Brown v. Hartley
Filing
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FINDINGS and RECOMMENDATIONS re: Respondent's 10 Motion to Dismiss the Petition; Findings and Recommendations to Dismiss the 1 Petition Without Leave to Amend; Findings and Recommendations to Decline to Issue a Certificate of Appealability and to Direct the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 6/23/11. Referred to Judge O'Neill. Objections Deadline: Thirty Days. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CEDRICK RAY BROWN,
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Petitioner,
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v.
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J. HARTLEY, Warden,
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Respondent.
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1:10-cv—01200-LJO-SKO-HC
FINDINGS AND RECOMMENDATIONS RE:
RESPONDENT’S MOTION TO DISMISS
THE PETITION (DOCS. 10, 1)
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION WITHOUT
LEAVE TO AMEND (DOC. 1)
FINDINGS AND RECOMMENDATIONS TO
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY AND TO DIRECT THE
CLERK TO CLOSE THE CASE
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OBJECTIONS DEADLINE:
THIRTY (30) DAYS
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Petitioner is a state prisoner proceeding pro se with a
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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The matter has been referred to the Magistrate Judge pursuant to
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28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.
Pending
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before the Court is Respondent’s motion to dismiss the petition
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filed on February 7, 2011.
Petitioner filed opposition to the
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motion on February 24, 2011.
No reply was filed.
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I.
Proceeding by a Motion to Dismiss
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Because the petition was filed after April 24, 1996, the
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effective date of the Antiterrorism and Effective Death Penalty
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Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh
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v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008
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(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
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A district court must award a writ of habeas corpus or issue
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an order to show cause why it should not be granted unless it
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appears from the application that the applicant is not entitled
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thereto.
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Section 2254 Cases in the United States District Courts (Habeas
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Rules) permits the filing of “an answer, motion, or other
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response,” and thus it authorizes the filing of a motion in lieu
28 U.S.C. § 2243.
Rule 4 of the Rules Governing
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of an answer in response to a petition.
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Court broad discretion to take “other action the judge may
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order,” including authorizing a respondent to make a motion to
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dismiss based upon information furnished by respondent, which may
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show that a petitioner’s claims suffer a procedural or
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jurisdictional infirmity, such as res judicata, failure to
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exhaust state remedies, or absence of custody.
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Advisory Committee Notes, 1976 Adoption and 2004 Amendments.
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Rule 4 confers upon the
Habeas Rule 4,
In light of the broad language of Rule 4, this circuit has
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held that motions to dismiss are appropriate in cases that
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proceed pursuant to 28 U.S.C. § 2254 and present procedural
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issues that might limit consideration of the merits of the
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petition.
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(proceeding under Rule 4 to consider a motion to dismiss for
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failure to raise any issue of federal law, which was based on the
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insufficiency of the facts as alleged in the petition to justify
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relief as a matter of law); White v. Lewis, 874 F.2d 599, 602-03
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(9th Cir. 1989) (considering procedural default in state court on
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a motion to dismiss); Hillery v. Pulley, 533 F.Supp. 1189, 1194
O’Bremski v. Maas, 915 F.2d 418, 420 (9th Cir. 1990)
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n.12 (E.D.Cal. 1982) (finding it appropriate to consider failure
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to exhaust state remedies on a motion to dismiss after receipt of
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evidence pursuant to Rule 7(a) to clarify whether or not the
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possible defect, not apparent on the face of the petition, might
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preclude a hearing on the merits).
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The filing of a motion to dismiss instead of an answer was
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authorized by the Court’s order of December 7, 2010, which
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referred to the possibility of Respondent’s filing a motion to
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dismiss and set forth a briefing schedule if such a motion were
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filed.
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that the filing of a motion to dismiss is expressly authorized by
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Habeas Rule 4.
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Adoption and 2004 Amendments; Gutierrez v. Griggs, 695 F.2d 1195,
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1198 (9th Cir. 1983).
(Order, doc. 4, 3-4.)
It is established in this circuit
Habeas Rule 4 Advisory Committee Notes, 1976
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Further, Habeas Rule 7 permits the Court to direct the
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parties to expand the record by submitting additional materials
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relating to the petition and to authenticate such materials,
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which may include letters predating the filing of the petition,
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documents, exhibits, affidavits, and answers under oath to
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written interrogatories propounded by the judge.
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7(a), (b).
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that a defect not apparent on the face of the petition may
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preclude a hearing on the merits, the Court may proceed to
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determine a motion to dismiss.
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1189, 1196.
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Habeas Rule
If, upon expansion of the record, the Court perceives
Hillery v. Pulley, 533 F.Supp.
In Blackledge v. Allison, 431 U.S. 63, 80-81 (1977), the
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United States Supreme Court suggested that summary judgment
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standards should be used to test whether facially adequate
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allegations have a sufficient basis in fact to warrant plenary
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presentation of evidence.
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record in a given case could demonstrate that an evidentiary
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hearing is unnecessary.
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advised that there might be cases in which expansion of the
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record would provide evidence against a petitioner’s contentions
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so overwhelming as to justify a conclusion that an allegation of
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fact does not raise a substantial issue of fact.
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circumstances, the petitioner is entitled to “careful
The Court noted that expansion of the
Id. at 81.
The Court specifically
Id.
In such
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consideration and plenary processing of (his claim,) including
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full opportunity for presentation of the relevant facts.”
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82-83.
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Id. at
Summary judgment standards were likewise applied in Hillery
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v. Pulley, 533 F.Supp. 1189, 1197 (E.D.Cal. 1982), where the
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Court stated:
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The standards under Rule 56 are well known (footnote
omitted). To paraphrase them for purposes of habeas
proceedings, it may be said that a motion to dismiss a
petition for habeas corpus made after expansion of
the record may only be granted when the matters on file
reveal that there is no genuine issue of material
fact “which if resolved in accordance with the
petitioner’s contentions would entitle him to relief...
(citation omitted). Only if it appears from
undisputed facts... that as a matter of law petitioner
is entitled to discharge, or that as a matter of law
he is not, may an evidentiary hearing be avoided.”
(Citation omitted.)
533 F.Supp. 1197.
In the present case, the record was expanded in connection
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with the motion to dismiss to include facts concerning
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Petitioner’s presentation of his claims to the state courts.
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Pursuant to the foregoing standards, this expansion of the record
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may permit summary disposition of the petition without a full
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evidentiary hearing.
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Accordingly, pursuant to Habeas Rule 4, the Court will
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review the facts alleged in the petition and as reflected in the
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evidentiary materials submitted by the parties in connection with
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the motion to dismiss.
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II.
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Respondent argues that the petition should be dismissed
Failure to Exhaust State Court Remedies
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because Petitioner failed to exhaust his state court remedies
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with respect to the claims raised in the petition.
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A petitioner who is in state custody and wishes to challenge
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collaterally a conviction by a petition for writ of habeas corpus
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must exhaust state judicial remedies.
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The exhaustion doctrine is based on comity to the state court and
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gives the state court the initial opportunity to correct the
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state's alleged constitutional deprivations.
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Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509,
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518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir.
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1988).
28 U.S.C. § 2254(b)(1).
Coleman v.
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A petitioner can satisfy the exhaustion requirement by
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providing the highest state court with the necessary jurisdiction
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a full and fair opportunity to consider each claim before
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presenting it to the federal court, and demonstrating that no
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state remedy remains available.
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275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir.
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1996).
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was given a full and fair opportunity to hear a claim if the
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petitioner has presented the highest state court with the claim's
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factual and legal basis.
Picard v. Connor, 404 U.S. 270,
A federal court will find that the highest state court
Duncan v. Henry, 513 U.S. 364, 365
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(1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10
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(1992), superceded by statute as stated in Williams v. Taylor,
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529 U.S. 362 (2000) (factual basis).
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Additionally, the petitioner must have specifically told the
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state court that he was raising a federal constitutional claim.
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Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669
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(9th Cir.2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v.
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Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133
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F.3d 1240, 1241 (9th Cir. 1998).
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In Duncan, the United States
Supreme Court reiterated the rule as follows:
In Picard v. Connor, 404 U.S. 270, 275...(1971),
we said that exhaustion of state remedies requires that
petitioners "fairly presen[t]" federal claims to the
state courts in order to give the State the
"'opportunity to pass upon and correct’ alleged
violations of the prisoners' federal rights" (some
internal quotation marks omitted). If state courts are
to be given the opportunity to correct alleged violations
of prisoners' federal rights, they must surely be
alerted to the fact that the prisoners are asserting
claims under the United States Constitution. If a
habeas petitioner wishes to claim that an evidentiary
ruling at a state court trial denied him the due
process of law guaranteed by the Fourteenth Amendment,
he must say so, not only in federal court, but in state
court.
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Duncan, 513 U.S. at 365-366.
The Ninth Circuit examined the rule
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further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir.
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2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th
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Cir. 2001), stating:
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Our rule is that a state prisoner has not "fairly
presented" (and thus exhausted) his federal claims
in state court unless he specifically indicated to
that court that those claims were based on federal law.
See, Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir.
2000). Since the Supreme Court's decision in Duncan,
this court has held that the petitioner must make the
federal basis of the claim explicit either by citing
federal law or the decisions of federal courts, even
if the federal basis is "self-evident," Gatlin v. Madding,
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189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v.
Harless, 459 U.S. 4, 7... (1982), or the underlying
claim would be decided under state law on the same
considerations that would control resolution of the claim
on federal grounds, see, e.g., Hiivala v. Wood, 195
F.3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon,
88 F.3d 828, 830-31 (9th Cir. 1996); Crotts, 73 F.3d
at 865.
...
In Johnson, we explained that the petitioner must alert
the state court to the fact that the relevant claim is a
federal one without regard to how similar the state and
federal standards for reviewing the claim may be or how
obvious the violation of federal law is.
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Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as
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amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir.
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2001).
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Where none of a petitioner’s claims has been presented to
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the highest state court as required by the exhaustion doctrine,
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the Court must dismiss the petition.
Raspberry v. Garcia, 448
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F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478,
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481 (9th Cir. 2001).
The authority of a court to hold a mixed
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petition in abeyance pending exhaustion of the unexhausted claims
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has not been extended to petitions that contain no exhausted
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claims.
Raspberry, 448 F.3d at 1154.
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Here, Petitioner challenges the decision of California’s
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Board of Parole Hearings (BPH) made after a hearing held on July
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8, 2009, finding Petitioner unsuitable for parole.
(Pet. 1, 9,
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11, 27-30.)
Respondent appended to the motion to dismiss
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printouts of state court decisions and dockets to show that when
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Respondent’s motion to dismiss was filed on February 7, 2011,
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Petitioner had not filed a petition for review in the California
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Supreme Court regarding the claims raised in the present
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petition.
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In response, Petitioner asked the Court to take judicial
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notice of the Court’s characterization of Petitioner’s exhaustion
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of state court remedies in a case previously pending in this
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Court – namely, Cedric Brown v. J. Hartley, 1:10-cv-00652-LJO-
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DLB-HC.1
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2010, in that case reflect that Petitioner’s claims concerned the
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alleged inconsistency of the BPH’s reasoning for denying
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Petitioner parole at various parole consideration hearings from
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1999 through 2007, and alleged unfairness in Petitioner’s 2007
The findings and recommendations filed on October 1,
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parole hearing.
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petition concerned other decisions of the BPH, a showing of
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exhaustion of state court remedies with respect to Petitioner’s
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previous claims does not serve to demonstrate exhaustion of state
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remedies with respect to claims concerning a later hearing.
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Petitioner has not provided any further evidence of exhaustion of
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the pertinent claims.
(Doc. 14, 1:20-25.)
Because the previous
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Because of the passage of time since the filing of the
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pending motion to dismiss, the Court has reviewed and takes
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judicial notice of the pendency of proceedings in state court by
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viewing the website of the California Courts.2
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second habeas corpus petition concerning the pertinent claims was
Petitioner’s
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1
The Court may take judicial notice of court records. Fed. R. Evid.
201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993);
Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978),
aff’d, 645 F.2d 699 (9th Cir. 1981).
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2
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The web address is http://www.courts.ca.gov/supremecourt/htm. The Court
may take judicial notice of facts that are capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned, including undisputed information posted on official web sites.
Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th
Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d 992, 999
(9th Cir. 2010).
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1
filed in the California Court of Appeal, Fifth Appellate
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District, in case no. F060850, and was denied on January 6, 2011.
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Petitioner filed a petition for writ of habeas corpus in the
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California Supreme Court on February 22, 2011, in case number
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S190854.
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refers to Petitioner’s claims concerning the 2009 parole
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decision.
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Supreme Court, this Court cannot be certain.
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has been no showing that the claim concerning the 2009 hearing
It is possible that this pending habeas proceeding
However, without a copy of the petition filed in the
In any event, there
10
was presented to the California Supreme Court or was ruled on by
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the Court.
12
Although non-exhaustion of remedies has been viewed as an
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affirmative defense, it is the petitioner’s burden to prove that
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state judicial remedies were properly exhausted.
15
§ 2254(b)(1)(A); Darr v. Burford, 339 U.S. 200, 218-19 (1950),
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overruled in part on other grounds in Fay v. Noia, 372 U.S. 391
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(1963); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981).
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If available state court remedies have not been exhausted as to
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all claims, a district court must dismiss a petition.
20
Lundy, 455 U.S. 509, 515-16 (1982).
21
28 U.S.C.
Rose v.
Here, Petitioner did not establish exhaustion of state court
22
remedies in the petition.
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record of the state proceedings pending at the time the motion
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was filed, the record did not show that Petitioner raised before
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the state courts the challenges to the unsuitability finding that
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he raises here.
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Respondent’s motion, Petitioner has not taken the opportunity to
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establish exhaustion.
Although the Respondent provided the
Further, although Petitioner was served with
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The court, therefore, concludes that Petitioner has failed
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to meet his burden to establish exhaustion of state court
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remedies.
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dismiss the petition for failure to exhaust state court remedies
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be granted.
Accordingly, it will be recommended that the motion to
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III.
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In an abundance of caution, and in light of what may be
Failure to State a Cognizable Due Process Claim
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ongoing attempts on the part of Petitioner to exhaust his state
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court remedies, the Court will consider Respondent’s additional
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contention that the claim raised by Petitioner is not cognizable
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in a proceeding pursuant to 28 U.S.C. § 2254.
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A.
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Background
In the petition, Petitioner alleged that he was a resident
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of Avenal State Prison at Avenal, California, serving a sentence
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of twenty-five (25) years to life for first degree murder.
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1.)
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support the BPH’s decision that Petitioner posed a danger if
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released; thus, Petitioner’s rights under the Fourteenth
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Amendment as well as the California Constitution were violated.
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Petitioner argues that the BPH misused a 2008 psychological
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report and appellate court narrative of the facts of the offense
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that reflected Petitioner dragged the victim of a robbery or
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otherwise intended harm to the victim.
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the evidence actually supported a finding of suitability.
25
27, 6-31.)
26
(Pet.
Petitioner contends that the record is devoid of evidence to
Petitioner contends that
(Pet.
The transcript of the parole suitability hearing held on
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July 8, 2009, was submitted by Respondent in connection with the
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motion to dismiss.
(Mot., Ex. 1, Doc. 10-1, 36-135.)
10
The
1
transcript reflects that Petitioner attended the hearing (doc.
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10-1, 36, 132), received documents before the hearing and had an
3
opportunity to present documentary evidence (id. at 46-48),
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addressed the BPH panel under oath with respect to multiple
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parole suitability factors (id. at 49-123), and made a personal
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statement in favor of parole (id. at 129-31).
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Petitioner appeared at the hearing, advocated on Petitioner’s
8
behalf, and gave a closing statement in favor of Petitioner’s
9
suitability for release on parole.
10
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An attorney for
(Doc. 10-1, 36, 39, 50, 116,
125-29.)
Further, Petitioner was present when the BPH announced its
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reasons for denying parole for three years, which included the
13
commitment offense, Petitioner’s lack of insight and limited
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sense of responsibility for his actions, his psychological
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evaluation, and his criminal history.
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132-34.)
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B.
(Mot., Ex. 1, doc. 10-1,
Analysis
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A district court may entertain a petition for a writ of
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habeas corpus by a person in custody pursuant to the judgment of
20
a state court only on the ground that the custody is in violation
21
of the Constitution, laws, or treaties of the United States. 28
22
U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,
23
375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,
24
16 (2010) (per curiam).
25
The Supreme Court has characterized as reasonable the
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decision of the Court of Appeals for the Ninth Circuit that
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California law creates a liberty interest in parole protected by
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the Fourteenth Amendment Due Process Clause, which in turn
11
1
requires fair procedures with respect to the liberty interest.
2
Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011).
3
However, the procedures required for a parole determination
4
are the minimal requirements set forth in Greenholtz v. Inmates
5
of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).3
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Swarthout v. Cooke, 131 S.Ct. 859, 862.
7
rejected inmates’ claims that they were denied a liberty interest
8
because there was an absence of “some evidence” to support the
9
decision to deny parole.
10
11
12
13
14
15
16
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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.)
18
Swarthout, 131 S.Ct. 859, 862.
19
petitioners had received the process that was due as follows:
The Court concluded that the
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
2
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....
3
4
That should have been the beginning and the end of
the federal habeas courts’ inquiry into whether
[the petitioners] received due process.
5
Swarthout, 131 S.Ct. at 862.
The Court in Swarthout expressly
6
noted that California’s “some evidence” rule is not a substantive
7
federal requirement, and correct application of California’s
8
“some evidence” standard is not required by the Federal Due
9
Process Clause.
Id. at 862-63.
10
Here, Petitioner asks this Court to engage in the very type
11
of analysis foreclosed by Swarthout.
Petitioner does not state
12
facts that point to a real possibility of constitutional error or
13
that otherwise would entitle Petitioner to habeas relief because
14
California’s “some evidence” requirement is not a substantive
15
federal requirement.
Review of the record for “some evidence” to
16
support the denial of parole is not within the scope of this
17
Court’s habeas review under 28 U.S.C. § 2254.
18
Petitioner cites the California constitution and state
19
statutory and regulatory law concerning the parole process and
20
parole suitability factors.
To the extent that Petitioner’s
21
claim or claims rest on state law, they are not cognizable on
22
federal habeas corpus.
Federal habeas relief is not available to
23
retry a state issue that does not rise to the level of a federal
24
constitutional violation.
Wilson v. Corcoran, 562 U.S. — , 131
25
S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68
26
(1991).
Alleged errors in the application of state law are not
27
cognizable in federal habeas corpus.
28
13
Souch v. Schiavo, 289 F.3d
1
2
616, 623 (9th Cir. 2002).
It thus appears that insofar as Petitioner attempts to state
3
a claim concerning the evidence based on the Due Process Clause
4
of the Fourteenth Amendment, Petitioner has failed to state a
5
claim that would entitle him to relief in this proceeding.
6
A petition for habeas corpus should not be dismissed without
7
leave to amend unless it appears that no tenable claim for relief
8
can be pleaded were such leave granted.
9
F.2d 13, 14 (9th Cir. 1971).
10
Jarvis v. Nelson, 440
Here, Petitioner did not claim that he lacked an opportunity
11
to be heard or a statement of reasons.
12
in the petition reveal that Petitioner attended the parole
13
suitability hearing, made statements to the BPH, and received a
14
statement of reasons for the decisions of the BPH and the
15
governor.
16
transcript of the hearing establish that he had an opportunity to
17
be heard and a statement of reasons for the decisions in
18
question.
19
state a tenable due process claim.
20
21
However, the allegations
Thus, Petitioner’s own allegations and the undisputed
It therefore does not appear that Petitioner could
Accordingly, it will be recommended that Petitioner’s due
process claim be dismissed without leave to amend.
22
IV.
23
Petitioner raises an ex post facto claim based on the BPH’s
Ex Post Facto Claim
24
application of Marsy’s Law to Petitioner, which resulted in an
25
increase in the period between Petitioner’s parole suitability
26
hearings from one year, which had been ordered at a previous
27
parole hearing in 2008, to three years.
28
understands Petitioner’s mention of “Marsy’s Law” (pet. 11) to be
14
(Pet. 11-12.)
The Court
1
a reference to California’s Proposition 9, the “Victims’ Bill of
2
Rights Act of 2008: Marsy’s Law,” which on November 4, 2008,
3
effected an amendment of Cal. Pen. Code § 3041.5(b)(3) that
4
resulted in a lengthening of the periods between parole
5
suitability hearings.
6
The Constitution provides, “No State shall... pass any... ex
7
post facto Law.”
8
Clause prohibits any law which: 1) makes an act done before the
9
passing of the law, which was innocent when done, criminal; 2)
10
aggravates a crime and makes it greater than it was when it was
11
committed; 3) changes the punishment and inflicts a greater
12
punishment for the crime than when it was committed; or 4) alters
13
the legal rules of evidence and requires less or different
14
testimony to convict the defendant than was required at the time
15
the crime was committed.
16
(2000).
17
defendant violates the Ex Post Facto Clause if the new
18
regulations create a “sufficient risk” of increasing the
19
punishment for the defendant’s crimes.
20
F.3d 848, 854 (9th Cir. 2003) (citing Cal. Department of
21
Corrections v. Morales, 514 U.S. 499, 509 (1995)).
22
or statute does not by its own terms show a significant risk, the
23
respondent must demonstrate, by evidence drawn from the rule's
24
practical implementation by the agency charged with exercising
25
discretion, that its retroactive application will result in a
26
longer period of incarceration than under the earlier rule.
27
Garner v. Jones, 529 U.S. 244, 250, 255 (2000).
28
///
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
15
Himes v. Thompson, 336
When the rule
1
Previous amendments to Cal. Pen. Code § 3041.5, which
2
initiated longer periods of time between parole suitability
3
hearings, have been upheld against challenges that they violated
4
the Ex Post Facto Clause.
5
Corrections v. Morales, 514 U.S. 499, 509 (1995);
Watson v.
6
Estelle, 886 F.2d 1093, 1097-98 (9th Cir. 1989).
Similarly, a
7
state law permitting the extension of intervals between parole
8
consideration hearings for all prisoners serving life sentences
9
from three to eight years does not violate the Ex Post Facto
See, e.g., California Department of
10
Clause where expedited parole review was available upon a change
11
of circumstances or receipt of new information warranting an
12
earlier review, and where there was no showing of increased
13
punishment.
14
circumstances, there was no significant risk of extending a
15
prisoner’s incarceration.
16
Garner v. Jones, 529 U.S. at 249.
Under such
Id.
In Gilman v. Schwarzenegger, - F.3d -, No. 10-15471, 2011 WL
17
198435, at *2 (9th Cir. Jan. 24, 2011), the Ninth Circuit
18
reversed a grant of injunctive relief to plaintiffs in a class
19
action seeking to prevent the board from enforcing Proposition
20
9's amendments that defer parole consideration.
21
that the changes wrought by Proposition 9 were noted to be more
22
extensive than those before the Court in Morales and Garner;
23
however, advanced hearings, which would remove any possibility of
24
harm, were available upon a change in circumstances or new
25
information.
26
of facts in the record from which it might be inferred that
27
Proposition 9 created a significant risk of prolonging
28
Plaintiffs’ incarceration, the plaintiffs had not established a
Id. at *6.
The court noted
The Court concluded that in the absence
16
1
likelihood of success on the merits on the ex post facto claim.
2
Id. at *8.
3
This Court may take judicial notice of court records.
Fed.
4
R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333
5
(9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626,
6
635 n.1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981).
7
The Court takes judicial notice of the docket and specified
8
orders in the class action pending in this district, Gilman v.
9
Fisher, 2:05-cv-00830-LKK-GGH, including the order granting
10
motion for class certification filed on March 4, 2009 (Doc. 182,
11
9:7-15), which indicates that the Gilman class is made up of
12
California state prisoners who 1) have been sentenced to a term
13
that includes life, 2) are serving sentences that include the
14
possibility of parole, 3) are eligible for parole, and 4) have
15
been denied parole on one or more occasions.
16
reflects that the Ninth Circuit affirmed the order certifying the
17
class.
18
of the order of March 4, 2009, in which the court described the
19
case as including challenges to Proposition 9's amendments to
20
Cal. Pen. Code § 3041.5 based on the Ex Post Facto Clause, and a
21
request for injunctive and declaratory relief against
22
implementation of the changes.
23
(Docs. 257, 258.)
The docket further
The Court also takes judicial notice
(Doc. 182, 5-6.)
Although Petitioner ultimately seeks release from custody
24
(pet. 31), resolution of Petitioner’s claim may well involve the
25
scheduling of Petitioner’s next suitability hearing and the
26
invalidation of state procedures used to deny parole suitability
27
– matters removed from the fact or duration of confinement.
28
types of claims have been held to be cognizable under 42 U.S.C.
17
Such
1
§ 1983 as claims concerning conditions of confinement.
2
v. Dotson, 544 U.S. 74, 82 (2005).
Thus, they may fall outside
3
the core of habeas corpus relief.
See, Preiser v. Rodriguez, 411
4
U.S. 475, 485-86 (1973); Nelson v. Campbell, 541 U.S. 637, 643
5
(2004); Muhammad v. Close, 540 U.S. 749, 750 (2004).
6
Wilkinson
Further, the relief Petitioner requests overlaps with the
7
relief requested in the Gilman class action.
8
a member of a class action for equitable relief from prison
9
conditions may not maintain an individual suit for equitable
A plaintiff who is
10
relief concerning the same subject matter.
11
F.2d 890, 891-92 (9th Cir. 1979).
12
efficient and orderly administration of justice for a court to
13
proceed with an action that would possibly conflict with or
14
interfere with the determination of relief in another pending
15
action, which is proceeding and in which the class has been
16
certified.
17
Crawford v. Bell, 599
It is contrary to the
Here, Petitioner’s own allegations reflect that he qualifies
18
as a member of the class in Gilman.
19
jurisdiction over same subject matter and may grant the same
20
relief.
21
disposition of its cases with economy of time and effort for both
22
the court and the parties.
23
U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260
24
(9th Cir. 1992).
25
this Court concludes that dismissal of Petitioner’s ex post facto
26
claim in this action is appropriate and necessary to avoid
27
interference with the orderly administration of justice.
28
Crawford v. Bell, 599 F.2d 890, 892-93; see Bryant v. Haviland,
The court in Gilman has
A court has inherent power to control its docket and the
Landis v. North American Co., 299
In the exercise of its inherent discretion,
18
Cf.,
1
2011 WL 23064, *2-*5 (E.D.Cal. Jan. 4, 2011).
2
A petition for habeas corpus should not be dismissed without
3
leave to amend unless it appears that no tenable claim for relief
4
can be pleaded were such leave granted.
5
F.2d 13, 14 (9th Cir. 1971).
6
petition and the pendency of the Gilman class action, amendment
7
of the petition with respect to the ex post facto claim would be
8
futile.
9
10
Jarvis v. Nelson, 440
In view of the allegations of the
Accordingly, it will be recommended that Petitioner’s ex
post facto claim be dismissed without leave to amend.
11
V.
12
Petitioner alleges very generally that he suffered a
Eighth Amendment Violation
13
violation of his rights under the Fifth and Eighth Amendments of
14
the Constitution.
15
(Pet. 30-31.)
The basis of Petitioner’s Fifth Amendment claim is
16
uncertain.
17
violated his Fifth Amendment rights.
18
allege any facts to support such a claim or to suggest that he
19
could allege a claim under the Fifth and Fourteenth Amendments.
Petitioner concludes generally that the decision
Petitioner has failed to
20
With respect to Petitioner’s claim under the Eighth
21
Amendment, there is an absence of focused, supportive factual
22
allegations.
23
the BPH’s repeated denials of parole were unfair and arbitrary,
24
it is assumed that Petitioner is alleging that the failure to
25
release Petitioner violated his Eighth Amendment rights.
26
However, in view of Petitioner’s assertions that
It is established that there is no right under the
27
Constitution to be conditionally released before the expiration
28
of a valid sentence, and the states are under no duty to offer
19
1
parole to their prisoners.
2
S.Ct. 859, 862 (2011).
3
“grossly disproportionate” to the crime for which a defendant is
4
convicted may violate the Eighth Amendment.
5
538 U.S. 63, 72 (2003); Harmelin v. Michigan, 501 U.S. 957, 1001
6
(1991) (Kennedy, J., concurring); Rummel v. Estelle, 445 U.S.
7
263, 271 (1980).
8
Eighth Amendment prohibits only sentences that are extreme and
9
grossly disproportionate to the crime.
Swarthout v. Cooke, 562 U.S. –, 131
However, a criminal sentence that is
Lockyer v. Andrade,
Outside of the capital punishment context, the
United States v. Bland,
10
961 F.2d 123, 129 (9th Cir. 1992) (quoting Harmelin v. Michigan,
11
501 U.S. 957, 1001, (1991) (Kennedy, J., concurring)).
12
instances are
13
cases.
14
at 272.
15
not be considered cruel and unusual punishment under the Eighth
16
Amendment.
17
(9th Cir. 1998); United States v. McDougherty, 920 F.2d 569, 576
18
(9th Cir. 1990).
19
Such
“exceedingly rare” and occur in only “extreme”
Lockyer v. Andrade, 538 U.S. at 72-73; Rummel, 445 U.S.
A sentence that does not exceed statutory maximums will
See United States v. Mejia-Mesa, 153 F.3d 925, 930
Here, Petitioner was sentenced to twenty-five (25) years to
20
life for first degree murder in violation of Cal. Pen. Code §
21
187.
22
degree murder has been held not to be cruel and unusual
23
punishment under the Eighth Amendment.
24
971 F.2d 200, 211 (9th Cir. 1991).
25
for first degree felony murder has been held not to violate the
26
Eighth Amendment.
27
1978).
28
without parole for first degree murder has been held not to be
(Pet. 38.)
A sentence of life imprisonment for first
United States v. LaFleur,
Likewise, life imprisonment
Guam v. Sablan, 584 F.2d 340, 341 (9th Cir.
Even for a young offender, a mandatory sentence of life
20
1
grossly disproportionate.
2
(9th Cir. 1996).
3
Harris v. Wright, 93 F.3d 581, 585
Petitioner thus has not alleged facts showing that his
4
continued incarceration reflects or constitutes a grossly
5
disproportionate sentence.
6
pointing to a real possibility of Eighth and Fourteenth Amendment
7
error.
8
present in order for an Eighth Amendment claim to be stated, it
9
does not appear that Petitioner could state a tenable claim of
Nor has Petitioner alleged facts
Further, considering the extreme facts that must be
10
cruel and unusual punishment under the Eighth and Fourteenth
11
Amendments.
12
13
Accordingly, it will be recommended that Petitioner’s Fifth
and Eighth Amendment claim be dismissed without leave to amend.
14
VI.
15
Unless a circuit justice or judge issues a certificate of
Certificate of Appealability
16
appealability, an appeal may not be taken to the Court of Appeals
17
from the final order in a habeas proceeding in which the
18
detention complained of arises out of process issued by a state
19
court.
20
U.S. 322, 336 (2003).
21
only if the applicant makes a substantial showing of the denial
22
of a constitutional right.
23
petitioner must show that reasonable jurists could debate whether
24
the petition should have been resolved in a different manner or
25
that the issues presented were adequate to deserve encouragement
26
to proceed further.
27
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
28
certificate should issue if the Petitioner shows that jurists of
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
21
A
1
reason would find it debatable whether the petition states a
2
valid claim of the denial of a constitutional right and that
3
jurists of reason would find it debatable whether the district
4
court was correct in any procedural ruling.
5
529 U.S. 473, 483-84 (2000).
6
Slack v. McDaniel,
In determining this issue, a court conducts an overview of
7
the claims in the habeas petition, generally assesses their
8
merits, and determines whether the resolution was debatable among
9
jurists of reason or wrong.
Id.
It is necessary for an
10
applicant to show more than an absence of frivolity or the
11
existence of mere good faith; however, it is not necessary for an
12
applicant to show that the appeal will succeed.
13
Cockrell, 537 U.S. at 338.
Miller-El v.
14
A district court must issue or deny a certificate of
15
appealability when it enters a final order adverse to the
16
applicant.
Rule 11(a) of the Rules Governing Section 2254 Cases.
17
Here, it does not appear that reasonable jurists could
18
debate whether the motion or petition should have been evaluated
19
or resolved in a different manner.
20
substantial showing of the denial of a constitutional right.
21
Accordingly, it will be recommended that the Court decline to
22
issue a certificate of appealability.
Petitioner has not made a
23
VII.
24
The Court concludes that Respondent’s motion to dismiss
25
Petitioner’s due process claim concerning the evidence should be
26
granted.
27
petition, because Petitioner has failed to state facts that would
28
entitle him to relief in a proceeding pursuant to 28 U.S.C. §
Recommendations
Further, with respect to the remaining claims in the
22
1
2254, the claims should be dismissed.
2
Accordingly, it is RECOMMENDED that:
3
1)
Respondent’s motion to dismiss be GRANTED; and
4
2)
The petition be DISMISSED without leave to amend; and
5
3)
The Court DECLINE to issue a certificate of
6
appealability; and
7
8
4)
The Clerk be DIRECTED to close the case because an order
of dismissal would terminate the case in its entirety.
9
These findings and recommendations are submitted to the
10
United States District Court Judge assigned to the case, pursuant
11
to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
12
the Local Rules of Practice for the United States District Court,
13
Eastern District of California.
14
being served with a copy, any party may file written objections
15
with the Court and serve a copy on all parties.
16
should be captioned “Objections to Magistrate Judge’s Findings
17
and Recommendations.”
18
and filed within fourteen (14) days (plus three (3) days if
19
served by mail) after service of the objections.
20
then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §
21
636 (b)(1)(C).
22
objections within the specified time may waive the right to
23
appeal the District Court’s order.
24
1153 (9th Cir. 1991).
Within thirty (30) days after
Such a document
Replies to the objections shall be served
The Court will
The parties are advised that failure to file
Martinez v. Ylst, 951 F.2d
25
26
IT IS SO ORDERED.
27
Dated:
ie14hj
June 23, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
28
23
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