Kwiatkowski v. Dickinson
MEMORANDUM DECISION signed by Senior Judge James K. Singleton on 3/13/2012 ORDERING that the 1 Petition for Writ of Habeas Corpus is DENIED. 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
DAVID JAMES KWIATKOWSKI,
KATHLEEN DICKINSON, Warden,
California Medical Facility,
David James Kwiatkowski, a state prisoner appearing pro se, filed a Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2254. Kwiatkowski is currently in the custody of the
California Department of Corrections, incarcerated at the California Medical Facility, Vacaville,
California. Respondent has answered, and Kwiatkowski has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
In September 1996 Kwiatkowski was convicted in the Shasta County Superior Court of
Assault on a Child Causing Death under California Penal Code § 273(a) and (b). The trial court
sentenced Kwiatkowski to an indeterminate prison sentence of fifteen years to life. Kwiatkowski
does not challenge his conviction or sentence in this proceeding.
In May 2008 Kwiatkowski appeared before the California Board of Parole Hearings
(“Board”) for his initial parole consideration hearing. The Board denied Kwiatkowski parole for
a period of two years. Kwiatkowski timely challenged the decision of the Board in a habeas
proceeding in the Shasta County Superior Court, which denied his petition is an unreported,
reasoned decision. The California Court of Appeal, Third Appellate District, denied his
subsequent petition for habeas relief without opinion or citation to authority, and the California
Supreme Court did the same on January 13, 2010. Kwiatkowski timely filed his Petition for
relief in this Court on February 21, 2010.
Because the facts surrounding the conviction are well known to the parties and are
unnecessary to an understanding of this decision, they are not repeated here.
II. GROUNDS RAISED/DEFENSES
In his Petition Kwiatkowski raises two grounds: (1) the action of the Board was
unsupported by sufficient evidence; and (2) requiring a prisoner to express sufficient insight as a
condition of granting parole violates the Ex Post Facto Clause. Respondent does not assert any
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” at the time the state court renders its decision or “was based
on an unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.”2 The Supreme Court has explained that “clearly established Federal law” in
§ 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the
Rules Governing Section 2254 Cases in the U.S. Dist. Courts, Rule 5(b) (2011).
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-06 (2000); see also Lockyer
v. Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard).
time of the relevant state-court decision.”3 The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts.4 Thus, where holdings of the Supreme Court
regarding the issue presented on habeas review are lacking, “it cannot be said that the state court
‘unreasonabl[y] appli[ed] clearly established Federal law.’”5 When a claim falls under the
“unreasonable application” prong, a state court’s application of Supreme Court precedent must
be “objectively unreasonable,” not just “incorrect or erroneous.”6 The Supreme Court has made
clear that the objectively unreasonable standard is “a substantially higher threshold” than simply
believing that the state-court determination was incorrect.7 “[A]bsent a specific constitutional
violation, federal habeas corpus review of trial error is limited to whether the error ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due process.’”8 In a
federal habeas proceeding, the standard under which this Court must assess the prejudicial
impact of constitutional error in a state court criminal trial is whether the error had a substantial
Williams, 529 U.S. at 412 (alteration added).
Early v. Packer, 537 U.S. 3, 10 (2002).
Carey v. Musladin, 549 U.S. 70, 77 (2006) (alterations in original) (citation omitted);
see also Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam); Kessee v. MendozaPowers, 574 F.3d 675, 678-79 (9th Cir. 2009); Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir.
2009) (explaining the difference between principles enunciated by the Supreme Court that are
directly applicable to the case and principles that must be modified in order to be applied to the
case; the former are clearly established precedent for purposes of § 2254(d)(1), the latter are not).
Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (internal quotation marks and citations
Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410).
Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416
U.S. 637, 642, 643 (1974)).
and injurious effect or influence in determining the outcome.9 Because state court judgments of
conviction and sentence carry a presumption of finality and legality, the petitioner has the burden
of showing by a preponderance of the evidence that he or she merits habeas relief.10
The Supreme Court recently underscored the magnitude of the deference required:
As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal
court relitigation of claims already rejected in state proceedings. Cf. Felker v.
Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing
AEDPA’s “modified res judicata rule” under § 2244). It preserves authority to issue
the writ in cases where there is no possibility fairminded jurists could disagree that
the state court’s decision conflicts with this Court’s precedents. It goes no farther.
Section 2254(d) reflects the view that habeas corpus is a “guard against extreme
malfunctions in the state criminal justice systems,” not a substitute for ordinary error
correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition
for obtaining habeas corpus from a federal court, a state prisoner must show that the
state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.11
In applying this standard, this Court reviews the “last reasoned decision” by the state
court.12 State appellate court decisions that summarily affirm a lower court’s opinion without
Fry v. Pliler, 551 U.S. 112, 121 (2007) (adopting the standard set forth in Brecht v.
Abrahamson, 507 U.S. 619, 637-38 (1993)).
Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002) (citations omitted); see Wood v.
Bartholomew, 516 U.S. 1, 8 (1995) (per curiam) (stating that a federal court cannot grant “habeas
relief on the basis of little more than speculation with slight support”).
Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011) (emphasis added).
Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citing Avila v. Galaza, 297
F.3d 911, 918 (9th Cir. 2002)); cf. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991) (explaining
“how federal courts in habeas proceedings are to determine whether an unexplained order . . .
rests primarily on federal law,” and noting that federal courts must start by examining “the last
reasoned opinion on the claim . . . . ”).
explanation are presumed to have adopted the reasoning of the lower court.13 This Court gives
the presumed decision of the state court the same AEDPA deference that it would give a
reasoned decision of the state court.14
Under California’s unique habeas procedure, a prisoner who is denied habeas relief in the
superior court files a new original petition for relief in the court of appeal. If denied relief by the
court of appeal, the defendant has the option of either filing a new original petition for habeas
relief or a petition for review of the court of appeal’s denial in the California Supreme Court.15
This is considered as the functional equivalent of the appeal process.16 Under AEDPA, the state
court’s findings of fact are presumed to be correct unless the petitioner rebuts this presumption
by clear and convincing evidence.17 This presumption applies to state-trial courts and appellate
Ylst, 501 U.S. at 802-03 (“Where there has been one reasoned state judgment rejecting
a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest
upon the same ground.”); cf. Richter, 131 S. Ct. at 784 (“As every Court of Appeals to consider
the issue has recognized, determining whether a states court’s decision resulted from an
unreasonable legal or factual conclusion does not require that there be an opinion from the state
court explaining the state court’s reasoning.”).
See Richter, 131 S. Ct. at 784-85 (rejecting the argument that a summary disposition
was not entitled to § 2254(d) deference).
See Carey v. Saffold, 536 U.S. 214, 221-22 (2002) (citations omitted) (discussing
California’s “original writ” system).
See id. at 222 (“Thus, typically a prisoner will seek habeas review in a lower court and
later seek appellate review in a higher court . . . .”).
28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)
(“Factual determinations by state courts are presumed correct absent clear and convincing
evidence to the contrary . . . .” (citing 28 U.S.C. § 2254(e)(1))).
See Stevenson v. Lewis, 384 F.3d 1069, 1072 (9th Cir. 2004) (“Stevenson does not
address these factual findings, let alone challenge them with clear and convincing evidence.
Accordingly, we presume them to be correct.” (citing 28 U.S.C. § 2254(e)(1); Pollard v. Galaza,
Ground 1: Insufficient Evidence
Kwiatkowski contends that the evidence was insufficient to support the Board’s finding
that he posed an unreasonable risk of danger to society if released on parole. The Shasta County
Superior Court rejected Kwiatkowski’s argument:
The court applies the “some evidence” standard to review the Board’s
decision. Under the “some evidence” standard, the Board’s decision will be upheld
as long as some evidence supports the conclusion that the petitioner is unsuitable for
parole because he is a threat to public safety. (In re Shaputis (2008) 44 Ca1.4th
1241). The record shows the Board denied parole based upon several factors. The
presiding commissioner indicated that:
[t]here were a number of factors that we looked into. The first I’m going to
speak to is the commitment offense itself. And we do want to note that this
was carried out in an especially cruel and callous manner. This child, two
years old, a child that you had lived with, he and his mother, for a brief sixmonth period. Approximately five months into that time frame apparently
you took actions that were beyond disciplinary in nature and became violent
in that you started striking him to deter the child from crying apparently or
other activities that you felt were inappropriate and unnecessary. But that
escalated to three different times that you recall. And, the one thing that
troubled the Panel to some degree is that you were, and I'm not sure if you
were trying to protect your recollection of that or whether you really don’t
recall, but one of the areas that was of particular concern is that you don’t
recall actually striking the child as many times as the autopsy revealed that
he had been hit....
(Transcript of Parole Hearing at page 1 of Decision, lines 13-24; page 2 of
Decision, lines 1-8).
Further, the presiding commissioner was concerned that petitioner downplayed another past instances of violence. And it was interesting how you
characterized your actions with her [your sister] as placing your hand on her when
actually that - you placed your hand, if that’s how you want to characterize it, in such
a way that it left marks around her neck. That seems to be, in the Panel’s mind, an
understatement of what occurred, and then when her boyfriend took issue with your
treatment of your sister, you armed yourself with a knife and displayed that in a
threatening way, and that was that incident. But it was odd to the Panel that you
would describe essentially a - an assault on her as placing your hands on her.
290 F.3d 1030, 1035 (9th Cir. 2002))).
(Transcript of Parole Hearing at page 4 of Decision, lines 1-12).
While the Board was pleased with petitioner's behavior in prison and parole
plans, the Board felt that petitioner did not have a true sense of remorse, stating:
And it’s not that you're required to do it, but what is required is that we have
some understanding that you have a deep abiding level of remorse over this,
and it’s more than just saying I’m sorry I did this. And we see - we conduct
many, many of these hearings and find many different ways to say the same
thing. But typically what you say is backed up in the psychological
evaluation to a lower rate, and we believe that is something that you can get
to, and you should get to.
(Transcript of Parole Hearing at page 5 of Decision, lines 17-24; page 6 of
Decision, lines 1-2).
The Board’s decision was not based solely on the commitment offense. The
Board’s decision was also based upon the petitioner’s lack of remorse and lack of a
true understanding of what he did and why he did it. Under those circumstances, the
Board was convinced there is a likelihood petitioner could commit other acts of
violence if released. There is some evidence in the record to support the Board's
finding that petitioner currently poses a threat to public safety.19
After briefing in this case was completed, the United States Supreme Court decided
Swarthout v. Cooke.20 This Court must decide the case on the law as it exists at the time this
Court renders its decision, and if controlling law changes while the case is pending, this Court
applies the law as changed.21 Thus, although it represents a change in controlling law, Cooke
forecloses Kwiatkowski’s arguments vis-a-vis California’s “some evidence” rule.
Generally, when a higher court issues new controlling authority after briefing is complete,
this Court requests further briefing from the parties addressing the new authority. The Supreme
Court decision in Cooke, however, is so clear that further briefing would unduly prolong this case
without any possibility of changing the result. The Supreme Court has limited federal habeas
Docket No. 1 at 181-82.
131 S. Ct. 859 (2011) (per curiam).
See Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 281-82 (1969);
Lambert v. Blodgett, 393 F.3d 943, 973 n.21 (9th Cir. 2004).
review to the procedures followed by the Board and the Governor, and defined with care what it
meant by the applicable procedures. No longer may this Court consider how the California
courts applied California law in the parole suitability context.22 Under these circumstances
further briefing would not aid this Court in reaching a decision.
It is well-established by Supreme Court precedent that there is no constitutional or
inherent right of a convicted person to be conditionally released on parole before the expiration
of a sentence.23 That a California prisoner has a liberty interest in parole protected by the
procedural safeguards of the Due Process Clause of the Fourteenth Amendment is settled.24
Because the only federal right at issue in this case is procedural, the relevant inquiry is whether
Kwiatkowski received due process.25 The Constitution only requires that a prisoner be allowed
an opportunity to be heard and be provided with a statement of the reasons why parole is denied,
nothing more.26 Kwiatkowski contends that the decision of the Board was unsupported
Cooke, 131 S. Ct. at 862-63 (“The short of the matter is that responsibility for assuring
that the constitutionally adequate procedures governing California’s parole system are properly
applied rests with California courts, and is no part of the Ninth Circuit’s business.”); see also
Styre v. Adams, 645 F.3d 1106, 1108 (9th Cir. 2011); Miller v. Oregon Bd. of Parole and Post
Prison Supervision, 642 F.3d 711, 716-17 (9th Cir. 2011); Pearson v. Muntz, 639 F.3d 1185,
1191 (9th Cir. 2011).
Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7 (1979).
Hayward v. Marshall, 603 F.3d 546, 561-64 (9th Cir. 2010) (en banc), overruled sub
silentio on another point by Cooke, 131 S. Ct. at 862-63; see Pearson v. Muntz, 606 F.3d 606,
608 (9th Cir. 2010) (per curiam), overruled sub silentio on another point by Cooke,131 S. Ct. at
See Cooke, 131 S. Ct. at 861.
Id. at 862 (citing Greenholtz, 442 U.S. at 16).
by some evidence as required by California law.27 “[I]t is of no federal concern . . . whether
California’s ‘some evidence’ rule of judicial review (a procedure beyond what the Constitution
demands) was correctly applied.”28 California prisoners are allowed to speak at their parole
hearings, to contest the evidence against them, they are afforded access to their records in
advance, and are notified of the reasons why parole is denied. That is all that due process
requires.29 “‘Federal courts hold no supervisory authority over state judicial proceedings and
may intervene only to correct wrongs of constitutional dimension.’”30 Because Kwiatkowski has
failed to establish a wrong of constitutional dimension he is not entitled to relief under his first
Ground 2: Ex Post Facto Claim
Among the factors that the Board considered in determining Kwiatkowski’s unsuitability
for parole was his lack of insight into the circumstances of and his reasons for committing his
crime. Kwiatkowski contends at the time that he committed his crime (April 1996)
indeterminately sentenced life-prisoners were not required to express sufficient insight into the
circumstances of the commitment offense. According to Kwiatkowski:
Assuming ‘lack of insight’ can be adequately defined and given objective
meaning, and assuming it can validly be said that petitioner in this case does not have
See In re Lawrence, 190 P.3d 535 (Cal. 2008); In re Shaputis, 190 P.3d 573 (Cal.
Cooke, 131 S. Ct. at 863.
Id. at 862.
Smith v. Philips, 455 U.S. 209, 221 (1982) (citations omitted); see also Sanchez-Llamas
v. Oregon, 548 U.S. 331, 345 (2006) (“It is beyond dispute that we do not hold a supervisory
power over the courts of the several states.” (quoting Dickerson v. United States, 530 U.S. 428,
‘full insight,’ there remains the question of what relevance this has in view of the
uncontroverted applicability of every other suitability criteria to petitioner.
There is nothing within the California Penal Code, nor within departmental
rules and regulations (Title 15, Division 2) is it required that a prisoner applying for
parole must articulate sufficient insight before establishing their suitability for parole.
Petitioner was first required to express sufficent [sic] insight into the
circumstances of his crime during. his mental health evaluation performed by Dr.
Record for consideration by the Board during his parole suitability hearing now being
challenged. Yet, when petitioner initially elected not to discuss his crime as
permitted by the California Penal Code, Section 5011, his mental health evaluator
faulted him for not discussing his crime, claiming lack of insight.
Then in further violation of petitioner's rights, the Board, during his hearing,
utilized that same psychological evaluation which faulted petitioner for exercising
his right under Penal Code 5011 not to discuss his crime. (see Exhibit A, Reporter’s
Transcript (R.T.), page 91, line 3-7).
Therefore, the Board’s use of petitioner’s ‘lack of insight’ which derived from
an erroneous assessment rendered by petitioner’s mental health evaluator, solely
because petitioner initially refused to discuss his crime, clearly shows the Board’s
attempt to ignore the overwhelming evidence of rehabilitation and suitability
contained within petitioner’s record before the Board during the hearing now being
challenged. Such practices by the by the Board of Parole Hearing (and the Governor)
violates the ex post facto clause of both state and federal constitutions.31
Kwiatkowski presented this claim for the first time in his petition to the California Court
of Appeal and again in his petition to the California Supreme Court; consequently, no California
court addressed this claim on the merits. When there is no reasoned state-court decision denying
an issue presented to the state, “it may be presumed that the state court adjudicated the claim on
the merits in the absence of any indication or state-law procedural principles to the contrary.”32
“The presumption may be overcome when there is reason to think some other explanation for the
state court’s decision is more likely.”33 Where the presumption applies, this Court must perform
Docket No. 1 at 9-10.
Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011) (citing Harris v. Reed, 489 U.S.
255, 265 (1989)).
Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).
an independent review of the record to ascertain whether the state-court decision was
“objectively unreasonable.”34 In conducting an independent review of the record, this Court
presumes that the relevant state-court decision rested on federal grounds,35 giving that presumed
decision the same deference as a reasoned decision.36 The scope of this review is for clear error
of the state court ruling on the petition:
[A]lthough we cannot undertake our review by analyzing the basis for the state
court’s decision, we can view it through the “objectively reasonable” lens ground by
Williams. . . . Federal habeas review is not de novo when the state court does not
supply reasoning for its decision, but an independent review of the record is required
to determine whether the state court clearly erred in its application of controlling
federal law. Only by that examination may we determine whether the state court’s
decision was objectively reasonable.37
“[A]lthough we independently review the record, we still defer to the state court’s ultimate
Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (quoting Pham v. Terhune,
400 F.3d 740, 742 (9th Cir. 2005) (per curiam)).
See Coleman v. Thompson, 501 U.S. 722, 740 (1991) (“The presumption at present
applies only when it fairly appears that a state court judgment rested primarily on federal law or
was interwoven with federal law, that is, in those cases where a federal court has good reason to
question whether there is an independent and adequate state ground for the decision.”); see also
Harris, 489 U.S. at 263.
Richter, 131 S. Ct. at 784-85 (rejecting the argument that a summary disposition was
not entitled to § 2254(d) deference).
Delgado v. Lewis (Delgado II), 223 F.3d 976, 982 (9th Cir. 2000) (citation omitted).
But cf. Lewis v. Mayle, 391 F.3d 989, 996 (9th Cir. 2004) (“Our standard of review is not
controlled by Delgado v. Lewis . . . . There, we held that where a state court provides no rational
for a decision, a habeas court does not apply de novo review, but instead determines whether the
state decision was objectively unreasonable based on its independent reading of the record. Here,
however, the state court was not silent as to its reasoning . . . . Therefore, we review de novo
whether Lewis waived his right to conflict free counsel . . . .”).
Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
In Garner, the Supreme Court made clear that retroactive changes to a state’s parole laws
may, in some instances, violate the Ex Post Facto Clause.39 In order to establish an ex post facto
violation based on a state’s retroactive application of a parole statute, a prisoner must
demonstrate that the new statute “creates a significant risk of prolonging [the prisoner’s]
incarceration.”40 Where, however, a change in the law does nothing more than alter the method
of granting parole under identical substantive standards, the Ex Post Facto Clause is not
implicated.41 Ex post facto analysis of a facially neutral parole law requires a case-specific, factintensive analysis regarding the risk posed by the law to the particular prisoner challenging its
Although it is not clear in his Petition what he bases his ex post facto claim on, in his
Traverse it appears that Kwiatkowski claims that this factor as a reason for the denial of his
parole did not exist until the California Supreme Court decided Shaputis in 2008.43 Initially this
Court notes that, contrary to Kwiatkowski’s contention, the California Supreme Court recognized
“lack of insight” into one’s criminal conduct as an appropriate factor for consideration in denying
parole at least as early as 1979.44
Garner v. Jones, 529 U.S. 244, 250 (2000) (citing Lynce v. Mathis, 519 U.S. 433, 44546 (1997)).
See Cal. Dept. of Corr. v. Morales, 514 U.S. 499, 507-08 (1995) (holding that a change
to allowing the Board to increase the time between reviews did not violate the Ex Post Facto
See, e.g., Garner, 529 U.S. at 255 (“[A prisoner] must show that as applied to his own
sentence the law created a significant risk of increasing his punishment.” (emphasis added)).
Docket No. 12 at 6.
See In re Owen E., 592 P.2d 720, 721-22 (Cal. 1979).
Kwiatkowski’s argument misinterprets both Shaputis and the scope of the regulation
applied in Shaputis. The regulation at issue in Shaputis provides in relevant part:
(b) Information Considered. All relevant, reliable information available to the panel
shall be considered in determining suitability for parole. Such information shall
include the circumstances of the prisoner's social history; past and present mental
state; past criminal history, including involvement in other criminal misconduct
which is reliably documented; the base and other commitment offenses, including
behavior before, during and after the crime; past and present attitude toward the
crime; any conditions of treatment or control, including the use of special conditions
under which the prisoner may safely be released to the community; and any other
information which bears on the prisoner’s suitability for release. Circumstances
which taken alone may not firmly establish unsuitability for parole may contribute
to a pattern which results in a finding of unsuitability.45
To the extent that Kwiatkowski argues that the regulation does not encompass insight, he
overlooks the inclusive nature of the regulation to encompass all relevant, reliable information
that bears on his suitability for parole. Taken in proper context, the discussion regarding “lack of
insight” in Shaputis is analogous to Kwiatkowski’s attitude towards the lack of understanding of
the underlying commitment crime and the reason(s) for its commission.46 This is hardly “new.”
Even if it were “new,” Kwiatkowski must still show that the new rule “create[d] a
significant risk of prolonging [Kwiatkowski’s] incarceration.”47 It is not sufficient that it
Cal. Admin. Code, tit. 15, § 2402 “Parole Consideration Criteria and Guidelines for
Murders Committed on or After November 8, 1978, and Specified Attempted Murders.” As the
California Supreme Court noted in Shaputis, this provision is identical to § 2281(b), applicable to
all life prisoners.
190 P.3d 573, 584-85 (Cal. 2008).
Garner, 529 U.S. at 251; Moor v. Palmer, 603 F.3d 658, 664 (9th Cir. 2010).
“create[d] only the most speculative and attenuated risk of increasing the measure of punishment
attached to covered crimes.”48 Here, that Kwiatkowski “lacked insight” into the underlying
commitment offense or his conduct in connection therewith did not create any greater increased
risk of prolonged incarceration than did the addition of a psychological review requirement in
The arguments advanced by Kwiatkowski are more akin to either a weight of the
evidence or relevance argument than to an ex post facto claim. This Court is precluded from reweighing the evidence. The role of this Court is to simply determine whether there is any
evidence, if accepted as credible by the trier of fact, sufficient to sustain the factual determination
made.50 The factors to be considered in making a parole determination and the weight to be
given each factor are purely a question of California law. As noted above, the Supreme Court’s
decision in Cooke foreclosed this Court’s consideration of how California courts apply California
law in the parole suitability context.51
On the record of this case, in light of Morales, Garner, and Moor, this Court cannot find
that the assumed decisions of the California Court of Appeal or the California Supreme Court
were “contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” at the time the state courts rendered their
decisions or “w[ere] based on an unreasonable determination of the facts in light of the evidence
Cal. Dept. of Corr. v. Morales, 514 U.S. 499, 514 (1995); Newman v. Beard, 617 F.3d
775, 785 (3d Cir. 2010).
Moor, 603 F.3d at 665-66.
See Schlup v. Delo, 513 U.S. 298, 340 (1995).
Swarthout v. Cooke, 131 S. Ct. 859, 863 (2011) (per curiam).
presented in the State court proceeding.”52 Kwiatkowski is not entitled to relief under his second
V. CONCLUSION AND ORDER
Kwiatkowski 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.53 Any further request for a Certificate of Appealability must be addressed to the
Court of Appeals.54
The Clerk of the Court is to enter judgment accordingly.
Dated: March 13, 2012.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-06 (2000); see also
Lockyer v. Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard).
28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705-06 (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))).
See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1.
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