Thermidor v. Clark
Filing
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FINDINGS and RECOMMENDATIONS to GRANT Respondent's Motion to Dismiss the 1 Petition Without Leave to Amend for Failure to State a Cognizable Due Process Claim 14 , 1 , 6 ; FINDINGS and RECOMMENDATIONS to Dismiss the Petition Without Leave t o Amend 1 , 6 ; FINDINGS and RECOMMENDATIONS to Decline to Issue a Certificate of Appealability and to Direct the Clerk to Close the Case, (OBJECTIONS DEADLINE: THIRTY (30) DAYS), signed by Magistrate Judge Sheila K. Oberto on 7/6/11: Matter referred to Judge O'Neill. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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STANLEY THERMIDOR,
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Petitioner,
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v.
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KEN CLARK,
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Respondent.
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1:10-cv—02096-LJO-SKO-HC
FINDINGS AND RECOMMENDATIONS TO
GRANT RESPONDENT’S MOTION TO
DISMISS THE PETITION WITHOUT
LEAVE TO AMEND FOR FAILURE TO
STATE A COGNIZABLE DUE PROCESS
CLAIM (Docs. 14, 1, 6)
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION WITHOUT
LEAVE TO AMEND (DOCS. 1, 6)
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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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19
Petitioner is a state prisoner proceeding pro se with a
20
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
21
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.
23
the Court is the Respondent’s motion to dismiss, which was filed
24
on March 7, 2011.
25
on May 31, 2011.
Pending before
Petitioner filed an opposition to the motion
No reply was filed.
26
I.
27
Respondent has filed a motion to dismiss the petition on the
28
ground that Petitioner filed his petition outside of the one-year
Consideration of a Motion to Dismiss
1
1
limitation period provided for by 28 U.S.C. § 2244(d)(1).
2
Respondent also argues that Petitioner’s claim is not cognizable
3
in a proceeding pursuant to 28 U.S.C. § 2254.
4
Rule 4 of the Rules Governing Section 2254 Cases in the
5
United States District Courts (Habeas Rules) allows a district
6
court to dismiss a petition if it “plainly appears from the face
7
of the petition and any exhibits annexed to it that the
8
petitioner is not entitled to relief in the district court....”
9
The Ninth Circuit has allowed respondents to file motions to
10
dismiss pursuant to Rule 4 instead of answers if the motion to
11
dismiss attacks the pleadings by claiming that the petitioner has
12
failed to exhaust state remedies or has violated the state’s
13
procedural rules.
14
420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss
15
a petition for failure to exhaust state remedies); White v.
16
Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 to
17
review a motion to dismiss for state procedural default); Hillery
18
v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D.Cal. 1982) (same).
19
Thus, a respondent may file a motion to dismiss after the Court
20
orders the respondent to respond, and the Court should use Rule 4
21
standards to review a motion to dismiss filed before a formal
22
answer.
See, e.g., O’Bremski v. Maass, 915 F.2d 418,
See, Hillery, 533 F. Supp. at 1194 & n.12.
23
Respondent's motion to dismiss addresses in part the
24
untimeliness of the petition pursuant to 28 U.S.C. 2244(d)(1).
25
The material facts pertinent to the motion are mainly found in
26
copies of the official records of state administrative and
27
judicial proceedings which have been provided by Respondent and
28
Petitioner, and as to which there is no factual dispute.
2
Because
1
Respondent has not filed a formal answer, and because
2
Respondent's motion to dismiss is similar in procedural standing
3
to a motion to dismiss for failure to exhaust state remedies or
4
for state procedural default, the Court will review Respondent’s
5
motion to dismiss pursuant to its authority under Rule 4.
6
II.
7
Petitioner alleges he is an inmate of the California
Background
8
Substance Abuse Treatment Facility and State Prison at Corcoran,
9
California, serving a sentence of fifteen (15) years to life
10
imposed in the Superior Court of the State of California, County
11
of Orange, on October 6, 1998, upon Petitioner’s conviction of
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forcible rape, forcible oral copulation, and false imprisonment
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in violation of Cal. Pen. Code §§ 261, 288A, and 236.
14
Petitioner challenges the decision of California’s Board of
15
Parole Hearings (BPH) finding Petitioner unsuitable for release
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on parole after a hearing held on May 13, 2009.
17
Petitioner raises the following claims in the petition:
18
BPH denied parole based on a post hoc rationalization, which
19
resulted in a violation of Petitioner’s state and federal rights
20
to due process; 2) Petitioner’s closing statement was cut off at
21
the hearing, which deprived him of the opportunity to express his
22
remorse for the commitment offense and to inform the BPH of the
23
rehabilitative gains he has acquired through his incarceration;
24
3) the BPH’s decision violated Petitioner’s due process rights
25
because it was not supported by any evidence that Petitioner
26
posed an unreasonable risk if released; and 4) the BPH failed to
27
give Petitioner an individualized consideration of pertinent
28
parole suitability factors.
(Id. at 10-21, 45.)
3
(Pet. 1.)
(Id. at 10.)
1) the
1
The transcript of the hearing held before the BPH submitted
2
by Petitioner in support of the petition (doc. 6) reflects that
3
Petitioner attended the hearing with counsel (id. at 2, 5);
4
received documents before the hearing and had an opportunity to
5
correct or clarify the record (id. at 7, 9, 47, 66); testified
6
before the BPH concerning many factors of parole suitabilty (id.
7
at 10-90, 95-97); and made a statement to the BPH in favor of
8
parole (id. at 105-09).
9
to the BPH in favor of release.
10
Petitioner’s counsel also made statement
(Id. at 100-05.)
Petitioner was present when the BPH stated the reasons for
11
the finding that Petitioner still posed a present risk of danger
12
to society or a threat to public safety if released.
13
reasons included Petitioner’s failure to understand the nature
14
and magnitude of his commitment offenses, the multiplicity of
15
victims, Petitioner’s lack of insight into the causative factors
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that led him to offend, his blaming others for his offenses, his
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problematic relationship with his parents, history of alcohol
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abuse, some inadequacies in his parole plans, and a psychiatric
19
evaluation.
20
21
22
23
These
(Doc. 6, 110-32.)
The bottom of the final page of the reported proceedings of
the parole hearing states:
PAROLE DENIED FIVE YEARS
THIS DECISION WILL BE FINAL ON: SEP 10 2009
YOU WILL BE PROMPTLY NOTIFIED, IF PRIOR TO THAT
DATE, THE DECISION IS MODIFIED
24
(Doc. 6, 132.)
25
Petitioner’s proof of service reflects that his first state
26
habeas petition challenging the BPH’s decision was filed on
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January 14, 2010.
(Mot., Ex. 2.)
28
4
1
Under the mailbox rule, a prisoner's pro se habeas petition
2
is "deemed filed when he hands it over to prison authorities for
3
mailing to the relevant court."
4
1222 (9th Cir. 2001); Houston v. Lack, 487 U.S. 266, 276 (1988).
5
The mailbox rule applies to federal and state petitions alike.
6
Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (citing
7
Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th. Cir. 2003), and
8
Smith v. Ratelle, 323 F.3d 813, 816 n.2 (9th Cir. 2003)).
9
Campbell v. Henry, the court declined to determine whether in
Huizar v. Carey, 273 F.3d 1220,
In
10
considering the date of mailing, it was more appropriate to use
11
the date on the proof of service or the date of the postmark.
12
Campbell v. Henry, 614 F.3d 1056, 1059 n.2 (9th Cir. 2010).
13
has been held that the date the petition is signed may be
14
inferred to be the earliest possible date an inmate could submit
15
his petition to prison authorities for filing under the mailbox
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rule.
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2003), overruled on other grounds, Pace v. DiGuglielmo, 544 U.S.
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408 (2005).
It
Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir.
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Here, Petitioner’s proof of service is declared to be true
20
under penalty of perjury, and states the petition was handed to
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institutional staff to be mailed on January 14, 2010.
22
petition is thus deemed to have been filed in the Superior Court
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as of January 14, 2010, pursuant to the mailbox rule.
24
The
On February 1, 2010, the Superior Court denied the petition
25
because the record revealed that the decision was supported by
26
some evidence of multiple reasons for denying parole.
27
3.)
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to Petitioner at Corcoran.
(Mot., Ex.
The court sent a certified copy of the court’s signed order
(Id.)
5
1
On February 25, 2010, Petitioner declared under penalty of
2
perjury that on that date he handed to institutional staff a
3
petition for writ of habeas corpus addressed to the California
4
Court of Appeal, Fourth Appellate District (DCA).
5
Thus, the petition will be considered to have been filed in the
6
DCA on that date.
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petition.
8
9
(Mot., Ex. 4.)
On March 4, 2010, the DCA summarily denied the
(Mot., Ex. 5.)
Petitioner signed and dated a petition directed to the
California Supreme Court on March 9, 2010.
On March 23, 2010,
10
Petitioner signed and dated a declaration made under penalty of
11
perjury stating that he had handed his petition for review to
12
prison officials on March 9, 2010; it was returned for allegedly
13
deficient address information, but Petitioner had used an address
14
he had been given at prison in response to a query concerning the
15
exact address of the California Supreme Court.
16
the petition to prison staff with his declaration on March 23,
17
2010.
Petitioner handed
(Mot., Ex. 6.)
18
The docket of the California Supreme Court in Stanley
19
Thermidor, on Habeas Corpus, case number S181325, reflects that
20
an “untimely” petition for review was received on March 26, 2010.
21
On April 5, 2010, Petitioner applied for relief from default.
22
that same date, the petition for review was filed with the
23
permission of the court.
24
DCA, the court summarily denied the petition for review on June
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9, 2010.
26
On
After receipt of the record from the
(Mot., Ex. 7.)
Petitioner signed and dated the petition filed in this case
27
on November 7, 2010.
28
of service, supported by a declaration under penalty of perjury,
(Pet., doc. 1, 6, 23.)
6
His certification
1
2
is also dated November 7, 2010.
On November 1, 2010, this court received a motion to submit
3
exhibits to the petition within thirty (30) days of filing a
4
petition for writ of habeas corpus because Petitioner was unable
5
to make copies of the exhibits to the petition.
6
Petitioner signed the motion on October 27, 2010. (Id.) The
7
petition is stamped filed as of November 10, 2010.
(Id. at 7-8.)
(Id. at 1.)
8
III.
9
Respondent argues that the petition is untimely because it
10
11
12
Statute of Limitations
was filed outside the one-year limitations period.
A.
Legal Standards
On April 24, 1996, Congress enacted the Antiterrorism and
13
Effective Death Penalty Act of 1996 (AEDPA).
14
to all petitions for writ of habeas corpus filed after the
15
enactment of the AEDPA.
16
(1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997) (en
17
banc), cert. denied, 118 S.Ct. 586 (1997).
18
filed his petition in this Court in 2010, the AEDPA applies to
19
the petition.
20
The AEDPA applies
Lindh v. Murphy, 521 U.S. 320, 327
Because Petitioner
The AEDPA provides a one-year period of limitation in which
21
a petitioner must file a petition for writ of habeas corpus.
22
U.S.C. § 2244(d)(1).
23
24
As amended, subdivision (d) reads:
(1) A 1-year period of limitation shall apply to
an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court.
The limitation period shall run from the latest of –
25
26
(A) the date on which the judgment became
final by the conclusion of direct review or the
expiration of the time for seeking such review;
27
28
(B) the date on which the impediment to
filing an application created by State action in
7
28
1
2
3
4
5
6
7
8
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10
11
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violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme Court, if
the right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review;
or
(D) the date on which the factual predicate
of the claim or claims presented could have been
discovered through the exercise of due diligence.
(2) The time during which a properly filed
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.
28 U.S.C. § 2244(d).
B.
Commencement of the Running of the Limitations
Period
13
The one-year limitation period of § 2244 applies to habeas
14
petitions brought by persons in custody pursuant to state court
15
judgments who challenge administrative decisions, such as the
16
decisions of state prison disciplinary authorities or parole
17
authorities.
Shelby v. Bartlett, 391 F.3d 1061, 1063, 1065-66
18
(9th Cir. 2004).
However, § 2244(d)(1)(A) is inapplicable to
19
administrative decisions; rather, § 2244(d)(1)(D) applies to
20
petitions challenging such decisions.
Redd v. McGrath, 343 F.3d
21
1077, 1081-82 (9th Cir. 2003) (parole board determination).
22
Thus, the statute begins to run on the date that the factual
23
predicate of the claim or claims presented could have been
24
discovered through the exercise of due diligence.
28 U.S.C. §
2244(d)(1)(D); Redd v. McGrath, 343 F.3d at 1082.
In Redd v.
25
26
McGrath, the court concluded that the factual predicate of the
27
habeas claims concerning the denial of parole was the parole
28
8
1
board’s denial of the prisoner’s administrative appeal.
2
1082.
Id. at
3
In Shelby and Redd, the pertinent date was the date on
4
which notice of the decision was received by the petitioner.
5
Thus, the statute of limitations was held to have begun running
6
the day after notice of the decision was received.
7
Bartlett, 391 F.3d 1061, 1066; Redd, 343 F.3d at 1082.
8
9
Shelby v.
Here, Petitioner was present when the BPH announced its
decision; thus, Petitioner received notice of the initial BPH
10
panel decision on May 13, 2009.
11
year period thus began to run on May 14, 2009.
12
transcript of the decision reflects that the decision would not
13
be final until September 10, 2009, when the BPH’s authority to
14
modify the decision would expire.
15
suggests that Petitioner received notice of any interim
16
modification of the decision.
17
Respondent argues that the oneHowever, the
(Doc. 6, 132.)
Neither party
In Redd v. McGrath, 343 F.3d 1077, 1085 (9th Cir. 2003), the
18
date chosen by the court to trigger the running of the statute
19
was the date that the administrative decision to deny parole
20
became final – which was when an administrative appeal taken by
21
the petitioner had been denied.
22
1084.
23
learned of the factual basis for his claim that the parole
24
decision violated his constitutional rights on the date of the
25
administrative tribunal’s denial of the petitioner’s
26
administrative appeal.
27
federal courts which had held that the statute begins running
28
under § 2244(d)(1)(D) on the date “the administrative decision
Redd, 343 F.3d at 1080, 1083-
The court determined that the petitioner could have first
The court relied on decisions of other
9
1
2
Id. at 1084.1
became final.”
Generally, it is not knowledge of some facts pertinent to a
3
claim that constitutes discovery of a factual predicate within
4
the meaning of § 2244(d)(1)(D); rather, it is knowledge of facts
5
constituting reasonable grounds for asserting all elements of a
6
claim in good faith.
7
(9th Cir. 2001).
8
or through diligence could discover, the important facts, and not
9
when the prisoner recognizes their legal significance.
Hasan v. Galaza, 254 F.3d 1150, 1154-55
The time begins to run when the prisoner knows,
Id. at
10
1154 n. 3.
11
the legal significance of the facts themselves before the
12
obligation to exercise due diligence commences and the statutory
13
period starts running.
14
It is not necessary for a petitioner to understand
Id.
Here, the parole decision itself stated that it would not be
15
final for 120 days.
16
regulations.
17
ch. 10 § 29; Cal. Code Regs. tit. 15, §§ 2041(a) & (h), 2043
18
(2010); Tidwell v. Marshall, 620 F.Supp.2d 1098, 1100-01, (C.D.
19
Cal. 2009) (rejecting the respondent’s contention that the
20
statute began to run on the date of the parole hearing because
21
pursuant to California law as reflected in Cal. Code Regs. tit.
22
15, §§ 2041(a), (h) and 2043, board decisions are characterized
23
as proposed decisions subject to review before an effective date
24
upon finality 120 days after the hearing at which the proposed
25
decision was made).
This was consistent with state statutes and
See, Cal. Pen. Code § 3041(a), (b); 2005 Cal. Stat.
Thus, the initial, proposed decision could
26
27
28
1
Because of waiver of the issue by a party, the court in Redd did not
consider whether the initial administrative decision was sufficient to trigger
§ 2244(d)(1)(D). Id. at 1084 n. 11, 1081 n. 6.
10
1
not logically contain all the facts constituting reasonable
2
grounds for asserting a claim challenging a parole decision
3
because finality – a most important and necessary attribute of a
4
decision – had not yet come to pass.
5
generally consistent with the decisions of other circuits as
6
well.
7
(claims concerning state parole board’s decision to revoke parole
8
and rescind conduct credits accrued under § 2244(d)(1)(D) when
9
the state parole board’s decision to revoke his parole became
This application is
See, Wade v. Robinson, 327 F.3d 328, 333 (4th Cir. 2003)
10
final because that date was when the petitioner could have
11
discovered through public sources that the decision was in
12
effect); Cook v. New York State Div. of Parole, 321 F.3d 274,
13
280-81 (2nd Cir. 2003); Dulworth v. Evans, 442 F.3d 1265, 1268-69
14
(10th Cir. 2006); but see, Kimbrell v. Cockrell, 311 F.3d 361,
15
364 (5th Cir. 2002) (although the initial decision triggered the
16
running of the statute, the pendency of administrative appeals
17
would toll the running of the statute).
18
Petitioner correctly contends that the statutory limitation
19
period did not commence running until the BPH panel’s decision
20
became final.
21
The Court concludes that
In summary, the Court concludes that the date on which the
22
factual predicate of a decision on Petitioner’s parole could
23
have been discovered through the exercise of reasonable diligence
24
was upon the decision’s finality, occurring one hundred twenty
25
(120) days after the decision was rendered on May 13, 2009, or on
26
September 10, 2009.
27
28
The statute thus began running on the next day, September
11, 2009, and absent any tolling, Petitioner had through
11
1
September 10, 2010, to file his petition here.
2
6(a); see, Waldrip v. Hall, 548 F.3d 729, 735 n.2 (9th Cir.
3
2008); Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir.
4
2001).
5
November 2010, the petition on its face reflects that it was
6
filed outside of the one-year limitation period.
Because the petition in the present case was filed in
7
8
9
Fed. R. Civ. P.
C.
Statutory Tolling
Title 28 U.S.C. § 2244(d)(2) states that the “time during
which a properly filed application for State post-conviction or
10
other collateral review with respect to the pertinent judgment or
11
claim is pending shall not be counted toward” the one-year
12
limitation period.
13
on notice that his habeas petition may be subject to dismissal
14
based on the statute of limitations, he has the burden of
15
demonstrating that the limitations period was sufficiently tolled
16
by providing the pertinent facts, such as dates of filing and
17
denial.
18
(citing Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir. 2002),
19
abrogation on other grounds recognized by Moreno v. Harrison, 245
20
Fed.Appx. 606 (9th Cir. 2007)).
28 U.S.C. § 2244(d)(2).
Once a petitioner is
Zepeda v. Walker, 581 F.3d 1013, 1019 (9th Cir. 2009)
21
In Carey v. Saffold, 536 U.S. 214 (2002), the Court held
22
that an application is “pending” until it “has achieved final
23
resolution through the State's post-conviction procedures.”
24
U.S. 220.
25
until a state petitioner “completes a full round of collateral
26
review.”
27
delay, an application for post conviction relief is pending
28
during the “intervals between a lower court decision and a filing
536
An application does not achieve the requisite finality
Id. at 219-20.
Accordingly, in the absence of undue
12
1
of a new petition in a higher court” and until the California
2
Supreme Court denies review.
3
F.3d 1045, 1048 (9th Cir. 2003).
4
Id. at 223; Biggs v. Duncan, 339
However, when one full round up the ladder of the state
5
court system is complete and the claims in question are
6
exhausted, a new application in a lower court begins a new round
7
of collateral review.
8
example, the statute of limitations is not tolled from the time a
9
final decision is issued on direct state appeal and the time the
Biggs v. Duncan, 339 F.3d at 1048.
For
10
first state collateral challenge is filed because there is no
11
case “pending” during that interval.
12
1003, 1006 (9th Cir. 1999).
13
Nino v. Galaza, 183 F.3d
Here, after the commencement of the running of the
14
limitation period on September 11, 2009, a total of 125 days ran
15
until Petitioner filed his petition in the state trial court on
16
January 14, 2010.
17
interval of time.
There was no case “pending” during that
18
With respect to the pendency of state court petitions,
19
Respondent does not contend that any of the state court petitions
20
were improperly filed; Respondent is “presuming” that the
21
limitation period was tolled while the state court habeas
22
petitions were pending, and thus Respondent appears to concede
23
that the running of the statutory period was tolled from January
24
14, 2010, when Petitioner’s first state court petition was filed,
25
until June 9, 2010, when the California Supreme Court denied the
26
petition before it.
27
period was tolled for 147 days, and it commenced to run again on
28
June 10, 2010, the day after the California Supreme Court’s
(Mot., doc. 14, 4.)
13
Thus, the limitation
1
denial.
2
through November 6, 2010, the day before the petition was filed
3
in this Court.
4
interval.
5
The limitation period thus again ran from June 10, 2010,
Thus, 150 more days of the period ran during this
When statutory tolling is considered, the court concludes
6
that only 275 days of the period ran before Petitioner filed his
7
petition here.
8
the Court will recommend that Respondent’s motion to dismiss the
9
petition on the ground of untimeliness be denied.
Thus, the petition was timely filed.
Therefore,
10
IV.
11
A district court may entertain a petition for a writ of
12
habeas corpus by a person in custody pursuant to the judgment of
13
a state court only on the ground that the custody is in violation
14
of the Constitution, laws, or treaties of the United States. 28
15
U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,
16
375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,
17
16 (2010) (per curiam).
18
Failure to State a Cognizable Due Process Claim
The Supreme Court has characterized as reasonable the
19
decision of the Court of Appeals for the Ninth Circuit that
20
California law creates a liberty interest in parole protected by
21
the Fourteenth Amendment Due Process Clause, which in turn
22
requires fair procedures with respect to the liberty interest.
23
Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011).
24
25
However, the procedures required for a parole determination
are the minimal requirements set forth in Greenholtz v. Inmates
26
27
28
14
1
of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).2
2
Swarthout v. Cooke, 131 S.Ct. 859, 862.
3
rejected inmates’ claims that they were denied a liberty interest
4
because there was an absence of “some evidence” to support the
5
decision to deny parole.
6
7
8
9
10
11
12
13
In Swarthout, the Court
The Court stated:
There is no right under the Federal Constitution
to be conditionally released before the expiration of
a valid sentence, and the States are under no duty
to offer parole to their prisoners. (Citation omitted.)
When, however, a State creates a liberty interest,
the Due Process Clause requires fair procedures for its
vindication–and federal courts will review the
application of those constitutionally required procedures.
In the context of parole, we have held that the procedures
required are minimal. In Greenholtz, we found
that a prisoner subject to a parole statute similar
to California’s received adequate process when he
was allowed an opportunity to be heard and was provided
a statement of the reasons why parole was denied.
(Citation omitted.)
14
Swarthout, 131 S.Ct. 859, 862.
15
petitioners had received the process that was due as follows:
16
17
The Court concluded that the
They were allowed to speak at their parole hearings
and to contest the evidence against them, were afforded
access to their records in advance, and were notified
as to the reasons why parole was denied....
18
19
That should have been the beginning and the end of
the federal habeas courts’ inquiry into whether
20
2
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.
15
1
[the petitioners] received due process.
2
Swarthout, 131 S.Ct. at 862.
3
noted that California’s “some evidence” rule is not a substantive
4
federal requirement, and correct application of California’s
5
“some evidence” standard is not required by the Federal Due
6
Process Clause.
7
The Court in Swarthout expressly
Id. at 862-63.
Here, in his first and third claims concerning the validity
8
of the BPH’s statement of reasons and the extent to which the
9
decision was supported by some evidence, Petitioner asks this
10
Court to engage in the very type of analysis foreclosed by
11
Swarthout.
12
possibility of constitutional error or that otherwise would
13
entitle Petitioner to habeas relief because California’s “some
14
evidence” requirement is not a substantive federal requirement.
15
Review of the record for “some evidence” to support the denial of
16
parole is not within the scope of this Court’s habeas review
17
under 28 U.S.C. § 2254.
18
Petitioner does not state facts that point to a real
Petitioner relies on the statement of one of the parole
19
commissioners near the end of the hearing as evidence of
20
partiality or bias that violated his right to due process of law.
21
Presiding Commissioner Biggers listened to the closing statements
22
made by Petitioner, his counsel, and the prosecutor.
23
109.)
24
Biggers told Petitioner that he had the opportunity to tell the
25
panel why he felt he was suitable for parole.
26
response, Petitioner expressed shame and remorse for his crimes,
27
detailed his efforts to deal with alcoholism, and described his
28
support network and his belief that he would become a productive
(Id. at 97-
Before Petitioner began his statement, Commissioner
16
(Id. at 105.)
In
1
member of society.
The following colloquy then occurred:
2
INMATE THERMIDOR:
3
4
PRESIDING COMMISSIONER BIGGERS: I don’t want you
talking about the D.A.’s position, I want to know
why you feel you’re suitable, sir. Let me -
5
INMATE THERMIDOR:
6
PRESIDING COMMISSIONER BIGGERS: - let me finish.
You don’t go by and talk about what the D.A.’s
position on. That’s not your role. Your role
right now is to tell this Panel why you feel
you’re suitable, period.
7
8
9
10
11
And I understand the D.A.’s position –
And I -
INMATE THERMIDOR: I believe I meet the criteria
that is written into Title 15, Division 2, on
suitability.
13
PRESIDING COMMISSIONER BIGGERS: Is that all you
have to say, sir? I’ve already told you about you don’t fit the criteria. We’ll decide whether
you fit the criteria or not, not you. You
understand that?
14
INMATE THERMIDOR:
15
16
PRESIDING COMMISSIONER BIGGERS: Okay. Now, do
you have anything else to say as to why you feel
you’re suitable?
17
INMATE THERMIDOR:
18
PRESIDING COMMISSIONER BIGGERS: We’re going to go
into deliberations at this point.
12
Yes, sir.
No, sir.
19
(Doc. 6, 108-09.)
20
Petitioner argues that the remark beginning with the
21
sentence, “I’ve already told you about - you don’t fit the
22
criteria,” indicated that the commissioner had already decided
23
Petitioner was not suitable for parole and thus had prejudged the
24
suitability issue so as to deprive Petitioner of an impartial
25
tribunal in violation of his right to due process of law.
26
Considering the commissioner’s words themselves, the remark
27
is reasonably understood as a reference to the fact that the
28
17
1
decision-makers were the BPH, and that Petitioner was being
2
consulted not to provide a response to the prosecutor’s opening
3
statement or to interpret the pertinent regulations concerning
4
parole suitability factors, but rather to give information that
5
Petitioner wanted the BPH to consider that indicated that he was
6
suitable for parole.
7
reference to the context in which the remark was made.
8
commissioner’s remark was preceded by his instructions, which
9
included an emphatic repetition that the statement to be made by
10
Petitioner was regarding why Petitioner felt he was suitable for
11
parole.
12
statement concerning suitability, the commissioner again
13
attempted to obtain more appropriate information from Petitioner
14
concerning his suitability for parole.
15
This understanding is reinforced by
(Id. at 105.)
The
Then, immediately after making the
The larger context is also consistent with this
16
interpretation.
17
testimony from Petitioner concerning various factors of parole
18
suitability.
19
up his mind about the ultimate issue of suitability, and
20
contemplated undertaking deliberations before deciding the
21
question of suitability.
22
the course of their deliberations, the commissioners would review
23
all Petitioner’s summaries of books he had read in connection
24
with a human development program. (Doc. 6, 60-61.)
Presiding Commissioner Biggers heard extensive
The commissioner did not indicate that he had made
For example, he explained that during
25
The transcript of the hearing reflects not a negative
26
attitude on the part of Commissioner Biggers toward Petitioner,
27
but rather one of concern.
28
attempted to guide Petitioner to an understanding that his status
For example, the commissioner
18
1
as a sex offender might prevent his participation in some
2
employment or residential opportunities, and that his parole
3
plans required more detail than Petitioner had obtained from some
4
of his supporters on the outside.
5
directed Petitioner to the warden as the person to consult in
6
connection with Petitioner’s statement that he wanted to start a
7
program in prison.
8
Petitioner to identify his sponsor and back-up sources if
9
Petitioner felt he was having a problem remaining sober, and he
(Id. at 84.)
(Id. at 68-73, 78-82.)
He
The commissioner instructed
10
advised Petitioner to be alert to triggers that might cause a
11
problem.
12
(Id. at 89-90.)
The record reflects that some occasional irritation appears
13
to have developed. For example, when the commissioner asked
14
Petitioner if he had only one job offer, Petitioner volunteered
15
that he had marketable skills.
16
that he had not asked about that, he knew what Title 15 said, and
17
he did not need to be reminded that Petitioner had marketable
18
skills.
19
plans.
20
Petitioner for responding to a question before the question was
21
finished.
22
reflects a hearing involving neutral, participatory decision-
23
makers who did not reasonably appear to have prejudged the issue
24
of suitability.
25
Commissioner Biggers responded
He then continued the review of Petitioner’s parole
(Id. at 86.)
The commissioner also mildly rebuked
(Id. at 93.)
However, the transcript generally
A fair trial in a fair tribunal is a basic requirement of
26
due process.
27
California inmates have a due process right to parole
28
consideration by neutral, unbiased decision makers.
In re Murchison, 349 U.S. 133, 136 (1955).
19
O’Bremski v.
1
Maass, 915 F.2d 418, 422 (9th Cir. 1990).
2
absence of actual bias and of the probability of unfairness.
3
at 136.
4
of partiality in the absence of actual bias.
5
71 F.3d 732, 741 (9th Cir. 1995).
6
has prejudged, or reasonably appears to have prejudged, an issue,
7
is sufficient.
8
1992).
9
on the part of decision makers.
10
11
Fairness requires an
Id.
Bias may be actual, or it may consist of the appearance
Stivers v. Pierce,
A showing that the adjudicator
Kenneally v. Lungren, 967 F.2d 329, 333 (9th Cir.
However, there is a presumption of honesty and integrity
Withrow v. Larkin, 421 U.S. 35,
46-47 (1975).
Further, opinions formed by a judge on the basis of facts
12
introduced or events occurring in the course of the current
13
proceedings do not constitute a basis for a bias or partiality
14
motion unless they display a deep-seated favoritism or antagonism
15
that would make fair judgment impossible.
16
States, 510 U.S. 540, 555 (1994).
17
tempered efforts at courtroom administration, and judicial
18
remarks during the course of a trial that are critical or
19
disapproving of, or even hostile to counsel, the parties, or
20
their cases, ordinarily do not support a bias or partiality
21
challenge.
22
impatience, dissatisfaction, annoyance, and even anger, that are
23
within the bounds of what imperfect men and women... sometimes
24
display” do not establish bias. Id.
25
Id.
at 555-56.
Liteky v. United
Thus, stern and even short-
Likewise, “expressions of
Here, the record does not reflect any basis for a finding of
26
any deep-seated favoritism or antagonism that would make a fair
27
judgment impossible.
28
commissioner prejudged or reasonably appeared to have prejudged
Petitioner has not shown that the
20
1
the case.
2
habeas relief or even pointing to a real possibility of
3
constitutional error.
Petitioner has not alleged facts entitling him to
4
To the extent that Petitioner argues that his closing
5
statement was cut off at the hearing, the Court notes that
6
Petitioner made a closing statement to the BPH.
7
09.)
8
that no effort or attempt to make or complete a closing statement
9
to the BPH was cut off or otherwise truncated.
(Doc. 6, 105-
The previously quoted portion of the transcript reflects
Instead, in the
10
course of his closing statement, Petitioner began to remark on
11
the prosecutor’s position.
12
Petitioner that he was not to talk about the prosecutor’s
13
position; rather, Petitioner was to tell the panel why Petitioner
14
believed he was suitable for parole.
15
statement, concluding that he believed he was suitable for
16
parole.
17
suitability, Petitioner responded, “No, sir.”
18
Thus, even if Petitioner had a due process right to complete his
19
opening statement, Petitioner has not shown any interference with
20
his effort to make such a statement.
The Presiding Commissioner informed
Petitioner continued his
When asked if he had anything else to say regarding his
(Doc. 6, 108-09.)
21
Further, the minimal standards of due process applicable to
22
the parole suitability hearing do not require that Petitioner be
23
permitted to make any particular type of closing statement.
24
transcript reflects that Petitioner had an opportunity to be
25
heard and received a statement of reasons for the decision.
26
Petitioner thus received all process that was due.
27
28
The
Petitioner cites state law concerning a right to due process
of law.
To the extent that Petitioner’s claim or claims rest on
21
1
state law, they are not cognizable on federal habeas corpus.
2
Federal habeas relief is not available to retry a state issue
3
that does not rise to the level of a federal constitutional
4
violation.
5
(2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
6
errors in the application of state law are not cognizable in
7
federal habeas corpus.
8
Cir. 2002).
9
Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16
Alleged
Souch v. Schiavo, 289 F.3d 616, 623 (9th
Petitioner’s claim that he did not receive a sufficiently
10
individualized consideration of the factors appropriate under
11
California law is likewise not cognizable.
12
process to which Petitioner is entitled does not include any
13
particular degree of individualized consideration.
14
The minimal due
Petitioner argues that Swarthout v. Cooke does not govern
15
his due process claims because his claims concerning his liberty
16
interest in parole are not based on California law, but rather on
17
the United States Constitution.
18
there is no federal right to be conditionally released before the
19
expiration of a valid sentence.
20
1042, 1045 (9th Cir. 2011) (citing Swarthout v. Cooke).
21
Swarthout v. Cooke, the Court did unequivocally determine that
22
the Constitution does not impose on the states a requirement that
23
its decisions to deny parole be supported by a particular quantum
24
of evidence, independent of any requirement imposed by state law.
25
Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011). Petitioner
26
asserts that his claims are based on substantive due process.
27
However, there is no substantive due process right created by
28
California’s parole scheme; if the state affords the procedural
However, it is established that
Roberts v. Hartley, 640 F.3d
22
In
1
protections required by Greenholtz and Cooke, the Constitution
2
requires no more.
3
Roberts v. Hartley, 640 F.3d at 1046.
In summary, Petitioner’s due process claims concerning the
4
parole suitability hearing and the evidence supporting the BPH’s
5
decision must be dismissed because they are not cognizable in
6
this proceeding.
7
A petition for habeas corpus should not be dismissed without
8
leave to amend unless it appears that no tenable claim for relief
9
can be pleaded were such leave granted.
10
Jarvis v. Nelson, 440
F.2d 13, 14 (9th Cir. 1971).
11
Here, Petitioner did not contend that he lacked an
12
opportunity to review records or to be heard, or that he did not
13
receive a statement of reasons for the BPH’s decision.
14
the allegations in the petition and the undisputed record of the
15
parole hearing reveal that Petitioner attended the parole
16
suitability hearing, made statements to the BPH, and received a
17
statement of reasons for the decision of the BPH from apparently
18
impartial decision-makers.
19
and documentation establish that he had an opportunity to be
20
heard and received a statement of reasons for the decisions in
21
question.
22
state a tenable due process claim.
Further,
Thus, Petitioner’s own allegations
It therefore does not appear that Petitioner could
23
Accordingly, the court will recommend that Respondent's
24
motion to dismiss the petition for failure to state a cognizable
25
due process claim be granted, and the petition be dismissed
26
without leave to amend because Petitioner failed to state a
27
cognizable due process claim.
28
///
23
1
V.
2
Unless a circuit justice or judge issues a certificate of
Certificate of Appealability
3
appealability, an appeal may not be taken to the Court of Appeals
4
from the final order in a habeas proceeding in which the
5
detention complained of arises out of process issued by a state
6
court.
7
U.S. 322, 336 (2003).
8
only if the applicant makes a substantial showing of the denial
9
of a constitutional right.
28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue
§ 2253(c)(2).
Under this standard, a
10
petitioner must show that reasonable jurists could debate whether
11
the petition should have been resolved in a different manner or
12
that the issues presented were adequate to deserve encouragement
13
to proceed further.
14
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
15
certificate should issue if the Petitioner shows that jurists of
16
reason would find it debatable whether the petition states a
17
valid claim of the denial of a constitutional right and that
18
jurists of reason would find it debatable whether the district
19
court was correct in any procedural ruling.
20
529 U.S. 473, 483-84 (2000).
21
Miller-El v. Cockrell, 537 U.S. at 336
A
Slack v. McDaniel,
In determining this issue, a court conducts an overview of
22
the claims in the habeas petition, generally assesses their
23
merits, and determines whether the resolution was debatable among
24
jurists of reason or wrong.
25
applicant to show more than an absence of frivolity or the
26
existence of mere good faith; however, it is not necessary for an
27
applicant to show that the appeal will succeed.
28
Cockrell, 537 U.S. at 338.
Id.
24
It is necessary for an
Miller-El v.
1
A district court must issue or deny a certificate of
2
appealability when it enters a final order adverse to the
3
applicant.
4
Rule 11(a) of the Rules Governing Section 2254 Cases.
Here, it does not appear that reasonable jurists could
5
debate whether the petition should have been resolved in a
6
different manner.
7
of the denial of a constitutional right.
8
9
Petitioner has not made a substantial showing
Accordingly, it will be recommended that the Court decline
to issue a certificate of appealability.
10
VI.
11
Accordingly, it is RECOMMENDED that:
12
1)
13
14
Recommendation
Respondent's motion to dismiss the petition as untimely
be DENIED; and
2)
Respondent's motion to dismiss the petition without
15
leave to amend for failure to state a cognizable due process
16
claim be GRANTED; and
17
3)
The petition be DISMISSED without leave to amend; and
18
4)
The Court DECLINE to issue a certificate of
19
20
21
appealability; and
5)
The Clerk be directed to close the case because an order
of dismissal would terminate the action in its entirety.
22
These findings and recommendations are submitted to the
23
United States District Court Judge assigned to the case, pursuant
24
to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
25
the Local Rules of Practice for the United States District Court,
26
Eastern District of California.
27
being served with a copy, any party may file written objections
28
with the Court and serve a copy on all parties.
Within thirty (30) days after
25
Such a document
1
should be captioned “Objections to Magistrate Judge’s Findings
2
and Recommendations.”
3
and filed within fourteen (14) days (plus three (3) days if
4
served by mail) after service of the objections.
5
then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §
6
636 (b)(1)(C).
7
objections within the specified time may waive the right to
8
appeal the District Court’s order.
9
1153 (9th Cir. 1991).
Replies to the objections shall be served
The Court will
The parties are advised that failure to file
Martinez v. Ylst, 951 F.2d
10
11
IT IS SO ORDERED.
12
Dated:
ie14hj
July 6, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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