Lopez v. Brown
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition without Leave to Amend; FINDINGS and RECOMMENDATIONS to Decline to Issue a Certificate of Appealability and to Direct the Clerk to Close the Case, signed by Magistrate Judge Barbara A. McAuliffe on 8/9/12. Referred to Judge Ishii; Objections to F&R due by 9/13/2012. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ANDREW R. LOPEZ,
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Petitioner,
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v.
EDMUND G. BROWN,
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Respondent.
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1:12-cv—01172–AWI-BAM-HC
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION WITHOUT
LEAVE TO AMEND (DOC. 1)
FINDINGS AND RECOMMENDATIONS TO
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY AND TO DIRECT THE
CLERK TO CLOSE THE CASE
OBJECTIONS DEADLINE:
(30) DAYS
THIRTY
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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.
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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local
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Rules 302 and 304.
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which was filed on July 16, 2012.
The matter has been referred to the
Pending before the Court is the petition,
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I.
25
Rule 4 of the Rules Governing § 2254 Cases in the United
Screening the Petition
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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
1
1
appears from the petition and any attached exhibits that the
2
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.
4
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.
8
Notice pleading is not sufficient; rather, the petition must
9
state facts that point to a real possibility of constitutional
Habeas Rule 2(c) requires that a petition 1) specify all
10
error.
11
O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v.
12
Allison, 431 U.S. 63, 75 n.7 (1977)).
13
that are vague, conclusory, or palpably incredible are subject to
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summary dismissal.
15
Rule 4, Advisory Committee Notes, 1976 Adoption;
Allegations in a petition
Hendricks v. Vasquez, 908 F.2d at 491.
Further, the Court may dismiss a petition for writ of habeas
16
corpus either on its own motion under Habeas Rule 4, pursuant to
17
the respondent's motion to dismiss, or after an answer to the
18
petition has been filed.
19
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
21
A petition for habeas corpus should not be dismissed without
22
leave to amend unless it appears that no tenable claim for relief
23
can be pleaded were such leave granted.
24
F.2d 13, 14 (9th Cir. 1971).
Jarvis v. Nelson, 440
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II.
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Petitioner alleges that he is an inmate of the California
Background
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State Prison at Corcoran, California (CSP-COR), serving a
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sentence of seventeen years to life imposed in 1992 for a
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1
conviction of second degree murder sustained in the Stanislaus
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County Superior Court.
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California’s Board of Parole Hearings (BPH) made after a hearing
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held on December 7, 2009.
Petitioner challenges a decision of
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Petitioner alleges the following claims in the petition:
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the state court’s failure to issue orders necessary to enable
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Petitioner to procure a copy of his “habeas record” (pet. 4) in
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post-conviction relief proceedings, and the denial of his
9
requests for counsel, were constitutionally inadequate procedures
1)
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that denied him access to the courts and violated his rights to
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due process and to the equal protection of the “some evidence”
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standard; 2) the BPH disregarded a previous order of this Court
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issued in 2009 to afford a timely, constitutionally adequate
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parole suitability hearing and thereby violated Petitioner’s
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right to due process by a) depriving Petitioner of a meaningful
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opportunity to be heard regarding a new psychological evaluation
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and by not reporting and/or documenting errors in a 2009
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psychological report, b) accepting the 2009 report in evidence
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and relying on it in making a decision, c) allowing a 1992 “POR”
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into evidence and relying on it despite its unreliability, d)
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denying parole in the absence of “some evidence” to substantiate
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its finding that Petitioner would pose a risk to public safety or
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current dangerousness, in violation of due process as well as
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California law, e) ignoring evidence that contradicted its
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findings, f) depriving Petitioner of his protected liberty
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interests in parole in violation of Cal. Pen. Code § 3041, g)
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failing to set a parole release date even though both the minimum
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and maximum release dates had passed, and h) relying solely on
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1
unchanging factors of the commitment offense and past substance
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abuse despite evidence of no violence or substance abuse during
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incarceration; 3) the BPH’s denial of parole when the maximum and
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minimum parole release dates had passed violated the Eighth
5
Amendment’s prohibition of cruel and unusual punishment; 4) the
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BPH’s application to Petitioner of Proposition 9, which increases
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the minimum parole deferral period and the default maximum
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deferral period and limits the BPH’s discretion to reduce the
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maximum deferral period, violates the prohibition against ex post
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facto laws because Petitioner was convicted before it took
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effect; and 5) parole was denied on the basis of “underground
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discriminatory practice of SHU status” (id. at 8).
13
(Pet. 1-52.)
Petitioner requests that he be released and the “excess”
14
(pet. at 52) time spent in prison since the parole hearing held
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on August 1, 2007, which was previously declared unconstitutional
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by this Court, be deducted from his parole period; this Court’s
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earlier order regarding a new hearing be enforced; the 1992
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probation officer’s report and the 2009 psychological reports, as
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well as all references to them, be expunged; the application of
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Proposition 9 to Petitioner be prohibited; the California
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Department of Corrections and Rehabilitation (CDCR) and the BPH
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be ordered to cease the discriminatory practice of denying parole
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to life inmates because of segregated placement; and an
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evidentiary hearing be ordered.
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Reference to the transcript of the parole suitability
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hearing held before a panel of commissioners of the BPH on
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December 7, 2009, reflects that Petitioner appeared before a
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panel of commissioners of the BPH with counsel, who advocated on
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his behalf; further, Petitioner was given an opportunity to
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correct or clarify the record, answered questions from the
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commissioners under oath, and made a personal statement regarding
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his suitability.
5
214-221.)
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him the procedures and his rights concerning the parole hearings,
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and he confirmed that Petitioner or his counsel were given all
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the documentation on the panel’s checklist.
9
54.)
(Doc. 1-1, 130-223, 134, 138, 149-205, 208-14,
Petitioner stated that his counsel had reviewed with
(Id. at 139-40, 153-
Counsel objected to use of the 2009 psychological report
10
because it was prepared so close to the time of the hearing, and
11
because Petitioner declined to participate in the review process,
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he had not had a chance to clarify or address the clinician’s
13
concerns.
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the probation officer’s report used at Petitioner’s sentencing
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because Petitioner did not have an opportunity to read it before
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the judge approved it, and to Petitioner’s having been validated
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as a prison gang member.
18
(Id. at 141-44.)
There was also objection to use of
(Id. at 145-46.)
Petitioner was present when the panel announced the reasons
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for its finding that Petitioner was unsuitable for parole and
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would not be considered again for four years because he would
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pose an unreasonable risk of danger to society or a threat to
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public safety if released from prison, which included
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Petitioner’s extensive and serious misconduct while in prison,
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which caused concern that Petitioner could not follow the rules
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and conditions of parole; the commitment offense, in which
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Petitioner inflicted without any apparent motive thirteen stab
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wounds, including wounds to the back of a vulnerable, unarmed,
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intoxicated victim; Petitioner’s criminal history and unstable
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1
social history; his failure on previous grants of probation and
2
parole; a psychological report of 2009 which was not totally
3
supportive of release; failure to participate sufficiently in
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beneficial self-help concerning substance abuse; and his attitude
5
towards the crime, including denying culpability for the offense
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and lack of insight into the factors causing his criminal
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conduct.
(Id. at 224-34, 205-07.)
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III.
9
Because the petition was filed after April 24, 1996, the
Denial of Access to the Courts
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effective date of the Antiterrorism and Effective Death Penalty
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Act of 1996 (AEDPA), the AEDPA applies in this proceeding.
12
v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008
13
(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
14
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
18
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).
21
Title 28 U.S.C. § 2254 provides in pertinent part:
22
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim–
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(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
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(2) resulted in a decision that was based on an
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Lindh
1
2
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
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Clearly established federal law refers to the holdings, as
4
opposed to the dicta, of the decisions of the Supreme Court as of
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the time of the relevant state court decision.
6
Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v.
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Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S.
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362, 412 (2000).
9
principles set forth by the Supreme Court at the pertinent time.
10
11
Cullen v.
It is thus the governing legal principle or
Lockyer v. Andrade, 538 U.S. 71-72.
To the extent that Petitioner complains of the state court’s
12
procedures of failing to order prison authorities to copy a
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record of Petitioner’s parole proceedings for the purpose of
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permitting Petitioner to bring a petition for writ of habeas
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corpus, the Court notes preliminarily that the documentation
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submitted in support of the petition reveals that Petitioner
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received a copy of the proceedings, and the allegedly offensive
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prison rule or policy that limited the provision of copies was
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repealed.
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moot in the sense that this Court could not order any effective
21
relief.
(Id. at 46-50.)
It thus appears that the claim is
22
Further, Petitioner has not cited any authority, and the
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Court is aware of none, that Petitioner is entitled to counsel in
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a state court habeas proceeding for review of a denial of parole.
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In any event, Petitioner’s claim is not cognizable in this
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proceeding.
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state issue that does not rise to the level of a federal
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constitutional violation.
Federal habeas relief is not available to retry a
Wilson v. Corcoran, 562 U.S. — , 131
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1
S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68
2
(1991).
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cognizable in federal habeas corpus.
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616, 623 (9th Cir. 2002).
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habeas relief is not available to redress procedural errors in
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the state collateral review process.
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923, 939 (9th Cir. 1998) (claim concerning the alleged bias of a
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judge in a second post-conviction proceeding for relief);
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Carriger v. Stewart, 95 F.3d 755, 763 (9th Cir. 1996), vacated on
Alleged errors in the application of state law are not
Souch v. Schiavo, 289 F.3d
Thus, it is established that federal
Ortiz v. Stewart, 149 F.3d
10
other grounds, Carriger v. Stewart, 132 F.3d 463 (1997) (Brady
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claim in post-conviction proceedings); Franzen v. Brinkman, 877
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F.2d 26, 26 (9th Cir. 1989) (claim that a state court’s delay in
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deciding a petition for post-conviction relief violated due
14
process rights).
15
Further, to the extent that Petitioner contends that the
16
rule obstructed his access to the courts, Petitioner’s complaint
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concerns not matters that affect the legality or duration of his
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confinement, but rather the conditions of his confinement.
19
established that a habeas corpus petition is the correct method
20
for a prisoner to challenge the legality or duration of his
21
confinement.
22
(quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973));
23
Advisory Committee Notes to Habeas Rule 1, 1976 Adoption.
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contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is
25
the proper method for a prisoner to challenge the conditions of
26
that confinement.
27
(1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574;
28
Advisory Committee Notes to Habeas Rule 1, 1976 Adoption.
It is
Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991)
In
McCarthy v. Bronson, 500 U.S. 136, 141-42
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1
Therefore, Petitioner’s claim concerning access to the
2
courts must be dismissed.
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pleading is based on the nature of the claim, Petitioner could
4
not state a tenable claim of denial of access to the courts if
5
leave to amend were granted.
6
Because the defect in Petitioner’s
Accordingly, it will be recommended that the claim be
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dismissed without leave to amend.
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by filing a civil rights complaint pursuant to 42 U.S.C. § 1983.
9
IV.
10
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Petitioner may bring his claim
Absence of Some Evidence to Support the Decision
A.
Due Process
To the extent that Petitioner complains that the absence of
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“some evidence” to support the BPH’s finding violated his right
13
to due process of law, Petitioner fails to state a tenable due
14
process claim.
15
The Supreme Court has characterized as reasonable the
16
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
18
the Fourteenth Amendment Due Process Clause, which in turn
19
requires fair procedures with respect to the liberty interest.
20
Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011).
21
However, the procedures required for a parole determination
22
are the minimal requirements set forth in Greenholtz v. Inmates
23
of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1
24
1
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27
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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
9
1
Swarthout v. Cooke, 131 S.Ct. 859, 862.
2
rejected inmates’ claims that they were denied a liberty interest
3
because there was an absence of “some evidence” to support the
4
decision to deny parole.
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6
7
8
9
10
11
12
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.)
13
Swarthout, 131 S.Ct. 859, 862.
14
petitioners had received the process that was due as follows:
15
16
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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18
That should have been the beginning and the end of
the federal habeas courts’ inquiry into whether
[the petitioners] received due process.
19
Swarthout, 131 S.Ct. at 862.
The Court in Swarthout expressly
20
noted that California’s “some evidence” rule is not a substantive
21
federal requirement, and correct application of California’s
22
“some evidence” standard is not required by the federal Due
23
24
25
26
27
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interest of a parolee. Id. at 9. Further, the discretionary decision to
release one on parole does not involve retrospective 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.
10
1
2
Process Clause.
Id. at 862-63.
Here, Petitioner asks this Court to engage in the very type
3
of analysis foreclosed by Swarthout.
4
facts that point to a real possibility of constitutional error or
5
that otherwise would entitle Petitioner to habeas relief because
6
California’s “some evidence” requirement is not a substantive
7
federal requirement.
8
support the denial of parole is not within the scope of this
9
Court’s habeas review under 28 U.S.C. § 2254.
10
Petitioner does not state
Review of the record for “some evidence” to
Petitioner cites state law concerning the appropriate weight
11
or significance to be given to evidence that was before the BPH.
12
Petitioner further contends that the BPH denied due process by
13
relying on the commitment offense and past substance abuse
14
instead of weighing other evidence that tended to show that
15
Petitioner had not committed violent offenses or engaged in
16
substance abuse in prison.
17
or claims rest on state law, they are not cognizable on federal
18
habeas corpus.
19
state issue that does not rise to the level of a federal
20
constitutional violation.
21
S.Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68
22
(1991).
23
cognizable in federal habeas corpus.
24
616, 623 (9th Cir. 2002).
25
26
27
28
To the extent that Petitioner’s claim
Federal habeas relief is not available to retry a
Wilson v. Corcoran, 562 U.S. — , 131
Alleged errors in the application of state law are not
Souch v. Schiavo, 289 F.3d
Accordingly, Petitioner’s due process claim must be
dismissed.
Because the defect in the claim proceeds from the nature of
the claim and not a dearth of factual allegations, it does not
11
1
appear that Petitioner could state a tenable due process claim
2
concerning the evidence if leave to amend were granted.
3
will be recommended that the claim be dismissed without leave to
4
amend.
5
6
B.
Thus, it
Equal Protection
Petitioner alleges generally that the failure to make or
7
order copies of the record of his parole proceedings for him
8
deprived him of the equal protection of the laws.
9
Prisoners are protected under the Equal Protection Clause of
10
the Fourteenth Amendment from invidious discrimination based on
11
race, religion, or membership in a protected class subject to
12
restrictions and limitations necessitated by legitimate
13
penological interests.
14
(1974); Bell v. Wolfish, 441 U.S. 520, 545-46 (1979).
15
Protection Clause essentially directs that all persons similarly
16
situated should be treated alike.
17
Cleburne Living Center, 473 U.S. 432, 439 (1985).
18
equal protection are shown when a respondent intentionally
19
discriminates against a petitioner based on membership in a
20
protected class, Lee v. City of Los Angeles, 250 F.3d 668, 686
21
(9th Cir. 2001), or when a respondent intentionally treats a
22
member of an identifiable class differently from other similarly
23
situated individuals without a rational basis, or a rational
24
relationship to a legitimate state purpose, for the difference in
25
treatment, Village of Willowbrook v. Olech, 528 U.S. 562, 564
26
(2000); Engquist v. Oregon Department of Agriculture, 553 U.S.
27
591, 601-02 (2008).
28
Wolff v. McDonnell, 418 U.S. 539, 556
The Equal
City of Cleburne, Texas v.
Violations of
Here, Petitioner has not alleged that membership in a
12
1
protected class was the basis of any alleged discrimination.
2
Petitioner has not alleged that there was any invidiousness or
3
any intentional treatment of Petitioner that was different from
4
treatment of any similarly situated individuals, or that any such
5
treatment lacked a rational basis, or a rational relationship to
6
a legitimate state purpose, for the difference in treatment.
7
Instead, Petitioner premises his claim upon the absence of
8
evidence to support the suitability decision.
9
It may be that Petitioner is arguing that he was denied the
10
equal protection of the laws because under the circumstances of
11
his commitment offense and his personal history, he presented no
12
risk to society, and yet he was denied release even though he had
13
served over twenty years for second degree murder.
14
may be attempting to argue that he has served a longer sentence
15
than some prisoners who have been convicted of more serious
16
offenses.
17
Petitioner
However, Petitioner has not alleged or shown that with
18
respect to all pertinent factors of parole suitability, he is
19
similarly situated with others who may have served less time
20
after conviction of murder.
21
Legislation that discriminates based on characteristics
22
other than race, alienage, national origin, and sex is presumed
23
to be valid and need only be rationally related to a legitimate
24
state interest in order to survive an equal protection challenge.
25
City of Cleburne, 473 U.S. at 440.
26
for parole are not a suspect class entitled to heightened
27
scrutiny.
28
1989) (prisoners not a suspect class).
Prisoners who are eligible
See, Mayner v. Callahan, 873 F.2d 1300, 1302 (9th Cir.
13
Furthermore, public
1
safety is a legitimate state interest.
2
158 F.3d 460, 461 (9th Cir. 1998) (health and safety are
3
legitimate state interests).
4
suitability for parole is dependent upon the effect of the
5
prisoner’s release on the public safety.
6
§ 3041(b) (mandating release on parole unless the public safety
7
requires a more lengthy period of incarceration).
8
parole system is thus both intended and applied to promote the
9
legitimate state interest of public safety.
See, Webber v. Crabtree,
Under California law, a prisoner’s
Cal. Pen. Code
California’s
See, Webber v.
10
Crabtree, 158 F.3d at 461.
11
suggested how the decision in the present case could have
12
constituted a violation of equal protection of the laws.
13
Petitioner has not shown or even
Further, the Court notes that parole consideration is
14
discretionary and does not provide the basis of a fundamental
15
right.
16
1989).
17
18
19
Mayner v. Callahan, 873 F.2d 1300, 1301-02 (9th Cir.
The Court concludes that Petitioner’s claim should be
dismissed.
The full record of Petitioner’s parole proceedings is before
20
the Court and reveals no facts to support a conclusion that if
21
leave to amend were granted, Petitioner could state a tenable
22
equal protection claim.
23
Petitioner’s equal protection claim be dismissed without leave to
24
amend.
Thus it will be recommended that
25
V.
26
In a previous proceeding in this Court, the BPH was ordered
Miscellaneous Due Process Claims
27
in 2009 to give Petitioner a new parole hearing because
28
Petitioner had been ill on the date of a parole hearing that was
14
1
held in August 2007.
2
argues that this Court’s order was disregarded because the
3
rehearing he received pursuant to that direction, namely, the
4
hearing held in December 2009 that is challenged in this
5
proceeding, violated his right to due process of law in various
6
respects.
7
(Pet., doc. 1, 22, 143-54.)
Petitioner
Petitioner complains that he was deprived of a meaningful
8
opportunity to be heard regarding a psychological evaluation in
9
which he refused to participate because it was set about two
10
weeks before, and thus too close to, the parole rehearing date as
11
it was initially set.
12
right to have a psychological evaluation provided at any
13
particular time or with any particular period of notice in
14
relation to a parole hearing.
15
that any prejudice resulted from the timing of the evaluation, in
16
which Petitioner declined to participate.
17
However, there is no federally recognized
Further, Petitioner has not shown
Petitioner further contends that the BPH failed to report or
18
document errors in the report of the 2009 psychological
19
evaluation and erred in relying on it because it was unreliable.
20
Petitioner complains that the BPH ignored evidence that
21
contradicted its findings, wrongly considered and relied upon the
22
unreliable report of the probation officer that was prepared for
23
the sentencing hearing held in connection with the commitment
24
offense, and wrongly relied on the unchanging factor of the
25
commitment offense and Petitioner’s history of criminal behavior
26
and substance abuse.
27
Petitioner is asking this Court to review the state court’s
28
application of the “some evidence” standard, which is not within
With respect to these allegations,
15
1
the scope of this Court’s review in a proceeding pursuant to
2
§ 2254.
3
To the extent the Petitioner relies on state law in
4
connection with his contention that the finding of unsuitability
5
was not supported by some evidence, Petitioner likewise fails to
6
state a claim that is cognizable in this proceeding.
7
With respect to procedural due process, the record reflects
8
that Petitioner or his counsel were given access to the pertinent
9
records in advance, were allowed to speak at the hearing and to
10
contest the evidence against Petitioner, and Petitioner was
11
notified as to the reasons why parole was denied.
12
Petitioner received all process that was due.
13
14
Thus,
Accordingly, it will be recommended that these claims be
dismissed without leave to amend.
15
VI.
16
Petitioner argues that his right to due process of law was
The Passing of Petitioner’s Release Dates
17
violated by the failure to release him on parole even though both
18
his minimum and maximum release dates had passed.
19
argues that this denied him his liberty interest guaranteed by
20
Cal. Pen. Code § 3041.
21
Petitioner
To the extent that Petitioner relies on state law,
22
Petitioner’s claim should be dismissed without leave to amend as
23
not cognizable in this proceeding.
24
Petitioner contends that the failure to release him violated
25
the Eight Amendment’s prohibition of cruel and unusual
26
punishment.
27
It is established that there is no right under the Federal
28
Constitution to be conditionally released before the expiration
16
1
of a valid sentence, and the states are under no duty to offer
2
parole to their prisoners.
3
A criminal sentence that is “grossly disproportionate” to the
4
crime for which a defendant is convicted may violate the Eighth
5
Amendment.
6
v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring);
7
Rummel v. Estelle, 445 U.S. 263, 271 (1980).
8
capital punishment context, the Eighth Amendment prohibits only
9
sentences that are extreme and grossly disproportionate to the
Swarthout v. Cooke, 131 S.Ct. at 862.
Lockyer v. Andrade, 538 U.S. 63, 72 (2003); Harmelin
Outside of the
10
crime.
11
(quoting Harmelin v. Michigan, 501 U.S. 957, 1001, (1991)
12
(Kennedy, J., concurring)).
13
rare” and occur in only “extreme” cases.
14
U.S. at 72-73; Rummel, 445 U.S. at 272.
15
does not exceed statutory maximums, it will not be considered
16
cruel and unusual punishment under the Eighth Amendment.
17
United States v. Mejia-Mesa, 153 F.3d 925, 930 (9th Cir.1998);
18
United States v. McDougherty, 920 F.2d 569, 576 (9th Cir. 1990).
United States v. Bland, 961 F.2d 123, 129 (9th Cir. 1992)
Such instances are
“exceedingly
Lockyer v. Andrade, 538
So long as a sentence
See
19
In California, Petitioner’s offense, second degree murder,
20
is generally punished by imprisonment in the state prison for a
21
term of fifteen (15) years to life.
22
Pursuant to California law, it is established that an
23
indeterminate life sentence is in legal effect a sentence for the
24
maximum term of life.
25
(1969).
26
life term in state prison is not entitled to release on parole
27
until he is found suitable for such release by the Board of
28
Parole Hearings (previously, the Board of Prison Terms).
Cal. Pen. Code § 190(a).
People v. Dyer, 269 Cal.App.2d 209, 214
Generally, a convicted person serving an indeterminate
17
Cal.
1
Pen. Code § 3041(b); Cal. Code of Regs., tit. 15, § 2402(a).
2
Under California’s Determinate Sentencing Law, an inmate such as
3
Petitioner who is serving an indeterminate sentence for murder
4
may serve up to life in prison, but he does not become eligible
5
for parole consideration until the minimum term of confinement is
6
served.
7
actual confinement period of a life prisoner is determined by an
8
executive parole agency.
9
10
11
In re Dannenberg, 34 Cal.4th 1061, 1078 (2005).
The
Id. (citing Cal. Pen. Code § 3040).
Thus, Petitioner’s sentence has not exceeded the statutory
maximum.
Accordingly, Petitioner has not stated facts that would
12
entitle him to relief in a proceeding pursuant to § 2254 under
13
the Eighth Amendment’s prohibition against cruel and unusual
14
punishment.
15
does not appear that Petitioner could allege a tenable cruel and
16
unusual punishment claim.
17
18
In view of the pertinent state statutory scheme, it
Therefore, it will be recommended that Petitioner’s cruel
and unusual punishment claim be dismissed without leave to amend.
19
VII.
20
Petitioner argues that Proposition 9 was applied to him in
21
22
Ex Post Facto
violation of the prohibition against ex post facto laws.
Petitioner’s contention concerns California’s Proposition 9,
23
the “Victims’ Bill of Rights Act of 2008: Marsy’s Law,” which on
24
November 4, 2008, effected an amendment of Cal. Pen. Code
25
§ 3041.5(b)(3) that resulted in a lengthening of the periods
26
between parole suitability hearings.
27
28
The Constitution provides, “No State shall... pass any... ex
post facto Law.”
U.S. Const. art I, § 10.
18
The Ex Post Facto
1
Clause prohibits any law which: 1) makes an act done before the
2
passing of the law, which was innocent when done, criminal; 2)
3
aggravates a crime and makes it greater than it was when it was
4
committed; 3) changes the punishment and inflicts a greater
5
punishment for the crime than when it was committed; or 4) alters
6
the legal rules of evidence and requires less or different
7
testimony to convict the defendant than was required at the time
8
the crime was committed.
9
(2000).
Carmell v. Texas, 529 U.S. 513, 522
Application of a state regulation retroactively to a
10
defendant violates the Ex Post Facto Clause if the new
11
regulations create a “sufficient risk” of increasing the
12
punishment for the defendant’s crimes.
13
F.3d 848, 854 (9th Cir. 2003) (citing Cal. Department of
14
Corrections v. Morales, 514 U.S. 499, 509 (1995)).
15
or statute does not by its own terms show a significant risk, the
16
claimant must demonstrate, by evidence drawn from the rule's
17
practical implementation by the agency charged with exercising
18
discretion, that its retroactive application will result in a
19
longer period of incarceration than under the earlier rule.
20
Garner v. Jones, 529 U.S. 244, 250, 255 (2000).
21
Himes v. Thompson, 336
When the rule
Previous amendments to Cal. Pen. Code § 3041.5, which
22
initiated longer periods of time between parole suitability
23
hearings, have been upheld against challenges that they violated
24
the Ex Post Facto Clause.
25
Corrections v. Morales, 514 U.S. 499, 509 (1995);
26
Estelle, 886 F.2d 1093, 1097-98 (9th Cir. 1989).
27
has been held that a state law permitting the extension of
28
intervals between parole consideration hearings for all prisoners
See, e.g., California Department of
19
Watson v.
Similarly, it
1
serving life sentences from three to eight years did not violate
2
the Ex Post Facto Clause where expedited parole review was
3
available upon a change of circumstances or receipt of new
4
information warranting an earlier review, and where there was no
5
showing of increased punishment.
6
was no significant risk of extending a prisoner’s incarceration.
7
Garner v. Jones, 529 U.S. at 249.
8
Under such circumstances, there
In Gilman v. Schwarzenegger, 638 F.3d 1101, 1109-11 (9th
9
Cir. 2011), the Ninth Circuit reversed a grant of injunctive
10
relief to plaintiffs in a class action seeking to prevent the
11
board from enforcing Proposition 9's amendments that defer parole
12
consideration.
13
Proposition 9 were noted to be more extensive than those before
14
the Court in Morales and Garner; however, advanced hearings,
15
which would remove any possibility of harm, were available upon a
16
change in circumstances or new information.
17
concluded that in the absence of facts in the record from which
18
it might be inferred that Proposition 9 created a significant
19
risk of prolonging Plaintiffs’ incarceration, the plaintiffs had
20
not established a likelihood of success on the merits on the ex
21
post facto claim.
22
The court noted that the changes wrought by
Id.
The Court
Id. at 1110-11.
This Court may take judicial notice of court records.
Fed.
23
R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333
24
(9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626,
25
635 n.1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir. 1981).
26
The Court takes judicial notice of the docket and specified
27
orders in the class action pending in this district, Gilman v.
28
Fisher, 2:05-cv-00830-LKK-GGH, including the order granting
20
1
motion for class certification filed on March 4, 2009 (Doc. 182,
2
9:7-15), which indicates that the Gilman class is made up of
3
California state prisoners who 1) have been sentenced to a term
4
that includes life, 2) are serving sentences that include the
5
possibility of parole, 3) are eligible for parole, and 4) have
6
been denied parole on one or more occasions.
7
reflects that the Ninth Circuit affirmed the order certifying the
8
class.
9
of the order of May 31, 2012, in which the Court described the
(Docs. 257, 258.)
The docket further
The Court also takes judicial notice
10
case as including in claim 8 challenges to Proposition 9's
11
deferral provisions based on the Ex Post Facto Clause, and the
12
Court denied a motion for judgment on the pleadings with respect
13
to that claim.
14
concerning claim 8 as “all California state prisoners who have
15
been sentenced to a life term with the possibility of parole for
16
an offense that occurred before November 4, 2008.”
17
(Doc. 420, 1-2.)
The Court described the class
(Id. at 2.)
Although Petitioner ultimately seeks release from custody,
18
resolution of Petitioner’s claim might well involve the
19
scheduling of Petitioner’s next suitability hearing and the
20
invalidation of state procedures used to deny parole suitability,
21
matters removed from the fact or duration of confinement.
22
types of claims have been held to be cognizable under 42 U.S.C.
23
§ 1983 as claims concerning conditions of confinement.
24
v. Dotson, 544 U.S. 74, 82 (2005).
Thus, they may fall outside
25
the core of habeas corpus relief.
See, Preiser v. Rodriguez, 411
26
U.S. 475, 485-86 (1973); Nelson v. Campbell, 541 U.S. 637, 643
27
(2004); Muhammad v. Close, 540 U.S. 749, 750 (2004).
28
Such
Wilkinson
Further, the relief Petitioner requests overlaps with the
21
1
relief requested in the Gilman class action.
2
that a plaintiff who is a member of a class action for equitable
3
relief from prison conditions may not maintain an individual suit
4
for equitable relief concerning the same subject matter.
5
Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979).
6
because it is contrary to the efficient and orderly
7
administration of justice for a court to proceed with an action
8
that would possibly conflict with or interfere with the
9
determination of relief in another pending action, which is
10
11
It is established
This is
proceeding and in which the class has been certified.
Here, Petitioner’s own allegations reflect that he qualifies
12
as a member of the class in Gilman.
13
jurisdiction over the same subject matter and may grant the same
14
relief.
15
disposition of its cases with economy of time and effort for both
16
the court and the parties.
17
U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260
18
(9th Cir. 1992).
19
this Court concludes that dismissal of Petitioner’s ex post facto
20
claim in this action is appropriate and necessary to avoid
21
interference with the orderly administration of justice.
22
Crawford v. Bell, 599 F.2d 890, 892-93; see Bryant v. Haviland,
23
2011 WL 23064, *2-*5 (E.D.Cal. Jan. 4, 2011).
The court in Gilman has
A court has inherent power to control its docket and the
Landis v. North American Co., 299
In the exercise of its inherent discretion,
Cf.,
24
A petition for habeas corpus should not be dismissed without
25
leave to amend unless it appears that no tenable claim for relief
26
can be pleaded were such leave granted.
27
F.2d 13, 14 (9th Cir. 1971).
28
petition and the pendency of the Gilman class action, amendment
Jarvis v. Nelson, 440
In view of the allegations of the
22
1
of the petition with respect to the ex post facto claim would be
2
futile.
3
4
Accordingly, it will be recommended that Petitioner’s ex
post facto claim be dismissed without leave to amend.
5
VIII.
6
Petitioner alleges generally that parole was denied on the
Discrimination
7
basis of “underground discriminatory practice of SHU status.”
8
(Pet. 8.)
9
10
This claim is unclear.
The matter of assigning suspected gang affiliates to SHU is
11
not disciplinary, but rather is an administrative strategy to
12
preserve order in the prison and protect safety of all inmates,
13
matters essentially within the administrative discretion of
14
prison authorities.
15
Cir. 1997).
16
that the BPH denied parole based on Petitioner’s status as an
17
administratively segregated inmate who had been validated as a
18
gang member.
19
findings reflects that the BPH considered Petitioner’s efforts to
20
engage in programming in the context of his segregated housing.
21
The BPH concluded that Petitioner continued to display negative
22
behavior while incarcerated, and as a result was placed in
23
special housing where program participation was limited and the
24
ability to demonstrate parole readiness was hampered.
25
noted that Petitioner did complete some self-help programming
26
despite having been in the security housing unit, which was
27
commendable; however, the BPH concluded that Petitioner had not
28
sufficiently participated in beneficial self-help, specifically,
Munoz v. Rowland, 104 F.3d 1096, 1098 (9th
Petitioner has alleged no facts that would indicate
Instead, the statement of reasons for the BPH’s
23
The BPH
1
2
substance abuse programming. (Pet., doc. 1-1, 229-34.)
The record precludes Petitioner from being able to state a
3
tenable claim of discrimination based on Petitioner’s housing
4
status.
5
6
7
8
9
10
Accordingly, it will be recommended that the claim be
dismissed without leave to amend.
In summary, it will be recommended that the petition be
dismissed without leave to amend.
IX.
Certificate of Appealability
Unless a circuit justice or judge issues a certificate of
11
appealability, an appeal may not be taken to the Court of Appeals
12
from the final order in a habeas proceeding in which the
13
detention complained of arises out of process issued by a state
14
court.
15
U.S. 322, 336 (2003).
16
only if the applicant makes a substantial showing of the denial
17
of a constitutional right.
18
petitioner must show that reasonable jurists could debate whether
19
the petition should have been resolved in a different manner or
20
that the issues presented were adequate to deserve encouragement
21
to proceed further.
22
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
23
certificate should issue if the Petitioner shows that jurists of
24
reason would find it debatable whether the petition states a
25
valid claim of the denial of a constitutional right and that
26
jurists of reason would find it debatable whether the district
27
court was correct in any procedural ruling.
28
529 U.S. 473, 483-84 (2000).
28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue
§ 2253(c)(2).
Under this standard, a
Miller-El v. Cockrell, 537 U.S. at 336
24
A
Slack v. McDaniel,
1
In determining this issue, a court conducts an overview of
2
the claims in the habeas petition, generally assesses their
3
merits, and determines whether the resolution was debatable among
4
jurists of reason or wrong.
5
applicant to show more than an absence of frivolity or the
6
existence of mere good faith; however, it is not necessary for an
7
applicant to show that the appeal will succeed.
8
Cockrell, 537 U.S. at 338.
Id.
It is necessary for an
Miller-El v.
9
A district court must issue or deny a certificate of
10
appealability when it enters a final order adverse to the
11
applicant.
12
Rule 11(a) of the Rules Governing Section 2254 Cases.
Here, it does not appear that reasonable jurists could
13
debate whether the petition should have been resolved in a
14
different manner.
15
of the denial of a constitutional right.
16
17
Petitioner has not made a substantial showing
Accordingly, the Court should decline to issue a certificate
of appealability.
18
X.
19
Accordingly, it is RECOMMENDED that:
20
1)
The petition be DISMISSED without leave to amend; and
21
2)
The Court DECLINE to issues a certificate of
22
Recommendations
appealability; and
23
3)
24
These findings and recommendations are submitted to the
25
United States District Court Judge assigned to the case, pursuant
26
to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
27
the Local Rules of Practice for the United States District Court,
28
Eastern District of California.
The Clerk be DIRECTED to close the case.
Within thirty (30) days after
25
1
being served with a copy, any party may file written objections
2
with the Court and serve a copy on all parties.
3
should be captioned “Objections to Magistrate Judge’s Findings
4
and Recommendations.”
5
and filed within fourteen (14) days (plus three (3) days if
6
served by mail) after service of the objections.
7
then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.
8
§ 636 (b)(1)(C).
9
objections within the specified time may waive the right to
Such a document
Replies to the objections shall be served
The Court will
The parties are advised that failure to file
10
appeal the District Court’s order.
11
1153 (9th Cir. 1991).
12
13
Martinez v. Ylst, 951 F.2d
IT IS SO ORDERED.
Dated:
10c20k
August 9, 2012
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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