(HC) Hillary v. Sisto, No. 2:2008cv02503 - Document 24 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 5/2/2011 RECOMMENDING that the 1 petition be denied. Referred to Judge William B. Shubb; Objections due w/in 14 days. (Yin, K)
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(HC) Hillary v. Sisto Doc. 24 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 DAVID HILLARY, 10 11 12 Petitioner, No. CIV S-08-2503 WBS GGH P Respondent. FINDINGS & RECOMMENDATIONS vs. D.K. SISTO, 13 14 / 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas 16 corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the 2007 decision by the California 17 Board of Parole Hearings (BPH) finding him unsuitable for parole. 18 On February 2, 2011, the undersigned ordered both parties to provide briefing 19 regarding the recent United States Supreme Court decision that found that the Ninth Circuit erred 20 in commanding a federal review of the state’s application of state law in applying the “some 21 evidence” standard in the parole eligibility habeas context. Swarthout v. Cooke, 502 U.S. ___, 22 131 S. Ct. 859, 861 (2011).1 23 24 The parties have timely filed briefing, yet for the reasons set forth in the prior order, and notwithstanding petitioner’s argument, it appears there is no federal due process 25 1 26 The earlier citation in the prior order was to Swarthout v. Cooke, 502 U.S. ___, ___ S. Ct. ___, 2011 WL 197627 *2 (Jan. 24, 2011) 1 Dockets.Justia.com 1 requirement for a “some evidence” review, thus the federal courts are precluded from a review of 2 the state court’s application of its “some evidence” standard.2 Petitioner, who pled guilty and 3 was sentenced in 1995 to 20 years to life for second degree murder with use of a firearm, makes 4 the following claims about his parole denial at his initial parole suitability hearing: 1) his liberty 5 interest in parole was denied by BPH absent a preponderance of the evidence; 2) BPH is 6 obligated to set a release date for life term inmates unless an inmate poses a significant public 7 safety risk; 3) & 4) petitioner’s positive efforts, in accordance with parole guidelines, over fifteen 8 years for parole suitability outweigh negative factors; 5) BPH has altered his life sentence to life 9 without the possibility of parole or death, an ex post facto clause violation. Petition, pp. 1-31. 10 As to petitioner’s claims 1 through 4, the gravamen of these claims is an alleged 11 violation of California’s “some evidence” requirement. As to any “some evidence” claim, this 12 court’s review of the BPH hearing transcript confirms that petitioner received all the process that 13 was due in having been “allowed an opportunity to be heard” and “provided a statement of the 14 reasons why parole was denied.” Swarthout, at 862; Answer, docket # 17-1, pp. 31-143, docket 15 # 17-2, pp. 1-52.3 Thus, on his “some evidence” claim, the petition should be denied. 16 As to petitioner’s claim 5, he alleges that when he entered his guilty plea to 17 second degree murder, neither the district attorney nor the sentencing court established that his 18 crime had been committed “in a very cruel, callous and calculated manner,” although the BPH 19 did so determine, thus amounting to an enhancement not found by the court in violation of 20 2 21 22 23 24 25 26 The court notes some perversity in the result here. Loss of good-time credits, even for a day, pursuant to decision at a prison disciplinary hearing, must be supported by “some evidence.” Superintendent v. Hill, 472 U.S. 445, 455, 105 S. Ct. 2768 (1985). Assignment to administrative segregation requires the same “some evidence” before such an assignment can be justified. Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir.2003). However, a denial of parole eligibility after sometimes decades in prison, and where another opportunity for parole can be delayed for as long as fifteen more years, requires no such protection from the federal due process standpoint. Nevertheless, such is the state of the law. 3 The BPH transcript was also attached, in a somewhat haphazard fashion, to the Petition (docket # 1), pp. 35-81, 114-131, 133-136, 138-168, 170-194, 197-204; (docket # 1-1), pp. 2023, 25, 29, 34-52, 54-64. 2 1 petitioner’s Sixth Amendment right.4 Petition, p. 20. Petitioner cites Apprendi v. New Jersey, 2 530 U.S. 466, 490, 120 S. Ct. 2348 (2000) (“Other than the fact of a prior conviction, any fact 3 that increases the penalty for a crime beyond the prescribed statutory maximum must be 4 submitted to a jury, and proved beyond a reasonable doubt”); Blakely v. Washington, 542 U.S. 5 296, 124 S. Ct. 2531 (2004); and Cunningham v. California, 6 Apprendi and its progeny do not apply because, with death of a peace officer 7 exceptions not relevant here, the invariable sentence is 15 years to life. Cal. Penal Code § 8 190(a).5 This is the alpha and omega of the resolution here. Petitioner mistakes the BPH as part 9 of the judicial system involved in sentencing. It is not. It is a state agency tasked with reviewing 10 parole eligibility which may take into account a myriad of discretionary factors. Nothing in 11 Apprendi or Blakely applies to such agency decision making. Nor is there any fact finding 12 involved in setting the sentence for second degree murder. Once the jury has convicted a 13 defendant of second degree murder, the term of imprisonment is 15 years to life (plus any 14 applicable statutory enhancements which may, or may not, involve Apprendi issues). The term is 15 15 years to life regardless of the particular circumstances of the crime such as callousness, cruelty 16 and the like. 17 4 18 19 20 21 22 23 24 25 26 Petitioner notes that the BPH referred to his having been convicted of first degree murder, when he had pled to second degree murder. Petition, p. 21, citing BPH transcript at 37, 39 of Petition. It is unclear from the court’s review why either petitioner or his counsel, who apparently had an ample opportunity to speak, including lodging objections, did not correct this error. More significant, however, is the fact that in finding that the BPH met the “some evidence” standard in denying petitioner parole, the state superior court accurately noted that petitioner’s commitment offense was second degree murder with a weapon enhancement. Docket 17-3, pp. 2-5 (Exhibit 2 to Answer). In Ylst, the Supreme Court applied the following presumption: “Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590 (1991). Therefore, the silent denials of the state Court of Appeals and Supreme courts are presumed to rest on the lower court’s analysis and that analysis cannot be said to be an unreasonable application of clearly established Supreme Court law. 5 “Except as provided in subdivision (b), (c), or (d), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.” Cal. Penal Code § 190(a), in relevant part. 3 1 2 There being no ground upon which petitioner can proceed, this petition should be denied. 3 Accordingly, IT IS HEREBY RECOMMENDED that the petition be denied. 4 If petitioner files objections, he shall also address if a certificate of appealability 5 should issue and, if so, as to which issues. A certificate of appealability may issue under 28 6 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 7 constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate 8 which specific issue or issues satisfy” the requirement. 28 U.S.C. § 2253(c)(3). 9 These findings and recommendations are submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 11 days after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 14 shall be served and filed within fourteen days after service of the objections. The parties are 15 advised that failure to file objections within the specified time may waive the right to appeal the 16 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 DATED: May 2, 2011 18 /s/ Gregory G. Hollows ___________________________________ GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 19 20 GGH:009 hill2503.fr 21 22 23 24 25 26 4