Fonoti v. Sherman
Filing
15
FINDINGS and RECOMMENDATIONS to Grant Respondent's 10 Motion to Dismiss, signed by Magistrate Judge Michael J. Seng on 7/31/15, referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. (Marrujo, C)
1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT
8
FOR THE EASTERN DISTRICT OF CALIFORNIA
9
10
11
1:15-cv-00626 LJO MJS HC
UENI WAYNE FONOTI,
12
FINDINGS AND RECOMMENDATIONS TO
Petitioner, GRANT RESPONDENT'S MOTION TO
DISMISS
v.
13
(Doc. 10)
14
15
STU SHERMAN, Warden,
Respondent.
16
17
18
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
19
corpus pursuant to 28 U.S.C. § 2254.
20
I.
DISCUSSION
21
A.
22
Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:
23
24
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.
25
The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a
26
petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the
27
respondent’s motion to dismiss, or after an answer to the petition has been filed. See
28
Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001). Allegations in a petition that are vague,
Procedural Grounds for Summary Dismissal
1
1
conclusory, or palpably incredible are subject to summary dismissal. Hendricks v.
2
Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A petition for habeas corpus should not be
3
dismissed without leave to amend unless it appears that no tenable claim for relief can
4
be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
5
B.
Factual Summary
6
On April 22, 2015, Petitioner filed the instant petition for writ of habeas corpus.
7
(Pet., ECF No. 1.) Petitioner challenges a July 30, 2014, decision of the Board of Parole
8
Hearings finding Petitioner unsuitable for parole. (Pet.) Petitioner presents three claims
9
for relief. Petitioner asserts: (1) that the California courts unreasonably denied his claims
10
that the Parole Board engaged in an arbitrary decision making process by relying on
11
confidential information; (2) that the continued duration of his sentence is
12
disproportionate to the crime of conviction and constitutes cruel and unusual
13
punishment; and (3) Petitioner's rights under Article 36 of the Vienna Convention were
14
violated. (Id.)
15
On June 26, 2015, Respondent filed a motion to dismiss the petition. (ECF No.
16
10.) Petitioner filed an opposition to the motion on July 24, 2015. (ECF No. 13.)
17
Respondent filed a reply on July 30, 2015. (ECF No. 14.) The matter stands ready for
18
adjudication.
19
C.
Federal Review of State Parole Decisions
20
Because the petition was filed after April 24, 1996, the effective date of the
21
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in
22
this proceeding. Lindh v. Murphy, 521 U.S. 320, 327, 117 S. Ct. 2059, 138 L. Ed. 2d 481
23
(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
24
A district court may entertain a petition for a writ of habeas corpus by a person in
25
custody pursuant to the judgment of a state court only on the ground that the custody is
26
in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§
27
2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7, 120 S. Ct. 1495, 146 L.
28
Ed. 2d 389 (2000); Wilson v. Corcoran, 131 S.Ct. 13, 16, 178 L. Ed. 2d 276 (2010).
2
1
The Supreme Court has characterized as reasonable the decision of the Court of
2
Appeals for the Ninth Circuit that California law creates a liberty interest in parole
3
protected by the Fourteenth Amendment Due Process Clause, which in turn requires fair
4
procedures with respect to the liberty interest. Swarthout v. Cooke, 131 S.Ct. 859, 861-
5
62, 178 L. Ed. 2d 732 (2011).
6
However, the procedures required for a parole determination are the minimal
7
requirements set forth in Greenholtz v. Inmates of Neb. Penal and Correctional Complex,
8
442 U.S. 1, 12, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979). Swarthout, 131 S.Ct. at 862. In
9
Swarthout, the Court rejected inmates' claims that they were denied a liberty interest
10
because there was an absence of "some evidence" to support the decision to deny
11
parole. The Court stated:
12
17
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.)
18
Swarthout, 131 S.Ct. at 862. The Court concluded that the petitioners had received the
19
process that was due as follows:
13
14
15
16
20
21
22
23
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....
That should have been the beginning and the end of the federal habeas
courts' inquiry into whether [the petitioners] received due process.
Swarthout, 131 S.Ct. at 862. The Court in Swarthout expressly noted that California's
24
"some evidence" rule is not a substantive federal requirement, and correct application of
25
California's "some evidence" standard is not required by the Federal Due Process
26
Clause. Id. at 862-63. This is true regardless whether Petitioner is challenging a decision
27
by the Board to deny parole or the Governor's reversal of a parole grant. Swarthout, 131
28
3
1
S. Ct. at 860-61; Styre v. Adams, 645 F.3d 1106, 1108 (9th Cir. 2011) ("[w]e now hold
2
that the Due Process Clause does not require that the Governor hold a second suitability
3
hearing before reversing a parole decision.").
4
Here, Petitioner argues that the Board's decision was arbitrary and that it relied on
5
confidential evidence. (Pet.) As described by Swarthout, Petitioner has a right to access
6
his records in advance and to speak at the parole hearing to contest the evidence
7
presented. 131 S.Ct. at 862. Petitioner has not shown that he was denied his rights to
8
prior notice of the evidence or an opportunity to contest it at his suitability hearing.
9
Accordingly, Petitioner has not shown that the minimal due process rights afforded under
10
Greenholtz and Swarthout have been violated. Petitioner does not assert cognizable
11
federal grounds for challenging the parole decision. Petitioner is not entitled to habeas
12
relief.
13
D.
Cruel and Unusual Punishment
14
Petitioner's second claim for relief is that the denial of parole and his continued
15
detention serves as cruel and unusual punishment under the Fifth and Eighth
16
Amendments of the Constitution. While this is a proper federal claim, there is no
17
possibility that Petitioner is entitled to relief on this claim.
18
The Supreme Court has held, in the context of AEDPA review that the relevant,
19
clearly established law regarding the Eighth Amendment's proscription against cruel and
20
unusual punishment is a "gross disproportionality" principle, the precise contours of
21
which are unclear and applicable only in the "exceedingly rare" and "extreme" case.
22
Lockyer v. Andrade, 538 U.S. 63, 73-76, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003)
23
(discussing decisions in Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed.
24
2d 836 (1991), Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983),
25
and Rummel v. Estelle, 445 U.S. 263, 100 S. Ct. 1133, 63 L. Ed. 2d 382 (1980)); Ewing
26
v. California, 538 U.S. 11, 23, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003). "Successful
27
challenges to the proportionality of particular sentences will be exceedingly rare." Solem,
28
463 U.S. at 289-90.
4
1
Generally, the Supreme Court has upheld prison sentences challenged as cruel
2
and unusual, and in particular, has approved recidivist punishments similar to or longer
3
than Petitioner's life sentence for offenses of significantly lesser severity than Petitioner's
4
crime of conviction. See Andrade, 538 U.S. at 77 (denying habeas relief on Eighth
5
Amendment disproportionality challenge to Three Strikes sentence of two consecutive
6
terms of 25 years to life for stealing $150.00 in videotapes when petitioner had a lengthy
7
but nonviolent criminal history); Harmelin, 501 U.S. at 1008-09 (mandatory life sentence
8
without parole for first offense of possession of more than 650 grams of cocaine is not so
9
disproportionate as to violate the Eighth Amendment); Hutto v. Davis, 454 U.S. 370, 374-
10
75, 102 S. Ct. 703, 70 L. Ed. 2d 556 (1982) (per curiam) (upholding non-recidivist
11
sentence of two consecutive 25 prison terms for possession of nine ounces of marijuana
12
and distribution of marijuana); cf. Solem, 463 U.S. at 280-81 (sentence of life
13
imprisonment without possibility of parole for seventh nonviolent felony violates Eighth
14
Amendment). In Petitioner's case, he was convicted of two counts of second degree
15
murder. (Mot. to Dismiss, Ex. 1 at 3, ECF No. 10-1.) Murder is an extremely serious
16
crime; a crime for which a life sentence is not considered grossly disproportionate.
17
For the above reasons, and in light of controlling jurisprudence, this Court cannot
18
find that Petitioner's sentence is grossly disproportionate to his commitment offense.
19
Thus, the state court's rejection of this claim was not contrary to or an unreasonable
20
application of federal law. The Court recommends that Petitioner was not subject to cruel
21
and unusual punishment and is not entitled to relief.
22
E.
Violation of the Vienna Convention
23
In his third claim for relief, Petitioner, a citizen of the Independent State of Samoa,
24
complains that the failure to notify the Samoan consulate of his custodial status and the
25
failure to allow him to consult with consular officials from Samoa violated the Vienna
26
Convention.
27
Petitioner has not demonstrated that he is entitled to federal habeas relief based
28
on his Vienna Convention claim. Although the Vienna Convention provides that, upon
5
1
request of a detained national, "the competent authorities" in the country of detention
2
"shall, without delay, inform the consular post" of the national's country that the national
3
has been "arrested or committed to prison or to custody pending trial or . . . detained in
4
any other manner," 1 the Supreme Court has not clearly established that the Vienna
5
Convention creates individually enforceable rights. See Medellin v. Texas, 552 U.S. 491,
6
506 n.4 (2008) (assuming, without deciding, that Article 36 of the Vienna Convention
7
creates individually enforceable rights); Sanchez-Llamas v. Oregon, 548 U.S. 331, 343
8
(2006) (declining "to resolve the question whether the Vienna Convention grants
9
individuals enforceable rights"); Medellin v. Dretke, 544 U.S. 660, 664 (2005) (noting that
10
"a violation of [the Vienna Convention's consular access provisions] may not be
11
cognizable in a federal habeas proceeding"); United States v. Lombera-Camorlinga, 206
12
F.3d 882, 885 (9th Cir. 2000) (en banc) ("[t]he Supreme Court has treated the issue of
13
whether the provision creates any judicially enforceable rights as an open question");
14
see also Cornejo v. County of San Diego, 504 F.3d 853, 859-60 (9th Cir. 2007) (holding
15
that Article 36 of the Vienna Convention does not create judicially enforceable rights in
16
civil rights action).
17
In the absence of any Supreme Court decision clearly establishing that the Vienna
18
Convention creates individually enforceable rights, federal habeas relief is unavailable in
19
a case governed by § 2254(d)(1), such as this one. See Mirzayance, 129 S. Ct. at 1419;
20
Moses, 555 F.3d at 760. The state court's decision with respect to Petitioner's Vienna
21
Convention claim is not contrary to, or an unreasonable application of, any clearly
22
established Supreme Court precedent. Accordingly, the Court recommends that
23
Petitioner's third claim for relief be denied.
24
II.
CONCLUSION
25
Although Petitioner asserts that his right to due process of law was violated by the
26
Board's decision, Petitioner has not alleged facts pointing to a real possibility of a
27
28
1
See Vienna Convention on Consular Relations art. 36(1)(b), Apr. 24, 1963, [1970] 21 U.S.T. 77,
101 T.I.A.S. No. 6820.
6
1
violation of the minimal requirements of due process set forth in Greenholtz, 442 U.S. 1.
2
Further, Petitioner's claims that his right to be free from cruel and unusual punishment or
3
subject to the provisions of the Vienna Convention are without merit. The Court
4
recommends that Respondent's motion to dismiss be granted.
5
III.
RECOMMENDATION
6
Accordingly, it is RECOMMENDED that the motion to dismiss be granted, and the
7
petition be DISMISSED without leave to amend as Petitioner has not made a showing
8
that he is entitled to relief.
9
These findings and recommendations are submitted to the United States District
10
Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636
11
(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court,
12
Eastern District of California. Within thirty (30) days after being served with a copy, any
13
party may file written objections with the Court and serve a copy on all parties. Such a
14
document should be captioned "Objections to Magistrate Judge's Findings and
15
Recommendations." Replies to the objections shall be served and filed within fourteen
16
(14) days (plus three (3) days if served by mail) after service of the objections. The Court
17
will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C).
18
Petitioner is advised that failure to file objections within the specified time may
19
waive the right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834,
20
839 (9th Cir. 2014).
21
22
23
24
IT IS SO ORDERED.
Dated:
July 31, 2015
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
25
26
27
28
7
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?