Foster v. Harley, et al.
Filing
15
FINDINGS and RECOMMENDATIONS RE: Respondent's Motion to Dismiss the Petition 12 , 1 , 2 ; FINDINGS and RECOMMENDATIONS to Dismiss the Petition Without Leave to Amend 1 , 2 , DISMISS Motion as Moot 10 , Decline to Issue a Certificate of App ealability, and Direct the Clerk to Close the Case, signed by Magistrate Judge Sandra M. Snyder on 6/17/11: Matter referred to Judge Ishii; Objections due within thirty (30) days of being served with the F&Rs, Reply due within fourteen (14) days (+3 days if served by mail) after service of the objections.(Hellings, J)
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UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
10
FEASTER FOSTER,
11
Petitioner,
12
v.
13
WARDEN JAMES D. HARLEY,
14
Respondent.
15
16
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)
1:10-cv—01683-AWI-SMS-HC
FINDINGS AND RECOMMENDATIONS RE:
RESPONDENT’S MOTION TO DISMISS
THE PETITION (DOCS. 12, 1, 2)
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION WITHOUT
LEAVE TO AMEND (DOCS. 1, 2),
DISMISS MOTION AS MOOT (DOC. 10),
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY,
AND DIRECT THE CLERK TO CLOSE
THE CASE
17
18
Petitioner is a state prisoner proceeding pro se with a
19
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
20
The matter has been referred to the Magistrate Judge pursuant to
21
28 U.S.C.§ 636(b)(1) and Local Rules 302 and 304.
22
the Court is the Respondent’s motion to dismiss the petition,
23
which was filed on March 23, 2011.
24
opposition on April 11, 2011.
Pending before
Petitioner filed an
No reply was filed.
25
I.
26
Because the petition was filed after April 24, 1996, the
Proceeding by a Motion to Dismiss
27
effective date of the Antiterrorism and Effective Death Penalty
28
Act of 1996 (AEDPA), the AEDPA applies to the petition.
1
Lindh v.
1
Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d
2
1484, 1499 (9th Cir. 1997).
3
A district court may entertain a petition for a writ of
4
habeas corpus by a person in custody pursuant to the judgment of
5
a state court only on the ground that the custody is in violation
6
of the Constitution, laws, or treaties of the United States.
7
U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,
8
375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,
9
16 (2010) (per curiam).
28
10
Rule 4 of the Rules Governing Section 2254 Cases in the
11
District Courts (Habeas Rules) allows a district court to dismiss
12
a petition if it “plainly appears from the face of the petition
13
and any exhibits annexed to it that the petitioner is not
14
entitled to relief in the district court....”
15
The Ninth Circuit has allowed respondents to file motions to
16
dismiss pursuant to Rule 4 instead of answers if the motion to
17
dismiss attacks the pleadings by claiming that the petitioner has
18
failed to exhaust state remedies or has violated the state’s
19
procedural rules.
20
420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss
21
a petition for failure to exhaust state remedies); White v.
22
Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to
23
review a motion to dismiss for state procedural default); Hillery
24
v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same).
25
Thus, a respondent may file a motion to dismiss after the Court
26
orders the respondent to respond, and the Court should use Rule 4
27
standards to review a motion to dismiss filed before a formal
28
answer.
See, e.g., O’Bremski v. Maass, 915 F.2d 418,
See, Hillery, 533 F. Supp. at 1194 & n.12.
2
1
In this case, upon being directed to respond to the petition
2
by way of answer or motion, Respondent filed the motion to
3
dismiss.
4
found in the pleadings and in copies of the official records of
5
state parole and judicial proceedings which have been provided by
6
the parties, and as to which there is no factual dispute.
7
Because Respondent's motion to dismiss is similar in
The material facts pertinent to the motion are to be
8
procedural standing to motions to dismiss on procedural grounds,
9
the Court will review Respondent’s motion to dismiss pursuant to
10
its authority under Rule 4.
11
II.
12
Petitioner alleged in the petition that he was an inmate of
Background
13
the Avenal State Prison at Avenal, California, serving a sentence
14
of fifteen (15) years to life imposed by the Fresno County
15
Superior Court on October 14, 1994, upon Petitioner’s conviction
16
of second degree murder in violation of Cal. Pen. Code § 187.
17
(Pet. 1, 7-9.)
18
California’s Board of Parole Hearings (BPH) made after a hearing
19
held on March 4, 2009, finding Petitioner unsuitable for release
20
on parole for three years.
Petitioner challenges the decision of
(Pet. 13.)
21
Petitioner raises the following claims in the petition:
22
the BPH’s decision that Petitioner posed a risk of danger to
23
society was not supported by some evidence and thus violated
24
Petitioner’s right to due process of law under the Fourteenth
25
Amendment; 2) application of Proposition 9 to impose a three-year
26
deferral of Petitioner’s next parole hearing violated the Ex Post
27
Facto Clause; 3) application of Proposition 9 to Petitioner to
28
impose a three-year deferral of Petitioner’s next parole
3
1)
1
suitability hearing violated Petitioner’s right to due process of
2
law under the Fourteenth Amendment by abrogating the terms of his
3
plea agreement; and 4) state court decisions upholding the BPH’s
4
determination failed to apply California’s “some evidence”
5
standard and constituted an unreasonable determination of the
6
facts in light of the evidence in the record.
7
(Pet. 12-13.)
Petitioner alleges that at his initial parole consideration
8
hearing held on October 29, 2003, parole was denied for three (3)
9
years.
Petitioner’s next parole suitability hearing was held on
10
December 19, 2006, and the BPH denied parole for two (2) years.
11
(Pet. 32.)
12
of this petition, parole was denied for three (3) years under
13
Proposition 9.
14
On March 4, 2009, at the hearing which is the subject
(Id. at 33.)
The transcript of the hearing held on March 4, 2009 (doc. 2,
15
134-223), which was submitted by Petitioner with the petition,
16
shows that Petitioner attended the hearing, was given an
17
opportunity to correct or clarify the record and submit
18
documentation, gave sworn testimony to the BPH regarding numerous
19
factors of parole suitability, and made a statement on his own
20
behalf.
21
allegations reflect that at the hearing, Petitioner received a
22
statement of the BPH’s reasons for finding that Petitioner
23
presented a danger to the public and thus was unsuitable for
24
parole.
25
Petitioner’s prior criminality, previous failures on grants of
26
probation and in juvenile hall, gang activity, drug and alcohol
27
use, dropping out of school, minimization of his offense, and
28
lack of insight.
(Id. at 134, 137, 139, 141-208.)
Petitioner’s
The reasons included the commitment offense and
(Pet. 34-35; doc. 2, 209-23.)
4
1
The Fresno County Superior Court denied Petitioner’s
2
petition for writ of habeas corpus on September 8, 2009,
3
reasoning that there was some evidence to support the BPH’s
4
findings concerning the commitment offense, Petitioner’s lack of
5
insight and remorse, and his minimization of the crime.
6
application of Proposition 9 had not increased Petitioner’s
7
sentence.
8
that his plea bargain contained any terms stating that he would
9
be entitled to a parole hearing every year; Petitioner had not
10
shown any effect of Proposition 9 on his plea bargain because
11
under previous law (Cal. Pen. Code § 3041.5), the BPH had the
12
discretion to deny parole for as much as five years.
13
54.)
14
Further,
Finally, Petitioner had failed to allege facts showing
(Pet. 51-
The California Court of Appeal, Fifth Appellate District
15
denied Petitioner’s petition for writ of habeas corpus on
16
February 3, 2010, with citations to state court authority
17
concerning the application of the “some evidence” standard.
18
(Pet. 56.)
19
review on March 24, 2010.
The California Supreme Court denied a petition for
(Pet. 58.)
20
III.
21
Because the petition was filed after April 24, 1996, the
Failure to State a Cognizable Due Process Claim
22
effective date of the Antiterrorism and Effective Death Penalty
23
Act of 1996 (AEDPA), the AEDPA applies in this proceeding.
24
v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008
25
(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
26
A district court may entertain a petition for a writ of
27
habeas corpus by a person in custody pursuant to the judgment of
28
a state court only on the ground that the custody is in violation
5
Lindh
1
of the Constitution, laws, or treaties of the United States. 28
2
U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,
3
375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,
4
16 (2010) (per curiam).
5
The Supreme Court has characterized as reasonable the
6
decision of the Court of Appeals for the Ninth Circuit that
7
California law creates a liberty interest in parole protected by
8
the Fourteenth Amendment Due Process Clause, which in turn
9
requires fair procedures with respect to the liberty interest.
10
Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011).
11
However, the procedures required for a parole determination
12
are the minimal requirements set forth in Greenholtz v. Inmates
13
of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1
14
Swarthout v. Cooke, 131 S.Ct. 859, 862.
15
rejected inmates’ claims that they were denied a liberty interest
16
because there was an absence of “some evidence” to support the
17
decision to deny parole.
18
19
In Swarthout, the Court
The Court stated:
There is no right under the Federal Constitution
to be conditionally released before the expiration of
a valid sentence, and the States are under no duty
20
1
21
22
23
24
25
26
27
28
In Greenholtz, the Court held that a formal hearing is not required
with respect to a decision concerning granting or denying discretionary
parole; it is sufficient to permit the inmate to have an opportunity to be
heard and to be given a statement of reasons for the decision made. Id. at
16. The decision maker is not required to state the evidence relied upon in
coming to the decision. Id. at 15-16. The Court reasoned that because there
is no constitutional or inherent right of a convicted person to be released
conditionally before expiration of a valid sentence, the liberty interest in
discretionary parole is only conditional and thus differs from the liberty
interest of a parolee. Id. at 9. Further, the discretionary decision to
release one on parole does not involve restrospective factual determinations,
as in disciplinary proceedings in prison; instead, it is generally more
discretionary and predictive, and thus procedures designed to elicit specific
facts are unnecessary. Id. at 13. In Greenholtz, the Court held that due
process was satisfied where the inmate received a statement of reasons for the
decision and had an effective opportunity to insure that the records being
considered were his records, and to present any special considerations
demonstrating why he was an appropriate candidate for parole. Id. at 15.
6
1
2
3
4
5
6
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.)
7
Swarthout, 131 S.Ct. 859, 862.
The Court concluded that the
8
petitioners had received the process that was due as follows:
9
10
11
12
13
They were allowed to speak at their parole hearings
and to contest the evidence against them, were afforded
access to their records in advance, and were notified
as to the reasons why parole was denied....
That should have been the beginning and the end of
the federal habeas courts’ inquiry into whether
[the petitioners] received due process.
14
Swarthout, 131 S.Ct. at 862.
15
noted that California’s “some evidence” rule is not a substantive
16
federal requirement, and correct application of California’s
17
“some evidence” standard is not required by the federal Due
18
Process Clause.
19
The Court in Swarthout expressly
Id. at 862-63.
Here, in seeking review of the application of California’s
20
“some evidence” standard, Petitioner asks this Court to engage in
21
the very type of analysis foreclosed by Swarthout.
22
does not state facts that point to a real possibility of
23
constitutional error or that otherwise would entitle Petitioner
24
to habeas relief because California’s “some evidence” requirement
25
is not a substantive federal requirement.
26
for “some evidence” to support the denial of parole is not within
27
the scope of this Court’s habeas review under 28 U.S.C. § 2254.
28
Petitioner cites state law concerning consideration of
7
Petitioner
Review of the record
1
parole suitability factors and the application of the “some
2
evidence” standard.
3
claims rest on state law, they are not cognizable on federal
4
habeas corpus.
5
state issue that does not rise to the level of a federal
6
constitutional violation.
7
S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68
8
(1991).
9
cognizable in federal habeas corpus.
10
To the extent that Petitioner’s claim or
Federal habeas relief is not available to retry a
Wilson v. Corcoran, 562 U.S. — , 131
Alleged errors in the application of state law are not
Souch v. Schiavo, 289 F.3d
616, 623 (9th Cir. 2002).
11
Accordingly, it is concluded that Petitioner’s due process
12
claim concerning the evidence should be dismissed because it is
13
not cognizable in a proceeding pursuant to 28 U.S.C. § 2254.
14
A petition for habeas corpus should not be dismissed without
15
leave to amend unless it appears that no tenable claim for relief
16
can be pleaded were such leave granted.
17
F.2d 13, 14 (9th Cir. 1971).
18
Jarvis v. Nelson, 440
Here, Petitioner did not allege that at the parole hearing,
19
he lacked an opportunity to be heard or a statement of reasons.
20
Further, his own allegations and supporting documentation reflect
21
that Petitioner attended the parole suitability hearing, made
22
statements to the BPH, and received a statement of reasons for
23
the decision of the BPH.
24
establish that he had an opportunity to be heard and a statement
25
of reasons for the decision in question.
26
appear that Petitioner could state a tenable due process claim.
27
28
Thus, Petitioner’s own allegations
It therefore does not
Accordingly, it will be recommended that Petitioner’s due
process claim concerning the evidence be dismissed without leave
8
1
2
to amend.
Likewise, because Petitioner has not established a violation
3
by the parole authorities of his rights under the Fourteenth
4
Amendment, the decisions of the state courts upholding the BPH’s
5
decision could not have resulted in either 1) a decision that was
6
contrary to, or involved an unreasonable application of, clearly
7
established federal law, as determined by the Supreme Court of
8
the United States; or 2) a decision that was based on an
9
unreasonable determination of the facts in light of the evidence
10
presented in the state court proceedings.
11
Petitioner argues that the BPH or state courts made an
12
unreasonable determination of the facts in light of the evidence
13
presented at the parole hearing, Petitioner is challenging the
14
application of the “some evidence” standard and thus does not
15
state a cognizable claim for relief.
Further, insofar as
16
The Court concludes that Petitioner has failed to state
17
facts concerning the state court decisions that would entitle him
18
to relief.
19
due process claim with respect to the state court decisions
20
should likewise be dismissed without leave to amend.
21
22
IV.
See, 28 U.S.C. § 2254(d).
Therefore, Petitioner’s
Ex Post Facto Claim
Petitioner was sentenced in 1994.
Petitioner raises an ex
23
post facto claim because the BPH applied to Petitioner’s case
24
California’s Proposition 9, the “Victims’ Bill of Rights Act of
25
2008: Marsy’s Law,” which on November 4, 2008, effected an
26
amendment of Cal. Pen. Code § 3041.5(b)(3) that resulted in
27
lengthening the periods between parole suitability hearings.
28
The Constitution provides, “No State shall... pass any... ex
9
1
post facto Law.”
2
Clause prohibits any law which: 1) makes an act done before the
3
passing of the law, which was innocent when done, criminal; 2)
4
aggravates a crime and makes it greater than it was when it was
5
committed; 3) changes the punishment and inflicts a greater
6
punishment for the crime than when it was committed; or 4) alters
7
the legal rules of evidence and requires less or different
8
testimony to convict the defendant than was required at the time
9
the crime was committed.
U.S. Const. art I, § 10.
The Ex Post Facto
Carmell v. Texas, 529 U.S. 513, 522
10
(2000).
11
defendant violates the Ex Post Facto Clause if the new
12
regulations create a “sufficient risk” of increasing the
13
punishment for the defendant’s crimes.
14
F.3d 848, 854 (9th Cir. 2003) (citing Cal. Department of
15
Corrections v. Morales, 514 U.S. 499, 509 (1995)).
16
or statute does not by its own terms show a significant risk, the
17
respondent must demonstrate, by evidence drawn from the rule's
18
practical implementation by the agency charged with exercising
19
discretion, that its retroactive application will result in a
20
longer period of incarceration than under the earlier rule.
21
Garner v. Jones, 529 U.S. 244, 250, 255 (2000).
22
Application of a state regulation retroactively to a
Himes v. Thompson, 336
When the rule
Previous amendments to Cal. Pen. Code § 3041.5, which
23
initiated longer periods of time between parole suitability
24
hearings, have been upheld against challenges that they violated
25
the Ex Post Facto Clause.
26
Corrections v. Morales, 514 U.S. 499, 509 (1995);
27
Estelle, 886 F.2d 1093, 1097-98 (9th Cir. 1989).
28
has been held that a state law permitting the extension of
See, e.g., California Department of
10
Watson v.
Similarly, it
1
intervals between parole consideration hearings for all prisoners
2
serving life sentences from three to eight years did not violate
3
the Ex Post Facto Clause where expedited parole review was
4
available upon a change of circumstances or receipt of new
5
information warranting an earlier review, and where there was no
6
showing of increased punishment.
7
was no significant risk of extending a prisoner’s incarceration.
8
Garner v. Jones, 529 U.S. at 249.
9
Under such circumstances, there
In Gilman v. Schwarzenegger, - F.3d -, No. 10-15471, 2011 WL
10
198435, at *2 (9th Cir. Jan. 24, 2011), the Ninth Circuit
11
reversed a grant of injunctive relief to plaintiffs in a class
12
action seeking to prevent the board from enforcing Proposition
13
9's amendments that defer parole consideration.
14
that the changes wrought by Proposition 9 were noted to be more
15
extensive than those before the Court in Morales and Garner;
16
however, advanced hearings, which would remove any possibility of
17
harm, were available upon a change in circumstances or new
18
information.
19
of facts in the record from which it might be inferred that
20
Proposition 9 created a significant risk of prolonging
21
Plaintiffs’ incarceration, the plaintiffs had not established a
22
likelihood of success on the merits on the ex post facto claim.
23
Id. at *8.
24
Id. at *6.
The court noted
The Court concluded that in the absence
This Court may take judicial notice of court records.
Fed.
25
R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333
26
(9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626,
27
635 n.1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981).
28
The Court takes judicial notice of the docket and specified
11
1
orders in the class action pending in this district, Gilman v.
2
Fisher, 2:05-cv-00830-LKK-GGH, including the order granting
3
motion for class certification filed on March 4, 2009 (Doc. 182,
4
9:7-15), which indicates that the Gilman class is made up of
5
California state prisoners who 1) have been sentenced to a term
6
that includes life, 2) are serving sentences that include the
7
possibility of parole, 3) are eligible for parole, and 4) have
8
been denied parole on one or more occasions.
9
reflects that the Ninth Circuit affirmed the order certifying the
The docket further
10
class.
11
of the order of March 4, 2009, in which the court described the
12
case as including challenges to Proposition 9's amendments to
13
Cal. Pen. Code § 3041.5 based on the Ex Post Facto Clause, and a
14
request for injunctive and declaratory relief against
15
implementation of the changes.
16
(Docs. 257, 258.)
The Court also takes judicial notice
(Doc. 182, 5-6.)
Here, resolution of Petitioner’s claim might well involve
17
the scheduling of Petitioner’s next suitability hearing and the
18
invalidation of state procedures used to deny parole suitability,
19
matters removed from the fact or duration of confinement.
20
types of claims have been held to be cognizable under 42 U.S.C.
21
§ 1983 as claims concerning conditions of confinement.
22
v. Dotson, 544 U.S. 74, 82 (2005).
Thus, they may fall outside
23
the core of habeas corpus relief.
See, Preiser v. Rodriguez, 411
24
U.S. 475, 485-86 (1973); Nelson v. Campbell, 541 U.S. 637, 643
25
(2004); Muhammad v. Close, 540 U.S. 749, 750 (2004).
26
Such
Wilkinson
Further, the relief Petitioner requests overlaps with the
27
relief requested in the Gilman class action.
28
that a plaintiff who is a member of a class action for equitable
12
It is established
1
relief from prison conditions may not maintain an individual suit
2
for equitable relief concerning the same subject matter.
3
Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979).
4
because it is contrary to the efficient and orderly
5
administration of justice for a court to proceed with an action
6
that would possibly conflict with or interfere with the
7
determination of relief in another pending action, which is
8
proceeding and in which the class has been certified.
9
This is
Here, Petitioner’s own allegations reflect that he qualifies
10
as a member of the class in Gilman.
11
jurisdiction over same subject matter and may grant the same
12
relief.
13
disposition of its cases with economy of time and effort for both
14
the court and the parties.
15
U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260
16
(9th Cir. 1992).
17
this Court concludes that dismissal of Petitioner’s ex post facto
18
claim in this action is appropriate and necessary to avoid
19
interference with the orderly administration of justice.
20
Crawford v. Bell, 599 F.2d 890, 892-93; see Bryant v. Haviland,
21
2011 WL 23064, *2-*5 (E.D.Cal. Jan. 4, 2011).
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,
Cf.,
22
A petition for habeas corpus should not be dismissed without
23
leave to amend unless it appears that no tenable claim for relief
24
can be pleaded were such leave granted.
25
F.2d 13, 14 (9th Cir. 1971).
26
petition and the pendency of the Gilman class action, amendment
27
of the petition with respect to the ex post facto claim would be
28
futile.
Jarvis v. Nelson, 440
In view of the allegations of the
13
1
2
Accordingly, it will be recommended that Petitioner’s ex
post facto claim be dismissed without leave to amend.
3
V.
4
Petitioner argues that the application of Proposition 9
Due Process Claim concerning Petitioner’s Plea Bargain
5
violated his plea bargain because with respect to his plea, he
6
understood from a conversation with his counsel in the presence
7
of the prosecutor that he would be considered for parole every
8
year or every three (3) years.
9
presence of the prosecutor, he was informed by his defense
Petitioner declared that in the
10
attorney that he would go to prison, would be going before the
11
parole board every one (1) or three (3) years, and would be
12
paroled after service of the minimum term, provided he did not
13
get into any trouble, and he educated himself.
14
Petitioner alleged that he had been charged with felony murder,
15
and counsel’s “articulation” induced him to accept a plea to
16
second degree murder.
17
for the statement, he would not have “entered such a deal....”
18
(Pet., doc. 2, 228.)
19
on September 16, 1994, reflect that a second count was dismissed,
20
and an enhancement was stricken.
21
(Id. at 46-47, 49.)
(Pet. 45-46.)
If it had not been
Minutes of the change of plea hearing held
(Pet., doc. 2, 6.)
A criminal defendant has a due process right to enforce the
22
terms of his plea agreement.
23
plea agreement must be fulfilled if they are significant
24
inducements to enter into a plea.
25
U.S. 257, 262 (1971); Buckley v. Terhune, 441 F.3d 688, 694 (9th
26
Cir. 2006).
27
measured by contract law standards.
28
Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993).
Promises from the prosecution in a
Santobello v. New York, 404
Plea agreements are contractual in nature and are
14
United States v. De la
In construing a plea
1
agreement, a court must determine what the defendant reasonably
2
believed to be the terms of the plea agreement at the time of the
3
plea.
4
2002).
5
United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir.
The construction of a state court plea agreement is a matter
6
of state law, and federal courts will defer to a state court’s
7
reasonable construction of a plea agreement.
8
Adamson, 483 U.S. 1, 6 n.3 (1987);
9
688, 695 (9th Cir. 2006).
Ricketts v.
Buckley v. Terhune, 441 F.3d
In California, a negotiated plea
10
agreement is a form of contract and is interpreted according to
11
general contract principles and according to the same rules as
12
other contracts.
13
People v. Shelton, 37 Cal.4th 759, 767 (2006) and People v.
14
Toscano, 124 Cal.App.4th 340, 344 (2004)).
15
Buckley v. Terhune, 441 F.3d 688, 695 (citing
In California, the plain meaning of an agreement’s language
16
must first be considered.
17
be interpreted by ascertaining the objectively reasonable
18
expectations of the promisee at the time the contract was made.
19
Buckley v. Terhune, 441 F.3d 688, 695 (9th Cir. 2006).
20
ambiguity remains after a court considers the objective
21
manifestations of the parties’ intent, then the language of the
22
contract should be interpreted most strongly against the party
23
who caused the uncertainty to exist, or in favor of the
24
defendant.
If the language is ambiguous, it must
If
Id. at 695-96.
25
Respondent argues that Petitioner has failed to provide
26
proof or documentation of the terms of his plea agreement; thus,
27
he has not stated a claim for relief.
28
documentation, Petitioner does not set forth specific allegations
15
In addition to a lack of
1
that the plea agreement itself contained a term conditioning the
2
change of plea on consideration of parole suitability at stated
3
periods or intervals.
4
Notice pleading is not sufficient for petitions for habeas
5
corpus; rather, the petition must state facts that point to a
6
real possibility of constitutional error.
7
Advisory Committee Notes, 1976 Adoption; O’Bremski v. Maass, 915
8
F.2d 418, 420 (9th Cir. 1990) (quoting Blackledge v. Allison, 431
9
U.S. 63, 75 n.7 (1977)).
Habeas Rule 4,
Allegations in a petition that are
10
vague, conclusional, or palpably incredible, and that are
11
unsupported by a statement of specific facts, are insufficient to
12
warrant relief and are subject to summary dismissal.
13
Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995); James v. Borg, 24
14
F.3d 20, 26 (9th Cir. 1994).
15
Jones v.
Here, an understanding based on a conversation with counsel
16
is not necessarily objectively reasonable in light of advisements
17
and colloquies that normally occur at later, formal proceedings
18
upon the change of plea.
19
concerning the likelihood of discretionary release on parole in
20
the future do not amount to specific promises that will be
21
enforced.
22
Mere predictions or speculation
More fundamentally, with respect to Petitioner’s several
23
parole suitability hearings, the Court notes that according to
24
Petitioner’s own allegations, Petitioner received denials of
25
parole for three, two, and three years, respectively.
26
33.)
27
time the plea was entered is that Petitioner understood that he
28
would be considered for parole every one or three years.
(Pet. 32-
The allegation concerning Petitioner’s understanding at the
16
1
A habeas petitioner must allege facts that show that he was
2
prejudiced by an alleged constitutional violation.
3
Cardwell, 604 F.2d 1245, 1247 (9th Cir. 1979); cf., Brecht v.
4
Abrahamson, 507 U.S. 619, 637 (1993) (determining that habeas
5
relief is warranted when an error resulted in actual prejudice,
6
or had a substantial and injurious effect or influence in
7
determining the jury’s verdict).
8
that Petitioner’s understanding that he would receive parole
9
suitability consideration every three years was predicated on the
10
express terms of a plea agreement, Petitioner has not shown that
11
he suffered any prejudice from the application of Proposition 9
12
to his case at the parole proceedings in 2009.
13
parole hearings did not exceed three years.
14
state trial court noted, even before Petitioner was sentenced in
15
1994, Cal. Pen. Code § 3041.5(b)(2) permitted deferring
16
consideration of parole suitability for two, three, or five years
17
under various circumstances.
18
Wacht v.
Here, even if it were assumed
The time between
Further, as the
1990 Cal. Stat. ch. 1053, § 1.
In view of the foregoing analysis, it is not logically
19
possible that Petitioner could allege facts showing that the
20
BPH’s denial of parole for three years constituted a prejudicial
21
denial of due process of law in violation of his plea agreement.
22
Accordingly, it will be recommended that insofar as
23
Petitioner alleges a due process claim in connection with his
24
plea agreement, the petition be dismissed without leave to amend.
25
VI.
26
On January 24, 2011, Petitioner filed a document entitled,
Petitioner’s Motion for an Order to Show Cause
27
“MOTION FOR ORDER TO SHOW CAUSE,” in which he requested that the
28
Court require the Respondent to answer the petition.
17
However, on
1
that date the Court directed Respondent to file a response to the
2
petition by way of answer or motion.
3
4
(Doc. 7.)
Accordingly, it will be recommended that Petitioner’s motion
be dismissed as moot.
5
VII.
6
Unless a circuit justice or judge issues a certificate of
Certificate of Appealability
7
appealability, an appeal may not be taken to the Court of Appeals
8
from the final order in a habeas proceeding in which the
9
detention complained of arises out of process issued by a state
10
court.
11
U.S. 322, 336 (2003).
12
only if the applicant makes a substantial showing of the denial
13
of a constitutional right.
14
petitioner must show that reasonable jurists could debate whether
15
the petition should have been resolved in a different manner or
16
that the issues presented were adequate to deserve encouragement
17
to proceed further.
18
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
19
certificate should issue if the Petitioner shows that jurists of
20
reason would find it debatable whether the petition states a
21
valid claim of the denial of a constitutional right and that
22
jurists of reason would find it debatable whether the district
23
court was correct in any procedural ruling.
24
529 U.S. 473, 483-84 (2000).
25
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
A
Slack v. McDaniel,
In determining this issue, a court conducts an overview of
26
the claims in the habeas petition, generally assesses their
27
merits, and determines whether the resolution was debatable among
28
jurists of reason or wrong.
Id.
18
It is necessary for an
1
applicant to show more than an absence of frivolity or the
2
existence of mere good faith; however, it is not necessary for an
3
applicant to show that the appeal will succeed.
4
Cockrell, 537 U.S. at 338.
Miller-El v.
5
A district court must issue or deny a certificate of
6
appealability when it enters a final order adverse to the
7
applicant.
8
9
Rule 11(a) of the Rules Governing Section 2254 Cases.
Here, it does not appear that reasonable jurists could
debate whether the petition should have been resolved in a
10
different manner.
11
of the denial of a constitutional right.
12
13
Petitioner has not made a substantial showing
Accordingly, it will be recommended that the Court decline
to issue a certificate of appealability.
14
VII.
15
Accordingly, it is RECOMMENDED that:
16
1)
Respondent’s motion to dismiss the petition be GRANTED;
2)
The petition for writ of habeas corpus be DISMISSED
17
18
19
20
21
22
23
24
Recommendations
and
without leave to amend; and
3)
Petitioner’s motion for an order to show cause be
DISMISSED as moot; and
4)
The Court DECLINE to issue a certificate of
appealability; and
5)
The clerk be DIRECTED to close the case because an order
25
of dismissal would terminate the proceeding in its entirety.
26
These findings and recommendations are submitted to the
27
United States District Court Judge assigned to the case, pursuant
28
to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
19
1
the Local Rules of Practice for the United States District Court,
2
Eastern District of California.
3
being served with a copy, any party may file written objections
4
with the Court and serve a copy on all parties.
5
should be captioned “Objections to Magistrate Judge’s Findings
6
and Recommendations.”
7
and filed within fourteen (14) days (plus three (3) days if
8
served by mail) after service of the objections.
9
then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §
Within thirty (30) days after
Such a document
Replies to the objections shall be served
The Court will
10
636 (b)(1)(C).
11
objections within the specified time may waive the right to
12
appeal the District Court’s order.
13
1153 (9th Cir. 1991).
The parties are advised that failure to file
Martinez v. Ylst, 951 F.2d
14
15
IT IS SO ORDERED.
16
Dated:
icido3
June 17, 2011
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
17
18
19
20
21
22
23
24
25
26
27
28
20
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