-JFM (HC) Roach v. Hill, No. 2:2011cv02286 - Document 17 (E.D. Cal. 2012)
Court Description: ORDER to SHOW CAUSE and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 8/7/12 ORDERING that within 14 days from the date of this order the parties shall show cause in writing, if any they have, whypetitioners sixth claim, i n which he contends that the application of Marsys Law at his 2009 parole hearing violated the Ex Post Facto Clause, should not be dismissed as moot; and RECOMMENDING that Respondents October 28, 2011 motion to dismiss be denied as to respondents con tention that this action is barred by the statute of limitations; Respondents October 28, 2011 motion to dismiss be granted as to petitioners first, second, third, fourth and eighth claims for relief and said claims be dismissed; and Petitioners fourth, fifth, and seventh claims for relief be dismissed. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Dillon, M)
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-JFM (HC) Roach v. Hill Doc. 17 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 ROY ROACH, 10 Petitioner, 11 vs. 12 No. 2:11-cv-2286 KJM JFM P R. HILL,Warden, 13 14 15 ORDER TO SHOW CAUSE AND Respondent. FINDINGS AND RECOMMENDATIONS / Petitioner is a state prisoner proceeding pro se with an application for a writ of 16 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is serving a sentence of nineteen years to 17 life in prison following his 1988 conviction on charges of second degree murder and robbery. 18 Petitioner challenges a 2009 decision of the California Board of Parole Hearings (Board) to deny 19 him a parole date for a period of three years. Petitioner claims that his rights under the Eighth 20 and Fourteenth Amendments were violated because the denial of parole was not supported by 21 sufficient evidence and caused him to remain in an unconstitutionally overcrowded prison 22 system; that the denial of parole violates the Eighth Amendment by requiring him to serve a 23 prison sentence disproportionate to his commitment offense; that the denial of parole violates the 24 Double Jeopardy Clause of the Fifth Amendment; that the application of Proposition 9, some- 25 times called Marsy’s Law, at the 2009 hearing violated the Ex Post Facto Clause of the United 26 1 Dockets.Justia.com 1 States Constitution; and that the denial of parole violated his plea agreement.1 This matter is 2 before the court on respondents’ motion to dismiss pursuant to Rule 4 of the Rules Governing 3 Section 2254 Cases in the United States District Courts (Habeas Rules). Petitioner opposes the 4 motion. 5 ANALYSIS 6 Rule 4 of the Habeas Rules requires a judge to summarily dismiss a habeas 7 petition “[i]f it plainly appears from the petition and any exhibits annexed to it that the petitioner 8 is not entitled to relief in the district court.” A motion for summary dismissal pursuant to Rule 4 9 of the Habeas Rules is an appropriate motion in habeas proceedings. See O’Bremski v. Maass, 10 915 F.2d 418, 420 (9th Cir. 1990). 11 I. Statute of Limitations 12 13 Respondent’s first contention is that this action is barred by the statute of limitations. Section 2244(d) of Title 28 of the United States Code provides in relevant part: 14 (d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of- 15 16 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 17 18 ... or 19 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 20 21 22 28 U.S.C. § 2244(d). The limitation period is tolled “during the pendency of a ‘properly filed 23 application for State post-conviction or other collateral review with respect to the pertinent 24 judgment or claim.’” Redd v. McGrath, 343 F.3d 1077, 1081 (quoting 28 U.S.C. § 2244(d)(2)). 25 1 26 Petitioner also claims violations of state law, but state law claims are not cognizable in this federal habeas corpus action. See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). 2 1 For this action, which challenges the denial of parole, § 2244(d)(1)(D) controls the question of 2 when the limitation period commenced. Redd at 1085. The following facts are relevant to 3 disposition of this part of respondent’s motion. 4 1. On May 26, 2009, the Board of Prison denied petitioner parole for a period of 5 three years. Ex. 1 to Motion to Dismiss at Decision page 1. The decision became final on 6 September 28, 2009. Id. at Decision page 10. 7 2. On October 22, 2009, petitioner filed a petition for writ of habeas corpus in the 8 Sacramento County Superior Court. Ex. K to Petitioner’s Opposition to Motion to Dismiss, filed 9 December 1, 2011. By order filed December 14, 2009, that petition was transferred to the San 10 Joaquin County Superior Court. Id. 11 3. On January 28, 2010, the San Joaquin County Superior Court denied without 12 prejudice a habeas corpus petition filed by petitioner which challenged the May 26, 2009 denial 13 of parole at issue in this action. Ex. I to Petitioner’s Opposition. In the order, the court stated 14 that the petition had been filed on January 26, 2010. Id. 15 4. On June 8, 2010, the San Joaquin County Superior Court denied a petition for 16 writ of error coram nobis filed by petitioner. Ex. J to Petitioner’s Opposition. In the order, the 17 court stated that the petition had been filed on June 3, 2010. Id. 18 5. On August 19, 2010, the California Court of Appeal for the Third Appellate 19 District denied a petition for writ of habeas corpus filed by petitioner “without prejudice to filing 20 of a complete petition in the superior court.” Ex. O to Petitioner’s Opposition. 21 6. On September 15, 2010 and September 27, 2010, petitioner filed petitions for 22 writ of habeas corpus in the San Joaquin County Superior Court. Ex. Q to Petitioner’s 23 Opposition. Those petitions were denied by order filed October 5, 2010. Id. 24 7. On November 15, 2010, petitioner filed a petition for writ of habeas corpus in 25 the California Court of Appeal for the Third Appellate District. Ex. R to Petitioner’s Opposition. 26 That petition was denied by order filed November 19, 2010. Id. 3 1 2 8. On December 23, 2010, petitioner filed a petition for writ of habeas corpus in the California Supreme Court. Id. That petition was denied on June 8, 2011. Id. 3 4 9. On or about August 24, 2011, petitioner signed and dated the petition for writ of habeas corpus entered on the docket in this action on August 29, 2011. 5 In support of their motion, respondent contends that the limitation period began to 6 run on May 26, 2009, that petitioner did not file a habeas corpus petition in the state courts until 7 September 15, 2010. and, therefore, that the one year limitation period ran before he filed his first 8 state petition. Respondent’s argument is without merit. 9 First, arguably, the statute of limitations did not start running until September 28, 10 2009, when the Board’s decision became final. Even if the limitation period did start running on 11 May 26, 2009, petitioner has presented evidence that he filed his first state habeas petition on 12 October 22, 2009, and a subsequent petition thereafter on January 26, 2010 in the state superior 13 court, as well as a petition for writ of error coram nobis in the superior court and a petition for 14 writ of habeas corpus in the state court of appeals, all before September 15, 2010. Respondent 15 has not addressed any of these petitions in the motion to dismiss. 16 It would appear from the evidence presented by petitioner that the statute of 17 limitations was tolled starting on October 22, 2009, for some period of time. Respondent has 18 not addressed the operative effect of the evidence tendered by petitioner in opposition to the 19 motion. In light of that evidence, the court cannot find the action time-barred on the ground 20 advanced by respondent. For that reason, the court will recommend this part of respondent’s 21 motion be denied. 22 II. Petitioner’s Claims 23 A. Sufficiency of Evidence to Support the Board’s Decision 24 In his first, second, third, and eighth claims for relief, petitioner contends that the 25 2009 denial of parole violated his federal constitutional rights because it was not supported by 26 ///// 4 1 sufficient evidence. Respondent seeks dismissal of the claims based on this contention, 2 contending they are not cognizable. 3 The Due Process Clause of the Fourteenth Amendment prohibits state action that 4 deprives a person of life, liberty, or property without due process of law. A litigant alleging a 5 due process violation must first demonstrate that he was deprived of a liberty or property interest 6 protected by the Due Process Clause and then show that the procedures attendant upon the 7 deprivation were not constitutionally sufficient. Kentucky Dep’t of Corrections v. Thompson, 8 490 U.S. 454, 459-60 (1989). 9 A protected liberty interest may arise from either the Due Process Clause of the 10 United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an 11 expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209, 12 221 (2005) (citations omitted). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). 13 The United States Constitution does not, of its own force, create a protected liberty interest in a 14 parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); 15 Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or 16 inherent right of a convicted person to be conditionally released before the expiration of a valid 17 sentence.”). However, “a state’s statutory scheme, if it uses mandatory language, ‘creates a 18 presumption that parole release will be granted’ when or unless certain designated findings are 19 made, and thereby gives rise to a constitutional liberty interest.” Greenholtz, 442 U.S. at 12. See 20 also Allen, 482 U.S. at 376-78. 21 California’s parole statutes give rise to a liberty interest in parole protected by the 22 federal due process clause. Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011). In California, a 23 prisoner is entitled to release on parole unless there is “some evidence” of his or her current 24 dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 25 Cal.4th 616, 651-53 (2002). However, in Swarthout the United States Supreme Court held that 26 “[n]o opinion of [theirs] supports converting California’s ‘some evidence’ rule into a substantive 5 1 federal requirement.” Swarthout, 131 S. Ct. at 862. Rather, the protection afforded by the 2 federal due process clause to California parole decisions consists solely of the “minimal” 3 procedural requirements set forth in Greenholtz, specifically “an opportunity to be heard and . . . 4 a statement of the reasons why parole was denied.” Id. 5 Here, it is plain from the record that petitioner was present at the 2009 parole 6 hearing, that he participated in the hearing, and that he was provided with the reasons for the 7 Board’s decision to deny parole. See Ex. 1 to Respondents’ Motion to Dismiss. According to 8 the United States Supreme Court, the federal due process clause requires no more. These claims 9 must therefore be dismissed. 10 B. Conversion of Petitioner’s Sentence 11 In his fourth claim, petitioner contends, inter alia, that his sentence has been 12 converted to life without the possibility of parole. Respondent contends this claim must be 13 dismissed as “patently false.” Motion to Dismiss, filed October 28, 2011, at 4. The denial of 14 parole does not convert petitioner’s sentence to life without possibility of parole. This claim 15 must be dismissed. 16 17 C. Double Jeopardy/Eighth Amendment/Violation of Plea Agreement As noted above, petitioner claims that the denial of parole violated the 18 proscription against double jeopardy (Ground V), his plea agreement (Ground VII), and his rights 19 under the Eighth Amendment (Ground IV). Although respondent has not sought dismissal of 20 these claims, it is plain that petitioner is not entitled to relief on any of them in this court. 21 In relevant part, the Fifth Amendment protects individuals “against a second 22 prosecution for the same offense after conviction, and against multiple punishments for the same 23 offense.” Mayner v. Callahan, 873 F.2d 1300 (9th Cir. 1989) (citing North Carolina v. Pearce, 24 395 U.S. 711, 717 (1969). The denial of parole is not the result of a second prosecution, nor does 25 it run afoul of the proscription against multiple punishments for the same offense. This claim 26 must be dismissed. 6 1 The Eighth Amendment proscribes punishments that are “grossly 2 disproportionate” to the offense. Ewing v. California, 538 U.S. 11, 23 (2003). The denial of 3 parole does not make petitioner’s punishment disproportionate to his commitment offense of 4 second degree murder and robbery. This claim must be dismissed. 5 Finally, petitioner contends that the denial of parole violates his plea agreement 6 because it was his understanding at the time he entered his plea that he was being sentenced to a 7 life term that included the possibility of parole and that the Board would therefore “establish a 8 ‘uniform term of commitment’ proportionate to the severity and gravity of his offense.” Petition, 9 filed August 29, 2011, at 59. Petitioner’s sentence has not been changed by the denial of parole, 10 nor does the denial constitute a breach of a plea agreement that included a life term with the 11 possibility of parole. This claim should be dismissed. 12 D. Ex Post Facto Violation 13 In his sixth claim, petitioner claims that the Board violated the Ex Post Facto 14 Clause by applying to him an increased time between parole hearings in accordance with the 15 provisions of Proposition 9, also known as Marsy’s Law, enacted into law in California in 16 November 2008. Respondent seek dismissal of this claim as without merit. The record reflects 17 that petitioner received a three year denial of parole in 2009. It is now 2012. Even assuming 18 arguendo petitioner were entitled to relief on this claim, the proper remedy would be a parole 19 hearing sooner than three years after his last denial of parole. Good cause appearing, the parties 20 will be ordered to show cause in writing why this claim has not been mooted by the passage of 21 time. 22 In accordance with the above, IT IS HEREBY ORDERED that within fourteen 23 days from the date of this order the parties shall show cause in writing, if any they have, why 24 petitioner’s sixth claim, in which he contends that the application of Marsy’s Law at his 2009 25 parole hearing violated the Ex Post Facto Clause, should not be dismissed as moot; and 26 ///// 7 1 IT IS HEREBY RECOMMENDED that: 2 1. Respondent’s October 28, 2011 motion to dismiss be denied as to respondent’s 3 contention that this action is barred by the statute of limitations; 4 5 2. Respondent’s October 28, 2011 motion to dismiss be granted as to petitioner’s first, second, third, fourth and eighth claims for relief and said claims be dismissed; and 6 3. Petitioner’s fourth, fifth, and seventh claims for relief be dismissed. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 9 days after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 12 objections shall be filed and served within fourteen days after service of the objections. The 13 parties are advised that failure to file objections within the specified time may waive the right to 14 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 DATED: August 7, 2012. 16 17 18 19 20 12 roac2286.mtd 21 22 23 24 25 26 8
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