Dean v. Kane, No. 3:2006cv02511 - Document 7 (N.D. Cal. 2009)
Court Description: ORDER DENYING 1 Petition for Writ of Habeas Corpus. Signed by Judge Jeffrey S. White on 7/14/09. (jjo, COURT STAFF) (Filed on 7/14/2009)
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Dean v. Kane Doc. 7 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 RICHARD A. DEAN, 9 10 11 12 13 14 15 16 Petitioner, vs. A.P. KANE, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) No. C 06-2511 JSW (PR) ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS INTRODUCTION Petitioner Richard Dean, a prisoner of the State of California, has filed a habeas 17 corpus petition pursuant to 28 U.S.C. § 2254 challenging the Board of Prison Terms 18 (“BPT”) denial of parole during parole suitability proceedings in 2003. This Court 19 ordered Respondent to show cause why a writ should not issue. Respondent filed an 20 answer, memorandum and exhibits in support thereof. Petitioner has filed a traverse. 21 For the reasons stated below, the petition is denied on the merits. 22 23 BACKGROUND In 1991, in Los Angeles County Superior Court, Petitioner plead guilty to second 24 degree murder. The trial court sentenced him to a term of fifteen years to life in state 25 prison. Petitioner’s minimum parole eligibility date was December 9, 2000. In this 26 habeas action, Petitioner does not challenge his conviction or sentence, but instead 27 alleges that his due process rights were violated by the denial of parole by the BPT 28 during a subsequent parole suitability hearing on August 7, 2003. Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 The BPT relied, in part, upon the following account of Petitioner’s commitment offense from his probation report: On the date of the offense [December 8, 1990], in the county of Los Angeles, the defendant murdered Eric Larson. Furthermore defendant personally used a handgun. The victim in this case, a male adult, was residing with the defendant’s estranged wife, Sandra Dean. In the early morning hours of the offense, the defendant showed up with a handgun, argued with the victim, and then proceeded to shoot the victim at least twice, mortally wounding the victim. The defendant then left the scene, and sheriff’s deputies trailed him until they located him at Mc Donald’s [sic] restaurant in Palmdale where they apprehended him outside of the restroom. They subsequently recovered the handgun plus numerous unexpended shells. It turned out that the gun was stolen from the defendant’s father-in-law’s house in Littlerock [sic] shortly before the offense. The handgun was identified as a Ruger .357 Magnum but the shells used were .38 caliber shells. (Respondent’s (hereinafter “Resp.”) Exhibit (hereinafter “Ex.”) 5 at 5; Resp. Ex. 8 at 2.) Petitioner agreed with the facts in the record and added his own perspective: Well, it happened under a diminished capacity that I was under at the time. I was under a lot of stress and I called and I talked to my kids, and the victim told me on the phone that he wouldn’t let me talk to my kids because I wasn’t their father anymore. And he slammed the phone down. The next thing I remember was going in the backyard, arguing with him. And I basically snapped and I don’t recall too much of what transpired from the time I snapped until the time I actually realized that I had shot him. (Petitioner’s (hereinafter “Pet.”) Ex. A, Resp. Ex. 5 at 8-9.) The Board relied on Petitioner’s record as detailed in the May 2003 Life Prisoner 21 Evaluation Report. (Pet. Ex. A, Resp. Ex. 5 at 13; see Resp. Ex. 9.) This included a 22 1975 juvenile commitment to the Youth Authority, from which he went AWOL and 23 obstructed a peace officer. (Pet. Ex. A, Resp. Ex. 5 at 13-14; Resp. Ex. 9 at 3.) As an 24 adult, Petitioner was convicted once for possession of a controlled substance and twice 25 for drunk driving. (Pet. Ex. A, Resp. Ex. 5 at 14; Resp. Ex. 9 at 3.) 26 The BPT discussed Petitioner’s “post-conviction factors,” which commenced with 27 28 2 1 a review of the period between his last hearing, May 24, 2002 and the present hearing. 2 (Pet. Ex. A, Resp. Ex. 5 at 14.) Petitioner’s classification score per the mandatory 3 minimum was 19, and he had recently incurred a serious disciplinary infraction “115” on 4 March 7, 2002 for possession of inmate-manufactured alcohol. (Id. at 15-16.) 5 Petitioner’s prior serious disciplinary infraction was for mutual combat, a fist fight, on 6 December 30, 1992, for which he was sentenced to 90 days loss of credit. (Resp. Ex. 9 7 at 4.) 8 9 The BPT considered Petitioner’s exceptional work reports from his job as a post order clerk and satisfactory work reports from his job as a cook. (Pet. Ex. A, Resp. Ex. 5 10 at 15.) They also considered Petitioner’s positive “128B” general chrono in which the 11 correctional sergeant assigned to the CTF North Culinary Second Watch, where 12 Petitioner has worked for nine months, noted that “he has demonstrated an outstanding 13 ability to perform his assigned task.” (Id. at 17.) Petitioner had also participated in 14 various self-help programs, including Alcoholics Anonymous. (Id. at 16.) 15 16 17 18 19 20 21 22 23 24 25 26 The BPT also considered the summary of the Correctional Counselor dated May 14, 2003: Considering the commitment offense, prior record, and prison adjustment, the writer believes the prisoner would probably pose a moderate to low degree of threat to the public at this time if released from prison. The CDC 115 rule violation report dated March 7th of 2002 concerns me since alcohol and drugs, according to the inmate’s own statement, contributed heavily to the commission of the crime. I think abstinence from drugs and alcohol would be vital to Dean being successful as a minimal risk parolee to the community. Dean has participated in a variety of self-help programs, including Alcoholics Anonymous. In his letter dated May 8, 1999, titled “Why I Believe I Should Be Granted a Parole Date,” Dean accepts responsibility and makes no excuses for his crime. He expresses shame, guilt, and a remorse for his crime. He states that he will continue to attend AA in the community. Dean says that he now realizes that alcohol cannot be a part of his life if he is to live as a constructive, productive member of society. (Pet. Ex. A, Resp. Ex. 5 at 18-19.) Additionally, the BPT considered Petitioner’s most recent psychological 27 28 3 1 evaluation completed by Dr. Steven J. Terrini, who notes that he “demonstrated 2 substantial insight,” displayed “no evidence whatsoever of antisocial personality 3 disorder,” and would have a violence potential of “no more than the average citizen in 4 the community.” (Pet. Ex. A, Resp. Ex. 5 at 20-21.) However, Dr. Terrini also notes 5 that Petitioner has “significant problems with alcohol and methamphetamines,” and that 6 “his violence potential would be considerably higher” if he continued to abuse these 7 substances. (Id. at 19-21.) Dr. Terrini recommended upon parole “abstinence from all 8 illegal drugs and alcohol, monitoring, and mandatory attendance at self-help groups such 9 as Alcoholics Anonymous or Narcotics Anonymous.” (Id. at 21.) 10 The Board questioned Petitioner about his parole plans, which included his plan to 11 reside at the East Side Recovery Homes, a “sober living environment whose goal is to 12 help men and women with drug and/or alcohol problems that are ready to change their 13 lives.” (Pet. Ex. A, Resp. Ex. 5 at 21-22.) Petitioner provided a letter from the director, 14 Ramona Perry, establishing that a bed would be held for him upon his release. (Id. at 15 22.) Petitioner has prior work experience as a heavy equipment operator, a truck driver, 16 and a welder, but had no current offers of employment. (Id. at 23.) 17 The Board also questioned Petitioner about the circumstances of his recent 18 disciplinary infraction for possession of inmate-manufactured alcohol. (Pet. Ex. A, Resp. 19 Ex. 5 at 24-25.) Petitioner admitted that he “fell off the wagon,” that he “made a 20 mistake,” and that he was “only human.” (Id. at 25.) He also stated that he could only 21 “do it one day at a time,” and that he “realize[s] that [alcohol] can’t be a part of [his] 22 life.” (Id. at 26.) 23 Deputy District Attorney Botello from Los Angeles County opposed parole based 24 on the circumstances of the crime, Petitioner’s “extensive alcohol/drug abuse” history, 25 and his alleged lack of “true remorse.” (Pet. Ex. A, Resp. Ex. 5 at 28-29.) The Deputy 26 District Attorney characterized the crime as a “cold, calculated, planned murder.” (Id. at 27 28 4 1 29.) Botello also argued that given the “devastating” effect of alcohol on Petitioner’s 2 life, his recent alcohol-related rule violation “seriously demonstrated his inability to 3 show that he is ready to be released to the outside world.” (Id. at 34.) In closing, 4 Petitioner’s attorney emphasized his various positive reports during the period of 5 incarceration, his overall progress in dealing with his substance abuse problem, and his 6 stable work history prior to incarceration. (Id. at 35.) 7 After a recess to consider the evidence before it, the BPT found that Petitioner 8 was not suitable for parole and would pose an unreasonable risk of danger to society and 9 a threat to public safety if released from prison. (Pet. Ex. A, Resp. Ex. 5 at 39.) The 10 presiding Commissioner explained that, in deciding to deny parole, the panel considered 11 all of the information received from the public in denying parole. (Id.) The Board found 12 that Petitioner’s commitment offense was carried out in a “dispassionate manner” which 13 “demonstrates an exceptionally insensitive disregard for human sufferings.” (Id.) The 14 Board also found that the motive for the crime was “inexplicable or very trivial in 15 relation to the offense.” (Id.) 16 Further, the Board found that Petitioner had an escalating pattern of criminal 17 conduct and had “failed to profit from society’s previous attempts to correct his 18 criminality.” (Pet. Ex. A, Resp. Ex. 5 at 40.) The Board also found that Petitioner had a 19 history of “unstable tumultuous relationships with others” as well as problems with 20 alcohol abuse. (Id.) The Board noted that Petitioner had “failed to upgrade vocationally 21 as previously recommended by the Board,” and had “not sufficiently participated in 22 beneficial self-help and therapy.” (Id.) The Board noted Petitioner’s recent serious 23 infraction and stated that he had “failed to demonstrate evidence of positive change.” 24 (Id.) Finally, the Board noted that the District Attorney’s office of Los Angeles County 25 and the Sheriff’s Department of Los Angeles County had both opposed the granting of 26 parole. (Id. at 41.) The Board denied parole for a period of three years, relying on the 27 28 5 1 above stated reasons. (Id.) 2 Petitioner challenged the BPT’s decision in Los Angeles County Superior Court, 3 which issued an unreasoned opinion denying Petitioner’s claims. (Pet. Attachment 4 (hereinafter “Att.”) 3; Resp. Ex. 2.) The court held only that Petitioner had the burden of 5 establishing grounds for his release, and that he had failed to show a prima facie case for 6 the relief requested. (Id.) The California Court of Appeal for the Second Appellate 7 District and the California Supreme Court summarily denied Petitioner’s habeas petition 8 on December 15, 2004 and February 1, 2006, respectively. (Pet. Att. 1, 2; Resp. Ex. 3, 9 4.) Thereafter, Petitioner filed the instant federal petition for a writ of habeas corpus on 10 April 11, 2006. 11 12 13 DISCUSSION A. Standard of Review The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified 14 under 28 U.S.C. § 2254, provides “the exclusive vehicle for a habeas petition by a state 15 prisoner in custody pursuant to a state court judgment, even when the petitioner is not 16 challenging his underlying state court conviction.” White v. Lambert, 370 F.3d 1002, 17 1009-10 (9th Cir. 2004). Under AEDPA, this court may entertain a petition for habeas 18 relief on behalf of a California state inmate “only on the ground that he is in custody in 19 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 20 § 2254(a). 21 The writ may not be granted unless the state court’s adjudication of any claim on 22 the merits: “(1) resulted in a decision that was contrary to, or involved an unreasonable 23 application of, clearly established Federal law, as determined by the Supreme Court of 24 the United States; or (2) resulted in a decision that was based on an unreasonable 25 determination of the facts in light of the evidence presented in the State court 26 proceeding.” 28 U.S.C. § 2254(d). Under this deferential standard, federal habeas relief 27 28 6 1 will not be granted “simply because [this] court concludes in its independent judgment 2 that the relevant state-court decision applied clearly established federal law erroneously 3 or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 4 529 U.S. 362, 411 (2000). 5 While circuit law may provide persuasive authority in determining whether the 6 state court made an unreasonable application of Supreme Court precedent, the only 7 definitive source of clearly established federal law under 28 U.S.C. section 2254(d) is in 8 the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state 9 court decision. Williams, 529 U.S. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th 10 11 Cir. 2003). In determining whether the state court's decision is contrary to, or involved an 12 unreasonable application of, clearly established federal law, a federal court looks to the 13 decision of the highest state court to address the merits of a petitioner's claim in a 14 reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000). If the 15 state court only considered state law, the federal court must ask whether state law, as 16 explained by the state court, is “contrary to” clearly established governing federal law. 17 See, e.g., Lockhart v. Terhune, 250 F.3d 1223, 1230 (9th Cir. 2001); Hernandez v. 18 Small, 282 F.3d 1132, 1141 (9th Cir. 2002) (state court applied correct controlling 19 authority when it relied on state court case that quoted Supreme Court for proposition 20 squarely in accord with controlling authority). If the state court, relying on state law, 21 correctly identified the governing federal legal rules, the federal court must ask whether 22 the state court applied them unreasonably to the facts. See Lockhart, 250 F.3d at 1232. 23 The standard of review under AEDPA is somewhat different where the state court 24 gives no reasoned explanation of its decision on a petitioner's federal claim and there is 25 no reasoned lower court decision on the claim. In such a case, a review of the record is 26 the only means of deciding whether the state court's decision was objectively reasonable. 27 28 7 1 See Plascencia v. Alameda, 467 F.3d 1190, 1198 (9th Cir. 2006); Himes v. Thompson, 2 336 F.3d 848, 853 (9th Cir. 2003); Greene v. Lambert, 288 F.3d 1081, 1088 (9th Cir. 3 2002); Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir. 2001); Delgado v. Lewis, 223 4 F.3d 976, 981-82 (9th Cir. 2000). When confronted with such a decision, a federal court 5 should conduct “an independent review of the record” to determine whether the state 6 court’s decision was an objectively unreasonable application of clearly established 7 federal law. Plascencia, 467 F.3d at 1198; Himes, 336 F.3d at 853; Delgado, 223 F.3d at 8 981-82. The federal court need not otherwise defer to the state court decision under 9 AEDPA: “A state court's decision on the merits concerning a question of law is, and 10 should be, afforded respect. If there is no such decision on the merits, however, there is 11 nothing to which to defer.” Greene, 288 F.3d at 1089. In sum, “while we are not 12 required to defer to a state court's decision when that court gives us nothing to defer to, 13 we must still focus primarily on Supreme Court cases in deciding whether the state 14 court's resolution of the case constituted an unreasonable application of clearly 15 established federal law.” Fisher v. Roe, 263 F.3d 906, 914 (9th Cir. 2001). 16 B. 17 Legal Claims and Analysis Petitioner claims that the BPT’s denial of parole in 2003 violated his right to due 18 process. Petitioner also claims that the Deputy District Attorney’s opposition to his 19 parole, an alleged breach of Petitioner’s plea agreement, violated his right to due process. 20 1. 21 California’s parole scheme provides that the BPT “shall set a release date unless it 22 determines that the gravity of the current convicted offense or offenses, or the timing and 23 gravity of current or past convicted offense or offenses, is such that consideration of the 24 public safety requires a more lengthy period of incarceration for this individual, and that 25 a parole date, therefore, cannot be fixed at this meeting.” Cal. Penal Code § 3041(b). In 26 making this determination, the BPT considers such factors as the prisoner’s social The BPT Decision 27 28 8 1 history, the commitment offense and prior criminal history, and his behavior before, 2 during and after the crime. See Cal. Code Regs. tit. 15, § 2402(b) – (d). 3 The record shows, and there is no dispute, that the BPT panel afforded Petitioner 4 and his counsel an opportunity to speak and present their case at the hearing, gave them 5 time to review Petitioner’s central file, allowed them to present relevant documents and 6 provided a reasoned decision denying parole. The panel concluded that Petitioner is not 7 suitable for parole and would pose an unreasonable risk of danger to society and a threat 8 to public safety if released from prison. 9 The panel explained that the commitment offense “demonstrate[d] an 10 exceptionally insensitive disregard for human sufferings” and that the motive for the 11 crime was inexplicable in comparison with the gravity of the offense. (Pet. Ex. A, Resp. 12 Ex. 5 at 39.) The panel noted Petitioner’s recent serious infraction for possession of 13 inmate-manufactured alcohol. (Id. at 40.) The panel found that Petitioner “still needs 14 therapy in order to face, discuss, understand, and cope with stress in a nondestructive 15 manner,” and that “until progress is made [Petitioner] continues to be unpredictable and a 16 threat to others.” (Id. at 41.) Although the panel commended Petitioner for his 17 participation in various programs, it stated that “these positive aspects of his behavior 18 don’t outweigh the factors of unsuitability at this time.” (Id. at 42.) 19 2. 20 The state superior court’s decision stated that the burden was on Petitioner to The State Court Decisions 21 establish grounds for his release, and that he had failed to show a prima facie case 22 establishing his right to habeas relief. (Pet. Att. 3; Resp. Ex. 2.) The California Court of 23 Appeal and Supreme Court summarily denied Petitioner’s habeas petitions. (Pet. Att. 1, 24 2; Resp. Ex. 3, 4.) 25 3. 26 California's parole scheme “gives rise to a cognizable liberty interest in release on The Federal Right to Due Process 27 28 9 1 parole” which cannot be denied without adequate procedural due process protections. 2 Sass v. California Bd. of Prison Terms, 461 F.3d 1123, 1127 (9th Cir. 2006) (quoting 3 McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002)). The determination does not 4 depend on whether a parole release date has ever been set for the inmate because “[t]he 5 liberty interest is created, not upon the grant of a parole date, but upon the incarceration 6 of the inmate.” Biggs v. Terhune, 334 F.3d 910, 914-15 (9th Cir. 2003). 7 Due process requires that “some evidence” support the parole board’s decision 8 finding him unsuitable for parole. Sass, 461 F.3d at 1128 (holding that the “some 9 evidence” standard for disciplinary hearings outlined in Superintendent v. Hill, 472 U.S. 10 445, 454-55 (1985), applies to parole decisions in a section 2254 habeas petition); Biggs, 11 334 F.3d at 915 (same); McQuillion, 306 F.2d at 904 (same). The “some evidence” 12 standard is minimally stringent and ensures that “the record is not so devoid of evidence 13 that the findings of [the BPT] were without support or otherwise arbitrary.” Hill, 472 14 U.S. at 457. Determining whether this requirement is satisfied “does not require 15 examination of the entire record, independent assessment of the credibility of witnesses, 16 or weighing of the evidence.” Id. at 455 (quoted in Sass, 461 F.3d at 1128). Due process 17 also requires that the evidence underlying the parole board’s decision have some indicia 18 of reliability. Biggs, 334 F.3d at 915; McQuillion, 306 F.3d at 904. In sum, if the parole 19 board’s determination of parole unsuitability is to satisfy due process, there must be 20 some evidence, with some indicia of reliability, to support the decision. Rosas v. 21 Nielsen, 428 F.3d 1229, 1232 (9th Cir. 2005). 22 When assessing whether a state parole board’s suitability determination was 23 supported by “some evidence,” the court’s analysis is framed by the statutes and 24 regulations governing parole suitability determinations in the relevant state. Irons v. 25 Carey, 505 F.3d 846, 851 (9th Cir. 2007). Accordingly, in California, the court must 26 look to California law to determine the findings that are necessary to deem a prisoner 27 28 10 1 unsuitable for parole. Id. Because there is no reasoned state court opinion in this case, 2 this court must conduct “an independent review of the record” to determine whether the 3 state court’s denial of Petitioner’s habeas petition was an objectively unreasonable 4 application of clearly established federal law. Plascencia, 467 F.3d at 1198. 5 The recent California Supreme Court case of In re Lawrence, 44 Cal.4th 1181 6 (2008), clarified what California law requires the Board to find in order to deny parole: 7 the Board must find only that the prisoner is a current threat to public safety, not that 8 some of the specific factors in the regulations have or have not been established. Id. at 9 1212. This means that the “some evidence” test is whether there is “some evidence” that 10 the prisoner is a threat, not whether there is “some evidence” to support particular 11 secondary findings of the Board, for instance that the prisoner needs more time for 12 rehabilitation. Id.; see Irons v. Carey, 505 F.3d 846, 851 (9th Cir. 2007) (when assessing 13 whether a state parole board's suitability determination was supported by “some 14 evidence,” the court's analysis is framed by the statutes and regulations governing parole 15 suitability determinations in the relevant state). 16 There was evidence in the record to support the BPT’s determination that 17 Petitioner continued to pose an unreasonable risk of danger to society. First, Petitioner’s 18 act of hunting down an unarmed man in his estranged wife’s house and shooting the man 19 multiple times provides some evidence of exceptional disregard for human suffering. 20 Second, because the victim did not seriously threaten or provoke Petitioner, the Board 21 has some evidence to support the conclusion that the motive was inexplicable in relation 22 to the gravity of the offense. Finally, given Petitioner’s extensive history of drug and 23 alcohol abuse and the strong connection of this abuse to his past crimes, Petitioner’s 24 recent alcohol-related infraction in prison provides clear evidence that he presents a 25 current threat to public safety if released. Petitioner did not challenge the validity of any 26 of this evidence, and thus there is no question as to its reliability. 27 28 11 1 The Court finds that the BPT’s reliance on these factors, including the 2 circumstances of the crime and Petitioner’s recent serious infraction, constitutes “some 3 evidence” to support the BPT’s determination that Petitioner continued to present a risk of 4 danger if released to the public, and consequently that Petitioner was not suitable for 5 parole. 6 The Ninth Circuit has noted that “over time” the BPT’s “continued reliance ... on 7 an unchanging factor,” in particular “the circumstance of the offense and conduct prior to 8 imprisonment,” would “raise serious questions involving his liberty interest in parole.” 9 Biggs, 334 F.3d at 916-17. However, in this case the BPT’s denial of parole was not only 10 based upon Petitioner’s commitment offense. Here there were other supported reasons, 11 described above, for their denial of parole. 12 Based on this Court’s independent review of the record, the state courts’ denial of 13 Petitioner’s habeas petition was not contrary to or an unreasonable application of clearly 14 established federal law because there was some reliable evidence to support the BPT’s 15 denial of parole. Accordingly, habeas relief is not warranted on this claim. 16 4. 17 Petitioner asserts that his plea agreement was breached when the BPT denied Breach of Plea Agreement 18 parole because the representative of the Los Angeles County District Attorney's office 19 opposed parole at his hearings in 2000 and 2003, despite the statement of the Deputy 20 District Attorney during his guilty plea that Petitioner would be released on parole “after 21 serving the appropriate amount of time.” (Petition at 3, Pet. Ex. H at 7.) He alleges that 22 the district attorney's opposition to his parole violated the plea agreement. 23 The breach of plea agreement claim is time-barred. “A 1-year period of limitation 24 shall apply to an application for a writ of habeas corpus by a person in custody pursuant 25 to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). A habeas petition by a state 26 prisoner challenging a decision of an administrative body, such as the BPT, is covered by 27 28 12 1 the statute and the limitations period starts to run from “the date on which the factual 2 predicate of the claim or claims presented could have been discovered through the 3 exercise of due diligence.” 28 U.S.C. § 2244(d)(1)( D); Shelby v. Bartlett, 391 F.3d 4 1061, 1066 (9th Cir. 2003); see also Redd v. McGrath, 343 F.3d 1077, 1081-82 (9th Cir. 5 2003). 6 Here, the factual predicate or basis of Petitioner's claim that his plea agreement 7 was violated was known to him no later than at the time of his 2000 hearing. He was 8 denied parole at his parole consideration hearing in 2000 after the District Attorney's 9 opposition, meaning the actual breach occurred no later than that date. Yet Petitioner did 10 not file his federal habeas petition challenging the breach of the agreement within the 11 required one-year period, even allowing for the time from 2004 through 2006 that his 12 state habeas petitions were pending. He cannot revive the time-barred claim by asserting 13 that the agreement, which was irrevocably breached in 2000, was breached again in 14 2003. 15 However, even if the claim was not barred by the statute of limitations, the breach 16 of plea bargain claim has no merit. “Plea agreements are contractual in nature and are 17 measured by contract law standards.” Brown v. Poole, 337 F.3d 1155, 1159 (9th Cir. 18 2003) (quoting United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993)). 19 Although a criminal defendant has a due process right to enforce the terms of a plea 20 agreement, there is no evidence that Petitioner's subjective expectations about how parole 21 would be decided were part of the plea agreement. See Santobello v. New York, 404 U.S. 22 257, 261-62 (1971). Although Petitioner clearly feels that he has served an “appropriate 23 amount of time,” he has not pointed to any language in any plea agreement that would 24 bar the District Attorney’s office from opposing his release on parole in 2003, especially 25 given the recent occurrence of Petitioner’s disciplinary infraction for possession of 26 inmate-manufactured alcohol. 27 28 13 1 Petitioner's sentence upon his conviction based on his plea agreement was to an 2 indeterminate term of fifteen years to life in state prison. He has apparently received the 3 parole consideration at hearings to which he was entitled under that agreement and 4 sentence. Based on this Court’s independent review of the record, the Deputy District 5 Attorney’s participation in the BPT hearing where Petitioner was denied parole did not 6 violate Petitioner’s due process right, and therefore the claim must fail. 7 8 9 10 11 12 13 CONCLUSION For the reasons set forth above, the petition for a writ of habeas corpus is DENIED. The Clerk shall enter judgment in favor of Respondent and close the file. IT IS SO ORDERED. DATED: July 14, 2009 JEFFREY S. WHITE United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 6 RICHARD A. DEAN, Plaintiff, 7 8 9 10 Case Number: CV06-02511 JSW CERTIFICATE OF SERVICE v. A.P.KANE et al, Defendant. / 11 12 13 14 15 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on July 14, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 19 Richard A. Dean E87707 P.O. Box 689 Soledad, CA 93960 20 Dated: July 14, 2009 18 21 22 23 24 25 26 27 28 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk
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