McNabb v. Yates et al
Filing
27
FINDINGS and RECOMMENDATIONS RE: Respondent's 21 Motion to Dismiss the Petition; FINDINGS and RECOMMENDATIONS recommending to Dismiss the 1 Petition with Prejudice, Dismiss Petitioner's Motion as Moot, and Decline to Issue a Certificate of Appealability signed signed by Magistrate Judge Sheila K. Oberto on 06/23/2011. Referred to Judge Wanger; Objections to F&R due by 7/27/2011. (Flores, E)
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UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
RONALD EDWARD McNABB,
10
Petitioner,
11
12
13
v.
WARDEN YATES, et al.,
14
Respondent.
15
16
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)
1:10-cv—01191-OWW-SKO-HC
FINDINGS AND RECOMMENDATIONS RE:
RESPONDENT’S MOTION TO DISMISS
THE PETITION
(DOCS. 21, 1, 7)
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION WITH
PREJUDICE (DOCS. 1, 7),
DISMISS PETITIONER’S MOTIONS AS
MOOT (DOCS. 23-25), AND
DECLINE TO ISSUE A CERTIFICATE
OF APPEALABILITY
17
Petitioner is a state prisoner proceeding pro se and in
18
forma pauperis with a petition for writ of habeas corpus pursuant
19
to 28 U.S.C. § 2254.
The matter has been referred to the
20
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local
21
Rules 302 and 304.
Pending before the Court is Respondent’s
22
motion to dismiss the petition, which was filed on February 17,
23
2011.
Respondent contends that the petition is untimely and
24
fails to set forth a cognizable claim.
Petitioner filed an
25
opposition to the motion on March 3, 2011, which was styled as a
26
“Motion of Opposition.”
No reply was filed.
27
///
28
1
1
I.
2
Respondent has filed a motion to dismiss the petition on the
Proceeding by a Motion to Dismiss
3
ground that Petitioner filed his petition outside the one-year
4
limitation period provided for by 28 U.S.C. § 2244(d)(1).
5
Respondent also argues that Petitioner failed to state a
6
cognizable claim.
7
Rule 4 of the Rules Governing Section 2254 Cases (Habeas
8
Rules) allows a district court to dismiss a petition if it
9
“plainly appears from the face of the petition and any exhibits
10
annexed to it that the petitioner is not entitled to relief in
11
the district court....”
12
The Ninth Circuit has allowed respondents to file motions to
13
dismiss pursuant to Rule 4 instead of answers if the motion to
14
dismiss attacks the pleadings by claiming that the petitioner has
15
failed to exhaust state remedies or has violated the state’s
16
procedural rules.
17
420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss
18
a petition for failure to exhaust state remedies); White v.
19
Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to
20
review a motion to dismiss for state procedural default); Hillery
21
v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same).
22
Thus, a respondent may file a motion to dismiss after the Court
23
orders the respondent to respond, and the Court should use Rule 4
24
standards to review a motion to dismiss filed before a formal
25
answer.
26
See, e.g., O’Bremski v. Maass, 915 F.2d 418,
See, Hillery, 533 F. Supp. at 1194 & n.12.
In this case, Respondent's motion to dismiss addresses the
27
untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1).
28
The material facts pertinent to the motion are mainly found in
2
1
copies of the official records of state judicial proceedings
2
which have been provided by Respondent and Petitioner, and as to
3
which there is no factual dispute.
4
filed a formal answer, and because Respondent's motion to dismiss
5
is similar in procedural standing to a motion to dismiss for
6
failure to exhaust state remedies or for state procedural
7
default, the Court will review Respondent’s motion to dismiss
8
pursuant to its authority under Rule 4.
9
10
II.
Because Respondent has not
Background
Petitioner alleged that he was an inmate of Pleasant Valley
11
State Prison (PVSP) serving a sentence of fifteen (15) years to
12
life imposed by the Los Angeles Superior Court in August 1982
13
upon his conviction of second degree murder in violation of Cal.
14
Pen. Code § 187.
15
of California’s Board of Parole Hearings (BPH) finding Petitioner
16
unsuitable for parole after a hearing held on August 1, 2006,
17
because Petitioner presented a danger to society if released.
18
(Id. at 16.)
(Pet. 3.)
Petitioner challenges the decision
19
Petitioner raises the following claims in the petition:
20
the BPH abused its discretion by concluding that Petitioner would
21
pose an unreasonable risk of danger to society, 2) there was no
22
evidence of Petitioner’s callous disregard for human life, 3) the
23
BPH’s continued denial of release on parole constituted cruel and
24
unusual punishment, and 4) the BPH’s continued denial of parole
25
violated the Ex Post Facto Clause.
26
contends that the evidence of his rehabilitation that was before
27
the BPH actually supported a finding that if released, Petitioner
28
would not present an unreasonable risk of danger to society.
3
(Id. at 6-7.)
1)
Petitioner
1
(Doc. 7, 4.)
2
The transcript of the hearing held on August 1, 2006,
3
reflects that Petitioner attended the hearing with counsel, was
4
given an opportunity to correct and clarify the record, discussed
5
with the BPH various factors of parole suitability, made a
6
personal statement in favor of parole in addition to his
7
counsel’s statement, and was present when the BPH announced its
8
decision and the reasoning underlying it.
9
1, 2, 5, 10, 13, 15-43, 44-47, 48-57.)
(Mot., Ex. 1, doc. 21-
The BPH’s reasons for
10
concluding that Petitioner posed an unreasonable danger to public
11
safety and should not receive consideration for release again for
12
four years included the especially violent and cruel commitment
13
offense and Petitioner’s criminal history, abuse of drugs and
14
resultant psychiatric problems, limited programming and
15
disciplinary history during incarceration, failure to develop a
16
marketable skill, and lack of residential plans for release.
17
(Id. at 48-57.)
18
On June 18, 2009, Petitioner filed a petition for writ of
19
habeas corpus in the Los Angeles Superior Court, which denied the
20
petition on October 16, 2009, on the ground that there was some
21
evidence to support the BPH’s findings concerning the commitment
22
offense, including Petitioner’s significant, criminal and serious
23
misconduct during incarceration, and the inadequacy of
24
Petitioner’s rehabilitative efforts.
25
60-62.)
26
27
(Mot., Ex. 2, doc. 21-2,
Petitioner filed a petition for writ of habeas corpus in the
California Court of Appeal, Second Appellate District, on
28
4
1
November 11, 2009,1 which the court denied on December 2, 2009.
2
(Mot., Exs. 3-4, doc. 21-2, 64-75; doc. 21-1, 98.)
3
Petitioner filed a petition for writ of habeas corpus in the
4
California Supreme Court on December 15, 2009.
5
doc. 21-1, 77-89.)
6
Thereafter,
(Mot., Ex. 5,
Petitions for writ of habeas corpus filed in this Court were
7
dismissed without prejudice for failure to exhaust state court
8
remedies on February 25, 2008 (petition filed on October 22,
9
2007, in case no. 1:07-cv-01535-AWI-SMS-HC) and March 4, 2008
10
(petition filed on February 4, 2008, in case no. 1:08-cv-00173-
11
LJO-SMS-HC).
12
138-42; ex. 8, doc. 21-1, 143-45.)
13
(Mot., Ex. 5, doc. 21-1, 90-91; ex. 7, doc. 21-2,
On January 22, 2009, the United States Court of Appeals for
14
the Ninth Circuit denied as unnecessary an application for
15
authorization to bring a successive § 2254 petition.
16
93; ex. 7, doc. 21-1, 138-40.)
17
without prejudice to Petitioner’s renewing his habeas petition
18
before the District Court.
19
(Id. at 92-
The denial was specifically
Id.
On June 18, 2009, Petitioner filed a second petition for
20
writ of habeas corpus in the Superior Court, which the court
21
denied on October 16, 2009, on the ground that the record
22
23
24
25
26
27
28
1
Under the mailbox rule, a prisoner's pro se habeas petition is "deemed
filed when he hands it over to prison authorities for mailing to the relevant
court." Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001); Houston v.
Lack, 487 U.S. 266, 276 (1988). The mailbox rule applies to federal and state
petitions alike. Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010)
(citing Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th. Cir. 2003), and Smith
v. Ratelle, 323 F.3d 813, 816 n.2 (9th Cir. 2003)). Only some of the exhibits
filed by Respondent contain the petitions, so some filing dates are reflected
only in the orders denying the petitions. Thus, it may be the Petitioner
actually filed the petitions a few days earlier than indicated in the
respective state courts’ denial orders. However, in view of the timing of the
filings, it does not appear that any discrepancy would affect the analysis or
result in the present case.
5
1
contained some evidence supporting the BPH’s findings.
2
94-97.)
3
(Id. at
On November 17, 2009, Petitioner filed a petition for writ
4
of habeas corpus in the California Court of Appeal, which the
5
court denied on December 2, 2009.
6
(Id. at 98.)
Petitioner filed a petition for writ of habeas corpus in the
7
California Supreme Court on December 15, 2009, which the court
8
denied on June 9, 2010.
9
petition in the present case was filed on June 14, 2010.2
(Exs. 5-6, doc. 21-1, 87, 78-137.)
The
10
III.
11
On April 24, 1996, Congress enacted the Antiterrorism and
Statute of Limitations
12
Effective Death Penalty Act of 1996 (AEDPA).
13
to all petitions for writ of habeas corpus filed after the
14
enactment of the AEDPA.
15
(1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en
16
banc), cert. denied, 118 S.Ct. 586 (1997).
17
18
19
The AEDPA applies
Lindh v. Murphy, 521 U.S. 320, 327
Because Petitioner filed his petition for writ of habeas
corpus on June 14, 2010, the AEDPA applies to the petition.
The AEDPA provides a one-year period of limitation in which
20
a petitioner must file a petition for writ of habeas corpus.
21
U.S.C. § 2244(d)(1).
22
23
28
As amended, subdivision (d) reads:
(1) A 1-year period of limitation shall apply to
an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court.
24
25
26
27
28
2
Petitioner’s declaration of proof of service of the petition by mail
was dated June 14, 2010; the post mark on the envelope bears the date of June
16, 2010. In Campbell v. Henry, the court declined to decide whether in
determining the date of mailing, it was more appropriate to use the date on
the proof of service or the date of the postmark. Campbell v. Henry, 614 F.3d
1056, 1059 n.2 (9th Cir. 2010). Because in the present case the proof of
service is declared to be true under penalty of perjury and appears to reflect
the time when Petitioner deposited the petition in the mail, the Court will
accept the date on the proof of service.
6
1
The limitation period shall run from the latest of –
2
(A) the date on which the judgment became
final by the conclusion of direct review or the
expiration of the time for seeking such review;
3
4
5
6
7
8
9
10
11
12
13
14
15
filing an
violation
States is
filing by
(B) the date on which the impediment to
application created by State action in
of the Constitution or laws of the United
removed, if the applicant was prevented from
such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme Court, if
the right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review;
or
(D) the date on which the factual predicate
of the claim or claims presented could have been
discovered through the exercise of due diligence.
(2) The time during which a properly filed
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.
28 U.S.C. § 2244(d).
16
The one-year limitation period of § 2244 applies to habeas
17
petitions brought by persons in custody pursuant to state court
18
judgments who challenge administrative decisions, such as the
19
decisions of state prison disciplinary authorities.
20
Bartlett, 391 F.3d 1061, 1063, 1065-66 (9th Cir. 2004).
21
§ 2244(d)(1)(A) is inapplicable to administrative decisions;
22
rather, it is § 2244(d)(1)(D) that applies to petitions
23
challenging such decisions.
24
1081-82 (9th Cir. 2003) (parole board determination).
25
point at which the statute begins to run is the date on which the
26
factual predicate of the claim or claims presented could have
27
been discovered through the exercise of due diligence.
28
§ 2244(d)(1)(D); Redd v. McGrath, 343 F.3d at 1082.
Shelby v.
However,
Redd v. McGrath, 343 F.3d 1077,
7
Thus, the
28 U.S.C.
In Redd v.
1
McGrath, the court concluded that the factual predicate of the
2
habeas claims concerning the denial of parole was the parole
3
board’s denial of the prisoner’s administrative appeal.
4
1082.
Id. at
5
In Shelby and Redd, the pertinent date was the date on
6
which notice of the decision was received by the petitioner.
7
Thus, the statute of limitations was held to have begun running
8
the day after notice of the decision was received.
9
Bartlett, 391 F.3d 1061, 1066; Redd, 343 F.3d at 1082.
10
Shelby v.
Here, Petitioner was present when the BPH announced its
11
decision; thus, Petitioner received notice of the initial BPH
12
panel decision on August 1, 2006.
13
decision reflects the following text after the conclusion of the
14
hearing:
15
16
17
18
19
However, the transcript of the
PAROLE DENIED FOUR YEARS
THIS DECISION WILL BE FINAL ON: Nov 29, 2006
YOU WILL BE PROMPTLY NOTIFIED IF, PRIOR TO THAT
DATE, THE DECISION IS MODIFIED.
RONALD MCNABB C-52916 DECISION PAGE 10 8/1/06
(Mot., doc. 21-1, 57.)
Thus, November 29, 2006, is the date on which the factual
20
predicate of the claim or claims presented could have been
21
discovered through the exercise of due diligence.
22
thus began running on the next day, November 30, 2006, and absent
23
any tolling, Petitioner had through November 29, 2007, to file
24
his petition here.
25
251 F.3d 1243, 1245-46 (9th Cir. 2001) (holding analogously that
26
the correct method for computing the running of the one-year
27
grace period after the enactment of AEDPA is pursuant to Fed. R.
28
Civ. P. 6(a), in which the day upon which the triggering event
The statute
Fed. R. Civ. P. 6(a); Patterson v. Stewart,
8
1
occurs is not counted).
2
Section 2244(d)(2) provides that the time during which a
3
properly filed application for state post-conviction or other
4
collateral review with respect to the pertinent judgment or claim
5
is pending shall not be counted toward any period of limitation.
6
Once a petitioner is on notice that his habeas petition may be
7
subject to dismissal based on the statute of limitations, he has
8
the burden of demonstrating that the limitations period was
9
sufficiently tolled by providing the pertinent facts, such as
10
dates of filing and denial.
11
15 (9th Cir. 2002), abrogation on other grounds recognized by
12
Moreno v. Harrison, 245 Fed. Appx. 606 (9th Cir. 2007).
13
Smith v. Duncan, 297 F.3d 809, 814-
Here, Petitioner’s first state habeas petition was filed on
14
June 18, 2009, long after the expiration of the one-year
15
limitation period at the end of November 2007.
16
filed after the expiration of the one-year limitation period does
17
not serve to toll or re-initiate the running of the limitations
18
period under 28 U.S.C. § 2244(d)(2).
19
F.3d 820, 823 (9th Cir. 2003).
20
shown a basis for tolling the running of the limitations period
21
pursuant to § 2244(d)(2).
22
A state petition
Ferguson v. Palmateer, 321
Accordingly, Petitioner has not
Petitioner contends that the running of the statute was
23
equitably tolled.
24
subject to equitable tolling where the petitioner has been
25
diligent, and extraordinary circumstances, such as the egregious
26
misconduct of counsel, have prevented the petitioner from filing
27
a timely petition.
28
2560 (2010).
The one-year limitations period of § 2244 is
Holland v. Florida, – U.S. –, 130 S.Ct. 2549,
The petitioner must show that the extraordinary
9
1
circumstances were the cause of his untimeliness and that the
2
extraordinary circumstances made it impossible to file a petition
3
on time.
4
The diligence required for equitable tolling is reasonable
5
diligence, not “maximum feasible diligence.”
6
130 S.Ct. at 2565.
7
Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009).
Holland v. Florida,
“[T]he threshold necessary to trigger equitable tolling
8
[under AEDPA] is very high, lest the exceptions swallow the
9
rule.”
10
Spitsyn v. Moore, 345 F.3d 796, 799 (quoting Miranda v.
Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)).
11
Petitioner alleges generally that the statute was equitably
12
tolled by his exhaustion of his claims at the state and then the
13
federal levels.
14
federal petitions were dismissed for failure to exhaust, he
15
returned to state court and filed a petition in the Superior
16
Court on June 18, 2009; each successive petition for relief
17
thereafter continued to toll the statute.
18
Petitioner contends that when the first two
(Opp., doc. 22, 1.)
Petitioner’s allegations appear to relate more to statutory
19
tolling pursuant to § 2244(d)(2) than to equitable tolling.
20
filing of a federal petition does not serve to toll the statute
21
of limitations pursuant to § 2244(d)(2).
22
U.S. 167, 172 (2001).
23
two earlier federal petitions, the statute continued to run.
24
The
Duncan v. Walker, 533
Thus, during the pendency of Petitioner’s
Further, it is demonstrated by the record that Petitioner
25
did not file his first state petition for collateral relief until
26
after the one-year limitation period had expired.
27
Petitioner does not point to any extraordinary circumstances that
28
prevented him from filing a timely petition.
10
Finally,
The Court concludes
1
that Petitioner did not demonstrate that the limitations period
2
was equitably tolled.
3
In summary, the Court concludes that the petition was
4
untimely.
5
motion to dismiss the petition as untimely be granted, and that
6
the petition be dismissed as untimely.
Accordingly, it will be recommended that Respondent’s
7
IV.
8
Respondent argues that the petition should be dismissed
9
10
Failure to State a Cognizable Claim
because Petitioner failed to state a claim entitling him to
relief in a proceeding pursuant to 28 U.S.C. § 2254.
11
A district court may entertain a petition for a writ of
12
habeas corpus by a person in custody pursuant to the judgment of
13
a state court only on the ground that the custody is in violation
14
of the Constitution, laws, or treaties of the United States. 28
15
U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,
16
375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,
17
16 (2010) (per curiam).
18
A.
19
Due Process Claim Based on the Evidence
The Supreme Court has characterized as reasonable the
20
decision of the Court of Appeals for the Ninth Circuit that
21
California law creates a liberty interest in parole protected by
22
the Fourteenth Amendment Due Process Clause, which in turn
23
requires fair procedures with respect to the liberty interest.
24
Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011).
25
26
However, the procedures required for a parole determination
are the minimal requirements set forth in Greenholtz v. Inmates
27
28
11
1
of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).3
2
Swarthout v. Cooke, 131 S.Ct. 859, 862.
3
rejected inmates’ claims that they were denied a liberty interest
4
because there was an absence of “some evidence” to support the
5
decision to deny parole.
6
7
8
9
10
11
12
13
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
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.)
14
Swarthout, 131 S.Ct. 859, 862.
15
petitioners had received the process that was due as follows:
16
17
The Court concluded that the
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....
18
19
That should have been the beginning and the end of
the federal habeas courts’ inquiry into whether
20
3
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.
12
1
[the petitioners] received due process.
2
Swarthout, 131 S.Ct. at 862.
3
noted that California’s “some evidence” rule is not a substantive
4
federal requirement, and correct application of California’s
5
“some evidence” standard is not required by the federal Due
6
Process Clause.
7
The Court in Swarthout expressly
Id. at 862-63.
Here, in arguing that there was an absence of evidence to
8
support the BPH’s denial of parole, Petitioner asks this Court to
9
engage in the very type of analysis foreclosed by Swarthout.
10
Petitioner does not state facts that point to a real possibility
11
of constitutional error or that otherwise would entitle
12
Petitioner to habeas relief because California’s “some evidence”
13
requirement is not a substantive federal requirement.
14
the record for “some evidence” to support the denial of parole is
15
not within the scope of this Court’s habeas review under 28
16
U.S.C. § 2254.
17
Review of
Insofar as Petitioner argues that the BPH abused its
18
discretion in denying parole, Petitioner appears to be relying on
19
state law concerning the determination of parole suitability.
20
the extent that Petitioner’s claim or claims rest on state law,
21
they are not cognizable on federal habeas corpus.
22
relief is not available to retry a state issue that does not rise
23
to the level of a federal constitutional violation.
24
Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v.
25
McGuire, 502 U.S. 62, 67-68 (1991).
26
application of state law are not cognizable in federal habeas
27
corpus.
28
///
Federal habeas
Wilson v.
Alleged errors in the
Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002).
13
To
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).
5
Jarvis v. Nelson, 440
Here, the allegations in the petition reveal that Petitioner
6
attended the parole suitability hearing, made statements to the
7
BPH, and received a statement of reasons for the decision of the
8
BPH.
9
record of the parole proceedings establish that he had an
Thus, Petitioner’s own allegations and the undisputed
10
opportunity to be heard and received a statement of reasons for
11
the decision in question.
12
Petitioner could state a tenable due process claim.
It therefore does not appear that
13
Accordingly, it will be recommended that with respect to
14
Petitioner’s due process claim, Respondent’s motion to dismiss be
15
granted, and the petition be dismissed without leave to amend.
16
17
18
B.
Cruel and Unusual Punishment
Petitioner alleges generally that the continued denial of
parole constituted cruel and unusual punishment.
(Pet. 7.)
19
It is established that there is no right under the Federal
20
Constitution to be conditionally released before the expiration
21
of a valid sentence, and the states are under no duty to offer
22
parole to their prisoners.
23
S.Ct. 859, 862 (2011).
24
disproportionate” to the crime for which a defendant is convicted
25
may violate the Eighth Amendment.
26
63, 72 (2003); Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)
27
(Kennedy, J., concurring); Rummel v. Estelle, 445 U.S. 263, 271
28
(1980).
Swarthout v. Cooke, 562 U.S. –, 131
A criminal sentence that is “grossly
Lockyer v. Andrade, 538 U.S.
Outside of the capital punishment context, the Eighth
14
1
Amendment prohibits only sentences that are extreme and grossly
2
disproportionate to the crime.
3
123, 129 (9th Cir. 1992) (quoting Harmelin v. Michigan, 501 U.S.
4
957, 1001, (1991) (Kennedy, J., concurring)).
5
“exceedingly rare” and occur in only “extreme” cases.
6
Andrade, 538 U.S. at 72-73; Rummel, 445 U.S. at 272.
7
a sentence does not exceed statutory maximums, it will not be
8
considered cruel and unusual punishment under the Eighth
9
Amendment.
United States v. Bland, 961 F.2d
Such instances are
Lockyer v.
So long as
See United States v. Mejia-Mesa, 153 F.3d 925, 930
10
(9th Cir. 1998); United States v. McDougherty, 920 F.2d 569, 576
11
(9th Cir. 1990).
12
In California, Petitioner’s offense, second degree murder,
13
is generally punished by imprisonment in the state prison for a
14
term of fifteen (15) years to life.
15
Pursuant to California law, it is established that an
16
indeterminate life sentence is in legal effect a sentence for the
17
maximum term of life.
18
(1969).
19
life term in state prison is not entitled to release on parole
20
until he is found suitable for such release by the Board of
21
Parole Hearings (previously, the Board of Prison Terms).
22
Pen. Code § 3041(b); Cal. Code of Regs., tit. 15, § 2402(a).
23
Under California’s Determinate Sentencing Law, an inmate such as
24
Petitioner who is serving an indeterminate sentence for murder
25
may serve up to life in prison, but he does not become eligible
26
for parole consideration until the minimum term of confinement is
27
served.
28
actual confinement period of a life prisoner is determined by an
Cal. Pen. Code § 190(a).
People v. Dyer, 269 Cal.App.2d 209, 214
Generally, a convicted person serving an indeterminate
In re Dannenberg, 34 Cal.4th 1061, 1078 (2005).
15
Cal.
The
1
2
executive parole agency.
Id. (citing Cal. Pen. Code § 3040).
Here, Petitioner’s sentence of fifteen (15) years to life
3
does not exceed the statutory maximum.
4
fifty years to life for murder with use of a firearm is not
5
grossly disproportionate.
6
1204 (9th Cir. 2006).
7
facts that would entitle him to relief in a proceeding pursuant
8
to § 2254 under the Eighth Amendment’s prohibition against cruel
9
and unusual punishment.
10
Further, a sentence of
Plasencia v. Alameida, 467 F.3d 1190,
Accordingly, Petitioner has not stated
In view of the pertinent state statutory scheme, it does not
11
appear that Petitioner could allege a tenable cruel and unusual
12
punishment claim.
13
Petitioner’s cruel and unusual punishment claim be dismissed
14
without leave to amend.
15
C.
16
Therefore, it will be recommended that
Ex Post Facto Claim
Petitioner alleges generally that the continued denial of
17
parole constitutes a violation of the Eighth Amendment’s Ex Post
18
Facto Clause.
19
to be based on the Ex Post Facto Clause and not the Eighth
20
Amendment.
21
(Pet. 7, 17.)
The Court understands this argument
Petitioner has not alleged specific facts in support of this
22
claim.
23
habeas corpus; rather, the petition must state facts that point
24
to a real possibility of constitutional error.
25
Advisory Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915
26
F.2d 418, 420 (9th Cir. 1990) (quoting Blackledge v. Allison, 431
27
U.S. 63, 75 n.7 (1977)).
28
vague, conclusional, or palpably incredible, and that are
Notice pleading is not sufficient for petitions for
Habeas Rule 4,
Allegations in a petition that are
16
1
unsupported by a statement of specific facts, are insufficient to
2
warrant relief and are subject to summary dismissal.
3
Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); James v. Borg, 24
4
F.3d 20, 26 (9th Cir. 1994).
5
are, therefore, subject to dismissal.
Jones v.
Petitioner’s general allegations
6
In view of the four-year denial of parole, however,
7
Petitioner may be basing his claim on the BPH’s application to
8
Petitioner, whose crime was committed in 1982, of
9
California’s Proposition 9, the “Victims’ Bill of Rights Act of
10
2008: Marsy’s Law,” which on November 4, 2008, effected an
11
amendment of Cal. Pen. Code § 3041.5(b)(3) that resulted in a
12
lengthening of the periods between parole suitability hearings.
13
The Constitution provides, “No State shall... pass any... ex
14
post facto Law.”
15
Clause prohibits any law which: 1) makes an act done before the
16
passing of the law, which was innocent when done, criminal; 2)
17
aggravates a crime and makes it greater than it was when it was
18
committed; 3) changes the punishment and inflicts a greater
19
punishment for the crime than when it was committed; or 4) alters
20
the legal rules of evidence and requires less or different
21
testimony to convict the defendant than was required at the time
22
the crime was committed.
23
(2000).
24
defendant violates the Ex Post Facto Clause if the new
25
regulations create a “sufficient risk” of increasing the
26
punishment for the defendant’s crimes.
27
F.3d 848, 854 (9th Cir. 2003) (citing Cal. Department of
28
Corrections v. Morales, 514 U.S. 499, 509 (1995)).
U.S. Const. art I, § 10.
The Ex Post Facto
Carmell v. Texas, 529 U.S. 513, 522
Application of a state regulation retroactively to a
17
Himes v. Thompson, 336
When the rule
1
or statute does not by its own terms show a significant risk, the
2
respondent must demonstrate, by evidence drawn from the rule's
3
practical implementation by the agency charged with exercising
4
discretion, that its retroactive application will result in a
5
longer period of incarceration than under the earlier rule.
6
Garner v. Jones, 529 U.S. 244, 250, 255 (2000).
7
The Court notes that Petitioner has not alleged any facts
8
that would even suggest that retroactive application of
9
Proposition 9 resulted in a longer period of incarceration.
10
Further, previous amendments to Cal. Pen. Code § 3041.5,
11
which initiated longer periods of time between parole suitability
12
hearings, have been upheld against challenges that they violated
13
the Ex Post Facto Clause.
14
Corrections v. Morales, 514 U.S. 499, 509 (1995);
Watson v.
15
Estelle, 886 F.2d 1093, 1097-98 (9th Cir. 1989).
Similarly, a
16
state law permitting the extension of intervals between parole
17
consideration hearings for all prisoners serving life sentences
18
from three to eight years does not violate the Ex Post Facto
19
Clause where expedited parole review was available upon a change
20
of circumstances or receipt of new information warranting an
21
earlier review, and where there was no showing of increased
22
punishment.
23
circumstances, there was no significant risk of extending a
24
prisoner’s incarceration.
25
See, e.g., California Department of
Garner v. Jones, 529 U.S. at 249.
Under such
Id.
In Gilman v. Schwarzenegger, 638 F.3d 1101 (9th Cir. 2011),
26
the Ninth Circuit reversed a grant of injunctive relief to
27
plaintiffs in a class action seeking to prevent the board from
28
enforcing Proposition 9's amendments that defer parole
18
1
consideration.
2
Proposition 9 were noted to be more extensive than those before
3
the Court in Morales and Garner; however, advanced hearings,
4
which would remove any possibility of harm, were available upon a
5
change in circumstances or new information.
6
Court concluded that in the absence of facts in the record from
7
which it might be inferred that Proposition 9 created a
8
significant risk of prolonging Plaintiffs’ incarceration, the
9
plaintiffs had not established a likelihood of success on the
10
11
The court noted that the changes wrought by
merits on the ex post facto claim.
Id. at 1108-09.
The
Id. at 1110-11.
This Court may take judicial notice of court records.
Fed.
12
R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333
13
(9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626,
14
635 n.1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981).
15
The Court takes judicial notice of the docket and specified
16
orders in the class action pending in this district, Gilman v.
17
Fisher, 2:05-cv-00830-LKK-GGH, including the order granting
18
motion for class certification filed on March 4, 2009 (Doc. 182,
19
9:7-15).
20
of California state prisoners who 1) have been sentenced to a
21
term that includes life, 2) are serving sentences that include
22
the possibility of parole, 3) are eligible for parole, and 4)
23
have been denied parole on one or more occasions.
24
further reflects that the Ninth Circuit affirmed the order
25
certifying the class.
26
The docket indicates that the Gilman class is made up
The docket
(Docs. 257, 258.)
The Court also takes judicial notice of the order of March
27
4, 2009, in which the court described the case as including
28
challenges to Proposition 9's amendments to Cal. Pen. Code §
19
1
3041.5 based on the Ex Post Facto Clause, and a request for
2
injunctive and declaratory relief against implementation of the
3
changes.
(Doc. 182, 5-6.)
4
Although Petitioner ultimately seeks release from custody
5
(pet. 35), resolution of Petitioner’s claim might well involve
6
the scheduling of Petitioner’s next suitability hearing and the
7
invalidation of state procedures used to deny parole suitability,
8
matters removed from the fact or duration of confinement.
9
types of claims have been held to be cognizable under 42 U.S.C.
Such
10
§ 1983 as claims concerning conditions of confinement.
11
v. Dotson, 544 U.S. 74, 82 (2005).
Thus, they may fall outside
12
the core of habeas corpus relief.
See, Preiser v. Rodriguez, 411
13
U.S. 475, 485-86 (1973); Nelson v. Campbell, 541 U.S. 637, 643
14
(2004); Muhammad v. Close, 540 U.S. 749, 750 (2004).
15
Wilkinson
Further, Petitioner's requested relief overlaps with the
16
relief requested in the Gilman class action.
17
a member of a class action for equitable relief from prison
18
conditions may not maintain an individual suit for equitable
19
relief concerning the same subject matter.
20
F.2d 890, 891-92 (9th Cir. 1979).
21
efficient and orderly administration of justice for a court to
22
proceed with an action that would possibly conflict, or
23
interfere, with the determination of relief in another pending
24
action, which is proceeding and in which the class has been
25
certified.
26
A plaintiff who is
Crawford v. Bell, 599
It is contrary to the
Here, Petitioner’s own allegations reflect that he qualifies
27
as a member of the class in Gilman.
28
jurisdiction over same subject matter and may grant the same
20
The court in Gilman has
1
relief.
2
disposition of its cases with economy of time and effort for both
3
the court and the parties.
4
U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260
5
(9th Cir. 1992).
6
this Court concludes that dismissal of Petitioner’s ex post facto
7
claim in this action is appropriate and necessary to avoid
8
interference with the orderly administration of justice.
9
Crawford v. Bell, 599 F.2d 890, 892-93; see Bryant v. Haviland,
10
11
A court has inherent power to control its docket and the
Landis v. North American Co., 299
In the exercise of its inherent discretion,
Cf.,
2011 WL 23064, *2-*5 (E.D.Cal. Jan. 4, 2011).
In view of the allegations of the petition and the pendency
12
of the Gilman class action, amendment of the petition with
13
respect to such an ex post facto claim would be futile.
14
Accordingly, it will be recommended that Petitioner’s ex post
15
facto claim be dismissed without leave to amend.
16
V.
17
After the filing of the motion to dismiss, Petitioner filed
Miscellaneous Motions
18
a motion for summary judgment in which he asked the Court to
19
grant him the writ of habeas corpus.
20
2011.)
21
April 4, 2011 (doc. 24), and a motion for the Court to grant his
22
petition (doc. 25, filed April 26, 2011).
23
(Doc. 23, filed March 24,
He then filed a motion for a transcript of his trial on
In view of the recommendation that the entire petition be
24
dismissed with prejudice, it will be further recommended that
25
Petitioner’s motions be dismissed as moot.
26
VI.
27
Unless a circuit justice or judge issues a certificate of
28
Certificate of Appealability
appealability, an appeal may not be taken to the Court of Appeals
21
1
from the final order in a habeas proceeding in which the
2
detention complained of arises out of process issued by a state
3
court.
4
U.S. 322, 336 (2003).
5
only if the applicant makes a substantial showing of the denial
6
of a constitutional right.
7
petitioner must show that reasonable jurists could debate whether
8
the petition should have been resolved in a different manner or
9
that the issues presented were adequate to deserve encouragement
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
10
to proceed further.
11
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
12
certificate should issue if the Petitioner shows that jurists of
13
reason would find it debatable whether the petition states a
14
valid claim of the denial of a constitutional right and that
15
jurists of reason would find it debatable whether the district
16
court was correct in any procedural ruling.
17
529 U.S. 473, 483-84 (2000).
18
Miller-El v. Cockrell, 537 U.S. at 336
A
Slack v. McDaniel,
In determining this issue, a court conducts an overview of
19
the claims in the habeas petition, generally assesses their
20
merits, and determines whether the resolution was debatable among
21
jurists of reason or wrong.
22
applicant to show more than an absence of frivolity or the
23
existence of mere good faith; however, it is not necessary for an
24
applicant to show that the appeal will succeed.
25
Cockrell, 537 U.S. at 338.
Id.
It is necessary for an
Miller-El v.
26
A district court must issue or deny a certificate of
27
appealability when it enters a final order adverse to the
28
applicant.
Rule 11(a) of the Rules Governing Section 2254 Cases.
22
1
Here, it does not appear that reasonable jurists could
2
debate whether the petition should have been resolved in a
3
different manner.
4
of the denial of a constitutional right.
5
recommended that the Court decline to issue a certificate of
6
appealability.
7
VII.
8
In summary, it is concluded that the petition was untimely,
9
10
Petitioner has not made a substantial showing
Accordingly, it will be
Recommendations
and that Petitioner has failed to state a claim cognizable in
this proceeding.
11
Accordingly, it is RECOMMENDED that:
12
1)
Respondent’s motion to dismiss the petition be GRANTED;
14
2)
The petition be DISMISSED with prejudice; and
15
3)
Petitioner’s motions for summary judgment, a copy of his
13
and
16
trial transcript, and to grant the petition be DISMISSED as moot;
17
and
18
19
4)
The Court DECLINE to issue a certificate of
appealability.
20
These findings and recommendations are submitted to the
21
United States District Court Judge assigned to the case, pursuant
22
to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
23
the Local Rules of Practice for the United States District Court,
24
Eastern District of California.
25
being served with a copy, any party may file written objections
26
with the Court and serve a copy on all parties.
27
should be captioned “Objections to Magistrate Judge’s Findings
28
and Recommendations.”
Within thirty (30) days after
Such a document
Replies to the objections shall be served
23
1
and filed within fourteen (14) days (plus three (3) days if
2
served by mail) after service of the objections.
3
then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §
4
636 (b)(1)(C).
5
objections within the specified time may waive the right to
6
appeal the District Court’s order.
7
1153 (9th Cir. 1991).
The Court will
The parties are advised that failure to file
Martinez v. Ylst, 951 F.2d
8
9
10
IT IS SO ORDERED.
Dated:
ie14hj
June 23, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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