Cunningham v. Clark
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 4/19/2011 RECOMMENDING that ptnr's 2 habeas corpus application be denied; and the district court delcine to issue a COA. Referred to Judge Garland E. Burrell, Jr.; Objections due w/in 14 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CHARLES CUNNINGHAM,
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Petitioner,
Respondent.
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No. 2:09-cv-2831-GEB-JFM (HC)
FINDINGS AND RECOMMENDATIONS
vs.
KEN CLARK,
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Petitioner is a state prisoner proceeding pro se with an application for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2007 decision of the Board
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of Parole Hearings (“the Board”) denying him parole. Upon careful consideration of the record
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and the applicable law, the undersigned recommends that petitioner’s application for habeas
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corpus relief be denied.
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FACTUAL AND PROCEDURAL BACKGROUND
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In 1991, petitioner was convicted of second degree murder and sentenced to
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nineteen years to life in prison. See Pet. at 4-5. On August 29, 2007, petitioner appeared before
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the Board for a parole consideration hearing. See Pet. at 7; Ex. A. Petitioner appeared at and
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participated in the hearing. See id. Following deliberations held at the conclusion of the
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hearing, the Board announced their decision to deny petitioner parole and the reasons for that
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decision. See Pet., Ex. A at 119.
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This action was filed on October 12, 2009. Respondent filed an answer on
December 11, 2009. Petitioner filed a traverse on February 1, 2010.
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ANALYSIS
I. Standards for a Writ of Habeas Corpus
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Federal habeas corpus relief is not available for any claim decided on the merits in
state court proceedings unless the state court's 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 unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
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28 U.S.C. § 2254(d).
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Under section 2254(d)(1), a state court decision is “contrary to” clearly
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established United States Supreme Court precedents if it applies a rule that contradicts the
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governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially
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indistinguishable from a decision of the Supreme Court and nevertheless arrives at different
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result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-406
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(2000)).
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Under the “unreasonable application” clause of section 2254(d)(1), a federal
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habeas court may grant the writ if the state court identifies the correct governing legal principle
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from the Supreme Court’s decisions, but unreasonably applies that principle to the facts of the
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prisoner’s case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ
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simply because that court concludes in its independent judgment that the relevant state-court
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decision applied clearly established federal law erroneously or incorrectly. Rather, that
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application must also be unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75
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(2003) (it is “not enough that a federal habeas court, in its independent review of the legal
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question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”).
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The court looks to the last reasoned state court decision as the basis for the state
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court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court
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reaches a decision on the merits but provides no reasoning to support its conclusion, a federal
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habeas court independently reviews the record to determine whether habeas corpus relief is
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available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
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II. Petitioner’s Claim
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As noted above, petitioner claims that the denial of parole violated his federal
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constitutional right to due process of law. The Due Process Clause of the Fourteenth
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Amendment prohibits state action that deprives a person of life, liberty, or property without due
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process of law. A litigant alleging a due process violation must first demonstrate that he was
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deprived of a liberty or property interest protected by the Due Process Clause and then show that
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the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky
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Dep’t of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989).
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A protected liberty interest may arise from either the Due Process Clause of the
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United States Constitution “by reason of guarantees implicit in the word ‘liberty,’” or from “an
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expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U.S. 209,
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221 (2005) (citations omitted). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987).
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The United States Constitution does not, of its own force, create a protected liberty interest in a
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parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981);
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Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is “no constitutional or
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inherent right of a convicted person to be conditionally released before the expiration of a valid
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sentence.”). However, “a state’s statutory scheme, if it uses mandatory language, ‘creates a
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presumption that parole release will be granted’ when or unless certain designated findings are
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made, and thereby gives rise to a constitutional liberty interest.” Greenholtz, 442 U.S. at 12. See
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also Allen, 482 U.S. at 376-78.
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California’s parole statutes give rise to a liberty interest in parole protected by the
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federal due process clause. Swarthout v. Cooke, 562 U.S. ___ (2011), No. 10-333, 2011 WL
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197627, at *2 (Jan. 24, 2011). In California, a prisoner is entitled to release on parole unless
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there is “some evidence” of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181,
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1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). However, in
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Swarthout the United States Supreme Court held that “[n]o opinion of [theirs] supports
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converting California’s ‘some evidence’ rule into a substantive federal requirement.” Swarthout,
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2011 WL 197627, at *3. Rather, the protection afforded by the federal due process clause to
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California parole decisions consists solely of the “minimal” procedural requirements set forth in
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Greenholtz, specifically “an opportunity to be heard and . . . a statement of the reasons why
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parole was denied.” Id. at *2-3.
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Here, the record reflects that petitioner was present at the 2007 parole hearing,
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that he participated in the hearing, and that he was provided with the reasons for the Board’s
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decision to deny parole. According to the United States Supreme Court, the federal due process
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clause requires no more. Accordingly, petitioner’s application for a writ of habeas corpus should
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be denied.
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Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United
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States District Courts, “[t]he district court must issue or a deny a certificate of appealability when
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it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. A certificate of
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appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial
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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either
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issue a certificate of appealability indicating which issues satisfy the required showing or must
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state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). For the reasons
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set forth in these findings and recommendations, petitioner has not made a substantial showing of
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the denial of a constitutional right. Accordingly, no certificate of appealability should issue.
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For the foregoing reasons, IT IS HEREBY RECOMMENDED that:
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1. Petitioner’s application for a writ of habeas corpus be denied; and
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2. The district court decline to issue a certificate of appealability.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen
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days after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
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objections shall be filed and served within fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: April 19, 2011.
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