Jones v. Swarthout

Filing 11

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 07/17/12 recommending that petitioner's application for a writ of habeas corpus be dismissed; and the clerk be directed to close the case. Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL C. JONES,

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Petitioner,

No. 2:11-cv-1497 KJM EFB P

vs.
GARY SWARTHOUT,

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Respondent.

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ORDER AND
FINDINGS AND RECOMMENDATIONS

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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to
28 U.S.C. § 2254. He has paid the filing fee.
Petitioner challenges the decision of the California Board of Parole Hearings (“Board”)

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to deny him parole at a parole consideration hearing held on November 12, 2009. See Dckt. No.

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1 at 1-2.1 He asserts the following grounds for relief: (1) the decision violated his right to due

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process because it was based on the circumstances of the commitment offense; (2) the Board

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violated his rights under Apprendi v. New Jersey, 530 U.S. 466 (2000), because it denied parole

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based on evidence that was never presented to a jury; (3) the Board violated the Establishment

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Clause by denying parole based on petitioner’s failure to attend religious based programs; (4) the

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For ease of reference, all references to page numbers in the petition are to those
assigned via the court’s electronic filing system.
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Board violated various state laws and petitioner’s right to freedom under the First Amendment

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by trying to force him to admit that he was guilty of his commitment offense; and (5) the Board’s

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decision to deny parole for five years pursuant to Marsy’s Law violated the Ex Post Facto

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Clause. First Am. Pet., Dckt. No. 8 at 4-8. For the reasons explained below, the court finds that

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petitioner’s claims lack merit and the petition must therefore be dismissed. See Rule 4, Rules

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Governing § 2254 Cases (requiring summary dismissal of habeas petition if, upon initial review

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by a judge, it plainly appears “that the petitioner is not entitled to relief in the district court”).

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I.

Due Process Claim

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Petitioner claims that the Board’s decision that he was not suitable for parole violated his

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right to due process because the Board failed to consider the fact that he was only 17 at the time

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the commitment offense occurred. Dckt. No. 8 at 4. He further claims that he has not committed

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another violent offense since being arrested and that he has proved he is suitable for parole. Id.

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Petitioner is essentially claiming that the Board’s decision denying parole violated his right to

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due process because it was not supported by sufficient evidence that petitioner poses a current

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danger to society if released from prison. Id. at 1-5.

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Under California law, a prisoner is entitled to release unless there is “some evidence” of

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his or her current dangerousness. In re Lawrence, 44 Cal. 4th 1181, 1205-06, 1210 (2008); In re

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Rosenkrantz, 29 Cal. 4th 696, 651-53 (2002). According to the United States Supreme Court,

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however, federal habeas review of a parole denial is limited to the narrow question of whether a

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petitioner has received “fair procedures.” Swarthout v. Cooke, 526 U.S. __ (2011), 131 S.Ct

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859, 862 (2011). In other words, a federal court may only review whether a petitioner has

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received a meaningful opportunity to be heard and a statement of reasons why parole was

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denied. Id. (federal due process satisfied where petitioners were “allowed to speak at their

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parole hearings and to contest the evidence against them, were afforded access to their records in

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advance, and were notified as to the reasons why parole was denied”). Thus, this court may not

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review whether the Board correctly applied California’s “some evidence” standard. Id. at 861.
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Petitioner does not allege that he was not afforded constitutionally adequate process as

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defined in Swarthout–that is, that he was denied a meaningful opportunity to be heard or a

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statement of reasons why the Board denied him parole. Rather, it appears that petitioner was

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given the opportunity to be heard at his 2009 parole suitability hearing and received a statement

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of the reasons why parole was denied. See Dckt. No. 1-1 at 16-66 (reflecting both petitioner’s

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participation in the hearing and the Board’s reasons for denying parole). This is all that due

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process requires. Swarthout, 131 S.Ct. at 862-63. Accordingly, petitioner is not entitled to relief

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on this claim.

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II.

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Apprendi Claim
Petitioner claims that the Board violated his right to due process because its decision to

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deny parole was based on evidence that was never submitted to a jury. Dckt. No. 8 at 4; see also

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Dckt. No. 1 at 4.

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In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the United States Supreme Court

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held that the Due Process Clause of the Fourteenth Amendment requires any fact other than a

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prior conviction that “increases the penalty for a crime beyond the prescribed statutory

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maximum” to be “submitted to a jury and proved beyond a reasonable doubt.” The relevant

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statutory maximum “is not the maximum sentence a judge may impose after finding additional

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fact, but the maximum he may impose without any additional findings.” Cunningham v.

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California, 549 U.S. 270, 280 (2007) (quoting Blakely v. Washington, 542 U.S. 296, 303-04

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(2004)). In California, a first degree murder conviction carries a sentence of death, life without

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parole, or a term of 25 years to life. Cal. Penal Code § 190(a). An indeterminate life sentence is

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considered a life sentence until the prisoner is determined to be suitable for parole. People v.

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Dyer, 269 Cal. App. 2d 209, 214 (1969).

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Here, petitioner was convicted of first degree murder and received an indeterminate life

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sentence. Dckt. No. 8 at 1. Since he is serving a life sentence, the Board’s denial of parole did

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not extend his sentence. Accordingly, the rule articulated in Apprendi is inapplicable.
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Petitioner’s second claim must therefore be dismissed.

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III.

Establishment Clause Claim

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Petitioner claims that the Board violated his rights under the First Amendment by

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ordering him to attend religious based self-help programs. Dckt. No. 8 at 5. The court construes

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this argument as a claim that the Board violated the Establishment Clause by conditioning

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petitioner’s release on parol upon the requirement that he participate in religious based self-help

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programs. Conditioning a grant of parole on an inmate attending religious based self-help

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programs, such as Alcoholics Anonymous (“AA”) or Narcotics Anonymous (“NA”), may violate

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the Establishment Clause. Inouye v. Kemna, 504 F.3d 705, 713 (9th Cir. 2007). Petitioner’s

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claim lacks merit, however, as the Board did not order petitioner to attend a religious based self-

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help program or otherwise condition petitioner’s release on his participation in such programs.

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At the hearing, petitioner stated that he has addressed his problems with substance abuse

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“[b]y attending NA, by working the steps daily in my program, taking inventory of myself, being

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more positive, [and] trying to stay sober and clean . . . .” Dckt. No. 1-1 at 30. Although the

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Board discussed with petitioner his involvement in NA, at no time did the Board state that

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petitioner was required to attend NA, AA, or any other religious based self-help program. The

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only statement made at the hearing that could possibly be construed as suggesting that petitioner

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participate in such programs is a statement made by the presiding commissioner at the closing of

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the hearing. The presiding commissioner concluded the hearing by stating, “The Panel

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recommends that the prisoner remain disciplinary-free. If available, participate in self-help and

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earn positive chronos. That will conclude this hearing at 11:45 a.m.” Dckt. No. 1-1 at 66. Even

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assuming that this statement constituted an order to participate in self-help programs, the

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commissioner never specifically stated that petitioner must attend religious based self-help

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programs in order to be eligible for parole.

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Petitioner contends, however, that the only self-help programs offered by the California
Department of Corrections and Rehabilitation (“CDCR”) are AA and NA, both of which are
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religious based programs. Dckt. No. 1 at 70. Petitioner’s contention contradicts the exhibits he

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submitted in support of his original petition. Exhibit 3 to the original petition is titled Self Help

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Certificates. Dckt. No. 1-1 at 90. That exhibit consists of certificates recognizing that petitioner

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completed Rational Behavior Training, Creative Conflict Resolutions, Thinking Skills for

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Offense Prevention, a stress management program, and a managing anger program. Id. at 91-95.

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Petitioner’s own exhibit demonstrates that alternative self-help programs are available to inmates

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in the custody of CDCR.

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Petitioner has failed to show facts demonstrating that he is entitled to relief on his
Establishment Clause claim and therefore the claim should be dismissed.
IV.

Freedom of Speech Claim

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Petitioner claims that the Board also violated the First Amendment and various state laws

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by attempting to force petitioner to admit that he is guilty of his commitment offense. Dckt. No.

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8 at 5.

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The court need not reach the merits of petitioner’s First Amendment claim because it is

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unexhausted. A district court may not grant a petition for a writ of habeas corpus unless “the

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applicant has exhausted the remedies available in the courts of the State,” or unless there is no

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State corrective process or “circumstances exist that render such process ineffective to protect

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the rights of the applicant.” 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion

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requirement by presenting the “substance of his federal habeas corpus claim” to the state courts.

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Picard v. Connor, 404 U.S. 270, 278 (1971) (no exhaustion where the petitioner presented

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operative facts but not legal theory to state courts); see also Duncan v. Henry, 513 U.S. 364, 365

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(1995) (to exhaust a claim, a state court “must surely be alerted to the fact that the prisoners are

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asserting claims under the United States Constitution”). Unless the respondent specifically

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consents to the court entertaining unexhausted claims, a petition containing such claims must be

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dismissed. See 28 U.S.C. § 2254(b)(3); Picard, 404 U.S. at 275. A claim is unexhausted if any

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state remedy is available. See O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) (petitioner must
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seek discretionary review from state court of last resort); Roberts v. Arave, 874 F.2d 528, 529

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(9th Cir. 1988) (no exhaustion where state supreme court referred petitioner’s appeal of trial

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court’s denial of post-conviction relief to lower appellate court and petitioner failed to appeal

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lower court’s disposition of that appeal to state supreme court). For a California prisoner to

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exhaust, he must present his claims to the California Supreme Court on appeal in a petition for

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review or on post-conviction in a petition for a writ of habeas corpus. See Carey v. Saffold, 536

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U.S. 223, 239-40 (2002) (describing California’s habeas corpus procedure); Gatlin v. Madding,

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189 F.3d 882, 888 (9th Cir. 1999) (to exhaust, prisoner must present claims on appeal to

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California Supreme Court in a petition for review). The petitioner bears the burden of

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demonstrating that he has exhausted state remedies. Cartwright v. Cupp, 650 F.2d 1103, 1104

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(9th Cir. 1981).

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On December 13, 2011, the undersigned ordered petitioner to show cause why his

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petition should not be dismissed for failure to exhaust his claims. Petitioner responded to the

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order by submitting a copy of a habeas petition he filed in the California Supreme Court. Dckt.

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No. 10. In that petition, petitioner argues that the California Appeals Court erred by failing to

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address his claim that the Board violated California Penal Code section 5011(b).2 Id. at 7.

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Petitioner, however, did not allege that his right to freedom of speech under the First

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Amendment was violated by the Board. Although true that petitioner’s section 5011(b) claim is

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factually related to his current constitutional claim, presenting the facts of his First Amendment

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claim to the California Supreme Court was not sufficient to exhaust the claim. Petitioner was

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required to present his legal theory to the California Supreme Court, which he failed to do. See

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Picard v. Connor, 404 U.S. 270, 278 (1971) (no exhaustion where the petitioner presented

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operative facts but not legal theory to state courts); Duncan v. Henry, 513 U.S. 364, 365 (1995)

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California Penal Code section 5011(b) provides that “[t]he Board of Prison Terms shall
not require, when setting parole dates, an admission of guilt to any crime for which an inmate
was committed.”
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(to exhaust a claim, a state court “must surely be alerted to the fact that the prisoners are

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asserting claims under the United States Constitution”). Because petitioner’s First Amendment

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claim remains unexhausted and he has not obtained a waiver of the exhaustion requirement, the

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claim must be dismissed.

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Petitioner also contends that the Board violated various state laws by requiring him to

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admit guilt of his commitment offense. Although this claim was presented to the California

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Supreme Court, it is not cognizable in a federal habeas proceeding because it is based solely on a

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violation of state law. See Rivera v. Illinois, 556 U.S. 148, 158 (2009); Estelle v. McGuire, 502

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U.S. 62, 67-68 (1991) (“[I]t is not the province of federal habeas court to reexamine state-court

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determinations on state-law questions.”).

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V.

Ex Post Facto Claim

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Petitioner claims the Board violated the Ex Post Facto Clause by denying him parole for

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five years pursuant to Marsy’s Law. As discussed below, the undersigned finds the claim must

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be dismissed because petitioner is already a member of a class action – Gilman v. Fisher, No.

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Civ. S-05-830 LKK GGH – which addresses this issue.3

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Marsy’s Law, approved by California voters in November 2008, amended California’s

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law governing parole deferral periods. See Gilman v. Davis, 690 F. Supp. 2d 1105, 1109-13

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(E.D. Cal. 2010) (granting plaintiffs’ motion for preliminary injunction to enjoin enforcement of

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Marsy’s Law, to the extent it amended former California Penal Code section 3041.5(b)(2)(A)),

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rev’d sub nom. Gilman v. Schwarzenegger, 638 F.3d 1101 (9th Cir. 2011). Prior to Marsy’s

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Law, the Board deferred subsequent parole suitability hearings to indeterminately-sentenced

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inmates for one year unless the Board determined it was unreasonable to expect that parole could

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be granted the following year, in which case the Board could defer the subsequent parole

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suitability hearing for up to five years. Cal. Pen. Code § 3041.5(b)(2) (2008). Marsy’s Law,

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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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which applied to petitioner at his 2009 parole suitability hearing, amended section 3041.5(b)(2)

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to impose a minimum deferral period of three years, and to authorize the Board’s deferral of a

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subsequent parole hearing for up to seven, ten, or fifteen years. Id. § 3041.5(b)(3) (2010).

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The Constitution provides that “No State shall . . . pass any . . . ex post facto Law.” U.S.

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Const. art. I, § 10. A law violates the Ex Post Facto Clause of the United States Constitution if

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it: (1) punishes as criminal an act that was not criminal when it was committed; (2) makes a

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crime’s punishment greater than when the crime was committed; or (3) deprives a person of a

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defense available at the time the crime was committed. Collins v. Youngblood, 497 U.S. 37, 52

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(1990). The Ex Post Facto Clause “is aimed at laws that retroactively alter the definition of

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crimes or increase the punishment for criminal acts.” Himes v. Thompson, 336 F.3d 848, 854

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(9th Cir. 2003) (quoting Souch v. Schaivo, 289 F.3d 616, 620 (9th Cir. 2002)). See also Cal.

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Dep't of Corr. v. Morales, 514 U.S. 499, 504 (1995). The Ex Post Facto Clause is also violated

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if: (1) state regulations have been applied retroactively; and (2) the new regulations have created

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a “sufficient risk” of increasing the punishment attached to the crimes. Himes, 336 F.3d at 854.

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The retroactive application of a change in state parole procedures violates ex post facto only if

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there exists a “significant risk” that such application will increase the punishment for the crime.

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See Garner v. Jones, 529 U.S. 244, 259 (2000).

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In a class action for injunctive relief certified under Rule 23(b)(2) of the Federal Rules of

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Civil Procedure, a court may, but is not required, to permit members to opt-out of the suit.

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Crawford v. Honig, 37 F.3d 485, 487 n.2 (9th Cir. 1994). In certifying the Gilman class, the

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district court found that plaintiffs satisfied Rule 23(a) and Rule 23(b)(2)’s requirement that “the

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party opposing the class has acted or refused to act on grounds that apply generally to the class,

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so that final injunctive relief or corresponding declaratory relief is appropriate respecting the

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class as a whole.” See Gilman v. Fisher, No. Civ. S-05-830 LKK GGH (“Gilman”), Dckt. No.

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182 (March 4, 2009 Order certifying class pursuant to Rule 23(b)(2) of the Federal Rules of

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Civil Procedure), Dckt. No. 257 (June 3, 2010 Ninth Circuit Court of Appeals Memorandum
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affirming district court’s order certifying class). According to the district court in Gilman, its

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members “may not maintain a separate, individual suit for equitable relief involving the same

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subject matter of the class action.” Gilman, Dckt. No. 296 (December 10, 2010 Order) at 2; see

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also Dckt. No. 278 (October 1, 2010 Order), Dckt. No. 276 (September 28, 2010 Order), Dckt.

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No. 274 (September 23, 2010 Order).

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One of the plaintiffs’ claims in Gilman is that Marsy’s Law’s amendments to section

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3041.5(b)(2) regarding parole deferral periods violates the Ex Post Facto Clause because “when

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applied retroactively, [they] create a significant risk of increasing the measure of punishment

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attached to the original crime.” Gilman, Dckt. No. 154-1 (Fourth Amended/Supplemental

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Complaint), Dckt. No. 183 (March 4, 2009 Order granting plaintiff’s motion for leave to file

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Fourth Amended/Supplemental Complaint). With respect to this ex post facto claim, the class in

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Gilman is comprised of “all California state prisoners who have been sentenced to a life term

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with possibility of parole for an offense that occurred before November 4, 2008.” Gilman, Dckt.

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No. 340 (April 25, 2011 Order amending definition of class). The Gilman plaintiffs seek

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declaratory and injunctive relief, including a permanent injunction enjoining the Board from

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enforcing Marsy’s Law’s amendments to section 3041.5(b) and requiring that the Board conduct

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a new parole consideration hearing for each member of the class. Gilman, Dckt. No. 154-1

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(Fourth Amended/Supplemental Complaint) at 14.

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Here, petitioner alleges he is a California state prisoner who was sentenced to a life term

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with the possibility of parole for an offense that occurred before November 4, 2008. Dckt. No. 1

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at 17. Accepting petitioner’s allegations as true, he is a member of the Gilman class. Petitioner

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asks the court to issue a writ of habeas corpus, id. at 5, but even if the court found that the

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Board’s five-year deferral of petitioner’s next parole suitability hearing violated the Ex Post

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Facto Clause, it would not entitle petitioner to release on parole. Because the ex post facto claim

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concerns only the timing of petitioner’s next suitability hearing, success on this claim would not

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necessarily result in determinations that petitioner is suitable for parole and should be released
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from custody. Rather, petitioner’s equitable relief would be limited to an order directing the

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Board to conduct a new parole suitability hearing and enjoining the Board from enforcing any

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unconstitutional provisions of Marsy’s Law. This is the same relief petitioner would be entitled

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to as a member of the Gilman class action. See Gilman, Dckt. No. 154-1 (Fourth

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Amended/Supplemental Complaint) at 14.

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Accordingly, the court finds that petitioner’s rights will “be fully protected by his

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participation as a class member” in Gilman, and will therefore dismiss petitioner’s ex post facto

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claim. See Crawford v. Bell, 599 F.2d 890, 892 (9th Cir. 1979); see also McNeil v. Guthrie, 945

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F.2d 1163, 1165 (10th Cir. 1991) (“Individual suits for injunctive and equitable relief from

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alleged unconstitutional prison conditions cannot be brought where there is an existing class

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action.”); Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir. 1988) (per curiam) (“To allow

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individual suits would interfere with the orderly administration of the class action and risk

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inconsistent adjudications.”).

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V.

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Conclusion
Based on the foregoing, the undersigned finds that petitioner’s claims lack merit and

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should therefore be dismissed. There is no basis for concluding that a tenable claim for relief

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could be pleaded if leave to amend were granted. See Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir.

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1971) (petition for habeas corpus should not be dismissed without leave to amend unless it

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appears that no tenable claim for relief can be pleaded were such leave granted).

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Accordingly, it is hereby RECOMMENDED that:

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1. Petitioner’s application for a writ of habeas corpus be dismissed; and

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2. The Clerk be directed to close the case.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In

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his objections petitioner may address whether a certificate of appealability should issue in the

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event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing

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Section 2254 Cases (“the district court must issue or deny a certificate of appealability when it

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enters a final order adverse to the applicant”).

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DATED: July 17, 2012.

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