Phillips v. Sisto et al

Filing 20

MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 4/23/2012 ORDERING that the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED. IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability. Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. The Clerk of the Court is to enter judgment accordingly. CASE CLOSED. (Zignago, K.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
AHMAD PHILLIPS,
No. 2:08-cv-00654-JKS
Petitioner,
MEMORANDUM DECISION
vs.
D. K. SISTO, Warden, California State
Prison, Solano,
Respondent.

Ahmad Phillips, a state prisoner appearing pro se, filed a Petition for Habeas Corpus
under 28 U.S.C. § 2254. Phillips is currently in the custody of the California Department of
Corrections and Rehabilitation, incarcerated at the California State Prison, Solano. Respondent
has answered. Phillips has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Phillips was charged with first degree murder in the Los Angeles Superior Court. In June
1984 Phillips entered a guilty plea to a reduced charge of second degree murder and was
sentenced to an indeterminate prison term of fifteen years to life. Phillips does not challenge his
conviction and sentence in these proceedings.
In March 2006 Phillips appeared in a parole consideration hearing before the California
Board of Parole Hearings (“Board”). The Board, after finding that Phillips was unsuitable for
parole and would pose an unreasonable risk of danger to society or a threat to public safety if
released from prison, denied Phillips parole for a period of two years. Phillips sought habeas
relief in the Los Angeles Superior Court, which denied him relief in an unreported, reasoned
decision. Philips’s subsequent petition for habeas relief was denied by the California Court of

Appeal, Second Appellate District, citing In re Dannenberg, 104 P.3d 783, 786-87 (Cal. 2005),
and the California Supreme Court denied review on March 12, 2008. Philips timely filed his
Petition for relief in this Court on March 21, 2008.
II. GROUNDS RAISED/DEFENSES
In his Petition Phillips raises two grounds: (1) the denial of parole breached his
contractual plea agreement; and (2) the Board’s finding was not supported by reliable evidence.
This Court, adopting the findings and recommendations of the Magistrate Judge, dismissed the
second ground. Respondent has not asserted any affirmative defense as to the first ground.1
This Court notes that, because it appears from the record that it is more likely than not
that in the intervening time since his 2006 Board hearing Phillips has had one or more
subsequent parole hearings, ordinarily the matter would have become moot. In this case,
however, because the claim raised is that the denial of parole breached his plea agreement, in the
event Phillips were to prevail the appropriate relief would be to order Phillips immediately
released with an effective parole date nunc pro tunc to the date he should have been released on
parole. Consequently, if relief were granted, it is entirely possible that Phillips’s five-year postrelease time on parole would have expired, in which case Phillips would be free of any restraint.
III. DISCUSSION
The sole question remaining before this Court is Phillips’s contention that the Board’s
denial of parole constituted a breach of his plea agreement. For the following reasons, this Court
disagrees with Phillips.

1

Rules Governing Section 2254 Cases in the U.S. Dist. Courts, Rule 5(b) (2011).
2

That a plea agreement is a contract that must be honored by the state is well settled.2 In
this case, however, Phillips reads his “contract” too broadly. The proper interpretation and effect
of the agreement between the State of California and Phillips in this case is a matter governed by
California contract law.3 What Phillips received in exchange for his guilty plea was a sentence of
fifteen years to life, with a possibility of parole at some point after he had served his minimum
term. Under California law, there is no guarantee of parole after a specified period of time, only
that a prisoner will be considered for parole and granted parole only if, in the exercise of the
discretion of the Board (or the Governor in reviewing a decision of the Board to grant parole)
applying factors specified by regulations, he or she is found to be suitable for parole.4 The
Court’s review of the plea colloquy does not reveal the existence of any promise, actual or
implied, of when or under what terms or conditions Phillips might be given parole, or, for that
matter, that he would be granted parole at all at any time.5 The sole “promise” was that he would
be considered for parole. “A plea agreement violation claim depends upon the actual terms of
the agreement, not the subjective understanding of the defendant . . . .”6 Nor does Phillips argue
that any such agreement, if one did exist, which is doubtful, would be enforceable under
California law. Phillips is not entitled to relief under his first ground.

2

See Santobello v. New York, 404 U.S. 257, 262-63 (1971).

3

Ricketts v. Adamson, 483 U.S. 1, 6 n.3 (1987).

4

Cal. Penal Code § 3041; see In re Prather, 234 P.3d 541, 549-550 (Cal. 2010).

5

Docket No. 1 at 128-40.

6

In re Honesto, 29 Cal. Rptr. 3d 653, 660 (Ct. App. 2005).
3

IV. CONCLUSION AND ORDER
Phillips is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability.7 Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals.8
The Clerk of the Court is to enter judgment accordingly.
Dated: April 23, 2012.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge

7

28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain a certificate
of appealability a prisoner must ‘demonstrat[e] that jurists of reason could disagree with the
district court’s resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003))).
8

See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.
4