Martinez v. Curry

Filing 22

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Maxine M. Chesney on April 11, 2011. (mmcsec, COURT STAFF) (Filed on 4/11/2011) (Additional attachment(s) added on 4/11/2011: # 1 Certificate of Service) (tlS, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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)
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Petitioner,
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v.
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BEN CURRY, Warden,
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Respondent.
______________________________ )
LAWRENCE MARTINEZ,

No. C 07-1813 MMC (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF
APPEALABILITY

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On March 30, 2007, petitioner, a California prisoner incarcerated at the Correctional

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Training Facility, Soledad, and proceeding pro se, filed the above-titled petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254, challenging a 2005 decision by the California

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Board of Prison Hearings (“Board”) to deny petitioner parole. Subsequently, the Court

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granted respondent’s motion to dismiss the petition as unexhausted and stayed further

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proceedings while petitioner returned to state court to exhaust state remedies. After

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exhausting state remedies, petitioner filed an amended petition (“AP”); respondent filed an

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answer to the AP and petitioner filed a traverse.

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Subsequently, the Ninth Circuit issued its decision in Hayward v. Marshall, 603 F.3d

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546 (9th Cir. 2010) (en banc), which addressed important issues relating to federal habeas

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review of Board decisions denying parole to California state prisoners. After the parties filed

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supplemental briefs explaining their views of how the Hayward en banc decision applies to

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the facts presented in the instant petition, the United States Supreme Court filed its opinion in

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Swarthout v. Cooke, 131 S. Ct. 859 (2011) (per curiam), which opinion clarifies the

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constitutionally required standard of review applicable to petitioner’s due process claim

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herein.

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For the reasons discussed below, the petition will be denied.

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BACKGROUND

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In 1988, in the Superior Court of Imperial County (“Superior Court”), petitioner

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pleaded guilty to charges of kidnap for robbery and assault with a deadly weapon. The

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conviction was affirmed on appeal. Petitioner did not seek review from the California

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Supreme Court.
Petitioner’s seventh parole suitability hearing, which is the subject of the instant

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For the Northern District of California

United States District Court

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petition, was held on May 16, 2005. At the conclusion of the hearing, the Board, after having

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reviewed the facts of the commitment offense, petitioner’s social and criminal history, his

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employment, educational and disciplinary history while incarcerated, and his mental health

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reports, found petitioner was not yet suitable for parole and would pose an unreasonable risk

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of danger to society or threat to public safety if released from prison. (Resp’t Answer to

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Order to Show Cause (“Answer”) Ex. A (Super. Ct. Pet.) Ex. F (“Parole Hearing Transcript”)

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at 49-57).)1

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After he was denied parole, petitioner filed a habeas petition in the Superior Court,

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challenging the Board’s decision. In an opinion issued May 23, 2006, the Superior Court

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denied relief, finding the Board properly applied state parole statutes and regulations to find

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petitioner unsuitable for parole, and that some evidence supported the Board’s decision.

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(Answer Ex. B.) Petitioner next filed a habeas petition in the California Court of Appeal. In

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an opinion issued September 7, 2006, the Court of Appeal found the Board had considered

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the proper factors in denying parole and that some evidence supported the Board’s decision.

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(Answer Ex. C.) Petitioner then filed a petition for review in the California Supreme Court;

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the petition was summarily denied on November 15, 2006. (Answer Ex. F.)

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Unless otherwise noted, all references herein to exhibits are to exhibits submitted by
respondent in support of the Answer.
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Petitioner next filed the instant petition, in which he claims the Board did not provide

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him with a hearing that met the requirements of federal due process. In particular, petitioner

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claims the Board’s decision to deny parole was not supported by some evidence that

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petitioner at that time posed a danger to society if released, but, instead, was based solely on

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the unchanging circumstances of the commitment offense.
DISCUSSION

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A.

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Standard of Review
A federal district court may entertain a petition for a writ of habeas corpus “in behalf

in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

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For the Northern District of California

of a person in custody pursuant to the judgment of a State court only on the ground that he is

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United States District Court

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§ 2254(a). The petition may not be granted with respect to any claim that was adjudicated on

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the merits in state court unless the state court’s adjudication of the claim: “(1) resulted in a

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decision that was contrary to, or involved an unreasonable application of, clearly established

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Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a

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decision that was based on an unreasonable determination of the facts in light of the evidence

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presented in the State court proceeding.” 28 U.S.C. § 2254(d); see Williams (Terry) v.

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Taylor, 529 U.S. 362, 409-13 (2000). Section 2254(d) applies to a habeas petition filed by a

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state prisoner challenging the denial of parole. Sass v. California Board of Prison Terms, 461

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F.3d 1123, 1126-27 (9th Cir. 2006).

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Here, as noted, the California Supreme Court summarily denied review of petitioner’s

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claims. The Court of Appeal thus was the highest state court to address the merits of

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petitioner’s claims in a reasoned decision, and it is that decision which this Court reviews

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under § 2254(d). See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming,

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423 F.3d 1085, 1091-92 (9th Cir. 2005).

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B.

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Petitioner’s Claim
Under California law, prisoners serving indeterminate life sentences, like petitioner

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here, become eligible for parole after serving minimum terms of confinement required by

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statute. In re Dannenberg, 34 Cal. 4th 1061, 1078 (2005). Regardless of the length of time
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served, “a life prisoner shall be found unsuitable for and denied parole if in the judgment of

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the panel the prisoner will pose an unreasonable risk of danger to society if released from

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prison.” Cal. Code Regs. tit. 15 (“CCR”), § 2402(a). In making the determination as to

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whether a prisoner is suitable for parole, the Board must consider various factors specified by

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state statute and parole regulations. In re Rosenkrantz, 29 Cal. 4th 616, 654 (2002); see CCR

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§ 2402(b)–(d). When a state court reviews a Board’s decision denying parole, the relevant

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inquiry is whether “some evidence” supports the decision of the Board that the inmate poses

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a current threat to public safety. In re Lawrence, 44 Cal. 4th 1181, 1212 (2008).

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As noted, petitioner claims the Board’s decision to deny him a parole date violated his
federal constitutional right to due process because the decision was not supported by some

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For the Northern District of California

United States District Court

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evidence that petitioner at such time posed a danger to society if released, but, instead, was

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based solely on the unchanging circumstances of the commitment offense. Federal habeas

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corpus relief is unavailable for an error of state law. Swarthout v. Cooke, 131 S. Ct. 859, 861

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(per curiam) (2011). Under certain circumstances, however, state law may create a liberty or

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property interest that is entitled to the protections of federal due process. In particular, while

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there is “no constitutional or inherent right of a convicted person to be conditionally released

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before the expiration of a valid sentence,” Greenholtz v. Inmates of Nebraska Penal & Corr.

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Complex, 442 U.S. 1, 7 (1979), a state’s statutory parole scheme, if it uses mandatory

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language, may create a presumption that parole release will be granted when, or unless,

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certain designated findings are made, and thereby give rise to a constitutionally protected

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liberty interest. See id. at 11-12. The Ninth Circuit has determined California law creates

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such a liberty interest in release on parole. Cooke, 131 S. Ct. at 861-62.

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When a state creates a liberty interest, the Due Process Clause requires fair procedures

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for its vindication, and federal courts will review the application of those constitutionally

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required procedures. Id. at 862. In the context of parole, the procedures necessary to

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vindicate such interest are minimal: a prisoner receives adequate process when “he [is]

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allowed an opportunity to be heard and [is] provided a statement of the reasons why parole

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was denied.” Id. “The Constitution,” [the Supreme Court has held], “does not require
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more.” Id.
Here, the record shows petitioner received at least the process found by the Supreme

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Court to be adequate in Cooke. See id. (finding process adequate where petitioners “were

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allowed to speak at their parole hearings and to contest the evidence against them, were

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afforded access to their records in advance, and were notified as to the reasons why parole

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was denied”). Specifically, the record shows the following: petitioner was represented by

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counsel at the hearing (Answer Ex. A Ex. F at 1:26-27); petitioner and his counsel were

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provided in advance of the hearing with copies of the documents reviewed by the Board and

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also submitted additional documents for the Board’s review (id. at 5:13-6:9); the Board read
a summary of the commitment offense into the record, and discussed with petitioner the

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For the Northern District of California

United States District Court

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circumstances surrounding his commission of the offense, his personal background, his

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parole plans, his feelings about the commitment offense and his insights into his behavior (id.

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at 8:15-25:6, 40:9-42:18); the Board discussed petitioner’s achievements and disciplinary

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record while incarcerated, and the mental health reports prepared for the hearing (id. at

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25:11-40:8); petitioner was questioned by his counsel about his parole plans, and both

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petitioner and his counsel made statements advocating petitioner’s release (id. at 42:23-

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48:13); petitioner received a thorough explanation as to why the Board denied parole (id. at

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49-57).

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Further, because California’s “some evidence” rule is not a substantive federal

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requirement, whether the Board’s decision to deny parole was supported by some evidence of

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petitioner’s current dangerousness is not relevant to this Court’s decision on the instant

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petition for federal habeas corpus relief. Cooke, 131 S. Ct. at 862-63. The Supreme Court

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has made clear that the only federal right at issue herein is procedural; consequently, “it is no

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federal concern . . . whether California’s ‘some evidence’ rule of judicial review (a procedure

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beyond what the Constitution demands) was correctly applied.” Id. at 863.

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As the record shows petitioner received all the process to which he was

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constitutionally entitled, the Court finds the California Court of Appeal’s denial of

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petitioner’s claim did not result in a decision that was contrary to, or involved an
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unreasonable application of, clearly established federal law, and was not based on an

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unreasonable determination of the facts in light of the evidence presented in the state court

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proceeding. 28 U.S.C. § 2254(d). Accordingly, the petition for a writ of habeas corpus will

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be denied.

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C.

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Certificate of Appealability
A certificate of appealability will be denied with respect to petitioner’s claims. See 28

(requiring district court to issue or deny certificate of appealability when entering final order

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adverse to petitioner). Specifically, petitioner has failed to make a substantial showing of the

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denial of a constitutional right, as he has not demonstrated that reasonable jurists would find

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For the Northern District of California

U.S.C. § 2253(c)(1)(a); Rules Governing Habeas Corpus Cases Under § 2254, Rule 11

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United States District Court

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the Court’s assessment of the constitutional claims debatable or wrong. Slack v. McDaniel,

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529 U.S. 473, 484 (2000).

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CONCLUSION

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For the reasons stated above, the Court orders as follows:

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1. The petition for a writ of habeas corpus is hereby DENIED.

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2. A certificate of appealability is hereby DENIED.

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The Clerk shall enter judgment in favor of respondent and close the file.

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IT IS SO ORDERED.

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DATED: April 11, 2011
_________________________
MAXINE M. CHESNEY
United States District Judge

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