Charles Danny Chruniak v. Ralf Diaz
Filing
10
FINDINGS and RECOMMENDATIONS Recommending that the 1 Petition for Writ of Habeas Corpus be Dismissed for Failure to State a Cognizable Claim for Relief signed by Magistrate Judge Gary S. Austin on 11/19/2012. Referred to Judge Anthony W. Ishii. Objections to F&R due by 12/26/2012. (Sant Agata, S)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
EASTERN DISTRICT OF CALIFORNIA
9
10
CHARLES DANNY CHRUNIAK,
1:12-CV-01679 AWI GSA HC
11
Petitioner,
12
v.
FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF
HABEAS CORPUS
13
14
RALF DIAZ, Acting Warden,
15
Respondent.
___________________________________/
16
17
18
19
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
On October 4, 2012, Petitioner filed the instant petition for writ of habeas corpus. He
20
challenges the California court decisions upholding a March 2, 2011, decision of the California
21
Board of Parole Hearings (“Board”). He also challenges the Board’s application of parole guidelines
22
as modified by California Proposition 9 (“Marsy’s Law”) at his March 2, 2011.
23
A. Preliminary Review of Petition
24
Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:
25
If it plainly appears from the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must dismiss the petition and direct the clerk
to notify the petitioner.
26
27
The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of
28
habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to
U .S. D istrict C ourt
E. D . C alifornia
1
1
dismiss, or after an answer to the petition has been filed. See Herbst v. Cook, 260 F.3d 1039 (9th
2
Cir.2001). A petition for habeas corpus should not be dismissed without leave to amend unless it
3
appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson,
4
440 F.2d 13, 14 (9th Cir. 1971). The Court will review the instant petition pursuant to its authority
5
under Rule 4.
6
B. Failure to State a Cognizable Ground for Relief
7
On January 24, 2011, the Supreme Court issued its opinion in Swarthout v. Cooke, ___
8
U.S.___, 131 S.Ct. 859, 2011 WL 197627 (2011), and held that “the responsibility for assuring that
9
the constitutionally adequate procedures governing California’s parole system are properly applied
10
rests with California courts, and is no part of the [federal court’s] business.” Id. at 863. The Supreme
11
Court stated that a federal habeas court’s inquiry into whether a prisoner denied parole received due
12
process is limited to determining whether the prisoner “was allowed an opportunity to be heard and
13
was provided a statement of the reasons why parole was denied.” Id., at 862, citing, Greenholtz v.
14
Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979). According to the Supreme
15
Court, this is “the beginning and the end of the federal habeas courts’ inquiry into whether [the
16
prisoner] received due process.” Swarthout, 131 S.Ct. at 862. In this case, Petitioner does not claim
17
that he was denied an opportunity to be heard or that he was not provided a statement of reasons for
18
parole denial. Moreover, it is clear from the transcript of the hearing that Petitioner was present with
19
his attorney, was provided with an opportunity to be heard, and was provided a statement of reasons
20
for the denial. (Petition, Ex. B.) Therefore, to the extent Petitioner challenges the decision of the
21
Board, his claims are not cognizable.
22
Nevertheless, Petitioner claims the Board violated his constitutional rights in setting his next
23
hearing. He contends that the 2008 amendment to Cal. Penal Code § 3041.5(b), also known as
24
Marsy’s Law, was applied to him retroactively in violation of the Ex Post Facto Clause. He states
25
that prior to the application of Marsy’s Law in his case, he was only subject to parole review
26
deferrals of one year; however, his parole hearing was postponed following his March 2, 2011,
27
hearing for a period of three years.
28
The Ex Post Facto Clause of the United States Constitution prohibits the states from passing
U .S. D istrict C ourt
E. D . C alifornia
2
1
any “ex post facto law,” a prohibition that “is aimed at laws ‘that retroactively alter the definition of
2
crimes or increase the punishment for criminal acts.’” Cal. Dept. of Corrections v. Morales, 514 U.S.
3
499, 504 (1995); see also Weaver v. Graham, 450 U.S. 24, 28 (1981) (providing that “[t]he ex post
4
facto prohibition forbids the Congress and the States to enact any law ‘which imposes a punishment
5
for an act which was not punishable at the time it was committed; or imposes additional punishment
6
to that then prescribed.’”). The United States Supreme Court has held that “[r]etroactive changes in
7
laws governing parole of prisoners, in some instances, may be violative of this precept.” Garner v.
8
Jones, 529 U.S. 244, 250 (2000).
9
On November 4, 2008, California voters passed Proposition 9, the “Victims’ Bill of Rights
10
Act of 2008: Marsy’s Law,” which, inter alia, altered the frequency of parole hearings for prisoners
11
not found suitable for parole. Cal. Penal Code § 3041.5; Cal. Const., art. I, § 28. Prior to the
12
passage of Proposition 9, in the event a prisoner was determined unsuitable for parole, a subsequent
13
parole hearing would be held annually thereafter. Cal Penal Code § 3041.5(b)(2) (2008). If the
14
parole board determined it was not reasonable to expect parole would be granted within the next
15
year, it could defer rehearing for two years. Id. If the prisoner was convicted of murder and it was
16
not reasonable to expect he/she would be granted parole within the year, the board could select a
17
rehearing term of up to five years. Id. Proposition 9 changed the frequency of subsequent parole
18
hearings as follows:
19
The board shall schedule the next hearing, after considering the views and interests of
the victim, as follows:
20
21
22
23
24
(A) Fifteen years after any hearing at which parole is denied, unless the board finds by
clear enumerated in subdivision (a) of Section 3041 are such that consideration of the public
and victim’s safety does not require a more lengthy period of incarceration for the prisoner
than 10 additional years.
(B) Ten years after any hearing at which parole is denied, unless the board finds by
clear and convincing evidence that . . . consideration of the public and victim’s safety does
not require a more lengthy period of incarceration for the prisoner than seven additional
years.
25
26
27
(C) Three years, five years, or seven years after any hearing at which parole is denied,
because . . . consideration of the public and victim’s safety requires a more lengthy period of
incarceration for the prisoner, but does not require a more lengthy period of incarceration for
the prisoner and convincing evidence that the criteria relevant to the setting of parole release
dates than seven additional years.
28
U .S. D istrict C ourt
E. D . C alifornia
3
1
2
Cal. Penal Code § 3041.5(b)(3) (November 4, 2008).
Petitioner claims an ex post facto violation occurred when Marsy’s Law was applied to him
3
retroactively. Prior to passage of Marsy’s Law, Petitioner was eligible for a parole review hearing in
4
one year. Petitioner asserts that with the application of Marsy’s Law, he has been deferred a
5
subsequent parole hearing for three years. Nevertheless, the Court does not find an ex post facto
6
violation.
7
In Morales, a California statute changed the frequency of reconsideration hearings for parole
8
from every year to up to three years for prisoners convicted of more than one murder. 514 U.S. at
9
503. The Supreme Court determined the statute did not violate ex post facto because the retroactive
10
application of the change in California law did not create “‘a sufficient risk of increasing the measure
11
of punishment attached to the covered crimes.’” Garner v. Jones, 529 U.S. 244, 250 (2000), quoting,
12
Morales, 514 U.S. at 509. The Supreme Court noted that the law “did not modify the statutory
13
punishment for any particular offenses,” it did not “alter the standards for determining either the
14
initial date of parole eligibility or an inmate’s suitability for parole,” and it “did not change the basic
15
structure of California’s parole law.” Garner, 529 U.S. at 250, citing, Morales, 514 U.S. at 507.
16
Likewise, in this case Proposition 9 did not modify the punishment for Petitioner’s offenses of
17
robbery, oral copulation, sodomy and rape with force; it did not alter his initial parole eligibility date;
18
and it did not change the basic structure of California’s parole law. The board must consider the
19
same factors in determining parole suitability as before. See Cal. Penal Code 3041(b); Cal. Code
20
Regs., tit. 15, § 2402(b).
21
Nevertheless as noted above, in Garner the Supreme Court found that “[r]etroactive changes
22
in laws governing parole of prisoners, in some instances, may be violative of this precept.” 529 U.S.
23
at 250. In Garner, the Supreme Court determined that an amendment to Georgia’s parole law did not
24
violate ex post facto even where the frequency of reconsideration hearings was changed from every
25
three years to every eight years. Id. at 256. The Court held that it could not conclude that the change
26
in Georgia law lengthened the prisoner’s time of actual imprisonment because Georgia law vested
27
broad discretion with the parole board to set a prisoner’s date of rehearing. Id. at 254-56. In
28
addition, the Court found it significant that the parole board’s own policies permitted “expedited
U .S. D istrict C ourt
E. D . C alifornia
4
1
parole reviews in the event of a change in [a prisoner’s] circumstance or where the Board receives
2
new information that would warrant a sooner review.” Id. at 254 [Citation.].
3
Here, the California parole board is still vested with broad discretion in selecting a date of
4
rehearing from three years to 15 years. While it is true that Petitioner is no longer eligible for a
5
parole review hearing annually as previously determined by the Board, and a date must be set at the
6
minimum of three years, the Board retains the discretion, as did the Georgia parole board in Garner,
7
to advance a hearing at any time should there be a change in circumstances. Pursuant to Cal. Penal
8
Code § 3041.5(b)(4), the Board
9
10
11
may in its discretion, after considering the views and interests of the victim, advance a
hearing set pursuant to paragraph (3) to an earlier date, when a change in circumstances or
new information establishes a reasonable likelihood that consideration of the public and
victim’s safety does not require the additional period of incarceration of the prisoner provided
in paragraph (3).
12
Based on the Supreme Court’s holding in Garner, this Court does not find, and Petitioner has not
13
demonstrated, that Proposition 9 creates more than just a “speculative and attenuated possibility of
14
producing the prohibited effect of increasing the measure of punishment for covered crimes.”
15
Garner, 529 U.S. at 251, quoting, Morales, 514 U.S. at 509. In the case of Gilman v.
16
Schwarzenegger, 638 F.3d 1101 (9th Cir.2010), the Ninth Circuit determined that based on the
17
current record, Marsy’s Law does not create a significant risk of prolonging incarceration on any of
18
the theories asserted.
19
20
21
22
23
24
For the above reasons, Petitioner's challenges to the Board’s application of Marsy’s Law in
his case must fail.
RECOMMENDATION
Accordingly, the Court HEREBY RECOMMENDS that the petition for writ of habeas corpus
be DISMISSED for failure to state a cognizable claim for relief.
This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii, United
25
States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule
26
304 of the Local Rules of Practice for the United States District Court, Eastern District of California.
27
Within thirty (30) days after date of service of this Findings and Recommendation, Petitioner may
28
file written objections with the Court. Such a document should be captioned “Objections to
U .S. D istrict C ourt
E. D . C alifornia
5
1
Magistrate Judge’s Findings and Recommendation.” The Finding and Recommendation will then be
2
submitted to the District Court for review of the Magistrate Judge’s ruling pursuant to 28 U.S.C. §
3
636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified time may
4
waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
5
1991).
6
7
8
IT IS SO ORDERED.
Dated:
6i0kij
November 19, 2012
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
U .S. D istrict C ourt
E. D . C alifornia
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?