Thompson v. Arnold

Filing 8

ORDER signed by Magistrate Judge Allison Claire on 05/20/15 ordering petitioner's application for a writ of habeas corpus is dismissed. No certificate of appealability shall issue. CASE CLOSED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MAURICE SETON THOMPSON,

No. 2:14-cv-2821 AC P

Petitioner,

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v.

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ORDER

ERIC ARNOLD,
Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. Petitioner has consented to the jurisdiction of the undersigned.

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ECF No. 4.

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Petitioner was convicted of first degree murder and sentenced in 1980 to a term of seven

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years to life with the possibility of parole. ECF No. 1 at 2; ECF No. 2 at 6. He challenges a July

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2012 decision of the Board of Parole Hearings, denying him parole. ECF No. 2 at 6. In Ground

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One, petitioner contends that the record does not contain “some evidence” to support a finding

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that he will pose an unreasonable risk of danger to society if paroled. Id. at 16-24; ECF No. 2-1

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at 1-7. In Grounds Two and Four he claims that the application of “Marsy’s Law” (Proposition 9)

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increases his minimum and maximum term, thereby extending his incarceration and violating his

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due process rights and the state and federal prohibition against ex post facto laws. ECF No. 2-1 at

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8-23; ECF No. 2-2 at 1-4, 8-10. In Ground Three, petitioner argues that his due process rights
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were violated when the parole board substituted the “some evidence” standard for the required

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“preponderance of the evidence” standard. ECF No. 2-2 at 5-7.

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Rule 4 of the Habeas Rules requires the court to summarily dismiss a habeas petition “[i]f

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it plainly appears from the petition and any exhibits annexed to it that the petitioner is not entitled

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to relief in the district court.”

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With respect to Grounds One and Three, the United States Supreme Court in 2011

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overruled a line of Ninth Circuit precedent that had supported habeas review of parole denials in

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California cases. See Swarthout v. Cooke, 562 U.S. 216, 219 (2011). The Supreme Court held

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that federal habeas jurisdiction does not extend to review of the evidentiary basis for state parole

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decisions. Id. Because habeas relief is not available for errors of state law, and because the Due

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Process Clause does not require correct application of California’s “some evidence” standard for

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denial of parole, federal courts may not intervene in parole decisions as long as minimum

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procedural protections are provided. Id. at 219-20. The protection afforded by the federal Due

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Process Clause to California parole decisions consists solely of the “minimum” procedural

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requirements set forth in Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1

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(1979). Swarthout, 562 U.S. at 220. Specifically, that petitioner was provided with “an

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opportunity to be heard and . . . a statement of the reasons why parole was denied.” Id. The

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petition and exhibits make clear that petitioner was present at the hearing, represented by counsel,

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and provided a statement of the reasons parole was denied. ECF No. 2 at 6, 16-24; ECF No. 2-1

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at 1-8; ECF No. 2-2 at 17; ECF No. 2-6 at 21-25. “[T]he beginning and the end of the federal

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habeas courts’ inquiry” is whether petitioner received “the minimum procedures adequate for

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due-process protection.” Id. The Ninth Circuit has acknowledged that after Swarthout,

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substantive challenges to parole decisions are not cognizable in habeas. Roberts v. Hartley, 640

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F.3d 1042, 1046 (9th Cir. 2011). Accordingly, Grounds One and Three must be dismissed.

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Claims Two and Four involve the application of Marsy’s Law. The court will dismiss the

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instant petition without prejudice to petitioner obtaining any relief that is available to him as a

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member of the plaintiff class in Gilman v. Fisher, 2:05-cv-0830 LKK CKD P (E.D. Cal. Feb. 28,

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2014), appeal docketed, Nos. 14-15680 and 14-15613 (9th Cir. Apr. 22, 2014).
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Under Marsy’s Law, the minimum deferral period between parole hearings was increased

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from one to three years, and the maximum deferral period from five to fifteen years. Gilman v.

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Schwarzenegger, 638 F.3d 1101, 1104 (9th Cir. 2011). Hearings in advance of this schedule can

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be held at the discretion of the Board of Parole Hearings, or at the request of a prisoner (although

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the inmate is limited to one such request every three years). Id. at 1105. The plaintiff 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.” See Gilman,

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2:05-cv-0830 LKK CKD P, ECF No. 532 at 1-2 (Order Filed Feb. 28, 2014). Members of the

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

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subject matter of the class action.” Id., ECF No. 296 at 2 (Order Filed Dec. 10, 2010); see also

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id., ECF Nos. 278 (Order Filed Oct. 1, 2010), 276 (Order Filed Sept. 28, 2010), 274 (Order Filed

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Sept. 23, 2010).

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Petitioner’s claim that the retroactive application of Proposition 9 creates a significant risk

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that he will receive a longer period of incarceration than he would have under the law as it existed

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when he was sentenced mirrors the claims in Gilman. On February 28, 2014, the district judge

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issued an order granting the Gilman class declaratory and injunctive relief, including entitlement

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to annual parole hearings unless the Board expressly finds that a longer deferral period is

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warranted. Gilman, 2:05-cv-0830 LKK CKD P, ECF No. 532 at 57-58. This relief is currently

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stayed and these matters are pending on cross-appeals before the Ninth Circuit Court of Appeals.

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Gilman v. Brown, 9th Cir. Nos. 14-15680 and 14-15613. Accordingly, the court will dismiss

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petitioner’s Ex Post Facto claim without prejudice to any relief that may be available to him as a

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member of the Gilman class. See Crawford v. Bell, 599 F.2d 890, 893 (9th Cir. 1979) (“A court

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may choose not to exercise its jurisdiction when another court having jurisdiction over the same

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matter has entertained it and can achieve the same result.”); see also McNeil v. Guthrie, 945 F.2d

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

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unconstitutional prison conditions cannot be brought where there is an existing class action.”);

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Gillespie v. Crawford, 858 F.2d 1101, 1103 (5th Cir. 1988) (“To allow individual suits would

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interfere with the orderly administration of the class action and risk inconsistent adjudications.”)
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Plaintiff’s claim that the changes made by Proposition 9 violate his due process rights

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because they cause conflicts within the California Penal Code (ECF No. 2-1 at 16) is not

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cognizable. A state prisoner is entitled to federal habeas relief only if he is being held in custody

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in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a).

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Unless an issue of federal constitutional or statutory law is implicated by the facts presented, the

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claim is not cognizable in federal habeas corpus. Estelle v. McGuire, 502 U.S. 62, 68 (1991).

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Federal habeas corpus relief “does not lie for error of state law.” Lewis v. Jeffers, 497 U.S. 764,

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780 (1990) (citations omitted). A petitioner may not transform a state-law issue into a federal one

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merely by asserting a violation of due process. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir.

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1996). Alleged errors in the interpretation or application of state law, which includes alleged

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errors in the state post-conviction review process, do not warrant habeas relief. Hubbart v.

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Knapp, 379 F.3d 773, 779-80 (9th Cir. 2004); Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989).

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Moreover, as set forth above, petitioner was afforded the minimum procedures required under the

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Due Process Clause and he therefore cannot state a claim for violation of his due process rights.
To the extent petitioner contends that the failure to release him violated his due process

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rights and the Eight Amendment’s prohibition of cruel and unusual punishment because both his

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minimum and maximum base term dates have passed (ECF No. 2-2 at 2-4), he also fails to state a

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claim.

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With respect to the due process portion of petitioner’s argument, it is established that

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“[t]here is no right under the Federal Constitution to be conditionally released before the

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expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners.”

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Swarthout, 562 U.S. at 220. If state law does create a liberty interest in parole, because states

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“are under no duty to offer parole to their prisoners,” the existence of this state liberty interest

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does not give rise to a federal right “to be conditionally released before the expiration of a valid

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sentence.” Id. Due process is satisfied as long as the state provides an inmate seeking parole

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with “an opportunity to be heard and . . . a statement of the reasons why parole was denied.” Id.

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(citing Greenholtz, 442 U.S. at 16). As already addressed, the petition and exhibits establish that

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petitioner was afforded at least the minimal procedures required to satisfy due process. See ECF
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No. 2 at 6, 16-24; ECF No. 2-1 at 1-8; ECF No. 2-2 at 17; ECF No. 2-6 at 21-25.

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As for petitioner’s Eighth Amendment claim, a criminal sentence that is “grossly

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disproportionate” to the crime for which a defendant is convicted may violate the Eighth

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Amendment. Lockyer v. Andrade, 538 U.S. 63, 72 (2003); Rummel v. Estelle, 445 U.S. 263, 271

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(1980). However, outside of the capital punishment context, the Eighth Amendment prohibits

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only sentences that are extreme and grossly disproportionate to the crime. United States v. Bland,

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961 F.2d 123, 129 (9th Cir. 1992) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)

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(Kennedy, J., concurring)). Such instances are “exceedingly rare” and occur in only “extreme”

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cases. Lockyer, 538 U.S. at 73; Rummel, 445 U.S. at 272. “A punishment within legislatively

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mandated guidelines is presumptively valid. ‘Generally, so long as the sentence imposed does

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not exceed the statutory maximum, it will not be overturned on eighth amendment grounds.’”

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United States v. Mejia–Mesa, 153 F.3d 925, 930 (9th Cir. 1998) (citing United States v.

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McDougherty, 920 F.2d 569, 576 (9th Cir. 1990)).

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The United States Supreme Court has held that a life sentence is constitutional, even for a

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non-violent property crime. See Rummel, 445 U.S. at 265-66 (upholding a life sentence with the

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possibility of parole, imposed under a Texas recidivist statute, for a defendant convicted of

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obtaining $120.75 by false pretenses, an offense normally punishable by imprisonment for two to

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ten years); see also Harmelin, 501 U.S. at 961, 994-96 (upholding a sentence of life without the

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possibility of parole for a defendant convicted of possessing more than 650 grams of cocaine,

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although it was his first felony offense). Accordingly, a life sentence for a first-degree murder

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such as that committed by petitioner would not constitute cruel and unusual punishment under the

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Eighth Amendment. See Plasencia v. Alameida, 467 F.3d 1190, 1204 (9th Cir. 2006) (holding

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that a sentence of fifty years to life for murder with use of a firearm is not grossly

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disproportionate); People of Territory of Guam v. Sablan, 584 F.2d 340, 341 (9th Cir. 1978)

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(upholding a life sentence for first degree felony murder); United States v. LaFleur, 971 F.2d 200,

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211 (9th Cir. 1991) (upholding life imprisonment for first degree murder); Harris v. Wright, 93

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F.3d 581, 585 (9th Cir. 1996) (upholding a mandatory sentence of life without parole for first

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degree murder committed by a young offender). Accordingly, petitioner’s claim of cruel and
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unusual punishment must be dismissed.
CERTIFICATE OF APPEALABILITY

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Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must

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issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A

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certificate of appealability may issue only “if the applicant has made a substantial showing of the

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denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth herein, a

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substantial showing of the denial of a constitutional right has not been made in this case.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s application for a writ of habeas corpus is dismissed.

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2. No certificate of appealability shall issue.
DATED: May 20, 2015

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