence. Pearson, 606 F.3d at 608; Hayward, 603 F.3d at 563. 22 On January 24, 2011, the United States Supreme Court issued a per curiam opinion in 23 Swarthout v. Cooke, No. 10-333, ___ U.S. ___, 2011 WL 197627 (Jan. 24, 2011). In Swarthout, 24 the Supreme Court held that “the responsibility for assuring that the constitutionally adequate 25 procedures governing California’s parole system are properly applied rests with California 26 courts, and is no part of the Ninth Circuit’s business.” Id. at *3. The federal habeas court’s 8 1 inquiry into whether a prisoner denied parole received due process is limited to determining 2 whether the prisoner “was allowed an opportunity to be heard and was provided a statement of 3 the reasons why parole was denied.” Id. at *2 (citing Greenholtz v. Inmates of Neb. Penal & 4 Corr. Complex, 442 U.S. 1, 16 (1979)). 5 Review of the instant case reveals Petitioner was present at his parole hearing, was given 6 an opportunity to be heard, and was provided a statement of reasons for the Board’s decision. 7 “The Constitution does not require more [process].” Greenholtz, 442 U.S. at 16. The instant 8 petition does not present cognizable claims for relief and should be summarily dismissed. 9 10 C. Ground Two: Due Process and Matrix Argument Petitioner argues that his imprisonment “exceed[s] the maximum time contained in the 11 matrix utilized in setting the term of imprisonment and violate[s] Due Process . . . .” Pet’r’s Pet. 12 pt. 1, at 15. California parole guidelines require setting a “base term for each life prisoner who is 13 found suitable for parole.” CAL. CODE REGS. tit. 15, § 2282(a). The “base term” is “established 14 by utilizing the appropriate matrix of base terms” provided in title 15, section 2282 of the 15 California Code of Regulations. Id. 16 To the extent Petitioner contends the Board violated state law or regulations, Petitioner is 17 not entitled to habeas relief. A federal court may grant habeas corpus relief “only on the ground 18 that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United 19 States.” 28 U.S.C. § 2254(a). Mere errors in the application of state law are not cognizable on 20 habeas corpus. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see generally Langford v. Day, 21 110 F.3d 1380, 1389 (9th Cir. 1996) (explaining federal petitioner may not “transform a state-law 22 issue into a federal one merely by asserting a violation of due process”), cert. denied, 522 U.S. 23 881 (1997). 24 In any event, Petitioner’s claim lacks merit under state law. Under California law, the 25 Board is not required to fix a base term until it finds an inmate suitable for parole. CAL. CODE 26 REGS. tit. 15, § 2282(a); see Irons v. Carey, 505 F.3d 846, 851 n.3 (9th Cir. 2007) (“A 9 1 ‘determination of an individual inmate’s suitability for parole under section 3041, subdivision (b) 2 [of the California Penal Code] must precede any effort to set a parole release date under the 3 uniform-term principles of section 3041, subdivision (a).’” (quoting In re Dannenberg, 34 Cal. 4 4th at 1079-80, 23 Cal. Rptr. 3d 417, 104 P.3d 783)); In re Stanworth, 33 Cal. 3d 176, 183, 654 5 P.2d 1311 (1982) (“Under both the 1976 and the current rules, a life prisoner must first be found 6 suitable for parole before a parole date is set.”); see also CAL. PENAL CODE § 3041(b) (The 7 Board “shall set a release date unless it determines that the gravity of the current convicted 8 offense or offenses, or the timing and gravity of current past convicted offense or offenses, is 9 such that consideration of the public safety requires a more lengthy period of incarceration for 10 this individual, and that a parole date, therefore, cannot be fixed at this meeting.”). Petitioner 11 was not found suitable for parole; the matrix did not need to be consulted. Petitioner is not 12 entitled to habeas relief on this claim. 13 14 15 16 V. CONCLUSION For the foregoing reasons, IT IS HEREBY RECOMMENDED that Petitioner’s application for writ of habeas corpus be DENIED. These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one 18 days after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 21 shall be served and filed within seven days after service of the objections. Failure to file 22 objections within the specified time may waive the right to appeal the District Court’s order. 23 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 24 (9th Cir. 1991). In any objections he elects to file, Petitioner may address whether a certificate of 25 appealability should be issued in the event he elects to file an appeal from the judgment in this 26 case. See Rule 11(a), Federal Rules Governing Section 2254 Cases (district court must issue or 10 1 deny certificate of appealability when it enters final order adverse to applicant). 2 3 4 5 DATED: February 4, 2011. 6 7 8 TIMOTHY J BOMMER UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 11
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