Holly v. Brown

Filing 6

ORDER signed by Magistrate Judge Gregory G. Hollows on 2/22/2016 DISMISSING this petition with prejudice; this action is closed; and the court DECLINES to issue the certificate of appealability referenced in 28 U.S.C. § 2253. CASE CLOSED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID HOLLY,

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Petitioner,

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No. 2:16-cv-0121 GGH P

v.

ORDER

EDMUND G. BROWN,

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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. 1 Petitioner challenges the 2015 decision by the Governor

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reversing the California Board of Parole Hearings (BPH) decision finding him suitable for parole.

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Review of the federal habeas petition and attached exhibits demonstrates that petitioner is

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not entitled to relief on the grounds alleged, thus requiring dismissal of the petition. See Rule 4,

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Rules Governing Section 2254 Cases in the United States District Courts (“[i]f it plainly appears

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

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court, the judge must dismiss the petition....”).
In 2011, the United States Supreme Court overruled a line of Ninth Circuit precedent that

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This action is before the undersigned pursuant to petitioner’s consent to proceed before a
magistrate judge. 28 U.S.C. § 636(c).

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had supported habeas review in California cases involving denials of parole by the BPH and/or

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the governor. See Swarthout v. Cooke, 562 U.S. 216, 131 S.Ct. 859, 861 (2011). The Supreme

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Court held that federal habeas jurisdiction does not extend to review of the evidentiary basis for

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

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the Due Process Clause does not require correct application of California's “some evidence”

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

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minimum procedural protections are provided.2 Id. at 861–62. One of the petitioners before the

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Supreme Court in Swarthout was, like petitioner here, a prisoner who had been granted parole by

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the BPH but whose parole recommendation was subsequently reversed by the governor. 131 S.Ct.

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at 861.

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The Ninth Circuit has acknowledged that after Swarthout, substantive challenges to parole

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decisions are not cognizable in habeas. Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir.2011).

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The rule is the same when a petitioner challenges a decision by the governor rather than a

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decision of the parole board. Styre v. Adams, 645 F.3d 1106, 1108–09 (9th Cir.2011). Neither a

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claim that the governor's decision is usupported by evidence nor a claim that the governor failed

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to hold a second hearing can support habeas relief. Id. at 1109. Under Swarthout and Styre, this

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court simply may not consider petitioner's claim that the governor's decision violated due process.

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Petitioner raises three claims in the instant petition. His first claim is that by reversing the

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parole suitability finding, the governor violated his due process and equal protection rights

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because he failed to set forth evidence that petitioner would pose an unreasonable risk of danger

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to public safety, and without such evidence the statute requires that a parole date be set. He

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asserts that the BPH considered all of the issues raised in the governor’s reversal and found

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petitioner entitled to parole.

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Petitioner’s challenge to the sufficiency of the evidence underlying the governor’s

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decision is not cognizable. Under the Supreme Court's decision in Swarthout, this court may not

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Citing Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 (1979),
the Supreme Court noted it had found under another state’s similar parole statute that a prisoner
had “received adequate process” when “allowed an opportunity to be heard” and “provided a
statement of the reasons why parole was denied.” Swarthout, 131 S.Ct. at 862.
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review whether California's “some evidence” standard was correctly applied in petitioner's case.

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Swarthout, 131 S.Ct. at 862–63. Petitioner is only entitled to an opportunity to be heard and to be

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provided a statement of the reasons for the parole denial. Id. at 862. The transcript from the

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hearing indicates that petitioner was represented by counsel and both counsel and petitioner were

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present and had an opportunity to present their arguments. (ECF No. 1, Ex. A.) The record also

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indicates that the governor reviewed the record and informed petitioner why he reversed the

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BPH’s decision, the entirety of his decision focusing on petitioner’s risk of danger to society.

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(Id., Ex. B.) The Due Process and Equal Protection Clauses require no more.

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Petitioner next claims that the governor’s reversal of the parole suitability finding violated

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due process and petitioner’s plea agreement and “already earned credit provisions” and is

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“contrary to his performance as a model prisoner during his entire incarceration.” Petitioner

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claims that he has already surpassed his “aggravated term,” and that he has met all of the

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requirements of state statutes implementing “specific performance requirements.” To the extent

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that petitioner contends that the governor’s actions violated California law, his claims are not

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cognizable on habeas review. Errors in application of state law are not cognizable in federal

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habeas corpus. Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385

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(1991).

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Petitioner’s third claim is that “Sutter County Superior court’s decision to deny petitioner

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habeas corpus relief is wrong and unreasonable in light of the facts/evidence presented and

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increases the disproportionality imposed by the governor’s reversal of parole after petitioner’s

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term had been set by the Board in accordance with his culpability for his crime.” Petitioner

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essentially argues that this disproportionality violates the Eighth Amendment proscription against

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cruel and unusual punishment.

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Petitioner's Eighth Amendment claim is not cognizable. The United States Supreme

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Court has upheld the constitutionality of indeterminate life sentences with the possibility of parole

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after a specified period of time such as the sentence imposed in petitioner's case. Lockyer v.

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Andrade, 538 U.S. 63, 74, 123 S.Ct. 1166 (2003); Ewing v. California, 538 U.S. 11, 30, 123 S.Ct.

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1179 (2003). “Generally, so long as the sentence imposed does not exceed the statutory
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maximum, it will not be overturned on eighth amendment grounds.” Belgarde v. Montana, 123

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F.3d 1210, 1215 (9th Cir.1997). Petitioner is serving an indeterminate life sentence and no

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violation of the Eighth Amendment occurs merely because it is determined that he is unsuitable

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for release on parole during the service of that prison term. See Harris v. Long, 2012 WL

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2061698, at *8 (C.D.Cal. May 10, 2012) (“[T]he Court is unaware of any United States Supreme

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Court case holding that either the denial of parole and continued confinement of a prisoner

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pursuant to a valid indeterminate life sentence, ... constitutes cruel and unusual punishment in

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violation of the Eighth Amendment. Indeed, the Supreme Court has held that ‘[t]here is no

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constitutional or inherent right of a convicted person to be conditionally released before the

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expiration of a valid sentence.’ ”) (quoting Greenholtz v. Inmates of Neb. Penal and Correctional

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Complex, 442 U.S. 1, 7, 99 S.Ct. 2100 (1979)); Prellwitz v. Sisto, 2012 WL 1594153, at *6

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(E.D.Cal. May 4, 2012) (rejecting a similar Eighth Amendment claim and holding that “[w]hile

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petitioner might have hoped or expected to be released sooner, the Board's decision to deny him a

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parole release date has not enhanced his punishment or sentence.”); see also Rosales v. Carey,

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2011 WL 3319576, at *8 (E.D.Cal. Aug.1, 2011) (“[T]he Ninth Circuit has said that any

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emotional trauma from dashed expectations concerning parole ‘does not offend the standards of

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decency in modern society.’”) (quoting Baumann v. Arizona Dept' of Corrections, 754 F.2d 841

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(9th Cir.1985)).

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In fact, the Supreme Court has never found that a fifteen years to life sentence for second

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degree murder violates the Eighth Amendment. Adams v. Gonzales, 2015 WL 429801, *5 (C.D.

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Cal. Feb. 2, 2015). As petitioner’s sentence is a term potentially for his entire life, he will not

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serve this term only if he is found suitable for parole and the governor does not reverse the

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finding. The fact that petitioner will have been incarcerated for longer than his base term if and

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when he is found suitable for parole is of no consequence in light of his “life” sentence.

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Accordingly, IT IS HEREBY ORDERED that:

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1. This petition is dismissed with prejudice;

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2. This action is closed; and

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3. The court declines to issue the certificate of appealability referenced in 28 U.S.C. §

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2253.

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Dated: February 22, 2016

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/Holl0121.Parole

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