Vivar v. Curry, No. 3:2007cv03832 - Document 14 (N.D. Cal. 2010)
Court Description: ORDER Denying Petition For Writ of Habeas Corpus. Signed by Judge Jeffrey S. White on 4/27/10. (jjoS, COURT STAFF) (Filed on 4/27/2010)
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Vivar v. Curry Doc. 14 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 For the Northern District of California United States District Court 11 ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS Petitioner, 9 10 No. C 07-3832 JSW (PR) JUSTINO VIVAR, vs. BEN CURRY, Warden, Respondent. 12 / 13 14 Petitioner, a prisoner of the State of California, has filed a habeas corpus petition 15 pursuant to 28 U.S.C. § 2254. This Court ordered Respondent to show cause why a writ 16 should not issue. Respondent filed an answer and a memorandum of points and 17 authorities in support of the answer. He also lodged the record with the Court. 18 Petitioner has filed a traverse. For the reasons stated below, the petition is denied on the 19 merits. BACKGROUND 20 Petitioner pleaded guilty in Los Angeles County Superior Court to second degree 21 22 murder. He was sentenced to a prison term of fifteen years to life in May of 1984. In 23 this habeas action Petitioner contends that the denial of parole by the Board of Prison 24 Hearings on May 12, 2005, violated his federal constitutional right to due process. 25 Petitioner raised the claims he presents here in state habeas petitions. They were 26 denied by the superior court and by the court of appeal with reasoned opinions. (Ex. D, 27 F.)1 The California Supreme Court denied review of the court of appeal’s denial. 28 Citations to “Ex.” are to the exhibits making up the record lodged by the Attorney General. 1 Dockets.Justia.com DISCUSSION 1 2 I. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified 3 4 under 28 U.S.C. § 2254, provides “the exclusive vehicle for a habeas petition by a state 5 prisoner in custody pursuant to a state court judgment, even when the Petitioner is not 6 challenging his underlying state court conviction.” White v. Lambert, 370 F.3d 1002, 7 1009-10 (9th Cir. 2004). Under AEDPA, this Court may entertain a petition for habeas 8 relief on behalf of a California state inmate “only on the ground that he is in custody in 9 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 10 2254(a). The writ may not be granted unless the state court’s adjudication of any claim on 11 For the Northern District of California United States District Court Standard of Review 12 the merits: “(1) resulted in a decision that was contrary to, or involved an unreasonable 13 application of, clearly established Federal law, as determined by the Supreme Court of 14 the United States; or (2) resulted in a decision that was based on an unreasonable 15 determination of the facts in light of the evidence presented in the State court 16 proceeding.” Id. at § 2254(d). Under this deferential standard, federal habeas relief will 17 not be granted “simply because [this] court concludes in its independent judgment that 18 the relevant state-court decision applied clearly established federal law erroneously or 19 incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 20 529 U.S. 362, 411 (2000). While circuit law may provide persuasive authority in determining whether the 21 22 state court made an unreasonable application of Supreme Court precedent, the only 23 definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the 24 holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court 25 decision. Id. at 412; Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). 26 II. Respondent’s Claims 27 In order to preserve the issues for appeal, Respondent argues that California 28 prisoners have no liberty interest in parole, and that if they do, the only due process 2 For the Northern District of California United States District Court 1 protections available are a right to be heard and a right to be informed of the basis for the 2 denial – that is, Respondent contends there is no due process right to have the result 3 supported by sufficient evidence. Because these contentions are contrary to Ninth 4 Circuit law, they are without merit. See Irons v. Carey, 479 F.3d 658, 662 (9th Cir. 5 2007) (applying "some evidence" standard used for disciplinary hearings as outlined in 6 Superintendent v. Hill, 472 U.S. 445-455 (1985)); Sass v. California Bd. of Prison 7 Terms, 461 F.3d 1123, 1128-29 (9th Cir. 2006) (the some evidence standard identified in 8 Hill is clearly established federal law in the parole context for purposes of § 2254(d)); 9 McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (“California’s parole scheme 10 gives rise to a cognizable liberty interest in release on parole.”). 11 III. 12 Petitioner’s Claims As grounds for federal habeas relief, Petitioner contends that (1) there was no 13 evidence to support the denial; (2) the California courts reviewing the denial failed to 14 apply California contract law to his claim that his plea agreement was breached; (3) the 15 Board breached his plea agreement; and (4) his due process right to fair notice was 16 violated by an unforeseeable judicial construction of the parole statute. 17 1. 18 Petitioner contends that denial of parole was not supported by “some evidence” 19 20 “Some Evidence” Claim and thus violated his due process rights. The Ninth Circuit has held that it violates due process to deny parole when there 21 is not "some evidence in the record" to support the denial or if the denial is "otherwise 22 arbitrary." Irons, 479 F.3d at 662 (applying "some evidence" standard used for 23 disciplinary hearings as outlined in Superintendent v. Hill, 472 U.S. 445-455 (1985)); 24 McQuillion, 306 F.3d at 904 (same). Ascertaining whether the some evidence standard 25 is met "does not require examination of the entire record, independent assessment of the 26 credibility of witnesses, or weighing of the evidence. Instead, the relevant question is 27 whether there is any evidence in the record that could support the conclusion reached by 28 the disciplinary board." Hill, 472 U.S. at 455; Sass, 461 F.3d at 1128. The some 3 1 evidence standard is minimal, and assures that "the record is not so devoid of evidence 2 that the findings of the disciplinary board were without support or otherwise arbitrary." 3 Sass, 461 F.3d at 1129 (quoting Hill, 472 U.S. at 457). 4 It is now established under California law that the task of the Board of Parole 5 Hearings and the governor is to determine whether the prisoner would be a danger to 6 society if he or she were paroled. See In re Lawrence, 44 Cal. 4th 1181 (2008). The 7 constitutional “some evidence” requirement therefore is that there be some evidence that 8 the prisoner would be such a danger, not that there be some evidence of one or more of 9 the factors that the regulations list as factors to be considered in deciding whether to For the Northern District of California United States District Court 10 grant parole. Id. at 1205-06. 11 The nature of the offense was one basis for the Board’s conclusion that Petitioner 12 would be a danger to society if paroled. At the hearing the presiding commissioner read 13 the following summary of the facts of the crime into the record. When asked, Petitioner 14 stated that he agreed with facts as read. (Ex. B at 13.) 15 I’m going to look at the Statement of Facts as they’re spelled briefly in the probation officer’s report on page two and this says: 16 17 18 19 20 21 22 23 24 25 26 27 “On December 31st, 1983, sometime between two p.m. and 11 p.m., several illegal aliens were celebrating the oncoming New Year in an avocado grove southeast of 1865 Idaho Avenue in Escondid, California. The group was seated around a campfire and all had consumed considerable amounts of alcoholic beverages. One witness recalled the group breaking up into two factions with a series of insults being hurled back and forth between the two groups. Subsequently, a fight broke out and between – broke out between Amadeo Morales Martinez and his codefendant Gadencio Vivar, . . . . codefendant Vivar repeatedly stabbed the victim wiht a machete and was soon joined by the defendant who proceeded to repeatedly stab the victim. One witness, while escaping from the area, noted that the victim was lying on the ground with his head tilted back and his eyes wide open. Nonetheless, both the defendant and codefendant continued to hit and hack away at the victim. Another witness recalled that [sic] the defendant and codefendant striking out at the victim while he was only attempting to protect himself and fend off the blows. This witness described the codefendant and defendant as, quote, ‘violent,’ End quote, when the were intoxicated.” And then the witness contacted a local rancher, who called the police, and Mr. Martinez was already dead when the got to the scene. 28 4 “And the subsequent autopsy revealed no less than nine stab wounds to the victim’s chest and throat. Additionally, the autopsy revealed no less than 25 wounds inflicted by the machete on the victim’s arms, back, and head. The victim’s left ear was missing as a result of one of these blows. The cause of death was cited as massive hemorrhage due to external lacerations, introthorasic massive – introthorasic lacerations, laceration to carotid artery, and a stab wound severing the victim’s aorta. The examining pathologist also noted that the victim had suffered lacerations and hemorrhage to the brain due to numerous blows to the head. Additionally, the victim had a blood alcohol level of .17 percent.” 1 2 3 4 5 6 7 8 For the Northern District of California United States District Court 9 (Ex. B at 13.) At the time of the hearing in 2005 Petitioner was forty-seven years old and had served just short of twenty-one years on his sentence of fifteen years to life. This 10 significant passage of time certainly reduces the evidentiary value of the offense itself, 11 but the Court concludes that the circumstances of the offense, which were exceptionally 12 brutal and inexplicable, still amount to “some evidence.” In addition, as the Board 13 noted, Petitioner had failed to get his GED, suggesting a certain lack of application as 14 well as increasing the chance that he would relapse into crime if unemployable when 15 released (id. at 26-27, 48); for another, Petitioner’s psychological evaluation from 2002 16 rated his potential for violence if released at “slightly higher than the average citizen” 17 (id. at 32), whereas the 2004 evaluation for the present hearing listed his potential for 18 violence if released as “no more than the average citizen” (id. at 31). As the Board 19 noted, this gain was “recent” (id. at 48), so the 2002 evaluation still constitutes some 20 evidence. 21 There was “some evidence” to support the denial. See Rosas v. Nielsen, 428 F.3d 22 1229, 1232–33 (9th Cir. 2005) (facts of the offense and psychiatric reports about the 23 would-be parolee sufficient to support denial). And even if there was not “some 24 evidence” to support it, it certainly was not unreasonable for the state courts to conclude 25 that there was. This claim is without merit. 26 2. 27 Petitioner contends that the California courts did not apply, or did not properly 28 Construction of Plea Agreement apply, California contract law to construe his plea agreement. 5 Federal habeas relief is available only for violations of federal law. See Estelle v. For the Northern District of California United States District Court 1 2 McGuire, 502 U.S. 62, 67-68 (1991) (federal habeas unavailable for violations of state 3 law or for alleged error in the interpretation or application of state law). It is not 4 available for violations of state law, such as Petitioner alleges in this issue. To the extent 5 Petitioner has a federal claim, it is that the plea bargain was breached, which is discussed 6 below. 7 This claim presents no basis for habeas relief. 8 3. 9 Petitioner contends that by implication his plea bargain incorporated California 10 law as it existed at the time of the agreement, and that the Board has breached the plea 11 bargain by not applying that law. Breach of Plea Bargain 12 A defendant has a due process right to enforce the terms of his plea agreement. 13 Buckley v. Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en banc). When a guilty plea 14 “rests in any significant degree on a promise or agreement of the prosecutor, so that it 15 can be said to be a part of the inducement or consideration, such promise must be 16 fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971). 17 However, the Ninth Circuit has held that California contracts, including plea 18 agreements, are “deemed to incorporate and contemplate not only the existing law but 19 the reserve power of the state to amend the law or enact additional laws.” Davis v. 20 Woodford, 446 F.3d 957, 962 (9th Cir. 2006) (quoting People v. Gipson (In re Gipson), 21 117 Cal. App. 4th 1065, 1070 (2004)). Davis disposes of Petitioner’s argument. 22 Petitioner also may be trying to present a claim that by denying him parole the 23 Board has breached the plea bargain by treating him as if he had been convicted of first- 24 degree murder. 25 In California, a sentence of years-to-life is a life sentence until the parole board 26 decides that the prisoner is suitable for parole. In re Dannenberg, 34 Cal. 4th at 1082- 27 83. Petitioner was sentenced to a term of fifteen years to life. First degree murder is 28 punishable by death, life without parole, or a term of twenty-five years to life. Cal. 6 1 Penal Code § 190(a). Petitioner received parole consideration before he had served 2 fifteen years, long before he would have been considered for parole if he had been 3 convicted of first degree murder and sentenced to twenty-five years to life, and of course 4 he has avoided the possible penalties of life without parole or the death penalty. He is 5 not being treated as if he had been convicted of first degree murder. For the Northern District of California United States District Court 6 In this section Petitioner also refers to the “matrix,” regulations that attempt to set 7 specific sentences for indeterminate prisoners such as Petitioner, rather like the federal 8 sentencing guidelines. California law, however, is that the Board is under no duty the 9 apply the matrix if it finds that the prisoner is unsuitable for parole. Dannenberg, 34 10 Cal. 4th at 1071. “The Legislature has not disturbed the Board’s long-standing formal 11 policy that a determination of individual suitability must precede the setting of a 12 “uniform” parole release date.” Id. “The BPT acts properly in determining unsuitability, 13 and the inmate receives all constitutional process due, if the Board provides the requisite 14 procedural rights, applies relevant standards, and renders a decision supported by “some 15 evidence.” Id. 16 Habeas relief will be denied on this claim. 17 4. 18 Petitioner contends that California has “overruled” by judicial construction much Fair Notice 19 of Section 3041 of the California Penal Code, relating to grants of parole, and various 20 regulations. He asserts that this has the effect of lengthening his sentence and thus 21 violates his due process rights as established in Bouie v. City of Columbia, 378 U.S. 347 22 (1964). 23 Although retroactive increases in the scope of criminal liability by judicial 24 construction are barred by the Fourteenth Amendment Due Process Clause, retroactive 25 sentence enhancements by judicial construction do not violate due process. United 26 States v. Newman, 203 F.3d 700, 703 (9th Cir. 2000); see also Holgerson v. Knowles, 27 309 F.3d 1200, 1203 (9th Cir. 2002) (holding that the Supreme Court has not clearly 28 established that retroactive sentence enhancements by judicial construction violate due 7 1 process); cf. United States v. Hosoi, 314 F.3d 353, 355 (9th Cir. 2002) (per curiam) 2 (holding that decision in United States v. Buckland, 289 F.3d 558 (9th Cir. 2002), 3 regarding constitutionality of mandatory minimum sentencing term, applies 4 retroactively) (“Retroactive application of judicial decisions is the rule, not the 5 exception”). CONCLUSION 6 The petition for a writ of habeas corpus is DENIED. The Clerk shall close the 7 8 9 11 For the Northern District of California United States District Court 10 file. IT IS SO ORDERED. DATED: April 27, 2010 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G:\JSWALL\Pro-Se Prisoner\2007\Vivar3832.RUL.wpd 8 1 UNITED STATES DISTRICT COURT 2 FOR THE 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 JUSTINO R. VIVAR, Case Number: CV07-03832 JSW 6 Plaintiff, CERTIFICATE OF SERVICE 7 v. 8 BEN CURRY 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 April 27, 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 18 Justino R. Vivar C87891 P.O. Box 689 Soledad, CA 93960 19 Dated: April 27, 2010 17 20 21 22 23 24 25 26 27 28 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk
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