-SKO (HC) Elmer Jacob De Leon v. James Hartley, No. 1:2010cv02250 - Document 28 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss without Leave to Amend Petitioner's Due Process Claim Concerning the Evidence 10 ; FINDINGS and RECOMMENDATIONS to Deny the Remaining Claims in the First Amended Petition 10 ; FINDINGS and RECOMMENDATIONS to Direct the Entry of Judgment for Respondent and to Decline to Issue a Certificate of Appealability, signed by Magistrate Judge Sheila K. Oberto on 5/27/11. Referred to Judge O'Neill. (Verduzco, M)
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-SKO (HC) Elmer Jacob De Leon v. James Hartley Doc. 28 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ELMOR JACOB DE LEON, 11 Petitioner, 12 v. 13 JAMES HARTLEY, Warden, 14 Respondent. 15 16 17 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—02250-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS WITHOUT LEAVE TO AMEND PETITIONER’S DUE PROCESS CLAIM CONCERNING THE EVIDENCE (Doc. 10) FINDINGS AND RECOMMENDATIONS TO DENY THE REMAINING CLAIMS IN THE FIRST AMENDED PETITION (Doc. 10) FINDINGS AND RECOMMENDATIONS TO DIRECT THE ENTRY OF JUDGMENT FOR RESPONDENT AND TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY 18 19 Petitioner is a state prisoner proceeding pro se and in 20 forma pauperis with a petition for writ of habeas corpus pursuant 21 to 28 U.S.C. § 2254. 22 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 23 Rules 302 and 304. 24 petition (FAP), which was filed in the United States District 25 Court for the Central District of California on November 30, 26 2009, and transferred to this Court on December 3, 2010. 27 Respondent filed an answer with exhibits on June 24, 2010, and 28 Petitioner filed a traverse on July 9 and 14, 2010. The matter has been referred to the Pending before the Court is the first amended 1 Dockets.Justia.com 1 I. 2 Because the petition was filed after April 24, 1996, the Jurisdiction 3 effective date of the Antiterrorism and Effective Death Penalty 4 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 5 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 6 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 7 A district court may entertain a petition for a writ of 8 habeas corpus by a person in custody pursuant to the judgment of 9 a state court only on the ground that the custody is in violation Lindh 10 of the Constitution, laws, or treaties of the United States. 28 11 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 12 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 13 16 (2010) (per curiam). 14 Petitioner, an inmate of the Avenal State Prison at Avenal, 15 California, claims that he suffered violations of his 16 constitutional rights when he was found unsuitable for parole by 17 the California Board of Parole Hearings (BPH) after a hearing 18 held at Avenal on September 9, 2008. 19 Thus, violations of the Constitution are alleged. 20 (FAP, doc. 10, 1-6.) Further, the decision challenged was made at Avenal, 21 California, which is located within the jurisdiction of this 22 Court. 23 28 U.S.C. §§ 2254(a), 2241(a), (d). Respondent, Warden James Hartley, answered the petition. 24 (Doc. 16, 1, 8.) 25 who had custody of the Petitioner within the meaning of 28 U.S.C. 26 § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in 27 the District Courts (Habeas Rules). 28 Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Petitioner thus named as a respondent a person 2 See, Stanley v. California 1 2 Accordingly, the Court concludes that it has jurisdiction over the proceeding and over the Respondent. 3 II. 4 Rule 4 of the Rules Governing § 2254 Cases in the United Consideration of Dismissal of the Petition 5 States District Courts (Habeas Rules) requires the Court to make 6 a preliminary review of each petition for writ of habeas corpus. 7 The Court must summarily dismiss a petition "[i]f it plainly 8 appears from the petition and any attached exhibits that the 9 petitioner is not entitled to relief in the district court....” 10 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 11 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 12 1990). 13 grounds of relief available to the Petitioner; 2) state the facts 14 supporting each ground; and 3) state the relief requested. 15 Notice pleading is not sufficient; rather, the petition must 16 state facts that point to a real possibility of constitutional 17 error. 18 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 19 Allison, 431 U.S. 63, 75 n. 7 (1977)). 20 that are vague, conclusory, or palpably incredible are subject to 21 summary dismissal. 22 Cir. 1990). 23 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 Further, the Court may dismiss a petition for writ of habeas 24 corpus either on its own motion under Habeas Rule 4, pursuant to 25 the respondent's motion to dismiss, or after an answer to the 26 petition has been filed. 27 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 28 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 3 1 A petition for habeas corpus should not be dismissed without 2 leave to amend unless it appears that no tenable claim for relief 3 can be pleaded were such leave granted. 4 F.2d 13, 14 (9th Cir. 1971). 5 Jarvis v. Nelson, 440 Here, after the answer and traverse were filed, the Supreme 6 Court decided Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861- 7 62 (2011). 8 case, and because the case is fully briefed, the Court will 9 consider whether Petitioner’s allegations concerning the absence Because Swarthout appears to apply in the instant 10 of some evidence to support the denial of parole and the 11 application of the “some evidence” rule in Petitioner’s case 12 state a claim for relief cognizable in an action pursuant to 28 13 U.S.C. § 2254. 14 III. 15 Petitioner alleged in the FAP (doc. 10) that he was an 16 inmate of the Avenal State Prison serving a sentence of nineteen 17 (19) years to life. 18 1991, by the Los Angeles Superior Court upon Petitioner’s 19 conviction of second degree murder, attempted murder, and assault 20 with a firearm in violation of Cal. Pen. Code §§ 187, 664, and 21 245. 22 Petitioner also challenges the decisions of the state courts 23 which upheld the BPH’s denial, including the rulings of the Los 24 Angeles County Superior Court on April 1, 2009 (Ans., Ex. 1); the 25 California Court of Appeal, Second Appellate District, on April 26 30, 2009 (Ans. Ex. 3); and the California Supreme Court on 27 November 10, 2009 (Ans., Ex. 5). 28 Background (FAP. 1-2.) The life sentence was imposed on August 16, In addition to the BPH’s denial of parole, Petitioner raises the following claims in the FAP: 1) the 4 1 decision violated Petitioner’s right to due process of law 2 because it was not supported by some evidence of risk to the 3 public or to society (FAP. 6, 8, 12); 4 parole violated Petitioner’s right to the equal protection of the 5 laws (FAP 5); 3) Petitioner was subjected to an ex post facto law 6 because the BPH denied parole based on the commitment offense and 7 the same reasons used to deny parole previously (FAP 5, 9); 4) 8 Petitioner’s rights under the First Amendment were violated by 9 the BPH’s requirement that he attend Alcoholics Anonymous (AA) 2) the BPH’s denial of 10 (FAP 6-10); 5) the BPH violated Petitioner’s liberty interest 11 based on state law, and the BPH’s decision conflicted with 12 California regulations (FAP 5, 6, 12-13); and 6) the BPH’s 13 decision constituted cruel and unusual punishment (FAP 10). 14 Petitioner complains that the decision reflected impermissible 15 reliance on immutable factors such as the circumstances of the 16 commitment offense; further, the board relied on stale evidence 17 of addiction to alcohol, and the psychiatric evidence was 18 favorable to Petitioner. 19 (FAP 6, 9-10, 12.) Petitioner submitted in support of his petition the 20 transcript of the proceedings held before the BPH on September 9, 21 2008. 22 1-39.) 23 documents before the hearing (doc. 10-1, 30); attended the 24 hearing (FAP, doc. 10-1, 26, 29; doc. 10-2; doc. 10-3, 1-39); 25 addressed the board while under oath concerning numerous factors 26 of parole suitability (doc. 10-1, 38-50; doc. 10-2, 1-50; doc. 27 10-3, 1-16); made a personal statement to the board in favor of 28 parole (doc. 10-3, 27-30); and was represented by counsel, who (FAP, ex. C, doc. 10-1, 26-50; doc. 10-2, 1-50; doc. 10-3, The transcript reflects that Petitioner received 5 1 advocated and made a closing statement on Petitioner’s behalf 2 (doc. 10-1, 26, 29-30, 36; doc. 10-3, 22-27). 3 Petitioner was present when the board stated its reasons for 4 the finding of unsuitability for parole, which was based on the 5 conclusion that there was an unreasonable risk of danger to 6 others if Petitioner were released. 7 The board relied on Petitioner’s commitment offense and his lack 8 of insight into his offense. 9 10 IV. (FAP, doc. 10-3, 31-39.) (FAP, doc. 10-3, 31-39.) Failure to State a Cognizable Due Process Claim Petitioner argues that his liberty interest in parole was 11 violated by the BPH’s decision because it lacked the support of 12 some evidence. 13 evidence arising after parole was previously denied to justify 14 the instant denial of parole; further, the evidence presented 15 supported a grant of parole. 16 Petitioner contends that there was no new The Supreme Court has characterized as reasonable the 17 decision of the Court of Appeals for the Ninth Circuit that 18 California law creates a liberty interest in parole protected by 19 the Fourteenth Amendment Due Process Clause, which in turn 20 requires fair procedures with respect to the liberty interest. 21 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 22 However, the procedures required for a parole determination 23 are the minimal requirements set forth in Greenholtz v. Inmates 24 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 25 26 27 28 1 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 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 23 24 25 26 27 28 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 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 “some evidence” standard is not required by the Federal Due 2 Process Clause. 3 Id. at 862-63. Here, Petitioner asks this Court to engage in the very type 4 of analysis foreclosed by Swarthout. 5 facts that point to a real possibility of constitutional error or 6 that otherwise would entitle Petitioner to habeas relief because 7 California’s “some evidence” requirement is not a substantive 8 federal requirement. 9 support the denial of parole is not within the scope of this 10 Petitioner does not state Review of the record for “some evidence” to Court’s habeas review under 28 U.S.C. § 2254. 11 A petition for habeas corpus should not be dismissed without 12 leave to amend unless it appears that no tenable claim for relief 13 can be pleaded were such leave granted. 14 F.2d 13, 14 (9th Cir. 1971). 15 Jarvis v. Nelson, 440 Here, it is clear from the allegations in the petition and 16 the supporting documentation that Petitioner attended the parole 17 suitability hearing, made statements to the BPH, and received a 18 statement of reasons for the decision of the BPH. 19 appears from the face of the petition and the attached exhibits 20 that Petitioner received all process that was due, it is not 21 possible that Petitioner could state a tenable due process claim. 22 Accordingly, insofar as Petitioner claims a due process 23 violation because of the application of the “some evidence” rule, 24 the Court recommends that the petition be dismissed without leave 25 to amend. Because it 26 V. 27 Petitioner alleges generally that the board’s decision 28 Alleged Denial of Equal Protection violated his right to equal protection of the laws. 8 (FAP 5.) 1 Title 28 U.S.C. § 2254 provides in pertinent part: 2 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim– 3 4 5 6 7 8 9 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 10 11 12 13 (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption or correctness by clear and convincing evidence. 14 The petitioner bears the burden of establishing that the 15 decision of the state court was contrary to, or involved an 16 unreasonable application of, the precedents of the United States 17 Supreme Court. Lambert v. Blodgett, 393 F.3d 943, 970 n.16 (9th 18 Cir. 2004); Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 19 1996). 20 A state court’s decision contravenes clearly established 21 Supreme Court precedent if it reaches a legal conclusion opposite 22 to the Supreme Court's or concludes differently on an 23 indistinguishable set of facts. Williams v. Taylor, 529 U.S. 24 362, 405-06 (2000). The state court need not have cited Supreme 25 Court precedent or have been aware of it, "so long as neither the 26 reasoning nor the result of the state-court decision contradicts 27 [it]." Early v. Packer, 537 U.S. 3, 8 (2002). 28 9 The state court 1 unreasonably applies clearly established federal law if it either 2 1) correctly identifies the governing rule but then applies it to 3 a new set of facts in a way that is objectively unreasonable, or 4 2) extends or fails to extend a clearly established legal 5 principle to a new context in a way that is objectively 6 unreasonable. 7 Cir.2002); see, Williams, 529 U.S. at 408-09. 8 law is unreasonable if it is objectively unreasonable; an 9 incorrect or inaccurate application of federal law is not 10 11 Hernandez v. Small, 282 F.3d 1132, 1142 (9th necessarily unreasonable. An application of Williams, 529 U.S. at 410. Prisoners are protected under the Equal Protection Clause of 12 the Fourteenth Amendment from invidious discrimination based on 13 race, religion, or membership in a protected class subject to 14 restrictions and limitations necessitated by legitimate 15 penological interests. 16 (1974); Bell v. Wolfish, 441 U.S. 520, 545-46 (1979). 17 Protection Clause essentially directs that all persons similarly 18 situated should be treated alike. 19 Cleburne Living Center, 473 U.S. 432, 439 (1985). 20 equal protection are shown when a respondent intentionally 21 discriminates against a petitioner based on membership in a 22 protected class, Lee v. City of Los Angeles, 250 F.3d 668, 686 23 (9th Cir. 2001), or when a respondent intentionally treats a 24 member of an identifiable class differently from other similarly 25 situated individuals without a rational basis, or a rational 26 relationship to a legitimate state purpose, for the difference in 27 treatment, Village of Willowbrook v. Olech, 528 U.S. 562, 564 28 (2000). Wolff v. McDonnell, 418 U.S. 539, 556 10 The Equal City of Cleburne, Texas v. Violations of 1 Here, Petitioner has only generally alleged that the 2 decision violated his right to the equal protection of the laws. 3 Petitioner has neither alleged nor shown that membership in a 4 protected class was the basis of any alleged discrimination. 5 Court does not find any factual basis for an inference of an 6 intent to discriminate based on an impermissible characteristic. 7 Further, Petitioner has not shown that he was treated differently 8 from others who were similarly situated. 9 The The Court concludes that Petitioner has failed to show that 10 the BPH’s denial of parole violated Petitioner’s rights under the 11 Equal Protection Clause of the Fourteenth Amendment. 12 Petitioner has failed to show that any state court decision 13 upholding the BPH’s determination resulted in either a decision 14 that was contrary to, or involved an unreasonable application of, 15 clearly established federal law, as determined by the Supreme 16 Court of the United States, or a decision that was based on an 17 unreasonable determination of the facts in light of the evidence 18 presented in the state court proceeding. 19 Therefore, The Court notes that Petitioner alleges generally that 20 application of standards of parole suitability under the 21 Determinate Sentencing Law (DSL) violated equal protection when 22 applied to him because he is an “ISL life prisoner,” which the 23 Court understands to be a prisoner sentenced under the 24 Indeterminate Sentencing Law (ISL). 25 (Pet. 23.) However, the DSL was enacted in 1976. 1976 Cal. Stat., ch. 26 113, § 1. 27 sentenced in 1991. 28 that he was entitled to have his parole suitability considered Petitioner alleges that he was convicted in 1990 and (Pet. 2.) Thus, Petitioner has not shown 11 1 2 under the ISL. The Court concludes that the facts alleged and documented by 3 Petitioner in his claim or claims pursuant to the Equal 4 Protection Clause fail to entitle Petitioner to habeas corpus 5 relief. 6 7 Accordingly, it will be recommended that Petitioner’s equal protection claim be denied. 8 VI. 9 Petitioner argues that his rights under the First Amendment First Amendment Claim 10 were violated, citing Turner v. Hickman, 342 F.Supp.2d 887 11 (E.D.Cal. 2004). 12 (FAP 6-10.) In Turner v. Hickman, 342 F.Supp.2d 887, a Christian inmate 13 alleged that parole authorities expressly conditioned in part the 14 plaintiff’s eligibility for release on parole upon participation 15 in Narcotics Anonymous (NA). 16 that by repeated application of the “coercion” test set forth in 17 Lee v. Weisman, 505 U.S. 577, 587 (1992), the Supreme Court had 18 made the applicable law clear. 19 expressly telling the plaintiff he needed to participate in NA to 20 be eligible for parole, the state had acted coercively to require 21 participation in a program in which the evidence showed that 22 belief in “God” was a fundamental requirement of participation. 23 Id. at 895-96. 24 requirement.2 25 Id. at 890. This Court concluded Turner, 342 F.Supp.2d at 894. Accordingly, the First Amendment prohibited the Id. at 896-99. In Inouye v. Kemna, 504 F.3d 705 (9th Cir. 2007), the court 26 27 28 By 2 Because Petitioner cited to Turner v. Hickman, the Court understands Petitioner’s claim to relate to having been coerced to participate in a program which required belief in a higher power. 12 1 considered whether state parole authorities had qualified 2 immunity in a § 1983 suit by a plaintiff who alleged that as a 3 condition of parole, they required his attendance in drug 4 treatment programs (AA and NA) rooted in a regard for a higher 5 power. 6 parole officer that the law was not clearly established at the 7 time, the court held that the law “was and is very clear, 8 precluding qualified immunity....” 9 In response to the argument of a defendant supervisory Inouye, 504 F.3d at 711-12. The court found that there had been consistent articulation 10 of the principle that the government may not coerce anyone to 11 support or participate in religion or its exercise, or punish 12 anyone for not so participating. 13 Board of Education of Ewing Township, 330 U.S. 1 (1947) and Lee 14 v. Weisman, 505 U.S. 577, 587 (1992)). 15 that the basic test for Establishment Clause violations remains 16 that stated in Lemon v. Kurtzman, 403 U.S. 602, 613 (1971), 17 namely, that the government acts 1) have a secular legislative 18 purpose, 2) not have a principal or primary effect which either 19 advances or inhibits religion, and 3) not foster an excessive 20 government entanglement with religion. 21 Id. at 713 (citing Everson v. The court further noted Id. at 713 n.7. The court concluded that recommending revocation of parole 22 for a parolee’s failure to attend the programs after an order to 23 participate was given was unconstitutionally coercive. 24 713-14. 25 only on lower court decisions, but also in part on the decisions 26 of the United States Supreme Court and the absence of any Supreme 27 Court case upholding government-mandated participation in 28 religious activity in any context. Id. at In finding the law clear, the court in Inouye relied not 13 Id. at 715. 1 At the parole hearing held in the instant case, Deputy 2 Commissioner Weaver referred to the preceding denial of parole 3 that had occurred on September 12, 2006, and the accompanying 4 recommendation of the previous BPH panel that Petitioner gain 5 insight, participate by reading self-help books and making book 6 reports, and get “positive chronos.” 7 BPH reviewed Petitioner’s progress in pertinent substance abuse 8 and self-help programs, and when Commissioner Weaver observed to 9 Petitioner, “You’ve been in AA and NA for many years,” Petitioner (FAP, doc. 10-2, 34.) The 10 replied in the affirmative. 11 10-3, 1-3.) 12 he worked “the steps,” he replied, “Yes, sir.” 13 Weaver and Petitioner discussed Petitioner’s favorite steps. 14 (Id. at 35:13-28; doc. 10-3, 1-4.) 15 psychologist in an effort to fulfill the BPH’s previous 16 suggestion of self-help or counseling, but he had been told that 17 they did not have anything like that. (Id. at 36-37.) (FAP, doc. 10-2, 34-35: 1-12; doc. When Petitioner was asked what he had learned and if Commissioner Petitioner had seen a 18 A psychiatric report reflected that Petitioner had 19 acknowledged an alcohol problem but had failed to accept full 20 responsibility for his crime or explore the underlying causes for 21 his behavior; however, Petitioner had been involved in AA and NA. 22 (Id. at 40, 46, 48; doc. 10-3, 1.) 23 as religious, but he did not assist at chapel; rather, he read 24 his Bible and conversed directly with God. 25 her closing statement, Petitioner’s attorney represented that 26 Petitioner had participated in a lot of self-help and had been 27 involved in AA/NA for fourteen (14) to sixteen (16) years in 28 order to stay out of trouble. Petitioner described himself (Doc. 10-3, 20.) (Doc. 10-3, 23-24, 26.) 14 In his In 1 own closing statement, Petitioner stated that he wanted to open 2 an AA group in order to help others and to maintain his own 3 sobriety. 4 5 6 (Doc. 10-3, 29.) In explaining the reasons for its denial of parole, the following colloquy occurred: 12 PRESIDING COMMISSIONER PRIZMICH: And what we’re going to do in the period coming up is to perhaps sit down with a counselor, a priest, someone that can counsel you with regard to this incident and maybe go over with you, someone that you trust. And I’m sure you’re a religion (sic) man. I’m sure you can find someone that you can sit down with and talk over the specifics of this with because I think you need someone to feed back to you some of the areas of concerns that keep coming up, that is, your recollection of the events. You say you don’t remember things but you specifically do remember the things that bad (sic) happened to you. 13 INMATE DELEON: 14 PRESIDING COMMISSIONER PRIZMICH: And what we want is an understanding more than just it wouldn’t have happened if you’d (sic) been drinking. There needs to be a little bit deeper understanding I think on your part, and I think that’s just going to take some more work on your part. Okay. And I would specifically suggest in the 12 Steps that you look at step number four. It has to do with character defects. That’s not an easy step to do and we think that perhaps that step for you might be one that could provide some insight to a greater degree than what you have here. But at any rate, we’re going to want you to take a look in this next year and either sit down with somebody and be prepared to talk over with the next Panel what work that you’ve done, and we’re going to want to see some evidence of you having a greater level of insight other than I just got drunk, had anywhere from 18 to 22 beers, I don’t remember a thing and it was all my responsibility. That’s real superficial. That’s real superficial. What we want is an understanding of why you started drinking to that degree to begin with. What was going on, what was it about you that--because normal people don’t do that. So that’s what we’re going to want you to look into, okay, and we think that it would be helpful if you sat down with somebody, with somebody you trusted, and go over that. Have them ask you questions, not pat you on the back, but ask you questions that force you to look into what was going on with you at that time a little bit more than just allowing you (sic) say I just got drunk. Plenty 7 8 9 10 11 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Yes, sir. 15 1 2 of people get drunk in bars and out in the street and don’t take the actions that you took. So we want you to look into that. 3 INMATE DELEON: 4 (Doc. 10-3, 32-34.) 5 Thank-you. The commissioner then emphasized that Petitioner had 6 attacked multiple victims and fired rounds of ammunition that 7 could have killed a child; the offense was carried out in a 8 manner that demonstrated complete disregard for anybody’s safety. 9 (Id. at 34.) The commissioner reiterated that the BPH and the 10 psychologists wanted to ensure Petitioner came to grips with 11 having made bad choices. 12 stated the following: 13 14 15 (Id. at 34-35.) The commissioner then You’ve done a lot of work with AA. We think that there still could be more. I know a lot of the panels ask what you do with regard to steps eight and nine, but steps eight and nine are not as important to me, and they shouldn’t be as important to you as the steps that come before that, because everybody focuses on that. 16 (Id. at 35:14-19.) 17 Presiding Commissioner Prizmich then noted that previous 18 step was a searching self-examination to determine who the 19 Petitioner was and who he had been before, and it was suggested 20 that Petitioner look that over and pray about it; the BPH was 21 concerned about Petitioner’s insight. (FAP, doc. 10-3, 35-36.) 22 Petitioner responded that it was okay. (Id. at 36.) 23 Presiding Commissioner Prizmich then noted that it was 24 likely that Petitioner would be deported to Guatemala, and stated 25 the following: 26 27 28 And what we’re going to want to see with regard to your parole plans and what we’re want (sic) you to add is have whoever is down there, whoever your contact person is down there, find out about AA and NA programs in the area 16 1 2 3 4 that you will be living at, because we’re going to want to know that there are programs for you there, and we believe there would be, but it’s important that you make those contacts and provide us with that information because what that tells us is that you’re committed to staying there, that you’re committed to continuing to go to AA. So we think that’s important for you, okay? 5 (Id. at 36.) 6 The commissioner then stated in pertinent part: 7 8 9 10 11 Generally speaking, sir, with regard to the comments that I made, we feel that there is still some risk there and it is at this point unreasonable for us to conclude that you would be a completely safe bet if you went out there. We need some more insight and we want you to work on that in this next year and we want your parole plans to have some connection to either a 12 Step program or some connection to a church that has as a counseling component, drug and alcohol counseling, okay, because we don’t want you going back there. 12 (Doc. 10-3, 36-37.) In reiterating the need for development of 13 further insight, the commissioner stated: 14 15 16 17 We want you to do some more work on that. We want you to continue working on your self-help programming, remain disciplinary free, and we’re strongly urging you to sit down with someone, whether it’s a priest or some counselor, and go over the details of this so that may help you focus you (sic) on having a little bit more insight. 18 (Doc. 10-3, 38.) Commissioner Weaver also encouraged Petitioner 19 to work on the fourth step. (Id.) Presiding Commissioner 20 Prizmich asked Petitioner to remember the AA in his parole plans, 21 do the work he was to do, and stay out of trouble. (Id.) 22 The transcript of the BPH’s reasons for denying parole is 23 fairly read as including a suggestion that Petitioner continue to 24 work on the twelve steps or participate in a twelve-step program, 25 talk with a counselor or priest to develop insight, and develop 26 parole plans that would include some connection to either a 27 twelve-step program or a church with a drug and alcohol 28 17 1 counseling program. 2 information on, or continue with, AA. 3 appears that the overriding criterion with respect to such 4 desired programming was a twelve-step, drug and alcohol 5 counseling component. 6 participated in AA and had stated that he wanted not only to 7 continue with AA, but also to found an AA group (presumably in 8 Guatemala) for himself and for others. 9 reference to AA was understandable in the context of Petitioner’s Petitioner was encouraged to provide However, in context, it Petitioner had already extensively Thus, the commissioners’ 10 documented, pre-existing, and apparently voluntary choice to 11 participate in AA. 12 commissioners were careful to present counseling as an 13 alternative to a formal AA program. 14 However, in their commentary, the In summary, the record does not support a finding that the 15 BPH required Petitioner to attend church or to participate in an 16 AA program as distinct from a secular, twelve-step, drug and 17 alcohol counseling program. 18 part of the basis for the denial of parole was a failure to 19 participate in AA or any other religious program. 20 Accordingly, the record of the proceedings before the BPH shows 21 that Petitioner was not required to attend AA or any specific 22 programing that involved belief in a higher power. 23 does not contain facts supporting a finding that Petitioner’s 24 First and Fourteenth Amendment rights were violated. 25 Further, it does not appear that any The record In conclusion, Petitioner has not shown that the BPH’s 26 decision violated his First and Fourteenth Amendment rights, or 27 that any state court decision upholding the BPH’s decision 28 resulted in either a decision that was contrary to, or involved 18 1 an unreasonable application of, clearly established federal law, 2 as determined by the Supreme Court of the United States, or a 3 decision that was based on an unreasonable determination of the 4 facts in light of the evidence presented in the state court 5 proceeding. 6 7 Accordingly, it will be recommended that Petitioner’s First Amendment claim be denied. 8 VII. 9 Petitioner alleges generally that the BPH’s decision 10 11 Alleged Ex Post Facto Violation violated the Ex Post Facto Clause. (FAP 5, 9.) The Constitution provides, “No State shall... pass any... ex 12 post facto Law.” 13 Clause prohibits any law which: 1) makes an act done before the 14 passing of the law, which was innocent when done, criminal; 2) 15 aggravates a crime and makes it greater than it was when it was 16 committed; 3) changes the punishment and inflicts a greater 17 punishment for the crime than when it was committed; or 4) alters 18 the legal rules of evidence and requires less or different 19 testimony to convict the defendant than was required at the time 20 the crime was committed. 21 (2000). 22 defendant violates the Ex Post Facto Clause if the new 23 regulations create a “sufficient risk” of increasing the 24 punishment for the defendant’s crimes. 25 F.3d 848, 854 (9th Cir. 2003) (citing Cal. Department of 26 Corrections v. Morales, 514 U.S. 499, 509 (1995)). 27 or statute does not by its own terms show a significant risk, the 28 prisoner must demonstrate, by evidence drawn from the rule's U.S. Const. art I, § 10. The Ex Post Facto Carmell v. Texas, 529 U.S. 513, 522 Application of a state regulation retroactively to a 19 Himes v. Thompson, 336 When the rule 1 practical implementation by the agency charged with exercising 2 discretion, that its retroactive application will result in a 3 longer period of incarceration than under the earlier rule. 4 Garner v. Jones, 529 U.S. 244, 250, 255 (2000). 5 Petitioner bases this claim in part on the BPH’s continued 6 reliance on the commitment offense and on other reasons that had 7 supported a denial of parole at previous suitability hearings. 8 (FAP 9.) 9 suitability hearing does not establish any retroactive 10 11 However, reliance on factors that predated the parole application of any law. Petitioner also alleges that application of parole 12 suitability factors under California’s Determinate Sentencing Law 13 (DSL) violated the Ex Post Facto Clause because he was sentencing 14 under the ISL. 15 1976 Cal. Stat., ch. 113, § 1. 16 convicted in 1990 and sentenced in 1991. 17 Petitioner has not shown that he was entitled to have his parole 18 suitability considered under the ISL. 19 (FAP 23.) However, the DSL was enacted in 1976. Petitioner alleges that he was (FAP 2.) Thus, Further, the parties have not cited, and the Court has not 20 found, any clearly established United States Supreme Court law 21 governing this subject. 22 defendant is sentenced under California’s ISL, he or she is not 23 disadvantaged for ex post facto purposes by application of the 24 DSL’s standards to determine parole suitability because the DSL 25 guidelines require consideration of the same criteria as the ISL 26 require. 27 1992) (per curiam). 28 difference in the two sets of standards. This circuit has held that even if a Connor v. Estelle, 981 F.2d 1032, 1033-34, (9th Cir. Petitioner has not demonstrated any 20 Further, Petitioner has 1 not provided any evidence that would support a finding that any 2 difference caused any increase in punishment, or any risk of such 3 an increase in his case. 4 5 6 7 In summary, Petitioner has not shown that he suffered any ex post facto violation. Accordingly, it will be recommended that Petitioner’s ex post facto claim be denied. 8 VIII. 9 In various respects, Petitioner argues that the board’s 10 decision violated state regulatory, statutory, and case law. 11 Petitioner contends that he had a state-created liberty Allegations Concerning State Law 12 interest that was infringed by the BPH’s denial of parole. 13 Although Petitioner may have such an interest, only minimal due 14 process is required to protect such an interest. 15 S.Ct. 859, 862. 16 Petitioner received all process that was due at the parole 17 suitability hearing. Swarthout, 131 As the foregoing analysis demonstrates, 18 To the extent that Petitioner’s claim or claims rest on 19 state law, they are not cognizable on federal habeas corpus. 20 Federal habeas relief is not available to retry a state issue 21 that does not rise to the level of a federal constitutional 22 violation. 23 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 24 errors in the application of state law are not cognizable in 25 federal habeas corpus. 26 Cir. 2002). 27 28 Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 Alleged Souch v. Schiavo, 289 F.3d 616, 623 (9th Accordingly, to the extent that Petitioner might have alleged or established a mere violation of state law, Petitioner 21 1 has not demonstrated, and cannot demonstrate, entitlement to 2 relief in a proceeding pursuant to 28 U.S.C. § 2254. 3 Thus, it will be recommended that Petitioner’s claim or 4 claims concerning alleged violations of state law be denied. 5 IX. 6 Petitioner generally alleges that the BPH’s decision 7 8 9 Cruel and Unusual Punishment constituted cruel and unusual punishment. (FAP 10.) There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, 10 and the states are under no duty to offer parole to their 11 prisoners. 12 (2011). 13 to the crime for which a defendant is convicted may violate the 14 Eighth Amendment. 15 Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., 16 concurring); Rummel v. Estelle, 445 U.S. 263, 271 (1980). Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 862 A criminal sentence that is “grossly disproportionate” Lockyer v. Andrade, 538 U.S. 63, 72 (2003); 17 Outside of the capital punishment context, the Eighth 18 Amendment prohibits only sentences that are extreme and grossly 19 disproportionate to the crime. 20 123, 129 (9th Cir. 1992) (quoting Harmelin v. Michigan, 501 U.S. 21 957, 1001, (1991) (Kennedy, J., concurring)). 22 “exceedingly rare” and occur in only “extreme” cases. 23 Andrade, 538 U.S. at 72-73; Rummel, 445 U.S. at 272. 24 a sentence does not exceed statutory maximums, it will not be 25 considered cruel and unusual punishment under the Eighth 26 Amendment. 27 (9th Cir.1998); United States v. McDougherty, 920 F.2d 569, 576 28 (9th Cir. 1990). 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 Further, it has been held that a sentence of 22 1 fifty years to life for murder with use of a firearm is not 2 grossly disproportionate. 3 1204 (9th Cir. 2006). 4 Plasencia v. Alameida, 467 F.3d 1190, Here, Petitioner was convicted of second degree murder. 5 punishment for second degree murder is fifteen years to life. 6 Cal. Pen. Code § 190(a). 7 The exceed the statutory maximum.3 8 9 Petitioner’s sentence thus does not The Court, therefore, concludes that Petitioner has not shown that the BPH’s denial of his parole constituted cruel and 10 unusual punishment in violation of the Eighth and Fourteenth 11 Amendments. 12 claim concerning cruel and unusual punishment be denied. 13 14 X. Accordingly, the Court recommends that Petitioner’s Certificate of Appealability Unless a circuit justice or judge issues a certificate of 15 appealability, an appeal may not be taken to the Court of Appeals 16 from the final order in a habeas proceeding in which the 17 detention complained of arises out of process issued by a state 18 court. 19 U.S. 322, 336 (2003). 20 only if the applicant makes a substantial showing of the denial 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue 21 22 23 24 25 26 27 28 3 Under California law, it is established that an indeterminate life sentence is in legal effect a sentence for the maximum term of life. People v. Dyer, 269 Cal.App.2d 209, 214 (1969). Generally, a convicted person serving an indeterminate life term in state prison is not entitled to release on parole until he is found suitable for such release by the Board of Parole Hearings (previously, the Board of Prison Terms). Cal. Pen. Code § 3041(b); Cal. Code of Regs., tit. 15, § 2402(a). Under California's Determinate Sentencing Law, an inmate such as Petitioner who is serving an indeterminate sentence for murder may serve up to life in prison, but he does not become eligible for parole consideration until the minimum term of confinement is served. In re Dannenberg, 34 Cal.4th 1061, 1078 (2005). The actual confinement period of a life prisoner is determined by an executive parole agency. Id. (citing Cal. Pen. Code § 3040). 23 1 of a constitutional right. 2 petitioner must show that reasonable jurists could debate whether 3 the petition should have been resolved in a different manner or 4 that the issues presented were adequate to deserve encouragement 5 to proceed further. 6 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 7 certificate should issue if the Petitioner shows that jurists of 8 reason would find it debatable whether the petition states a 9 valid claim of the denial of a constitutional right and that § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A 10 jurists of reason would find it debatable whether the district 11 court was correct in any procedural ruling. 12 529 U.S. 473, 483-84 (2000). 13 Slack v. McDaniel, In determining this issue, a court conducts an overview of 14 the claims in the habeas petition, generally assesses their 15 merits, and determines whether the resolution was debatable among 16 jurists of reason or wrong. 17 applicant to show more than an absence of frivolity or the 18 existence of mere good faith; however, it is not necessary for an 19 applicant to show that the appeal will succeed. 20 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 21 A district court must issue or deny a certificate of 22 appealability when it enters a final order adverse to the 23 applicant. 24 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 25 debate whether the petition should have been resolved in a 26 different manner. 27 of the denial of a constitutional right. 28 Petitioner has not made a substantial showing Accordingly, it will be recommended that the Court decline 24 1 to issue a certificate of appealability. 2 XI. 3 Accordingly, it is RECOMMENDED that: 4 1) Recommendation Petitioner’s due process claim concerning the evidence 5 supporting the BPH’s denial of parole be DISMISSED without leave 6 to amend because Petitioner has failed to state a claim entitling 7 him to habeas corpus relief in a proceeding pursuant to 28 U.S.C. 8 § 2254; and 9 2) The remaining claims in the petition be DENIED; and 10 3) The Court DECLINE to issue a certificate of 11 appealability; and 12 4) 13 These findings and recommendations are submitted to the 14 United States District Court Judge assigned to the case, pursuant 15 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 16 the Local Rules of Practice for the United States District Court, 17 Eastern District of California. 18 being served with a copy, any party may file written objections 19 with the Court and serve a copy on all parties. 20 should be captioned “Objections to Magistrate Judge’s Findings 21 and Recommendations.” 22 and filed within fourteen (14) days (plus three (3) days if 23 served by mail) after service of the objections. 24 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 25 636 (b)(1)(C). 26 objections within the specified time may waive the right to 27 /// 28 /// The Clerk be DIRECTED to enter judgment for Respondent. Within thirty (30) days after Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file 25 1 appeal the District Court’s order. 2 1153 (9th Cir. 1991). Martinez v. Ylst, 951 F.2d 3 4 IT IS SO ORDERED. 5 Dated: ie14hj May 27, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26
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