Peng v. Tilton et al, No. 4:2012cv00065 - Document 4 (N.D. Cal. 2012)
Court Description: ORDER DENYING HABEAS PETITION AND DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 10/29/2012. (ndr, COURT STAFF) (Filed on 10/29/2012)
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Peng v. Tilton et al Doc. 4 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 KUN SHAN PENG, Petitioner, 5 ORDER DENYING HABEAS PETITION AND DENYING CERTIFICATE OF APPEALABILITY v. 6 7 No. C 12-0065 CW (PR) JAMES TILTON, Director, G. SWARTHOUT, Warden, 8 Respondents. 9 ________________________________/ United States District Court For the Northern District of California 10 11 Petitioner, a state prisoner proceeding pro se, has filed 12 this petition for a writ of habeas corpus under 28 U.S.C. § 2254, 13 challenging the 2010 decision by the California Board of Parole 14 Hearings (Board) to deny him parole. He has paid the filing fee. 15 BACKGROUND 16 According to the allegations in the petition, Petitioner 17 plead guilty to second degree murder on August 5, 1992, in Santa 18 Clara County Superior Court. 19 fifteen years to life in state prison. 20 conviction or sentence. 21 He was sentenced to a term of He did not appeal his On July 28, 2010, the Board found Petitioner unsuitable for 22 parole. 23 Board’s decision was denied by the California Supreme Court on 24 December 14, 2011. Petitioner’s state habeas corpus petition challenging the 25 26 27 28 DISCUSSION A. Standard of Review This Court may entertain a petition for a writ of habeas corpus “in behalf of a person in custody pursuant to the judgment Dockets.Justia.com 1 of a State court only on the ground that he is in custody in 2 violation of the Constitution or laws or treaties of the United 3 States.” 4 (1975). 5 directing the respondent to show cause why the writ should not be 6 granted, unless it appears from the application that the applicant 7 or person detained is not entitled thereto.” 8 B. 9 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 A district court shall “award the writ or issue an order 28 U.S.C. § 2243. Petitioner’s Claims 1. Due Process Violation United States District Court For the Northern District of California 10 Petitioner claims that the Board’s decision finding him 11 unsuitable for parole violated his federal constitutional right to 12 due process because the decision was based solely on the immutable 13 facts of the commitment offense and not on some evidence 14 demonstrating that he poses a current threat to the public. 15 A prisoner subject to California’s parole statute receives 16 adequate process when he is allowed an opportunity to be heard and 17 is provided with a statement of the reasons why parole was denied. 18 Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011). 19 the parole hearing that Petitioner has attached to his petition 20 shows that he received at least this amount of process. 21 Constitution does not require more. 22 The transcript of The Id. Further, whether the Board’s decision was supported by some 23 evidence of current dangerousness is irrelevant on a petition for 24 a writ of habeas corpus in federal court. 25 made clear that “it is no federal concern . . . whether 26 California’s ‘some evidence’ rule of judicial review (a procedure 27 beyond what the Constitution demands) was correctly applied.” 28 at 863. 2 The Supreme Court has Id. 1 2 Accordingly, Petitioner is not entitled to habeas relief on this claim. 3 2. 4 Petitioner claims the denial of parole violated his federal Ex Post Facto Violation 5 constitutional right to be free from the ex post facto application 6 of punitive laws because he committed his crime in 1988 but was 7 denied parole based on laws enacted in 1988 and 2008. 8 9 Proposition 89 was enacted in 1988. It gave the governor power to review and reverse or modify the Board’s parole United States District Court For the Northern District of California 10 decisions. 11 Proposition 89 does not raise ex post facto concerns because a 12 prisoner cannot demonstrate with certainty that he would have been 13 granted parole before the change. 14 964, 967-68 (9th Cir. 1996). 15 The Ninth Circuit has found, as a matter of law, that See Johnson v. Gomez, 92 F.3d Proposition 9 (also known as the “Victims’ Bill of Rights Act 16 of 2008: Marsy’s Law”) was enacted in 2008. 17 availability and frequency of parole hearings. 18 Code § 3041.5(b)(3) (2010). 19 the law did not raise ex post facto concerns because it had “no 20 effect on the standards for fixing a prisoner’s initial date of 21 ‘eligibility’ for parole” or for “determining his ‘suitability’ 22 for parole” and setting his release date; rather, the focus of the 23 law was to relieve the parole board from the costly and time- 24 consuming responsibility of scheduling parole hearings for 25 prisoners who have no reasonable chance of being released. 26 California Dep’t of Corrections v. Morales, 514 U.S. 499, 507 27 (1995). It modified the See Cal. Penal The United States Supreme Court found 28 3 See 1 2 Accordingly, Petitioner is not entitled to habeas relief on this claim. 3 3. 4 Petitioner claims that the Board’s denial of parole is a Breach of Plea Agreement 5 breach of the term of his plea agreement that he would receive a 6 sentence of fifteen years to life in exchange for pleading guilty 7 to second-degree murder. 8 9 “Plea agreements are contractual in nature and are measured by contract law standards.” Brown v. Poole, 337 F.3d 1155, 1159 United States District Court For the Northern District of California 10 (9th Cir. 2003) (quoting United States v. De la Fuente, 8 F.3d 11 1333, 1337 (9th Cir. 1993)). 12 due process right to enforce the terms of a plea agreement, see 13 Santobello v. New York, 404 U.S. 257, 261-62 (1971), Petitioner 14 has alleged no facts indicating that there is a term of the plea 15 agreement that has been breached. 16 Although a criminal defendant has a Petitioner first contends the plea agreement has been 17 breached because he is being punished as if he had plead guilty to 18 first-degree murder. 19 sentence he could have received for second-degree murder is 20 twenty-one years, but by the time he was denied parole in 2010 he 21 had served twenty-four years. 22 Petitioner is receiving parole consideration based on his sentence 23 of fifteen years to life. 24 death, life without parole, or a term of twenty-five years to 25 life. 26 been convicted of first-degree murder, he would not have been 27 eligible for parole consideration in 2010. 28 Specifically, he maintains that the maximum This argument fails because First-degree murder is punishable by Cal. Penal Code § 190(a). Consequently, if Petitioner had Petitioner also appears to argue that under the plea 4 1 agreement he should have been released after he reached the 2 minimum term of years on his sentence. 3 because he does not allege that the plea agreement included a 4 promise that he would be released on parole after he reached any 5 specific number of years in custody. 6 This claim fails, however, Moreover, the claim is belied by the transcript of the change 7 of plea hearing, the abstract of judgment and the sentencing 8 report.1 9 asked Petitioner if he understood that he was pleading guilty to a Specifically, during the plea colloquy, the trial judge United States District Court For the Northern District of California 10 charge of second-degree murder, “with the understanding that 11 you’ll be sentenced to prison for fifteen years to life.” 12 Tilton, C 07-4797 MMC (PR), Docket no. 13, Ex. 1 at 3:6-11. 13 Petitioner responded that he did. 14 Petitioner’s counsel, Mr. Mayfield, stated for the record that he 15 had explained to Petitioner that he was pleading guilty to a 16 sentence of fifteen years to life, he would not be eligible for 17 parole consideration until he had served ten years of his 18 sentence, and he “most likely” would not be granted parole the 19 first time he came before the parole board but “he then would be 20 considered again and his chances would improve.” 21 Additionally, the following conversation took place between the 22 Mr. Schon (the prosecutor), Petitioner and Mr. Mayfield: 23 Id. at 3:12. Peng v. Thereafter, Id. at 10:3-24. 24 Mr. Schon: I think it should be pointed out to Mr. Peng, that the parole board looks at how you behave in prison to decide when to parole you. There’s a 25 1 26 27 28 The Court takes judicial notice of these documents, which were filed as exhibits in support of Respondent’s motion to dismiss as untimely Petitioner’s federal habeas corpus petition challenging his conviction. See Peng v. Tilton, C 07-4797 MMC (PR), Docket no. 13. 5 4 possibility you could serve fifteen years or more than fifteen years all the way up to life if the parole board feels that for some reason you should be kept in prison. That’s important for you to realize so it’s important for you in prison to be well behaved and to follow their instructions, to make yourself a more suitable candidate for parole, whenever they start considering you for parole, okay Mr. Peng? 5 Petitioner: Oh, yeah. 6 Mr. Schon: Do you understand that, Mr. Peng? 7 Petitioner: Yes. 8 Mr. Mayfield: Then Mr. Peng I explained that to you as well didn’t I? 1 2 3 9 United States District Court For the Northern District of California 10 11 12 Petitioner: Yes. Ex. 1 at 11:27-12:14. Based on the above, the Court finds no merit to Petitioner’s 13 claim that his plea agreement was breached because he was denied 14 parole. 15 claim. Accordingly, he is not entitled to habeas relief on this 16 D. 17 Petitioner contends that by denying him parole the Board has 18 subjected him to cruel and unusual punishment in violation of the 19 Eighth Amendment. 20 Eighth Amendment Violation The argument is without merit. The Eighth Amendment 21 forbids only extreme sentences that are “grossly disproportionate 22 to the crime.” 23 if the Court assumes, for the sake of argument, that Petitioner 24 will serve the maximum term of life, a life sentence for the crime 25 of murder is not disproportionate to the crime committed. 26 Ewing v. California, 538 U.S. 11 (2003) (finding Eighth Amendment 27 not violated by sentence of twenty-five years to life for grand 28 theft); Harmelin v. Michigan, 501 U.S. 957 (1991) (finding Eighth Ewing v. California, 538 U.S. 11, 23 (2003). 6 Even Cf. 1 Amendment not violated by life sentence for cocaine possession); 2 Hutto v. Davis, 454 U.S. 370 (1982) (finding Eighth Amendment not 3 violated by forty-year sentence and $20,000 fine for possession 4 and distribution of nine ounces of marijuana). 5 6 Accordingly, Petitioner is not entitled to habeas relief on this claim. 7 CONCLUSION For the foregoing reasons, the Court orders as follows: 9 1. The petition for a writ of habeas corpus is DENIED. 10 United States District Court For the Northern District of California 8 2. A Certificate of Appealability (COA) is DENIED. 11 Petitioner has not made “a substantial showing of the denial 12 of a constitutional right,” 28 U.S.C. § 2253(c)(2), or 13 demonstrated that “reasonable jurists would find the district 14 court’s assessment of the constitutional claims debatable or 15 wrong.” 16 of a COA cannot be appealed; however, Petitioner may seek a COA 17 directly from the Ninth Circuit under Rule 22 of the Federal Rules 18 of Appellate Procedure. 19 Section 2254 Cases. 20 21 22 Slack v. McDaniel, 529 U.S. 473, 484 (2000). The denial See Rule 11(a) of the Rules Governing The Clerk of the Court shall enter judgment and close the file. IT IS SO ORDERED. 23 24 25 Dated: 10/29/2012 CLAUDIA WILKEN United States District Judge 26 27 28 7
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