(HC) Towns v. Haviland, No. 2:2009cv00559 - Document 15 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 02/09/11 recommending that petitioner's application for a writ of habeas corpus be denied; and the district court decline to issue a certificate of appealability. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)
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(HC) Towns v. Haviland Doc. 15 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 VANDRICK TOWNS, Petitioner, 11 12 13 14 15 16 No. 2:09-cv-0559-JAM-JFM (HC) vs. JOHN W. HAVILAND, Respondent. FINDINGS AND RECOMMENDATIONS / Petitioner is a state prisoner proceeding pro se with an application for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2008 decision of the Board 18 of Parole Hearings (“the Board”) denying him parole. Petitioner also claims that the Board’s 19 decision denying him a parole release date extended his term of imprisonment beyond the 20 statutory maximum term of confinement for his convicted offense based on facts not proven 21 beyond a reasonable doubt. Upon careful consideration of the record and the applicable law, the 22 undersigned recommends that petitioner’s application for habeas corpus relief be denied. 23 24 FACTUAL AND PROCEDURAL BACKGROUND In 1990, petitioner was convicted of second degree murder with use of a firearm 25 and attempted voluntary manslaughter, and sentenced to twenty-two years and six months to life 26 in prison. See Pet. at 2. On June 26, 2008, petitioner appeared before the Board for a parole 1 Dockets.Justia.com 1 consideration hearing. See Pet., Ex. H. Petitioner appeared at and participated in the hearing. 2 See id. at 4. Following deliberations held at the conclusion of the hearing, the Board announced 3 their decision to deny petitioner parole and the reasons for that decision. Id. at 111-120. 4 This action was filed on February 26, 2009. Respondent filed an answer on April 5 24, 2009. Petitioner filed a traverse on May 13, 2009. 6 ANALYSIS 7 I. Standards for a Writ of Habeas Corpus 8 9 Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's adjudication of the claim: 10 (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 11 (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. 12 13 14 28 U.S.C. § 2254(d). Under section 2254(d)(1), a state court decision is “contrary to” clearly 15 16 established United States Supreme Court precedents if it applies a rule that contradicts the 17 governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially 18 indistinguishable from a decision of the Supreme Court and nevertheless arrives at different 19 result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 20 (2000)). 21 Under the “unreasonable application” clause of section 2254(d)(1), a federal 22 habeas court may grant the writ if the state court identifies the correct governing legal principle 23 from the Supreme Court’s decisions, but unreasonably applies that principle to the facts of the 24 prisoner’s case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ 25 simply because that court concludes in its independent judgment that the relevant state-court 26 decision applied clearly established federal law erroneously or incorrectly. Rather, that 2 1 application must also be unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 2 (2003) (it is “not enough that a federal habeas court, in its independent review of the legal 3 question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”). 4 The court looks to the last reasoned state court decision as the basis for the state 5 court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court 6 reaches a decision on the merits but provides no reasoning to support its conclusion, a federal 7 habeas court independently reviews the record to determine whether habeas corpus relief is 8 available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). 9 II. Petitioner’s Claims 10 11 A. Due Process Violation As noted above, petitioner claims that the denial of parole violated his federal 12 constitutional right to due process of law. The Due Process Clause of the Fourteenth 13 Amendment prohibits state action that deprives a person of life, liberty, or property without due 14 process of law. A litigant alleging a due process violation must first demonstrate that he was 15 deprived of a liberty or property interest protected by the Due Process Clause and then show that 16 the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky 17 Dep’t of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989). 18 A protected liberty interest may arise from either the Due Process Clause of the 19 United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 20 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 21 221 (2005) (citations omitted). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). 22 The United States Constitution does not, of its own force, create a protected liberty interest in a 23 parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); 24 Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or 25 inherent right of a convicted person to be conditionally released before the expiration of a valid 26 sentence.”). However, “a state’s statutory scheme, if it uses mandatory language, ‘creates a 3 1 presumption that parole release will be granted’ when or unless certain designated findings are 2 made, and thereby gives rise to a constitutional liberty interest.” Greenholtz, 442 U.S. at 12. 3 See also Allen, 482 U.S. at 376-78. 4 California’s parole statutes give rise to a liberty interest in parole protected by the 5 federal due process clause. Swarthout v. Cooke, 562 U.S. ___ (2011), No. 10-333, 2011 WL 6 197627, at *2 (Jan. 24, 2011). In California, a prisoner is entitled to release on parole unless 7 there is “some evidence” of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 8 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). However, in 9 Swarthout the United States Supreme Court held that “[n]o opinion of [theirs] supports 10 converting California’s ‘some evidence’ rule into a substantive federal requirement.” Swarthout, 11 2011 WL 197627, at *3. Rather, the protection afforded by the federal due process clause to 12 California parole decisions consists solely of the “minimal” procedural requirements set forth in 13 Greenholtz, specifically “an opportunity to be heard and . . . a statement of the reasons why 14 parole was denied.” Id. at *2-3. Here, the record reflects that petitioner was present at the 2008 parole hearing, 15 16 that he participated in the hearing, and that he was provided with the reasons for the Board’s 17 decision to deny parole. According to the United States Supreme Court, the federal due process 18 clause requires no more. Accordingly, petitioner’s application for a writ of habeas corpus should 19 be denied. 20 B. 21 Term of Imprisonment Petitioner also claims that the Board’s decision denying him a parole release date 22 extended his term of imprisonment beyond the statutory maximum term of confinement for his 23 convicted offense based on facts not proven beyond a reasonable doubt. Petitioner's claim must 24 fail because the Board did not, in fact, alter petitioner’s sentence in any way. Petitioner was 25 convicted of second degree murder. Under California law, this crime carries a mandatory 26 penalty of life imprisonment with the possibility of parole, Cal. Penal § 190(a), and this is the 4 1 sentence petitioner is currently serving. While petitioner may have hoped or expected to be 2 released sooner, the maximum duration of his commitment was set at life long before he 3 appeared before the Board. The Board's decision to deny him a parole release date, therefore, 4 did not enhance or otherwise alter his punishment. Consequently, petitioner is not entitled to 5 relief of this claim. Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United 6 7 States District Courts, “[t]he district court must issue or a deny a certificate of appealability 8 when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. A 9 certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a 10 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The court 11 must either issue a certificate of appealability indicating which issues satisfy the required 12 showing or must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). 13 For the reasons set forth in these findings and recommendations, petitioner has not made a 14 substantial showing of the denial of a constitutional right. Accordingly, no certificate of 15 appealability should issue. 16 RECOMMENDED that: For the foregoing reasons, IT IS HEREBY 17 1. Petitioner’s application for a writ of habeas corpus be denied; and 18 2. The district court decline to issue a certificate of appealability. 19 These findings and recommendations are submitted to the United States District 20 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 21 days after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 24 objections shall be filed and served within fourteen days after service of the objections. The 25 ///// 26 ///// 5 1 parties are advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: February 9, 2011. 4 5 6 7 /014;town0559.157 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6
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