(HC) Andrade v. Cal. Board of Prison Hearings, No. 1:2010cv01123 - Document 10 (E.D. Cal. 2011)

Court Description: ORDER GRANTING Petitioner's 5 Motion to Amend Petition; ORDER DIRECTING the Clerk to Change the Name of the Respondent to Kathleen Allison; ORDER DISCHARGING 4 Order to Show Cause; ORDER DISMISSING the 1 Petition without Leave to Amend for Failure to State a Cognizable Claim; ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY; ORDER DIRECTING the Clerk to CLOSE the CASE signed by Magistrate Judge Sandra M. Snyder on 5/12/2011. CASE CLOSED. (Sant Agata, S)
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(HC) Andrade v. Cal. Board of Prison Hearings Doc. 10 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 LIBER R. ANDRADE, 11 Petitioner, 12 v. 13 KATHLEEN ALLISON, 14 Respondent. 15 16 17 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—1123–SMS-HC ORDER GRANTING PETITIONER’S MOTION TO AMEND PETITION (DOC. 5) ORDER DIRECTING THE CLERK TO CHANGE THE NAME OF THE RESPONDENT TO KATHLEEN ALLISON ORDER DISCHARGING ORDER TO SHOW CAUSE (DOC. 4) ORDER DISMISSING THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A COGNIZABLE CLAIM (DOC. 1) 18 19 20 ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY ORDER DIRECTING THE CLERK TO CLOSE THE CASE 21 22 Petitioner is a state prisoner proceeding pro se with a 23 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 24 Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to 25 the jurisdiction of the United States Magistrate Judge to conduct 26 all further proceedings in the case, including the entry of final 27 judgment, by manifesting consent in a signed writing filed by 28 Petitioner on July 1, 2010 (doc. 3). 1 Dockets.Justia.com 1 Pending before the Court is the petition, which was filed on June 2 22, 2010, as well as Petitioner’s motion to amend the petition to 3 name a proper respondent, which was filed on February 18, 2011. 4 I. 5 Pending before the Court is Petitioner’s motion to amend the 6 petition to name a proper respondent, which was filed in response 7 to the Court’s order of January 21, 2011, granting Petitioner 8 leave to file the motion. 9 Amendment of the Petition Petitioner requests that Kathleen Allison, the warden at 10 Petitioner’s institution of confinement, be named as Respondent 11 in this matter. 12 A petitioner seeking habeas relief must name the state 13 officer having custody of him or her as the respondent to the 14 petition. 15 Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); 16 Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 17 1994). 18 the warden of the prison because the warden has “day to day 19 control over” the prisoner. 20 F.2d 378, 279 (9th Cir. 1992). 21 is proper. 22 Rule 2(a) of the Rules Governing Section 2254 Cases; Normally, the person having custody of the prisoner is Brittingham v. United States, 982. Therefore, Petitioner’s request Accordingly, Petitioner’s motion for leave to amend the 23 petition to name Kathleen Allison as Respondent in this matter 24 will be granted, and the Clerk will be directed to change the 25 name of the Respondent to Kathleen Allison. 26 II. 27 On January 21, 2011, the Court ordered Petitioner to show 28 Discharge of the Order to Show Cause cause why the petition should not be dismissed for failure to 2 1 2 exhaust state court remedies. In response to the Court’s order, Petitioner filed a copy of 3 the petition for writ of habeas corpus that he filed in the 4 California Supreme Court. 5 the claims which Petitioner raises in the petition before the 6 Court were presented to the California Supreme Court. 7 8 9 10 (Doc. 6.) The document reflects that Accordingly, the order to show cause that issued on January 21, 2011, will be discharged. III. Screening the Petition Rule 4 of the Rules Governing § 2254 Cases in the United 11 States District Courts (Habeas Rules) requires the Court to make 12 a preliminary review of each petition for writ of habeas corpus. 13 The Court must summarily dismiss a petition "[i]f it plainly 14 appears from the petition and any attached exhibits that the 15 petitioner is not entitled to relief in the district court....” 16 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 17 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 18 1990). 19 grounds of relief available to the Petitioner; 2) state the facts 20 supporting each ground; and 3) state the relief requested. 21 Notice pleading is not sufficient; rather, the petition must 22 state facts that point to a real possibility of constitutional 23 error. 24 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 25 Allison, 431 U.S. 63, 75 n. 7 (1977)). 26 that are vague, conclusory, or palpably incredible are subject to 27 summary dismissal. 28 Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th 3 1 Further, the Court may dismiss a petition for writ of habeas 2 corpus either on its own motion under Habeas Rule 4, pursuant to 3 the respondent's motion to dismiss, or after an answer to the 4 petition has been filed. 5 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 6 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 7 IV. 8 Petitioner alleged in the petition that he was an inmate of 9 Background the California Substance Abuse Treatment Facility (CSATF) at 10 Corcoran, California, serving a sentence of fifteen (15) years to 11 life plus two (2) years imposed by the Contra Costa County 12 Superior Court upon Petitioner’s conviction in January 1982 of 13 second degree murder and assault with a deadly weapon in 14 violation of Cal. Pen. Code §§ 187, 245, and 12022.5. 15 Petitioner challenges the decision of California’s Board of 16 Parole Hearings (BPH) finding Petitioner unsuitable for parole 17 made after a hearing held on May 23, 2007, and state court 18 decisions denying habeas corpus relief with respect to the BPH’s 19 decision. 20 (Pet. 1.) (Pet. 4, 133-43.) Petitioner raises the following claims: 1) the BPH’s 21 decision violated Petitioner’s right to due process of law under 22 the state and federal constitutions because the decision lacked 23 the support of some evidence that Petitioner was currently a 24 threat to society; 2) the decision violated Petitioner’s right to 25 due process of law because Petitioner’s right to a neutral 26 hearing body was infringed by the presence on the BPH of law 27 enforcement officers, who Petitioner alleges are normally biased 28 by their training; 3) the BPH’s decision violated Petitioner’s 4 1 right to due process of law because Petitioner had a right to a 2 jury trial concerning factors inherent to the death penalty 3 statutes; and 4) Petitioner has a protected liberty interest in 4 parole based on the mandatory language of California’s parole 5 statutes. 6 (Pet. 4-5.) Petitioner submitted the transcript of the parole hearing 7 held on May 22, 2007. 8 reveals that Petitioner attended the hearing (pet. 18, 20), 9 acknowledged his right to review his central file and to present (Pet. 18-105). Review of the transcript 10 documents (pet. 26), addressed the board concerning numerous 11 factors of parole suitability (pet. 32-78), and made a personal 12 statement in favor of parole (pet. 99-100). 13 with Petitioner, advocated on his behalf, and made a closing 14 statement in favor of parole. 15 87, 92-99.) An attorney appeared (Pet. 18, 24, 26, 28-29, 31, 84- 16 Petitioner was also present when the BPH stated its reasons 17 for finding Petitioner unsuitable for parole, which included the 18 nature of the commitment offense, multiple innocent victims, 19 Petitioner’s focus on the effect the crime had on him instead of 20 the effect it had on the victims, and the district attorney’s 21 opposition to release. 22 23 24 V. (Pet. 101-05.) Failure to State a Cognizable Due Process Claim concerning the Absence of Some Evidence to Support the Board’s Finding of Danger Petitioner complains that the denial of parole violated 25 Petitioner’s right to due process of law under the state and 26 federal constitutions because the decision lacked the support of 27 some evidence that Petitioner was currently a threat to society. 28 Petitioner contends that the BPH’s reliance on the commitment 5 1 offense as a basis for denial of parole was flawed. 2 9). 3 (Pet. 4, 7- Because the petition was filed after April 24, 1996, the 4 effective date of the Antiterrorism and Effective Death Penalty 5 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 6 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 7 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 8 A district court may entertain a petition for a writ of 9 habeas corpus by a person in custody pursuant to the judgment of Lindh 10 a state court only on the ground that the custody is in violation 11 of the Constitution, laws, or treaties of the United States. 28 12 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 13 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 14 16 (2010) (per curiam). 15 The Supreme Court has characterized as reasonable the 16 decision of the Court of Appeals for the Ninth Circuit that 17 California law creates a liberty interest in parole protected by 18 the Fourteenth Amendment Due Process Clause, which in turn 19 requires fair procedures with respect to the liberty interest. 20 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 21 However, the procedures required for a parole determination 22 are the minimal requirements set forth in Greenholtz v. Inmates 23 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 24 1 25 26 27 28 In Greenholtz, the Court held that a formal hearing is not required with respect to a decision concerning granting or denying discretionary parole; it is sufficient to permit the inmate to have an opportunity to be heard and to be given a statement of reasons for the decision made. Id. at 16. The decision maker is not required to state the evidence relied upon in coming to the decision. Id. at 15-16. The Court reasoned that because there is no constitutional or inherent right of a convicted person to be released conditionally before expiration of a valid sentence, the liberty interest in discretionary parole is only conditional and thus differs from the liberty 6 1 Swarthout v. Cooke, 131 S.Ct. 859, 862. 2 rejected inmates’ claims that they were denied a liberty interest 3 because there was an absence of “some evidence” to support the 4 decision to deny parole. 5 6 7 8 9 10 11 12 In Swarthout, the Court The Court stated: There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners. (Citation omitted.) When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication–and federal courts will review the application of those constitutionally required procedures. In the context of parole, we have held that the procedures required are minimal. In Greenholtz, we found that a prisoner subject to a parole statute similar to California’s received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied. (Citation omitted.) 13 Swarthout, 131 S.Ct. 859, 862. 14 petitioners had received the process that was due as follows: 15 16 The Court concluded that the They were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied.... 17 18 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 19 Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly 20 noted that California’s “some evidence” rule is not a substantive 21 federal requirement, and correct application of California’s 22 “some evidence” standard is not required by the Federal Due 23 24 25 26 27 28 interest of a parolee. Id. at 9. Further, the discretionary decision to release one on parole does not involve restrospective factual determinations, as in disciplinary proceedings in prison; instead, it is generally more discretionary and predictive, and thus procedures designed to elicit specific facts are unnecessary. Id. at 13. In Greenholtz, the Court held that due process was satisfied where the inmate received a statement of reasons for the decision and had an effective opportunity to insure that the records being considered were his records, and to present any special considerations demonstrating why he was an appropriate candidate for parole. Id. at 15. 7 1 2 Process Clause. Id. at 862-63. Here, Petitioner asks this Court to engage in the very type 3 of analysis foreclosed by Swarthout. 4 facts that point to a real possibility of constitutional error or 5 that otherwise would entitle Petitioner to habeas relief because 6 California’s “some evidence” requirement is not a substantive 7 federal requirement. 8 support the denial of parole is not within the scope of this 9 Court’s habeas review under 28 U.S.C. § 2254. 10 Petitioner does not state Review of the record for “some evidence” to Petitioner cites state law concerning grants of parole and 11 the appropriate weight to be given to evidence relevant to 12 determining suitability for parole. 13 the state constitution. Petitioner also refers to 14 To the extent that Petitioner’s claim or claims rest on 15 state law, they are not cognizable on federal habeas corpus. 16 Federal habeas relief is not available to retry a state issue 17 that does not rise to the level of a federal constitutional 18 violation. 19 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 20 errors in the application of state law are not cognizable in 21 federal habeas corpus. 22 Cir. 2002). Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 Alleged Souch v. Schiavo, 289 F.3d 616, 623 (9th 23 A petition for habeas corpus should not be dismissed without 24 leave to amend unless it appears that no tenable claim for relief 25 can be pleaded were such leave granted. 26 F.2d 13, 14 (9th Cir. 1971). 27 28 Jarvis v. Nelson, 440 Here, it is clear from the allegations in the petition and the attached documentation that Petitioner attended the parole 8 1 suitability hearing, made statements to the BPH, and received a 2 statement of reasons for the decision of the BPH. 3 Petitioner’s own allegations and exhibits establish that he had 4 an opportunity to be heard and received a statement of reasons 5 for the decision. 6 It therefore does not appear that Petitioner could state a 7 tenable due process claim. 8 9 10 Thus, Petitioner received all process that was due. Accordingly, insofar as Petitioner alleges a violation of due process because of a lack of some evidence to support the decision, the petition will be dismissed without leave to amend. 11 VI. 12 Petitioner argues that his right to due process was violated Impartial Tribunal 13 because the commissioners on the BPH were law enforcement 14 officers who were naturally predisposed to subtle bias and even 15 prejudice. 16 criteria for the composition of the board to guarantee that 17 parole proceedings are fair and impartial. 18 19 Petitioner refers to Cal. Pen. Code § 5075 as setting A. Background Petitioner alleges, and the transcript of the parole hearing 20 confirms, that Presiding Commissioner Davis was a police officer 21 for thirty (30) years; Deputy Commissioner Armenta was a city 22 manager and a chief probation officer, and he described the 23 latter position as one involving the rehabilitation of criminals. 24 (Pet. 4, 9-10, 26-27.) 25 Petitioner submitted with the petition a copy of the 26 declaration of a former commissioner and chairperson of the board 27 explaining the emergence and implementation of a “no parole 28 policy” in California which included selection of members to the 9 1 board who were less likely to grant parole and willing to 2 disregard their statutory duty, and agreement among panel members 3 upon an outcome in advance of the hearings. 4 Petitioner also submitted a letter concerning BPH practices from 5 ex-Commissioner Bilenda Harris-Ritter that Petitioner indicates 6 was forwarded to the Legislature. 7 California cases in which, Petitioner asserts, the courts 8 recognized the existence of a no-parole policy. (Pet. 10, 123-27.) (Pet. 128.) Petitioner cites (Pet. 11.) 9 In the instant case, at the beginning of the hearing, 10 Petitioner and his counsel were asked by Presiding Commissioner 11 Davis if there was any reason to believe that the board would not 12 be impartial. 13 commissioners concerning their employment history. 14 Petitioner said that after thirty (30) years of dealing with 15 manipulating and lying people, one’s good faith could be 16 questioned. 17 Commissioner Davis if listening to people who often lied to him 18 had hardened him, and Davis responded that he had learned that 19 there were many different reasons for people’s entry into the 20 legal system, and he was capable of listening to Petitioner and 21 making a fair decision. 22 stated that a departmental survey of the deputy commissioners 23 showed that for one year, Armenta granted parole the most; 24 Armenta stated that he was more than fair. 25 Petitioner’s counsel then stated the following: 26 27 28 (Pet. 26.) (Pet. 27.) In response, Petitioner questioned the (Pet. 27.) Petitioner’s counsel asked Presiding (Id. at 28.) Commissioner Armenta (Id. at 28-29.) ATTORNEY JUDD: And on a personal note, you were I believe the Chief of Police of El Cajon at one time so you dealt with administrative and probably disciplined some police officers; it wasn’t as though you believe every police report that you see is 100 10 1 percent accurate in have full faith and separate yourselves at my client as the 2 your administration as well. I confidence in both of you to form any of that past and look individual that he is. 3 (Pet. 29:2-10.) Davis then asked if there were any other 4 questions; Petitioner stated that the question and concern were 5 his. (Pet. 29:14-15.) There was no other discussion of the 6 matter.2 7 Petitioner submitted the declaration of Albert M. Leddy, 8 which is dated March 1999. (Pet. 123-27.) In the declaration, 9 Leddy, who had been a district attorney, detailed his nine years 10 of service as board chairman and commissioner between 1983 and 11 1992. He described what he perceived as a growing reluctance of 12 board panels to grant parole between 1983 and 1990 because of 13 increasing political pressure, new board appointees who 14 disfavored paroling life prisoners, use of Pen. Code § 3041.2 to 15 overturn decisions granting parole, and application of a state 16 regulation to rescind previous grants of parole. Leddy had no 17 actual knowledge of how Governor Wilson allegedly made his “no18 parole” policy known, but Leddy observed Governor Wilson’s 19 selective appointment of commissioners who were crime victims, 20 former law enforcement personnel, or Republican legislators who 21 had been defeated in elections and needed a job. (Pet. 123.) 22 Leddy stated that Governor Wilson’s appointments of unqualified 23 persons violated Cal. Pen. Code § 5075, which required 24 25 26 27 28 2 The Court notes that it is possible that by stating that the commissioners were fair, Petitioner’s counsel waived any claim concerning alleged bias of the BPH. However, the Court lacks evidence concerning Petitioner’s understanding and knowledge at the time of the hearing. Thus, in an abundance of caution, the Court will proceed to analyze Petitioner’s allegations and documentation concerning his bias claim. 11 1 appointment of persons who reflected as nearly as possible a 2 cross-section of the racial, sexual, economic, and geographical 3 features of the population of the state. 4 alleged that one board chairman told two commissioners to stop 5 giving parole dates, and an executive officer of the board had 6 told Leddy to recommend rescission of parole in a case in which 7 Leddy had refused to do so; Leddy was told to recommend 8 rescission when it was the governor’s desire. 9 detailed the resistance he encountered when he attempted to bring (Pet. 124.) Leddy (Pet. 124.) Leddy 10 up at a board meeting what he perceived as the board’s non- 11 compliance with state law. 12 result had been the removal of any reasonable possibility of 13 parole for practically of California’s prisoners serving terms of 14 life with the possibility of parole, and violation of state 15 statutes which required that parole dates would normally be set. 16 (Pet. 125.) 17 concluded that commissioners had decided the suitability issue 18 before the pertinent suitability hearing began. 19 Leddy stated on information and belief that Governor Davis had 20 stated that no parole would be granted on his watch. 21 27.) (Pet. 124.) Leddy concluded that the Leddy detailed two instances in which he had (Pet. 126.) (Pet. 126- 22 The letter of Bilenda Harris-Ritter, an attorney who was 23 appointed by Governor Schwarzenegger and served as a commissioner 24 from July 2006 through January 2007, was dated June 5, 2007, and 25 addressed to whom it might concern. 26 having received a telephone call from a deputy appointment 27 secretary who told her to resign from the BPH or face 28 termination. Harris-Ritter described She described the reorganization of the board in 12 1 July 2005, which placed the board within the California 2 Department of Corrections and Rehabilitation, and created an 3 executive officer of the board who was appointed and controlled 4 by the governor. 5 hearings when inmates were sick or unprepared without being at 6 fault. 7 8 9 Harris-Ritter described pressure to hold (Pet. 128-32.) B. Analysis A fair trial in a fair tribunal is a basic requirement of due process. In re Murchison, 349 U.S. 133, 136 (1955). 10 Fairness requires an absence of actual bias and of the 11 probability of unfairness. 12 it may consist of the appearance of partiality in the absence of 13 actual bias. 14 1995). 15 reasonably appears to have prejudged, an issue is sufficient. 16 Kenneally v. Lungren, 967 F.2d 329, 333 (9th Cir. 1992). 17 is a presumption of honesty and integrity on the part of decision 18 makers. Id. at 136. Bias may be actual, or Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. A showing that the adjudicator has prejudged, or There Withrow v. Larkin, 421 U.S. 35, 46-47 (1975). 19 California inmates have a due process right to parole 20 consideration by neutral, unbiased, disinterested decision 21 makers. 22 Because parole board officials perform tasks that are 23 functionally comparable to those performed by the judiciary, they 24 owe the same duty owed by the judiciary to render impartial 25 decisions in cases and controversies that excite strong feeling 26 because the litigant’s liberty is at stake. 27 915 F.2d 418, 422 (9th Cir. 1990). 28 O’Bremski v. Maass, 915 F.2d 418, 422 (9th Cir. 1990). O’Bremski v. Maass, However, the mere fact that a board denies relief in a given 13 1 case or has denied relief in the vast majority of cases does not 2 demonstrate bias. 3 alone are generally insufficient to demonstrate bias unless they 4 reflect such extreme favoritism or antagonism that the exercise 5 of fair judgment is precluded. 6 540, 555 (1994). 7 8 This is because unfavorable judicial rulings Liteky v. United States, 510 U.S. Here, the materials submitted by Petitioner do not reflect facts which would entitle Petitioner to relief. 9 As the commissioner himself pointed out, Commissioner 10 Armenta’s position as a probation officer involved not only law 11 enforcement, but also rehabilitation of prisoners. 12 that both commissioners had some history of employment as law 13 enforcement officers does not demonstrate any direct interest in 14 the outcome of the proceedings. 15 alleged implied bias on the part of trial jurors, it is 16 established that the mere fact of present or former employment in 17 law enforcement or government is generally not sufficient to 18 raise a presumption of bias. 19 (9th Cir. 1990); United States v. Le Pera, 443 F.2d 810, 812 (9th 20 Cir. 1971). 21 expressly confirmed that they believed they could fairly consider 22 Petitioner’s case. The mere fact In the analogous situation of Tinsley v. Borg, 895 F.2d 520, 529 Further, the commissioners were questioned, and each 23 The letter of Harris-Ritter is an unsworn document which 24 does not provide any specific information tending to show that 25 the board as constituted at the time of Petitioner’s hearing was 26 actually biased, or that the commissioners at the parole hearing 27 were actually biased. 28 for a finding of an appearance of unfairness on the part of the Likewise, it does not present any basis 14 1 board or the specific commissioners who were at Petitioner’s 2 hearing. 3 The declaration of Reddy was dated twelve years ago and 4 generally relates to facts and circumstances that existed only 5 until 1992. 6 so distant in time from Petitioner’s parole hearing in 2007 that 7 they fail to support a conclusion that political pressure to deny 8 parole, and a so-called “no parole” policy, existed fifteen or 9 more years later. Thus, the matters set forth in the declaration are It has been accepted that under Governors 10 Wilson and Davis, California had a sub rosa policy of finding all 11 murderers unsuitable for parole. 12 F.Supp.2d 1038, 1048 (N.D.Cal. 2006). 13 Davis was no longer the governor, evidence of this historical 14 practice has been acknowledged as insufficient to show the 15 existence of such a policy or practice with respect to subsequent 16 parole hearings that took place as early as 2005. 17 v. California Bd. of Parole Hearings, 2011 WL 1134713, *5 (No. 18 2:07-CV-168-RHW-JPH, E.D.Cal., March 28, 2011). 19 See, Martin v. Marshall, 431 However, because Governor See, Rosales The transcript reflects that in the course of the hearing, 20 the commissioners considered numerous suitability factors, 21 examined Petitioner, and heard and considered not only a 22 prosecutor’s statement, but also the statements of Petitioner and 23 his counsel. 24 any evidence before the board. 25 demonstrates that the board stated reasons that were grounded in 26 the facts and circumstances of Petitioner’s commitment offense 27 and personal history. 28 the instant case. Petitioner was not denied an opportunity to bring (Pet. 87.) The record No favoritism or antagonism is shown in Indeed, Petitioner’s own counsel expressed 15 1 confidence in the impartiality of the board. 2 hearing does not present any basis for a finding of bias. The record of the 3 The Court concludes that Petitioner’s allegations and the 4 documentation attached to the petition do not reflect specific 5 facts that demonstrate bias. 6 documented facts that would entitle him to relief in this 7 proceeding. 8 9 Petitioner has not stated or Because the full record of the parole proceedings is before this Court, it does not appear possible that Petitioner could 10 allege a tenable due process claim based on alleged bias of the 11 BPH. 12 Accordingly, insofar as Petitioner claims a denial of due 13 process based on the alleged bias of the BPH, the petition will 14 be dismissed without leave to amend. 15 VII. 16 Petitioner argues that because he was acquitted of first Right to Trial by Jury 17 degree murder and special circumstances, reliance on the 18 particular brutality and callousness of the commitment offense 19 increased his punishment and in effect usurped the province of 20 the jury to determine factual issues relating to circumstances 21 and conduct underlying a prior conviction. 22 Apprendi v. New Jersey, 530 U.S. 466 (2000). Petitioner relies on (Pet. 12-13.) 23 Petitioner also argues that increasing his sentence is 24 disproportional and disrupts the statutory gradation of the 25 severity of homicide offenses and punishment; Petitioner has been 26 imprisoned for thirty (30) years for second degree murder, 27 whereas some first degree murderers are being released on parole 28 after serving only twenty-three (23) years. 16 Petitioner later 1 cites to Yick Wo v. Hopkins, 118 U.S. 356 (1886) and argues that 2 in light of the time he has already served, he has exceeded all 3 applicable “first degree matrices,” and he is suffering 4 unconstitutional inequality. 5 that because his offense was only second degree murder, and thus 6 because jurors never found his offense to be particularly brutal 7 or callous, “ONCE SUFFICIENT TIME HAS ELAPSED, A PAROLE RELEASE 8 DATE IS CONSTITUTIONALLY COMPELLED,” and it is a violation of due 9 process to prolong Petitioner’s term based on factors never found 10 11 12 to be true by a jury. A. (Pet. 15.) Petitioner concludes (Pet. 13-14.) Apprendi In Apprendi, the Court held that any fact other than a prior 13 conviction that is necessary to support a sentence exceeding the 14 maximum authorized by the facts established by a plea of guilty 15 or a jury verdict must be admitted by a defendant or proved to a 16 jury beyond a reasonable doubt. 17 466, 490; United States v. Booker, 543 U.S. 220, 244 (2005). 18 Blakely v. Washington, 542 U.S. 296, 303 (2004), the Court held 19 that the “statutory maximum for Apprendi purposes is the maximum 20 sentence a judge may impose solely on the basis of the facts 21 reflected in the jury verdict or admitted by the defendant.” 22 Blakely, 542 U.S. at 303. 23 sentence of fifteen years to life is in legal effect a sentence 24 for the maximum term of life, subject only to the power of the 25 parole authority to set a lesser term. 26 Cal.App.2d 209, 214 (1969). 27 28 Apprendi v. New Jersey, 530 U.S. In In California, an indeterminate People v. Dyer, 269 Here, in denying parole, the BPH did not increase Petitioner’s sentence beyond the statutory maximum of life 17 1 imprisonment for second degree murder. 2 § 190(a). 3 concerning an Apprendi claim that would entitle him to relief. See, Cal. Pen. Code Accordingly, Petitioner has not stated facts 4 Further, the Court is mindful of the discretionary and 5 predictive evaluations made by the BPH in considering release of 6 an inmate on parole. 7 Penal and Corr. Complex, 442 U.S. 1, 9-10 (1979). 8 not aware of any Supreme Court authority applying the principles 9 of Apprendi to parole proceedings. See, Greenholtz v. Inmates of Nebraska The Court is The Court notes that 10 Petitioner was not entitled to a jury trial or proof beyond a 11 reasonable doubt in his parole proceedings. 12 Knights, 534 U.S. 112, 120 (2001) (no right to jury trial or 13 proof beyond a reasonable doubt in proceedings to revoke 14 probation); United States v. Huerta-Pimentel, 445 F.3d 1220, 1225 15 (9th Cir. 2006) (a judge’s finding by a preponderance of the 16 evidence that a defendant violated the conditions of supervised 17 release does not raise a concern regarding the Sixth Amendment); 18 see, Swarthout v. Cooke, 131 S.Ct. at 862. 19 was entitled to the relatively minimal processes of Greenholtz. 20 Thus, it would not appear that Apprendi, which concerns a right 21 to jury trial and proof beyond a reasonable doubt to a jury, 22 would be applicable to parole proceedings. 23 United States v. Instead, Petitioner The Court concludes that Petitioner did not allege facts 24 showing a denial of his right to due process of law by the 25 absence of a jury trial. 26 B. Disproportionality under the Eighth and Fourteenth Amendments 27 In alleging that his sentence is disproportionate, 28 18 1 Petitioner may be attempting to state a claim under the Eighth 2 and Fourteenth Amendments concerning cruel and unusual 3 punishment. 4 It is established that there is no right under the Federal 5 Constitution to be conditionally released before the expiration 6 of a valid sentence, and the states are under no duty to offer 7 parole to their prisoners. 8 S.Ct. 859, 862 (2011). 9 disproportionate” to the crime for which a defendant is convicted Swarthout v. Cooke, 562 U.S. –, 131 A criminal sentence that is “grossly 10 may violate the Eighth Amendment. 11 63, 72 (2003); Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) 12 (Kennedy, J., concurring); Rummel v. Estelle, 445 U.S. 263, 271 13 (1980). 14 Amendment prohibits only sentences that are extreme and grossly 15 disproportionate to the crime. 16 123, 129 (9th Cir. 1992) (quoting Harmelin v. Michigan, 501 U.S. 17 957, 1001, (1991) (Kennedy, J., concurring)). 18 “exceedingly rare” and occur in only “extreme” cases. 19 Andrade, 538 U.S. at 72-73; Rummel, 445 U.S. at 272. 20 a sentence does not exceed statutory maximums, it will not be 21 considered cruel and unusual punishment under the Eighth 22 Amendment. 23 (9th Cir.1998); United States v. McDougherty, 920 F.2d 569, 576 24 (9th Cir. 1990). 25 Lockyer v. Andrade, 538 U.S. Outside of the capital punishment context, the Eighth United States v. Bland, 961 F.2d Such instances are Lockyer v. So long as See United States v. Mejia-Mesa, 153 F.3d 925, 930 Here, Petitioner’s sentence does not exceed the statutory 26 maximum. 27 possibility of a violation of the Eighth and Fourteenth 28 Amendments. Petitioner has not alleged facts pointing to a real 19 1 C. Equal Protection 2 In an abundance of caution, the Court considers whether 3 Petitioner may be attempting to allege that because some persons 4 convicted of homicide have been or will be released after serving 5 less time than Petitioner, Petitioner was denied the equal 6 protection of the laws. 7 Prisoners are protected under the Equal Protection Clause 8 of the Fourteenth Amendment from invidious discrimination based 9 on race, religion, or membership in a protected class subject to 10 restrictions and limitations necessitated by legitimate 11 penological interests. 12 (1974); Bell v. Wolfish, 441 U.S. 520, 545-46 (1979). 13 Protection Clause essentially directs that all persons similarly 14 situated should be treated alike. 15 Cleburne Living Center, 473 U.S. 432, 439 (1985). 16 equal protection are shown when a respondent intentionally 17 discriminated against a petitioner based on membership in a 18 protected class, Lee v. City of Los Angeles, 250 F.3d 668, 686 19 (9th Cir. 2001), or when a respondent intentionally treated a 20 member of an identifiable class differently from other similarly 21 situated individuals without a rational basis, or a rational 22 relationship to a legitimate state purpose, for the difference in 23 treatment, Village of Willowbrook v. Olech, 528 U.S. 562, 564 24 (2000). 25 Wolff v. McDonnell, 418 U.S. 539, 556 The Equal City of Cleburne, Texas v. Violations of Here, Petitioner has not alleged that he is a member of a 26 protected class or that membership in a protected class was the 27 basis of any alleged discrimination. 28 Further, Petitioner has not shown that with respect to the 20 1 factors of parole suitability, he is similarly situated with 2 others who may have served less time after conviction of second 3 degree murder or first degree murder. 4 Finally, under California law, a prisoner’s suitability for 5 parole is dependent upon the effect of the prisoner’s release on 6 the public safety. 7 on parole unless the public safety requires a more lengthy period 8 of incarceration). 9 intended and applied to promote the legitimate state interest of Cal. Pen. Code § 3041(b) (mandating release California’s parole system is thus both 10 public safety. 11 Cir. 1998) (health and safety are legitimate state interests). 12 Petitioner has not shown or even suggested how the decision in 13 the present case could have constituted a violation of equal 14 protection of the laws. 15 16 17 See, Webber v. Crabtree, 158 F.3d 460, 461 (9th Therefore, Petitioner has not stated specific facts showing an equal protection violation. With respect to the propriety of amending the petition to 18 state such a claim, the Court’s statement in Greenholtz 19 concerning the difference between discretionary decisions 20 concerning parole release and those resulting in revocation of 21 parole is instructive: 22 23 24 25 26 27 A second important difference between discretionary parole release from confinement and termination of parole lies in the nature of the decision that must be made in each case. As we recognized in Morrissey, the parole-revocation determination actually requires two decisions: whether the parolee in fact acted in violation of one or more conditions of parole and whether the parolee should be recommitted either for his or society's benefit. Id., at 479-480, 92 S.Ct. at 2599. “The first step in a revocation decision thus involves a wholly retrospective factual question.” Id., at 479, 92 S.Ct. at 2599. 28 21 1 2 3 4 5 6 7 8 9 10 11 The parole-release decision, however, is more subtle and depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release. Unlike the revocation decision, there is no set of facts which, if shown, mandate a decision favorable to the individual. The parole determination, like a prisoner-transfer decision, may be made “for a variety of reasons and often involve[s] no more than informed predictions as to what would best serve [correctional purposes] or the safety and welfare of the inmate.” Meachum v. Fano, 427 U.S., at 225, 96 S.Ct., at 2538. The decision turns on a “discretionary assessment of a multiplicity of imponderables, entailing primarily what a man is and what he may become rather than simply what he has done.” Kadish, The Advocate and the Expert-Counsel in the Peno-Correctional Process, 45 Minn.L.Rev. 803, 813 (1961). 12 Greenholtz v. Inmates of Nebrasks Penal and Correctional Complex, 13 442 U.S. 1, 9-10 (1979). 14 are discretionary and are not subject to evaluation based on any 15 particular combination of factors of parole suitability, the fact 16 that Petitioner might posit some similarity with other inmates 17 with respect to offenses, history, or other parole suitability 18 factors would not be sufficient to entitle Petitioner to relief 19 based on the Equal Protection Clause. 20 Because parole release determinations Accordingly, it would not appear that Petitioner could state 21 a tenable equal protection claim if he were granted leave to 22 amend. 23 24 D. State Law As detailed above, to the extent that Petitioner is 25 complaining of violations of state law, Petitioner does not state 26 a claim that would entitle him to relief in a proceeding pursuant 27 to 28 U.S.C. § 2254. 28 In summary, Petitioner has failed to state specific facts 22 1 that would entitle him to relief for a violation of his right to 2 jury trial, due process of law, equal protection of the laws, or 3 cruel and unusual punishment. 4 relied on by Petitioner do not apply to Petitioner’s 5 circumstances, it does not appear that Petitioner could state a 6 tenable claim if leave to amend were granted. Because the legal principles 7 Accordingly, insofar as Petitioner claims a denial of the 8 right to trial by jury, right to equal protection of the laws, 9 protection against cruel and unusual punishment, or rights 10 protected by state law based on the length of his sentence or the 11 BPH’s consideration of the facts and circumstances of 12 Petitioner’s offense, the petition will be dismissed without 13 leave to amend. 14 15 VIII. Liberty Interest in Parole Petitioner argues that pursuant to decisions of the Ninth 16 Circuit Court of Appeals, the mandatory language of Cal. Pen. 17 Code § 3041 creates a liberty interest in parole and a 18 presumption that parole release will be granted absent specific 19 findings. (Pet. 5, 14-15.) 20 As previously noted, although there is a state-created 21 liberty interest in parole, that interest is protected by giving 22 the prisoner an opportunity to be heard and a statement of 23 reasons for a decision denying parole. 24 state-created interest does not itself entitle Petitioner to any 25 relief. 26 has been previously analyzed above. Thus, the presence of a The sufficiency of the process received by Petitioner 27 IX. 28 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 23 1 appealability, an appeal may not be taken to the Court of Appeals 2 from the final order in a habeas proceeding in which the 3 detention complained of arises out of process issued by a state 4 court. 5 U.S. 322, 336 (2003). 6 only if the applicant makes a substantial showing of the denial 7 of a constitutional right. 8 petitioner must show that reasonable jurists could debate whether 9 the petition should have been resolved in a different manner or 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a 10 that the issues presented were adequate to deserve encouragement 11 to proceed further. 12 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 13 certificate should issue if the Petitioner shows that jurists of 14 reason would find it debatable whether the petition states a 15 valid claim of the denial of a constitutional right and that 16 jurists of reason would find it debatable whether the district 17 court was correct in any procedural ruling. 18 529 U.S. 473, 483-84 (2000). 19 Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 20 the claims in the habeas petition, generally assesses their 21 merits, and determines whether the resolution was debatable among 22 jurists of reason or wrong. 23 applicant to show more than an absence of frivolity or the 24 existence of mere good faith; however, it is not necessary for an 25 applicant to show that the appeal will succeed. 26 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 27 A district court must issue or deny a certificate of 28 appealability when it enters a final order adverse to the 24 1 applicant. 2 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 3 debate whether the petition should have been resolved in a 4 different manner. 5 of the denial of a constitutional right. 6 7 Petitioner has not made a substantial showing Accordingly, the Court will decline to issue a certificate of appealability. 8 X. 9 Accordingly, it is ORDERED that: 10 1) Disposition The Petitioner’s motion for leave to amend the petition 11 to name Kathleen Allison as Respondent in this matter is GRANTED; 12 and 13 14 2) Respondent to Kathleen Allison; and 15 16 The Clerk of Court is DIRECTED to change the name of the 3) The order to show cause that issued on January 21, 2011, is DISCHARGED; and 17 4) The petition is DISMISSED without leave to amend for 18 failure to state facts entitling the Petitioner to relief in a 19 proceeding pursuant to 28 U.S.C. § 2254; and 20 21 5) appealability; and 22 23 The Court DECLINES to issue a certificate of 6) The Clerk is DIRECTED to close the case because this order terminates the action in its entirety. 24 25 IT IS SO ORDERED. 26 Dated: icido3 May 12, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 27 28 25