(HC) Brandon v. Salinas, No. 2:2010cv01321 - Document 15 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 2/1/11 Recommending that Petitioner's Application for a Writ of Habeas Corpus 1 be DENIED. These Findings and Recommendations are submitted to U.S. District Judge Frank C. Damrell, Jr. Within twenty-one days after being served with these Findings and Recommendations, any party may file written objections with the Court and serve a copy on all parties. (Mena-Sanchez, L)
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(HC) Brandon v. Salinas Doc. 15 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 BRUCE BRANDON, 11 Petitioner, 12 13 vs. S.M. SALINAS, Warden, 14 Respondent. 15 16 No. 2:10-cv-1321 FCD KJN P FINDINGS AND RECOMMENDATIONS / I. Introduction 17 Petitioner is a state prisoner proceeding without counsel with an application for a 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his first three claims, petitioner alleges 19 that his federal constitutional right to due process was violated by a 2008 decision of the 20 California Board of Parole Hearings (hereafter “the Board”) to deny him a parole date. In 21 addition, petitioner asserts the parole hearing was untimely held. 22 II. Standards for a Writ of Habeas Corpus 23 Federal habeas corpus relief is not available for any claim decided on the merits in 24 state court proceedings unless the state court's adjudication of the claim: 25 //// 26 //// 1 Dockets.Justia.com 1 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 2 3 (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. 4 5 28 U.S.C. § 2254(d). 6 Under section 2254(d)(1), a state court decision is “contrary to” clearly 7 established United States Supreme Court precedents if it applies a rule that contradicts the 8 governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially 9 indistinguishable from a decision of the Supreme Court and nevertheless arrives at different 10 result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06 11 (2000)). 12 Under the “unreasonable application” clause of section 2254(d)(1), a federal 13 habeas court may grant the writ if the state court identifies the correct governing legal principle 14 from the Supreme Court’s decisions, but unreasonably applies that principle to the facts of the 15 prisoner’s case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ 16 simply because that court concludes in its independent judgment that the relevant state-court 17 decision applied clearly established federal law erroneously or incorrectly. Rather, that 18 application must also be unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 19 (2003) (it is “not enough that a federal habeas court, in its independent review of the legal 20 question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”) (internal citations 21 omitted). 22 The court looks to the last reasoned state court decision as the basis for the state 23 court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state 24 court reaches a decision on the merits, but provides no reasoning to support its conclusion, a 25 federal habeas court independently reviews the record to determine whether habeas corpus relief 26 is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); 2 1 Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (“Independent review of the record is not de 2 novo review of the constitutional issue, but rather, the only method by which we can determine 3 whether a silent state court decision is objectively unreasonable.”); accord Pirtle v. Morgan, 313 4 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of 5 a petitioner’s claim, or has denied the claim on procedural grounds, the AEDPA’s deferential 6 standard does not apply and a federal habeas court must review the claim de novo. Nulph v. 7 Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle, 313 F.3d at 1167. 8 III. Petitioner’s Claims 9 A. Due Process 10 Most of petitioner’s claims are based on the ground that his federal constitutional 11 right to due process was allegedly violated by a 2008 decision of the Board to deny him a parole 12 date. The court will first address petitioner’s due process claim, and will then address the 13 independent claims seriatim. 14 The Due Process Clause of the Fourteenth Amendment prohibits state action that 15 deprives a person of life, liberty, or property without due process of law. A litigant alleging a 16 due process violation must first demonstrate that he was deprived of a liberty or property interest 17 protected by the Due Process Clause and then show that the procedures attendant upon the 18 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 19 490 U.S. 454, 459-60 (1989). 20 A protected liberty interest may arise from either the Due Process Clause of the 21 United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 22 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 23 221 (2005) (citations omitted). The United States Constitution does not, of its own force, create 24 a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 25 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no 26 constitutional or inherent right of a convicted person to be conditionally released before the 3 1 expiration of a valid sentence.”). However, “a state’s statutory scheme, if it uses mandatory 2 language, ‘creates a presumption that parole release will be granted’ when or unless certain 3 designated findings are made, and thereby gives rise to a constitutional liberty interest.” 4 Greenholtz, 442 U.S. at 12; see also Board of Pardons v. Allen, 482 U.S. 369, 376-78 (1987) (a 5 state’s use of mandatory language (“shall”) creates a presumption that parole release will be 6 granted when the designated findings are made.). 7 California’s parole statutes give rise to a liberty interest in parole protected by the 8 federal due process clause. Swarthout v. Cooke, 562 U.S. ___ (2011), No. 10-333, 2011 WL 9 197627, at *2 (Jan. 24, 2011). In California, a prisoner is entitled to release on parole unless 10 there is “some evidence” of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 11 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). However, in 12 Swarthout the United States Supreme Court held that “[n]o opinion of [theirs] supports 13 converting California’s ‘some evidence’ rule into a substantive federal requirement.” Swarthout, 14 2011 WL 197627, at *3. In other words, the Court specifically rejected the notion that there can 15 be a valid claim under the Fourteenth Amendment for insufficiency of evidence presented at a 16 parole proceeding. Id. at *3. Rather, the protection afforded by the federal due process clause to 17 California parole decisions consists solely of the “minimal” procedural requirements set forth in 18 Greenholtz, specifically “an opportunity to be heard and . . . a statement of the reasons why 19 parole was denied.” Swarthout, at *2-3. 20 Here, the record reflects that petitioner was present at the 2008 parole hearing, 21 that he participated in the hearing, and that he was provided with the reasons for the Board’s 22 decision to deny parole. (Dkt. No. 1 at 120-212.) According to the United States Supreme 23 Court, the federal due process clause requires no more. Accordingly, petitioner’s application for 24 //// 25 //// 26 //// 4 1 a writ of habeas corpus should be denied.1 2 B. Deferral of Parole Hearing 3 In petitioner’s second claim, he argues the state court unreasonably found the 4 Board did not err by denying petitioner parole for a period of two years. (Dkt. No. 1 at 17.) 5 6 The Los Angeles County Superior Court issued the last reasoned opinion addressing this claim. The superior court rejected this claim as follows: 7 The Court finds that the Board did not err in denying the Petitioner parole for a period of two years. The Board must articulate reasons that justify a postponement, but those reasons need not be completely different from those justifying the denial of parole. See In re Jackson (1985) 39 Cal.3d 464, 479. The Board indicated that the Petitioner was denied parole for two years because of his commitment offense, his previous record of violence, his unstable social history and his need to deal with the disparity between his version of the offense and the official version of the offense. These reasons were sufficient to justify a two-year denial. 8 9 10 11 12 13 (Dkt. No. 13-3 at 53.) 14 As noted by respondent, this claim alleges an error in the application of state law, 15 and state law claims are not cognizable in this federal habeas corpus petition. See Estelle v. 16 McGuire, 502 U.S. 62, 67 (1991) (“federal habeas corpus relief does not lie for errors of state 17 law.”). Moreover, California Penal Code § 3041.5 has been amended several times since the date 18 of petitioner’s conviction to allow for longer periods of time between parole suitability hearings. 19 Ex Post Facto challenges to those amendments have all been rejected. See Gilman v. 20 Schwarzenegger, ___ F.3d ___, No. 10-15471, 2011 WL 198435 (9th Cir. Jan. 24, 2011) (2010 21 change in Cal. Penal Code § 3041.5 to increase maximum deferral period of parole suitability 22 1 23 24 25 26 Petitioner requests an evidentiary hearing on his claims. (Dkt. No. 1 at 8.) To obtain an evidentiary hearing, a petitioner is “required to allege specific facts which, if true, would entitle him to relief.” Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998) (internal quotation marks and citation omitted). The court concludes that no additional factual supplementation is necessary in this case and that an evidentiary hearing is not appropriate with respect to the claims raised in the instant petition. The facts alleged in support of these claims, even if established at a hearing, would not entitle petitioner to federal habeas relief. Therefore, petitioner’s request for an evidentiary hearing should be denied. 5 1 hearings from five years to fifteen years not a violation of Ex Post Facto Clause because it did 2 not create a sufficient risk of increasing punishment); California Dep’t of Corrections v. Morales, 3 514 U.S. 499, 509 (1995) (1981 amendment to Cal. Penal Code § 3041.5, which increased 4 maximum deferral period of parole suitability hearings to five years did not violate the Ex Post 5 Facto Clause because it simply altered the method of setting a parole release date and did not 6 create a meaningful “risk of increasing the measure of punishment attached to the covered 7 crimes”); Watson v. Estelle, 886 F.2d 1093, 1097-98 (9th Cir. 1989) (not a violation of the Ex 8 Post Facto Clause to apply § 3041.5(b)(2)(A) to prisoners sentenced to life imprisonment prior to 9 the implementation of California's Determinate Sentence Law in 1977); Clifton v. Attorney 10 General Of the State of California, 997 F.2d 660, 662 n.1 (9th Cir. 1993) (same). 11 In light of these authorities, the state court’s rejection of petitioner’s second claim 12 for relief was neither contrary to, nor an unreasonable application of, controlling principles of 13 United States Supreme Court precedent. Therefore, petitioner’s second claim for relief should be 14 denied. 15 C. Extended Incarceration Period 16 In petitioner’s last claim, again in the context of a “some evidence” due process 17 challenge, petitioner appears to argue that his incarceration period has exceeded the minimum 18 and maximum base terms for his 1993 conviction. (Dkt. No. 1 at 33.) 19 There is no reasoned state court opinion addressing this claim. 20 Petitioner was convicted for attempted first degree murder, and second degree 21 robbery with the use of a firearm, resulting in great bodily injury. (Dkt. No. 13-3 at 51.) 22 Petitioner was sentenced to a term of life, plus 11 years, eight months, in state prison, with the 23 possibility of parole. (Dkt. No. 1 at 1; 13-3 at 51.) Therefore, petitioner’s incarceration has not 24 exceeded his sentence. Moreover, petitioner is not entitled to a release date until he has been 25 found suitable for parole. See Connor v. Estelle, 981 F.2d 1032, 1033 (9th Cir.1992) (per 26 curiam) (application of the Determinate Sentencing Law parole-suitability guidelines to prisoners 6 1 sentenced under the Indeterminate Sentencing Law does not disadvantage them). Therefore, the 2 Board’s failure to set a date or to release petitioner on or near his Minimum Eligible Parole Date 3 did not violate his due process rights. See id. at 1033-35. Accordingly, this claim should also be 4 denied. 5 IV. Conclusion 6 7 For all of the above reasons, the undersigned recommends that petitioner’s application for a writ of habeas corpus be denied. 8 9 IT IS HEREBY RECOMMENDED that petitioner’s application for writ of habeas corpus be denied. 10 These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 12 one days after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files 15 objections, he shall also address whether a certificate of appealability should issue and, if so, why 16 and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if 17 the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 18 § 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after 19 service of the objections. The parties are advised that failure to file objections within the 20 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 21 F.2d 1153 (9th Cir. 1991). 22 DATED: February 1, 2011 23 24 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 25 26 bran1321.157 7
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