Elmor Jacob De Leon v. James Hartley

Filing 11

ORDER signed by Magistrate Judge Sheila K. Oberto on 5/27/2011 DISMISSING Petition without leave to amend; DECLINING to Issue a Certificate of Appealability and DIRECTING Clerk to Close Case. CASE CLOSED.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ELMOR JACOB DE LEON,

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Petitioner,

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v.
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JAMES HARTLEY, Warden,
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Respondent.
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1:10-cv—02251-SKO-HC
ORDER DISMISSING THE PETITION
WITHOUT LEAVE TO AMEND FOR
PETITIONER’S FAILURE TO ALLEGE A
CLAIM ENTITLING PETITIONER TO
RELIEF IN A PROCEEDING PURSUANT
TO 28 U.S.C. § 2254 (Doc. 1)
ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY AND
DIRECTING THE CLERK TO CLOSE THE
CASE

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Petitioner is a state prisoner proceeding pro se and in
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forma pauperis with a petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2254.

Pursuant to 28 U.S.C. § 636(c)(1),

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Petitioner has consented to the jurisdiction of the United States
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Magistrate Judge to conduct all further proceedings in the case,
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including the entry of final judgment, by manifesting consent in
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a signed writing filed by Petitioner on January 31, 2011 (doc.
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10).

Pending before the Court is Petitioner’s petition, which

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was filed in this Court on November 16, 2010.
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I.

Screening the Petition

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Rule 4 of the Rules Governing § 2254 Cases in the United
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States District Courts (Habeas Rules) requires the Court to make
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a preliminary review of each petition for writ of habeas corpus.

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The Court must summarily dismiss a petition "[i]f it plainly

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appears from the petition and any attached exhibits that the

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petitioner is not entitled to relief in the district court....”

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Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.

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1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.

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1990).

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grounds of relief available to the Petitioner; 2) state the facts

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supporting each ground; and 3) state the relief requested.

Habeas Rule 2(c) requires that a petition 1) specify all

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Notice pleading is not sufficient; rather, the petition must

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state facts that point to a real possibility of constitutional

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error.

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O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v.

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Allison, 431 U.S. 63, 75 n. 7 (1977)).

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that are vague, conclusory, or palpably incredible are subject to

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summary dismissal.

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Cir. 1990).

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Rule 4, Advisory Committee Notes, 1976 Adoption;

Allegations in a petition

Hendricks v. Vasquez, 908 F.2d 490, 491 (9th

Further, the Court may dismiss a petition for writ of habeas

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corpus either on its own motion under Habeas Rule 4, pursuant to

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the respondent's motion to dismiss, or after an answer to the

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petition has been filed.

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8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43

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(9th Cir. 2001).

Advisory Committee Notes to Habeas Rule

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II.

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Petitioner alleges he was an inmate of the Avenal State

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Prison serving a sentence of fifteen (15) years to life pursuant

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to a sentence imposed on August 16, 1991, by the Los Angeles

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Superior Court upon Petitioner’s conviction of second degree

Background

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murder, attempted murder, and assault with a firearm in violation

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of Cal. Pen. Code §§ 187, 664, and 245.

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challenges a decision of California’s Board of Parole Hearings

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(BPH) made after a hearing held on August 27, 2009, denying

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Petitioner’s application for parole because he was found

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unsuitable.

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(Pet. 1-2.)

Petitioner

(Pet. 5, 21.)

Petitioner raises the following claims in the petition: 1)

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the decision violated Petitioner’s right to due process of law

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because it was not supported by some evidence (pet. 5, 7, 23);

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2) the BPH’s denial of parole violated Petitioner’s right to the

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equal protection of the laws (pet. 5, 7, 28); 3) Petitioner was

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subjected to an ex post facto law because the board denied parole

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for three years “Under The New Marcy’s Law, Proposition 9" (pet.

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5, 21), which the Court understands to be a reference to

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California’s Proposition 9, the “Victims’ Bill of Rights Act of

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2008: Marsy’s Law,” a provision that on November 4, 2008,

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effected an amendment of Cal. Pen. Code

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§ 3041.5(b)(3) that resulted in a lengthening of the period

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between parole suitability hearings (pet. 5, 7-9, 27, 29, 33, 36-

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37); 4) Petitioner’s rights under the First Amendment were

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violated (pet. 9, 29); and 5) the board violated state regulatory

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and statutory law and failed to base its decision on codified

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suitability criteria (pet. 27, 30, 32).

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the decision reflected impermissible reliance on immutable

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factors such as the commitment offense, lacked the support of any

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evidence, and was made without the consideration and weighing of

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all favorable evidence.

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argues that the evidence of Petitioner’s parole suitability that

Petitioner contends that

(Pet. 7, 19-22, 28, 31.)

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Petitioner

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was before the board merited a grant of parole.

(Pet. 33-36.)

On December 20, 2010, the Court issued an order to

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Petitioner to show cause why the petition should not be dismissed

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for failure to exhaust state court remedies.

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Petitioner responded on December 20, 2010, by providing a copy of

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his petition for writ of habeas corpus filed in the California

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Supreme Court in case no. S181886, which demonstrated that the

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claims raised in the petition before the Court were raised before

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the California Supreme Court.

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(Doc. 7.)

(Doc. 8, 12-42.)

Petitioner submitted the transcript of the proceedings held

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before the BPH on August 27, 2009.

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1-2, 1-46.)

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documents before the hearing (doc. 1-1, 61-64); attended the

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hearing (pet., doc. 1-1, 55, 58); addressed the board concerning

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numerous factors of parole suitability (doc. 1-1, 64-100; doc. 1-

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2, 1-24); made a personal statement to the board in favor of

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parole (doc. 1-2, 28-30); and was represented by counsel, who

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advocated and made a closing statement on Petitioner’s behalf

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(doc. 1-1, 55, 58, 62-64; doc. 1-2, 10-11, 25-28).

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(Pet., doc. 1-1, 55-100; doc.

The transcript reflects that Petitioner received

Petitioner was present when the board stated its reasons for

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the finding of unsuitability for parole and the denial of parole

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for three years, which was based on the conclusion that there was

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an unreasonable risk of danger to others if Petitioner were

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released.

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his later conviction of possession of a nail while in custody,

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Petitioner’s history of alcoholism, Petitioner’s lack of insight

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into his offense, and what was considered to be untruthfulness in

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Petitioner’s explanations of his criminal conduct.

The board noted Petitioner’s commitment offense and

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(Pet., doc.

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1-2, 31-45.)

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III.

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The petition was filed after April 24, 1996, the effective

Failure to State a Cognizable Due Process Claim

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date of the Antiterrorism and Effective Death Penalty Act of 1996

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(AEDPA).

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Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S.

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1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

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A district court may entertain a petition for a writ of

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habeas corpus by a person in custody pursuant to the judgment of

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a state court only on the ground that the custody is in violation

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of the Constitution, laws, or treaties of the United States. 28

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U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,

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375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,

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16 (2010) (per curiam).

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Accordingly, the AEDPA applies in this proceeding.

The Supreme Court has characterized as reasonable the

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decision of the Court of Appeals for the Ninth Circuit that

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California law creates a liberty interest in parole protected by

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the Fourteenth Amendment Due Process Clause, which in turn

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requires fair procedures with respect to the liberty interest.

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Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011).

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However, the procedures required for a parole determination

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are the minimal requirements set forth in Greenholtz v. Inmates

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of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1

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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

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Swarthout v. Cooke, 131 S.Ct. 859, 862.

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rejected inmates’ claims that they were denied a liberty interest

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because there was an absence of “some evidence” to support the

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decision to deny parole.

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In Swarthout, the Court

The Court stated:

There is no right under the Federal Constitution
to be conditionally released before the expiration of
a valid sentence, and the States are under no duty
to offer parole to their prisoners. (Citation omitted.)
When, however, a State creates a liberty interest,
the Due Process Clause requires fair procedures for its
vindication–and federal courts will review the
application of those constitutionally required procedures.
In the context of parole, we have held that the procedures
required are minimal. In Greenholtz, we found
that a prisoner subject to a parole statute similar
to California’s received adequate process when he
was allowed an opportunity to be heard and was provided
a statement of the reasons why parole was denied.
(Citation omitted.)

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Swarthout, 131 S.Ct. 859, 862.

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petitioners had received the process that was due as follows:

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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....

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

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Swarthout, 131 S.Ct. at 862.

The Court in Swarthout expressly

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noted that California’s “some evidence” rule is not a substantive
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federal requirement, and correct application of California’s
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“some evidence” standard is not required by the Federal Due
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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.

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Process Clause.

Id. at 862-63.

Here, Petitioner asks this Court to engage in the very type

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of analysis foreclosed by Swarthout.

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facts that point to a real possibility of constitutional error or

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that otherwise would entitle Petitioner to habeas relief because

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California’s “some evidence” requirement is not a substantive

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federal requirement.

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support the denial of parole is not within the scope of this

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Court’s habeas review under 28 U.S.C. § 2254.

Petitioner does not state

Review of the record for “some evidence” to

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A petition for habeas corpus should not be dismissed without

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leave to amend unless it appears that no tenable claim for relief

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can be pleaded were such leave granted.

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F.2d 13, 14 (9th Cir. 1971).

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the related documentation demonstrate that Petitioner attended

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the parole suitability hearing, made statements to the BPH, and

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received a statement of reasons for the decision of the BPH.

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Because it appears from the face of the petition and the attached

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exhibits that Petitioner received all process that was due,

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Petitioner cannot state a tenable due process claim.

Jarvis v. Nelson, 440

The allegations in the petition and

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Accordingly, insofar as Petitioner claims a due process

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violation because of the application of the “some evidence” rule,

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the petition will be dismissed without leave to amend.

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IV.

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Petitioner alleges generally that the board’s decision

Alleged Denial of Equal Protection

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violated his right to equal protection of the laws.

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However, Petitioner does not allege any facts that would support

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such a generalized claim.

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Cal.4th 616 (2002) and In re Lawrence, 150 Cal. App.4th 1511

(Pet. 5, 7.)

After citing In re Rosenkrantz, 29

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(2008), Petitioner argues in pertinent part:
De Leon request (sic) to this court the same
Equal Protection and Due Process rights Because
De Leon’s crime is far away to compare with those
cases Mr. Rosenkrantz, And Mrs. Lawrence. Mr.
Rosenkrantz and Mrs. Lawrence are free persons now)....
(Pet. 28:21-24.)
Prisoners are protected under the Equal Protection Clause of

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the Fourteenth Amendment from invidious discrimination based on

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race, religion, or membership in a protected class subject to

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restrictions and limitations necessitated by legitimate

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penological interests.

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(1974); Bell v. Wolfish, 441 U.S. 520, 545-46 (1979).

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Protection Clause essentially directs that all persons similarly

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situated should be treated alike.

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Cleburne Living Center, 473 U.S. 432, 439 (1985).

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equal protection are shown when a respondent intentionally

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discriminated against a petitioner based on membership in a

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protected class, Lee v. City of Los Angeles, 250 F.3d 668, 686

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(9th Cir. 2001), or when a respondent intentionally treated a

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member of an identifiable class differently from other similarly

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situated individuals without a rational basis, or a rational

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relationship to a legitimate state purpose, for the difference in

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treatment, Village of Willowbrook v. Olech, 528 U.S. 562, 564

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(2000).

Wolff v. McDonnell, 418 U.S. 539, 556
The Equal

City of Cleburne, Texas v.
Violations of

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Here, Petitioner has neither alleged nor shown that

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membership in a protected class was the basis of any alleged

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discrimination.

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inference of an intent to discriminate based on an impermissible

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characteristic.

The Court does not find any factual basis for an

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Further, Petitioner has not shown that he was treated

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differently from similarly situated individuals.

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Rosenkratz, the petitioner committed second degree murder after

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he had been assaulted by his victim, who interrupted a homosexual

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liaison and reported it to the petitioner’s father, whose angry

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confrontation with the petitioner resulted in dramatic, familial

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discord and the petitioner’s departure from his home.

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Rosenkratz, 29 Cal.4th at 627-29.

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or disciplinary history and no involvement with drugs or alcohol.

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In In re

In re

The petitioner had no criminal

Id.
The other case cited by Petitioner, In re Lawrence, 150 Cal.

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App.4th 1511 (2007), was superseded by the opinion of the

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California Supreme Court upon its grant of review.

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Lawrence, 44 Cal.4th 1181 (2008).

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convicted of first degree murder for killing her lover’s wife

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after her lover had informed the petitioner that he had changed

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his mind and had decided not to leave his wife after all; the

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petitioner had an exemplary record of rehabilitation, accepted

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responsibility for her crime, had no criminal history or

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disciplinary problems in prison, had insight into her motivation

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for the crime, and was the subject of five psychologists’

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opinions that she was no longer a danger to public safety.

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Lawrence, 44 Cal.4th 1181, 1192-95.

In re

The petitioner in Lawrence was

In re

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The facts relevant to the parole suitability of the

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petitioners involved in the two cited cases are sufficiently

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different from those present in this case that the Court

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concludes that Petitioner has not shown that he was similarly

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situated with the petitioners in those cases.
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The Court notes

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that “the Fourteenth Amendment guarantees equal laws, not equal

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results.”

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256, 273 (1979).

Personnel Adm'r of Massachusetts v. Feeney, 442 U.S.

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Petitioner also argues that application of the standards of

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California’s Determinate Sentencing Law (DSL) to Petitioner, who

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asserts that he is an “ISL” (Indeterminate Sentencing Law) life

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prisoner, is a violation of equal protection.

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DSL was enacted in 1976.

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Petitioner alleges that he was convicted in 1990 and sentenced in

(Pet. 21.)

The

1976 Cal. Stat., ch. 113, § 1.

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1991.

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to have his parole suitability considered under the ISL.

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(Pet. 2.)

Thus, Petitioner has not shown he was entitled

The Court concludes that the facts alleged by Petitioner in

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his claim pursuant to the Equal Protection Clause fail to entitle

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Petitioner to habeas corpus relief.

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Petitioner has provided the Court with the record of the

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proceedings before the BPH.

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parole suitability are already fully set forth in the record.

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is not logically possible for Petitioner to demonstrate that he

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was similarly situated with the petitioners in the cited cases.

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The Court therefore concludes that Petitioner cannot state a

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tenable equal protection claim.

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The facts pertinent to Petitioner’s
It

Therefore, insofar as Petitioner seeks relief for a

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violation of the Fourteenth Amendment’s Equal Protection Clause,

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the petition will be dismissed without leave to amend.

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V.

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Petitioner argues that he was subjected to an ex post facto

Alleged Ex Post Facto Violation

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law by the denial of parole for three years pursuant to the

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board’s application of California’s Proposition 9, the “Victims’
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Bill of Rights Act of 2008: Marsy’s Law,” which amended Cal. Pen.

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Code § 3041.5(b)(3) in 2008 after Petitioner had committed his

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offense.

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Before Proposition 9 was enacted, Cal. Pen. Code

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§ 3041.5(b)(2) provided that parole suitability hearings would

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generally occur every year, but could occur every two years in

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cases in which the board found that it was not reasonable to

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expect parole would be granted in a year and stated the bases for

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the finding, or every five years if the prisoner had been

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convicted of murder and the board found that it was not

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reasonable to expect parole to be granted during the following

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years and stated the bases for the finding in writing.

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Code § 3041.5(b)(2) (2008); Gilman v. Schwarzenegger, - F.3d -,

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No. 10-15471, 2011 WL 198435, at *2 (9th Cir. Jan. 24, 2011).

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Proposition 9 amended Cal. Pen. Code § 3041.5(b)(3) to provide

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that future parole suitability hearings should be scheduled in

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fifteen years, ten years, or intervals of three, five, or seven

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years unless the board finds by clear and convincing evidence

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that statutory criteria relevant to release and the safety of the

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victim and public do not require the greater period of continued

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imprisonment.

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Schwarzenegger, 2011 WL 198435 at *2.

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Cal. Pen.

Cal. Pen. Code § 3041.5(b)(3) (2010); Gilman v.

In addition, Proposition 9 amended the law concerning parole

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deferral periods by authorizing the Board to advance a hearing

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date in its discretion either sua sponte or at the request of the

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Petitioner.

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Schwarzenegger, 2011 WL 198435, at *6.

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Cal. Pen. Code § 3041.5(b), (d); Gilman v.

The Constitution provides, “No State shall... pass any... ex
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post facto Law.”

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Clause prohibits any law which: 1) makes an act done before the

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passing of the law, which was innocent when done, criminal; 2)

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aggravates a crime and makes it greater than it was when it was

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committed; 3) changes the punishment and inflicts a greater

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punishment for the crime than when it was committed; or 4) alters

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the legal rules of evidence and requires less or different

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testimony to convict the defendant than was required at the time

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the crime was committed.

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U.S. Const. art I, § 10.

The Ex Post Facto

Carmell v. Texas, 529 U.S. 513, 522

(2000).
Application of a state regulation retroactively to a

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defendant violates the Ex Post Facto Clause if the new

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regulations create a “sufficient risk” of increasing the

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punishment for the defendant’s crimes.

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F.3d 848, 854 (9th Cir. 2003) (citing Cal. Department of

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Corrections v. Morales, 514 U.S. 499, 509 (1995)).

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or statute does not by its own terms show a significant risk, the

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prisoner must demonstrate, by evidence drawn from the rule's

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practical implementation by the agency charged with exercising

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discretion, that its retroactive application will result in a

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longer period of incarceration than under the earlier rule.

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Garner v. Jones, 529 U.S. 244, 250, 255 (2000).

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Himes v. Thompson, 336

When the rule

Previous amendments to Cal. Pen. Code § 3041.5 which

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initiated longer periods of time between parole suitability

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hearings have been upheld against challenges that they violated

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the Ex Post Facto Clause.

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Corrections v. Morales, 514 U.S. 499, 509 (1995) (where the great

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majority of prisoners were found unsuitable, a 1982 increase of

See, e.g., California Department of

12

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the maximum period for deferring hearings to five years for

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offenders who had committed multiple homicides only altered the

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method of setting a parole release date and did not result in a

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sufficient risk of increasing the punishment or measure of

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punishment for the crime in the absence of modification of

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punishment or of the standards for determining either the initial

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date for parole eligibility or an inmate’s suitability for

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parole);

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1989) (finding no ex post facto violation in applying amended

Watson v. Estelle, 886 F.2d 1093, 1097-98 (9th Cir.

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Cal. Pen. Code § 3041.5(b)(2)(A), permitting delay of suitability

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hearings for several years, to prisoners who were sentenced to a

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life term before California’s Determinate Sentencing Law was

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implemented in 1977 and who otherwise would have been entitled to

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periodic review of suitability).

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Similarly, a state law permitting the extension of intervals

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between parole consideration hearings for all prisoners serving

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life sentences from three to eight years does not violate the Ex

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Post Facto Clause where expedited parole review was available

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upon a change of circumstances or receipt of new information

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warranting an earlier review, and where there was no showing of

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increased punishment.

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Under such circumstances, there was no significant risk of

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extending a prisoner’s incarceration.

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Garner v. Jones, 529 U.S. 244, 249 (2000).

Id.

The Court in Garner recognized that state parole authorities

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retain broad discretion concerning release and must have

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flexibility in formulating parole procedures and addressing

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problems associated with confinement and release.

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Jones, 529 U.S. 244, 252-53.

Garner v.

Inherent in the discretionary
13

1

nature of a grant of parole is the need to permit changes in the

2

manner in which the discretion is “informed and then exercised.”

3

Garner v. Jones, 529 U.S. at 253.

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hearings in Garner depended in part on the parole authority’s

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determination of the likelihood of a future grant of parole;

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thus, the result was that parole resources were put to better

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use, which in turn increased the likelihood of release.

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254.

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to determine the risk of increased punishment.

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Further, the timing of the

Id. at

In Garner, the matter was remanded for further proceedings

In Gilman v. Schwarzenegger, - F.3d -, No. 10-15471, 2011 WL

11

198435, at *2 (9th Cir. Jan. 24, 2011), the Ninth Circuit

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reversed a grant of injunctive relief to plaintiffs in a class

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action seeking to prevent the BPH from enforcing retroactively

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Proposition 9's amendments that defer parole consideration.

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court concluded that the plaintiffs were not likely to succeed on

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their claim on the merits.

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was no evidence concerning whether or not more frequent parole

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hearings would result in more frequent grants of parole, as

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distinct from denials.

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by Proposition 9 were noted to be more extensive than those

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before the Court in Morales and Garner, advanced hearings, which

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would remove any possibility of harm, were available upon a

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change in circumstances or new information.

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absence of record facts from which it might be inferred that

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Proposition 9 created a significant risk of prolonging the

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plaintiffs’ incarceration, the plaintiffs had not established a

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likelihood of success on the merits on the ex post facto claim.

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Id. at *8.

Id. at *1, *3-*8.

Id. at *3.

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The

In Gilman, there

Although the changes wrought

Id. at *6.

In the

1

Here, Petitioner has not alleged facts warranting a

2

different conclusion.

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an unreasonable risk of danger if released, and that denial was

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for three years, the minimum they could give under Proposition 9;

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to be suitable for parole, Petitioner would have to develop

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insight into his offense, which involved a sudden confrontation

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in which Petitioner chased and shot an unarmed victim who had

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kicked Petitioner but then had retreated.

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resisted the efforts of third parties to disarm Petitioner and to

The board concluded that Petitioner posed

Petitioner then

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avoid further confrontation.

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remorse, and he needed to develop insight into his behavior and

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to provide valid explanations of his criminal conduct.

13

2, 32-45.)

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Petitioner demonstrated limited

(Doc. 1-

The Court may take judicial notice of court records.

Fed.

15

R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333

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(9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626,

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635 n.1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981).

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The Court takes judicial notice of the docket and specified

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orders in the class action Gilman v. Fisher, 2:05-cv-00830-LKK-

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GGH, which is pending in this Court, including the order granting

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motion for class certification filed on March 4, 2009 (Doc. 182,

22

9:7-15), which indicates that the Gilman class is made up of

23

California state prisoners who 1) have been sentenced to a term

24

that includes life, 2) are serving sentences that include the

25

possibility of parole, 3) are eligible for parole, and 4) have

26

been denied parole on one or more occasions.

27

reflects that the Ninth Circuit affirmed the order certifying the

28

class.

(Docs. 257, 258.)

The docket further

The Court also takes judicial notice
15

1

of the order of March 4, 2009, in which the court described the

2

case as including challenges to Proposition 9's amendments to

3

Cal. Pen. Code § 3041.5 based on the Ex Post Facto Clause, and a

4

request for injunctive and declaratory relief against

5

implementation of the changes.

6

(Doc. 182, 5-6.)

The relief sought by Petitioner concerns in part the future

7

scheduling of Petitioner’s next suitability hearing and

8

necessarily implies the invalidation of state procedures used to

9

deny parole suitability (pet. 9, 40-41), matters removed from the

10

fact or duration of confinement.

11

held to be cognizable under 42 U.S.C. § 1983 as claims concerning

12

conditions of confinement.

13

(2005).

Thus, they may fall outside the core of habeas corpus

14

relief.

See, Preiser v. Rodriguez, 411 U.S. 475, 485-86 (1973);

15

Nelson v. Campbell, 541 U.S. 637, 643 (2004); Muhammad v. Close,

16

540 U.S. 749, 750 (2004).

17

Such types of claims have been

Wilkinson v. Dotson, 544 U.S. 74, 82

Further, the relief Petitioner requests overlaps with the

18

relief requested in the Gilman class action.

19

a member of a class action for equitable relief from prison

20

conditions may not maintain an individual suit for equitable

21

relief concerning the same subject matter.

22

F.2d 890, 891-92 (9th Cir. 1979).

23

efficient and orderly administration of justice for a court to

24

proceed with an action that would possibly conflict with or

25

interfere with the determination of relief in another pending

26

action, which is proceeding and in which the class has been

27

certified.

28

A plaintiff who is

Crawford v. Bell, 599

It is contrary to the

Here, Petitioner’s own allegations reflect that he qualifies
16

1

as a member of the class in Gilman.

2

jurisdiction over same subject matter and may grant the same

3

relief.

4

disposition of its cases with economy of time and effort for both

5

the court and the parties.

6

U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260

7

(9th Cir. 1992).

8

this Court concludes that dismissal of Petitioner’s ex post facto

9

claim in this action is appropriate and necessary to avoid

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,

10

interference with the orderly administration of justice.

11

Crawford v. Bell, 599 F.2d 890, 892-93; see Bryant v. Haviland,

12

2011 WL 23064, *2-*5 (E.D.Cal. Jan. 4, 2011).

13

Cf.,

In view of the allegations of the petition and the pendency

14

of the Gilman class action, amendment of the petition with

15

respect to the ex post facto claim would be futile and

16

unproductive.

17

The Court notes that Petitioner also alleges that he

18

suffered an ex post facto violation when DSL standards were

19

applied to him because he was an “ISL Life Prisoner.”

20

However, as previously noted, Petitioner’s conviction and

21

sentence occurred after the DSL was enacted.

22

has not stated facts that would entitle him to relief because he

23

has not alleged facts showing any ex post facto application of

24

DSL standards for parole suitability.

25

Petitioner was convicted after the DSL was enacted, Petitioner

26

could not state a tenable ex post facto claim if leave to amend

27

were granted.

28

(Pet. 21.)

Thus, Petitioner

Further, because

Accordingly, Petitioner’s ex post facto claim will be
17

1

dismissed without leave to amend.

2

VI.

3

Petitioner argues that his rights under the First Amendment

First Amendment Claim

4

were violated.

5

factual allegations concerning this claim; Petitioner only

6

concludes that his rights were violated, and cites Turner v.

7

Hickman, 342 F.Supp.2d 887 (E.D.Cal. 2004).2

8

(Pet. 9, 29.)

However, the petition is devoid of

(Pet. 9, 29.)

In Turner v. Hickman, 342 F.Supp.2d 887, a Christian inmate

9

alleged that parole authorities expressly conditioned in part the

10

plaintiff’s eligibility for release on parole upon participation

11

in Narcotics Anonymous (NA).

12

that by repeated application of the “coercion” test set forth in

13

Lee v. Weisman, 505 U.S. 577, 587 (1992), the Supreme Court had

14

made the applicable law clear.

15

expressly telling the plaintiff he needed to participate in NA in

16

order to be eligible for parole, the state had acted coercively

17

to require participation in a program in which the evidence

18

showed that belief in “God” was a fundamental requirement of

19

participation.

20

prohibited the requirement.

21

Id. at 890.

Id. at 895-96.

This Court concluded

Turner, 342 F.Supp.2d at 894.

Accordingly, the First Amendment

Id. at 896-99.

In Inouye v. Kemna, 504 F.3d 705 (9th Cir. 2007), the court

22

considered whether state parole authorities had qualified

23

immunity in a § 1983 suit by a plaintiff who alleged that as a

24

condition of parole, they required his attendance in drug

25

treatment programs (AA and NA) rooted in a regard for a higher

26
27
28

By

2

Because Petitioner cites to Turner v. Hickman, the Court understands
Petitioner’s claim to relate to having been coerced to participate in a
program which required belief in a higher power.

18

1

power.

2

parole officer that the law was not clearly established at the

3

time, the court held that the law “was and is very clear,

4

precluding qualified immunity....”

5

The court found that there had been consistent articulation of

6

the principle that the government may not coerce anyone to

7

support or participate in religion or its exercise, or punish

8

anyone for not so participating.

9

Board of Education of Ewing Township, 330 U.S. 1 (1947) and Lee

In response to the argument of a defendant supervisory

Inouye, 504 F.3d at 711-12.

Id. at 713 (citing Everson v.

10

v. Weisman, 505 U.S. 577, 587 (1992)).

11

that the basic test for Establishment Clause violations remains

12

that stated in Lemon v. Kurtzman, 403 U.S. 602, 613 (1971),

13

namely, that the government acts 1) have a secular legislative

14

purpose, 2) not have a principal or primary effect which either

15

advances or inhibits religion, and 3) not foster an excessive

16

government entanglement with religion.

17

court concluded that recommending revocation of parole for a

18

parolee’s failure to attend the programs after an order to

19

participate was given was unconstitutionally coercive.

20

713-14.

21

only on lower court decisions, but also in part on the decisions

22

of the United States Supreme Court and the absence of any Supreme

23

Court case upholding government-mandated participation in

24

religious activity in any context.

25

The court further noted

Id. at 713 n.7.

The

Id. at

In finding the law clear, the court in Inouye relied not

Id. at 715.

Here, Petitioner’s self-help programming for alcoholism,

26

which was discussed at the parole hearing, included significant

27

participation in Catholic services, reading sixteen self-help

28

books that included substance abuse recovery, and an independent
19

1

study project in relapse prevention.

2

doc. 1-2, 1-2.)

3

had written to AA in New York to obtain an AA contact address in

4

the United States and his native country of Guatemala for use

5

upon release.

6

to the board, Petitioner said that if released he wanted to open

7

an AA group so that he could help himself and others to stay

8

sober.

9

parole, a board member stated that a prior parole panel convened

(Pet., doc. 1-1, 99-100;

His letters of support reflected that Petitioner

(Pet., doc. 1-2, 11.)

(Doc. 1-2, 29.)

In his personal statement

When explaining the decision to deny

10

in the previous year had asked Petitioner to work on his

11

“substance abuse availability” in Guatemala, and that this had

12

been provided to the present panel on the day of the hearing.

13

(Doc. 1-2, 41.)

14

substance disciplinary violations during his entire period of

15

incarceration, and Petitioner’s participation in self-study in

16

relapse prevention was commendable.

17

recommended that Petitioner continue with his self-help.

18

44.)

19

Petitioner had not had any alcohol or controlled

(Id. at 42-43.)

It was
(Id. at

In sum, the record of the proceedings before the board shows

20

that Petitioner was not required to attend AA or any specific

21

programing that involved belief in a higher power.

22

does not contain facts supporting a finding of violation of

23

Petitioner’s First Amendment rights at the proceedings of the

24

parole board held on August 27, 2009, that are before the Court3.

25

As the complete transcript of the proceedings is already before

26

the Court, it is not logically possible that Petitioner could

The record

27
3

28

Although Petitioner mentions previous parole hearings, it is the hearing held on August 27, 2009, that is
the subject of the present petition.

20

1

state a tenable claim under the Establishment Clause of the First

2

Amendment.

3
4

Therefore, Petitioner’s claim concerning a First Amendment
violation will be dismissed without leave to amend.

5

VII.

6

Petitioner argues that the board’s decision violated state

7

regulatory and statutory law, and that the board failed to base

8

its decision on codified suitability criteria.

9

that Petitioner’s claim or claims rest on state law, they are not

Allegations Concerning State Law

To the extent

10

cognizable on federal habeas corpus.

11

not available to retry a state issue that does not rise to the

12

level of a federal constitutional violation.

13

562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. McGuire, 502

14

U.S. 62, 67-68 (1991).

15

state law are not cognizable in federal habeas corpus.

16

Schiavo, 289 F.3d 616, 623 (9th Cir. 2002).

17

Federal habeas relief is

Wilson v. Corcoran,

Alleged errors in the application of
Souch v.

Thus, Petitioner’s claim or claims concerning the board’s

18

alleged violations of state law will be dismissed without leave

19

to amend.

20

VIII.

21

Unless a circuit justice or judge issues a certificate of

Certificate of Appealability

22

appealability, an appeal may not be taken to the Court of Appeals

23

from the final order in a habeas proceeding in which the

24

detention complained of arises out of process issued by a state

25

court.

26

U.S. 322, 336 (2003).

27

only if the applicant makes a substantial showing of the denial

28

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).
21

Under this standard, a

1

petitioner must show that reasonable jurists could debate whether

2

the petition should have been resolved in a different manner or

3

that the issues presented were adequate to deserve encouragement

4

to proceed further.

5

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

6

certificate should issue if the Petitioner shows that jurists of

7

reason would find it debatable whether the petition states a

8

valid claim of the denial of a constitutional right and that

9

jurists of reason would find it debatable whether the district

Miller-El v. Cockrell, 537 U.S. at 336

10

court was correct in any procedural ruling.

11

A

529 U.S. 473, 483-84 (2000).

12

Slack v. McDaniel,

In determining this issue, a court conducts an overview of

13

the claims in the habeas petition, generally assesses their

14

merits, and determines whether the resolution was debatable among

15

jurists of reason or wrong.

16

applicant to show more than an absence of frivolity or the

17

existence of mere good faith; however, it is not necessary for an

18

applicant to show that the appeal will succeed.

19

Cockrell, 537 U.S. at 338.

Id.

It is necessary for an

Miller-El v.

20

A district court must issue or deny a certificate of

21

appealability when it enters a final order adverse to the

22

applicant.

23

Rule 11(a) of the Rules Governing Section 2254 Cases.

Here, it does not appear that reasonable jurists could

24

debate whether the petition should have been resolved in a

25

different manner.

26

of the denial of a constitutional right.

27

will decline to issue a certificate of appealability.

28

///

Petitioner has not made a substantial showing

22

Accordingly, the Court

1

IX.

2

Accordingly, it is ORDERED that:

3

1)

Disposition

The petition is DISMISSED without leave to amend because

4

Petitioner has failed to state a claim entitling him to habeas

5

corpus relief in a proceeding pursuant to 28 U.S.C. § 2254; and

6
7

2)

appealability; and

8
9

The Court DECLINES to issue a certificate of

3)

The Clerk is DIRECTED to close the case because this

order terminates the action in its entirety.

10
11

IT IS SO ORDERED.

12

Dated:
ie14hj

May 27, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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