Chavez v. Curry, No. 4:2007cv05014 - Document 17 (N.D. Cal. 2009)
Court Description: ORDER DENYING HABEAS PETITION, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 10/19/09. (nah, COURT STAFF) (Filed on 10/19/2009)
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Chavez v. Curry Doc. 17 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 SANTOS CHAVEZ, Petitioner, 8 vs. 9 ORDER DENYING HABEAS PETITION BEN CURRY, Warden, Respondents. 11 For the Northern District of California United States District Court 10 No. C 07-5014 PJH (PR) / 12 13 14 This is a habeas corpus case filed by a state prisoner pursuant to 28 U.S.C. § 2254. The petition is directed to a denial of parole. 15 The court ordered respondent to show cause why the writ should not be granted. 16 Respondent has filed an answer and a memorandum of points and authorities in support of 17 it, and has lodged exhibits with the court. Petitioner has responded with a traverse. For 18 the reasons set forth below, the petition will be denied. 19 BACKGROUND 20 In 1984 petitioner pled guilty to second degree murder. He was sentenced to prison 21 for seventeen years to life. This petition is directed to a denial of parole on February 9, 22 2006. DISCUSSION 23 24 25 I. Standard of Review A district court may not grant a petition challenging a state conviction or sentence on 26 the basis of a claim that was reviewed on the merits in state court unless the state court's 27 adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an 28 unreasonable application of, clearly established Federal law, as determined by the Dockets.Justia.com 1 Supreme Court of the United States; or (2) resulted in a decision that was based on an 2 unreasonable determination of the facts in light of the evidence presented in the State court 3 proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions of law and to 4 mixed questions of law and fact, Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), 5 while the second prong applies to decisions based on factual determinations, Miller-El v. 6 Cockrell, 537 U.S. 322, 340 (2003). For the Northern District of California United States District Court 7 A state court decision is “contrary to” Supreme Court authority, that is, falls under the 8 first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that 9 reached by [the Supreme] Court on a question of law or if the state court decides a case 10 differently than [the Supreme] Court has on a set of materially indistinguishable facts.” 11 Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable application 12 of” Supreme Court authority, falls under the second clause of § 2254(d)(1), if it correctly 13 identifies the governing legal principle from the Supreme Court’s decisions but 14 “unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. The 15 federal court on habeas review may not issue the writ “simply because that court concludes 16 in its independent judgment that the relevant state-court decision applied clearly 17 established federal law erroneously or incorrectly.” Id. at 411. Rather, the application must 18 be “objectively unreasonable” to support granting the writ. See id. at 409. 19 “Factual determinations by state courts are presumed correct absent clear and 20 convincing evidence to the contrary.” Miller-El, 537 U.S. at 340. This presumption is not 21 altered by the fact that the finding was made by a state court of appeals, rather than by a 22 state trial court. Sumner v. Mata, 449 U.S. 539, 546-47 (1981); Bragg v. Galaza, 242 F.3d 23 1082, 1087 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001). A petitioner must present 24 clear and convincing evidence to overcome § 2254(e)(1)'s presumption of correctness; 25 conclusory assertions will not do. Id. 26 Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual 27 determination will not be overturned on factual grounds unless objectively unreasonable in 28 light of the evidence presented in the state-court proceeding.” Miller-El, 537 U.S. at 340; 2 1 see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). For the Northern District of California United States District Court 2 When there is no reasoned opinion from the highest state court to consider the 3 petitioner’s claims, the court looks to the last reasoned opinion. See Ylst v. Nunnemaker, 4 501 U.S. 797, 801-06 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079, n. 2 (9th 5 Cir.2000). 6 II. Issues Presented 7 As grounds for federal habeas relief, petitioner contends that: (1) Use of the 8 dismissed charges against him as grounds to deny parole violated his plea agreement; (2) 9 police reports about the offense to which petitioner pled guilty were not reliable, so the facts 10 contained in those reports, if not confirmed at the plea proceeding, cannot be “some 11 evidence” to support denial of parole; (3) failure to meet one of the suitability factors is not 12 enough to constitute “some evidence;” (4) the indeterminate sentencing law 13 unconstitutionally deprives him of his statutory right to good time; (5) there was not “some 14 evidence” that petitioner would be a danger to the public if released; (6) the Board’s use of 15 the circumstances of his crime to deny him parole violated due process; (7) application of 16 Proposition 89 to petitioner, who was convicted before its passage, violated his ex post 17 facto rights. 18 A. 19 In order to preserve the issues for appeal respondent argues that California Respondent’s Contentions 20 prisoners have no liberty interest in parole, and that if they do, the only due process 21 protections available are a right to be heard and a right to be informed of the basis for the 22 denial – that is, respondent contends there is no due process right to have the result 23 supported by sufficient evidence. Because these contentions are contrary to Ninth Circuit 24 law, they are without merit. See Irons v. Carey, 479 F.3d 658, 662 (9th Cir. 2007) (applying 25 "some evidence" standard used for disciplinary hearings as outlined in Superintendent v. 26 Hill, 472 U.S. 445-455 (1985)); Sass v. California Bd. of Prison Terms, 461 F.3d 1123, 27 1128-29 (9th Cir. 2006) (the some evidence standard identified in Hill is clearly established 28 federal law in the parole context for purposes of § 2254(d)); McQuillion v. Duncan, 306 F.3d 3 1 895, 902 (9th Cir. 2002) (“California’s parole scheme gives rise to a cognizable liberty 2 interest in release on parole.”). 3 B. 4 For the Northern District of California United States District Court 5 Petitioner’s Claims 1. Violation of Plea Agreement Petitioner contends that by denying him parole the Board has breached his plea 6 bargain, because it is in effect treating him as if he had been convicted of first-degree 7 murder. The plea bargain called for him to plead guilty to second degree murder, in return 8 for which the prosecutor would dismiss other charges. Pet. Ex. E [transcript of change of 9 plea hearing] at 1-6. Petitioner does not contend that the other charges were not 10 dismissed, but rather that it was a breach of the plea bargain for the Board to rely on the 11 facts lying behind those other charges as grounds to deny parole. The plea agreement, 12 however, did not say that the other charges, or rather the facts giving rise to them, would 13 not be considered in determining whether to grant parole. 14 15 Petitioner has failed to establish that there was a breach of the plea bargain, the factual basis for this claim. The claim is without merit. 16 17 2. Police Reports In the petition, petitioner contended that the Board’s use of police reports violated a 18 state regulation. This is, of course, a state law claim and not grounds for federal habeas 19 relief, as respondent points out. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (federal 20 habeas unavailable for violations of state law or for alleged error in the interpretation or 21 application of state law). However, petitioner also contended in claim two that the police 22 reports were not reliable, and cited a number of federal cases for the proposition that the 23 “some evidence” supporting a parole denial must be reliable. This was sufficient to assert a 24 federal claim, but whether it is one upon which habeas relief can be granted is another 25 question. 26 The Ninth Circuit stated in McQuillion v. Duncan, 306 F.3d 895 (9th Cir. 2002), that 27 to comply with due process a parole denial must not only be supported by “some 28 evidence,” but it must have some indicia of reliability. Id. at 904. This was repeated in 4 For the Northern District of California United States District Court 1 another parole case, Biggs v. Terhune, 334 F.3d 910, 915 (9th Cir. 2003). The McQuillion 2 court quoted and cited Jancsek v. Oregon Board of Parole, 833 F.2d 1389 (1987). 3 McQuillion, 306 F.3d at 904. In Jancsek the court held that due process requires that a 4 parole denial be supported by “some evidence,” reasoning that Superintendent v. Hill, 472 5 U.S. 445, 456 (1985), which applied that standard to prison disciplinary decisions that 6 affected the length of the prisoner’s incarceration, should apply in parole cases because 7 grant or denial of parole also affects the length of incarceration. Id. at 1390. As relevant 8 here, however, Jancsek also held, without explanation or discussion, that the “some 9 evidence” relied upon by the Board must have “some indicia of reliability.” Id. Jancsek, in 10 its turn, cited Cato v. Rushen, 824 F.2d 703, 705 (9th Cir.1987), a disciplinary case, in 11 which the court was squarely presented with the question whether “some evidence” must 12 possess some indication of reliably, and answered “yes.” Id. at 705. Cato cited two cases 13 from other circuits, Mendoza v. Miller, 779 F.2d 1287 (7th Cir. 1985), and Kyle v. Hanberry, 14 677 F.2d 1386 (11th Cir. 1982), as support. Like McQullion, Biggs, Jancsek, and Cato, 15 those cases did not point to a Supreme Court case that imposed a reliability requirement. 16 See Mendoza, 779 F.2d at 1295; Kyle, 677 F.2d at 1390-91. 17 None of the cases discussed above identified a Supreme Court case that imposed 18 the reliability requirement, and this court has found none. As a consequence, even if the 19 evidence upon which the Board relied here did not have indicia of reliability, that lack would 20 not be a violation of “clearly established Federal law, as determined by the Supreme Court 21 of the United States,” and thus would not be grounds for federal habeas relief. See 28 22 U.S.C. § 2254(d). However, and more importantly, even if the court were to find that indicia 23 of reliability were required, the court finds that the police reports do contain some indicia of 24 reliability by virtue of their being official reports completed within the scope of the officers’ 25 employment. Accordingly, this claim does not afford habeas relief. 26 27 28 3. Suitability Factors Petitioner contends that the Board cannot use failure to meet one of the suitability factors set out in the California regulations, see Cal. Code Regs., tit. 15, § 2402(b)-(d), as 5 1 “some evidence” to justify the denial of parole. Pet. at 6k. Petitioner’s phrasing of this 2 issue is somewhat confusing, but it appears that he is claiming that state law does not allow 3 the Board to deny parole based on only one unsuitability factor, and thus that the fact the 4 Board thought he had not shown sufficient remorse was not enough to constitute “some 5 evidence.” For the Northern District of California United States District Court 6 In any event, the California Supreme Court has clarified that the task of the Board of 7 Parole Hearings and the governor is to determine whether the prisoner would be a danger 8 to society if he or she were paroled. See In re Lawrence, 44 Cal. 4th 1181 (2008). The 9 constitutional “some evidence” requirement therefore is that there be some evidence that 10 the prisoner would be such a danger, not that there be some evidence of one or more of 11 the factors that the regulations list as factors to be considered in deciding whether to grant 12 parole. Id. at 1205-06. There is nothing that the would violate federal due process in the 13 Board denying parole based on lack of remorse, as long as the evidence of lack of remorse 14 is sufficient to constitute “some evidence” that petitioner would be a danger to society if 15 released. That the Board here relied on lack of remorse thus was not a constitutional 16 violation. 17 4. Deprivation of Right to “Good Time” 18 Petitioner contends that California’s indeterminate sentencing law substitutes “the 19 will and discretion” of the Board for his statutory right to good time. Even assuming that 20 there is a conflict between the statutes, this claim still is only one of state law – the question 21 would be, “which of two state laws should prevail?” This is not a federal constitutional 22 question. For that reason, it is without merit. See Estelle, 502 U.S. at 67-68 (no federal 23 habeas relief for state law violations). 24 25 26 27 28 5. “Some Evidence” Petitioner contends that denial of parole was not supported by “some evidence” and thus violated his due process rights. Ascertaining whether the some evidence standard is met "does not require examination of the entire record, independent assessment of the credibility of witnesses, or 6 1 weighing of the evidence. Instead, the relevant question is whether there is any evidence 2 in the record that could support the conclusion reached by the disciplinary board." Hill, 472 3 U.S. at 455; Sass, 461 F.3d at 1128. The some evidence standard is minimal, and assures 4 that "the record is not so devoid of evidence that the findings of the disciplinary board were 5 without support or otherwise arbitrary." Sass, 461 F.3d at 1129 (quoting Hill, 472 U.S. at 6 457). For the Northern District of California United States District Court 7 It is now established under California law that the task of the Board of Parole 8 Hearings and the governor is to determine whether the prisoner would be a danger to 9 society if he or she were paroled. See In re Lawrence, 44 Cal. 4th 1181 (2008). The 10 constitutional “some evidence” requirement therefore is that there be some evidence that 11 the prisoner would be such a danger, not that there be some evidence of one or more of 12 the factors that the regulations list as factors to be considered in deciding whether to grant 13 parole. Id. at 1205-06. 14 Petitioner was convicted in 1984. The parole hearing at issue here was in 2006, at 15 which point petitioner had served about twenty-two years on his sentence of seventeen 16 years to life. He was about forty-two at the time of the hearing. 17 Petitioner and a companion, members of the Avenues gang, drove into rival gang 18 territory and opened fire on a group of people, killing one and seriously injuring two others. 19 Ex. B at 4-5. The official version of the facts at least implied that petitioner attacked 20 because the victims were members of the rival gang, while petitioner’s version was that he 21 went to the victims’ location seeking revenge for harassment of his wife, and that the rival 22 gang members opened fire first. Id. at 4-31. 23 The Board’s denial of parole was based on those facts of the offense that were 24 undisputed and, as to the disputed motive, petitioner’s version. Id. at 112-113. The fact is 25 that petitioner shot into a crowd of people, regardless of his motive. After twenty-two years 26 the nature of offense has lost much of its evidentiary value as to whether he still would be a 27 danger to society if released, but it cannot be disregarded altogether. Furthermore, 28 petitioner has given a number of versions of the offense over the years, which, as the 7 1 Board indicated, leaves some doubt as to reliability of his claims to have changed. Id. at 2 111, 114-16, 117-19, 121-24. Together, these constitute “some evidence” to support the 3 denial. See Rosas v. Nielsen, 428 F.3d 1229, 1232–33 (9th Cir. 2005) (facts of offense 4 and one additional factor (psychiatric reports) sufficient to support denial). 5 6 In a line of relatively recent cases the Ninth Circuit has discussed the constitutionality of denying parole when the only basis for denial is the circumstances of the 8 offense. See Irons v. Carey, 505 F.3d 846, 852-54 (9th Cir. 2007); Sass v. California Bd. 9 of Prison Terms, 461 F.3d 1123, 1129 (9th Cir. 2006); Biggs v. Terhune, 334 F.3d 910, 11 For the Northern District of California “Biggs Claim” 7 10 United States District Court 6. 915-17 (9th Cir. 2003). In Biggs the court said that it might violate due process if the Board were to continue 12 to deny parole to a prisoner because of the facts of his or her offense and in the face of 13 evidence of rehabilitation. 334 F.3d at 916-17. No legal rationale for this statement was 14 provided, and it was unclear whether the court was suggesting that the continued denial of 15 parole would be a new sort of due process violation or whether it was simply expressing the 16 thought that with the passage of time the nature of the offense could cease to be “some 17 evidence” that the prisoner would be a danger if paroled. This ambiguity was helpfully 18 cleared up in Irons, where the court clearly treated a “some evidence” claim as different 19 from a “Biggs claim.” Irons, 505 F.3d at 853-54. It appears, putting together the brief 20 discussions in Biggs and Irons, that the court meant that at some point denial of parole 21 based on long-ago and unchangeable factors, when overwhelmed with positive evidence of 22 rehabilitation, would be fundamentally unfair and violate due process. As the dissenters 23 from denial of rehearing en banc in Irons point out, in the Ninth Circuit what otherwise might 24 be dictum is controlling authority if the issue was presented and decided, even if not strictly 25 “necessary” to the decision. Irons v. Carey, 506 F.3d 951, 952 (9th Cir. Nov. 6, 2007) 26 (dissent from denial of rehearing en banc) (citing and discussing Barapind v. Enomoto, 400 27 F.3d 744, 751 n. 8 (9th Cir.2005)). 28 Depending on whether the discussion of dictum in the dissent from denial of 8 1 rehearing en banc in Irons is correct, it thus may be that the Ninth Circuit has recognized 2 that due process right, which for convenience will be referred to in this opinion as a “Biggs 3 claim.” Here, petitioner contends that simply using the circumstances of his offense as 4 grounds for denial for the second time violates due process, separate from his “some 5 evidence” claim, discussed above. It thus appears that he intends to present a Biggs claim. 6 For the Northern District of California United States District Court 7 Petitioner has failed to establish the predicate for his Biggs claim. For one thing, 8 petitioner’s parole was not denied solely because of the circumstances of his offense, but 9 also because of the inconsistencies in his statements about the crime over the years. And 10 assuming for purposes of this discussion that Biggs and Irons recognized an abstract due 11 process right not to have parole repeatedly denied on the basis of the facts of one’s crime 12 and in the face of extensive evidence of rehabilitation, and also assuming arguendo that 13 the right was violated in petitioner’s case, petitioner still cannot obtain relief on this theory, 14 because as there is no clearly-established United States Supreme Court authority 15 recognizing a “Biggs claim.” The state courts’ rulings therefore could not be contrary to, or 16 an unreasonable application of, clearly-established Supreme Court authority. 17 7. 18 Ex Post Facto Claim Petitioner asserts that it violates the Due Process Clause to apply Proposition 89, 19 which provides for gubernatorial review of Board decisions, to a prisoner, such as himself, 20 who was convicted prior to the proposition’s passage. The governor has not reviewed 21 petitioner’s parole decision, and in any event this contention has been rejected by the Ninth 22 Circuit. See Johnson v. Gomez, 92 F.3d 964, 965 (9th Cir. 1996). This claim is without 23 merit. 24 CONCLUSION 25 The petition for a writ of habeas corpus is DENIED. The clerk shall close the file. 26 IT IS SO ORDERED. 27 Dated: October 19, 2009. PHYLLIS J. HAMILTON United States District Judge 28 9 1 2 3 P:\PRO-SE\PJH\HC.07\chavez014.RUL.wpd 4 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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