White v. Hill

Filing 16

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 8/21/13 RECOMMENDING that 14 Motion to dismiss be granted; the petition be dismissed; and the Clerk be directed to close the case. Referred to Judge Lawrence K. Karlton; Objections to F&R due within 14 days.(Dillon, 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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DIWON WHITE,

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Petitioner,

No. 2:12-cv-748-LKK-EFB P

vs.
RICK HILL,

FINDINGS AND RECOMMENDATIONS

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Respondent.

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_________________________________/

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Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. On July 12, 1994, petitioner was sentenced to 7 years to

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life in prison for aggravated mayhem with the use of a weapon. Pet., ECF No. 1 at 1, 36. The

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instant petition challenges the decision of the California Board of Parole Hearings (“Board”) to

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deny him parole at a parole consideration hearing held on April 29, 2009. Petitioner asserts the

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following claims for relief: 1) the Board’s decision to deny him parole violated his right to due

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process because the decision was not supported by “some evidence” that petitioner poses a

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danger to the public; 2) the Board’s denial of parole converted petitioner’s indeterminate

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sentence into a life sentence without the possibility of parole, which amounts to a

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disproportionate sentence and cruel and unusual punishment; and 3) the Board failed to award

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petitioner good conduct credits in violation of the Equal Protection Clause.
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Respondent moves to dismiss the petition pursuant to Rule 4 of the Rules Governing

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§ 2254 Cases for failure to state a cognizable claim and failure to exhaust his state remedies.

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This court has authority under Rule 4 to dismiss a petition if it “plainly appears from the face of

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the petition and any attached exhibits that the petitioner is not entitled to relief in the district

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court . . . .” As a corollary to that rule, the court may also consider a respondent’s motion to

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dismiss, filed in lieu of an answer, on the same grounds. See, e.g., O’Bremski v. Maass, 915

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F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss for failure to exhaust

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state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as the

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procedural vehicle to review a motion to dismiss for state procedural default). For the reasons

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explained below, respondent’s motion must be granted.

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I.

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Due Process
Petitioner argues that the Board’s finding that he was unsuitable for parole violated his

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right to due process because the decision was not supported by some evidence that petitioner

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poses an unreasonable risk of danger to society. ECF No. 1 at 11-33. Petitioner contends that

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the Board relied on his commitment offense to deny him parole, which was insufficient given the

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passage of time and his acceptance of responsibility for his crime. Id. at 16-18. Respondent

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argues that petitioner’s allegations fail to state a cognizable claim for relief. ECF No. 14 at 3-4.

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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, ___ U.S. ___, 131 S.Ct. 859, 862

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

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meaningful opportunity to be heard and a statement of reasons why parole was denied. Id. at

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862-63 (federal due process satisfied where petitioners were “allowed to speak at their parole

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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 862.

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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. Indeed, petitioner concedes that the

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Board provided him the reasons he was found unsuitable for parole. See ECF No. 1 at 28, 30,

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33.1 The only argument petitioner advances in support of his due process claim is that the

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decision finding him unsuitable for parole was not supported by “some evidence.” Petitioner’s

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contention, even if valid, does not provide a basis for federal relief. Accordingly, petitioner is

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not entitled to relief on this claim.2

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II.

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Conversion of Petitioner’s Sentence
Petitioner argues that the 2009 decision denying him parole has converted his

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indeterminate “life sentence into what can only be deemed to have become a maximum sentence

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of ‘life without the possibility of parole’ or, worse yet, a death sentence in prison . . . .” ECF No.

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1 at 39. Petitioner contends that the conversion of his sentence violates many constitutional

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rights, including his right to be free from cruel and unusual punishment under the Eight

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Amendment. Id. at 42-43. Respondent does not address this claim in his motion to dismiss.

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Nevertheless, the claim lacks merit.

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A criminal sentence that is not proportionate to the crime of conviction may indeed
violate the proscription on cruel and unusual punishment in the Eighth Amendment. Outside of

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Respondent points out that although petitioner challenges the Board’s 2009 decision
denying him parole, petitioner, presumably by mistake, attached the transcript of a parole
suitability hearing of another inmate. See ECF No. 1-2 (transcripts referring to inmate Dickey).

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Respondent claims that the instant petition challenges the Board’s application of
Marsy’s law in deferring petitioner’s next suitability hearing for 5 years. ECF No. 14 at 2.
Although petitioner challenges the Board’s finding “that a parole date should not be set for him
within the following 3 years,” petitioner does not actually challenge the application of Marsy’s
law. See ECF No. 1 at 26. Rather, petitioner simply contends that the decision to deny him
parole was “not supported by and evidence of petitioner’s danger to society.” Id.
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the capital punishment context, however, the Eighth Amendment “forbids only extreme

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sentences that are grossly disproportionate to the crime.” United States v. Bland, 961 F.2d 123,

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129 (9th Cir. 1992) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,

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concurring)).

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Petitioner was sentenced to a term of 7 years to life for aggravated mayhem with the use

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of a weapon. Such a sentence contemplates a potential life term in prison. At the 2009 parole

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suitability hearing, petitioner was denied parole, and his next suitability hearing was deferred for

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5 years. ECF No. 1-1 at 5 (Ex. F). Should petitioner be found suitable at his next parole

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hearing, he will be released on parole. While petitioner might have hoped or expected to be

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released sooner, the Board’s decision to deny him a parole release date has not enhanced his

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punishment or sentence. Accordingly, petitioner’s is not entitled to relief on this claim.
Petitioner’s contention that he has received a disproportionate sentence because the

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Board erred by failing to consider the matrix of base terms set forth in the California Code of

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Regulations, does not change this finding. ECF No. 1 at 35-36. The Board was under no

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obligation to consider the matrix, or principles of proportionality and uniformity, at petitioner’s

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parole hearing. The Board is only required to consider the matrix of base terms upon a finding

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that the inmate is suitable for parole. Cal. Code Regs. tit. 15, § 2282; In re Dannenberg 34 Cal.

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4th 1061, 1091-94; see also Sass v. Calif. Bd of Prison Terms, 461 F.3d 1123, 1132 (9th Cir.

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2006) (“The matrix is intended to ensure sentencing uniformity among those who commit similar

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crimes. Such considerations are, of course, inapplicable in the case of prisoners deemed

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unsuitable for parole.”), overruled in part on other grounds by Hayward v. Marshall, 603 F.3d at

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555 (citations omitted). Since the Board found petitioner unsuitable for parole, it was not

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required to consider the matrix or compare petitioner’s term to other inmates committed for

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similar crimes.

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III.

Failure to Award Good Time Credits
Petitioner further argues that the Board erred by failing to award him good time credits.

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ECF No. 1 at 36-37.3 In California, the California Department of Corrections and Rehabilitation

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(“CDCR”) calculates an inmates minimum eligible parole date (“MEPD”) and the Board

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determines the amount of time an inmate must serve prior to release on parole. See Cal. Code

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Regs. tit. 15, § 2400. Inmates receive their initial parole hearing one year before the MEPD, and

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they continue to receive parole hearings until they are found suitable for parole. Cal. Penal Code

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§ 3041(a).

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Once an inmate has been found suitable for parole, the Board determines the length of

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time a prisoner must serve prior to actual release on parole by setting a base term and then

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adjusting the term by accounting for aggravating or mitigating circumstances. Id. at §§ 2282-

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2290, 2400, 2403-2409. Once a prisoner reaches his MEPD, good time credits are not awarded

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until the inmate is found suitable for parole. Id.

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Petitioner’s claim that he was denied good time credits has no merit. At the time of the

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2009 parole hearing, petitioner had already passed his MEPD. See ECF No. 1 at 85 (reflecting

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that petitioner reached his MEPD on August 18, 2004). Since petitioner had passed his MEPD

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and was found unsuitable for parole at the 2009 hearing, there was no reason to calculate

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petitioner’s good time credits. See Cal. Penal Code § 3041 (b) (stating that parole date cannot be

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fixed where the Board finds the inmate unsuitable for parole); Cal. Code Regs. tit. 15,

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§§ 2281(a) (“Regardless of the length of time served, a life prisoner shall be found unsuitable for

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and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of

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danger to society if released from prison”); see also Cole v. Horel, No. CIV S-06-850 MCE

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GGH P, 2007 WL 2221060, *4 (E.D. Cal. Aug. 1, 2007) (“if a prisoner’s incarceration time

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passes his MEPD, and he has yet to be found eligible for parole, computation of time credits is

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Respondent’s motion also fails to address this claim.
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meaningless-he will be released if and when found eligible, and then only after a computation of

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a release date under Board matrices”) (emphasis in original). Accordingly, petitioner’s claim

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that the Board failed to award him good time credits at his 2009 parole hearing lacks merit.

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IV.

Conclusion

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Based on the foregoing, it is hereby RECOMMENDED that:

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1. Respondent’s motion to dismiss, ECF No. 14, be granted;

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2. The petition be dismissed; and

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3. 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).

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In 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: August 21, 2013.

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