(HC) Knight v. Swarthout et al, No. 2:2010cv02419 - Document 12 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 02/14/11 recommending that petitioner's application for a writ of habeas corpus be denied. Referred to Judge William B. Shubb. Objections due within 21 days. (Plummer, M)
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(HC) Knight v. Swarthout et al Doc. 12 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 HARVEY KNIGHT, 11 Petitioner, 12 13 vs. GARY SWARTHOUT, Warden, 14 Respondent. 15 16 No. 2:10-cv-2419 WBS KJN P FINDINGS AND RECOMMENDATIONS / I. Introduction 17 Petitioner is a state prisoner proceeding without counsel with an application for a 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner claims that his federal 19 constitutional right to due process was violated by a 2009 decision of the California Board of 20 Parole Hearings (hereafter “the Board”) to deny him a parole date. Petitioner also claims that the 21 Board applied Marsy’s Law in violation of the Ex Post Facto Clause. After review of the record, 22 this court finds the petition should be denied. 23 II. Standards for a Writ of Habeas Corpus 24 Federal habeas corpus relief is not available for any claim decided on the merits in 25 state court proceedings unless the state court's adjudication of the claim: 26 //// 1 Dockets.Justia.com 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 (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. 4 5 28 U.S.C. § 2254(d). 6 Under section 2254(d)(1), a state court decision is “contrary to” clearly 7 established United States Supreme Court precedents if it applies a rule that contradicts the 8 governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially 9 indistinguishable from a decision of the Supreme Court and nevertheless arrives at different 10 result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 11 (2000)). 12 Under the “unreasonable application” clause of section 2254(d)(1), a federal 13 habeas court may grant the writ if the state court identifies the correct governing legal principle 14 from the Supreme Court’s decisions, but unreasonably applies that principle to the facts of the 15 prisoner’s case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ 16 simply because that court concludes in its independent judgment that the relevant state-court 17 decision applied clearly established federal law erroneously or incorrectly. Rather, that 18 application must also be unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 19 (2003) (it is “not enough that a federal habeas court, in its independent review of the legal 20 question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”) (internal citations 21 omitted). 22 The court looks to the last reasoned state court decision as the basis for the state 23 court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state 24 court reaches a decision on the merits, but provides no reasoning to support its conclusion, a 25 federal habeas court independently reviews the record to determine whether habeas corpus relief 26 is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); 2 1 Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (“Independent review of the record is not de 2 novo review of the constitutional issue, but rather, the only method by which we can determine 3 whether a silent state court decision is objectively unreasonable.”); accord Pirtle v. Morgan, 4 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the 5 merits of a petitioner’s claim, or has denied the claim on procedural grounds, the AEDPA’s 6 deferential standard does not apply and a federal habeas court must review the claim de novo. 7 Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle, 313 F.3d at 1167. 8 III. Petitioner’s Claims 9 10 11 12 A. Due Process Petitioner contends that his federal constitutional right to due process was violated by a 2009 decision of the Board to deny him a parole date. The Due Process Clause of the Fourteenth Amendment prohibits state action that 13 deprives a person of life, liberty, or property without due process of law. A litigant alleging a 14 due process violation must first demonstrate that he was deprived of a liberty or property interest 15 protected by the Due Process Clause and then show that the procedures attendant upon the 16 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 17 490 U.S. 454, 459-60 (1989). 18 A protected liberty interest may arise from either the Due Process Clause of the 19 United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 20 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 21 221 (2005) (citations omitted). The United States Constitution does not, of its own force, create 22 a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 23 454 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is 24 “no constitutional or inherent right of a convicted person to be conditionally released before the 25 expiration of a valid sentence.”). However, “a state’s statutory scheme, if it uses mandatory 26 language, ‘creates a presumption that parole release will be granted’ when or unless certain 3 1 designated findings are made, and thereby gives rise to a constitutional liberty interest.” 2 Greenholtz, 442 U.S. at 12; see also Board of Pardons v. Allen, 482 U.S. 369, 376-78 (1987) (a 3 state’s use of mandatory language (“shall”) creates a presumption that parole release will be 4 granted when the designated findings are made.). 5 California’s parole statutes give rise to a liberty interest in parole protected by the 6 federal due process clause. Swarthout v. Cooke, 562 U.S. ___ (2011), No. 10-333, 2011 WL 7 197627, at *2 (Jan. 24, 2011). In California, a prisoner is entitled to release on parole unless 8 there is “some evidence” of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 9 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). However, in 10 Swarthout the United States Supreme Court held that “[n]o opinion of [theirs] supports 11 converting California’s ‘some evidence’ rule into a substantive federal requirement.” Swarthout, 12 2011 WL 197627, at *3. In other words, the Court specifically rejected the notion that there can 13 be a valid claim under the Fourteenth Amendment for insufficiency of evidence presented at a 14 parole proceeding. Id. at *3. Rather, the protection afforded by the federal due process clause to 15 California parole decisions consists solely of the “minimal” procedural requirements set forth in 16 Greenholtz, specifically “an opportunity to be heard and . . . a statement of the reasons why 17 parole was denied.” Swarthout, at *2-3. 18 Here, the record reflects that petitioner was present at the 2009 parole hearing, 19 that he participated in the hearing, and that he was provided with the reasons for the Board’s 20 decision to deny parole. (Dkt. No. 10-1 at 2-100; 10-3 at 28-38.) According to the United States 21 Supreme Court, the federal due process clause requires no more. Accordingly, this claim should 22 be denied. 23 B. Marsy’s Law 24 Petitioner contends that the Board’s application of “Marsy’s Law” (adopted by 25 the voters pursuant to Proposition 9, the “Victims’ Bill of Rights Act of 2008: Marsy’s Law”) to 26 delay for three years his next parole hearing, violated the Ex Post Facto Clause of the United 4 1 States Constitution. Under the statute as it existed prior to the enactment of “Marsy’s Law,” 2 indeterminately-sentenced inmates, like petitioner,1 were denied parole for one year unless the 3 Board found, with stated reasons, that it was unreasonable to expect that parole could be granted 4 the following year, in which case the subsequent hearing could be extended up to five years. Cal. 5 Penal Code § 3041.5(b)(2) (2008). However, at his 2009 parole hearing, petitioner was subject 6 to the terms of the amended statute, which authorizes denial of a subsequent parole hearing for a 7 period up to fifteen years. Cal. Pen. Code, § 3041.5(b)(3) (2010). The shortest interval that the 8 Board may set is three years, applied to petitioner herein (Dkt. No. 1 at 10), based on a finding 9 that the prisoner “does not require a more lengthy period of incarceration . . . than seven 10 additional years,” Cal. Pen. Code, § 3041.5(b)(3)(C). 11 Petitioner asserts that application of the extended deferral period violates the Ex 12 Post Facto Clause because it increases the risk that petitioner will suffer longer punishment than 13 he would have received under the prior statute, because it changed the presumption that a person 14 sentenced to an indeterminate sentence would be considered for parole annually. (Dkt. No. 1 at 15 25.) 16 17 On April 10, 2010, the Los Angeles Superior Court issued the last reasoned opinion addressing this claim: 18 The Board may properly apply the 2008 law as set forth in Art. I Sec. 28 of the California Constitution and Cal. Pen. Code § 3041.5. The new standard does not trigger ex post facto concerns because it does not change the applicable indeterminate term, the formula for earning sentence reduction credits, or the standards for determining either the initial date of parole eligibility or the prisoner’s suitability for parole. (John L. v. Superior Court (2004) 33 Cal.4th 158, 181-182; see also Cal. Dep’t of Corr. v. Morales (1995) 514 U.S. 499, 512-513 [rejecting a claim that a post-conviction change 19 20 21 22 23 //// 24 1 25 26 Petitioner is serving an indeterminate sentence of life in prison, plus five years, with the possibility of parole, based on a 1988 conviction for three counts of attempted first degree murder, first degree robbery, attempted first degree robbery, and three counts of assault with a firearm. 5 1 in the frequency of parole suitability hearings violated the ex post facto clause of the U.S. Constitution].) 2 3 4 (Dkt. No. 1 at 24.) The Constitution provides that “No State shall . . . pass any . . . ex post facto 5 Law.” U.S. Const. art. I, § 10. A law violates the Ex Post Facto Clause if it: (1) punishes as 6 criminal an act that was not criminal when it was committed; (2) makes a crime’s punishment 7 greater than when the crime was committed; or (3) deprives a person of a defense available at the 8 time the crime was committed. Collins v. Youngblood, 497 U.S. 37, 52 (1990). The Ex Post 9 Facto Clause is also violated if: (1) state regulations have been applied retroactively to a 10 defendant; and (2) the new regulations have created a “sufficient risk” of increasing the 11 punishment attached to the defendant's crimes. Himes v. Thompson, 336 F.3d 848, 854 (9th Cir. 12 2003). Not every law that disadvantages a defendant is a prohibited ex post facto law. In order 13 to violate the Clause, the law must essentially alter “the definition of criminal conduct” or 14 increase the “punishment for the crime.” Lynce v. Mathis, 519 U.S. 433, 441-42 (1997); Souch 15 v. Schaivo, 289 F.3d 616, 620 (9th Cir. 2002). 16 California Penal Code section 3041.5 has been amended several times since the 17 date of petitioner’s conviction to allow for longer periods of time between parole suitability 18 hearings. Ex post facto challenges to those amendments have all been rejected. See e.g. 19 California Dep’t of Corrections v. Morales, 514 U.S. 499, 509 (1995) (1981 amendment to 20 Section 3041.5, which increased maximum deferral period of parole suitability hearings to five 21 years did not violate the Ex Post Facto Clause because it simply altered the method of setting a 22 parole release date and did not create a meaningful “risk of increasing the measure of punishment 23 attached to the covered crimes”); Watson v. Estelle, 886 F.2d 1093, 1097-98 (9th Cir. 1989) (not 24 a violation of the Ex Post Facto Clause to apply Section 3041.5(b)(2)(A) to prisoners sentenced 25 to life imprisonment prior to the 1977 implementation of California’s Determinate Sentence 26 Law); Clifton v. Attorney General Of the State of California, 997 F.2d 660, 662 n.1 (9th Cir. 6 1 1993) (same); see also Garner v. Jones, 529 U.S. 244, 249 (2000) (upholding Georgia’s change 2 in the frequency of parole hearings for prisoners serving life sentences, from three to eight years). 3 Recently the Ninth Circuit overturned a district court decision granting 4 preliminary injunctive relief to plaintiffs in a class action seeking to prevent the Board from 5 enforcing the amended deferral periods established by Marsy’s Law. Gilman v. 6 Schwarzenegger,___F.3d___, 2011 WL 198435 (9th Cir., Jan. 24, 2011). The court found it 7 unlikely that plaintiffs would succeed on the merits of their underlying challenge premised on the 8 Ex Post Facto Clause. The court initially compared and contrasted Marsy’s Law with existing 9 Supreme Court precedent: 10 Here, as in Morales and Garner, Proposition 9 did not increase the statutory punishment for any particular offense, did not change the date of inmates’ initial parole hearings, and did not change the standard by which the Board determined whether inmates were suitable for parole. However, the changes to the frequency of parole hearings here are more extensive than the change in either Morales or Garner. First, Proposition 9 increased the maximum deferral period from five years to fifteen years. This change is similar to the change in Morales (i.e., tripled from one year to three years) and the change in Garner (i.e., from three years to eight years). Second, Proposition 9 increased the minimum deferral period from one year to three years. Third, Proposition 9 changed the default deferral period from one year to fifteen years. Fourth, Proposition 9 altered the burden to impose a deferral period other than the default period. . . . Neither Morales nor Garner involved a change to the minimum deferral period, the default deferral period, or the burden to impose a deferral period other than the default period. 11 12 13 14 15 16 17 18 19 Gilman, 2011 WL 198435, at * 5. The Ninth Circuit found these distinctions insignificant due to 20 the availability of advance parole hearings at the Board’s discretion (sua sponte or upon the 21 request of a prisoner, the denial of which is subject to judicial review), reasoning that, “as in 22 Morales, an advance hearing by the Board ‘would remove any possibility of harm’ to prisoners 23 because they would not be required to wait a minimum of three years for a hearing.” Id. at *6, 24 quoting Morales, 514 U.S. at 513. The court concluded that plaintiffs had failed to demonstrate a 25 significant risk that their incarceration would be prolonged by application of Marsy’s Law, and 26 //// 7 1 thus found that plaintiffs had not established a likelihood of success on the merits of their ex post 2 facto claim. 3 In addition to these preliminary conclusions by the Ninth Circuit that Marsy’s 4 Law does not appear to violate the Ex Post Facto Clause, at least one district court has dismissed 5 a petitioner’s challenge to the law on the ground that it improperly duplicates the class action 6 claim still pending on the merits in Gilman. See e.g. Bryant v. Haviland, 2011 WL 23064, *2- 7 5,15 (E.D. Cal., Jan. 4, 2011). That court noted that petitioner therein, as here, appears to be a 8 member of the Gilman class “of prisoners convicted of murder and serving a sentence of life with 9 the possibility of parole with at least one parole denial . . . challeng[ing] the state procedures 10 denying class members parole as well as their deferred parole suitability hearings following a 11 finding of parole unsuitability.” Id. at *5. Relying on established precedent precluding a 12 member of a class action from seeking, in an individual action, equitable relief that is also sought 13 by the class, see e.g. Crawford v. Bell, 599 F.2d 8990, 892-93 (9th Cir. 1979), the court 14 dismissed petitioner’s claim. 15 In light of these cases, the state court’s rejection of petitioner’s first claim for 16 relief was neither contrary to, nor an unreasonable application of, controlling principles of United 17 States Supreme Court precedent. Therefore, petitioner is not entitled to relief in this action on 18 his ex post facto claim. 19 IV. Conclusion 20 21 22 23 For all of the above reasons, the undersigned recommends that petitioner’s application for a writ of habeas corpus be denied. Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied. 24 These findings and recommendations are submitted to the United States District 25 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 26 one days after being served with these findings and recommendations, any party may file written 8 1 objections with the court and serve a copy on all parties. Such a document should be captioned 2 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files 3 objections, he shall also address whether a certificate of appealability should issue and, if so, why 4 and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if 5 the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 6 § 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after 7 service of the objections. The parties are advised that failure to file objections within the 8 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 9 951 F.2d 1153 (9th Cir. 1991). 10 DATED: February 14, 2011 11 12 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 13 14 knig2419.157 15 16 17 18 19 20 21 22 23 24 25 26 9
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