v. Redd et al

Filing 11

ORDER by Judge William Alsup granting 6 Motion to Dismiss (Attachments: # 1 Certificate of Service) (dtS, COURT STAFF) (Filed on 11/14/2011)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 9 PAUL A. REDD, JR., For the Northern District of California United States District Court 12 13 ORDER GRANTING RESPONDENT’S MOTION TO DISMISS Petitioner, 10 11 No. C 10-3055 WHA (PR) v. FRANCISCO JACQUEZ, et al., Respondent. (Docket No. 6) / 14 15 INTRODUCTION 16 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus 17 pursuant to 28 U.S.C. 2254 challenging the denial of parole by the California Board of Parole 18 Hearings (“Board”). Respondent has filed a motion to dismiss the petition for failing to state a 19 valid claim for federal habeas relief, and petitioner has filed an opposition. For the reasons 20 discussed below, the motion is GRANTED. 21 STATEMENT 22 According to the petition, Petitioner was sentenced in 1976 to a term of seven- 23 years-to-life in state prison after a jury found him guilty of first degree murder in San 24 Francisco County Superior Court. Petitioner challenges the Board’s decision denying 25 him parole after a twelfth parole suitability hearing on September 9, 2008. Petitioner 26 filed habeas petitions in the state superior court, state appellate court, and the state 27 supreme court, all of which were denied as of December 2009. 28 1 2 ANALYSIS Petitioner agrees in his opposition that all but two of his claims are barred by the United 3 States Supreme Court decision in Swarthout v Cooke, 131 S.Ct. 859, 862-63 (2011) (holding 4 that due process does not require more in parole hearing than opportunity to be heard and 5 statement of reasons why parole was denied; it is irrelevant whether there was “some evidence” 6 to support denial of parole). 7 Petitioner has two remaining claims. First, he claims that the Board violated the Ex Post 8 Facto Clause by using parole regulations that were amended in 1979, three years after his 9 conviction. Petitioner’s claim fails because he has not identified any substantive changes to the parole eligibility standards in the 1979 amendments. A new state law that imposes identical 11 For the Northern District of California United States District Court 10 “substantive standards" for parole eligibility does not create an ex post facto violation. See 12 California Dep't of Corrections v. Morales, 514 U.S. 499, 507-09 & n. 2 (1995). Moreover, 13 such a change does not violate the Ex Post Facto Clause with respect to a prisoner who cannot 14 demonstrate with certainty that he would have been granted parole before the change. See 15 Johnson v. Gomez, 92 F.3d 964, 967-68 (9th Cir. 1996). Petitioner has not explained why he 16 would have been granted parole under the prior law. Consequently, his claim under the Ex Post 17 Facto Clause fails. 18 Petitioner’s last remaining claim is that the Board violated his First Amendment rights 19 by requiring him to attend Alcoholics Anonymous or Narcotics Anonymous in order to be 20 granted parole. The Board did not require him to attend either of these programs in denying 21 parole, however; indeed, neither of the programs were mentioned in the Board’s decision (Resp. 22 Ex. 1 at 38-45). As the record does not support petitioner’s claim that he was “required” to 23 attend Alcoholics or Narcotics Anonymous, his claim fails. 24 CONCLUSION 25 For the foregoing reasons, respondent’s motion to dismiss (docket number 6) is 26 27 28 GRANTED and the case is DISMISSED. Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to rule on whether a petitioner is entitled to a certificate of appealability in the same order in 2 1 which the petition is dismissed. Petitioner has failed to make a substantial showing that a 2 reasonable jurist would find this court’s denial of his claim debatable or wrong. Slack v. 3 McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is warranted 4 in this case. 5 The clerk shall enter judgment and close the file. 6 IT IS SO ORDERED. 7 8 Dated: November 14 , 2011. 9 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 G:\PRO-SE\WHA\HC.10\REDD3055.MTD.wpd 25 26 27 28 3

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