Troxell v. Kirkland, No. 3:2007cv01583 - Document 46 (N.D. Cal. 2009)
Court Description: ORDER DENYING Petition for Writ of Habeas Corpus and DENYING Certificate of Appealability. Signed by Judge Thelton E. Henderson on 12/17/09. (Attachments: # 1 Certificate of Service)(rbe, COURT STAFF) (Filed on 12/17/2009)
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Troxell v. Kirkland Doc. 46 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court For the Northern District of California 11 12 13 14 15 No. C-07-1583 TEH (PR) DANNY TROXELL, Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY v. ROBERT HOREL, Warden Respondent. 16 / 17 18 Pro se Petitioner Danny Troxell, a state prisoner 19 incarcerated at Pelican Bay State Prison in Crescent City, 20 California, seeks a writ of habeas corpus under 28 U.S.C. § 2254 21 challenging the California Board of Parole Hearings’ (“BPH”) January 22 10, 2006 decision to deny him parole, which, for the reasons that 23 follow, the Court denies. 24 25 26 I Below is a factual summary of the commitment offense as 27 set forth at Petitioner’s second parole suitability hearing that BPH 28 adopted, without objection, at Petitioner’s third parole suitability Dockets.Justia.com 1 hearing on January 10, 2006. 2 53. 3 Doc. #18-17 at 9-10; Doc. #18-2 at 51- At approximately 5:30 p.m. on January 26, 1979, Margaret 4 Greenwood, an employee of the Greenwood Market, saw Petitioner 5 squatted down near the cash register holding a sawed-off shotgun. 6 Petitioner stood up and demanded money from the register monitored 7 by Greenwood, and she complied. 8 a second cash register monitored by another employee, Mr. Sulum. 9 When Sulum had difficulty opening the register, Greenwood came to Petitioner then demanded money from 10 his aid. 11 Sulum’s register she announced that Petitioner had a gun. 12 person, Mr. Bitar, approached Petitioner and grabbed the shotgun. 13 Petitioner pulled back and fired the shotgun, striking Bitar in the 14 chest. 15 gunshot wound. 16 Petitioner threatened to shoot Sulum. Petitioner fled the scene. As Greenwood opened A third Bitar subsequently died from the Doc. #18-2 at 44 & 51–53. On July 16, 1979, Petitioner was sentenced to twenty-six- 17 years-to-life in state prison following his guilty pleas in Fresno 18 County Superior Court to first degree murder and robbery and his 19 admission to serving a prior prison term for burglary. 20 at 16-17, 20 & 26. 21 1996. 22 Doc. #18-16 His minimum eligible parole date was August 12, Doc. #18-17 at 4. Since 1985, Petitioner has been housed in a Security 23 Housing Unit (“SHU”) because he has been validated by the California 24 Department of Corrections and Rehabilitation (“CDCR”) as an “active” 25 26 27 28 2 1 member of the Aryan Brotherhood (“AB”) prison gang.1 2 22 & 34; Doc. #18-18 at 2-3. 3 Doc. #18-17 at On January 10, 2006, Petitioner appeared before BPH for 4 his third parole suitability hearing. 5 hearing, BPH found Petitioner was “not yet suitable for parole and 6 would pose an unreasonable risk of danger to society or a threat to 7 public safety if released from prison.” 8 cited several reasons to support its decision, including the 9 commitment offense, Petitioner’s criminal history, substance abuse Doc. #18-17 at 21. At that Doc. #18-18 at 5. BPH 10 history and institutional disciplinary history. 11 thoroughly discussed CDCR’s continued validation of Petitioner as an 12 active member of the AB. 13 2-3. 14 Id. BPH also Doc. #18-17 at 34 & 40-42; Doc. #18-18 at Petitioner unsuccessfully challenged BPH’s decision in the 15 state superior and appellate courts. 16 Doc. #18-20 at 2. 17 Habeas Corpus followed. 18 Doc. #18-19 at 23 & 25-27; This federal Amended Petition for a Writ of Doc. #8. Per order filed on April 27, 2009, the Court found 19 Petitioner’s claim that BPH violated his due process rights, when 20 liberally construed, was colorable under § 2254, and ordered 21 Respondent to show cause why a writ of habeas corpus should not be 22 granted. Doc. #14. Respondent has filed an Answer and Petitioner 23 24 1 27 During his 2006 parole suitability hearing, Petitioner denied being a member of the AB, and has challenged CDCR’s determination of membership through the prison administrative grievance system and in state and federal court. Doc. #18-17 at 40; Doc. #18-18 at 2-3; Doc. #18-3 at 82-85 & Doc. #18-4 at 2-19 (copies of Petitioner’s prison administrative grievances, logged as PBSP 05-01550, and PBSP’s responses thereto). 28 3 25 26 1 has filed a Traverse, which includes well over 2,500 pages of 2 exhibits. Doc. ## 18 & 21-44. 3 4 II 5 The Antiterrorism and Effective Death Penalty Act of 1996 6 (“AEDPA”), codified under 28 U.S.C. § 2254, provides “the exclusive 7 vehicle for a habeas petition by a state prisoner in custody 8 pursuant to a state court judgment, even when the petitioner is not 9 challenging his underlying state court conviction.” White v. 10 Lambert, 370 F.3d 1002, 1009–10 (9th Cir. 2004). 11 Court may entertain a petition for habeas relief on behalf of a 12 California state prisoner “only on the ground that he is in custody 13 in violation of the Constitution or laws or treaties of the United 14 States.” 15 Under AEDPA, this 28 U.S.C. § 2254(a). The writ may not be granted unless the state court’s 16 adjudication of any claim on the merits: 17 decision that was contrary to, or involved an unreasonable 18 application of, clearly established Federal law, as determined by 19 the Supreme Court of the United States; or (2) resulted in a 20 decision that was based on an unreasonable determination of the 21 facts in light of the evidence presented in the State court 22 proceeding.” 23 federal habeas relief will not be granted “simply because [this] 24 court concludes in its independent judgment that the relevant 25 state-court decision applied clearly established federal law 26 erroneously or incorrectly. 28 U.S.C. § 2254(d). Under this deferential standard, Rather, that application must also be 27 28 “(1) resulted in a 4 1 2 unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). While circuit law may provide persuasive authority in 3 determining whether the state court made an unreasonable application 4 of Supreme Court precedent, the only definitive source of clearly 5 established federal law under 28 U.S.C. § 2254(d) rests in the 6 holdings (as opposed to the dicta) of the Supreme Court as of the 7 time of the state court decision. 8 v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). Williams, 529 U.S. at 412; Clark 9 10 III 11 A 12 The Fifth and Fourteenth Amendments prohibit the 13 government from depriving a prisoner of life, liberty or property 14 without due process of law. 15 settled that California’s parole scheme, codified in California 16 Penal Code section 3041, vests all “prisoners whose sentences 17 provide for the possibility of parole with a constitutionally 18 protected liberty interest in the receipt of a parole release date, 19 a liberty interest that is protected by the procedural safeguards of 20 the Due Process Clause.” 21 Cir. 2007) (citing Sass v. Calif. Bd. of Prison Terms, 461 F.3d 22 1123, 1128 (9th Cir. 2006); Biggs v. Terhune, 334 F.3d 910, 914 (9th 23 Cir. 2003); McQuillon v. Duncan, 306 F.3d 895, 903 (9th Cir. 2002)). 24 It matters not that a parole date has not been set for the prisoner 25 because “[t]he liberty interest is created, not upon the grant of a 26 parole date, but upon the incarceration of the [prisoner].” U.S. Const. Amends. V & XIV. Irons v. Carey, 505 F.3d 846, 850 (9th 27 28 It is now 5 Biggs, 1 334 F.3d at 915. 2 board premise its decision regarding a petitioner’s parole 3 suitability on “some evidence in the record” such that the decision 4 is not arbitrary. 5 v. Hill, 472 U.S. 445, 457 (1985)). 6 clearly established federal law in the parole context for purposes 7 of § 2254(d). 8 9 Due process accordingly requires that a parole Sass, 461 F.3d at 1128-29 (quoting Superintendent The “some evidence” standard is Id. at 1129. The Supreme Court set forth the “some evidence” standard in Hill, which concerned the revocation of “good time” credits 10 towards parole resulting from prisoner misconduct. 11 at 455. 12 process foundation it laid in Wolff v. McDonnell, 418 U.S. 539, 13 563-67 (1974). 14 things, that a prisoner receive “a written statement by the fact 15 finder of the evidence relied on and the reasons” for the 16 deprivation of his good time credits. 17 Wolff, 418 U.S. at 565). 18 laid in Wolff: 19 ‘the minimum requirements of procedural due process,’ unless the 20 findings of the prison disciplinary board are supported by some 21 evidence in the record.” 22 U.S. at 558). 23 Hill, 472 U.S. The Court rested its holding upon the procedural due As the Court noted, Wolff required, among other Hill, 472 U.S. at 454 (citing The Court then added to the foundation “[R]evocation of good time does not comport with Hill, 472 U.S. at 455 (quoting Wolff, 418 The “some evidence” standard does not permit the court to 24 “reweigh the evidence.” 25 1994). 26 the record that could support the conclusion reached by the Powell v. Gomez, 33 F.3d 39, 42 (9th Cir. Instead, the inquiry is “whether there is any evidence in 27 28 6 1 disciplinary board.” 2 stringent, it must at minimum protect a prisoner’s “strong interest 3 in assuring that the loss of [parole] is not imposed arbitrarily.” 4 Id. at 454. 5 Hill, 472 U.S. at 455-56. While this test is Due process also requires that the evidence underlying the 6 parole board’s decision have some indicium of reliability. 7 334 F.3d at 915; McQuillion, 306 F.3d at 904. 8 inquiry is whether the prisoner was afforded an opportunity to 9 appear before, and present evidence to, the board. Biggs, Relevant to this See Pedro v. 10 Oregon Parole Bd., 825 F.2d 1396, 1399 (9th Cir. 1987). 11 determination of parole unsuitability is to satisfy due process, 12 there must be some reliable evidence to support the decision. 13 v. Nielsen, 428 F.3d 1229, 1232 (9th Cir. 2005). If BPH’s Rosas 14 15 B 16 When assessing whether a state parole board’s suitability 17 determination was supported by “some evidence” the court’s analysis 18 is framed by the statutes and regulations governing parole 19 suitability determinations in the relevant state. 20 at 850. 21 serving indeterminate life sentences for noncapital murders, i.e., 22 those murders not punishable by death or life without the 23 possibility of parole, become eligible for parole after serving 24 minimum terms of confinement required by statute. 25 34 Cal. 4th 1061, 1077-78 (2005). 26 parole scheme provides that BPH “shall set a release date unless it Under California law, prisoners like Petitioner who are In re Dannenberg, At that point, California’s 27 28 Irons, 505 F.3d 7 1 determines that the gravity of the current convicted offense or 2 offenses, or the timing and gravity of current or past convicted 3 offense or offenses, is such that consideration of the public safety 4 requires a more lengthy period of incarceration.” 5 3041(b). 6 prisoner shall be found unsuitable for and denied parole if in the 7 judgment of the panel the prisoner will pose an unreasonable risk of 8 danger to society if released from prison.” 9 15, § 2402(a). Cal. Penal Code § Regardless of the length of the time served, “a life Cal. Code Regs. tit. In making this determination, BPH must consider 10 various factors, including the prisoner’s social history, past 11 criminal history and base and other commitment offense, including 12 behavior before, during and after the crime. 13 The “core determination” regarding a prisoner’s threat to public 14 safety “involves an assessment of a[] [prisoner’s] current 15 dangerousness.” 16 (emphasis in original) (citing In re Rosenkrantz, 29 Cal. 4th 616 17 (2002) and In re Dannenberg, 34 Cal. 4th 1061 (2005)). See id. § 2402(b)–(d). See In re Lawrence, 44 Cal. 4th 1181, 1205 (2008) 18 19 20 IV Petitioner seeks federal habeas corpus relief from BPH’s 21 January 10, 2006 decision finding him unsuitable for parole and 22 denying him a subsequent parole suitability hearing for three years 23 on the ground that the decision does not comport with due process. 24 Petitioner’s main claim is that BPH’s finding that he was unsuitable 25 for parole violated his due process rights because the decision was 26 not supported by “some evidence.” Doc. #8, Pet. at 6 & 11. 27 28 8 1 Petitioner also claims that by validating him as a member of the AB, 2 CDCR has what amounts to a blanket policy of denying him parole, 3 that BPH’s decision finding him unsuitable for parole violated his 4 plea agreement and that he was denied the effective assistance of 5 counsel at his parole suitability hearing. Id. at 6 & 8-17. 6 7 8 9 10 A Petitioner claims BPH’s finding that he was unsuitable for parole violated his due process rights because the decision was not supported by “some evidence.” 11 As an initial matter, the Court notes that the record 12 shows BPH afforded Petitioner and his counsel an opportunity to 13 speak and present Petitioner’s case at the hearing, gave them time 14 to review documents relevant to Petitioner’s case and provided them 15 with a reasoned decision in denying parole. 16 Doc. #18-18 at 5-12. 17 Doc #18-17 at 6-10; The record also shows that BPH relied on several 18 circumstances tending to show unsuitability for parole and that 19 these circumstances formed the basis for its conclusion that 20 Petitioner was “not yet suitable for parole and would pose an 21 unreasonable risk of danger to society or a threat to public safety 22 if released from prison.” 23 tit. 15, § 2402(a) (stating that a prisoner determined to be an 24 unreasonable risk to society shall be denied parole). 25 BPH considered the commitment offense, Petitioner’s criminal history 26 beginning at age thirteen, his substance abuse history, Doc. #18-18 at 5; see Cal. Code Regs. 27 28 9 Specifically, 1 institutional disciplinary history and CDCR’s continued validation 2 of Petitioner as an active member of the AB. 3 see also Doc. #18-17 at 12-13 (discussing Petitioner’s criminal 4 history); id. at 13-14 (discussing Petitioner’s addiction to drugs, 5 including heroin); id. at 33 (discussing Petitioner’s institutional 6 disciplinary history, which included stabbing another prisoner); id. 7 at 34 & 40-42; Doc. #18-18 at 2-3 (discussing Petitioner’s continued 8 validation as a member of the AB). 9 referenced Doc. #18-18 at 5-12; During the hearing, BPH also Petitioner’s most recent psychological evaluation, in 10 which the doctor noted: 11 [Petitioner] on a mainline before any predictions about his 12 dangerousness to the general community would be attempted.” 13 38. 14 “it would be prudent to observe Id. at BPH also considered other factors tending to support 15 suitability for parole including Petitioner’s recent and consistent 16 positive institutional behavior, which reflected no rules violation 17 reports since 1997, and his prison programming, which was done 18 “largely on his own” due to his SHU placement. 19 Doc. #18-17 at 22-33. 20 Doc. #18-18 at 6; The state superior court affirmed the decision of BPH to 21 deny Petitioner parole, finding that the record contained “some 22 evidence” to support BPH’s finding that Petitioner was unsuitable 23 for parole. 24 summarily denied Petitioner’s request for habeas corpus relief. 25 Doc. #18-19 at 23 & Doc. #18-20 at 2. 26 Doc. #18-19 at 25-27. The record shows that BPH had some reliable evidence to 27 28 The state appellate courts 10 1 support its finding of unsuitability, which included Petitioner’s 2 criminal history, substance abuse history, institutional 3 disciplinary history and CDCR’s continued validation of Petitioner 4 as an active member of the AB. 5 prison gang members also known as “associates” are “deemed to be a 6 severe threat to the safety of others or the security of the 7 institution” and as a result “will be placed in a SHU for an 8 indeterminate term.” 9 A validated prison gang member or associate “shall be considered for Under California law, validated Cal. Code Regs. tit. 15, § 3341.5(c)(2)(A)(2). 10 release from a SHU . . . after the [prisoner] is verified as a gang 11 dropout through a debriefing process” or once CDCR personnel have 12 classified the prisoner as an “inactive” member or associate, which 13 means no involvement in gang activity for a minimum of six years. 14 Id. § 3341.5(c)(4) & (5). 15 least three independent sources documenting gang membership; those 16 sources include: 17 symbols; written material pertaining to the gang; photographs 18 depicting gang connotations; observations of CDCR staff; information 19 regarding membership from other agencies; information regarding 20 membership from informants and/or visitors; and information 21 contained in prisoner communications. 22 A prisoner’s gang validation requires at self-admission of membership; gang tattoos and Id. § 3378(c)(3) & (8). Here, evidence in the record shows that on July 8, 2003 23 and again on December 30, 2004, CDCR validated Petitioner as an 24 active member of the AB based upon seven independent sources. 25 #18-4 at 6 & 10. 26 response to Petitioner’s prison administrative grievance challenging Further, following an investigation conducted in 27 28 Doc. 11 1 his indeterminate retention in the SHU due to his gang validation, 2 on December 12, 2005, CDCR found that Petitioner had not provided 3 information that would warrant any change to his housing status. 4 Id. at 18. 5 Based on the evidence BPH considered, and when viewed in 6 conjunction with the nature of the commitment offense, this Court 7 cannot say BPH’s finding that Petitioner was unsuitable for parole 8 was “without support or otherwise arbitrary.” 9 457. See Hill, 472 U.S. at Rather, BPH reasonably concluded that Petitioner was not yet 10 suitable for parole. 11 denial of parole based on gravity of offense and the petitioner’s 12 conduct prior to imprisonment). 13 “reweigh the evidence.” See, e.g., Biggs, 334 F.3d at 916 (upholding It is not up to this Court to Powell, 33 F.3d at 42. 14 For these reasons, the Court finds that the state courts’ 15 rejection of Petitioner’s due process claim that BPH’s decision was 16 not supported by “some evidence” was not contrary to, nor did it 17 involve an unreasonable application of, clearly established federal 18 law, and it was not based on an unreasonable determination of the 19 facts. 20 Petitioner therefore is not entitled to relief on this claim. See 28 U.S.C. § 2254(d); Williams, 529 U.S. at 409. 21 22 23 B Petitioner next claims that BPH has a blanket policy of 24 denying parole to all prisoners who are housed in a SHU and that 25 policy factored into BPH’s decision to deny him parole at his 26 January 10, 2006 hearing. 27 28 12 1 Promulgation of an anti-parole or no-parole policy 2 violates a prisoner’s due process rights. 3 Cal. 4th 616, 683 (2002) (“It is well established that a policy of 4 rejecting parole solely on the basis of the type of offense, without 5 individualized treatment and due consideration, deprives an inmate 6 of due process of law”). 7 denying parole to all SHU prisoners is irrelevant in Petitioner’s 8 case, however, because, as set forth above, the record shows BPH 9 made a decision to deny him parole based on an individualized Cf. In re Rosenkrantz, 29 Whether or not BPH has a blanket policy of 10 assessment of Petitioner’s commitment offense, criminal history, 11 substance abuse history and institutional disciplinary history. 12 Accordingly, the state court’s rejections of Petitioner’s claim that 13 BPH has a blanket policy of denying parole to all SHU prisoners was 14 not contrary to, nor did it involve an unreasonable application of, 15 clearly established federal law, and it was not based on an 16 unreasonable determination of the facts. 17 Williams, 529 U.S. at 409. 18 relief on this claim. See 28 U.S.C. § 2254(d); Petitioner therefore is not entitled to 19 20 21 C Petitioner next claims BPH’s decision to deny him parole 22 breached the terms of his 1979 plea agreement. 23 Petitioner claims his “plea was with the understanding that [he 24 would] be sentenced to ‘26 years-to-life’; but, if [he] lost no 25 ‘good time’ in prison, [he would] be eligible for a parole date 26 after 17 years 8 months . . . [such that] as long as [he] did not 27 28 13 Specifically, 1 screw up, and lose any time in prison for violating prison rules, 2 [he would] be out before [he] turned (51) years old.” 3 at 8 (emphasis in original). 4 This claim is time-barred. Doc. #8, Pet. “A 1-year period of limitation 5 shall apply to an application for a writ of habeas corpus by a 6 person in custody pursuant to the judgment of a State court.” 7 U.S.C. § 2244(d)(1). 8 challenging a decision of an administrative body, such as BPH, is 9 covered by the statute and the limitation period starts to run from 28 A habeas petition by a state prisoner 10 “the date on which the factual predicate of the claim or claims 11 presented could have been discovered through the exercise of due 12 diligence.” 13 1061, 1066 (9th Cir. 2003); see also Redd v. McGrath, 343 F.3d 1077, 14 1081-82 (9th Cir. 2003). 15 28 U.S.C. § 2244(d)(1)(D); Shelby v. Bartlett, 391 F.3d Here, the factual predicate or basis of Petitioner’s claim 16 that his plea agreement was violated was known to him no later than 17 August 12, 1996, his minimum eligible parole date.2 18 there was any doubt in Petitioner’s mind that prison officials were 19 not living up to his parole expectations after his minimum eligible 20 parole date came and went, it should have been removed when he was 21 denied parole again in 2001. 22 claim accrued in August 1996; because he did not file his federal 23 habeas Amended Petition within the one-year limitation period, the Further, if Petitioner’s breach-of-plea-agreement 24 25 2 27 Petitioner was found not suitable for parole at his initial parole consideration hearing in 1995, as well as at his first subsequent parole suitability hearing in 2001. Although the 1995 decision might have been an anticipatory breach of his plea agreement, certainly the actual breach occurred no later than August 1996. 28 14 26 1 claim is time-barred. 2 Even if the claim were not barred by the statute of 3 limitations, Petitioner’s breach-of-plea-agreement claim has no 4 merit. 5 by contract law standards.” 6 (9th Cir. 2003) (quoting United States v. De la Fuente, 8 F.3d 1333, 7 1337 (9th Cir. 1993)). 8 process right to enforce the terms of a plea agreement, see 9 Santobello v. New York, 404 U.S. 257, 261-62 (1971), there is no “Plea agreements are contractual in nature and are measured Brown v. Poole, 337 F.3d 1155, 1159 Although a criminal defendant has a due 10 evidence that Petitioner’s subjective expectations about how parole 11 would be decided were part of the plea agreement. 12 not pointed to any language in any plea agreement that shows any 13 particular term of that agreement has been breached; rather, he 14 argues merely that he never expected parole consideration to work 15 the way it does. 16 reflect an indeterminate sentence of twenty-six-years-to-life as 17 well as his express acknowledgment that by pleading guilty “there 18 [was] no promise or assurance at all [he] would ever be released 19 from prison, [and] that [he understood] [he] could spend the rest of 20 [his] life in prison.” 21 Petitioner has Indeed, Petitioner’s sentencing documents clearly Doc. #18-16 at 15. The state courts’ rejection of Petitioner’s breach-of- 22 plea-agreement claim was not contrary to, nor did it involve an 23 unreasonable application of, clearly established federal law, and it 24 was not based on an unreasonable determination of the facts. 25 U.S.C. § 2254(d); Williams, 529 U.S. at 409. 26 is not entitled to relief on this claim. 27 28 15 See 28 Petitioner therefore 1 D 2 Petitioner next claims he was denied the effective 3 assistance of counsel at his parole suitability hearing. 4 superior court rejected Petitioner’s claim, finding no evidence in 5 the record of prejudicial misconduct by counsel. 6 This Court need not review the specific instances of ineffective 7 assistance of counsel that Petitioner asserts, because there is no 8 clearly established Supreme Court precedent that establishes a 9 prisoner’s constitutional right to the representation of counsel at 10 The state Doc. #18-19 at 26. a parole suitability hearing. 11 In Morrissey v. Brewer, 408 U.S. 471 (1972), the United 12 States Supreme Court delineated the minimum standards of due process 13 that must be provided parolees during parole revocation hearings. 14 The Court explicitly did not consider whether parolees have a right 15 to counsel or to appointed counsel at those hearings, however. 16 id. at 489. 17 discussed at length whether the state is under a constitutional duty 18 to provide appointed counsel in all probation or parole revocation 19 hearings. 20 of these hearings, the non-judicial character of the administrative 21 decision-making body and the likelihood that these proceedings would 22 be significantly altered by the introduction of counsel. 23 788-89. 24 case-by-case approach: 25 26 27 28 See In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Court The Court emphasized the essentially non-adversary nature See id. at Rather than adopt a per se rule, the Court adopted a We thus find no justification for a new inflexible constitutional rule with respect to the requirement of counsel. We think, rather, that the decision as to the need for counsel 16 1 2 3 4 5 6 must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system. Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness – the touchstone of due process – will require that the State provide at its expense counsel for indigent probationers or parolees. 7 8 9 Id. at 790. In Dorado v. Kerr, 454 F.2d 892, 896 (9th Cir. 1972), 10 cert. denied, 409 U.S. 934 (1972), which was decided before 11 Morrissey and Gagnon, the Ninth Circuit held that due process does 12 not entitle California state prisoners to counsel at California 13 Adult Authority (now CDCR) hearings to determine the length of 14 imprisonment and to grant or deny parole. 15 three-judge district court panel found that the Dorado decision was 16 consistent with the flexible nature of due process outlined in 17 Morrissey, Gagnon and Wolff v. McDonnell, 418 U.S. 539 (1974) (no 18 constitutional right to counsel at prison disciplinary proceedings). 19 See Burgener v. California Adult Authority, 407 F. Supp. 555, 559 20 (N.D. Cal. 1976). 21 Subsequently, a “A federal court may not overrule a state court for simply 22 holding a view different from its own, when the precedent from [the 23 Supreme Court] is, at best, ambiguous.” 24 U.S. 12, 17 (2003). 25 Court precedent that entitles a prisoner to the effective assistance 26 of counsel at a parole suitability hearing, the state courts’ Because there is no clearly established Supreme 27 28 Mitchell v. Esparza, 540 17 1 rejection of Petitioner’s claim cannot have been contrary to or an 2 unreasonable application of clearly established federal law. 3 Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir. 2004). 4 therefore is not entitled to relief on this claim. See Petitioner 5 6 V 7 8 For the reasons set forth above, the Petition for a Writ of Habeas Corpus is DENIED. 9 Further, a Certificate of Appealability is DENIED. See 10 Rule 11(a) of the Rules Governing Section 2254 Cases (eff. Dec. 1, 11 2009). 12 Certificate of Appealability in this Court; rather, he may seek a 13 certificate from the court of appeals under Rule 22 of the Federal 14 Rules of Appellate Procedure. 15 16 Petitioner is advised that he may not appeal the denial of a Id. The Clerk shall terminate any pending motions as moot, enter judgment in favor of Respondent and close the file. 17 18 IT IS SO ORDERED. 19 20 21 22 DATED 12/17/09 THELTON E. HENDERSON United States District Judge 23 24 25 26 G:\PRO-SE\TEH\HC.07\Troxell-07-1583-bph deny.wpd 27 28 18
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