(HC) Lopez v. Brown, No. 1:2012cv01172 - Document 7 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition without Leave to Amend; FINDINGS and RECOMMENDATIONS to Decline to Issue a Certificate of Appealability and to Direct the Clerk to Close the Case, signed by Magistrate Judge Barbara A. McAuliffe on 8/9/12. Referred to Judge Ishii; Objections to F&R due by 9/13/2012. (Verduzco, M)
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(HC) Lopez v. Brown Doc. 7 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ANDREW R. LOPEZ, 11 Petitioner, 12 13 14 v. EDMUND G. BROWN, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:12-cv—01172–AWI-BAM-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND (DOC. 1) FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO CLOSE THE CASE OBJECTIONS DEADLINE: (30) DAYS THIRTY 17 18 Petitioner is a state prisoner proceeding pro se and in 19 forma pauperis with a petition for writ of habeas corpus pursuant 20 to 28 U.S.C. § 2254. 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 22 Rules 302 and 304. 23 which was filed on July 16, 2012. The matter has been referred to the Pending before the Court is the petition, 24 I. 25 Rule 4 of the Rules Governing § 2254 Cases in the United Screening the Petition 26 States District Courts (Habeas Rules) requires the Court to make 27 a preliminary review of each petition for writ of habeas corpus. 28 The Court must summarily dismiss a petition "[i]f it plainly 1 Dockets.Justia.com 1 appears from the petition and any attached exhibits that the 2 petitioner is not entitled to relief in the district court....” 3 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 4 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 5 1990). 6 grounds of relief available to the Petitioner; 2) state the facts 7 supporting each ground; and 3) state the relief requested. 8 Notice pleading is not sufficient; rather, the petition must 9 state facts that point to a real possibility of constitutional Habeas Rule 2(c) requires that a petition 1) specify all 10 error. 11 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 12 Allison, 431 U.S. 63, 75 n.7 (1977)). 13 that are vague, conclusory, or palpably incredible are subject to 14 summary dismissal. 15 Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d at 491. Further, the Court may dismiss a petition for writ of habeas 16 corpus either on its own motion under Habeas Rule 4, pursuant to 17 the respondent's motion to dismiss, or after an answer to the 18 petition has been filed. 19 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 20 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 21 A petition for habeas corpus should not be dismissed without 22 leave to amend unless it appears that no tenable claim for relief 23 can be pleaded were such leave granted. 24 F.2d 13, 14 (9th Cir. 1971). Jarvis v. Nelson, 440 25 II. 26 Petitioner alleges that he is an inmate of the California Background 27 State Prison at Corcoran, California (CSP-COR), serving a 28 sentence of seventeen years to life imposed in 1992 for a 2 1 conviction of second degree murder sustained in the Stanislaus 2 County Superior Court. 3 California’s Board of Parole Hearings (BPH) made after a hearing 4 held on December 7, 2009. Petitioner challenges a decision of 5 Petitioner alleges the following claims in the petition: 6 the state court’s failure to issue orders necessary to enable 7 Petitioner to procure a copy of his “habeas record” (pet. 4) in 8 post-conviction relief proceedings, and the denial of his 9 requests for counsel, were constitutionally inadequate procedures 1) 10 that denied him access to the courts and violated his rights to 11 due process and to the equal protection of the “some evidence” 12 standard; 2) the BPH disregarded a previous order of this Court 13 issued in 2009 to afford a timely, constitutionally adequate 14 parole suitability hearing and thereby violated Petitioner’s 15 right to due process by a) depriving Petitioner of a meaningful 16 opportunity to be heard regarding a new psychological evaluation 17 and by not reporting and/or documenting errors in a 2009 18 psychological report, b) accepting the 2009 report in evidence 19 and relying on it in making a decision, c) allowing a 1992 “POR” 20 into evidence and relying on it despite its unreliability, d) 21 denying parole in the absence of “some evidence” to substantiate 22 its finding that Petitioner would pose a risk to public safety or 23 current dangerousness, in violation of due process as well as 24 California law, e) ignoring evidence that contradicted its 25 findings, f) depriving Petitioner of his protected liberty 26 interests in parole in violation of Cal. Pen. Code § 3041, g) 27 failing to set a parole release date even though both the minimum 28 and maximum release dates had passed, and h) relying solely on 3 1 unchanging factors of the commitment offense and past substance 2 abuse despite evidence of no violence or substance abuse during 3 incarceration; 3) the BPH’s denial of parole when the maximum and 4 minimum parole release dates had passed violated the Eighth 5 Amendment’s prohibition of cruel and unusual punishment; 4) the 6 BPH’s application to Petitioner of Proposition 9, which increases 7 the minimum parole deferral period and the default maximum 8 deferral period and limits the BPH’s discretion to reduce the 9 maximum deferral period, violates the prohibition against ex post 10 facto laws because Petitioner was convicted before it took 11 effect; and 5) parole was denied on the basis of “underground 12 discriminatory practice of SHU status” (id. at 8). 13 (Pet. 1-52.) Petitioner requests that he be released and the “excess” 14 (pet. at 52) time spent in prison since the parole hearing held 15 on August 1, 2007, which was previously declared unconstitutional 16 by this Court, be deducted from his parole period; this Court’s 17 earlier order regarding a new hearing be enforced; the 1992 18 probation officer’s report and the 2009 psychological reports, as 19 well as all references to them, be expunged; the application of 20 Proposition 9 to Petitioner be prohibited; the California 21 Department of Corrections and Rehabilitation (CDCR) and the BPH 22 be ordered to cease the discriminatory practice of denying parole 23 to life inmates because of segregated placement; and an 24 evidentiary hearing be ordered. 25 Reference to the transcript of the parole suitability 26 hearing held before a panel of commissioners of the BPH on 27 December 7, 2009, reflects that Petitioner appeared before a 28 panel of commissioners of the BPH with counsel, who advocated on 4 1 his behalf; further, Petitioner was given an opportunity to 2 correct or clarify the record, answered questions from the 3 commissioners under oath, and made a personal statement regarding 4 his suitability. 5 214-221.) 6 him the procedures and his rights concerning the parole hearings, 7 and he confirmed that Petitioner or his counsel were given all 8 the documentation on the panel’s checklist. 9 54.) (Doc. 1-1, 130-223, 134, 138, 149-205, 208-14, Petitioner stated that his counsel had reviewed with (Id. at 139-40, 153- Counsel objected to use of the 2009 psychological report 10 because it was prepared so close to the time of the hearing, and 11 because Petitioner declined to participate in the review process, 12 he had not had a chance to clarify or address the clinician’s 13 concerns. 14 the probation officer’s report used at Petitioner’s sentencing 15 because Petitioner did not have an opportunity to read it before 16 the judge approved it, and to Petitioner’s having been validated 17 as a prison gang member. 18 (Id. at 141-44.) There was also objection to use of (Id. at 145-46.) Petitioner was present when the panel announced the reasons 19 for its finding that Petitioner was unsuitable for parole and 20 would not be considered again for four years because he would 21 pose an unreasonable risk of danger to society or a threat to 22 public safety if released from prison, which included 23 Petitioner’s extensive and serious misconduct while in prison, 24 which caused concern that Petitioner could not follow the rules 25 and conditions of parole; the commitment offense, in which 26 Petitioner inflicted without any apparent motive thirteen stab 27 wounds, including wounds to the back of a vulnerable, unarmed, 28 intoxicated victim; Petitioner’s criminal history and unstable 5 1 social history; his failure on previous grants of probation and 2 parole; a psychological report of 2009 which was not totally 3 supportive of release; failure to participate sufficiently in 4 beneficial self-help concerning substance abuse; and his attitude 5 towards the crime, including denying culpability for the offense 6 and lack of insight into the factors causing his criminal 7 conduct. (Id. at 224-34, 205-07.) 8 III. 9 Because the petition was filed after April 24, 1996, the Denial of Access to the Courts 10 effective date of the Antiterrorism and Effective Death Penalty 11 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 12 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 13 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 14 A district court may entertain a petition for a writ of 15 habeas corpus by a person in custody pursuant to the judgment of 16 a state court only on the ground that the custody is in violation 17 of the Constitution, laws, or treaties of the United States. 28 18 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 19 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 20 16 (2010) (per curiam). 21 Title 28 U.S.C. § 2254 provides in pertinent part: 22 (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– 23 24 25 27 (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 28 (2) resulted in a decision that was based on an 26 6 Lindh 1 2 unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 3 Clearly established federal law refers to the holdings, as 4 opposed to the dicta, of the decisions of the Supreme Court as of 5 the time of the relevant state court decision. 6 Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. 7 Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 8 362, 412 (2000). 9 principles set forth by the Supreme Court at the pertinent time. 10 11 Cullen v. It is thus the governing legal principle or Lockyer v. Andrade, 538 U.S. 71-72. To the extent that Petitioner complains of the state court’s 12 procedures of failing to order prison authorities to copy a 13 record of Petitioner’s parole proceedings for the purpose of 14 permitting Petitioner to bring a petition for writ of habeas 15 corpus, the Court notes preliminarily that the documentation 16 submitted in support of the petition reveals that Petitioner 17 received a copy of the proceedings, and the allegedly offensive 18 prison rule or policy that limited the provision of copies was 19 repealed. 20 moot in the sense that this Court could not order any effective 21 relief. (Id. at 46-50.) It thus appears that the claim is 22 Further, Petitioner has not cited any authority, and the 23 Court is aware of none, that Petitioner is entitled to counsel in 24 a state court habeas proceeding for review of a denial of parole. 25 In any event, Petitioner’s claim is not cognizable in this 26 proceeding. 27 state issue that does not rise to the level of a federal 28 constitutional violation. Federal habeas relief is not available to retry a Wilson v. Corcoran, 562 U.S. — , 131 7 1 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 2 (1991). 3 cognizable in federal habeas corpus. 4 616, 623 (9th Cir. 2002). 5 habeas relief is not available to redress procedural errors in 6 the state collateral review process. 7 923, 939 (9th Cir. 1998) (claim concerning the alleged bias of a 8 judge in a second post-conviction proceeding for relief); 9 Carriger v. Stewart, 95 F.3d 755, 763 (9th Cir. 1996), vacated on Alleged errors in the application of state law are not Souch v. Schiavo, 289 F.3d Thus, it is established that federal Ortiz v. Stewart, 149 F.3d 10 other grounds, Carriger v. Stewart, 132 F.3d 463 (1997) (Brady 11 claim in post-conviction proceedings); Franzen v. Brinkman, 877 12 F.2d 26, 26 (9th Cir. 1989) (claim that a state court’s delay in 13 deciding a petition for post-conviction relief violated due 14 process rights). 15 Further, to the extent that Petitioner contends that the 16 rule obstructed his access to the courts, Petitioner’s complaint 17 concerns not matters that affect the legality or duration of his 18 confinement, but rather the conditions of his confinement. 19 established that a habeas corpus petition is the correct method 20 for a prisoner to challenge the legality or duration of his 21 confinement. 22 (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); 23 Advisory Committee Notes to Habeas Rule 1, 1976 Adoption. 24 contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is 25 the proper method for a prisoner to challenge the conditions of 26 that confinement. 27 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; 28 Advisory Committee Notes to Habeas Rule 1, 1976 Adoption. It is Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) In McCarthy v. Bronson, 500 U.S. 136, 141-42 8 1 Therefore, Petitioner’s claim concerning access to the 2 courts must be dismissed. 3 pleading is based on the nature of the claim, Petitioner could 4 not state a tenable claim of denial of access to the courts if 5 leave to amend were granted. 6 Because the defect in Petitioner’s Accordingly, it will be recommended that the claim be 7 dismissed without leave to amend. 8 by filing a civil rights complaint pursuant to 42 U.S.C. § 1983. 9 IV. 10 11 Petitioner may bring his claim Absence of Some Evidence to Support the Decision A. Due Process To the extent that Petitioner complains that the absence of 12 “some evidence” to support the BPH’s finding violated his right 13 to due process of law, Petitioner fails to state a tenable due 14 process claim. 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 9 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 retrospective 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. 10 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 the appropriate weight 11 or significance to be given to evidence that was before the BPH. 12 Petitioner further contends that the BPH denied due process by 13 relying on the commitment offense and past substance abuse 14 instead of weighing other evidence that tended to show that 15 Petitioner had not committed violent offenses or engaged in 16 substance abuse in prison. 17 or claims rest on state law, they are not cognizable on federal 18 habeas corpus. 19 state issue that does not rise to the level of a federal 20 constitutional violation. 21 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 22 (1991). 23 cognizable in federal habeas corpus. 24 616, 623 (9th Cir. 2002). 25 26 27 28 To the extent that Petitioner’s claim Federal habeas relief is not available to retry a Wilson v. Corcoran, 562 U.S. — , 131 Alleged errors in the application of state law are not Souch v. Schiavo, 289 F.3d Accordingly, Petitioner’s due process claim must be dismissed. Because the defect in the claim proceeds from the nature of the claim and not a dearth of factual allegations, it does not 11 1 appear that Petitioner could state a tenable due process claim 2 concerning the evidence if leave to amend were granted. 3 will be recommended that the claim be dismissed without leave to 4 amend. 5 6 B. Thus, it Equal Protection Petitioner alleges generally that the failure to make or 7 order copies of the record of his parole proceedings for him 8 deprived him of the equal protection of the laws. 9 Prisoners are protected under the Equal Protection Clause of 10 the Fourteenth Amendment from invidious discrimination based on 11 race, religion, or membership in a protected class subject to 12 restrictions and limitations necessitated by legitimate 13 penological interests. 14 (1974); Bell v. Wolfish, 441 U.S. 520, 545-46 (1979). 15 Protection Clause essentially directs that all persons similarly 16 situated should be treated alike. 17 Cleburne Living Center, 473 U.S. 432, 439 (1985). 18 equal protection are shown when a respondent intentionally 19 discriminates against a petitioner based on membership in a 20 protected class, Lee v. City of Los Angeles, 250 F.3d 668, 686 21 (9th Cir. 2001), or when a respondent intentionally treats a 22 member of an identifiable class differently from other similarly 23 situated individuals without a rational basis, or a rational 24 relationship to a legitimate state purpose, for the difference in 25 treatment, Village of Willowbrook v. Olech, 528 U.S. 562, 564 26 (2000); Engquist v. Oregon Department of Agriculture, 553 U.S. 27 591, 601-02 (2008). 28 Wolff v. McDonnell, 418 U.S. 539, 556 The Equal City of Cleburne, Texas v. Violations of Here, Petitioner has not alleged that membership in a 12 1 protected class was the basis of any alleged discrimination. 2 Petitioner has not alleged that there was any invidiousness or 3 any intentional treatment of Petitioner that was different from 4 treatment of any similarly situated individuals, or that any such 5 treatment lacked a rational basis, or a rational relationship to 6 a legitimate state purpose, for the difference in treatment. 7 Instead, Petitioner premises his claim upon the absence of 8 evidence to support the suitability decision. 9 It may be that Petitioner is arguing that he was denied the 10 equal protection of the laws because under the circumstances of 11 his commitment offense and his personal history, he presented no 12 risk to society, and yet he was denied release even though he had 13 served over twenty years for second degree murder. 14 may be attempting to argue that he has served a longer sentence 15 than some prisoners who have been convicted of more serious 16 offenses. 17 Petitioner However, Petitioner has not alleged or shown that with 18 respect to all pertinent factors of parole suitability, he is 19 similarly situated with others who may have served less time 20 after conviction of murder. 21 Legislation that discriminates based on characteristics 22 other than race, alienage, national origin, and sex is presumed 23 to be valid and need only be rationally related to a legitimate 24 state interest in order to survive an equal protection challenge. 25 City of Cleburne, 473 U.S. at 440. 26 for parole are not a suspect class entitled to heightened 27 scrutiny. 28 1989) (prisoners not a suspect class). Prisoners who are eligible See, Mayner v. Callahan, 873 F.2d 1300, 1302 (9th Cir. 13 Furthermore, public 1 safety is a legitimate state interest. 2 158 F.3d 460, 461 (9th Cir. 1998) (health and safety are 3 legitimate state interests). 4 suitability for parole is dependent upon the effect of the 5 prisoner’s release on the public safety. 6 § 3041(b) (mandating release on parole unless the public safety 7 requires a more lengthy period of incarceration). 8 parole system is thus both intended and applied to promote the 9 legitimate state interest of public safety. See, Webber v. Crabtree, Under California law, a prisoner’s Cal. Pen. Code California’s See, Webber v. 10 Crabtree, 158 F.3d at 461. 11 suggested how the decision in the present case could have 12 constituted a violation of equal protection of the laws. 13 Petitioner has not shown or even Further, the Court notes that parole consideration is 14 discretionary and does not provide the basis of a fundamental 15 right. 16 1989). 17 18 19 Mayner v. Callahan, 873 F.2d 1300, 1301-02 (9th Cir. The Court concludes that Petitioner’s claim should be dismissed. The full record of Petitioner’s parole proceedings is before 20 the Court and reveals no facts to support a conclusion that if 21 leave to amend were granted, Petitioner could state a tenable 22 equal protection claim. 23 Petitioner’s equal protection claim be dismissed without leave to 24 amend. Thus it will be recommended that 25 V. 26 In a previous proceeding in this Court, the BPH was ordered Miscellaneous Due Process Claims 27 in 2009 to give Petitioner a new parole hearing because 28 Petitioner had been ill on the date of a parole hearing that was 14 1 held in August 2007. 2 argues that this Court’s order was disregarded because the 3 rehearing he received pursuant to that direction, namely, the 4 hearing held in December 2009 that is challenged in this 5 proceeding, violated his right to due process of law in various 6 respects. 7 (Pet., doc. 1, 22, 143-54.) Petitioner Petitioner complains that he was deprived of a meaningful 8 opportunity to be heard regarding a psychological evaluation in 9 which he refused to participate because it was set about two 10 weeks before, and thus too close to, the parole rehearing date as 11 it was initially set. 12 right to have a psychological evaluation provided at any 13 particular time or with any particular period of notice in 14 relation to a parole hearing. 15 that any prejudice resulted from the timing of the evaluation, in 16 which Petitioner declined to participate. 17 However, there is no federally recognized Further, Petitioner has not shown Petitioner further contends that the BPH failed to report or 18 document errors in the report of the 2009 psychological 19 evaluation and erred in relying on it because it was unreliable. 20 Petitioner complains that the BPH ignored evidence that 21 contradicted its findings, wrongly considered and relied upon the 22 unreliable report of the probation officer that was prepared for 23 the sentencing hearing held in connection with the commitment 24 offense, and wrongly relied on the unchanging factor of the 25 commitment offense and Petitioner’s history of criminal behavior 26 and substance abuse. 27 Petitioner is asking this Court to review the state court’s 28 application of the “some evidence” standard, which is not within With respect to these allegations, 15 1 the scope of this Court’s review in a proceeding pursuant to 2 § 2254. 3 To the extent the Petitioner relies on state law in 4 connection with his contention that the finding of unsuitability 5 was not supported by some evidence, Petitioner likewise fails to 6 state a claim that is cognizable in this proceeding. 7 With respect to procedural due process, the record reflects 8 that Petitioner or his counsel were given access to the pertinent 9 records in advance, were allowed to speak at the hearing and to 10 contest the evidence against Petitioner, and Petitioner was 11 notified as to the reasons why parole was denied. 12 Petitioner received all process that was due. 13 14 Thus, Accordingly, it will be recommended that these claims be dismissed without leave to amend. 15 VI. 16 Petitioner argues that his right to due process of law was The Passing of Petitioner’s Release Dates 17 violated by the failure to release him on parole even though both 18 his minimum and maximum release dates had passed. 19 argues that this denied him his liberty interest guaranteed by 20 Cal. Pen. Code § 3041. 21 Petitioner To the extent that Petitioner relies on state law, 22 Petitioner’s claim should be dismissed without leave to amend as 23 not cognizable in this proceeding. 24 Petitioner contends that the failure to release him violated 25 the Eight Amendment’s prohibition of cruel and unusual 26 punishment. 27 It is established that there is no right under the Federal 28 Constitution to be conditionally released before the expiration 16 1 of a valid sentence, and the states are under no duty to offer 2 parole to their prisoners. 3 A criminal sentence that is “grossly disproportionate” to the 4 crime for which a defendant is convicted may violate the Eighth 5 Amendment. 6 v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring); 7 Rummel v. Estelle, 445 U.S. 263, 271 (1980). 8 capital punishment context, the Eighth Amendment prohibits only 9 sentences that are extreme and grossly disproportionate to the Swarthout v. Cooke, 131 S.Ct. at 862. Lockyer v. Andrade, 538 U.S. 63, 72 (2003); Harmelin Outside of the 10 crime. 11 (quoting Harmelin v. Michigan, 501 U.S. 957, 1001, (1991) 12 (Kennedy, J., concurring)). 13 rare” and occur in only “extreme” cases. 14 U.S. at 72-73; Rummel, 445 U.S. at 272. 15 does not exceed statutory maximums, it will not be considered 16 cruel and unusual punishment under the Eighth Amendment. 17 United States v. Mejia-Mesa, 153 F.3d 925, 930 (9th Cir.1998); 18 United States v. McDougherty, 920 F.2d 569, 576 (9th Cir. 1990). United States v. Bland, 961 F.2d 123, 129 (9th Cir. 1992) Such instances are “exceedingly Lockyer v. Andrade, 538 So long as a sentence See 19 In California, Petitioner’s offense, second degree murder, 20 is generally punished by imprisonment in the state prison for a 21 term of fifteen (15) years to life. 22 Pursuant to California law, it is established that an 23 indeterminate life sentence is in legal effect a sentence for the 24 maximum term of life. 25 (1969). 26 life term in state prison is not entitled to release on parole 27 until he is found suitable for such release by the Board of 28 Parole Hearings (previously, the Board of Prison Terms). Cal. Pen. Code § 190(a). People v. Dyer, 269 Cal.App.2d 209, 214 Generally, a convicted person serving an indeterminate 17 Cal. 1 Pen. Code § 3041(b); Cal. Code of Regs., tit. 15, § 2402(a). 2 Under California’s Determinate Sentencing Law, an inmate such as 3 Petitioner who is serving an indeterminate sentence for murder 4 may serve up to life in prison, but he does not become eligible 5 for parole consideration until the minimum term of confinement is 6 served. 7 actual confinement period of a life prisoner is determined by an 8 executive parole agency. 9 10 11 In re Dannenberg, 34 Cal.4th 1061, 1078 (2005). The Id. (citing Cal. Pen. Code § 3040). Thus, Petitioner’s sentence has not exceeded the statutory maximum. Accordingly, Petitioner has not stated facts that would 12 entitle him to relief in a proceeding pursuant to § 2254 under 13 the Eighth Amendment’s prohibition against cruel and unusual 14 punishment. 15 does not appear that Petitioner could allege a tenable cruel and 16 unusual punishment claim. 17 18 In view of the pertinent state statutory scheme, it Therefore, it will be recommended that Petitioner’s cruel and unusual punishment claim be dismissed without leave to amend. 19 VII. 20 Petitioner argues that Proposition 9 was applied to him in 21 22 Ex Post Facto violation of the prohibition against ex post facto laws. Petitioner’s contention concerns California’s Proposition 9, 23 the “Victims’ Bill of Rights Act of 2008: Marsy’s Law,” which on 24 November 4, 2008, effected an amendment of Cal. Pen. Code 25 § 3041.5(b)(3) that resulted in a lengthening of the periods 26 between parole suitability hearings. 27 28 The Constitution provides, “No State shall... pass any... ex post facto Law.” U.S. Const. art I, § 10. 18 The Ex Post Facto 1 Clause prohibits any law which: 1) makes an act done before the 2 passing of the law, which was innocent when done, criminal; 2) 3 aggravates a crime and makes it greater than it was when it was 4 committed; 3) changes the punishment and inflicts a greater 5 punishment for the crime than when it was committed; or 4) alters 6 the legal rules of evidence and requires less or different 7 testimony to convict the defendant than was required at the time 8 the crime was committed. 9 (2000). Carmell v. Texas, 529 U.S. 513, 522 Application of a state regulation retroactively to a 10 defendant violates the Ex Post Facto Clause if the new 11 regulations create a “sufficient risk” of increasing the 12 punishment for the defendant’s crimes. 13 F.3d 848, 854 (9th Cir. 2003) (citing Cal. Department of 14 Corrections v. Morales, 514 U.S. 499, 509 (1995)). 15 or statute does not by its own terms show a significant risk, the 16 claimant must demonstrate, by evidence drawn from the rule's 17 practical implementation by the agency charged with exercising 18 discretion, that its retroactive application will result in a 19 longer period of incarceration than under the earlier rule. 20 Garner v. Jones, 529 U.S. 244, 250, 255 (2000). 21 Himes v. Thompson, 336 When the rule Previous amendments to Cal. Pen. Code § 3041.5, which 22 initiated longer periods of time between parole suitability 23 hearings, have been upheld against challenges that they violated 24 the Ex Post Facto Clause. 25 Corrections v. Morales, 514 U.S. 499, 509 (1995); 26 Estelle, 886 F.2d 1093, 1097-98 (9th Cir. 1989). 27 has been held that a state law permitting the extension of 28 intervals between parole consideration hearings for all prisoners See, e.g., California Department of 19 Watson v. Similarly, it 1 serving life sentences from three to eight years did not violate 2 the Ex Post Facto Clause where expedited parole review was 3 available upon a change of circumstances or receipt of new 4 information warranting an earlier review, and where there was no 5 showing of increased punishment. 6 was no significant risk of extending a prisoner’s incarceration. 7 Garner v. Jones, 529 U.S. at 249. 8 Under such circumstances, there In Gilman v. Schwarzenegger, 638 F.3d 1101, 1109-11 (9th 9 Cir. 2011), the Ninth Circuit reversed a grant of injunctive 10 relief to plaintiffs in a class action seeking to prevent the 11 board from enforcing Proposition 9's amendments that defer parole 12 consideration. 13 Proposition 9 were noted to be more extensive than those before 14 the Court in Morales and Garner; however, advanced hearings, 15 which would remove any possibility of harm, were available upon a 16 change in circumstances or new information. 17 concluded that in the absence of facts in the record from which 18 it might be inferred that Proposition 9 created a significant 19 risk of prolonging Plaintiffs’ incarceration, the plaintiffs had 20 not established a likelihood of success on the merits on the ex 21 post facto claim. 22 The court noted that the changes wrought by Id. The Court Id. at 1110-11. This Court may take judicial notice of court records. Fed. 23 R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 24 (9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 25 635 n.1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981). 26 The Court takes judicial notice of the docket and specified 27 orders in the class action pending in this district, Gilman v. 28 Fisher, 2:05-cv-00830-LKK-GGH, including the order granting 20 1 motion for class certification filed on March 4, 2009 (Doc. 182, 2 9:7-15), which indicates that the Gilman class is made up of 3 California state prisoners who 1) have been sentenced to a term 4 that includes life, 2) are serving sentences that include the 5 possibility of parole, 3) are eligible for parole, and 4) have 6 been denied parole on one or more occasions. 7 reflects that the Ninth Circuit affirmed the order certifying the 8 class. 9 of the order of May 31, 2012, in which the Court described the (Docs. 257, 258.) The docket further The Court also takes judicial notice 10 case as including in claim 8 challenges to Proposition 9's 11 deferral provisions based on the Ex Post Facto Clause, and the 12 Court denied a motion for judgment on the pleadings with respect 13 to that claim. 14 concerning claim 8 as “all California state prisoners who have 15 been sentenced to a life term with the possibility of parole for 16 an offense that occurred before November 4, 2008.” 17 (Doc. 420, 1-2.) The Court described the class (Id. at 2.) Although Petitioner ultimately seeks release from custody, 18 resolution of Petitioner’s claim might well involve the 19 scheduling of Petitioner’s next suitability hearing and the 20 invalidation of state procedures used to deny parole suitability, 21 matters removed from the fact or duration of confinement. 22 types of claims have been held to be cognizable under 42 U.S.C. 23 § 1983 as claims concerning conditions of confinement. 24 v. Dotson, 544 U.S. 74, 82 (2005). 25 the core of habeas corpus relief. 26 U.S. 475, 485-86 (1973); Nelson v. Campbell, 541 U.S. 637, 643 27 (2004); Muhammad v. Close, 540 U.S. 749, 750 (2004). 28 Such Wilkinson Thus, they may fall outside See, Preiser v. Rodriguez, 411 Further, the relief Petitioner requests overlaps with the 21 1 relief requested in the Gilman class action. 2 that a plaintiff who is a member of a class action for equitable 3 relief from prison conditions may not maintain an individual suit 4 for equitable relief concerning the same subject matter. 5 Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979). 6 because it is contrary to the efficient and orderly 7 administration of justice for a court to proceed with an action 8 that would possibly conflict with or interfere with the 9 determination of relief in another pending action, which is 10 11 It is established This is proceeding and in which the class has been certified. Here, Petitioner’s own allegations reflect that he qualifies 12 as a member of the class in Gilman. 13 jurisdiction over the same subject matter and may grant the same 14 relief. 15 disposition of its cases with economy of time and effort for both 16 the court and the parties. 17 U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 18 (9th Cir. 1992). 19 this Court concludes that dismissal of Petitioner’s ex post facto 20 claim in this action is appropriate and necessary to avoid 21 interference with the orderly administration of justice. 22 Crawford v. Bell, 599 F.2d 890, 892-93; see Bryant v. Haviland, 23 2011 WL 23064, *2-*5 (E.D.Cal. Jan. 4, 2011). The court in Gilman has A court has inherent power to control its docket and the Landis v. North American Co., 299 In the exercise of its inherent discretion, Cf., 24 A petition for habeas corpus should not be dismissed without 25 leave to amend unless it appears that no tenable claim for relief 26 can be pleaded were such leave granted. 27 F.2d 13, 14 (9th Cir. 1971). 28 petition and the pendency of the Gilman class action, amendment Jarvis v. Nelson, 440 In view of the allegations of the 22 1 of the petition with respect to the ex post facto claim would be 2 futile. 3 4 Accordingly, it will be recommended that Petitioner’s ex post facto claim be dismissed without leave to amend. 5 VIII. 6 Petitioner alleges generally that parole was denied on the Discrimination 7 basis of “underground discriminatory practice of SHU status.” 8 (Pet. 8.) 9 10 This claim is unclear. The matter of assigning suspected gang affiliates to SHU is 11 not disciplinary, but rather is an administrative strategy to 12 preserve order in the prison and protect safety of all inmates, 13 matters essentially within the administrative discretion of 14 prison authorities. 15 Cir. 1997). 16 that the BPH denied parole based on Petitioner’s status as an 17 administratively segregated inmate who had been validated as a 18 gang member. 19 findings reflects that the BPH considered Petitioner’s efforts to 20 engage in programming in the context of his segregated housing. 21 The BPH concluded that Petitioner continued to display negative 22 behavior while incarcerated, and as a result was placed in 23 special housing where program participation was limited and the 24 ability to demonstrate parole readiness was hampered. 25 noted that Petitioner did complete some self-help programming 26 despite having been in the security housing unit, which was 27 commendable; however, the BPH concluded that Petitioner had not 28 sufficiently participated in beneficial self-help, specifically, Munoz v. Rowland, 104 F.3d 1096, 1098 (9th Petitioner has alleged no facts that would indicate Instead, the statement of reasons for the BPH’s 23 The BPH 1 2 substance abuse programming. (Pet., doc. 1-1, 229-34.) The record precludes Petitioner from being able to state a 3 tenable claim of discrimination based on Petitioner’s housing 4 status. 5 6 7 8 9 10 Accordingly, it will be recommended that the claim be dismissed without leave to amend. In summary, it will be recommended that the petition be dismissed without leave to amend. IX. Certificate of Appealability Unless a circuit justice or judge issues a certificate of 11 appealability, an appeal may not be taken to the Court of Appeals 12 from the final order in a habeas proceeding in which the 13 detention complained of arises out of process issued by a state 14 court. 15 U.S. 322, 336 (2003). 16 only if the applicant makes a substantial showing of the denial 17 of a constitutional right. 18 petitioner must show that reasonable jurists could debate whether 19 the petition should have been resolved in a different manner or 20 that the issues presented were adequate to deserve encouragement 21 to proceed further. 22 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 23 certificate should issue if the Petitioner shows that jurists of 24 reason would find it debatable whether the petition states a 25 valid claim of the denial of a constitutional right and that 26 jurists of reason would find it debatable whether the district 27 court was correct in any procedural ruling. 28 529 U.S. 473, 483-84 (2000). 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 Miller-El v. Cockrell, 537 U.S. at 336 24 A Slack v. McDaniel, 1 In determining this issue, a court conducts an overview of 2 the claims in the habeas petition, generally assesses their 3 merits, and determines whether the resolution was debatable among 4 jurists of reason or wrong. 5 applicant to show more than an absence of frivolity or the 6 existence of mere good faith; however, it is not necessary for an 7 applicant to show that the appeal will succeed. 8 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 9 A district court must issue or deny a certificate of 10 appealability when it enters a final order adverse to the 11 applicant. 12 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 13 debate whether the petition should have been resolved in a 14 different manner. 15 of the denial of a constitutional right. 16 17 Petitioner has not made a substantial showing Accordingly, the Court should decline to issue a certificate of appealability. 18 X. 19 Accordingly, it is RECOMMENDED that: 20 1) The petition be DISMISSED without leave to amend; and 21 2) The Court DECLINE to issues a certificate of 22 Recommendations appealability; and 23 3) 24 These findings and recommendations are submitted to the 25 United States District Court Judge assigned to the case, pursuant 26 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 27 the Local Rules of Practice for the United States District Court, 28 Eastern District of California. The Clerk be DIRECTED to close the case. Within thirty (30) days after 25 1 being served with a copy, any party may file written objections 2 with the Court and serve a copy on all parties. 3 should be captioned “Objections to Magistrate Judge’s Findings 4 and Recommendations.” 5 and filed within fourteen (14) days (plus three (3) days if 6 served by mail) after service of the objections. 7 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 8 § 636 (b)(1)(C). 9 objections within the specified time may waive the right to Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file 10 appeal the District Court’s order. 11 1153 (9th Cir. 1991). 12 13 Martinez v. Ylst, 951 F.2d IT IS SO ORDERED. Dated: 10c20k August 9, 2012 /s/ Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26
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