Hedges v. Tilton

Filing 13

ORDER Denying Petition for a Writ of Habeas Corpus signed by Senior Judge D Lowell Jensen on 04/15/2009. CASE CLOSED. (Flores, E)

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U.S. District Court E. D. California

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION BRUCE NORMAN HEDGES, Petitioner, v MATTHEW CATE,1 Respondent.

No.

C-07-01415-DLJ

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

On September 27, 2007, Petitioner Bruce Norman Hedges ("Petitioner") filed a petition for writ of habeas corpus. On

February 27, 2008, Respondent Matthew Cate ("Respondent") filed an answer. On March 31, 2008, Petitioner filed a traverse. Having

considered the papers submitted and the applicable law, the Court hereby DENIES the petition. I. BACKGROUND A. Factual Background and Procedural History On November 14, 1980, armed with a loaded handgun, Petitioner broke into his employer's home. Pet. Ex. C at 83-84. He kidnapped

his employer's wife, shot her in the back of the head, and disposed of her body in the Stanislaus River Canyon. Id. at 84. In March

1982, Petitioner was convicted of burglary, robbery, kidnapping, and first degree murder. He was sentenced to twenty-five years to

At the time the instant petition was filed, Petitioner named James E. Tilton, the former Secretary of the Department of Corrections and Rehabilitation, as Respondent. At that time, Tilton was a proper respondent. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996). Matthew Cate has since replaced Tilton as the Secretary of the Department of Corrections and Rehabilitation. As a result, the Court hereby orders that Cate be substituted as the respondent. 1

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U.S. District Court E. D. California

life and has been incarcerated at Avenal State Prison. At the time Petitioner was sentenced, California Penal Code § 3041 entitled him to annual parole suitability hearings. During

the time Petitioner has been incarcerated, however, the statute was amended to allow the Board of Parole Hearings ("BPH") to defer his parole suitability hearings for up to five year intervals. BPH denied Petitioner parole on September 10, 1997, September 11, 2002, and April 11, 2006. In its April 11, 2006 denial, the

BPH concluded that Petitioner posed an "unreasonable risk of danger to society or a threat to public safety." Pet. Ex. C. at 80. The

BPH concluded that Petitioner was unsuitable for parole because he carried out the commitment offense "in an especially cruel and callous manner," and because he had a "long record of violent and assaultive criminality," including "a history of not only street crimes but severe violent acts that could have caused multiple deaths." Pet. Ex. C at 80-85. The BPH also found that

Petitioner's need for self-help and therapy, as well as his disciplinary violations, made him unsuitable for parole. C at 82-85. Pet. Ex.

Finally, the BPH took into account such factors as the

San Joaquin County District Attorney's opposition to Petitioner's release on parole. Pet. Ex. C at 80-85; Ex. E at 5. As a result,

the BPH denied parole and deferred Petitioner's next parole suitability hearing for five years. Pet. Ex. C at 85-86.

On November 15, 2006, Petitioner filed a petition for writ of habeas corpus in San Joaquin County Superior Court. was denied on February 14, 2007. The petition

On March 16, 2007, Petitioner

filed a habeas petition in the California Court of Appeal, which was denied on March 22, 2007. On April 11, 2007, Petitioner filed

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U.S. District Court E. D. California

a habeas petition in the California Supreme Court, which was denied on August 15, 2007. On September 27, 2007, Petitioner filed the instant petition in the United States District Court, Eastern District of California. On November 11, 2008, the court issued an order reassigning the case to this Court for all further proceedings. On November 17,

2008, Petitioner submitted a Request for Judicial Notice regarding the California Legislature's recent amendment of California Penal Code § 3041.5, which authorizes the BPH to deny an inmate a parole suitability hearing for up to fifteen years. In the instant petition, Petitioner seeks relief on the following grounds: that the state court's decision (1) violates his rights under the Due Process Clause of the Fourteenth Amendment, (2) violates the Ex Post Facto Clause of the United States Constitution, and (3) violates his rights under California Penal Code § 3041. B. Legal Standard The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") allows an inmate in state custody to seek a writ of habeas corpus in federal court. 28 U.S.C. § 2254. Under AEDPA, a

writ of habeas corpus may not be granted unless the state court's adjudication of any claim on the merits: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

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U.S. District Court E. D. California

II. DISCUSSION A. Procedural Bars The parties do not dispute that the instant petition is timely, that venue is proper, and that none of Petitioner's claims are procedurally defaulted. There is some uncertainty as to whether

some of Petitioner's claims have been exhausted in state court, but the Court need not reach this issue because, as described below, all of Petitioner's claims fail on the merits. B. Due Process Claims 1. Parole Suitability Determination

As a matter of federal due process, California inmates possess a liberty interest in parole. 850 (9th Cir. 2007). See Irons v. Carey, 505 F.3d 846,

In order to comport with due process, a

parole suitability determination must be supported by "some evidence." Id. at 851. "Some evidence" is "any evidence in the Sass v. Cal. Bd. What

record" that could support the BPH's conclusion.

of Prison Terms, 461 F.3d 1123, 1128-29 (9th Cir. 2006).

constitutes "some evidence" is determined according to state law. See Irons, 505 F.3d at 851. Here, Petitioner contends that the BPH's decision was not supported by "some evidence" because his commitment offense and the San Joaquin County District Attorney's opposition to parole do not constitute "some evidence." Petitioner is incorrect. California

law requires that the BPH consider various factors, including Petitioner's commitment offense, as well as public opinion regarding Petitioner's release, to determine whether Petitioner is suitable for parole. See Cal. Code Regs. tit. 15, §§ 2402(b)-(d), 4

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2028(a); Cal. Penal Code § 3043.5(b).

As a result, these

considerations constitute "some evidence" in support of BPH's decision. In addition, Petitioner claims that the BPH improperly relied on a 2002 psychological evaluation of Petitioner. This argument is

misplaced, because the BPH did not rely on the 2002 psychological evaluation when it determined that Petitioner was unsuitable for parole. Pet. Ex. C at 82. Even if the BPH did rely on the 2002

psychological evaluation, however, as a matter of California law, psychological evaluations constitute "some evidence." Code of Regs. tit. 15, § 2402(b). Accordingly, Petitioner's claim that the California court's decision is contrary to, or an unreasonable application of, clearly established federal law fails. In addition, the state court's See Cal.

decision was not an unreasonable determination of the facts in light of the evidence presented. C. Ex Post Facto Claim Petitioner claims that the state court's decision upholding the

19 BPH's decision to set his parole hearings at five year intervals 20 under the amended California Penal Code § 3041, rather than at one 21 year intervals under the former version of the statute, violates the 22 Ex Post Facto Clause of the United States Constitution. 23 The Constitution prohibits the states from passing any "ex post U.S. Const., Art. I, § 10. The Supreme Court has

24 facto Law."

25 expressly held that the amended California Penal Code § 3041, 26 allowing for five year intervals between parole hearings, does not 27 violate the Ex Post Facto Clause of the United States Constitution. 28 See California Dept. of Corr. v. Morales, 514 U.S. 499, 506-13
U.S. District Court E. D. California

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1 (1995). 2 Because Petitioner's claim has already been rejected by the See id.

3 Supreme Court, this claim fails.2 4 D. 5 6

California Penal Code § 3041 Claims 1. California Penal Code § 3041(a)

California Penal Code § 3041(a) requires the BPH to set a parole

7 release date for an inmate serving an indeterminate life sentence 8 "in a manner that will provide uniform terms for offenses of similar 9 gravity and magnitude with respect to their threat to the public." 10 Petitioner claims that the BPH violated his due process rights

11 when it failed to compare Petitioner's criminal conduct against that 12 of other inmates convicted of the same offense. 13 multiple fronts. This claim fails on

First, to the extent that Petitioner argues that

14 the BPH's failure to apply California Penal Code § 3041(a) is a 15 violation of California law, this is a state law claim not 16 cognizable in federal court. 17 67-68 (1991). 18 In addition, Petitioner was not entitled to a "uniform terms" An analysis of a prisoner's threat See Estelle v. McGuire, 502 U.S. 62,

19 determination under § 3041(a).

20 to public safety under California Penal Code § 3041(b) precedes the 21 setting of a uniform release date under § 3041(a). 22 Dannenberg, 34 Cal. 4th 1061, 1081-82 (2005). See In re

Because the BPH found

23 Petitioner unsuitable for parole under California Penal Code 24 25 26 27 28
U.S. District Court E. D. California

As noted above, on November 17, 2008, Petitioner filed a Request for Judicial Notice, seeking a declaration from this Court that the California Legislature's recent amendment of California Penal Code § 3041.5 violates the Ex Post Facto Clause of the United States Constitution. Because Respondent has never applied the amended statute to Petitioner, Petitioner lacks standing to make such a challenge. 6

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1 § 3041(b), it was precluded from setting a uniform release date 2 under § 3041(a). 3 3041(a). 4 Even if the Court were to construe Petitioner's claim as a Accordingly, Petitioner had no rights under §

5 federal due process claim, the California Supreme Court has 6 expressly held that California Penal Code § 3041(a) does not create 7 a liberty interest in parole. 8 1081-82. See In re Dannenberg, 34 Cal. 4th at

This Court is bound by the California Supreme Court's See Gurley v. Rhoden, 421 U.S. 200, 208 (1975). As

9 determination.

10 a result, this claim does not raise any issues cognizable on federal 11 habeas review. 12 13 2. California Penal Code § 3041.5(b)(2)

California Penal Code § 3041.5(b)(2) provides that the BPH must

14 communicate its denial of parole in "a written statement" that 15 "set[s] forth the reasons for refusal to set a parole date." 16 Penal Code § 3041.5(b)(2). 17 Petitioner claims that the BPH violated California Penal Code § Cal.

18 3041.5(b)(2) because, even though it provided him with a copy of the 19 hearing transcript, it did not issue a separate written statement of 20 its reasons for denying him parole. As with Petitioner's California

21 Penal Code § 3041(a) claim, this claim is a state law claim that is 22 not cognizable in federal court. 23 See Estelle, 502 U.S. at 67-68.

Even if the Court were to liberally construe this claim as a At a parole hearing, due

24 federal due process claim, it fails.

25 process requires that a parole board communicate the reasons for its 26 decision. See Greenholtz v. Inmates of Neb. Penal & Corr. Complex, Here, the BPH gave Petitioner its statement

27 442 U.S. 1, 15 (1979).

28 of reasons for denying parole both orally at the April 11, 2006
U.S. District Court E. D. California

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1 hearing, and in a written transcript of that hearing. 2 80-85.

Pet. Ex. C at

Both the oral statement of reasons and written transcript

3 satisfy the communication requirement of Greenholtz. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
U.S. District Court E. D. California

III. CONCLUSION Based on the foregoing, the Court hereby DENIES the petition.

IT IS SO ORDERED

Dated: April 15, 2009

_________________________ D. Lowell Jensen United States District Judge

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