Mosley v. Oroski

Filing 66

ORDER by Judge Thelton E. Henderson denying 55 Respondent's motion to revoke bail. (tehlc3, COURT STAFF) (Filed on 3/4/2011)

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Mosley v. Cullen Doc. 66 1 2 3 4 5 6 7 8 9 10 v. RON MOSLEY, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Petitioner, NO. C05-4260 TEH ORDER DENYING RESPONDENT'S MOTION TO REVOKE BAIL VINCENT CULLEN, Respondent. United States District Court 11 For the Northern District of California This matter came before the Court on February 28, 2011, on Respondent Vincent 12 Cullen's motion to revoke Petitioner Ron Mosley's bail. After carefully considering the 13 parties' written and oral arguments, the Court now DENIES the motion for the reasons 14 discussed below. 15 16 BACKGROUND 17 After pleading guilty to second-degree murder, Petitioner Ron Mosley was sentenced 18 on December 27, 1985, to a prison term of fifteen years to life, with a minimum parole 19 eligibility of ten years. On October 24, 2004, the California Board of Prison Terms 20 conducted Mosley's fourth parole review hearing. The panel recommended that Mosley be 21 released on parole, and the Board formally approved Mosley for parole on February 19, 22 2005. However, Governor Arnold Schwarzenegger reversed the Board's grant of parole on 23 March 15, 2005. 24 On May 1, 2007, this Court denied Mosley's challenges to the Governor's reversal, 25 and Mosley timely appealed. Mosley's appeal raised three issues: that the Governor's 26 reversal of the Board's grant of parole violated (1) due process; (2) the Ex Post Facto Clause; 27 and (3) his plea agreement. On November 24, 2010, the United States Court of Appeals for 28 the Ninth Circuit determined that "`some evidence' of present dangerousness is lacking," and Dockets.Justia.com 1 also concluded that "[t]he record indicates that Mosley matured emotionally and had sincere 2 remorse regarding the offense, and that he had realistic plans for release." Mosley v. Oroski, 3 Nos. 08-15327 & 08-15389, slip op. at 4 & n.3 (9th Cir. Nov. 24, 2010). As a result, the 4 court found a violation of Mosley's due process rights and "reverse[d] and remand[ed] with 5 instructions to the district court to grant the writ, ordering the Governor's decision vacated 6 and the Board's February 2005 decision reinstated." Id. at 5. Given that disposition, the 7 court found it unnecessary to reach the other two grounds Mosley raised on appeal. Id. at 5 8 n.5. The Ninth Circuit subsequently stayed the mandate upon motion by Respondent, the 9 acting warden at San Quentin State Prison ("Warden"), where Mosley was incarcerated. The 10 Warden's petition for writ of certiorari is currently pending before the United States Supreme United States District Court 11 Court. For the Northern District of California 12 In a separate order, the Ninth Circuit remanded the case to this Court "for the limited 13 purpose of determining whether petitioner is entitled to bail or release pending final 14 resolution of the case." Dec. 14, 2010 Order (Ex. A to Dec. 15, 2010 Loeb Decl.). 15 Following briefing and oral argument, the Court granted Mosley's motion for bail on 16 December 21, 2010, and Mosley was released under conditions set by a magistrate judge on 17 December 23, 2010, including supervision by this district's Office of Pretrial Services. 18 Mosley currently remains released on bail. 19 On January 24, 2011, the United States Supreme Court ruled that a prisoner subject to 20 California's parole statute receives adequate process when he is allowed an opportunity to be 21 heard and is provided with a statement of the reasons why parole was denied. Swarthout v. 22 Cooke, 131 S. Ct. 859, 862 (2011) (per curiam). In the context of a federal habeas challenge 23 to the denial of parole based on due process, the Court explained, "it is no federal concern 24 . . . whether California's `some evidence' rule of judicial review (a procedure beyond what 25 the Constitution demands) [is] correctly applied." Id. at 863. The Court extended the time to 26 file a petition for rehearing to March 10, 2011. Feb. 4, 2011 Letter from Sup. Ct. Clerk 27 (Ex. B to Feb. 15, 2011 Loeb Decl.). 28 2 1 Following the Supreme Court's decision in Cooke, the Ninth Circuit withdrew its 2 November 24, 2010 disposition in this case and stayed further proceedings "pending final 3 resolution of Cooke v. Solis, 606 F.3d 1206 (9th Cir. 2010), and Clay v. Kane, 384 Fed. 4 App'x 544 (9th Cir. 2010), in this court." Jan. 31, 2011 Order (Ex. A to Feb. 15, 2011 Loeb 5 Decl.). 6 On February 7, 2011, the Warden filed a motion to revoke Mosley's bail and 7 requested an order shortening time so that this matter could be heard on February 14, 2011. 8 This Court granted in part the request to shorten time, setting a February 28, 2011 hearing 9 date and a shortened briefing schedule. Mosley filed a timely opposition brief, and the 10 Warden filed a timely reply. At oral argument, this Court heard from counsel for both United States District Court 11 parties, as well as statements from the Pretrial Services officer charged with Mosley's For the Northern District of California 12 supervision. 13 14 DISCUSSION 15 I. 16 Legal Standard Rule 23 of the Federal Rules of Appellate Procedure governs "release on bail of state 17 prisoners seeking habeas corpus relief in federal court." Marino v. Vasquez, 812 F.2d 499, 18 507 (9th Cir. 1987). Rule 23(b) provides that, "[w]hile a decision not to release a prisoner is 19 under review," a court may order the prisoner detained in the same custody from which 20 release is sought, detained in other appropriate custody, or released with or without surety. 21 Rule 23(d) states that: 22 23 24 An initial order governing the prisoner's custody or release, including any recognizance or surety, continues in effect pending review unless for special reasons shown to the court of appeals or the Supreme Court, or to a judge or justice of either court, the order is modified or an independent order regarding custody, release, or surety is issued. 25 The parties dispute whether Rule 23(b) or Rule 23(d) applies here. 26 In its order shortening time on the Warden's motion, the Court indicated that "the 27 procedural posture of this case is now the same as it was when this Court denied Mosley's 28 first motion for bail on December 16, 2008: namely, this Court has denied Mosley's petition 3 1 for writ of habeas corpus, and that order remains unresolved on appeal to the United States 2 Court of Appeals for the Ninth Circuit." Feb. 9, 2011 Order at 1. However, this Court has 3 already issued two orders governing Mosley's release: a December 16, 2008 order that 4 denied Mosley's motion for bail, and a December 21, 2010 order granting bail. Based on the 5 plain language of the rules, the Court therefore finds Rule 23(d) to be applicable here. See 6 Christian v. Frank, Civ. No. C04-00743 DAE-LEK, 2010 WL 1064732, at *4 (D. Haw. 7 Mar. 22, 2010) (recommendations of magistrate judge) ("This Court . . . finds that Rule 23(b) 8 and (c) only applied to the initial decision whether, and under what terms, to release 9 Petitioner pending the appeal of the Habeas Order. Now that Respondents seek either a 10 modification of those initial decisions or the issuance of a new ruling on Petitioner's custody, United States District Court 11 Rule 23(d) applies.").1 For the Northern District of California 12 "A court reviewing an initial custody determination pursuant to Rule 23(d) must 13 accord a presumption of correctness to the initial custody determination . . ., whether that 14 order directs release or continues custody, but that presumption . . . may be overcome if the 15 traditional stay factors so indicate." Hilton v. Braunskill, 481 U.S. 770, 777 (1987). Those 16 factors are: "(1) whether the stay applicant has made a strong showing that he is likely to 17 succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; 18 (3) whether issuance of the stay will substantially injure the other parties interested in the 19 proceeding; and (4) where the public interest lies." Id. at 776. 20 The parties dispute whether this Court's 2008 order denying bail or its 2010 order 21 granting bail is the "initial order" that is presumed to be correct under Rule 23(d). While the 22 Court is inclined to adopt Mosley's position that the 2010 order is entitled to a presumption 23 of correctness, it need not resolve this issue definitively because, as discussed below, the 24 traditional stay factors would overcome any presumption that Mosley should remain in 25 custody pending ultimate resolution of his appeal. 26 1 The Christian court also concluded that a district court lacks jurisdiction to modify a 27 custody order under Rule 23(d), which refers only to appellate judges and Supreme Court justices. However, the parties in this case agree that the Ninth Circuit's remand order 28 provides this Court with jurisdiction to rule on the Warden's motion. 4 1 II. 2 3 Analysis of Stay Factors A. Likelihood of Success on the Merits As noted above, Mosley's appeal challenges the Governor's reversal of the Board's 4 grant of parole on three grounds: (1) that it violated due process; (2) that it violated the 5 Ex Post Facto Clause; and (3) that it violated his plea agreement. Mosley's due process 6 challenge appears to have been foreclosed by Cooke, and this Court does not find that 7 Mosley has any likelihood of succeeding on the merits of that claim. However, for the 8 reasons discussed below, the Court finds that Mosley has a substantial likelihood of 9 succeeding on his ex post facto challenge.2 10 Mosley's ex post facto challenge is based on the undisputed fact that the Governor did United States District Court 11 not have the power to reverse the Board at the time Mosley was sentenced in 1985; the For the Northern District of California 12 Governor did not gain that power until Proposition 89 passed in 1988 and added section 8(b) 13 to Article V of the California constitution. In Johnson v. Gomez, 92 F.3d 964 (9th Cir. 14 1996), the Ninth Circuit rejected a similar challenge based on its determination that "it 15 cannot be said with certainty that the [Board] would have granted Johnson parole had it 16 possessed the final review authority." Id. at 967 (emphasis added). This Court relied on 17 Johnson in denying Mosley's habeas petition. 18 Upon further review, the Court concludes that its reliance on Johnson was erroneous. 19 In 2000, the Supreme Court explained that: 20 21 22 23 24 When [a retroactive] rule does not by its own terms show a significant risk, the respondent must demonstrate, by evidence drawn from the rule's practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration than under the earlier rule. . . . In the case before us, respondent must show that as applied to his own sentence the law created a significant risk of increasing his punishment. 25 Garner v. Jones, 529 U.S. 244, 255 (2000) (emphasis added). Thus, the correct test is ­ and 26 was, at the time of this Court's 2007 order ­ whether Mosley can show a "significant risk" 27 2 The Court expresses no opinion on Mosley's likelihood of success on his plea 28 agreement claim. 5 1 that the change in law increased his punishment, and not whether he can make such a 2 showing "with certainty." See, e.g., Gilman v. Schwarzenegger, --- F.3d ---, 2011 WL 3 198435 (9th Cir. 2011) (applying Garner's "significant risk" language to an ex post facto 4 challenge); Brown v. Palmateer, 379 F.3d 1089, 1095 (9th Cir. 2004) (same); Thomas v. 5 Yates, 637 F. Supp. 2d 837, 850-54 (E.D. Cal. 2009) (explaining that Johnson does not 6 preclude an ex post facto challenge to article V, section 8(b) under Garner, and citing several 7 other district courts that applied Garner to similar challenges but also two courts that 8 concluded that Garner did not overrule Johnson). Indeed, the Warden acknowledges that 9 "Mosley's ex post facto claim is an `as applied' argument based on Garner," and does not 10 argue that Johnson should control the outcome of this case. Reply at 4. United States District Court 11 For the Northern District of California The Warden's only argument as to why Mosley would not be likely to succeed on his 12 ex post facto claim is that "Mosley has not and cannot overcome the presumption that the 13 Governor followed the law and fulfilled his obligations when he reviewed and reversed the 14 Board's decision." Id. The Warden correctly observes that, under Garner, "[a]bsent a 15 demonstration to the contrary," the Board and the Governor are presumed to have followed 16 their "statutory commands and internal policies in fulfilling [their] obligations." 529 U.S. at 17 256. However, upon careful consideration, the Court concludes that the Ninth Circuit is 18 likely to find "a demonstration to the contrary" in this case. Unlike in other cases where 19 district courts have denied similar challenges, Mosley does not rely on statistics concerning 20 the Governor's high reversal rate when the Board has found prisoners suitable for parole. 21 See, e.g., Lewis v. Veal, No. 2:06-cv-0481-MCE TJB, 2011 WL 475462, at *7 (E.D. Cal. 22 Feb. 3, 2011); Seiler v. Brown, No. C04-2911 PJH, 2007 WL 2501518, at *5 (N.D. Cal. 23 Aug. 30, 2007). Instead, he presents "specific facts and details that . . . the Governor did not 24 follow the statutory commands and internal policies in fulfilling his obligation to review 25 decisions of the [Board]" in this case. Seiler, 2007 WL 2501518, at *5. Even though the 26 Ninth Circuit withdrew its November 24 decision, it appears to have done so because the 27 Supreme Court's Cooke opinion stated that federal courts should not consider the "some 28 evidence" standard when analyzing habeas petitioners' due process claims. There is no 6 1 indication that the court will, upon further review, change its opinion that the Governor did 2 not have "some evidence" to support his decision to reverse the Board's grant of Mosley's 3 parole. Given that the court has already found (albeit in a now withdrawn decision) that the 4 Governor did not follow California law, it is highly likely to find, when reviewing Mosley's 5 ex post facto challenge, that the Governor failed to follow statutory commands and internal 6 policies. Therefore, it is substantially likely that Mosley will prevail on his as-applied 7 challenge under Garner ­ that is, on his contention that the state court's summary denial of 8 his ex post facto claim was an unreasonable application of the Supreme Court's decision in 9 Garner. 10 At oral argument, the Warden argued that Cooke foreclosed any consideration by a United States District Court 11 federal court of whether California authorities failed to follow the "some evidence" test. For the Northern District of California 12 However, it appears that Cooke only foreclosed consideration of this issue as part of a due 13 process challenge. There is no indication that the Supreme Court would bar a federal habeas 14 court from examining whether the "some evidence" test were satisfied if, as here, such 15 analysis were necessary to resolve a separate challenge. 16 17 B. Injury to the Parties and the Public Interest Aside from likelihood of success on appeal, the other three traditional stay factors 18 require a court to balance harms and determine where the public interest lies. The Court's 19 analysis of these factors is necessarily guided by its conclusion that Mosley has a strong 20 likelihood of prevailing on his ex post facto claim on appeal. The Supreme Court explained 21 that: 22 23 24 25 26 27 28 Since the traditional stay factors contemplate individualized judgments in each case, the formula cannot be reduced to a set of rigid rules. The Court of Appeals in Carter v. Rafferty, 781 F.2d 993 (CA3 1986), agreed that the possibility of flight should be taken into consideration, and we concur in that determination. We also think that, if the State establishes that there is a risk that the prisoner will pose a danger to the public if released, the court may take that factor into consideration in determining whether or not to enlarge him. The State's interest in continuing custody and rehabilitation pending a final determination of the case on appeal is also a factor to be considered; it will be strongest where the remaining portion of the sentence to be served is long, and weakest where there is little of the sentence remaining to be served. 7 1 2 3 4 5 The interest of the habeas petitioner in release pending appeal, always substantial, will be strongest where the factors mentioned in the preceding paragraph are weakest. The balance may depend to a large extent upon determination of the State's prospects of success in its appeal. Where the State establishes that it has a strong likelihood of success on appeal, or where, failing that, it can nonetheless demonstrate a substantial case on the merits, continued custody is permissible if the second and fourth factors in the traditional stay analysis militate against release. 6 Hilton, 481 U.S. at 777-78. Given this language, this Court's earlier statement that 7 "declarations concerning Mosley's performance while on bail are irrelevant to the present 8 motion," Feb. 9, 2011 Order at 1, was incorrect; the Supreme Court has clearly instructed 9 that this Court must assess Mosley's risk of flight and whether he poses a danger to the 10 public, and his performance while on bail is relevant to that analysis. United States District Court 11 For the Northern District of California At the hearing, the Pretrial Services officer informed the Court that Mosley was 12 performing well on bail. He has been attending mental health counseling and anger 13 management classes, and he has also made strides towards obtaining a welding job. The only 14 negative factor raised by the officer was that Mosley missed one drug test in January. 15 However, all other drug tests, including one that occurred two days before the missed test, 16 have been negative, and the supervising officer did not recommend any action ­ and the 17 magistrate judge did not take any ­ after the single missed test. The officer explained that 18 Mosley's release has had no negative impact on the public thus far, but that it would be 19 premature to make any definitive recommendation on whether Mosley's continued release 20 would have a positive or negative impact on the public because Mosley has only been under 21 supervision for two months. 22 The Warden submitted no evidence that Mosley poses any danger to society if he 23 were to continue to be released on bail. The conditions of Mosley's release provide further 24 protection for the public interest, as he has not simply been released on his own personal 25 recognizance. The Warden has also failed to submit any evidence that Mosley poses a flight 26 risk, which seems unlikely given both his performance on bail thus far and that his release 27 was secured by a $100,000 bond with his mother and sister, with whom he appears to have 28 good relations, as sureties. In addition, Mosley has already served more than twenty-five 8 1 years on his fifteen-years-to-life sentence. Under Hilton, all of these factors weigh in favor 2 of Mosley's continued release. 3 The Warden argues that the state has a strong interest in ensuring the integrity of its 4 criminal justice process, and that Mosley cannot claim any injury from remaining 5 incarcerated because he is a convicted felon who has never, following the Ninth Circuit's 6 withdrawal of its November 24, 2010 decision, been found by any court to be entitled to 7 release.3 However, although no court has yet found that Mosley is entitled to release, this 8 Court has now concluded that Mosley has a strong likelihood of success on appeal, or, 9 conversely, that the state has not demonstrated a substantial case on the merits of Mosley's 10 ex post facto claim. Accordingly, the injury Mosley would suffer if incarcerated pending United States District Court 11 appeal is heightened, and the state's interest in keeping him in custody is diminished. For the Northern District of California 12 This is particularly true given the extraordinary and unforeseen delays in this case. In 13 a case determining whether an unsuccessful habeas petitioner in the extradition context was 14 entitled to bail pending appeal, the Ninth Circuit listed "unusual delay in the appeal process" 15 as an example of a "special circumstance" that would justify granting bail. Salerno v. United 16 States, 878 F.2d 317, 317 (9th Cir. 1989).4 When this Court denied bail to Mosley in 2008, it 17 noted that "some delay occurred in the appeal process as a result of a motion for stay by 18 Respondent," but that "the case is now proceeding and Petitioner filed opening briefs in 19 November, 2008." Dec. 16, 2008 Order at 5. The Court concluded that this schedule did not 20 amount to "the type of extraordinary delay contemplated by the Ninth Circuit in Salerno." 21 Id. However, Mosley's appeal has now been pending for over two years since that time, and 22 it remains uncertain when a decision will be reached. The Ninth Circuit has stayed 23 consideration of Mosley's appeal until after the Ninth Circuit has resolved Cooke and Clay. 24 The Warden's initial papers actually took a more extreme position and argued that, following the Ninth Circuit's withdrawal of its November 24, 2010 decision, there is no 25 longer any basis for Mosley to be released on bail. Such a position cannot be justified in light of the Federal Rule of Appellate Procedure 23(b), which contemplates possible release 26 on bail pending review of an order denying release. While there may be no presumption of release in such a case, a court nonetheless has discretion to grant it. Cf. Fed. R. App. P. 23(c) 27 (presumption of release when "a decision ordering the release of a prisoner is under review"). 4 28 The court did not give any guidelines on what would constitute "unusual delay." 9 3 1 Those two cases, in turn, will not be decided until after the Supreme Court finally decides 2 Cooke, where the petition for rehearing is not due until March 10. Thus, there could be 3 additional significant delays before the court issues a final decision on Mosley's appeal ­ 4 which has already been pending for nearly four years. Mosley therefore now presents a 5 much stronger case of "unusual delay" now than he did when the Court rejected his delay 6 argument two years ago. 7 Given all of the above, the Court finds that the balance of interests weighs in favor of 8 Mosley's continued release. Although the state has an interest in the administration of its 9 criminal justice system, that interest is diminished where, as here, Mosley has a strong 10 likelihood of success on appeal and has already served ten years more than his minimum United States District Court 11 sentence; there is no evidence that he presents a danger to public safety or a risk of flight; For the Northern District of California 12 and his appeal continues to be extraordinarily delayed through no fault of his own. 13 14 CONCLUSION 15 For all of the above reasons, the Warden's motion to revoke Mosley's bail is 16 DENIED. All previously ordered terms and conditions of release shall remain in full effect. 17 18 IT IS SO ORDERED. 19 20 Dated: 03/04/11 21 22 23 24 25 26 27 28 10 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

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