Lawson v. Allison

Filing 10

FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition without Leave to Amend for Failure to State a Cognizable Claim signed by Magistrate Judge Michael J. Seng on 10/2/2011. Referred to Judge Anthony W. Ishii. Objections to F&R due by 11/7/2011. (Sant Agata, S)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10
11
12
13
14
15

KENNETH LAWSON,

)
)
Petitioner,
)
)
v.
)
)
)
K. ALLISON, Warden,
)
)
Respondent.
)
)
________________________________)

1:10-cv-02071 AWI MJS HC
FINDINGS AND RECOMMENDATIONS
TO DISMISS PETITION WITHOUT
LEAVE TO AMEND FOR FAILURE TO
STATE A COGNIZABLE CLAIM
(Doc. 1)

16
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

17
18

pursuant to 28 U.S.C. § 2254.

19

I.

DISCUSSION

20

a.

21

Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:

22

If it plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition and direct the clerk to notify the
petitioner.

23

Procedural Grounds for Summary Dismissal

24
The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition
25
for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s
26
motion to dismiss, or after an answer to the petition has been filed. See Herbst v. Cook, 260
27
F.3d 1039 (9th Cir. 2001). Allegations in a petition that are vague, conclusory, or palpably
28
U .S. D istrict C ourt
E. D . C alifornia

-1-

1

incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th

2

Cir. 1990). A petition for habeas corpus should not be dismissed without leave to amend

3

unless it appears that no tenable claim for relief can be pleaded were such leave granted.

4

Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

5

b.

Factual Summary

6

On November 8, 2010, Petitioner filed the instant petition for writ of habeas corpus.

7

(Pet., ECF No. 1.) Petitioner challenges the decision of the Board of Parole Hearings (“Board”)

8

finding him unsuitable for parole on August 4, 2009. Petitioner claims the California courts

9

unreasonably determined that there was some evidence he posed a current risk of danger to

10

the public if released. Petitioner also asserts that the parole denial was cruel and unusual

11

punishment under the Eighth Amendment.

12

c.

Federal Review of State Parole Decisions

13

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism

14

and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding.

15

Lindh v. Murphy, 521 U.S. 320, 327, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997); Furman v.

16

Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

17

A district court may entertain a petition for a writ of habeas corpus by a person in

18

custody pursuant to the judgment of a state court only on the ground that the custody is in

19

violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a),

20

2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7, 120 S. Ct. 1495, 146 L. Ed. 2d 389

21

(2000); Wilson v. Corcoran, 131 S.Ct. 13, 16, 178 L. Ed. 2d 276 (2010) (per curiam).

22

The Supreme Court has characterized as reasonable the decision of the Court of

23

Appeals for the Ninth Circuit that California law creates a liberty interest in parole protected

24

by the Fourteenth Amendment Due Process Clause, which in turn requires fair procedures

25

with respect to the liberty interest. Swarthout v. Cooke, 131 S.Ct. 859, 861-62, 178 L. Ed. 2d

26

732 (2011).

27

However, the procedures required for a parole determination are the minimal

28

requirements set forth in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442

U .S. D istrict C ourt
E. D . C alifornia

-2-

1

U.S. 1, 12, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979).1 Swarthout, 131 S.Ct. at 862. In

2

Swarthout, the Court rejected inmates' claims that they were denied a liberty interest because

3

there was an absence of "some evidence" to support the decision to deny parole. The Court

4

stated:

5
6
7
8
9

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.)

10
Swarthout, 131 S.Ct. at 862. The Court concluded that the petitioners had received the
11
process that was due as follows:
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....

14
15

That should have been the beginning and the end of the federal habeas courts'
inquiry into whether [the petitioners] received due process.

16

Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly noted that California's "some

17

evidence" rule is not a substantive federal requirement, and correct application of California's

18

"some evidence" standard is not required by the Federal Due Process Clause. Id. at 862-63.

19

Here, Petitioner argues that the Board improperly relied on evidence relating to

20

Petitioner's crime. In so arguing, Petitioner asks this Court to engage in the very type of

21

analysis foreclosed by Swarthout. In this regard, Petitioner does not state facts that point to

22

a real possibility of constitutional error or that otherwise would entitle Petitioner to habeas relief

23

because California's "some evidence" requirement is not a substantive federal requirement.

24
25
26
27
28

1

In Greenholtz, the Court held that a form al hearing is not required with respect to a decision concerning
granting or denying discretionary parole; it is sufficient to perm it the inm ate to have an opportunity to be heard and
to be given a statem ent of reasons for the decision m ade. Id. at 16. The decision m aker is not required to state
the evidence relied upon in com ing to the decision. Id. at 15-16. In Greenholtz, the Court held that due process
was satisfied where the inm ate received a statem ent 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
dem onstrating why he was an appropriate candidate for parole. Id. at 15.

U .S. D istrict C ourt
E. D . C alifornia

-3-

1

Review of the record for "some evidence" to support the denial of parole is not within the

2

scope of this Court's habeas review under 28 U.S.C. § 2254. The Court concludes that

3

Petitioner's claim concerning the evidence supporting the unsuitability finding should be

4

dismissed.

5

A petition for habeas corpus should not be dismissed without leave to amend unless

6

it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis, 440

7

F.2d at 14.

8

Although Petitioner asserts that his right to due process of law was violated by the

9

Board's decision, Petitioner does not set forth any specific facts concerning his attendance at

10

the parole hearing, his opportunity to be heard, or his receipt of a statement of reasons for the

11

parole decision. Petitioner has not alleged facts pointing to a real possibility of a violation of

12

the minimal requirements of due process set forth in Greenholtz, 442 U.S. 1.

13
14

The Court concludes that it would be futile to grant Petitioner leave to amend and
recommends that the claim be dismissed.

15

d.

16

Petitioner generally alleges that the Board's decision constituted cruel and unusual

17

Cruel and Unusual Punishment

punishment. (Pet. at 5.)

18

“There is no right under the Federal Constitution to be conditionally released before the

19

expiration of a valid sentence, and the States are under no duty to offer parole to their

20

prisoners.” Swarthout v. Cooke, 131 S.Ct. at 862. However, a criminal sentence that is "grossly

21

disproportionate" to the crime for which a defendant is convicted may violate the Eighth

22

Amendment. Lockyer v. Andrade, 538 U.S. 63, 72, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003);

23

Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991)

24

(Kennedy, J., concurring); Rummel v. Estelle, 445 U.S. 263, 271, 100 S. Ct. 1133, 63 L. Ed.

25

2d 382 (1980).

26

Outside of the capital punishment context, the Eighth Amendment prohibits only

27

sentences that are extreme and grossly disproportionate to the crime. United States v. Bland,

28

961 F.2d 123, 129 (9th Cir. 1992) (quoting Harmelin, 501 U.S. at 1001). Such instances are

U .S. D istrict C ourt
E. D . C alifornia

-4-

1

"exceedingly rare" and occur in only "extreme" cases. Lockyer, 538 U.S. at 72-73; Rummel,

2

445 U.S. at 272. So long as a sentence does not exceed statutory maximums, it will not be

3

considered cruel and unusual punishment under the Eighth Amendment. See United States

4

v. Mejia-Mesa, 153 F.3d 925, 930 (9th Cir.1998); United States v. McDougherty, 920 F.2d 569,

5

576 (9th Cir. 1990). Further, it has been held that a sentence of fifty years to life for murder

6

with use of a firearm is not grossly disproportionate. Plascencia v. Alameida, 467 F.3d 1190,

7

1204 (9th Cir. 2006).

8

Here, Petitioner was convicted of first degree murder. The punishment for first degree

9

murder ranges from twenty-five (25) years to life to punishment by death. Cal. Pen. Code §

10

190(a). Petitioner was sentenced to twenty-five years to life with a two year enhancement.

11

Accordingly, Petitioner's sentence thus does not exceed the statutory maximum.

12

Further, the actions of the Board do not constitute cruel and unusual punishment.

13

Petitioner explains that being rejected for parole by the Board in light of his expectations and

14

desire for release violates the Eighth Amendment. Petitioner’s disappointment is

15

understandable. However, the Board’s decision, while lengthening his physical term of

16

confinement, does not change his original sentence. As Petitioner is serving an indeterminate

17

sentence, it is possible that he may be paroled, but it is also possible that he shall remain

18

incarcerated for the entire life term. Petitioner has not stated facts that would entitle him to

19

Federal habeas relief under the Eighth Amendment's prohibition against cruel and unusual

20

punishment.

21

In view of the pertinent state statutory scheme, it does not appear that Petitioner could

22

allege a tenable cruel and unusual punishment claim. It will be recommended that Petitioner's

23

cruel and unusual punishment claim be dismissed without leave to amend.

24

I.

25
26

RECOMMENDATION
Accordingly, it is RECOMMENDED that the petition be DISMISSED without leave to

amend for failure to state a cognizable claim for relief.

27

These findings and recommendations are submitted to the United States District Court

28

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule

U .S. D istrict C ourt
E. D . C alifornia

-5-

1

304 of the Local Rules of Practice for the United States District Court, Eastern District of

2

California. Within thirty (30) days after being served with a copy, any party may file written

3

objections with the Court and serve a copy on all parties. Such a document should be

4

captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the

5

objections shall be served and filed within fourteen (14) days (plus three (3) days if served by

6

mail) after service of the objections. The Court will then review the Magistrate Judge's ruling

7

pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections

8

within the specified time may waive the right to appeal the District Court's order. Martinez v.

9

Ylst, 951 F.2d 1153 (9th Cir. 1991).

10
11

IT IS SO ORDERED.

12

Dated:
ci4d6

October 2, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
U .S. D istrict C ourt
E. D . C alifornia

-6-