Ronald Everett v. James A. Yates
Filing
26
FINDINGS And RECOMMENDATIONS Re: Respondent's Motion To Dismiss The Petition (Doc. 22 ), Findings And Recommendations To Dismiss The Petition Without Leave To Amend (Docs. 22 , 1 ), Dismiss Petitioner's Request For An Evidentiary Hearing, Decline To Issue A Certificate Of Appealability, And Direct The Clerk To Close The Action, signed by Magistrate Judge Sandra M. Snyder on 6/24/2011. F&R's referred to Judge Anthony W. Ishii; Objections to F&R due by 8/1/2011. (Fahrney, E)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
10
RONALD EVERETT,
11
Petitioner,
12
v.
13
JAMES A. YATES,
14
Respondent.
15
16
)
)
)
)
)
)
)
)
)
)
)
)
1:10-cv—00741-AWI-SMS-HC
FINDINGS AND RECOMMENDATIONS RE:
RESPONDENT’S MOTION TO DISMISS
THE PETITION (DOC. 22)
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION WITHOUT
LEAVE TO AMEND (DOCS. 22, 1),
DISMISS PETITIONER’S REQUEST FOR
AN EVIDENTIARY HEARING, DECLINE
TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND DIRECT THE
CLERK TO CLOSE THE ACTION
17
18
Petitioner is a state prisoner proceeding pro se with a
19
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
20
The matter has been referred to the Magistrate Judge pursuant to
21
28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.
22
before the Court is Respondent’s motion to dismiss the petition,
23
which was filed on March 18, 2011.
24
on June 3, 2011.
Pending
Petitioner filed opposition
No reply was filed.
25
I.
26
Because the petition was filed after April 24, 1996, the
Proceeding by a Motion to Dismiss
27
effective date of the Antiterrorism and Effective Death Penalty
28
Act of 1996 (AEDPA), the AEDPA applies to the petition.
1
Lindh v.
1
Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d
2
1484, 1499 (9th Cir. 1997).
3
A district court may entertain a petition for a writ of
4
habeas corpus by a person in custody pursuant to the judgment of
5
a state court only on the ground that the custody is in violation
6
of the Constitution, laws, or treaties of the United States.
7
U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,
8
375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,
9
16 (2010) (per curiam).
10
28
Rule 4 of the Rules Governing Section 2254 Cases in the
11
United States District Courts (Habeas Rules) allows a district
12
court to dismiss a petition if it “plainly appears from the face
13
of the petition and any exhibits annexed to it that the
14
petitioner is not entitled to relief in the district court....”
15
The Ninth Circuit has allowed respondents to file motions to
16
dismiss pursuant to Rule 4 instead of answers if the motion to
17
dismiss attacks the pleadings by claiming that the petitioner has
18
failed to exhaust state remedies or has violated the state’s
19
procedural rules.
20
420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss
21
a petition for failure to exhaust state remedies); White v.
22
Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to
23
review a motion to dismiss for state procedural default); Hillery
24
v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same).
25
Thus, a respondent may file a motion to dismiss after the Court
26
orders the respondent to respond, and the Court should use Rule 4
27
standards to review a motion to dismiss filed before a formal
28
answer.
See, e.g., O’Bremski v. Maass, 915 F.2d 418,
See, Hillery, 533 F. Supp. at 1194 & n.12.
2
1
In this case, upon being directed to respond to the petition
2
by way of answer or motion, Respondent filed the motion to
3
dismiss.
4
found in the pleadings and in copies of the official records of
5
state parole and judicial proceedings which have been provided by
6
the parties, and as to which there is no factual dispute.
7
Because Respondent's motion to dismiss is similar in procedural
8
standing to motions to dismiss on procedural grounds, the Court
9
will review Respondent’s motion to dismiss pursuant to its
10
The material facts pertinent to the motion are to be
authority under Rule 4.
11
II.
12
Petitioner alleges that he was a resident of the Pleasant
Background
13
Valley State Prison (PVSP) located in Coalinga, California,
14
within the Eastern District of California, serving a sentence of
15
seven (7) years to life imposed in the Los Angeles Superior Court
16
on January 17, 1984, upon Petitioner’s conviction of kidnaping
17
for the purpose of robbery, robbery with a firearm, credit card
18
fraud, and receiving stolen property in violation of Cal. Pen.
19
Code §§ 209(b), 211, 484(f)(2), 496, and 10222.5.
20
Petitioner challenges the decision of California’s Board of
21
Parole Hearings (BPH) made after a hearing held on May 7, 2008,
22
finding Petitioner unsuitable for parole because if released, he
23
would pose an unreasonable risk of danger to society and a threat
24
to public safety.
25
decisions of the state courts upholding the BPH’s denial of
26
parole.
(Id. at 17.)
(Pet. 1-2.)
Petitioner also challenges the
27
Petitioner raises the following claims in the petition:
28
the BPH violated Petitioner’s right to due process of law by
3
1)
1
relying on erroneous information concerning the facts of the
2
commitment offense; 2) the BPH denied Petitioner’s right to due
3
process of law by finding that the commitment offense was callous
4
and cruel in the absence of supportive documentary evidence; 3)
5
Petitioner’s right to due process of law was violated when the
6
BPH relied on disciplinary infractions that were from records of
7
a prior prison term and were unrelated to the commitment offense,
8
and failed to conduct a fact-finding process concerning the facts
9
of the disciplinary offenses; 4) Petitioner’s right to due
10
process of law was violated by the BPH’s consideration of
11
offenses as to which sentences were stayed as part of his plea
12
agreement in connection with the commitment offenses; 5)
13
Petitioner’s right to equal protection of the laws was violated
14
by the BPH’s consideration of nonviolent offenses that were
15
stayed as part of his plea agreement in connection with the
16
commitment offenses; 6) Petitioner’s right to due process of law
17
was violated because there was no evidence in the record
18
supporting the BPH’s finding that Petitioner presented a threat
19
to public safety; and 7) the BPH failed to comply with Cal. Pen.
20
Code §§ 3041 and 3041.5, state rules, and state regulations that
21
seek to impose uniform terms for offenses of similar gravity
22
because Petitioner’s sentence has become longer than the maximum
23
he would have received if he had lost at trial, and longer than
24
sentences imposed on other inmates whose crimes were also
25
considered callous and cruel.
26
(Pet. 15, 17, 20-21.)
Petitioner further requested an evidentiary hearing in the
27
portion of the petition that appears to be a copy of a previously
28
filed petition for writ of habeas corpus in the California
4
1
Supreme Court.
2
to this Court, or was only directed to the state court.
3
14.)
4
It is not clear whether that request was directed
(Pet.
The transcript of the BPH’s decision of May 7, 2008, which
5
was submitted with the petition, reflects that Petitioner was
6
present when the reasons for the decision were stated.
7
36.)
8
present earlier during the hearing because it reflects that “all
9
parties [had] returned to the room” for the rendering of the
(Pet. 23-
It also supports a conclusion that Petitioner had been
10
decision.
11
decision, the BPH referred to Petitioner’s testimony, his having
12
been candid about his involvement with narcotics with the
13
specific panel of the BPH that presided over the hearing, his
14
response to a question posed by the BPH concerning his marketable
15
skills, and his statements made that day, including a closing
16
statement made to the BPH at the hearing.
17
34.)
18
hearing and took the opportunity to testify and address the BPH.
19
Petitioner also had an opportunity to seek clarification of the
20
record to include a “GED” in his file.
21
(Id. at 23.)
Further, in its explanation of the
(Id. at 25, 31, 33-
It thus may be inferred that Petitioner attended the
(Id. at 23-24.)
The BPH found Petitioner unsuitable based on the commitment
22
offenses, the prosecutor’s opposition to release, a psychological
23
evaluation reflecting an anti-social personality disorder, and
24
Petitioner’s history of escalating criminal conduct, previous
25
failures on probation and parole, limited programming and self-
26
help in prison, extensive misconduct in prison, minimization of
27
his criminal conduct, and lack of preparation for release.
28
23-35.)
5
(Pet.
1
III.
2
3
Failure to State a Cognizable Due Process Claim
A.
Legal Standards
The Supreme Court has characterized as reasonable the
4
decision of the Court of Appeals for the Ninth Circuit that
5
California law creates a liberty interest in parole protected by
6
the Fourteenth Amendment Due Process Clause, which in turn
7
requires fair procedures with respect to the liberty interest.
8
Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011).
9
However, the procedures required for a parole determination
10
are the minimal requirements set forth in Greenholtz v. Inmates
11
of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1
12
Swarthout v. Cooke, 131 S.Ct. 859, 862.
13
rejected inmates’ claims that they were denied a liberty interest
14
because there was an absence of “some evidence” to support the
15
decision to deny parole.
16
17
18
19
In Swarthout, the Court
The Court stated:
There is no right under the Federal Constitution
to be conditionally released before the expiration of
a valid sentence, and the States are under no duty
to offer parole to their prisoners. (Citation omitted.)
When, however, a State creates a liberty interest,
the Due Process Clause requires fair procedures for its
vindication–and federal courts will review the
20
1
21
22
23
24
25
26
27
28
In Greenholtz, the Court held that a formal hearing is not required
with respect to a decision concerning granting or denying discretionary
parole; it is sufficient to permit the inmate to have an opportunity to be
heard and to be given a statement of reasons for the decision made. Id. at
16. The decision maker is not required to state the evidence relied upon in
coming to the decision. Id. at 15-16. The Court reasoned that because there
is no constitutional or inherent right of a convicted person to be released
conditionally before expiration of a valid sentence, the liberty interest in
discretionary parole is only conditional and thus differs from the liberty
interest of a parolee. Id. at 9. Further, the discretionary decision to
release one on parole does not involve restrospective factual determinations,
as in disciplinary proceedings in prison; instead, it is generally more
discretionary and predictive, and thus procedures designed to elicit specific
facts are unnecessary. Id. at 13. In Greenholtz, the Court held that due
process was satisfied where the inmate received a statement of reasons for the
decision and had an effective opportunity to insure that the records being
considered were his records, and to present any special considerations
demonstrating why he was an appropriate candidate for parole. Id. at 15.
6
1
2
3
4
application of those constitutionally required procedures.
In the context of parole, we have held that the procedures
required are minimal. In Greenholtz, we found
that a prisoner subject to a parole statute similar
to California’s received adequate process when he
was allowed an opportunity to be heard and was provided
a statement of the reasons why parole was denied.
(Citation omitted.)
5
Swarthout, 131 S.Ct. 859, 862.
The Court concluded that the
6
petitioners had received the process that was due as follows:
7
8
9
10
11
They were allowed to speak at their parole hearings
and to contest the evidence against them, were afforded
access to their records in advance, and were notified
as to the reasons why parole was denied....
That should have been the beginning and the end of
the federal habeas courts’ inquiry into whether
[the petitioners] received due process.
12
Swarthout, 131 S.Ct. at 862.
13
noted that California’s “some evidence” rule is not a substantive
14
federal requirement, and correct application of California’s
15
“some evidence” standard is not required by the Federal Due
16
Process Clause.
17
B.
The Court in Swarthout expressly
Id. at 862-63.
Analysis
18
Here, in his first, second, third and sixth claims,
19
Petitioner essentially contests the BPH’s application of the
20
“some evidence” rule.
21
Court to engage in the very type of analysis foreclosed by
22
Swarthout.
23
possibility of constitutional error or that otherwise would
24
entitle Petitioner to habeas relief because California’s “some
25
evidence” requirement is not a substantive federal requirement.
26
Review of the record for “some evidence” to support the denial of
27
parole is not within the scope of this Court’s habeas review
28
under 28 U.S.C. § 2254.
In these claims, Petitioner asks this
Petitioner does not state facts that point to a real
7
1
A petition for habeas corpus should not be dismissed without
2
leave to amend unless it appears that no tenable claim for relief
3
can be pleaded were such leave granted.
4
F.2d 13, 14 (9th Cir. 1971).
Jarvis v. Nelson, 440
5
Here, Petitioner did not allege that he was denied an
6
opportunity to be heard or a statement of reasons for the BPH’s
7
decision.
8
petition that Petitioner attended the parole suitability hearing,
9
made statements to the BPH, and received a statement of reasons
However, it is clear from the allegations in the
10
for the decisions of the BPH.
11
and the documentation attached to the petition establish that he
12
had an opportunity to be heard and a statement of reasons for the
13
decision in question.
14
Petitioner could state a tenable due process claim concerning the
15
conduct of the hearing and evidence underlying the findings of
16
the BPH.
17
Thus, Petitioner’s own allegations
It therefore does not appear that
Accordingly, it will be recommended that with respect to
18
Petitioner’s first, second, third, and sixth claims of due
19
process violations concerning the evidence at the parole hearing,
20
the petition be dismissed without leave to amend.
21
IV.
22
In the seventh claim, Petitioner challenges the BPH’s
23
failure to comply with state law that Petitioner alleges limited
24
the appropriate sentence that he should have received.
25
extent that Petitioner’s claim or claims rest on state law, they
26
are not cognizable on federal habeas corpus.
27
relief is not available to retry a state issue that does not rise
28
to the level of a federal constitutional violation.
State Law Claims
8
To the
Federal habeas
Wilson v.
1
Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v.
2
McGuire, 502 U.S. 62, 67-68 (1991).
3
application of state law are not cognizable in federal habeas
4
corpus.
5
Alleged errors in the
Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002).
Accordingly, it will be recommended that Petitioner’s sixth
6
claim concerning alleged noncompliance with state law be
7
dismissed without leave to amend.
8
V.
Due Process Violation Based on Consideration of
Offenses as to which Sentence Was Stayed
9
Petitioner alleges that his right to due process of law was
10
violated by the BPH’s consideration of offenses as to which
11
sentence was stayed.
Although in the motion to dismiss
12
Respondent seeks dismissal of the entire petition, Respondent has
13
not addressed this claim.
In his opposition, Petitioner appears
14
to contend that he has already completed the sentence on the
15
counts other than the kidnaping, which would include the
16
robberies, and thus the BPH should not have considered the
17
multiple robberies in determining Petitioner’s suitability for
18
parole; further, being retained in prison on the basis of those
19
crimes is a violation of the Double Jeopardy Clause.
(Opp. 9.)
20
Petitioner attached to the petition a transcript of
21
proceedings that occurred in the trial court on December 1, 1983,
22
in which Petitioner changed his previous pleas of not guilty to
23
pleas of guilty to six counts of robbery in violation of Cal.
24
Pen. Code § 211 (counts I, II, III, V, VII, and IX), one count of
25
credit card fraud in violation of Cal. Pen. Code § 484(f)(3)
26
(count IV), and one count of kidnaping for the purpose of robbery
27
in violation of Cal. Pen. Code § 209(b) (count VI).
28
9
(Pet. 44-
1
49.)
2
1984, reflects that Petitioner was sentenced on the kidnaping
3
(count VI) to a sentence of life in state prison, and on the
4
robbery and fraud charges (counts I, II, III, IV, V, VII, and IX)
5
to an aggregate term of seven (7) years in state prison to run
6
concurrently with the life sentence.
7
documentation attached to the petition does not indicate that
8
there was a plea agreement concerning staying counts or
9
sentences, or that sentence on any of the counts was ordered
A transcript of a sentencing proceeding held on January 17,
(Id. at 52-53.)
The
10
stayed.
11
Petitioner has completed the aggregated, seven-year term that was
12
imposed for the robbery counts.
13
By virtue of the passage of time, it would appear that
Insofar as Petitioner may be contending that the BPH’s
14
consideration of the robbery counts in determining parole
15
suitability was improper, Petitioner is challenging the BPH’s
16
application of the “some evidence” rule.
17
foreclosed by Swarthout.
18
Thus, such a claim is
To the extent that Petitioner is contending that the BPH’s
19
consideration was foreclosed by a term of a plea agreement,
20
Petitioner has not alleged facts entitling him to relief.
21
A criminal defendant has a due process right to enforce the
22
terms of his plea agreement.
23
plea agreement must be fulfilled if they are significant
24
inducements to enter into a plea.
25
U.S. 257, 262 (1971); Buckley v. Terhune, 441 F.3d 688, 694 (9th
26
Cir. 2006).
27
measured by contract law standards.
28
Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993).
Promises from the prosecution in a
Santobello v. New York, 404
Plea agreements are contractual in nature and are
10
United States v. De la
In construing a plea
1
agreement, a court must determine what the defendant reasonably
2
believed to be the terms of the plea agreement at the time of the
3
plea.
4
2002).
5
United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir.
The construction of a state court plea agreement is a matter
6
of state law, and federal courts will defer to a state court’s
7
reasonable construction of a plea agreement.
8
Adamson, 483 U.S. 1, 6 n.3 (1987);
9
688, 695 (9th Cir. 2006).
Ricketts v.
Buckley v. Terhune, 441 F.3d
In California, a negotiated plea
10
agreement is a form of contract and is interpreted according to
11
general contract principles and according to the same rules as
12
other contracts.
13
People v. Shelton, 37 Cal.4th 759, 767 (2006) and People v.
14
Toscano, 124 Cal.App.4th 340, 344 (2004)).
15
Buckley v. Terhune, 441 F.3d 688, 695 (citing
Further, in California, the plain meaning of an agreement’s
16
language must first be considered.
17
it must be interpreted by ascertaining the objectively reasonable
18
expectations of the promisee at the time the contract was made.
19
Buckley v. Terhune, 441 F.3d 688, 695 (9th Cir. 2006).
20
ambiguity remains after a court considers the objective
21
manifestations of the parties’ intent, then the language of the
22
contract should be interpreted most strongly against the party
23
who caused the uncertainty to exist, or in favor of the
24
defendant.
If the language is ambiguous,
If
Id. at 695-96.
25
Here, the transcript of the change of plea proceeding
26
submitted by Petitioner shows that the plea did not include any
27
conditions concerning parole, minimum sentence, or stay of any
28
sentence that would prevent the BPH from determining suitability
11
1
for parole on the basis of all of Petitioner’s criminal history.
2
Petitioner’s general allegations are undercut by the clear record
3
submitted in support of the petition.
4
24 F.3d 20, 26 (9th Cir.1994) (“Conclusory allegations which are
5
not supported by a statement of specific facts do not warrant
6
habeas relief.”).
7
See, e.g., James v. Borg,
Accordingly, Petitioner has not stated facts that point to a
8
real possibility of constitutional error.
9
Section 2254 Cases in the United States District Courts, Rule 4,
10
Advisory Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915
11
F.2d 418, 420 (9th Cir. 1990) (quoting Blackledge v. Allison, 431
12
U.S. 63, 75 n.7 (1977)).
13
See, Rules Governing
Further, because the pertinent transcript of the plea
14
proceedings is before the Court, it does not appear that if leave
15
to amend were granted, Petitioner could state a tenable due
16
process claim based on a violation of his plea agreement by the
17
Board’s consideration of all offenses on which Petitioner was
18
sentenced.
19
To the extent that Petitioner claims in the opposition that
20
the BPH’s determination was a violation of his protection against
21
double jeopardy, the Court notes that the claim is not before the
22
Court because the petition is devoid of any allegations
23
concerning such a claim.
24
Further, it appears that amendment of the petition to
25
include such a claim would be futile.
26
Double Jeopardy Clause of the Fifth Amendment protects against
27
not only a second prosecution for the same offense after
28
acquittal or conviction, but also multiple punishments for the
12
It is established that the
1
same offense.
2
U.S. 389, 395-96 (1995).
3
that a “sentence be given a degree of finality that prevents its
4
later increase.”
5
(1980).
6
Id.
7
revocation of probation or parole with imposition of
8
imprisonment.
9
neither punishment nor imposition or increase of a sentence for
U.S. Const. amend V; Witte v. United States, 515
However, the clause does not require
United States v. DiFrancesco, 449 U.S. 117, 137
An acquittal and a sentence are critically different.
Thus, there is no double jeopardy protection against
Id. at 137.
Likewise, the denial of parole is
10
double jeopardy purposes; rather, it is an administrative
11
decision to withhold early release.
12
599, 602 n.7 (10th Cir. 1992); Alessi v. Quinlan, 711 F.2d 497,
13
501 (2d Cir. 1983); Roach v. Board of Pardons and Paroles, State
14
of Arkansas, 503 F.2d 1367, 1368 (8th Cir. 1974); United States
15
ex rel. Jacobs v. Barc, 141 F.2d 480, 483 (6th Cir. 1944).
16
Finally, it is established that the Double Jeopardy Clause does
17
not provide the defendant with the right to know at any specific
18
point in time what the precise limit of his punishment will
19
eventually turn out to be.
20
U.S. at 137.
21
Mahn v. Gunter, 978 F.2d
United States v. DiFrancesco, 499
Pursuant to California’s sentencing scheme, when a prisoner
22
receives an indeterminate sentence, such as fifteen years to
23
life, the indeterminate sentence is in legal effect a sentence
24
for the maximum term, subject only to the power of the parole
25
authority to set a lesser term; parole is an entirely
26
discretionary matter.
27
561-62 (9th Cir. 2010), overruled on other grounds in .
28
Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859 (2011).
Hayward v. Marshall, 603 F.3d 546, 558,
13
Probation
1
and parole are parts of the original sentence that must be
2
anticipated by a prisoner.
3
104-05 (9th Cir. 1995).
4
United States v. Brown, 59 F.3d 102,
In summary, the Court concludes that insofar as Petitioner
5
contends that the BPH’s determination violated Petitioner’s right
6
to due process of law based on inconsistency with Petitioner’s
7
plea agreement, the petition should be dismissed without leave to
8
amend.
9
10
VI.
Equal Protection Claim
Insofar as Petitioner claims that his right to equal
11
protection of the laws was violated by the BPH’s consideration of
12
offenses that were stayed as part of his plea agreement in
13
connection with the commitment offenses, the preceding analysis
14
shows that Petitioner has not alleged, and could not allege,
15
specific facts showing such a plea agreement.
16
It may be that in alleging that he has served longer time
17
than others whose crimes were considered callous and cruel and
18
even included murder (Pet. 21:7-17), Petitioner is attempting to
19
state a claim that he suffered a denial of equal protection.
20
Prisoners are protected under the Equal Protection Clause of
21
the Fourteenth Amendment from invidious discrimination based on
22
race, religion, or membership in a protected class subject to
23
restrictions and limitations necessitated by legitimate
24
penological interests.
25
(1974); Bell v. Wolfish, 441 U.S. 520, 545-46 (1979).
26
Protection Clause essentially directs that all persons similarly
27
situated should be treated alike.
28
Cleburne Living Center, 473 U.S. 432, 439 (1985).
Wolff v. McDonnell, 418 U.S. 539, 556
14
The Equal
City of Cleburne, Texas v.
Violations of
1
equal protection are shown when a respondent intentionally
2
discriminated against a petitioner based on membership in a
3
protected class, Lee v. City of Los Angeles, 250 F.3d 668, 686
4
(9th Cir. 2001), or when a respondent intentionally treated a
5
member of an identifiable class differently from other similarly
6
situated individuals without a rational basis, or a rational
7
relationship to a legitimate state purpose, for the difference in
8
treatment, Village of Willowbrook v. Olech, 528 U.S. 562, 564
9
(2000).
10
Here, Petitioner has not alleged facts showing that he is a
11
member of a protected class or that membership in a protected
12
class was the basis of any alleged discrimination.
13
consideration is discretionary and does not provide the basis of
14
a fundamental right.
15
(9th Cir. 1989).
16
Parole
Mayner v. Callahan, 873 F.2d 1300, 1301-02
Further, Petitioner has not shown that with respect to all
17
pertinent factors of parole suitability, he is similarly situated
18
with others who may have served less time after conviction of
19
murder.
20
Finally, under California law, a prisoner’s suitability for
21
parole is dependent upon the effect of the prisoner’s release on
22
the public safety.
23
on parole unless the public safety requires a more lengthy period
24
of incarceration).
25
intended and applied to promote the legitimate state interest of
26
public safety.
27
Cir. 1998) (health and safety are legitimate state interests).
28
Petitioner has not shown or even suggested how the decision in
Cal. Pen. Code § 3041(b) (mandating release
California’s parole system is thus both
See, Webber v. Crabtree, 158 F.3d 460, 461 (9th
15
1
the present case could have constituted a violation of equal
2
protection of the laws.
3
4
5
The Court concludes that Petitioner has not alleged specific
facts showing an equal protection violation.
With respect to the propriety of amending the petition to
6
state such a claim, the Court’s statement in Greenholtz
7
concerning the difference between discretionary decisions
8
concerning parole release and those resulting in revocation of
9
parole is instructive:
10
11
12
13
14
15
A second important difference between discretionary
parole release from confinement and termination of
parole lies in the nature of the decision that must be
made in each case. As we recognized in Morrissey, the
parole-revocation determination actually requires two
decisions: whether the parolee in fact acted in
violation of one or more conditions of parole and
whether the parolee should be recommitted either for
his or society's benefit. Id., at 479-480, 92 S.Ct. at
2599. “The first step in a revocation decision thus
involves a wholly retrospective factual question.” Id.,
at 479, 92 S.Ct. at 2599.
16
17
18
19
20
21
22
23
24
25
26
The parole-release decision, however, is more subtle
and depends on an amalgam of elements, some of which
are factual but many of which are purely subjective
appraisals by the Board members based upon their
experience with the difficult and sensitive task of
evaluating the advisability of parole release. Unlike
the revocation decision, there is no set of facts
which, if shown, mandate a decision favorable to the
individual. The parole determination, like a
prisoner-transfer decision, may be made “for
a variety of reasons and often involve[s] no more
than informed predictions as to what would best
serve [correctional purposes] or the safety and
welfare of the inmate.” Meachum v. Fano, 427 U.S.,
at 225, 96 S.Ct., at 2538. The decision turns on
a “discretionary assessment of a multiplicity of
imponderables, entailing primarily what a man is
and what he may become rather than simply what
he has done.” Kadish, The Advocate and the
Expert-Counsel in the Peno-Correctional Process,
45 Minn.L.Rev. 803, 813 (1961).
27
Greenholtz v. Inmates of Nebrasks Penal and Correctional Complex,
28
16
1
442 U.S. 1, 9-10 (1979).
2
are discretionary and are not subject to evaluation based on any
3
particular combination of factors of parole suitability, the fact
4
that Petitioner might posit some similarity with other inmates
5
with respect to offenses, history, or other parole suitability
6
factors would not be sufficient to entitle Petitioner to relief
7
based on the Equal Protection Clause.
8
9
10
Because parole release determinations
Accordingly, it would not appear that Petitioner could state
a tenable equal protection claim if he were granted leave to
amend.
11
Accordingly, it will be recommended that Petitioner’s claim
12
concerning equal protection be dismissed without leave to amend.
13
VII.
14
To the extent that Petitioner challenges the decisions of
Decisions of the State Courts
15
the state courts upholding the BPH’s determination (Pet. 14-16,
16
56-59), because Petitioner has not established a violation by the
17
parole authorities of his rights under the Fourteenth Amendment,
18
the decisions of the state courts upholding the authorities’
19
decision could not have resulted in either 1) a decision that was
20
contrary to, or involved an unreasonable application of, clearly
21
established federal law, as determined by the Supreme Court of
22
the United States; or 2) a decision that was based on an
23
unreasonable determination of the facts in light of the evidence
24
presented in the state court proceedings.
25
failed to state facts concerning the state court decisions that
26
would entitle him to relief.
27
28
Thus, Petitioner has
See, 28 U.S.C. § 2254(d).
Therefore, it will be recommended that Petitioner’s due
process claim with respect to the state court decisions should
17
1
2
likewise be dismissed without leave to amend.
VIII.
3
Miscellaneous Allegations or Arguments in the
Opposition to the Motion concerning the Conviction
or Sentence
4
Petitioner raises numerous arguments in the opposition to
5
the motion concerning the involuntariness of his plea and alleged
6
errors concerning the proceedings that led to his conviction for
7
the commitment offenses, such as wrongful denial of a motion for
8
self-representation, ineffective assistance of appellate counsel,
9
and infirmities in his sentence.
10
11
These claims are not before the
Court because they were not set forth in the petition.
To the extent that Petitioner might contend that the
12
petition should be amended to include such claims, the Court
13
notes that the instant petition addresses a decision of the BPH
14
concerning parole, and not the conviction process.
15
concerning the conviction process would be more appropriately
16
heard in the district in which the conviction was sustained.
17
U.S.C. § 2241(d); Laue v. Nelson, 279 F.Supp. 265, 266 (C.D.Cal.
18
1968).
19
Los Angeles County Superior Court, claims concerning his
20
conviction are appropriately considered in the Central District
21
of California.
22
Claims
28
Because Petitioner’s convictions were sustained in the
Further, the gravamen of Petitioner’s claims in the present
23
petition concerns the BPH’s denial of parole.
24
challenging the Los Angeles County conviction or sentence would
25
concern a different judgment.
26
A claim
Habeas Rule 2(e) provides:
27
A petitioner who seeks relief from judgments of more
than one state court must file a separate petition
covering the judgment or judgments of each court.
28
Petitioner thus cannot properly challenge the judgments of two
18
1
different tribunals in a single proceeding.
2
925 F.2d 305, 308-11 (9th Cir. 1991).
3
permissible to challenge both a denial of parole by the BPH and
4
an underlying conviction in the same habeas corpus action.
5
Williams v. Sisto, No. CIV S-07-2692 WBS DAD P, 2009 WL 3300038,
6
*12 (E.D.Cal. Oct. 14, 2009).
7
Bianchi v. Blodgett,
Specifically, it is not
See,
Accordingly, the Court concludes that Petitioner’s claims
8
concerning his conviction are not properly before the Court, and
9
thus the Court will not address them in this proceeding.
10
IX.
11
Unless a circuit justice or judge issues a certificate of
Certificate of Appealability
12
appealability, an appeal may not be taken to the Court of Appeals
13
from the final order in a habeas proceeding in which the
14
detention complained of arises out of process issued by a state
15
court.
16
U.S. 322, 336 (2003).
17
only if the applicant makes a substantial showing of the denial
18
of a constitutional right.
19
petitioner must show that reasonable jurists could debate whether
20
the petition should have been resolved in a different manner or
21
that the issues presented were adequate to deserve encouragement
22
to proceed further.
23
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
24
certificate should issue if the Petitioner shows that jurists of
25
reason would find it debatable whether the petition states a
26
valid claim of the denial of a constitutional right and that
27
jurists of reason would find it debatable whether the district
28
court was correct in any procedural ruling.
28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue
§ 2253(c)(2).
Under this standard, a
Miller-El v. Cockrell, 537 U.S. at 336
19
A
Slack v. McDaniel,
1
529 U.S. 473, 483-84 (2000).
2
In determining this issue, a court conducts an overview of
3
the claims in the habeas petition, generally assesses their
4
merits, and determines whether the resolution was debatable among
5
jurists of reason or wrong.
6
applicant to show more than an absence of frivolity or the
7
existence of mere good faith; however, it is not necessary for an
8
applicant to show that the appeal will succeed.
9
Cockrell, 537 U.S. at 338.
Id.
It is necessary for an
Miller-El v.
10
A district court must issue or deny a certificate of
11
appealability when it enters a final order adverse to the
12
applicant.
13
Rule 11(a) of the Rules Governing Section 2254 Cases.
Here, it does not appear that reasonable jurists could
14
debate whether the petition should have been resolved in a
15
different manner.
16
of the denial of a constitutional right.
17
18
Petitioner has not made a substantial showing
Accordingly, it will be recommended that the Court decline
to issue a certificate of appealability.
19
X.
20
In summary, the petition should be dismissed without leave
Recommendations
21
to amend.
22
be dismissed as moot.
Petitioner’s request for an evidentiary hearing should
23
Accordingly, it is RECOMMENDED that:
24
1) Respondent’s motion to dismiss the petition be GRANTED;
25
and
26
2) The petition be DISMISSED without leave to amend; and
27
3) Petitioner’s request for an evidentiary hearing be
28
DISMISSED as moot; and
20
1
2
4) The Court DECLINE to issue a certificate of
appealability; and
3
4
5) The Clerk be DIRECTED to close the action because an
order of dismissal would terminate the proceeding.
5
These findings and recommendations are submitted to the
6
United States District Court Judge assigned to the case, pursuant
7
to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
8
the Local Rules of Practice for the United States District Court,
9
Eastern District of California.
Within thirty (30) days after
10
being served with a copy, any party may file written objections
11
with the Court and serve a copy on all parties.
12
should be captioned “Objections to Magistrate Judge’s Findings
13
and Recommendations.”
14
and filed within fourteen (14) days (plus three (3) days if
15
served by mail) after service of the objections.
16
then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §
17
636 (b)(1)(C).
18
objections within the specified time may waive the right to
19
appeal the District Court’s order.
20
1153 (9th Cir. 1991).
21
IT IS SO ORDERED.
22
Dated:
icido3
Such a document
Replies to the objections shall be served
The Court will
The parties are advised that failure to file
June 24, 2011
Martinez v. Ylst, 951 F.2d
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
23
24
25
26
27
28
21
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?