Johnson v. Campbell, No. 3:2007cv02921 - Document 28 (N.D. Cal. 2010)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge JEFFREY S. WHITE on 9/28/10. (jjoS, COURT STAFF) (Filed on 9/28/2010)
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Johnson v. Campbell Doc. 28 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 LAMERLE RONNIE JOHNSON, Petitioner, 9 11 For the Northern District of California United States District Court 10 No. C 07-2921 JSW (PR) vs. ROSANNE CAMPBELL, Warden, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY Respondent. 12 / 13 14 Petitioner, a prisoner of the State of California, has filed a habeas corpus petition 15 challenged a parole denial. This Court ordered Respondent to show cause why a writ should 16 not issue. After Respondent had answered and Petitioner had filed a traverse, the United States 17 Court of Appeals for the Ninth Circuit decided Hayward v. Marshall, 603 F.3d 546 (9th Cir. 18 2010) (en banc), in which a number of important issues involving parole habeas cases had been 19 raised. In consequence, the Court ordered the parties to provide supplemental briefs addressing 20 the impact of Hayward on this case, which they have done. For the reasons stated below, the 21 petition is denied on the merits. BACKGROUND 22 23 Petitioner was convicted by a San Mateo County jury of kidnaping for ransom, 24 second degree robbery, and assault with a firearm. (Ex. B (Court of Appeal Opinion) at 1.)1 In 25 January of 1996 he was sentenced to life in prison plus eleven years. (Ex. A (Abstract of 26 27 Citations to “Ex.” are to the record as lodged by the Respondent, unless otherwise indicated. 1 28 Dockets.Justia.com 1 Judgment).) His petition here is directed to a March 22, 2006, denial of parole by the Board of 2 Parole Hearings (“Board”). (Pet. at 8.) It was his first parole hearing. (Ex. E (Transcript of 3 Hearing) 1, 6.) 4 5 DISCUSSION I. 6 Standard of Review The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified under 7 28 U.S.C. § 2254, provides “the exclusive vehicle for a habeas petition by a state prisoner in 8 custody pursuant to a state court judgment, even when the Petitioner is not challenging his 9 underlying state court conviction.” White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004). Under AEDPA, this Court may entertain a petition for habeas relief on behalf of a California 11 For the Northern District of California United States District Court 10 state inmate “only on the ground that he is in custody in violation of the Constitution or laws or 12 treaties of the United States.” 28 U.S.C. § 2254(a). 13 The writ may not be granted unless the state court’s adjudication of any claim on the 14 merits: “(1) resulted in a decision that was contrary to, or involved an unreasonable application 15 of, clearly established Federal law, as determined by the Supreme Court of the United States; or 16 (2) resulted in a decision that was based on an unreasonable determination of the facts in light 17 of the evidence presented in the State court proceeding.” Id. at § 2254(d). Under this 18 deferential standard, federal habeas relief will not be granted “simply because [this] court 19 concludes in its independent judgment that the relevant state-court decision applied clearly 20 established federal law erroneously or incorrectly. Rather, that application must also be 21 unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). 22 While circuit law may provide persuasive authority in determining whether the state 23 court made an unreasonable application of Supreme Court precedent, the only definitive source 24 of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to 25 the dicta) of the Supreme Court as of the time of the state court decision. Id. at 412; Clark v. 26 Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). 27 II. 28 Respondent’s Claims In order to preserve the issues for appeal, Respondent argues that California prisoners 2 1 have no liberty interest in parole, and that if they do, the only due process protections available 2 are a right to be heard and a right to be informed of the basis for the denial – that is, Respondent 3 contends there is no due process right to have the result supported by sufficient evidence. 4 Because these contentions are contrary to Ninth Circuit law, they are without merit. See Pirtle 5 v. California Bd. of Prison Terms, 611 F.3d 1015, 1020-21 (2010) (California’s parole scheme 6 gives rise to a liberty interest in parole, including requirement that denial be supported by 7 “some evidence”); Cooke v. Solis, 606 F.3d 1206, 1213-14 (9th Cir. 2010) (citing Hayward, 603 8 F.3d at 555, 561-64); Pearson v. Muntz, 606 F.3d 606, 610-11 (9th Cir. 2010) (citing Hayward, 9 603 F.3d at 561-64). III. Petitioner’s Claims 11 For the Northern District of California United States District Court 10 As grounds for habeas relief, Petitioner asserts that: (1) the prison system as it presently 12 exists is not able to rehabilitate inmates; (2) the Board has a policy of denying parole at the first 13 parole consideration hearing; and (3) the San Mateo District Attorney had a “conflict of 14 interest” that should have prevented that office from opposing his parole. 15 A. 16 Petitioner frames his first issue thus: 17 PAROLE[] BOARDS[’] DUTIES ARE TO DETERMINE WHETHER OR NOT LIFE-INMATE HAS BEEN REHABILITATED. GOVERNOR ARNOLD SCHWARZENEGGER STATES THAT REHABILITATION IS NOT POSSIBLE UNDER CURRENT OVERCROWDING (ETC.) PRISON CONDITIONS BOARD, WHICH IS APPOINTED AND SUPERVISED UNDER THE AUTHORITY OF THE GOVERNOR THEREFORE CONSTITUTIONALLY IS UNABLE TO PERFORM ITS DUTIES OF ASCERTAINING PAROLEABILITY. 18 19 20 Rehabilitation/Bias Claim 21 22 23 (Pet. at 8.) It is difficult to be certain what Petitioner is attempting to claim here, but in light of 24 Petitioner’s lay person status, the Court will construe the claim liberally as an inartful attempt to 25 assert that the Board is biased. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001) 26 (Federal courts have a duty to construe pro se petitions for writs of habeas corpus liberally). 27 28 Petitioner has not provided evidence that the Governor or his appointees ever said that no prisoner could ever be rehabilitated in the California prison system, much less any evidence 3 1 that the Board or any member of it believes that. On the contrary, the record shows that the 2 Board reviewed the evidence extensively and discussed it with petitioner and his attorney. (Ex. 3 E at 13-76.) The Board’s decision explains the facts it relied upon in finding him not suitable 4 for parole. (Id. at 77-84.) Both these factors tend to negate the accusation of bias, and 5 petitioner has not established otherwise. The state courts’ rejection of this claim was not 6 contrary to, nor an unreasonable application of, clearly-established Supreme Court authority. 7 Under this claim in the petition are a number of sub-issues; they appear to be intended to 8 be points in support of the overall bias claim, although they in fact do not tend to prove it. The 9 Court will, however, consider whether any of these points provides a separate basis for relief. Petitioner contends that the job of the Board is to assess whether an inmate has been 11 For the Northern District of California United States District Court 10 rehabilitated. This may be a semantic distinction, but under California law the Board’s duty is 12 to determine if the inmate would be a danger to society if released. See In re Lawrence, 44 13 Cal.4th. 1181, 1191 (2008). Petitioner’s contention that rehabilitation is a “constitutionally 14 recognized mandate” is incorrect; although it was referred to, as he says, in Greenholtz v. 15 Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 8 (1979), the Supreme Court did not 16 hold in that case, nor has it ever held, that the Constitution requires rehabilitation of prisoners. 17 Petitioner also claims that denying parole based on the circumstances of the offense – 18 facts that can never be changed – violates due process. He cites Biggs v. Terhune, 334 F.3d 910 19 (9th Cir. 2003). Biggs contains a reference in dictum to the possibility that “[a] continued 20 reliance in the future on an unchanging factor, the circumstances of the offense and conduct 21 prior to imprisonment, [would] run[] contrary to the rehabilitation goals espoused by the prison 22 system and could result in a due process violation.” Id. at 916-17. However, in Hayward, the 23 Ninth Circuit overruled Biggs and two other cases “to the extent they might be read to imply 24 that there is a federal constitutional right regardless of whether state law entitles the prisoner to 25 release . . . .” Hayward, 603 F.3d at 556. Furthermore, there is no United States Supreme Court 26 authority holding that the circumstances of an offense cannot be the basis for denying parole, so 27 even if this part of Biggs had not been overruled, a “Biggs claim” could not be the basis for 28 relief here. 4 1 Petitioner contends that parole cannot be denied on the basis of behavior prior to 2 incarceration, because it was taken into account in sentencing. This simply does not follow; 3 when the question is whether paroling an inmate would endanger society, even pre- 4 incarceration facts might be relevant. Finally, Petitioner contends that denying parole based, in 5 part, on uncharged conduct violates a state statute saying that the parole board may not require a 6 potential parolee to admit the crime of which he was convicted. See Cal. Penal Code § 5011(b). 7 This is a state law claim and cannot be the basis for federal habeas relief. See Estelle v. 8 McGuire, 502 U.S. 62, 67-68 (1991) (federal habeas unavailable for violations of state law or 9 for alleged error in the interpretation or application of state law). B. 11 For the Northern District of California United States District Court 10 Petitioner contends that the Board has a policy of not granting parole at an inmate’s first Policy of Not Paroling at First Hearing 12 parole hearing. He has failed to provide any admissible evidence of such a policy, instead 13 relying on hearsay statements from a counselor and former Board staff. Petitioner thus has 14 failed to establish the predicate of his claim – that the Board has such a policy – and in any 15 event, there is no Supreme Court authority that would even suggest that such a policy would be 16 unconstitutional. This claim is without merit. 17 C. 18 The San Mateo District Attorney opposed parole for Petitioner. He contends that this District Attorney 19 was a “conflict of interest” in that he claims to have assisted the District Attorney in an 20 unsuccessful attempt to prosecute another crime. Presumably by this he means that the District 21 Attorney is opposing parole out of a desire for revenge for the failure of the prosecution in 22 which Petitioner cooperated. There simply is no federal constitutional right implicated by this 23 claim. It is without merit. 24 IV. Appealability 25 The federal rules governing habeas cases brought by state prisoners require a district 26 court that denies a habeas petition to grant or deny a certificate of appealability in the ruling. 27 See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (effective December 1, 28 2009). 5 1 A petitioner may not appeal a final order in a federal habeas corpus proceeding without 2 first obtaining a certificate of appealability (formerly known as a certificate of probable cause to 3 appeal). See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A judge shall grant a certificate of 4 appealability “only if the applicant has made a substantial showing of the denial of a 5 constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate must indicate which issues satisfy 6 this standard. See id. § 2253(c)(3). “Where a district court has rejected the constitutional 7 claims on the merits, the showing required to satisfy § 2253(c) is straightforward: the petitioner 8 must demonstrate that reasonable jurists would find the district court’s assessment of the 9 constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). This was not a close case. For the reasons set out above, jurists of reason would not find 11 For the Northern District of California United States District Court 10 the result debatable or wrong. A certificate of appealability will be denied. Petitioner is 12 advised that he may not appeal the denial of a COA, but he may ask the Court of Appeals to 13 issue a COA under Rule 22 of the Federal Rules of Appellate Procedure. See Rule 11(a), Rules 14 Governing § 2254 Cases. 15 CONCLUSION 16 The petition for a writ of habeas corpus is DENIED. The Clerk shall close the file. 17 IT IS SO ORDERED. 18 DATED: September 28, 2010 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 6 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 LA MERLE RONNIE JOHNSON, Case Number: CV07-02921 JSW 6 Plaintiff, CERTIFICATE OF SERVICE 7 v. 8 ROSANNE CAMPBELL et al, 9 Defendant. 11 For the Northern District of California United States District Court 10 12 13 14 / 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 September 28, 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 La Merle Ronnie Johnson MCSP (C14-245L) J-92682 P.O. 409060 Ione, CA 95640-9060 20 21 22 23 24 25 26 27 28 Dated: September 28, 2010 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk
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