(HC) Lang v. Mendoza-Powers et al, No. 1:2007cv00608 - Document 21 (E.D. Cal. 2009)
Court Description: ORDER Denying Petition for Writ of Habeas Corpus signed by District Judge Claudia Wilken on 01/28/2009. CASE CLOSED. (Flores, E)
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(HC) Lang v. Mendoza-Powers et al Doc. 21 1 2 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 3 4 5 No. C 07-00608 CW (HC) RUSSELL LANG, 6 7 8 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Petitioner, v. K. MENDOZA-POWERS, et al., 9 Respondents. / United States District Court For the Northern District of California 10 11 12 On April 2, 2007, Petitioner Russell Lang, a state prisoner 13 incarcerated at Avenal State Prison, filed a petition for a writ of 14 habeas corpus on the ground that the Board of Parole Hearings’ 15 failure to fix a primary term of punishment proportionate to his 16 individual culpability for the commitment offense constitutes cruel 17 and unusual punishment. 18 answer. 19 “Denial and Exception to the Return.” 20 filed by the parties, the Court DENIES the petition. On April 7, 2008, Petitioner filed a traverse, entitled, 21 22 On March 11, 2008, Respondents filed an Having read all the papers BACKGROUND In 1974, Petitioner conspired with several other individuals 23 to attack three unrelated people in three separate incidents. 24 Resps’ Ex. 3 at 1-3. 25 commission of the crimes, including Petitioner, were associated 26 with the Nation of Islam, which taught that Caucasians were devils 27 and that it was the duty of each Muslim to murder four devils. All the individuals involved in the Id. 28 Dockets.Justia.com 1 at 3. 2 murder, first degree murder and possession of a weapon. 3 Petitioner was sentenced to two terms of life, plus one year, with 4 the possibility of parole. United States District Court For the Northern District of California 5 A jury found Petitioner guilty of conspiracy to commit Id. at 1. Id. Petitioner filed a petition for a writ of habeas corpus in the 6 Sacramento County Superior Court alleging that the Board violated 7 his state and federal constitutional rights to freedom from cruel 8 and unusual punishment by its failure to set his primary term 9 proportionate to his individual culpability. He also claimed the 10 Board’s failure violated California Penal Code § 1170.2. 11 9, 2006, the superior court denied the petition explaining that, 12 under People v. Wingo, 14 Cal. 3d 169, 183 (1975), and In re 13 Rodriguez, 14 Cal. 3d 639, 651-53 (1975), superseded by statute as 14 stated in People v. Jefferson, 21 Cal. 4th 86, 95 (1999), 15 Petitioner’s maximum term is deemed to be life imprisonment because 16 no maximum term has been set by the Board. 17 Citing Harmelin v. Michigan, 501 U.S. 957 (1991), the court held 18 that Petitioner’s life term does not constitute cruel and unusual 19 punishment. On March Resps’ Ex. 4 at 1. Id. 20 Petitioner filed habeas petitions in the California court of 21 appeal and the California Supreme Court, both of which denied the 22 petitions without comment. 23 24 Resps’ Exs. 5 and 6. LEGAL STANDARD A federal court may entertain a habeas petition from a state 25 prisoner "only on the ground that he is in custody in violation of 26 the Constitution or laws or treaties of the United States." 27 U.S.C. § 2254(a). 28 Penalty Act (AEDPA), a district court may not grant a petition 28 Under the Antiterrorism and Effective Death 2 United States District Court For the Northern District of California 1 challenging a state conviction or sentence on the basis of a claim 2 that was reviewed on the merits in state court unless the state 3 court’s adjudication of the claim: "(1) resulted in a decision that 4 was contrary to, or involved an unreasonable application of, 5 clearly established federal law, as determined by the Supreme Court 6 of the United States; or (2) resulted in a decision that was based 7 on an unreasonable determination of the facts in light of the 8 evidence presented in the State court proceeding." 9 § 2254(d). 28 U.S.C. A decision is contrary to clearly established federal 10 law if it fails to apply the correct controlling authority, or if 11 it applies the controlling authority to a case involving facts 12 materially indistinguishable from those in a controlling case, but 13 nonetheless reaches a different result. 14 1062, 1067 (9th. Cir. 2003). 15 Clark v. Murphy, 331 F.3d The only definitive source of clearly established federal law 16 under 28 U.S.C. § 2254(d) is the holdings of the Supreme Court as 17 of the time of the relevant state court decision. 18 Taylor, 529 U.S. 362, 412 (2000). 19 Williams v. To determine whether the state court’s decision is contrary 20 to, or involved an unreasonable application of, clearly established 21 law, a federal court looks to the decision of the highest state 22 court that addressed the merits of a petitioner’s claim in a 23 reasoned decision. 24 Cir. 2000). 25 the merits of Petitioner's claim is the Sacramento superior court. 26 27 28 LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th In the present case, the only state court to address DISCUSSION A criminal sentence that is not proportionate to the crime for which the defendant was convicted violates the Eighth Amendment’s 3 United States District Court For the Northern District of California 1 prohibition against cruel and unusual punishment. 2 463 U.S. 277, 303 (1983) (sentence of life imprisonment without 3 possibility of parole for seventh non-violent felony violates 4 Eighth Amendment). 5 successful challenges to the proportionality of particular 6 sentences will be exceedingly rare." 7 purposes of review under 28 U.S.C. § 2254(d)(1), it is clearly 8 established that “[a] gross proportionality principle is applicable 9 to sentences for terms of years.” Solem v. Helm, But "outside the context of capital punishment, Id. at 289-90. For the Lockyer v. Andrade, 538 U.S. 63, 10 72 (2003). 11 clear, and “applicable only in the ‘exceedingly rare’ and ‘extreme’ 12 cases.” 13 But the precise contours of the principle are not Id. at 73. In Harmelin v. Michigan, 501 U.S. 957 (1991), Chief Justice 14 Rehnquist and Justice Scalia joined in a two-justice plurality to 15 conclude that Solem should be overruled and that no proportionality 16 review is required under the Eighth Amendment except with respect 17 to death sentences. 18 made up of Justices Kennedy, O'Connor and Souter concluded that 19 Solem should not be rejected and that the Eighth Amendment contains 20 a narrow proportionality principle that is not confined to death 21 penalty cases, but that forbids only extreme sentences which are 22 grossly disproportionate to the crime. 23 Harmelin, only extreme sentences that are grossly disproportionate 24 to the crime violate the Eighth Amendment. Id. at 961-985. A three-justice concurrence Id. at 997-1001.1 After United States v. Carr, 25 1 26 27 28 Because no majority opinion emerged in Harmelin on the question of proportionality, Justice Kennedy's view--the Eighth Amendment forbids only extreme sentences that are grossly disproportionate to the crime--is considered the holding of the Court. See United States v. Bland, 961 F.2d 123, 128-29 (9th Cir.), cert. denied, 506 U.S. 858 (1992). 4 1 56 F.3d 38, 39 (9th Cir. 1995). 2 538 U.S. 11, 29-31 (2003) (upholding sentence of twenty-five-years- 3 to-life for recidivist convicted most recently of grand theft); 4 Lockyer v. Andrade, 538 U.S. 63, 76 (2003) (upholding sentence of 5 two consecutive terms of twenty-five-years-to-life for recidivist 6 convicted most recently of two counts of petty theft with a prior 7 conviction); but see, Gonzalez v. Duncan, ___ F.3d ___, 2008 WL 8 5399079 (9th Cir.) (sentence of twenty-eight years to life for 9 failing to update annual sex offender registration grossly United States District Court For the Northern District of California 10 11 See, e.g., Ewing v. California, disproportionate). Petitioner has been sentenced to two indeterminate life terms 12 for first degree murder and conspiracy to commit murder.2 13 Petitioner’s sentence has not been set at a lesser fixed term, it 14 is considered to be the statutory maximum of life with the 15 possibility of parole. 16 Indeterminate Sentencing Act does not expressly require the Adult 17 Authority to fix a sentence at less than the maximum). 18 state habeas court correctly explained, this sentence is not 19 disproportionate to Petitioner’s crimes in light of the fact that 20 the Supreme Court, in Harmelin, 501 U.S. at 993-94, found that a 21 sentence of life in prison without the possibility of parole for 22 possession of twenty-four ounces of cocaine raised no inference of 23 gross disproportionality. 24 290 n.15 (1983) (any sentence of imprisonment is not Because See Rodriguez, 14 Cal. 3d at 646 (the As the See also, Solem v. Helm, 463 U.S. 277, 25 2 26 27 28 Prior to 1977, the Indeterminate Sentence law provided that the court did not fix the term or duration of the period of imprisonment; the authority to determine the actual length of the sentence was vested in the Adult Authority. Rodriquez, 14 Cal. 3d at 645. This sentencing scheme was replaced with the Determinate Sentencing Act. People v. Jefferson, 21 Cal. 4th 86, 95 (1999). 5 1 disproportionate for crime of felony murder). 2 crime was less severe than Petitioner’s and his sentence harsher, 3 Petitioner’s claim of cruel and unusual punishment must fail. 4 Therefore, the state habeas court’s decision was not contrary 5 to, or an unreasonable application of, clearly established federal 6 law as determined by the United States Supreme Court. 7 United States District Court For the Northern District of California Because Harmelin’s Because a state inmate is entitled to federal habeas relief 8 only if he is in custody in violation of the United States 9 Constitution or federal laws, Petitioner’s claims based upon 10 violations of the California constitution and California statutes 11 are not cognizable in this proceeding. 12 The record indicates that Petitioner has been granted parole 13 twice, but the decisions were rescinded by the Governor. 14 The Supreme Court has clearly established that a parole board's 15 decision deprives a prisoner of due process with respect to his 16 constitutionally protected liberty interest in a parole release 17 date if the board's decision is not supported by "some evidence in 18 the record," or is "otherwise arbitrary." 19 of Prison Terms, 461 F.3d 1123, 1128 (9th Cir. 2006) (citing 20 Superintendent v. Hill, 472 U.S. 445, 457 (1985)). 21 decision must also comply with due process which requires a 22 rescission of parole to be supported by some evidence. 23 Davis, 521 F.3d 1142, 1146 (9th Cir. 2008). 24 Sass v. California Bd. The Governor’s Miller v. If Petitioner wishes to challenge the denial of parole, he 25 should exhaust this claim in state court and then seek federal 26 habeas relief. 27 28 CONCLUSION For the foregoing reasons, Petitioner’s petition for a writ of 6 1 habeas corpus is DENIED. 2 judgment and close the case. The Clerk of the Court shall enter 3 4 IT IS SO ORDERED. 5 6 Dated: 1/28/09 CLAUDIA WILKEN United States District Judge 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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