Lam v. Curry, No. 3:2006cv07347 - Document 23 (N.D. Cal. 2010)
Court Description: ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS. Signed by Judge JEFFREY S. WHITE on 1/14/10. (jjo, COURT STAFF) (Filed on 1/14/2010)
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Lam v. Curry Doc. 23 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 LONG LAM, Petitioner, 9 10 11 12 13 vs. BEN CURRY, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) No. C 06-7347 JSW (PR) ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS (Docket No. 19) 14 15 16 INTRODUCTION Petitioner Long Lam, a prisoner of the State of California currently incarcerated at 17 the Correctional Training Facility in Soledad, California, filed a habeas corpus petition 18 pursuant to 28 U.S.C. § 2254 challenging the Board of Parole Hearings’ (“BPH”) denial 19 of parole during parole suitability proceedings in 2004. This Court ordered Respondent 20 to show cause why a writ should not issue. On March 4, 2008, Petitioner filed an 21 amended petition. Thereafter, the Court ordered Respondent to file an answer. 22 Respondent filed an answer, memorandum and exhibits in support thereof. Petitioner 23 has filed a traverse. For the reasons stated below, the petition is denied on the merits. 24 25 BACKGROUND According to the petition, on August 12, 1985, Petitioner pled guilty to one count 26 of second degree murder with use of a firearm, three counts of assault with a deadly 27 weapon with use of a firearm, one count of attempted murder with great bodily injury, and 28 one count of discharge of a firearm in an inhabited dwelling. Petitioner was sentenced to Dockets.Justia.com 1 2 seventeen years-to-life in state prison. In this habeas action, Petitioner does not challenge his conviction or sentence, but 3 instead alleges that his due process rights were violated by the denial of parole by the 4 BPH during a subsequent parole suitability hearings on October 28, 2004. Petitioner 5 further complains that the terms of his plea agreement were violated by the Board’s 6 decision to deny him parole. 7 At the October 28, 2004 hearing, the BPH relied, in part, upon the following 8 account of Petitioner’s commitment offenses excerpted from the Probation Officer’s 9 Report: 10 11 12 13 14 15 16 17 18 19 20 21 22 On January 15, 1985, the defendant shot Daniel Schwieterman to death. He also shot Samuel Quintere in the head, but did not kill him. In the same incident, the defendant assaulted Joe Alaniz, Louie Madraga and Alex Varga, with a firearm. Finally, the defendant discharged a firearm at an occupied motor vehicle, but did not injure anyone. The offenses occurred when the defendant drove up to a disco where the various victims were standing in the street. The defendant had some trouble parking his vehicle and actually drove up on the curb. One of the people in the victim-group laughed at the defendant and some remarks were made about his driving ability. The defendant then became angry and got out of his car with a handgun. He began shooting in the group of victims, killing Daniel Schwieterman. He then got back into his car and drove away. Victim Quintera began following the defendant in his own car. However, during the chase, the defendant fired three or four shots at Quintera, wounding him in the head. The defendant was then apprehended by an armed security guard and held until police arrived. Defendant admitted the offense to the police, saying that he was mad and that he was trying to scare the victims. At the time of his arrest, the defendant [had a] .14 blood-alcohol level. Respondent’s Answer, Ex. 3 at 2-3. The 2004 BPH panel considered Petitioner’s lack of prior criminal history. At the 23 hearing, Petitioner also discussed his arrest for drunk driving in 1983, for which he 24 stated he spent a night at the precinct and then was released, but had to participate in AA. 25 (Ex. 3 at 20.) The BPH panel also questioned about and considered Petitioner’s social 26 history, discussing his arrival from Vietnam in July 1978, six years prior to the incident 27 28 2 1 in question, his time with the Vietnamese Army and the eighteen months he spent as a 2 prisoner of war. Petitioner testified that his abuse of alcohol commenced when he “lost 3 everything” after his escape from a prisoner of war camp, and his immigration to the 4 United States. (Ex. 2 at 17.) 5 Petitioner testified that during his time in prison he has obtained a vocational 6 certification for machine shop, a GED and a business certificate (Ex. 2 at 22-23). The 7 panel further discussed Petitioner’s receipt of laudatory chronos for his work as a 8 receiving and release clerk and for participating in AA and NA. (Id.) 9 Petitioner testified that he has a grown daughter living in New York, with whom 10 he is in contact. (Ex. 2 at 18-19.) Petitioner’s former wife came to the United States 11 before him, but she remarried someone else. (Ex. 2 at 18.) Petitioner later remarried as 12 well. (Id.) However, no letters of support from family members were in Petitioner’s 13 file. (Ex. 2 at 25.) 14 The Presiding Commissioner discussed Petitioner’s parole plans. Petitioner is not 15 an American citizen and has an INS Immigration Hold, however it does not appear that 16 there was supporting documentation in his file. (Ex. 2 at 28.) Petitioner testified that if 17 he were paroled, he would request to be paroled to Vietnam. (Id.) Petitioner testified 18 that if he were, he plans to lives with his aunt and uncle in South Saigon or another uncle 19 in Saigon. (Ex. 2 at 28-29, 30.) Petitioner’s parole plans if paroled to Vietnam include 20 working at a restaurant. (Ex. 2 at 30.) If he is not deported, Petitioner plans to live with 21 his sister in Bishop, Yosemite and to work at her restaurant there, though no letter to the 22 effect was in Petitioner’s file. (Ex. 2 at 32.) 23 The Presiding Board Member noted that there was a confidential letter from the 24 victim’s mother in the file that would be considered. (Ex. 2 at 25.) Two letters from the 25 Los Angeles County Sheriff’s Department and the Los Angeles District Attorney’s 26 Office opposed to Petitioner’s parole were also in Petitioner’s file. (Ex. 2 at 33-34.) 27 28 The Board also considered Petitioner’s disciplinary history while incarcerated, 3 1 including 2 disciplinary findings, one of which was for possession of contraband (food) 2 and the other for a verbal confrontation. (Ex. 2 at 22.) The panel also considered a 3 report from Petitioner’s correctional counselor which stated that Petitioner was believed 4 to pose a low degree of threat to the public if released. (Ex. 2 at 26.) The panel further 5 considered a 2004 psychological report from Dr. S. Stack stated that Petitioner would 6 have a violence potential that would be no more than that of an average citizen, yet 7 stated that alcohol was a risk factor as a precursor to violence. (Ex. 2 at 27.) 8 9 Los Angeles Deputy District Attorney Anthony J. Sousa expressed the District Attorney’s Office’s opposition to parole, noting that Petitioner’s recognition of his 10 actions are a dramatic departure from past parole hearings where Petitioner claimed he 11 suffered from a flashback from his wartime experiences, so he clearly still lacks insight 12 about himself and the crimes he committed. (Ex. 2 at 37-38.) He argues that 13 Petitioner’s acknowledgment of his crimes did not include an accurate response 14 regarding the number of people he wounded. (Ex. 2 at 39.) Sousa states that Petitioner’s 15 insufficient remorse does not support Petitioner’s release from prison. (Ex. 2 at 40.) 16 The father of murdered victim Daniel Schwieterman also attended the parole 17 hearing and testified that he has never been offered a personal apology from Petitioner, 18 despite being available and attending all of Petitioner’s parole hearings. (Ex. 2 at 48-49.) 19 After a recess to consider the evidence, the BPH found that Petitioner was “not 20 suitable for parole and would pose an unreasonable risk of danger to society or a threat 21 to public safety if released from prison.” (Ex. 2 at 52.) This determination was based on 22 the especially violent and brutal manner of Petitioner’s commitment offense including 23 the attack on 5 people, demonstrated a callous disregard for human life. (Ex. 2 at 53.) 24 The Presiding Commissioner noted that Petitioner has realistic parole plans but no 25 supporting documentation. (Id.) The Board commended Petitioner for his behavior in 26 prison and his academic achievements but noted that Petitioner had not sufficiently 27 participated in self help programs. (Ex. 2 at 53-54.) The Board found that Petitioner 28 4 1 needed to participate in additional self-help in order to face, discuss, understand, and 2 cope with stress in a non-destructive manner. (Ex. 2 at 54.) In a separate decision, the 3 Board denied parole for two years. (Ex. 2 at 56.) 4 Petitioner challenged the 2004 Board’s decision in Los Angeles County Superior 5 Court, which denied his claims in a reasoned opinion on August 15, 2005. (Answer Ex. 6 7.) The California Court of Appeal for the Second Appellate District and the California 7 Supreme Court summarily denied Petitioner’s habeas petitions on October 4, 2005 and 8 September 13, 2006, respectively. (Answer Ex. 9 & 11.) Petitioner filed a federal 9 petition for a writ of habeas corpus on October 20, 2006. The case was transferred to the 10 Northern District of California on November 29, 2006. 11 On January 11, 2007, Petitioner was again denied parole by the BPH at a 12 subsequent hearing. On April 9, 2007, Petitioner filed another petition in Los Angeles 13 County Superior Court challenging the denial of parole on the basis of breach of 14 contract. That petition was denied by the California Court of Appeal on May 4, 2007. 15 Petitioner appealed that decision to the California Supreme Court on August 17, 2007. 16 That petition was denied on February 20, 2008. Petitioner filed the instant federal 17 petition on March 4, 2008. 18 19 DISCUSSION Petitioner claims that the BPH violated his due process rights by denying him 20 parole without factual support for a finding of unsuitability; relying on the static factors 21 of his crime alone; failing to comply with California Penal Code section 3041 and 22 breaching the contract of his plea agreement. Petitioner also raises claims regarding the 23 legality of his guilty plea and plea agreement. 24 25 Standard of Review The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified 26 under 28 U.S.C. § 2254, provides “the exclusive vehicle for a habeas petition by a state 27 prisoner in custody pursuant to a state court judgment, even when the petitioner is not 28 5 1 challenging his underlying state court conviction.” White v. Lambert, 370 F.3d 1002, 2 1009-10 (9th Cir. 2004). Under AEDPA, this Court may entertain a petition for habeas 3 relief on behalf of a California state inmate “only on the ground that he is in custody in 4 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 5 § 2254(a). The writ may not be granted unless the state court’s adjudication of any claim on 6 7 the merits: “(1) resulted in a decision that was contrary to, or involved an unreasonable 8 application of, clearly established Federal law, as determined by the Supreme Court of 9 the United States; or (2) resulted in a decision that was based on an unreasonable 10 determination of the facts in light of the evidence presented in the State court 11 proceeding.” 28 U.S.C. § 2254(d). Under this deferential standard, federal habeas relief 12 will not be granted “simply because [this] court concludes in its independent judgment 13 that the relevant state-court decision applied clearly established federal law erroneously 14 or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 15 529 U.S. 362, 411 (2000). While circuit law may provide persuasive authority in determining whether the 16 17 state court made an unreasonable application of Supreme Court precedent, the only 18 definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the 19 holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court 20 decision. Williams, 529 U.S. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 21 2003). 22 In determining whether the state court’s decision is contrary to, or involved an 23 unreasonable application of, clearly established federal law, a federal court looks to the 24 decision of the highest state court to address the merits of a petitioner’s claim in a 25 reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000). If the 26 state court only considered state law, the federal court must ask whether state law, as 27 explained by the state court, is “contrary to” clearly established governing federal law. 28 6 1 See, e.g., Lockhart v. Terhune, 250 F.3d 1223, 1230 (9th Cir. 2001); Hernandez v. Small, 2 282 F.3d 1132, 1141 (9th Cir. 2002) (state court applied correct controlling authority 3 when it relied on state court case that quoted Supreme Court for proposition squarely in 4 accord with controlling authority). If the state court, relying on state law, correctly 5 identified the governing federal legal rules, the federal court must ask whether the state 6 court applied them unreasonably to the facts. See Lockhart, 250 F.3d at 1232. Legal Claims and Analysis 7 8 1. Factual Support for Parole Denial 9 Petitioner claims that his due process rights under the Fourteenth Amendments 10 were violated by BPH’s denial of parole without a “factual record to support the 11 findings.” Petitioner also claims that the Board improperly applied the “some evidence” 12 standard in determining whether Petitioner should be found suitable for parole. 13 Respondent claims the “some evidence” standard is improper. 14 15 A. Background Due process requires that “some evidence” support the parole board’s decision 16 finding the prisoner unsuitable for parole. Sass v. California Bd. of Prison Terms, 461 17 F.3d 1123, 1128 (9th Cir. 2006) (holding that the “some evidence” standard for 18 disciplinary hearings outlined in Superintendent v. Hill, 472 U.S. 445, 454-55 (1985), 19 applies to parole decisions in a section 2254 habeas petition); Biggs v. Terhune, 334 F.3d 20 910, 15 (9th Cir. 2003) (same); McQuillion v. Duncan, 306 F.3d 895, 904 (9th Cir. 2002) 21 (same). The “some evidence” standard is minimally stringent and ensures that “the 22 record is not so devoid of evidence that the findings of [the parole board] were without 23 support or otherwise arbitrary. Hill, 472 U.S. at 457. Determining whether this 24 requirement is satisfied “does not require examination of the entire record, independent 25 assessment of the credibility of witnesses, or weighing of the evidence.” Id. at 455 26 (quoted in Sass, 461 F.3d at 1128). 27 28 When assessing whether a state parole board’s suitability determination was 7 1 supported by “some evidence,” the court’s analysis is framed by the statutes and 2 regulations governing parole suitability determinations in the relevant state. Irons v. 3 Carey, 505 F.3d 846, 851 (9th Cir. 2007). Accordingly, in California, the court must 4 look to California law to determine the findings that are necessary to deem a prisoner 5 unsuitable for parole. Id. 6 The recent California Supreme Court case of In re Lawrence, 44 Cal.4th 1181 7 (2008), clarified what California law requires the parole board to find in order to deny 8 parole: the Board must find only that the prisoner is a current threat to public safety, not 9 that some of the specific factors in the regulations have or have not been established. Id. 10 at 1212. This means that the “some evidence” test is whether there is “some evidence” 11 that the prisoner is a threat, not whether there is “some evidence” to support particular 12 secondary findings of the parole board, for instance that the prisoner needs more time for 13 rehabilitation. Id.; see Irons, 505 F.3d at 851 (when assessing whether a state parole 14 board’s suitability determination was supported by “some evidence,” the court’s analysis 15 is framed by the statutes and regulations governing parole suitability determinations in 16 the relevant state). 17 The Los Angeles County Superior Court denied Petitioner’s habeas petition, 18 finding that establish that there is “‘some evidence’ to support the Board’s finding that 19 the petitioner is unsuitable for parole.” (Answer Ex. 7.) The court relied on the 20 “especially violent and brutal” nature of the offense, that Petitioner had not sufficiently 21 participated in self-help programs, noting that Petitioner failed to adequately explain the 22 lack of precipitation for his actions. 23 Because the Superior Court is the highest state court to address the merits of 24 Petitioner’s claim in a reasoned opinion, this Court looks to its decision to decide 25 whether it was contrary to, or involving an unreasonable application of, clearly 26 established federal law. See LaJoie, 217 F.3d at 669 n.7. 27 28 8 1 2 B. Analysis The decision of the Los Angeles County Superior Court found that the record 3 contained “some evidence” to support the BPH conclusion that Petitioner was unsuitable 4 for parole. (Answer Ex. 7.) The decision found that there was “some evidence” to 5 support for the BPH’s finding that the crime was especially violent or brutal because it 6 involved multiple victims and that Petitioner could benefit from additional self-help 7 programming to gain insight and address “outstanding anger related issues.” Id. at 2. 8 The Superior Court found support for the BPH’s decision that Petitioner would pose an 9 unreasonable public safety threat. Id. at 3. 10 The BPH had some evidence to support its findings that Petitioner needed further 11 programming “in order to face, discuss, understand, and cope with stress in a 12 nondestructive manner. ” (Answer Ex. 2 at 54.) Specifically, while Petitioner had 13 committed himself to AA and NA, the BPH relied on his failure to complete any anger 14 management programs. Petitioner’s testimony showed that he lacked adequate insight 15 into his criminal behavior as his testimony reflected that he could not recall the number 16 of victims he shot and an adequate understanding for why he had committed an attack on 17 five victims. In rendering a decision, a Deputy BPH Commissioner relied on this failure 18 of understanding, stating that the inconsistencies from his testimony “causes me to 19 conclude that you’ve either put the commitment offense out of your mind and behind 20 you, which is not an appropriate move to make, or you’re simply glossing over it, which 21 is also not appropriate.” Id. at 57. 22 The facts on which the BPH relied provide some evidence to support the finding 23 of Petitioner’s current dangerousness. The findings regarding the callousness of his 24 crimes, as well as his lack of insight constitute some evidence which “rationally 25 indicate[s] that [he] will present an unreasonable public safety risk if released from 26 prison.” In re Scott, 133 Cal. App. 4th 573, 595 (2005). It was not irrational for the 27 BPH to conclude that a prisoner who cannot provide adequate insight into his own 28 9 1 behavior continues to pose an unreasonable risk to society, despite his other prison 2 behavioral and educational gains. 3 The question before this Court is not whether BPH properly weighed the evidence 4 before it; the question is whether there was “some evidence” to support the BPH’s denial 5 of parole. Sass, 461 F.3d at 1128. It is not up to this Court to “reweigh the evidence.” 6 Powell v. Gomez, 33 F.3d 39, 42 (9th Cir. 1994). Because the BPH’s denial of parole 7 was supported by some evidence, the Los Angeles County Superior Court decision 8 upholding the BPH’s parole denial was not contrary to, or an unreasonable application 9 of, clearly established federal law. See Williams, 529 U.S. at 411; 28 U.S.C. § 2254(d). 10 Therefore, habeas relief is not warranted on this claim. 11 2. Reliance on Crime Alone 12 Petitioner claims that the Board’s violated his due process by denying his parole 13 solely based on the facts of his crime alone. Petitioner claims the Board ignored his 14 many achievements while in prison. Respondent argues that Petitioner fails to state a 15 claim. 16 17 A. Background California law clearly provides that “the nature of the prisoner’s offense, alone, 18 can constitute a sufficient basis for denying parole.” In re Rosenkrantz, 29 Cal. 4th 616, 19 682 (2002). However, “the denial of parole may be predicated on a prisoner’s 20 commitment offense only where the Board can ‘point to factors beyond the minimum 21 elements of the crime for which the inmate was committed’ that demonstrate the inmate 22 will, at the time of the suitability hearing, present a danger to society if released.” Irons, 23 505 F.3d at 852 (citing In re Dannenberg, 34 Cal. 4th 1061, 1071 (2005)). The 24 circumstances must show that “[t]he prisoner committed the offense in an especially 25 heinous, atrocious or cruel manner[.]” Cal. Code Regs. tit. 15, § 2402(c)(1). But 26 overall, the “circumstances of the crime reliably established by evidence in the record” 27 must “rationally indicate that the offender will present an unreasonable public safety risk 28 10 1 if released from prison” to justify a denial of parole on the basis of the commitment 2 offense. Scott, 133 Cal. App. 4th at 595. 3 While “the parole board’s sole supportable reliance on the gravity of the offense 4 and conduct prior to imprisonment to justify denial of parole can be initially justified,” 5 over time, “should [a prisoner] continue to demonstrate exemplary behavior and 6 evidence of rehabilitation, denying him a parole date simply because of the nature of 7 [his] offense and prior conduct would raise serious questions involving his liberty 8 interest in parole.” Biggs v. Terhune, 334 F.3d 910, 916 (9th Cir. 2003). “A continued 9 reliance . . . on an unchanging factor, the circumstance of the offense and conduct prior 10 to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system 11 and could result in a due process violation.” Id. at 917. B. 12 Analysis This Court finds Petitioner's arguments unpersuasive. The Board's decision here 13 14 relied not only on the circumstances of petitioner's commitment offense but also on his 15 failure to sufficiently participate in self-help and his lack of insight into his commitment 16 offense and behavior. Under the relevant standard, these factors constitute “some 17 evidence” in support of the Board's decision that petitioner was not yet suitable for 18 release on parole. Sass, 461 F.3d at 1129; Irons, 505 F.3d at 853. Accordingly, 19 Petitioner is not entitled to habeas relief on this claim. 20 3. 21 Petitioner claims the BPH failed to consider Petitioner’s suitability for parole in a California Penal Code section 3401 22 manner required by California Penal Code section 3041. The Los Angeles County 23 Superior Court rejected this claim, finding that the Board did not rely on static factors 24 alone. 25 26 27 28 A. Background Section 3041(a) requires the Board to meet with each inmate one year before the expiration of his minimum sentence and normally set a release date in a manner that will 11 1 provide uniform terms for offenses of similar gravity and magnitude with respect to their 2 threat to the public, as well as comply with applicable sentencing rules. Cal. Penal Code 3 § 3041(a). However, subsection (b) of this section requires that the Board set a release 4 date “unless it determines that the gravity of current convicted offense or offenses, or the 5 timing and gravity of current or past convicted offense or offenses, is such that 6 consideration of the public safety requires a more lengthy period of incarceration.” Id. at 7 § 3041(b) (emphasis added). 8 9 To determine whether an inmate is a current threat to society, the Board must in turn “identify and weigh . . . [pre and post-conviction] factors relevant to predicting 10 whether the inmate will able to live in society without committing additional antisocial 11 acts.” In re Lawrence, 44 Cal. 4th 1181, 1205-1206 (2008). Additionally, title 15, 12 section 2402, of the California Code of Regulations states that “all relevant, reliable 13 information available to the panel shall be considered in determining” a prisoner’s 14 suitability for parole. Cal. Code Regs., tit. 15, § 2402. Furthermore, “circumstances 15 which taken alone may not firmly establish unsuitability for parole may contribute to a 16 pattern which results in a finding of unsuitability.” Id. BPH considers an expansive list 17 of factors including: the prisoner’s social history, the commitment offense and prior 18 criminal history, his behavior before, during and after the crime and “any other 19 information which bears on the prisoner’s suitability for release.” See Cal. Code Regs. 20 tit. 15, § 2402(b) – (d). The regulations specifically include as factors tending to support 21 unsuitability for parole: whether the commitment offense was committed in an especially 22 heinous, atrocious or cruel manner; a prisoner’s previous record of violence; an unstable 23 social history; psychological factors; and institutional behavior. Cal. Code Regs. tit. 15, 24 § 2402(c). The regulations specifically include as factors tending to support suitability 25 for parole: no juvenile record; stable social history; signs of remorse; stress-related 26 motivation for the crime; lack of criminal history; age; understanding and plans for the 27 future; and institutional behavior. Cal. Code Regs. tit. 15, § 2402(d). 28 12 1 The key is how those factors interrelate and whether those factors provide “some 2 evidence” the prisoner is currently dangerous to the public. See In re Lawrence, 44 Cal. 3 4th at 1212; see also Hayward v. Marshall, 512 F.3d 536, 543 (9th Cir. 2008) (it is not 4 “that a particular factor or factors indicating unsuitability exist but that a prisoner's 5 release will unreasonably endanger public safety.”). Accordingly, the inquiry is whether 6 “some evidence indicates a parolee's release unreasonably endangers public safety.” Id. 7 As long as the evidence underlying the Board's decision has “some indicia of reliability,” 8 parole has not been arbitrarily denied. See Jancsek v. Or. Bd. of Parole, 833 F.2d 1389, 9 1390 (9th Cir. 1987). As the California courts have continually noted, the Board’s 10 discretion in parole release matters is very broad. See Lawrence, 44 Cal.4th at 1204. 11 Thus, the penal code, corresponding regulations, and California law clearly establish that 12 the fundamental consideration in parole decisions is public safety and an assessment of a 13 prisoner's current dangerousness. See id. at 1205-06. B. 14 Analysis 15 Here, Petitioner was not constitutionally deprived of his liberty interest in parole 16 because there was “some evidence” to support the Board's decision denying him parole 17 after over twenty years in prison and six parole hearings. Petitioner has not established 18 that the BPH decision violated his rights. For the reasons stated above in Section 3, 19 Petitioner is denied relief on this claim. 20 4. 21 Petitioner’s remaining claims, 4 through 6 in the amended petition, challenge Untimeliness of Remaining Claims 22 aspects of his plea agreement and the denial of parole as violating its terms. Respondent 23 argues that these claims are time-barred. 24 25 A. Legal Standard The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which 26 became law on April 24, 1996, imposed for the first time a statute of limitations on 27 petitions for a writ of habeas corpus filed by state prisoners. 28 U.S.C. § 2244(d)(1). 28 13 1 Petitions filed by prisoners challenging non-capital state convictions or sentences must 2 be filed within one year of the latest of the date on which: (A) the judgment became 3 final after the conclusion of direct review or the time passed for seeking direct review; 4 (B) an impediment to filing an application created by unconstitutional state action was 5 removed, if such action prevented petitioner from filing; (C) the constitutional right 6 asserted was recognized by the Supreme Court, if the right was newly recognized by the 7 Supreme Court and made retroactive to cases on collateral review; or (D) the factual 8 predicate of the claim could have been discovered through the exercise of due diligence. 9 28 U.S.C. § 2244(d)(1). 10 Under § 2244(d)(1)(A), the limitations period begins running on the date that the 11 petitioner’s direct review became final. In this case, judgment was rendered on August 12 12, 1985, and Petitioner did not file an appeal. Pursuant to Rule 30.1 (amended and 13 renumbered 8.308) of the California Rules of Court, Petitioner had sixty (60) days in 14 which to file a notice of appeal. Because Petitioner did not file a notice of appeal, his 15 direct review concluded on October 12, 1985, when the sixty-day period for filing a 16 notice of appeal expired. Thus, under § 2244(d)(1)(A), Petitioner would ordinarily have 17 had one year, or until October 12, 1986, in which to file his federal petition for writ of 18 habeas corpus. See Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir.2001). 19 In most cases, the one year limitations period will start on the date on which the 20 judgment becomes final after the conclusion of direct review or the time passes for 21 seeking direct review, but the limitations period may start on a later date. See 28 U.S.C. 22 § 2244(d)(1)(A)-(D). The statute of limitations applies to the entire “application” when 23 the starting date is completion of direct review under § 2244(d)(1)(A), but when the 24 starting date is determined under any of the other subsections, §§ 2244(d)(1)(B)-(D), the 25 statute of limitations is applied on a claim-by-claim basis. Pace v. DiGuglielmo, 544 26 U.S. 408, 416 n.6 (2005) (“[Section] 2244(d)(1) provides that a ‘1-year period of 27 limitation shall apply to an application for a writ of habeas corpus.’ (Emphasis added.) 28 14 1 The subsection then provides one means of calculating the limitation with regard to the 2 ‘application’ as a whole, § 2244(d)(1)(A) (date of final judgment), but three others that 3 require claim-by-claim consideration, § 2244(d)(1)(B) (governmental interference); § 4 2244(d)(1)(C) (new right made retroactive); § 2244(d)(1)(D) (new factual predicate).”). 5 Under § 2244(d)(1)(D), the one-year limitation period starts on the date on which 6 “the factual predicate of the claim or claims presented could have been discovered 7 through the exercise of due diligence.” The time begins “‘when the prisoner knows (or 8 through diligence could discover) the important facts, not when the prisoner recognizes 9 their legal significance.’” Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2000) 10 (quoting Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000)) (remanding case to district 11 court for further factual findings concerning determination of when, with exercise of due 12 diligence, petitioner could have discovered facts to support prejudice prong of IAC 13 claim). Section 2244(d)(1)(D) accordingly allows the limitation period to start running 14 at a later date “when the facts on which a federal habeas claim is based would not have 15 been discovered by a duly diligent petitioner.” Ybanez v. Johnson, 204 F.3d 645, 646 16 (5th Cir. 2000) (citation omitted). Petitioner initially filed his claim in the state courts in 17 2007, long after the limitations period had run with regard to any challenge to the initial 18 plea and long after Petitioner would have been aware of the facts supporting his breach 19 of contract claim with regard to the failure to grant parole. Thus, absent any applicable 20 tolling, the instant petition is barred by the statute of limitations. Petitioner has the 21 burden of showing facts entitling him to statutory and to equitable tolling. Smith v. 22 Duncan, 297 F.3d 809, 814 (9th Cir. 2002); Miranda v. Castro, 292 F.3d 1063, 1065 23 (9th Cir. 2002). Petitioner has failed to establish entitlement to either tolling provision. 24 25 B. Analysis Petitioner's direct appeal became final in 1985 and he first became eligible for 26 parole in 1995. Petitioner has had multiple parole hearings in which he was denied 27 parole before the 2004 hearing. Yet it wasn’t until April 9, 2007, that Petitioner filed a 28 15 1 petition in the state courts seeking relief on the ground that the plea agreement had been 2 violated and that the plea was not knowing and voluntary. On May 4, 2007, the 3 California Court of Appeal denied relief, finding that petitioner failed to show prejudice 4 from the error. 5 Under AEDPA, the statute of limitations for a claim regarding the circumstances 6 of Petitioner’s plea is long past expired, as Petitioner filed his federal petition on March 7 4, 2008, more than twenty three years after the conclusion of his direct review. 8 Patterson, 251 F.3d at 1246. Petitioner’s claims regarding the breach of contract with 9 regard to the denial of parole, governed by § 2244(d)(1)(D), are also untimely. 10 Petitioner was initially eligible for parole in 1995 but failed to bring his first state court 11 petition regarding the breach of contract until April 9, 2007, after multiple parole 12 hearings. Thus, even if the limitations period is governed by § 2244(d)(1)(D), the 13 petition is still untimely. 14 15 Because Petitioner’s claims 4 through 6 in the petition are denied as untimely, Petitioner’s motion seeking judicial notice (docket no. 19) is DENIED as moot. CONCLUSION 16 17 18 19 20 21 22 For the reasons set forth above, the petition for a writ of habeas corpus is DENIED. The Clerk shall enter judgment in favor of Respondent and close the file. IT IS SO ORDERED. DATED: January 14, 2010 JEFFREY S. WHITE United States District Judge 23 24 25 26 27 28 16 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 LONG LAM, 6 7 8 9 Case Number: CV06-07347 JSW Plaintiff, v. BEN CURRY et al, Defendant. 10 11 12 13 14 CERTIFICATE OF SERVICE / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on January 14, 2010, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 15 16 17 18 19 Long Lam D12629 CTF Central P.O. Box 689 Soledad, CA 93960 20 21 22 23 24 25 26 27 28 Dated: January 14, 2010 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk
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