(HC)Moore v. Hartley, No. 1:2013cv00883 - Document 5 (E.D. Cal. 2013)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Writ of Habeas Corpus Without Leave to Amend, Decline to Issue a Certificate of Appealability, and Direct the Clerk to Close the Case signed by Magistrate Judge Sheila K. Oberto on 7/15/2013. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 8/19/2013. (Sant Agata, S)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 MICHAEL MOORE, Case No. 1:13-cv-00883-LJO-SKO-HC 12 FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS WITHOUT LEAVE TO AMEND (DOC. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE 13 Petitioner, v. 14 15 JAMES D. HARTLEY, Warden, Respondent. 16 OBJECTIONS DEADLINE: 30 DAYS 17 18 19 20 Petitioner is a state prisoner proceeding pro se with a 21 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 22 The matter has been referred to the Magistrate Judge pursuant to 28 23 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before 24 the Court is the petition, which was filed on June 12, 2013. 25 I. Screening the Petition 26 Rule 4 of the Rules Governing ' 2254 Cases in the United States 27 District Courts (Habeas Rules) requires the Court to make a 28 preliminary review of each petition for writ of habeas corpus. The 1 1 Court must summarily dismiss a petition "[i]f it plainly appears 2 from the petition and any attached exhibits that the petitioner is 3 not entitled to relief in the district court....@ Habeas Rule 4; 4 O=Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also 5 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 6 2(c) requires that a petition 1) specify all grounds of relief 7 available to the Petitioner; 2) state the facts supporting each 8 ground; and 3) state the relief requested. Notice pleading is not 9 sufficient; the petition must state facts that point to a real 10 possibility of constitutional error. Rule 4, Advisory Committee 11 Notes, 1976 Adoption; O=Bremski v. Maass, 915 F.2d at 420 (quoting 12 Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). Allegations in 13 a petition that are vague, conclusory, or palpably incredible are 14 subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 15 491. 16 The Court may dismiss a petition for writ of habeas corpus 17 either on its own motion under Habeas Rule 4, pursuant to the 18 respondent's motion to dismiss, or after an answer to the petition 19 has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 20 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 21 2001). However, a petition for habeas corpus should not be 22 dismissed without leave to amend unless it appears that no tenable 23 claim for relief can be pleaded were such leave granted. Jarvis v. 24 Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 25 Here, Petitioner alleges that he is serving a sentence of 26 fifteen years to life imposed in the Superior Court of the State of 27 California, County of Los Angeles, on January 12, 1982, for second 28 degree murder. (Pet., doc. 1, 9-10.) 2 Petitioner challenges a 1 decision of California’s Board of Parole Hearings (BPH) finding 2 Petitioner unsuitable for parole after a hearing held on March 6, 3 2012. Petitioner raises the following claims in the petition: 1) 4 denial of parole violated Petitioner’s rights under the Due Process 5 Clause of the Fourteenth Amendment because it was arbitrary, 6 capricious, and unfair; 2) the repeated denial of parole constituted 7 cruel and/or unusual punishment under the Constitution and the 8 California Constitution; 3) the repeated denial of parole violated 9 the Equal Protection Clause of the Fourteenth Amendment and the 10 California Constitution; 4) the BPH failed to consider seriously 11 Petitioner’s having taken, albeit belatedly, full responsibility for 12 the crime, and belated acceptance of responsibility did not indicate 13 current dangerousness to the public safety; 5) the current 14 psychological evaluation was fundamentally flawed because it was 15 inaccurate, speculative, and in conflict with previous evaluations; 16 6) the BPH violated Cal. Pen. Code § 3041(b) by relying on arrests 17 that did not result in actual charges or complete prosecutions even 18 though petitioner admitted that one or more were true; 7) the BPH’s 19 consideration of prison rule infractions more than twenty years old 20 while failing to consider relevant information concerning the prison 21 environment concerning inmate behavior violated due process; and 8) 22 the BPH did not meet its burden of proof by a preponderance of the 23 evidence based on the relevant record at the time of the hearing. 24 (Id. at 14-15.) 25 II. State Law Claims 26 Because the petition was filed after April 24, 1996, the 27 effective date of the Antiterrorism and Effective Death Penalty Act 28 of 1996 (AEDPA), the AEDPA applies to the petition. 3 Lindh v. 1 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 2 1499 (9th Cir. 1997). 3 Federal habeas relief is available to state prisoners only to 4 correct violations of the United States Constitution, federal laws, 5 or treaties of the United States. 28 U.S.C. ' 2254(a). Federal 6 habeas relief is not available to retry a state issue that does not 7 rise to the level of a federal constitutional violation. Wilson v. 8 Corcoran, 562 U.S. C , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 9 502 U.S. 62, 67-68 (1991). Alleged errors in the application of 10 state law are not cognizable in federal habeas corpus. Souch v. 11 Schaivo, 289 F.3d 616, 623 (9th Cir. 2002) (an ex post facto claim 12 challenging state court=s discretionary decision concerning 13 application of state sentencing law presented only state law issues 14 and was not cognizable in a proceeding pursuant to 28 U.S.C. 15 ' 2254); Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). 16 Court accepts a state court's interpretation of state law. 17 v. Day, 110 F.3d at 1389. The Langford In a habeas corpus proceeding, this Court 18 is bound by the California Supreme Court=s interpretation of 19 California law unless the interpretation is deemed untenable or a 20 veiled attempt to avoid review of federal questions. Murtishaw v. 21 Woodford, 255 F.3d 926, 964 (9th Cir. 2001). 22 Here, Petitioner’s first three claims (due process, cruel and 23 unusual punishment, and equal protection) are based on the 24 Constitution and the California Constitution. To the extent these 25 claims rest on state constitutional protections, they do not warrant 26 relief in this proceeding pursuant to § 2254, and must be dismissed. 27 Petitioner’s sixth claim concerning a violation of Cal. Pen. 28 Code § 3041(b) rests on a state statute and therefore is not 4 1 cognizable in this proceeding. To the extent Petitioner’s eighth 2 claim concerning the insufficiency of evidence rests on a state law 3 standard for the burden of proof, this claim is not cognizable in 4 this proceeding. Likewise, to the extent that Petitioner’s fourth, 5 fifth, and seventh claims challenge the BPH’s weighing or 6 consideration and evaluation of various items of evidence, 7 Petitioner’s claims necessarily rest on the state law standards for 8 parole suitability determinations. In sum, all these claims suffer 9 from the defect of resting on state and not federal law. 10 Petitioner’s state law claims are defective because of their 11 nature as claims based on state law and not because of a dearth of 12 factual allegations. Thus, Petitioner could not set forth tenable 13 state law claims even if leave to amend were granted. Accordingly, 14 the state law claims should be dismissed without leave to amend. 15 16 17 18 19 20 21 III. Failure to State Cognizable Due Process Claims A. Procedural Due Process The Supreme Court has characterized as reasonable the decision of the Court of Appeals for the Ninth Circuit that California law creates a liberty interest in parole protected by the Fourteenth Amendment Due Process Clause, which requires fair procedures with 22 respect to the liberty interest. 23 131 S.Ct. 859, 861-62 (2011). Swarthout v. Cooke, 562 U.S. B, However, the procedures required for 24 a parole determination are the minimal requirements set forth in 25 Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 26 27 28 5 1 1 U.S. 1, 12 (1979). Swarthout v. Cooke, 131 S.Ct. 859, 862. In 2 Swarthout, the Court rejected inmates’ claims that they were denied 3 4 5 a liberty interest because there was an absence of some evidence to support the decision to deny parole. 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.) 6 7 8 9 10 11 12 13 14 15 Swarthout, 131 S.Ct. 859, 862. The Court concluded that the 16 petitioners had received the process that was due as follows: 17 They were allowed to speak at their parole hearings 18 and to contest the evidence against them, were afforded access to their records in advance, and were notified 19 20 1 In Greenholtz, the Court held that a formal hearing is not required with 21 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 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 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. 22 a statement of reasons for the decision made. 23 24 25 26 27 28 6 1 as to the reasons why parole was denied.... 2 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether [the petitioners] received due process. 3 4 5 Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly noted 6 that California’s “some evidence” rule is not a substantive federal 7 requirement, and correct application of California’s “some evidence” 8 standard is not required by the Federal Due Process Clause. Id. at 9 862-63. 10 Here, in his fourth claim, Petitioner challenges the adequacy 11 of the BPH’s consideration of Petitioner’s acknowledgment of 12 responsibility for his commitment offense and the weight and 13 sufficiency of that evidence in the BPH’s determination that 14 Petitioner remained dangerous to the public safety. Petitioner is 15 raising a “some evidence” claim because he is essentially 16 challenging the sufficiency of the evidence to support the BPH’s 17 finding of dangerousness. 18 In his fifth claim, Petitioner challenges the weight or 19 sufficiency of a psychological evaluation to support a finding of 20 unsuitability. In his seventh claim, Petitioner similarly 21 challenges the BPH’s weighing of twenty-year-old disciplinary 22 offenses in the context of the prison environment, and in his eighth 23 claim, Petitioner directly challenges the weight of the evidence. 24 However, this type of review is foreclosed by Swarthout, which 25 precludes even a review of the state court’s application of the 26 minimal “some evidence” standard. 27 Petitioner does not state facts that point to a real 28 possibility of constitutional error or that otherwise would entitle 7 1 Petitioner to habeas relief because California’s “some evidence” 2 requirement is not a substantive federal requirement. Review of the 3 record for “some evidence” to support the denial of parole is not 4 within the scope of this Court’s habeas review under 28 U.S.C. § 5 2254. 6 A review of the transcript of the parole suitability hearing 7 held on March 6, 2012 (doc. 1, 73-157), reflects that Petitioner was 8 present at the hearing with counsel, who had reviewed all 9 documentation before the hearing. Petitioner testified at length 10 concerning various parole suitability factors, including the facts 11 of the commitment offense; Petitioner’s attitude towards the 12 offense; Petitioner’s programming, behavior, and development in 13 prison; and his parole plans. (Id. at 73, 75, 80-129.) 14 Petitioner’s counsel and Petitioner made closing statements. 15 at 135-44.) (Id. Petitioner was present when the panel announced the 16 reasons for its decision that Petitioner posed an unreasonable risk 17 of danger if released, which included the gravity of the commitment 18 offense (shooting a fourteen-year-old victim without provocation and 19 wounding another person who was present), a psychological evaluation 20 that indicated that Petitioner had limited insight and had not fully 21 identified the causative factors for his criminality, his extensive 22 disciplinary record in prison, and untruthfulness in his statements 23 to the panel and to others inside the prison. 24 It thus appears that Petitioner received all process that was 25 due with respect to the suitability hearing. 26 27 28 (Id. at 145-57, 403.) Although Petitioner contends that the hearing was a pro forma procedure at which the commissioners merely went through the motions to appear to provide 8 1 due process of law, the record of the proceeding submitted by 2 Petitioner demonstrates that he received the appropriate procedures, 3 4 5 6 the panel members considered the pertinent factors of parole suitability, and a decision based on those factors was made and articulated to the Petitioner. The record does not bear out 7 Petitioner’s conclusional assertions concerning the nature of the 8 hearing. 9 10 Accordingly, Petitioner’s fourth, fifth, seventh, and eighth claims should be dismissed without leave to amend. 11 B. 12 13 Substantive Due Process Petitioner argues that the BPH merely went through the motions 14 of procedural due process to reach a preordained result, and thus 15 violated his right to substantive due process of law. Petitioner 16 relies on state regulations that direct the BPH to consider all 17 information that bears on an inmate’s suitability for parole. He 18 argues that the BPH did not consider how his character, attitudes, 19 20 and values had changed, or what influences caused significant change 21 to occur. (Pet., doc. 1, 51-52.) Petitioner argues that the state 22 has no legitimate interest in prolonging incarceration of inmates 23 24 25 26 27 who have served their time and whose post-conviction records strongly suggest they are not unreasonable risks to the public safety. The substantive component of due process protects against 28 governmental interference with those rights “implicit in the concept 9 1 of ordered liberty.” 2 (1937). 3 4 5 6 Palko v. Connecticut, 302 U.S. 319, 324-25 It forbids the government to infringe fundamental liberty interests, such as the right to liberty, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. Reno v. Flores, 507 U.S. 292, 301-02 7 (1993). 8 Petitioner has failed to allege facts warranting a conclusion 9 that the BPH’s decision infringed a federally protected, fundamental 10 11 12 13 right. Petitioner simply concludes that the action of the BPH, which was undertaken in accordance with procedures that satisfied the requirements of procedural due process of law, violated his 14 right to substantive due process of law. Petitioner’s conclusional 15 allegations do not state facts that point to a real possibility of 16 constitutional error. 17 Further, even where state law creates a liberty interest in 18 parole, there is no federal right to be conditionally released 19 20 before the expiration of a valid sentence. Roberts v. Hartley, 640 21 F.3d 1042, 1045 (9th Cir. 2011) (citing Swarthout v. Cooke, 131 22 S.Ct. at 861-62). 23 24 25 26 In Swarthout v. Cooke, the Court unequivocally determined that the Constitution does not impose on the states a requirement that its decisions to deny parole be supported by a particular quantum of evidence, independent of any requirement 27 imposed by state law. Roberts v. Hartley, 640 F.3d at 1046; Pearson 28 v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011). 10 A state’s 1 misapplication of its own laws does not provide a basis for granting 2 a federal writ of habeas corpus. 3 4 5 6 Roberts v. Hartley, 640 F.3d at 1046. Although Petitioner asserts that his claims are based on a right to substantive due process, there is no substantive due 7 process right created by California’s parole scheme; if the state 8 affords the procedural protections required by Greenholtz and 9 Swarthout v. Cooke, the Constitution requires no more. 10 11 12 13 Roberts v. Hartley, 640 F.3d at 1046. Accordingly, Petitioner’s substantive due process claim should be dismissed. Further, because it does not appear that Petitioner 14 could allege a tenable substantive due process claim if leave to 15 amend were granted, the claim will be dismissed without leave to 16 amend. 17 IV. 18 19 Failure to State Facts Showing a Violation of Equal Protection Petitioner argues that the denial of parole resulted in a 20 violation of the equal protection of the law. 21 Prisoners are protected under the Equal Protection Clause of 22 the Fourteenth Amendment from invidious discrimination based on 23 race, religion, or membership in a protected class subject to 24 restrictions and limitations necessitated by legitimate penological 25 interests. Wolff v. McDonnell, 418 U.S. 539, 556 (1974); Bell v. 26 Wolfish, 441 U.S. 520, 545-46 (1979). The Equal Protection Clause 27 essentially directs that all persons similarly situated should be 28 treated alike. City of Cleburne, Texas v. Cleburne Living Center, 11 1 473 U.S. 432, 439 (1985). Violations of equal protection are shown 2 when a respondent intentionally discriminates against a petitioner 3 based on membership in a protected class, Lee v. City of Los 4 Angeles, 250 F.3d 668, 686 (9th Cir. 2001), or when a respondent 5 intentionally treats a member of an identifiable class differently 6 from other similarly situated individuals without a rational basis, 7 or a rational relationship to a legitimate state purpose, for the 8 difference in treatment, Village of Willowbrook v. Olech, 528 U.S. 9 562, 564 (2000); Engquist v. Oregon Department of Agriculture, 553 10 U.S. 591, 601-02 (2008). 11 Here, Petitioner has not alleged that membership in a protected 12 class was the basis of any alleged discrimination. He has not 13 alleged any invidiousness or intentional treatment that was 14 different from treatment of any similarly situated individuals, or 15 that any such treatment lacked a rational basis, or a rational 16 relationship to a legitimate state purpose, for the difference in 17 treatment. Instead, Petitioner appears to base his claim on the 18 absence of evidence to support the suitability decision. 19 Petitioner may be arguing that he was denied the equal 20 protection of the laws because under the circumstances of his 21 commitment offense and his history in prison, he presented no risk 22 to society, and yet he was denied release even though he had served 23 over thirty years for second degree murder. However, Petitioner has 24 neither alleged nor shown that with respect to all pertinent factors 25 of parole suitability, he is similarly situated with others who may 26 have served less time after conviction of murder. 27 Legislation that discriminates based on characteristics other 28 than race, alienage, national origin, and sex is presumed to be 12 1 valid and must only be rationally related to a legitimate state 2 interest in order to survive an equal protection challenge. 3 Cleburne, 473 U.S. at 440. City of Prisoners who are eligible for parole 4 are not a suspect class entitled to heightened scrutiny. See, 5 Mayner v. Callahan, 873 F.2d 1300, 1302 (9th Cir. 1989) (prisoners 6 not a suspect class). 7 state interest. Furthermore, public safety is a legitimate See, Webber v. Crabtree, 158 F.3d 460, 461 (9th 8 Cir. 1998) (health and safety are legitimate state interests). 9 Under California law, a prisoner’s suitability for parole depends on 10 the effect of the prisoner’s release on the public safety. Cal. 11 Pen. Code § 3041(b) (mandating release on parole unless the public 12 safety requires a more lengthy period of incarceration). 13 California’s parole system is thus both intended and applied to 14 promote the legitimate state interest of public safety. 15 v. Crabtree, 158 F.3d at 461. See, Webber Petitioner has neither shown nor even 16 suggested how the decision in the present case could have 17 constituted a violation of equal protection of the laws. 18 Additionally, the Court notes that parole consideration is 19 discretionary and does not provide the basis of a fundamental right. 20 Mayner v. Callahan, 873 F.2d at 1301-02. 21 Here, if leave to amend were granted, Petitioner could not 22 state a tenable equal protection claim based on the BPH’s decision. 23 Petitioner’s claim rests on the specific facts of his case. The 24 Supreme Court has recognized that the parole suitability decision, 25 as distinct from the parole revocation decision, does not lend 26 itself to the type of comparison that Petitioner appears to invite 27 the Court to make: 28 The parole release decision, however, is more subtle and 13 1 2 3 4 5 6 7 8 9 10 11 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 PenoCorrectional Process, 45 Minn.L.Rev. 803, 813 (1961). 12 Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 13 442 U.S. 1, 9-10 (1979). Because parole release determinations are 14 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 with 17 respect to offenses, history, or other parole suitability factors 18 would not be sufficient to entitle him to relief based on the Equal 19 Protection Clause. 20 In sum, Petitioner has failed to set forth specific facts that 21 point to a real possibility of constitutional error based on the 22 Equal Protection Clause of the Fourteenth Amendment. Petitioner 23 could not state a tenable equal protection claim if leave to amend 24 were granted; thus, his equal protection claim should be dismissed 25 without leave to amend. 26 V. 27 Petitioner argues that the denial of parole constituted cruel Cruel and Unusual Punishment 28 and unusual punishment. He alleges he has been confined far beyond 14 1 the maximum term set forth under California law for second degree 2 murder. The Court notes that although Petitioner refers to a 3 history of previous denials of parole, the only decision challenged 4 by Petitioner in the petition before the Court is the decision made 5 after a hearing on March 6, 2012. 6 There is no right under the Federal Constitution to be 7 conditionally released before the expiration of a valid sentence, 8 and the states are under no duty to offer parole to their prisoners. 9 Swarthout v. Cooke, 131 S.Ct. 859, 862. A criminal sentence that is 10 Agrossly disproportionate@ to the crime for which a defendant is 11 convicted may violate the Eighth Amendment. Lockyer v. Andrade, 538 12 U.S. 63, 72 (2003); Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) 13 (Kennedy, J., concurring); Rummel v. Estelle, 445 U.S. 263, 271 14 (1980). Outside of the capital punishment context, the Eighth 15 Amendment prohibits only sentences that are extreme and grossly 16 disproportionate to the crime. United States v. Bland, 961 F.2d 17 123, 129 (9th Cir. 1992) (quoting Harmelin v. Michigan, 501 U.S. 18 957, 1001, (1991) (Kennedy, J., concurring)). Such instances are 19 Aexceedingly rare@ and occur in only Aextreme@ cases. 20 Andrade, 538 U.S. at 72-73; Rummel, 445 U.S. at 272. Lockyer v. So long as a 21 sentence does not exceed statutory maximums, it will not be 22 considered cruel and unusual punishment under the Eighth Amendment. 23 See United States v. Mejia-Mesa, 153 F.3d 925, 930 (9th Cir. 1998); 24 United States v. McDougherty, 920 F.2d 569, 576 (9th Cir. 1990). 25 In California, Petitioner=s offense, second degree murder, is 26 generally punished by imprisonment in the state prison for a term of 27 fifteen (15) years to life. Cal. Pen. Code ' 190(a). An 28 indeterminate life sentence is in legal effect a sentence for the 15 1 maximum term of life. 2 (1969). People v. Dyer, 269 Cal.App.2d 209, 214 Generally, a convicted person serving an indeterminate life 3 term in state prison is not entitled to release on parole until he 4 is found suitable for such release by the Board of Parole Hearings 5 (previously, the Board of Prison Terms). 6 Cal. Code of Regs., tit. 15, § 2402(a). Cal. Pen. Code ' 3041(b); Under California=s 7 Determinate Sentencing Law, an inmate such as Petitioner who is 8 serving an indeterminate sentence for murder may serve up to life in 9 prison, but he does not become eligible for parole consideration 10 until the minimum term of confinement is served. 11 34 Cal.4th 1061, 1078 (2005). In re Dannenberg, The actual confinement period of a 12 life prisoner is determined by an executive parole agency. Id. 13 (citing Cal. Pen. Code ' 3040). Thus, Petitioner=s sentence has not 14 exceeded the statutory maximum. Additionally, a sentence of fifty 15 years to life for murder with use of a firearm is not grossly 16 disproportionate. Plasencia v. Alameida, 467 F.3d 1190, 1204 (9th 17 Cir. 2006). 18 In sum, Petitioner has not stated facts that would entitle him 19 to relief in a ' 2254 proceeding pursuant to the prohibition against 20 cruel and unusual punishment in the Eighth and Fourteenth 21 Amendment=s. In view of the pertinent state statutory scheme, 22 Petitioner could not allege a tenable cruel and unusual punishment 23 claim. Therefore, it will be recommended that Petitioner=s cruel and 24 unusual punishment claim be dismissed without leave to amend. 25 VI. Certificate of Appealability 26 Unless a circuit justice or judge issues a certificate of 27 appealability, an appeal may not be taken to the Court of Appeals 28 from the final order in a habeas proceeding in which the detention 16 1 complained of arises out of process issued by a state court. 28 2 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 3 (2003). A certificate of appealability may issue only if the 4 applicant makes a substantial showing of the denial of a 5 constitutional right. ' 2253(c)(2). Under this standard, a 6 petitioner must show that reasonable jurists could debate whether 7 the petition should have been resolved in a different manner or that 8 the issues presented were adequate to deserve encouragement to 9 proceed further. Miller-El v. Cockrell, 537 U.S. at 336 (quoting 10 Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A certificate should 11 issue if the Petitioner shows that jurists of reason would find it 12 debatable whether: (1) the petition states a valid claim of the 13 denial of a constitutional right, or (2) the district court was 14 correct in any procedural ruling. Slack v. McDaniel, 529 U.S. 473, 15 483-84 (2000). 16 In determining this issue, a court conducts an overview of the 17 claims in the habeas petition, generally assesses their merits, and 18 determines whether the resolution was debatable among jurists of 19 reason or wrong. Id. An applicant must show more than an absence 20 of frivolity or the existence of mere good faith; however, an 21 applicant need not show the appeal will succeed. Miller-El v. 22 Cockrell, 537 U.S. at 338. 23 A district court must issue or deny a certificate of 24 appealability when it enters a final order adverse to the applicant. 25 Rule 11(a) of the Rules Governing Section 2254 Cases. 26 Here, it does not appear that reasonable jurists could debate 27 whether the petition should have been resolved in a different 28 manner. Petitioner has not made a substantial showing of the denial 17 1 of a constitutional right. Accordingly, no certificate of 2 appealability should issue. 3 VII. Recommendations 4 In accordance with the foregoing, it is RECOMMENDED that: 5 1) The petition for writ of habeas corpus be DISMISSED without 6 leave to amend; and 7 2) The Court DECLINE to issue a certificate of appealability; 8 and 3) The Clerk be DIRECTED to close the case because dismissal 9 will terminate the case in its entirety. 10 11 12 13 IT IS SO ORDERED. 14 15 16 Dated: July 15, 2013 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: ie14hje 17 18 19 20 21 22 23 24 25 26 27 28 18
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