Kabede v. Jacquez

Filing 35

ORDER OF DISMISSAL. Signed by Judge Thelton E. Henderson on 09/29/2011. (Attachments: # 1 Certificate of Service)(tmi, COURT STAFF) (Filed on 9/30/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C-09-2092 TEH (PR)

WONDIYRAD KABEDE,

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Petitioner,

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ORDER OF DISMISSAL

v.

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FRANCISCO JACQUEZ, Warden,

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Respondent.

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/

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Petitioner Wondiyrad Kabede, a state prisoner incarcerated

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at Iron Wood State Prison and frequent litigant in this Court, has

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filed a writ of habeas corpus under 28 U.S.C. § 2254 challenging the

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California Board of Prison Hearings’ (“BPH”) refusal to grant him

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parole at his second parole suitability hearing held on March 6,

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2008.

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I.
In 1989, Petitioner pled guilty in San Francisco County

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Superior Court to second degree murder with an attached deadly

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weapon enhancement and assault with a deadly weapon with an attached

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great bodily injury enhancement, and was sentenced to an

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indeterminate term of 22 years to life in state prison.

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at 2 & #1-4 at 3.

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November 12, 2004.

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Doc. #1-1

Petitioner’s minimum parole eligibility date was
Doc. #1-4 at 3.

Petitioner filed a pro se petition for a writ of habeas

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corpus in San Francisco Superior Court arguing that the BPH’s

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decision to deny him parole at his second parole suitability hearing

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held on March 6, 2008, constituted a violation of his plea

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agreement.

The San Francisco Superior Court denied the petition on

United States District Court
For the Northern District of California

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December 12, 2008.

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Appeal denied petitioner’s appeal on February 4, 2009.

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4.

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April 15, 2009.

Doc. #1-2 at 11-13.

The California Court of
Doc. #1-2 at

The California Supreme Court denied his Petition for Review on
Doc. #1-2 at 1.

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On May 13, 2009, Petitioner filed the instant Petition for

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a Writ of Habeas Corpus again challenging the BPH’s decision to deny

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him parole at his second parole suitability hearing held on March 6,

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2008.

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filed a Traverse.

Doc. #1.

Respondent has filed an Answer and Petitioner has
Doc. ## 14 & 18.

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II.
The San Francisco County Superior Court provided the
following procedural background of the case:

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Petitioner is serving a prison sentence of 22 years to
life following his conviction for second-degree murder and
other crimes in San Francisco Superior Court in 1989. The
documentation attached to the petition indicates
petitioner killed his wife several hours after he had been
released from prison on a parole violation. His minimum
eligible parole date on the life term was November 12,
2004.
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Petitioner alleges that he entered a guilty plea to
involuntary manslaughter. He seems to complain the Board
is violating the terms of his plea bargain by treating him
as a murder convict and continually denying him parole.
Doc. #1-2 at 11-12.

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III.
Under the Antiterrorism and Effective Death Penalty Act of

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1996 (“AEDPA”), codified under 28 U.S.C. § 2254, a federal court may

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not grant a writ of habeas corpus on any claim adjudicated on the

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United States District Court
For the Northern District of California

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merits in state court unless the adjudication : “(1) resulted in a

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decision that was contrary to, or involved an unreasonable

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application of, clearly established federal law, as determined by

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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

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facts in light of the evidence presented in the State court

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proceeding.”

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28 U.S.C. § 2254(d).

“Under the ‘contrary to’ clause, a federal habeas court

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may grant the writ if the state court arrives at a conclusion

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opposite to that reached by [the Supreme] Court on a question of law

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or if the state court decides a case differently than [the] Court

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has on a set of materially indistinguishable facts.”

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(Terry) v. Taylor, 529 U.S. 362, 412–13 (2000).

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‘unreasonable application’ clause, a federal habeas court may grant

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the writ if the state court identifies the correct governing legal

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principle from [the] Court’s decision but unreasonably applies that

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principle to the facts of the prisoner’s case.”

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Williams

“Under the

Id. at 413.

“[A] federal habeas court may not issue the writ simply
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because that court concludes in its independent judgment that the

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relevant state-court decision applied clearly established federal

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law erroneously or incorrectly.

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objectively unreasonable.”

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(2003) (internal quotation marks and citation omitted).

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in conducting its analysis, the federal court must presume the

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correctness of the state court’s factual findings, and the

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petitioner bears the burden of rebutting that presumption by clear

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and convincing evidence.

United States District Court
For the Northern District of California

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Rather, that application must be

Lockyer v. Andrade, 538 U.S. 63, 75-76
Moreover,

28 U.S.C. § 2254(e)(1).

In four decisions this year alone, the United States

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Supreme Court reaffirmed the heightened level of deference a federal

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habeas court must give to state court decisions.

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Richter, 131 S. Ct. 770, 783–85 (2011); Premo v. Moore, 131 S. Ct.

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733, 739–40 (2011); Felkner v. Jackson, 131 S. Ct. 1305, 1307–08

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(2011) (per curiam); Cullen v. Pinholster, 131 S. Ct. 1388,

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1398–1400 (2011).

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review, AEDPA ‘imposes a highly deferential standard for evaluating

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state-court rulings’ and ‘demands that state-court decisions be

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given the benefit of the doubt.’”

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(citation omitted).

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See Harrington v.

As the Court explained: “[o]n federal habeas

Felkner, 131 S. Ct. at 1307

When applying these standards, the federal court should

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review the “last reasoned decision” by the state courts.

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Galaza, 297 F.3d 911, 918 n.6 (9th Cir. 2002) (treating state court

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referee’s report as the last reasoned state court decision where

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report was summarily adopted by the court of appeal and petition for

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review to California Supreme Court was denied without comment).

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Because the California Supreme Court summarily denied relief on

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Avila v.

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Petitioner’s due process claim regarding the BPH’s refusal to grant

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him parole, this Court looks to the San Francisco County Superior

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Court’s December 12, 2008, written decision denying Petitioner’s

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appeal when considering his claim.

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IV.
Petitioner seeks habeas relief under 28 U.S.C. § 2254,

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challenging the BPH’s failure to grant him parole at his March 6,

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2008 parole hearing.

He argues that his continued incarceration

United States District Court
For the Northern District of California

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violates his due process rights because it breaches the terms of his

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plea agreement.

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a life term means a lifetime of parole, not of imprisonment, and

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that under the terms of his plea agreement, he has served his

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sentence and the BPH should grant him parole.

Doc. #1 at 2.

Specifically, Petitioner argues that

Doc. #15 at 3.

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The San Francisco Superior Court found that Petitioner’s
plea agreement did not require the BPH to grant him parole:
[Petitioner’s] claim fails. The documentation attached to
the petition reflects petitioner was convicted of seconddegree murder, and received a sentence of 22 years to
life. A prisoner serving a life sentence is not entitled
to have his term fixed at less than the maximum or to get
a parole date. (In re Rosenkrantz (2002) 29 Cal. 4th 616,
655, cert. den.) Before the Board may set a parole
release date for a life prisoner, it must first find the
life prisoner suitable for parole. (In re Dannenberg
(2005) 34 Cal.4th 1061, 1080 rehg. den., cert. den.) The
Board must set a release date unless it determines, in its
discretion, that the prisoner would pose an unreasonable
risk of danger to society if released. (Cal. Pen. Code §
3041, subd.(b); 15 Cal. Admin. Code §§ 2281, subd. (a),
2402; see Dannenberg, supra, 34 Cal.4th at 1084 [an
“inmate whose offense was so serious as to warrant, at the
outset, a maximum term of life in prison, may be denied
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parole during whatever time the Board deems required for
this individual by consideration of the public safety”].)
The Board has exclusive authority to decide whether a life
prisoner is suitable for parole (In re Powell (1988) 45
Cal.3d 894, 901, 248), and must duly consider of the
prisoner’s relevant circumstances in evaluating parole
suitability (Rosenkrantz, supra, 29 Cal.4th at 655).
Here the Board found petitioner’s release unreasonably
endangers public safety and some evidence in the record
supports this conclusion. Petitioner committed the murder
in a manner demonstrating an exceptionally callous
disregard for human suffering, his motive was
inexplicable, and his insight into the crime is still
limited (at the hearing he kept denying his involvement in
the crime). Moreover, his programming in prison has been
limited, and he has failed previous grants of parole and
probation.

United States District Court
For the Northern District of California

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Petitioner fails to show the Board’s actions have been
illegal, and the court therefore DENIES the petition for
failure to state a prima facie claim for relief (writ
5852).
Doc. #1-2 at 12-13.

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B.
The Fourteenth Amendment provides that no state may

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"deprive any person of life, liberty, or property, without due

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process of law."

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fairness protected by the Due Process Clause requires that promises

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made during plea bargaining and in analogous contexts be respected;

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however, this rule is subject to two conditions: the promisor must

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be authorized to make the promise and the defendant must rely to his

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detriment on the promise.

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(9th Cir. 1985).

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a promise or agreement of the prosecutor, so that it can be said to

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be a part of the inducement or consideration, such promise must be

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fulfilled."

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U.S. Const., amend. XIV, § 1.

The fundamental

See Johnson v. Lumpkin, 769 F.2d 630, 633

"[W]hen a plea rests in any significant degree on

Santobello v. New York, 404 U.S. 257, 262 (1971).
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The Due Process clause also protects inmates’ liberty

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interest in discretionary parole.

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rise to a cognizable liberty interest in release on parole.”

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McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 20020), overruled

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on other grounds by Swarthout v. Cooke, 131 S. Ct. 859, 861-62

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(2011).

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be granted unless the statutorily defined determinations are made.

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Id.

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process “when he was allowed an opportunity to be heard and was

“California’s parole scheme gives

The scheme creates a presumption that parole release will

In the context of parole, an inmate has received adequate due

United States District Court
For the Northern District of California

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provided a statement of the reasons why parole was denied.”

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131 S. Ct. at 862 (citing Greenholtz v. Inmates of Nebraska Penal &

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Corr. Complex, 442 U.S. 1, 16 (1979)).

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received at least that much process, the federal court’s habeas

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review is at an end.

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Oregon Bd. Of Parole and Post-Prison Supervision, 642 F.3d 711, 716-

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Cooke,

As long as the petitioner

See Cooke, 131 S. Ct. at 862; see Miller v.

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C.
Here, Petitioner argues that his due process rights were

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violated because the BPH failed to grant him parole at his March 6,

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2008 parole hearing.

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have an opportunity to be heard at the parole hearing.

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allege that he was not provided a statement of the reasons why

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parole was denied.

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Petitioner does not allege that he did not
Nor does he

The San Francisco County Superior Court’s rejection of

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Petitioner’s claim was not an objectively unreasonable application

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of clearly established federal law.

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See 28 U.S.C. § 2254(d).

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Petitioner acknowledges that he was sentenced to a sentence of 22

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years to life.

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argues that a life term means a lifetime of parole, not of

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imprisonment, and that under the terms of his plea agreement, he has

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served his sentence and should be released.

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Doc. #1 at 2.

However, Petitioner incorrectly

Doc. #15 at 3.

The state court reasonably determined that Petitioner’s
plea agreement does not entitle him to parole or a release date when

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he has served the minimum term on his sentence.

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law, “[a] prisoner serving a life sentence is not entitled to have

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United States District Court
For the Northern District of California

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his term fixed at less than the maximum or to get a parole date.”

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Doc. #1-2 at 12.

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Under California

Petitioner’s life term sentence entitles him to have his

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parole application “duly considered based upon an individualized

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consideration of all relevant factors.”

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at 655.

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application received the proper consideration.

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that Petitioner received adequate process: Petitioner was allowed an

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opportunity to be heard and was provided a statement of the reasons

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why parole was denied.

In re Rosenkrantz, 29 Cal.

The state court reasonably found that Petitioner’s parole
The record indicates

Cooke, 131 S. Ct. at 862.1

Petitioner is

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The San Francisco County Superior Court considered Petitioner’s
petition for a writ of habeas corpus in 2008. At that time, the Ninth
Circuit had held that it was clearly established law, as determined
by the Supreme Court of the United States, that a parole board’s
decision deprived a prisoner of due process if the board’s decision
was not supported by some evidence in the record or was otherwise
arbitrary. See Sass v. California Bd. of Prison Terms, 461 F.3d 1123,
1128-29 (9th Cir. 2006).
However, in 2011, the Supreme Court held that there is no federal
right “to be conditionally released before the expiration of a valid
sentence . . . .the Due Process requires fair procedures for [the]
vindication [of the liberty interest created in parole] and federal
courts will review the application of those constitutionally required
procedures. . . . the relevant inquiry is what process [was] received,
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not entitled to federal habeas relief on his due process claim.

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V.

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For the foregoing reasons, the instant federal Petition
for a Writ of Habeas corpus is DENIED.

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The Clerk shall terminate any pending motions as moot,
enter judgment in favor of Respondent and close the file.

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IT IS SO ORDERED.

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United States District Court
For the Northern District of California

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DATED

9/29/2011
THELTON E. HENDERSON
United States District Judge

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G:\PRO-SE\TEH\HC.09\Kabede-09-2092-dism-habeas.wpd

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not whether the state court decided the case correctly.” Cooke, 131
S. Ct. at 862-63.
The Supreme Court found that a prisoner had
received adequate process where he received an opportunity to be heard
and was provided a statement of the reasons why parole was denied.
Id. at 862. The federal court had no authority in habeas to determine
whether California’s “some evidence” rule was correctly applied. Id.
at 863.
Under both the pre-Cooke standard and the current standard,
Petitioner has received adequate process. “Some evidence” supported
the BPH’s denial of parole (Doc. #1-4 at 12) and the record indicates
that Petitioner received an opportunity to be heard and was notified
as to the reasons why parole was denied.
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