Saavedra v. Rackley

Filing 8

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 4/24/2017 GRANTING 2 Motion for In Forma Pauperis and RECOMMENDING that the 1 Petition for Writ of Habeas Corpus be denied, this case closed, and no Certificate of Appealability be issued. Referred to Judge John A. Mendez. Objections to F&R due within 20 days after being served with these Findings and Recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALFONSO A. SAAVEDRA,

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Petitioner,
v.

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No. 2:17-cv-0661 GGH

ORDER and FINDINGS AND
RECOMMENDATIONS

RONALD RACKLEY,
Respondent.

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Petitioner filed a Petition for a Writ of Habeas Corpus in the Northern District of

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California on February 23, 2017, ECF No. 1, together with a Motion for Leave to Proceed in

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Forma Pauperis. ECF No. 2. The Northern District of California transferred the Petition to this

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District on March 29, 2017 based on petitioner’s place of incarceration in this District. ECF No.

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6.

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Examination of the in forma pauperis application submitted by petitioner, ECF No. No. 2,

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reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to

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proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

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INTRODUCTION AND BACKGROUND
Petitioner is serving a sentence of 10 years to life for a conviction for kidnapping, child

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abduction, cruelty to a child, child stealing and infliction of corporal punishment on a spouse as

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reported in his Petition. ECF No. 1 at 3. He was sentenced on May 5, 1998, id. at 1, and his
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appeal to the Court of Appeal in 2000 was denied without opinion. Earlier this year, petitioner

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filed a writ of habeas corpus in the Santa Clara County Superior Court challenging the decision of

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the Board of Parole Hearings (BPH) to deny him parole on the grounds the decision was not

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supported by the evidence, violated the Eighth Amendment, and further asserting that California

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Proposition 9 violates the federal Constitutions Ex Post Facto clause. Id. at 5. The writ was

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summarily denied on February 8, 2016. California’s Sixth District Court of Appeal also

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summarily denied a writ brought on the same grounds on March 7, 2016 as did the California

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Supreme Court on September 30, 2016. Id. at 4. Essentially the same grounds are raised in the

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above-captioned Petition, filed on February 23, 2017, see below, but petitioner has also raised a

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disproportionality claim.

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DISCUSSION
Rule 4 of the Rules Governing Section 2254 Cases provides, in pertinent part:

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If it plainly appears from the petition and any attached exhibits that

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the petitioner is not entitled to relief in the district court, the judge

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must dismiss the petition and direct the clerk to notify the

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petitioner.

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The Advisory Committee Notes to Rule 8 of those same rules indicate that the court may

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deny a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the

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respondent’s motion to dismiss, or after an answer to the petition has been filed. See Herbst v.

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Cook, 260 F.3d 1039 (9th Cir.2001). Therefore, the court will reach the merits of the petition and

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recommend a summary denial.

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Although petitioner casts his present federal petition claims more broadly and vaguely

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than those which he exhausted in state court, the undersigned will assume he meant to pursue

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those same claims here. Petitioner’s claims may be interpreted and summarized as follows: (1)

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California Proposition 9, the approval of which resulted, inter alia, in a reduction in the number

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of parole hearings to which prisoners are entitled, violates the ex post facto prohibition of the

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federal Constitution; (2) the action of the Parole Board in failing to set a release date for him was

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not supported by the evidence presented; (3) the Board’s failure to establish a parole date for him
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inflicts the cruel and unusual punishment prohibited by the Eighth Amendment to the

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Constitution; and, the sentence he received after conviction was disproportionate and failed to

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provide for good time credits. ECR No. 1 at 6, 8. He cites United States Supreme Court cases in

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support of his claims but they do not address the situation in which he finds himself. Furman v.

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Georgia, 408 U.S. 238 (1972) addresses the issue of discriminatory imposition of the death

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penalty; Robinson v. California, 370 U.S. 660 (1962) addresses the unconstitutionality of state

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criminal law which permits guilt to be determined based on defendant’s status (drug addict), and

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Graham v. Florida, 580 U.S. 48 (2010) deals with imposition of life sentences on juvenile

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offenders who have not committed homicide. None of these cases addresses the circumstances in

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which petitioner finds himself. He further cites to California Supreme and Appellate Court

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opinions which do not rest on federal law.

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First of all, the deferred scheduling of parole eligibility hearings have been found not to

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violate the ex post facto protections of the Constitution. Gilman v. Brown, 814 F.3d 1007, 1016-

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1017 (9th Cir. 2016); Gilman v. Schwarzenegger, 638F.3d 1101 (9th Cir. 2011).

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Secondly, on January 24, 2011, the On January 24, 2011, the United States Supreme Court

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in a per curiam decision found that the Ninth Circuit erred in commanding a federal review of the

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state’s application of state law in applying the “some evidence” standard in the parole eligibility

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habeas context. Swarthout v. Cooke, 562 U.S. 216, 219 (2011), quoting, inter alia, Estelle v.

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McGuire, 502 U.S. 62, 67 (1991), the Supreme Court re-affirmed that “‘federal habeas corpus

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relief does not lie for errors of state law.’” Id. While the high court found that the Ninth Circuit’s

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holding that California law does create a liberty interest in parole was “a reasonable application of

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our cases” (while explicitly not reviewing that holding), the Supreme Court stated:

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“When, however, a State creates a liberty interest, the Due Process Clause requires fair

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procedures for its vindication-and federal courts will review the application of those

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constitutionally required procedures. In the context of parole, we have held that the procedures

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required are minimal.” Id. at 220, citing Greenholtz v. Inmates of Neb. Penal and Correctional

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Complex, 442 U.S. 1, 12 (1979). In Greenholtz the Supreme Court had found under another

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state’s similar parole statute that a prisoner had “received adequate process” when “allowed an
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opportunity to be heard” and “provided a statement of the reasons why parole was denied.” Id.

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Noting their holding therein that “[t]he Constitution [ ] does not require more,´442 U.S. at 15-16.

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Applying this standard in Swarthout the justices in the instances before them the prisoners had

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“received at least this amount of process: They were allowed to speak at their parole hearings and

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

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notified as to the reasons why parole was denied.” 562 U.S. at 220.

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The Supreme Court was emphatic in asserting “[t]hat should have been the beginning and

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the end of the federal habeas courts’ inquiry....” Id. at 221. “It will not do to pronounce

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California’s ‘some evidence’ rule to be ‘a component’ of the liberty interest...”. Id, at 222. “No

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opinion of ours supports converting California’s “some evidence” rule into a substantive federal

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requirement.” Id., at 221. Thusly, the Supreme Court re-affirmed that “‘federal habeas corpus

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relief does not lie for errors of state law.’” Id. at 219.

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The Ninth Circuit has subsequently noted that in light of Swarthout v. Cooke, certain

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Ninth Circuit jurisprudence had been reversed and “there is no substantive due process right

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created by California’s parole scheme.” Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir.2011).

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Thus, there is no federal due process requirement for a “some evidence” review and federal courts

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are precluded from review of the state court’s application of its “some evidence” standard.,

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certain Ninth Circuit jurisprudence had been reversed and “there is no substantive due process

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right created by California’s parole scheme.” Id. at, 1046. Thus, there is no federal due process

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requirement for a “some evidence” review and federal courts are precluded from review of the

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state court’s application of its “some evidence” standard.1

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With respect to the Eighth Amendment claim, petitioner’s sentence was life imprisonment
with the possibility of parole. The BPH does not set this sentence. The concededly valid life

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Petitioner does not demonstrate how his denial of parole could constitute a violation of Equal
Protection. Not only does the above Cook case cover such allegations, but in any event, petitioner
is not a member of a suspect class. All that is necessary is that the legislation concerning parole
eligibility review have a rational connection to a valid public goal. Ensuring that persons
convicted of serious crimes not be released until such release can be safely done, is, of course,
such a rational purpose. Moreover, petitioner has not shown the circumstances of his crime and
his prison record to be similarly situated to other prisoners seeking parole eligibility.
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sentence does not become unconstitutional simply because parole is not granted. Magee v.

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Arnold, 2016 WL 232343 *4 (E.D. Cal. 2016); Royston v. Grounds, 2012 WL 5504191 *2 (N.D.

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Cal. 2012).

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Finally, to the extent that petitioner attacks his underlying sentence in this parole

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eligibility hearing context, the attack is long past due, and unavailable in any event in this habeas

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challenge to the most recent parole eligibility hearing. Reed v. Kernan, 2008 WL 906098 (E.D.

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Cal. 2008); Rules Governing section 2254 proceedings, Rule 2 (e) (only one conviction may be

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challenged in a habeas corpus proceeding).

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CONCLUSION

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In light of the foregoing it is clear that petitioner’s Amended Complaint does not raise a
basis for the grant of a writ of habeas corpus.

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IT IS THEREFORE ORDERED that:

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Petitioner’s Motion for In Forma Pauperis status is GRANTED.

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The Clerk shall assign a district judge to this case.

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IT IS THEREFORE RECOMMENDED that:

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The Petition be DENIED.

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This case be closed.

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3.

No Certificate of Appealability should issue.

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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 twenty 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.” Any reply to the objections

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shall be served and filed within ten days after service of the objections. The parties are advised

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that failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated: April 24, 2017
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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