Bratton v. Hernandez et al, No. 3:2008cv01932 - Document 9 (S.D. Cal. 2009)
Court Description: REPORT AND RECOMMENDATION Of United States Magistrate Judge Re: Granting Motion To Dismiss (Doc. 4 ) And Dismissing Petition, And ORDER Denying Request For Evidentiary Hearing: It is recommended that the Court issue an Order (1) approving and adopti ng this Report and Recommendation, (2) directing that Judgment be entered granting Respondent's Motion to Dismiss, and (3) dismissing the Petition. Petitioner's request for an evidentiary hearing is denied. Objections to R&R due by 7/13/2009. Replies due by 7/27/2009. Signed by Magistrate Judge Ruben B. Brooks on 6/11/2009. (All non-registered users served via U.S. Mail Service.) (mdc) (jrl).
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Bratton v. Hernandez et al Doc. 9 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 HENRY R. BRATTON, III, 12 Civil No. Petitioner, 13 REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: GRANTING MOTION TO DISMISS [DOC. NO. 4] AND DISMISSING PETITION, AND vs. 14 15 08cv1932 WQH(RBB) ROBERT HERNANDEZ, Warden, 16 ORDER DENYING REQUEST FOR EVIDENTIARY HEARING Respondent. 17 18 I. INTRODUCTION 19 Henry R. Bratton, III (hereinafter “Bratton” or “Petitioner”), 20 a state prisoner proceeding pro se, has filed a Petition for a Writ 21 of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging a 22 decision of the Board of Parol Hearings (hereinafter “Board”) 23 denying him parole based on the need for a new psychiatric 24 evaluation. 25 due process by the Board’s ongoing request for new psychiatric 26 reports because there is no evidence to support its finding that 27 the previous report was insufficient. 28 seeks “an order mandating that the Board assess his parole (Pet. 6-8.) Bratton alleges that he is being denied -1- (Id. at 8.) Petitioner 08cv1932 Dockets.Justia.com 1 eligibility on other reasons than psychiatric” and an evidentiary 2 hearing to determine whether ordering additional psychiatric 3 evaluations is a new method of denying parole. 4 (Id.) The Respondent, Warden Hernandez, has filed a Motion to 5 Dismiss [doc. no. 4]. 6 should be dismissed because it fails to present a federal claim, 7 and Petitioner has not argued that the state court decisions 8 denying him relief were contrary to, or an unreasonable application 9 of, clearly established federal law, or based on an unreasonable Respondent contends that (1) the Petition 10 determination of the facts in light of the evidence before the 11 state courts; and (2) the Petition is premature because Petitioner 12 is seeking an order mandating the conditions under which the Board 13 assess his parole eligibility at future hearings. 14 Supp. Motion Dismiss 2-3.) 15 (Mem. P. & A. Bratton has filed an Opposition [doc. no. 5] in which he 16 argues that he has presented a federal due process claim because 17 the Board’s new practice has no statutory support and is contrary 18 to clearly established law, relying on Hess v. Bd. of Parole & 19 Post-Prison Supervision, 514 F.3d 909, 913 (9th Cir. 2008).1 20 (Opp’n 2-3.) 21 premature. Petitioner further contends that the claim is not (Id. at 3.) 22 The Court ordered supplemental briefing on April 27, 2009, 23 requesting that the parties notify the Court of the date of the 24 most recent Parole Board decision, and the outcome of the hearing. 25 (Doc. No. 6.) 26 Court’s Order, stating that the most recent Board decision was on On May 6, 2009, Bratton filed a response to the 27 1 28 Bratton does not cite Hess, but he includes a block quote which appears to be taken directly from that case. Therefore, the Court assumes he intends to rely on Hess. -2- 08cv1932 1 July 8, 2008, and that he was found suitable for parole at that 2 time. 3 reversed the parole grant decision on November 25, 2008, and he 4 purports to challenge that decision in his supplemental briefing. 5 (Id.)2 6 (Doc. No. 7.) Bratton noted that the Governor of California Respondent filed his Supplemental Brief on May 21, 2009; he 7 states that Bratton was granted parole at his July 8, 2008, parole 8 hearing. 9 “The Board’s recent decision granting parole further undermines 10 Petitioner’s claims challenging the Board’s use of psychological 11 evaluations.” 12 (Resp’t’s Supplemental Br. 2.) Respondent concludes, (Id.) Based upon the documents and evidence presented in this case, 13 and for the reasons set forth below, the Court finds that to the 14 extent Petitioner alleges a due process claim challenging the 2006 15 parole hearing, that claim is second or successive. 16 Court finds that although Petitioner has stated a federal due 17 process claim regarding future hearings, the claim is moot. 18 Court also finds that Petitioner is not entitled to an evidentiary 19 hearing. 20 to Dismiss be GRANTED and the Petition be DISMISSED. 21 request for an evidentiary hearing is DENIED. 22 III. DISCUSSION 23 Further, the The The Court therefore recommends that Respondent’s Motion Petitioner’s Warden Hernandez moves to dismiss the current Petition on the 24 basis that it “does not state a federal claim for relief and it 25 seeks prospective relief for a decision that has not yet occurred.” 26 (Mem. P. & A. Supp. Answer 2.) Petitioner opposes the Motion to 27 28 2 The Court notes that there is no indication that this claim has been exhausted, and it is not a part of this Petition. -3- 08cv1932 1 Dismiss, arguing that the Board has adopted a practice of denying 2 parole based on the need for ongoing psychiatric evaluations, as it 3 did at his September 5, 2006 hearing, and this practice violates 4 due process. 5 is not premature, and Respondent cannot produce any statutory 6 regulation which allows the Board to continue this practice. 7 at 3-4.) (Opp’n 2-3.) Bratton also argues that the Petition (Id. 8 1. 9 Respondent contends that Petitioner is not challenging any The Petition is Second or Successive. 10 past decision of the Board to deny his release on parole, but 11 instead, he is seeking only prospective relief for a decision that 12 has not yet occurred. 13 (Mem. P. & A. Supp. Answer 2.) It is clear from the Petition that Bratton is challenging 14 future Board decisions which may deny parole based on the need for 15 additional psychiatric evaluations.3 16 that he is challenging the Board’s use of this criteria in its 17 September 5, 2006, decision. 18 developed a new practice that is not a prerequisite to parole 19 suitability by unnecessarily requesting a new psych evaluation 20 . . . . 21 his current psych evaluation was inconclusive and ordered a new 22 report.” 23 It also appears, however, Bratton states that “[t]he Board has At his September 5, 2006 hearing, the panel concluded that (Pet. 6.) To the extent Petitioner is asserting a claim based on the 24 Board’s September 5, 2006, denial of parole, this Petition is 25 second or successive. Respondent does not challenge Bratton’s 26 27 28 3 Petitioner contends that he is being denied due process by the Board’s ongoing request for a new psychiatric evaluation and seeks an order mandating that “the Board assess his parole eligibility on other reasons than psychiatric.” (Pet. 8.) -4- 08cv1932 1 Petition as second or successive; he notes that Petitioner filed a 2 previous petition challenging the Board’s September 5, 2006, 3 decision in case number 07-cv-1699 L (BLM), which was dismissed on 4 procedural grounds on August 21, 2008. 5 2, n.1.) (Mem. P. & A. Supp. Answer 6 When a federal habeas petitioner proceeds to judgment on the 7 merits of claims presented with respect to a particular judgment, 8 any later filed habeas corpus petition attacking that same judgment 9 is considered a “second or successive” petition. Slack v. 10 McDaniel, 529 U.S. 473, 486-88 (2000). 11 petitioner is required to obtain authorization from the court of 12 appeals to file a second or successive petition in the district 13 court. 14 a prima facie showing to the court of appeals that he has satisfied 15 the requirements of § 2244(b)(2), i.e., that his claim is either 16 based on a new rule of constitutional law made retroactive by the 17 Supreme Court, or on the discovery of new, material evidence. 18 U.S.C.A. § 2244(b)(2) (West 2006). Under such circumstances, a 28 U.S.C.A. § 2244(b)(3) (West 2006). Petitioner must make 28 19 Court records reflect that on August 27, 2007, Petitioner 20 filed a Petition for a Writ of Habeas Corpus in the United District 21 Court for the Southern District of California. 22 Bratton challenged the September 5, 2006, Board decision denying 23 him parole. 24 L(BLM) (S.D. Cal. filed Aug. 27, 2007) (Petition 17).) 25 argued that he was denied due process for several reasons: 26 // 27 // 28 // In that petition, (See Bratton v. Hernandez (Bratton I), No. 07cv1699- -5- Bratton 08cv1932 1 2 3 4 5 6 7 8 9 (1) [T]he BPH’s findings that Petitioner poses an unreasonable risk of danger is not supported by any evidence, since all of the evidence shows that Petitioner would pose no threat to public safety if released; (2) each ground relied upon by the Board to deny parole lacked support; (3) the Board relied solely upon Petitioner’s commitment offense; (4) there is no nexus between Petitioner’s commitment offense and Petitioner’s parole risk; (5) the Board failed to base its [decision on] codified suitability criteria; (6) the findings and recommendations of the Board were mere recitations of the previous panels and the Governor’s Review ordering his date to be rescinded; (7) and given that the 1992 Recision Hearing used the preponderance of the evidence standard which conflicts with Superintendent v. Hill, (1985) 472 U.S. 445 has caused Petitioner’s subsequent hearings to be tainted and violated his rights to procedural due process. 10 11 12 (Id. Attach. Mem. P. & A. 18.) On March 20, 2008, Magistrate Judge Barbara Major issued a 13 Report and Recommendation, stating that the Respondent’s Motion to 14 Dismiss the petition should be granted because Bratton’s claims 15 were procedurally defaulted. 16 I), No. 07cv1699-L (BLM) (S.D. Cal. Mar. 20, 2008) (report & 17 recommendation). 18 Recommendation on August 21, 2008. 19 (Bratton I), No. 07cv1699-L (BLM) (S.D. Cal. Aug. 21, 2008) (order 20 adopting report & recommendation dismissing petition). 21 not appeal the order granting the motion to dismiss. 22 (See Bratton v. Hernandez (Bratton The district court adopted the Report and (See Bratton v. Hernandez Bratton did The Ninth Circuit, in Henderson v. Lampert, 396 F.3d 1049, 23 1053 (9th Cir. 2005), held that a denial on the grounds of 24 procedural default is a disposition on the merits, and therefore, 25 any subsequent habeas petition is considered second or successive 26 for purposes of AEDPA. 27 Bratton I, held that Bratton’s claims were barred on state 28 procedural default grounds. As noted above, the district court in As a result, any attempt to reallege -6- 08cv1932 1 that the Board denied Petitioner’s federal due process rights at 2 the September 5, 2006, hearing by requesting an additional 3 psychiatric evaluation is barred unless Bratton complies with the 4 requirement for bringing a second or successive petition. 5 The Petition here is considered second or successive unless 6 Bratton did not have the opportunity to present the claim in his 7 prior petition. 8 2002). 9 additional psychiatric evaluation in his prior habeas petition, so Hill v. Alaska, 297 F.3d 895, 898-99 (9th Cir. Petitioner could have challenged the Board’s request for an 10 the Petition is second or successive. 11 Carey, 525 F.3d 886, 888 (9th Cir. 2008) (noting that “a new 12 petition is ‘second or successive’ if it raises claims that were or 13 could have been adjudicated on their merits in an earlier 14 petition[]”) (quoting Cooper v. Calderon, 274 F.3d 1270, 1273 (9th 15 Cir. 2001) (holding that because petitioner “was aware of the 16 factual predicate of this claim long ago and could have raised the 17 claim in his first petition, his claim is ‘second or 18 successive[]’”)). 19 the Ninth Circuit Court of Appeals to file a second or successive 20 petition, this Court lacks jurisdiction over any claim in the 21 current Petition which challenges the Board’s September 5, 2006, 22 decision. 23 court may not, in the absence of proper authorization from the 24 court of appeals, consider a second or successive habeas 25 application[]”). 26 // 27 // 28 // Id.; see also Woods v. Because Bratton has not obtained permission from Cooper, 274 F.3d at 1274 (holding that “the district -7- 08cv1932 1 “[Federal courts] are obligated to raise questions concerning 2 [their] subject matter jurisdiction sua sponte in all cases.” 3 Boone v. Sec’y. Dep’t of Corrs., 377 F.3d 1315, 1316 (11th Cir. 4 2004); accord Winburn v. Jackson, 2008 U.S. Dist. LEXIS 790, at *12 5 (E.D. Mich. Jan. 7, 2008) (raising second or successive petition 6 issue sua sponte). 7 Accordingly, to the extent the current Petition seeks relief 8 based on the September 5, 2006, Board decision, the Court 9 recommends sua sponte DISMISSAL of any such claims as second or 10 successive pursuant to 28 U.S.C. § 2244(b), without prejudice to 11 allow Petitioner to seek permission from the Ninth Circuit to file 12 a second or successive petition. 13 2. 14 Respondent argues that the Petition fails to state a federal The Petition States a Federal Claim. 15 claim for relief because it simply alleges a broad due process 16 claim but does not “specifically allege a violation of federal 17 law.” 18 Hernandez asserts that Bratton “has not cited any federal law that 19 restricts the Board’s ability to order an updated psychological 20 evaluation for a subsequent parole consideration hearing.” 21 2-3.) 22 that the state court’s adjudication of his claim was “contrary to, 23 or involved an unreasonable application of, clearly established 24 Federal law.” 25 (Mem. P. & A. Supp. Answer 2.) In particular, Warden (Id. at Further, Respondent notes that Petitioner has not asserted (Id. at 3 (citing 28 U.S.C. § 2254(d)).) Petitioner argues in his Petition that the Board’s change from 26 previous policy is arbitrary, and renders the Board’s decision 27 contrary to clearly established law, citing Hill v. Colorado, 530 28 U.S. 703, 732 (2000). (Pet. 7.) He also suggests that Martin v. -8- 08cv1932 1 Marshall, 431 F. Supp. 2d 1039 (N.D.Cal. 2006), and In re Andrade, 2 141 Cal. App. 4th 807, 46 Cal. Rptr. 3d 317 (2006), support the 3 argument contained in his Petition. 4 elaborates on his federal claim, contending that the Board’s new 5 method to deny or postpone parole by requesting new or updated 6 psychological evaluations is contrary to established law, including 7 California Code of Regulations, Title 15, sections 2280-81, and 8 violates his federal due process rights, relying on Hess, 514 F.3d 9 at 913. (Opp’n 2.) In his Opposition, Bratton Although he does not cite Hess v. Bd. of 10 Parole & Post-Prison Supervision, 513 F.3d 909, the quote on page 11 two of Petitioner’s Opposition, appears to come from Hess. 12 (Opp’n 2), with Hess, 513 F.3d at 913. 13 Compare Bratton does not directly argue that the Board’s adoption of 14 this practice of requesting updated psychological evaluations 15 violates his right to due process. 16 his Petition, and Hess in his Opposition, which is sufficient to 17 consider his claim a federal due process challenge to the Board’s 18 action. 19 v. Idaho, 247 F.3d 1015, 1020-21 (9th Cir. 2001). 20 sufficiently stated facts in the Petition, along with supporting 21 case law, to permit the Respondent to assert appropriate objections 22 and defenses. 23 Okla. 1989). 24 cognizable federal claim. 25 Petition suffers from other defects that require its dismissal. 26 // 27 // 28 // He relies on Hill and Martin in Courts should liberally construe pro se pleadings. Zichko Here, Petitioner See Harris v. Allen, 739 F. Supp. 564, 565 (W.D. Therefore, Bratton has sufficiently presented a Nevertheless, this second or successive -9- 08cv1932 1 3. 2 In his Answer, Respondent claims that Bratton is not The Petition is Moot. 3 challenging the September 5, 2006, Board decision; instead, 4 Respondent argues that Bratton is requesting prospective relief in 5 the form of an order mandating that at future hearings the Board 6 not consider psychiatric factors in deciding his eligibility for 7 parole. 8 9 (Mem. P. & A. Supp. Answer 3.) Petitioner maintains that the claim is not premature, reiterating that the panel requested an updated psychological 10 evaluation at his 2006 hearing. 11 that “[t]he only thing of being premature is that the request has 12 not happened a third time given that the 2007 evaluation was 13 favorable.” 14 (Opp’n 3.) Bratton also states (Id.) The ripeness doctrine is intended “to prevent the courts, 15 through avoidance of premature adjudication, from entangling 16 themselves in abstract disagreements . . . .” 17 Gardner, 387 U.S. 136, 148 (1967), overruled on other grounds by, 18 Califano v. Sanders, 430 U.S. 99, 105 (1977). 19 existence of the dispute itself hangs on future contingencies that 20 may or may not occur[,]” a claim is not ripe for adjudication. 21 Clinton v. Acequia, Inc., 94 F.3d 568, 572 (9th Cir. 1996). 22 Similarly, if “there is no danger of imminent and certain injury to 23 a party, an issue has not ‘matured sufficiently to warrant judicial 24 intervention.’” 25 1997) (quoting Clinton v. Acequia, Inc., 94 F.3d at 572)); accord 26 Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975). 27 // 28 // Abbott Labs. v. “[W]here the Poland v. Stewart, 117 F.3d 1094, 1104 (9th Cir. -10- 08cv1932 1 Since the filing of his Petition, the Board has granted 2 Bratton’s request to be paroled. 3 determine whether this Petition is moot. 4 independent duty to consider sua sponte whether a case is moot 5 . . . .” 6 As a result, the Court must Courts have “an Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004.) Petitioner acknowledges in his Opposition that his 2007 7 evaluation was favorable, and the Board did not ask for another 8 psychiatric evaluation. 9 supplemental briefing that he received another Board hearing on (Opp’n 3.) Bratton noted in his 10 July 8, 2008, and was found suitable for parole at that hearing.4 11 (Pet’r’s Supplemental Br. 1.) 12 seeking to preclude the Board from denying his request for parole 13 based on further psychological evaluations, there is no case or 14 controversy, so his claim is moot. 15 1, 7-8, 18 (1998). 16 17 Consequently, to the extent he is See Spencer v. Kemna, 523 U.S. Therefore, the Court recommends GRANTING Respondent’s Motion to Dismiss. 18 4. 19 Finally, Petitioner requests an evidentiary hearing as to his Petitioner is Not Entitled to an Evidentiary Hearing 20 claim. 21 Petitioner has not presented a federal claim that is ripe for 22 adjudication, Petitioner’s request for an evidentiary hearing is 23 DENIED. 24 // 25 // 26 // (Pet. 8.) Based on the finding in this Report that 27 28 4 On November 25, 2008, Governor Schwarzenegger reversed the parole grant decision. (Pet’r’s Supplemental Br. Ex. 4.) -11- 08cv1932 1 2 V. CONCLUSION AND RECOMMENDATION The Court submits this Report and Recommendation to United 3 States District Judge William Q. Hayes under 28 U.S.C. § 636(b)(1) 4 and Local Civil Rule HC.2 of the United States District Court for 5 the Southern District of California. 6 above, IT IS HEREBY RECOMMENDED that the Court issue an Order 7 (1) approving and adopting this Report and Recommendation, 8 (2) directing that Judgment be entered granting Respondent’s Motion 9 to Dismiss, and (3) dismissing the Petition. For the reasons outlined 10 Petitioner’s request for an evidentiary hearing is DENIED. 11 IT IS ORDERED that no later than July 13, 2009, any party to 12 this action may file written objections with the Court and serve a 13 copy on all parties. 14 to Report and Recommendation.” 15 The document should be captioned “Objections IT IS FURTHER ORDERED that any reply to the objections shall 16 be filed with the Court and served on all parties no later than 17 July 27, 2009. The parties are advised that failure to file 18 objections within the specified time may waive the right to raise 19 those objections on appeal of the Court’s order. 20 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 21 F.2d 1153, 1156 (9th Cir. 1991). 22 DATED: June 11, 2009 23 24 See Turner v. _____________________________ Hon. Ruben B. Brooks UNITED STATES MAGISTRATE JUDGE 25 26 27 28 -12- 08cv1932
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