-EFB (HC)Seabock v. Swarthout, No. 2:2010cv03443 - Document 13 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/21/11 RECOMMENDING that re 10 MOTION to DISMISS be granted; and the clerk be directed to close this case. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)
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-EFB (HC)Seabock v. Swarthout Doc. 13 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ROBERT SEABOCK, 11 12 13 14 15 16 Petitioner, No. CIV S-10-3443 MCE EFB P vs. GARY SWARTHOUT, Respondent. FINDINGS AND RECOMMENDATIONS ______________________________/ Petitioner, a state prisoner proceeding through counsel, seeks a writ of habeas corpus. 17 See 28 U.S.C. § 2254. He challenges the February 24, 2009 decision of the California Board of 18 Parole Hearings (“Board”) to deny him parole. Petitioner claims the Board’s decision violated 19 his right to due process because it was not supported by some evidence of his current 20 dangerousness. He further alleges that the Board violated the Ex Post Facto Clause by failing to 21 determine his suitability for parole under California’s Indeterminate Sentencing Law (“ISL”). 22 On March 7, 2011, respondent filed a motion to dismiss. Dckt. No. 10. Respondent 23 contends that petitioner fails to state a federal claim for habeas relief. Respondent also contends 24 that the ISL ex post facto claim is untimely. On April 6, 2011, petitioner filed an opposition to 25 the motion. Dckt. No. 11. Petitioner premises his opposition on his “belief that the United 26 States Constitution Due Process Clause prohibits the deprivation of liberty when that deprivation 1 Dockets.Justia.com 1 is against state law.” Id. at 1-2. Petitioner does not address respondent’s arguments regarding 2 the ex post facto claim. For the reasons stated below, the court finds that petitioner fails to state 3 a cognizable habeas claim and therefore recommends that the motion to dismiss be granted.1 4 I 5 Due Process Claim Petitioner contends that Board’s 2009 decision to deny him parole violated his right to 6 due process because it was not supported by some evidence that he posed an unreasonable risk of 7 danger to society. Petitioner argues further that there was no nexus between the Board’s findings 8 for denying parole and a current unreasonable risk to the public were petitioner paroled. 9 Under California law, a prisoner is entitled to release unless there is “some evidence” of 10 his or her current dangerousness. In re Lawrence, 44 Cal. 4th 1181, 1205-06, 1210 (2008); In re 11 Rosenkrantz, 29 Cal. 4th 696, 651-53 (2002). According to the United States Supreme Court, 12 however, federal habeas review of a parole denial is limited to the narrow question of whether a 13 petitioner has received “fair procedures.” Swarthout v. Cooke, 526 U.S. __ (2011), No. 10-333, 14 2011 WL 197627, at *2 (Jan. 24, 2011). In other words, a federal court may only review 15 whether a petitioner has received a meaningful opportunity to be heard and a statement of 16 reasons why parole was denied. Id. at **2-3 (federal due process satisfied where petitioners 17 were “allowed to speak at their parole hearings and to contest the evidence against them, were 18 afforded access to their records in advance, and were notified as to the reasons why parole was 19 denied”). Thus, this court may not review whether the Board correctly applied California’s 20 “some evidence” standard. Id. at *2. The record reflects that petitioner was given the 21 opportunity to be heard at his 2009 parole suitability hearing and received a statement of the 22 reasons why parole was denied. See Dckt. No. 1, Ex. B. This is all that due process requires. 23 Swarthout, 2011 WL 197627, at **2-3. Accordingly, the court finds that this claim should be 24 25 26 1 In light of this determination, the court need not address respondent’s argument that the ex post facto claim is also untimely. 2 1 dismissed. 2 II. Ex Post Facto Claim 3 Petitioner argues that the Board’s 2009 decision finding him unsuitable for parole 4 violated the Ex Post Facto Clause. Petitioner was convicted of first-degree murder with the use 5 of a firearm, and assault with a deadly weapon, and sentenced to life imprisonment under 6 California’s Indeterminate Sentencing Law (“ISL”) in 1974. In 1977, California repealed the 7 ISL and enacted the current Determinate Sentencing Law (“DSL”). Petitioner became eligible 8 for parole on December 13, 1979, and has been considered for parole under the DSL guidelines. 9 As of the Board’s 2009 decision, petitioner had been found unsuitable for release at sixteen 10 11 suitability hearings. Petitioner argues that the Board violated the Ex Post Facto Clause when it found him 12 unsuitable for parole based on the DSL guidelines and not on the ISL guidelines.2 He contends 13 that this violation is especially prejudicial because under the ISL, his parole date would have 14 been set long ago and that determining his parole under the DSL has vastly increased his 15 punishment. Petitioner also contends that the Board’s three-year denial of parole violates the Ex 16 Post Facto Clause. 17 The Constitution provides that “No State shall . . . pass any . . . ex post facto Law.” U.S. 18 CONST. art. I, § 10. A law violates the Ex Post Facto Clause of the United States Constitution if 19 it: (1) punishes as criminal an act that was not criminal when it was committed; (2) makes a 20 crime’s punishment greater than when the crime was committed; or (3) deprives a person of a 21 defense available at the time the crime was committed. Collins v. Youngblood, 497 U.S. 37, 52 22 (1990). The Ex Post Facto Clause “is aimed at laws that retroactively alter the definition of 23 crimes or increase the punishment for criminal acts.” Himes v. Thompson, 336 F.3d 848, 854 24 25 26 2 Petitioner contends this also violated his right to due process because he had a vested liberty interest in parole. In light of the Supreme Court’s holding in Swarthout, 2011 WL 197627, discussed above, this claim lacks merit. 3 1 (9th Cir. 2003) (quoting Souch v. Schaivo, 289 F.3d 616, 620 (9th Cir. 2002)). See also Cal. 2 Dep’t of Corr. v. Morales, 514 U.S. 499, 504 (1995). The Ex Post Facto Clause is also violated 3 if: (1) state regulations have been applied retroactively to a defendant; and (2) the new 4 regulations have created a “sufficient risk” of increasing the punishment attached to the 5 defendant’s crimes. Himes, 336 F.3d at 854. Not every law that disadvantages a defendant is a 6 prohibited ex post facto law. The retroactive application of a change in state parole procedures 7 violates ex post facto only if there exists a “significant risk” that such application will increase 8 the punishment for the crime. See Garner v. Jones, 529 U.S. 244, 259 (2000). 9 Here, the Board’s application of the DSL guidelines did not increase petitioner’s 10 sentence. Petitioner’s indeterminate life sentence carries no guaranteed parole date but rather 11 carries with it the potential that he could serve the entire term. Further, any changes between the 12 ISL and the DSL standards of parole do not change the definition of the crime or increase the 13 punishment for murder because “the DSL guidelines require consideration of the same criteria as 14 did the ISL.” Connor v. Estelle, 981 F.2d 1032, 1034 (9th Cir. 1992); see id. (“the application of 15 the DSL parole-suitability guidelines to prisoners sentenced under the ISL does not disadvantage 16 them, and therefore does not violate the federal constitutional prohibition against ex post facto 17 laws.”); see also Baker v. Kramer, No. CIV S-08-0311 FCD DAD P, 2010 WL 1027537, at *13- 18 14 (E.D. Cal. Mar.18, 2010), adopted by, 2010 WL 1795862 (E.D. Cal. May 4, 2010) (denying 19 relief on ex post facto claim, explaining that petitioner’s ISL sentence “contemplates a potential 20 life term in prison” and that “a grant of parole is not mandatory, but merely possible. While 21 petitioner might have hoped or expected to be released sooner, the Board’s decision to deny him 22 a parole release date has not enhanced his punishment or sentence.”); Delaplane v. Marshall, No. 23 CV 08-2306-JFW (MAN), 2009 WL 3806261, at *16 (C.D. Cal. Nov.12, 2009) (finding that 24 petitioner’s ex post facto and due process claims were foreclosed by Connor). 25 //// 26 //// 4 1 Petitioner also complains that California Penal Code § 3041.5 has been amended several 2 times since the date of his conviction to allow for multi-year periods of time between parole 3 suitability hearings.3 Following these amendments, the Board denied petitioner parole for three 4 years in 2009. Petitioner contends this violates the Ex Post Facto Clause because under the DSL, 5 he likely would have received parole suitability hearings every year. However, such 6 amendments have been upheld against challenges that they violated the Ex Post Facto Clause. 7 See California Department of Corrections v. Morales, 514 U.S. 499, 509 (1995) (1981 8 amendment to § 3041.5, which increased maximum deferral period of parole suitability hearings 9 to five years did not violate the Ex Post Facto Clause because it simply altered the method of 10 setting a parole release date and did not create a meaningful “risk of increasing the measure of 11 punishment attached to the covered crimes”); Watson v. Estelle, 886 F.2d 1093, 1097-98 (9th 12 Cir. 1989) (not a violation of the Ex Post Facto Clause to apply § 3041.5(b)(2)(A) to prisoners 13 sentenced to life imprisonment prior to the implementation of California’s Determinate Sentence 14 Law in 1977); Clifton v. Attorney General Of the State of California, 997 F.2d 660, 662 n.1 (9th 15 Cir. 1993) (same). See also Garner, 529 U.S. at 249 (upholding Georgia’s change in the 16 frequency of parole hearings for prisoners serving life sentences, from three to eight years, in an 17 action brought pursuant to 42 U.S.C. § 1983).4 18 19 These cases support the conclusion that the application of the DSL parole-suitability guidelines to prisoners sentenced under the ISL does not violate the federal constitutional 20 21 22 23 24 25 26 3 In 2008, California Penal Code § 3041.5(b)(2) was amended after the passage of Proposition 9. The statutes enacted and modified pursuant to Proposition 9 are collectively known as “Marsy’s Law.” 4 Recently the Ninth Circuit overturned a district court decision granting preliminary injunctive relief to plaintiffs in a class action seeking to prevent the Board from enforcing the increased deferral periods established by Marsy’s Law. Gilman v. Schwarzenegger, ___ F.3d ___, No. 10-15471, 2011 WL 198435 (9th Cir. Jan. 24, 2011). The court concluded that plaintiffs had failed to demonstrate a significant risk that their incarceration would be prolonged by application of Marsy’s Law, and thus found that plaintiffs had not established a likelihood of success on the merits of their ex post facto claim. 5 1 prohibition against ex post facto laws. Id. The court finds that petitioner’s claim to the contrary 2 should therefore be dismissed for failure to state a cognizable habeas claim. 3 III. 4 Conclusion Based on the foregoing, the court concludes that the petition should be dismissed for 5 failure to state a cognizable claim. There is no basis for concluding that a tenable claim for relief 6 could be pled if leave to amend were granted. See Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 7 1971) (petition for habeas corpus should not be dismissed without leave to amend unless it 8 appears that no tenable claim for relief can be pleaded were such leave granted). 9 Accordingly, IT IS HEREBY RECOMMENDED that: 10 1. Respondent’s March 7, 2011 motion to dismiss be granted; and 11 2. The Clerk be directed to close the case. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 17 within the specified time may waive the right to appeal the District Court’s order. Turner v. 18 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 In his objections petitioner may address whether a certificate of appealability should issue in the 20 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 21 Section 2254 Cases (the district court must issue or deny a certificate of appealability when it 22 enters a final order adverse to the applicant). 23 Dated: April 21, 2011. 24 25 26 6