-JFM (HC) Ledesma v. Swarthout, No. 2:2011cv00085 - Document 8 (E.D. Cal. 2011)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 4/19/11 ORDERING that this case be assigned to a District Judge; Assigned to Judge John A. Mendez; RECOMMENDING that the 1 Petition for Writ of Habeas Corpus be dismissed without leave to amend and that the court decline to issue a certificate of appealability. Objections due within 14 days. (Manzer, C)
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-JFM (HC) Ledesma v. Swarthout Doc. 8 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 EDWARDO LEDESMA, 11 Petitioner, 12 13 No. CIV 11-cv-0085-JFM (HC) vs. GARY SWARTHOUT, Warden, ORDER AND Respondent. 14 FINDINGS & RECOMMENDATIONS / 15 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of 16 17 habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma 18 pauperis. 19 20 21 Examination of the affidavit reveals petitioner is unable to afford the costs of this action. Accordingly, leave to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). Rule 4 of the Rules Governing Section 2254 Cases allows a district court to 22 dismiss a petition if it “plainly appears from the face of the petition and any exhibits annexed to 23 it that the petitioner is not entitled to relief in the district court ....“ Rule 4 of the Rules 24 Governing Section 2254 Cases. The court must summarily dismiss a petition “[i]f it plainly 25 appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 26 the district court....” Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see 1 Dockets.Justia.com 1 also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a 2 petition (1) specify all grounds of relief available to the Petitioner; (2) state the facts supporting 3 each ground; and (3) state the relief requested. Notice pleading is not sufficient; rather, the 4 petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory 5 Committee Notes, 1976 Adoption; O'Bremski, 915 F.2d at 420. Allegations in a petition that are 6 vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks, 908 7 F.2d at 491. 8 Further, the Advisory Committee Notes to Rule 8 indicate that the court may 9 dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to 10 the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory 11 Committee Notes to Habeas Rule 8, 1976 Adoption; see Herbst v. Cook, 260 F.3d 1039 (9th Cir. 12 2001). 13 14 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: (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 15 16 (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. 17 18 19 28 U.S.C. § 2254(d). 20 Under section 2254(d)(1), a state court decision is “contrary to” clearly 21 established United States Supreme Court precedents if it applies a rule that contradicts the 22 governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially 23 indistinguishable from a decision of the Supreme Court and nevertheless arrives at different 24 result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406 25 (2000)). 26 ///// 2 Under the “unreasonable application” clause of section 2254(d)(1), a federal 1 2 habeas court may grant the writ if the state court identifies the correct governing legal principle 3 from the Supreme Court’s decisions, but unreasonably applies that principle to the facts of the 4 prisoner’s case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ 5 simply because that court concludes in its independent judgment that the relevant state-court 6 decision applied clearly established federal law erroneously or incorrectly. Rather, that 7 application must also be unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 8 (2003) (it is “not enough that a federal habeas court, in its independent review of the legal 9 question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”). The Due Process Clause of the Fourteenth Amendment prohibits state action that 10 11 deprives a person of life, liberty, or property without due process of law. A litigant alleging a 12 due process violation must first demonstrate that he was deprived of a liberty or property interest 13 protected by the Due Process Clause and then show that the procedures attendant upon the 14 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 15 490 U.S. 454, 459-60 (1989). 16 A protected liberty interest may arise from either the Due Process Clause of the 17 United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 18 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 19 221 (2005) (citations omitted). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). 20 The United States Constitution does not, of its own force, create a protected liberty interest in a 21 parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); 22 Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or 23 inherent right of a convicted person to be conditionally released before the expiration of a valid 24 sentence.”). However, “a state’s statutory scheme, if it uses mandatory language, ‘creates a 25 presumption that parole release will be granted’ when or unless certain designated findings are 26 ///// 3 1 made, and thereby gives rise to a constitutional liberty interest.” Greenholtz, 442 U.S. at 12. 2 See also Allen, 482 U.S. at 376-78. 3 California’s parole statutes give rise to a liberty interest in parole protected by the 4 federal due process clause. Swarthout v. Cooke, 562 U.S. ___ (2011), No. 10-333, 2011 WL 5 197627, at *2 (Jan. 24, 2011). In California, a prisoner is entitled to release on parole unless 6 there is “some evidence” of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 7 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). However, in 8 Swarthout the United States Supreme Court held that “[n]o opinion of [theirs] supports 9 converting California’s ‘some evidence’ rule into a substantive federal requirement.” Swarthout, 10 2011 WL 197627, at *3. Rather, the protection afforded by the federal due process clause to 11 California parole decisions consists solely of the “minimal” procedural requirements set forth in 12 Greenholtz, specifically “an opportunity to be heard and . . . a statement of the reasons why 13 parole was denied.” Id. at *2-3. In the petition pending before this court, it is evident that on November 3, 2009, 14 15 petitioner appeared at and participated in a parole consideration hearing before the Board of 16 Parole Hearings (“the Board”). See Doc. No. 1 at 33. Following deliberations held at the 17 conclusion of the hearing, the Board announced their decision to deny petitioner parole and the 18 reasons for that decision. Id. at 91-97. Petitioner seeks relief on two grounds. First, petitioner seeks relief on the ground 19 20 that California’s “Proposition 9" violates the ex post facto clause of the federal constitution. 21 Proposition 9, also known as the “Victims’ Bill of Rights Act of 2008: Marsy’s Law,” effected 22 an amendment of Cal. Pen. Code § 3041.5(b)(3) on November 4, 2008 that resulted in a 23 lengthening of the period between parole suitability hearings. 24 ///// 25 ///// 26 ///// 4 1 Under the statute as it existed prior to the enactment of “Marsy's Law,” 2 indeterminately-sentenced inmates, such as petitioner1, were denied parole for one year unless 3 the Board found, with stated reasons, that it was unreasonable to expect that parole could be 4 granted the following year, in which case the subsequent hearing could be extended up to five 5 years. Cal. Penal Code § 3041.5(b)(2) (2008). However, at his 2009 parole hearing, petitioner 6 was subject to the terms of the amended statute, which authorizes denial of a subsequent parole 7 hearing for a period of up to fifteen years. Cal. Pen. Code, § 3041.5(b)(3) (2010). The Board 8 applied Marsy’s Law to petitioner, ordering that the next parole hearing date be held in five 9 years. Petitioner contends this extension violates the Ex Post Facto Clause because it effectively 10 forces petitioner to serve a sentence nine years beyond the base suggested term for his crime of 11 21 years. See Cal. Code of Regs., tit. 15, § 2403(c). 12 The Constitution provides, “No State shall ... pass any ... ex post facto Law.” 13 U.S. Const. art I, § 10. The Ex Post Facto Clause prohibits any law which: 1) makes an act done 14 before the passing of the law, which was innocent when done, criminal; 2) aggravates a crime 15 and makes it greater than it was when it was committed; 3) changes the punishment and inflicts a 16 greater punishment for the crime than when it was committed; or 4) alters the legal rules of 17 evidence and requires less or different testimony to convict the defendant than was required at 18 the time the crime was committed. Carmell v. Texas, 529 U.S. 513, 522 (2000). Application of 19 a state regulation retroactively to a defendant violates the Ex Post Facto Clause if the new 20 regulations create a “sufficient risk” of increasing the punishment for the defendant’s crimes. 21 Himes v. Thompson, 336 F.3d 848, 854 (9th Cir. 2003) (citing Cal. Dep’t of Corr. v. Morales, 22 514 U.S. 499, 509 (1995)). When the rule or statute does not by its own terms show a significant 23 risk, the petitioner must demonstrate, by evidence drawn from the rule’s practical 24 25 26 1 Petitioner was sentenced to 16 years to life on his underlying conviction of seconddegree murder in 1986. At the time of the parole hearing, petitioner had already served approximately 23 years. 5 1 implementation by the agency charged with exercising discretion, that its retroactive application 2 will result in a longer period of incarceration than under the earlier rule. Garner v. Jones, 529 3 U.S. 244, 250, 255 (2000). 4 California Penal Code section 3041.5 has been amended several times since the 5 date of petitioner’s conviction to allow for longer periods of time between parole suitability 6 hearings. Ex Post Facto challenges to those amendments have all been rejected. See Morales, 7 514 U.S. at 509 (1981 amendment to Cal. Penal Code § 3041.5, which increased maximum 8 deferral period of parole suitability hearings to five years did not violate the Ex Post Facto 9 Clause because it simply altered the method of setting a parole release date and did not create a 10 meaningful “risk of increasing the measure of punishment attached to the covered crimes”); 11 Watson v. Estelle, 886 F.2d 1093, 1097-98 (9th Cir. 1989) (not a violation of the Ex Post Facto 12 Clause to apply § 3041.5(b)(2)(A) to prisoners sentenced to life imprisonment prior to the 13 implementation of California’s Determinate Sentence Law in 1977); Clifton v. Attorney General 14 Of the State of California, 997 F.2d 660, 662 n.1 (9th Cir. 1993) (same). See also Garner, 529 15 U.S. at 249 (upholding Georgia’s change in the frequency of parole hearings for prisoners 16 serving life sentences, from three to eight years, in an action brought pursuant to 42 U.S.C. § 17 1983); Wilkinson v. Dotson, 544 U.S. 74 (2005) (holding that inmates are not required to bring 18 their challenges to the constitutionality of state parole procedures in habeas petitions exclusively, 19 but may pursue their claims in § 1983 actions). 20 Recently, the Ninth Circuit overturned a district court decision granting 21 preliminary injunctive relief to plaintiffs in a class action seeking to prevent the Board from 22 enforcing the amended deferral periods established by Marsy's Law. Gilman v. Schwarzenegger, 23 ––– F.3d ––––, No. 10–15471, 2011 WL 198435 (9th Cir. Jan. 24, 2011). The court found it 24 unlikely that plaintiffs would succeed on the merits of their underlying challenge premised on 25 the Ex Post Facto Clause. The court initially compared and contrasted Marsy’s Law with 26 existing Supreme Court precedent: 6 1 2 3 4 5 6 7 8 Here, as in Morales and Garner, Proposition 9 did not increase the statutory punishment for any particular offense, did not change the date of inmates’ initial parole hearings, and did not change the standard by which the Board determined whether inmates were suitable for parole. However, the changes to the frequency of parole hearings here are more extensive than the change in either Morales or Garner. First, Proposition 9 increased the maximum deferral period from five years to fifteen years. This change is similar to the change in Morales (i.e., tripled from one year to three years) and the change in Garner (i.e., from three years to eight years). Second, Proposition 9 increased the minimum deferral period from one year to three years. Third, Proposition 9 changed the default deferral period from one year to fifteen years. Fourth, Proposition 9 altered the burden to impose a deferral period other than the default period .... Neither Morales nor Garner involved a change to the minimum deferral period, the default deferral period, or the burden to impose a deferral period other than the default period. 9 2011 WL 198435, at *5. However, the Ninth Circuit found these distinctions non-dispositive 10 due to the availability of advance parole hearings at the Board’s discretion, reasoning that, “as in 11 Morales, an advance hearing by the Board ‘would remove any possibility of harm’ to prisoners 12 because they would not be required to wait a minimum of three years for a hearing.” Id. at *6 13 (quoting Morales, 514 U.S. at 513). The Ninth Circuit concluded that plaintiffs had failed to 14 demonstrate a significant risk that their incarceration would be prolonged by application of 15 Marsy's Law, and thus found that plaintiffs had not established a likelihood of success on the 16 merits of their ex post facto claim. 17 Here, the Board's application of the guidelines did not increase petitioner’s 18 sentence: petitioner’s sentence of sixteen years to life carries no guaranteed parole date but 19 rather carries with it the potential that he could serve the entire term. Furthermore, the 20 California parole board is still vested with broad discretion in selecting a date of rehearing from 21 three years to fifteen years. The Board retains the discretion to advance a hearing at any time 22 should there be a change in circumstances. The Board 23 24 25 may in its discretion, after considering the views and interests of the victim, advance a hearing set pursuant to paragraph (3) to an earlier date, when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim’s safety does not require the additional period of incarceration of the prisoner provided in paragraph (3). 26 7 1 Cal. Penal Code § 3041.5(b)(4). Proposition 9 does not create more than a “ ‘speculative and 2 attenuated possibility of producing the prohibited effect of increasing the measure of punishment 3 for covered crimes.’ ” Garner, 529 U.S. at 251 (quoting Morales, 514 U.S. at 509). 4 Accordingly, petitioner’s ex post facto claim fails as a matter of law. Thus, the undersigned 5 recommends denying leave to amend as to this claim. 6 7 Petitioner also seeks relief on the ground that there did not exist ‘some evidence’ to deny parole. This argument is foreclosed by Swarthout. 8 9 Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the Court of Appeals from the final order in a habeas proceeding in which 10 the detention complained of arises out of process issued by a state court. 28 U.S.C. § 11 2253(c)(1)(A); Miller–El v. Cockrell, 537 U.S. 322, 336 (2003). A certificate of appealability 12 may issue only if the applicant makes a substantial showing of the denial of a constitutional 13 right. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could 14 debate whether the petition should have been resolved in a different manner or that the issues 15 presented were adequate to deserve encouragement to proceed further. Miller–El v. Cockrell, 16 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A certificate should 17 issue if the petitioner shows that jurists of reason would find it debatable whether the petition 18 states a valid claim of the denial of a constitutional right and that jurists of reason would find it 19 debatable whether the district court was correct in any procedural ruling. Slack v. McDaniel, 20 529 U.S. 473, 483–84 (2000). In determining this issue, a court conducts an overview of the 21 claims in the habeas petition, generally assesses their merits, and determines whether the 22 resolution was debatable among jurists of reason or wrong. Id. It is necessary for an applicant to 23 show more than an absence of frivolity or the existence of mere good faith; however, it is not 24 necessary for an applicant to show that the appeal will succeed. Miller–El v. Cockrell, 537 U .S. 25 at 338. 26 ///// 8 1 2 A district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Rule 11(a) of the Rules Governing Section 2254 Cases. 3 Here, it does not appear that reasonable jurists could debate whether the petition 4 should have been resolved in a different manner. Petitioner has not made a substantial showing 5 of the denial of a constitutional right. Accordingly, the court should decline to issue a certificate 6 of appealability. 7 8 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court assign a district judge to this case; 9 IT IS HEREBY RECOMMENDED that: 10 11 1. Petitioner’s petition for a writ of habeas corpus be dismissed without leave to amend; and 12 2. The court decline to issue a certificate of appealability. 13 These findings and recommendations are submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 15 days after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 18 objections shall be filed and served within fourteen days after service of the objections. The 19 parties are advised that failure to file objections within the specified time may waive the right to 20 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 DATED: April 19, 2011. 22 23 24 25 /014;lede0085.114 26 9