Jackmon v. Koeing, No. 4:2018cv07346 - Document 7 (N.D. Cal. 2019)
Court Description: ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION WITH LEAVE TO AMEND re 2 MOTION for Leave to Proceed in forma pauperis filed by Bernard O. Jackmon. Signed by Judge Phyllis J. Hamilton on 2/8/19. Amended Petition due by March 8, 2019. (Certificate of Service Attached). (kcS, COURT STAFF) (Filed on 2/8/2019)
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Jackmon v. Koeing Doc. 7 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 BERNARD O. JACKMON, Petitioner, 8 9 10 United States District Court Northern District of California 11 v. CRAIG KOEING, Respondent. Case No. 18-cv-07346-PJH ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION WITH LEAVE TO AMEND Re: Dkt. No. 2 12 13 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus 14 pursuant to 28 U.S.C. § 2254 challenging a 2016 parole denial by the Board of Parole 15 Hearings (“BPH”). The parole denial occurred in Monterey County, which is in this 16 district, so venue is proper here. See 28 U.S.C. § 2241(d). He has also filed a motion to 17 proceed in forma pauperis. BACKGROUND 18 19 In 1987 petitioner was sentenced to an indeterminate term of life in state prison 20 with the possibility of parole with a base minimum of seven years and a determinate term 21 of fifteen years. Petition at 14. Parole has been denied on several occasions, the most 22 recent in 2016. Id. at 15. He filed state habeas petitions challenging the 2016 parole 23 denial, but the petitions were denied. Id. at 4-5. DISCUSSION 24 25 STANDARD OF REVIEW 26 This court may entertain a petition for writ of habeas corpus “in behalf of a person 27 in custody pursuant to the judgment of a State court only on the ground that he is in 28 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. Dockets.Justia.com United States District Court Northern District of California 1 § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet 2 heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An 3 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 4 pursuant to a judgment of a state court must “specify all the grounds for relief available to 5 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 6 Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ pleading is not sufficient, for the 7 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 8 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 9 1970)). 10 LEGAL CLAIMS 11 As grounds for federal habeas relief, petitioner alleges that: 1) the denial of parole 12 violated state and federal law; 2) he received an unauthorized sentence; and 3) his prison 13 term is constitutionally disproportionate. 14 In 2011, the United States Supreme Court overruled a line of Ninth Circuit 15 precedent that had supported habeas review in California cases involving denials of 16 parole by the BPH and/or the governor. See Swarthout v. Cooke, 562 U.S. 216 (2011). 17 The Supreme Court held that federal habeas jurisdiction does not extend to review of the 18 evidentiary basis for state parole decisions. Because habeas relief is not available for 19 errors of state law, and because the Due Process Clause does not require correct 20 application of California's “some evidence” standard for denial of parole, federal courts 21 may not intervene in parole decisions as long as minimum procedural protections are 22 provided. Id. at 220-21. Federal due process protection for such a state-created liberty 23 interest is “minimal,” the determination being whether “the minimum procedures adequate 24 for due-process protection of that interest” have been met. The inquiry is limited to 25 whether the prisoner was given the opportunity to be heard and received a statement of 26 the reasons why parole was denied. Id. at 221; Miller v. Oregon Bd. of Parole and Post– 27 Prison Supervision, 642 F.3d 711, 716 (9th Cir. 2011) (“The Supreme Court held in 28 Swarthout that in the context of parole eligibility decisions the due process right is 2 1 procedural, and entitles a prisoner to nothing more than a fair hearing and a statement of 2 reasons for a parole board's decision.”). This procedural inquiry is “the beginning and the 3 end of” a federal habeas court's analysis of whether due process has been violated when 4 a state prisoner is denied parole. Swarthout at 220. The Ninth Circuit has acknowledged 5 that after Swarthout, substantive challenges to parole decisions are not cognizable in 6 habeas. Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011). 7 Petitioner generally argues that he has been incarcerated for a period longer than 8 his adjusted base term in violation of state and federal law. He also argues that the BPH 9 failed to follow the settlement reached in the state court case of In re Butler. The case of In re Butler actually comprises two cases: one dealing with Butler's United States District Court Northern District of California 10 11 suitability for parole, formerly published at 224 Cal. App. 4th 469 (2014) and ordered 12 depublished, now appearing at 169 Cal. Rptr. 3d 1; and a separate lawsuit, 236 Cal. App. 13 4th 1222 (Cal. Ct. App. 2015), relating to the issues discussed above. The settlement in 14 the latter case requires the BPH to announce and implement the procedures petitioner 15 herein contends should be applied to him. See in re Butler, 236 Cal. App. 4th 1222 (Cal. 16 Ct. App. 2015). The Butler court held that the stipulated order settling the case applied to 17 a class of California prisoners. In re Butler, 236 Cal. App. 4th at 1244. The calculating of 18 the base and adjusted base terms at the outset of a sentence assists the courts in 19 determining whether an indeterminate sentence is becoming excessive, or is in fact 20 excessive. In re Butler, 236 Cal. App. 4th at 1243-44.1 This calculation may discourage 21 the BPH from unduly denying parole suitability, but Butler does not mandate that BPH 22 find in a prisoner's favor at any particular time. Id. Thus, the calculation of base and/or 23 an adjusted base term in petitioner's case would have only a speculative effect on 24 25 26 27 28 1 California's parole scheme contemplates that a prisoner sentenced to a term of years to life must be found suitable for parole before a parole date can be set. Criteria for determining whether a prisoner is suitable for parole are set forth in California Penal Code section 3041(b) and related implementing regulations. See Cal. Code Regs. tit. 15, § 2402. If, pursuant to the judgment of the panel, a prisoner will pose an unreasonable danger to society if released, he must be found unsuitable and denied a parole date. Cal. Code Regs. tit. 15, § 2402(a). 3 1 whether petitioner would be granted parole before the expiration of his life. Regardless, 2 speculative or not, In re Butler deals only with state administrative law and the 3 procedures to be followed by the BPH. 4 5 base term only raises an issue of state law. As set forth in Swarthout the federal due 6 process protections do not include adherence to California procedures. Challenges to 7 the BPH’s enactment of state laws and procedures must be presented in state court. 8 Petitioner presented his claims in state court but his challenges were all denied. This 9 court cannot overrule state court decisions or find that California courts incorrectly 10 11 United States District Court Northern District of California Petitioner’s argument that the BPH violated state law and procedures in setting his interpreted state law. Regardless, petitioner's claim appears to allege that under state law he has 12 already exceeded the maximum amount of time he should have served; therefore, he 13 should be released. Yet, petitioner was sentenced to a term with the possibility of life in 14 prison so there is a chance that he will never be paroled. Petitioner is informed that the 15 base term is simply a starting point, and his “adjusted period of confinement” will consist 16 of his base term plus “any adjustments.” Cal Code Regs. tit. 15, § 2411(a). Such 17 adjustments may be made for use of or being armed with a weapon, causing great loss, 18 prior prison term(s), multiple convictions, and other factors such as pattern of violence, 19 numerous crimes or crimes of increasing seriousness, the defendant's status at the time 20 (e.g., on parole or probation), as well as other aggravating factors. Cal. Code Regs. tit. 21 15, §§ 2406–2409. These are matters for the BPH to consider at petitioner's next parole 22 suitability hearing. The BPH does not sentence petitioner; only the sentencing court can 23 do that. The BPH cannot revise sentences; it can only act within California law to set 24 parole dates, if prisoners sentenced to an indeterminate term are found suitable for 25 parole at all. 26 Petitioner’s other claims regarding an unauthorized sentence and a constitutionally 27 disproportionate prison term appear to be either untimely or they would represent a 28 successive or second petition. Regardless, petitioner fails to present a viable claim that 4 United States District Court Northern District of California 1 his original sentence or denial of parole violated federal law or the Constitution. 2 Petitioner was sentenced to a possibility of life in prison for robbery, kidnapping and rape. 3 Petitioner has not identified any authority that such a sentence for robbery, kidnapping 4 and rape violates the Eighth Amendment. His sentence is consistent with state law and 5 is not excessive or disproportionate under clearly established Supreme Court authority. 6 See Ewing v. California, 538 U.S. 11, 23 (2003) (“'Eighth Amendment does not require 7 strict proportionality between crime and sentence”'; “'[r]ather, it forbids only extreme 8 sentences that are “grossly disproportionate” to the crime”'); see also Harmelin v. 9 Michigan, 501 U.S. 957, 994-95 (1991) (upholding sentence of life without the possibility 10 of parole for possession of 672 grams of cocaine by first time offender); Lockyer v. 11 Andrade, 538 U.S. 63, 73-77 (2003) (affirming 25 years to life sentence under Three 12 Strikes law for petty theft of $153.54 worth of videotapes). These Supreme Court 13 decisions indicate that the term petitioner has served to date for his crimes is not so 14 disproportionate as to violate the Eighth Amendment or due process. The petition is 15 dismissed with leave to amend to address the deficiencies discussed above. CONCLUSION 16 17 1. Leave to proceed in forma pauperis (Docket No. 2) is GRANTED. 18 2. The petition is DISMISSED with leave to amend in accordance with the 19 standards set forth above. The amended petition must be filed no later than March 8, 20 2019, and carry the words AMENDED PETITION on the first page. Failure to amend 21 within the designated time will result in the dismissal of the petition. 22 3. Petitioner must keep the court informed of any change of address and must 23 comply with the court's orders in a timely fashion. Failure to do so may result in the 24 dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 25 Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 26 27 28 5 1 41(b) applicable in habeas cases). 2 IT IS SO ORDERED. 3 Dated: February 8, 2019 4 5 PHYLLIS J. HAMILTON United States District Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 BERNARD O. JACKMON, Plaintiffs, 5 v. 6 7 Case No.: 18-cv-07346-PJH CERTIFICATE OF SERVICE CRAIG KOEING, Defendants. 8 9 10 United States District Court Northern District of California 11 I, the undersigned, hereby certify that: (1) I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California; and (2) On 2/8/2019, 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 interoffice delivery receptacle located in the Clerk’s office. 12 13 14 15 16 17 18 Bernard O. Jackmon ID: D-74300 Correctional Training Facility-Soledad BW341 P.O. Box 689 Soledad, CA 93960 19 20 Dated: 2/8/2019 21 Susan Y. Soong Clerk, United States District Court 22 23 By:________________________ Kelly Collins, Deputy Clerk to the Honorable Phyllis J. Hamilton 24 25 26 27 28 Service_Certificate _CRD rev. August 2018
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