Abdalla v. Sherman

Filing 6

ORDER DISMISSING the Petition for Writ of Habeas Corpus without Leave to Amend for Failure to State Facts Warranting Relief 1 ; ORDER DECLINING to Issue a Certificate of Appealability; ORDER DIRECTING the Clerk to Close the Action, signed by Magistrate Judge Barbara A. McAuliffe on 1/28/2015. CASE CLOSED (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 MOHAMED ABDALLA,

Case No. 1:14-cv-02070-BAM-HC

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ORDER DISMISSING THE PETITION FOR
WRIT OF HABEAS CORPUS WITHOUT LEAVE
TO AMEND FOR FAILURE TO STATE FACTS
WARRANTING RELIEF (DOC. 1),
DECLINING TO ISSUE A CERTIFICATE
OF APPEALABILITY, AND DIRECTING
THE CLERK TO CLOSE THE ACTION

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Petitioner,
v.

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STU SHERMAN, Warden,
Respondent.

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Petitioner is a state prisoner proceeding pro se with a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the
jurisdiction of the United States Magistrate Judge to conduct all
further proceedings in the case, including the entry of final
judgment, by manifesting Petitioner’s consent in a writing signed by
Petitioner and filed on January 16, 2015.

Pending before the Court

is the petition, which was filed on December 29, 2014.
I.

Screening the Petition

Because the petition was filed after April 24, 1996, the
effective date of the Antiterrorism and Effective Death Penalty Act
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1 of 1996 (AEDPA), the AEDPA applies to the petition.

Lindh v.

2 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484,
3 1499 (9th Cir. 1997).
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Rule 4 of the Rules Governing ' 2254 Cases in the United States

5 District Courts (Habeas Rules) requires the Court to make a
6 preliminary review of each petition for writ of habeas corpus. The
7 Court must summarily dismiss a petition "[i]f it plainly appears
8 from the petition and any attached exhibits that the petitioner is
9 not entitled to relief in the district court....@

Habeas Rule 4;

10 O=Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also
11 Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990).

Habeas Rule

12 2(c) requires that a petition 1) specify all grounds of relief
13 available to the Petitioner; 2) state the facts supporting each
14 ground; and 3) state the relief requested.

Notice pleading is not

15 sufficient; rather, the petition must state facts that point to a
16 real possibility of constitutional error.

Rule 4, Advisory

17 Committee Notes, 1976 Adoption; O=Bremski v. Maass, 915 F.2d at 420
18 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)).
19 Allegations in a petition that are vague, conclusory, or palpably
20 incredible are subject to summary dismissal.

Hendricks v. Vasquez,

21 908 F.2d at 491.
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Further, the Court may dismiss a petition for writ of habeas

23 corpus either on its own motion under Habeas Rule 4, pursuant to the
24 respondent's motion to dismiss, or after an answer to the petition
25 has been filed.

Advisory Committee Notes to Habeas Rule 8, 1976

26 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir.
27 2001).
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A petition for habeas corpus should not be dismissed without
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1 leave to amend unless it appears that no tenable claim for relief
2 can be pleaded were such leave granted.

Jarvis v. Nelson, 440 F.2d

3 13, 14 (9th Cir. 1971).
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Here, Petitioner, an inmate of the California Substance Abuse

5 Treatment Facility at Corcoran, California, alleges that he is
6 serving an indeterminate sentence of twenty years to life imposed in
7 the Stanislaus County Superior Court on December 10, 1992, for
8 second degree murder.

Petitioner complains of the decision of

9 California’s Board of Parole Hearings (BPH), made on August 9, 2013,
10 denying Petitioner’s request for advancement of his parole hearing.
11 (Pet., doc. 1 at 1, 21.)

Petitioner challenges Proposition 9, also

12 referred to as Marsy’s Law, which after Petitioner’s conviction
13 amended Cal. Pen. Code § 3041.5 and resulted in the lengthening of
14 the period between Petitioner’s parole suitability hearings from a
15 previous maximum of three years to five years.

Petitioner alleges

16 that Proposition 9 constitutes a bill of attainder and thus violates
17 Article I, sections 9 and 10 of the Constitution.
18 immediate release.

Petitioner seeks

(Id. at 5, 15.)

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II.

Bill of Attainder

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Petitioner contends that Proposition 9 was passed with the

21 intent to impose increased punishment on an identifiable class of
22 persons convicted of murder without the benefit of a judicial trial.
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Art. I, § 9, applicable to Congress, provides that “(n)o Bill

24 of Attainder... shall be passed.”

Art. 1, § 10, applicable to the

25 states, provides that “(n)o State shall... pass any Bill of
26 Attainder....”

The key features of a bill of attainder are that the

27 law 1) legislatively determines guilt, and 2) inflicts punishment
28 upon an identifiable individual, and 3) does so without the
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1 protections of a judicial trial.

Nixon v. Administrator of Gen.

2 Servs., 433 U.S. 425, 468-69 (1977).

Three inquiries are required

3 to determine whether a statute inflicts punishment: 1) whether the
4 challenged statute falls within the historical meaning of
5 legislative punishment; 2) whether the statute, “viewed in terms of
6 the type and severity of burdens imposed, reasonably can be said to
7 further nonpunitive legislative purposes”; and 3) whether the
8 legislative record “evinces a congressional intent to punish.”
9 Selective Serv. Sys. v. Minnesota Pub. Interest Research Group, 468
10 U.S. 841, 846–47 (1984) (quoting Nixon, 433 U.S. at 473, 475–476,
11 478).
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Here, Petitioner has not alleged facts that could establish

13 that as to Petitioner, Proposition 9 is a bill of attainder.
14 Petitioner’s guilt of second degree murder, the commitment offense,
15 was determined at a judicial trial.

(Doc. 1, 1-2.)

Further,

16 Petitioner is serving an indeterminate life sentence; regardless of
17 when his future parole suitability hearings are held, his sentence
18 remains the same.

Thus, Proposition 9 did not inflict punishment.

19 Accord, Down v. Haviland, no. 2:09–cv–2794 TLN EFB P, 2013 WL
20 3745460, at *9, n.4 (E.D.Cal. July 15, 2013) (unpublished); Booker
21 v. Swarthout, no. 2:11–cv–0050 KJM DAD P, 2012 WL 4364238 at *6
22 (E.D.Cal. Sept. 20, 2012) (unpublished); Campo v. Swarthout, no.
23 2:11–cv–1622 LKK DAD P, 2012 WL 4364268, at *5 (E.D.Cal. Sept. 20,
24 2012) (unpublished), adptd. Campo v. Swarthout, 2013 WL 5962930
25 (E.D.Cal. Feb. 11, 2013).
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Petitioner has not cited any decision of the United States

27 Supreme Court supporting his claim that Proposition 9 imposed
28 additional punishment for his crime.
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There is no constitutional or

1 inherent right of a convicted person to be conditionally released
2 before the expiration of a valid sentence.

Greenholtz v. Inmates of

3 Neb. Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100,
4 2104, 60 L.Ed.2d 668 (1979).

Petitioner cites United States v.

5 Brown, 381 U.S. 337 (1977), which held that a statute making it a
6 crime for a member of the Communist Party to serve as the officer of
7 a labor union was a bill of attainder because it imposed punishment
8 on easily identifiable members of a class.

However, the intent to

9 impose criminal punishment that was evident in Brown is lacking
10 here.

Petitioner also cites Flemming v. Nestor, 363 U.S. 603

11 (1960), in which the Court found that a law withdrawing Social
12 Security benefits from aliens ordered deported on certain grounds
13 did not constitute a bill of attainder because there was no
14 intention to impose a punishment.

Petitioner’s case authority does

15 not warrant a different result in the present case.
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In summary, the state court decided that Proposition 9 did not

17 constitute a bill of attainder.

(Doc. 1 at 44, 38, 41.)

In view of

18 the clearly established federal law set forth above, the state
19 court’s decision was not objectively unreasonable.

It was not

20 contrary to, or an unreasonable application of clearly established
21 federal law within the meaning of 28 U.S.C. § 2254(d)(1)(a).
22 Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011).
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Petitioner has not alleged facts that point to a real

24 possibility of constitutional error and that would thus entitle him
25 to relief in this proceeding.
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Accordingly, Petitioner’s claim will be dismissed.

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The defect in Petitioner’s claim stems not from a dearth of

28 factual allegations, but rather from the admitted circumstances of
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1 Petitioner’s conviction and sentence.

Thus, Petitioner could not

2 allege a tenable claim of a bill of attainder if leave to amend were
3 granted.
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Accordingly, the Court will dismiss the petition without leave

5 to amend.
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III.

Certificate of Appealability

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Unless a circuit justice or judge issues a certificate of

8 appealability, an appeal may not be taken to the Court of Appeals
9 from the final order in a habeas proceeding in which the detention
10 complained of arises out of process issued by a state court.

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11 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
12 (2003).

A district court must issue or deny a certificate of

13 appealability when it enters a final order adverse to the applicant.
14 Habeas Rule 11(a).
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A certificate of appealability may issue only if the applicant

16 makes a substantial showing of the denial of a constitutional right.
17 ' 2253(c)(2).

Under this standard, a petitioner must show that

18 reasonable jurists could debate whether the petition should have
19 been resolved in a different manner or that the issues presented
20 were adequate to deserve encouragement to proceed further.

Miller-

21 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
22 473, 484 (2000)).

A certificate should issue if the Petitioner

23 shows that jurists of reason would find it debatable whether: (1)
24 the petition states a valid claim of the denial of a constitutional
25 right, and (2) the district court was correct in any procedural
26 ruling.
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Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

In determining this issue, a court conducts an overview of the

28 claims in the habeas petition, generally assesses their merits, and
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1 determines whether the resolution was debatable among jurists of
2 reason or wrong.

Id.

An applicant must show more than an absence

3 of frivolity or the existence of mere good faith; however, the
4 applicant need not show that the appeal will succeed.

Miller-El v.

5 Cockrell, 537 U.S. at 338.
Here, it does not appear that reasonable jurists could debate

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7 whether the petition should have been resolved in a different
8 manner.

Petitioner has not made a substantial showing of the denial

9 of a constitutional right.
Accordingly, the Court will decline to issue a certificate of

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11 appealability.
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IV.

Disposition

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In accordance with the foregoing analysis, it is ORDERED that:

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1) The petition for writ of habeas corpus is DISMISSED for

15 failure to allege facts that would warrant relief in a proceeding
16 pursuant to 28 U.S.C. § 2254; and
2) The Court DECLINES to issue a certificate of appealability;

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3) The Clerk is DIRECTED to close the action because dismissal

20 terminates it in its entirety.
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22 IT IS SO ORDERED.
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Dated:

/s/ Barbara

January 28, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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