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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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PAUL A. REDD, JR.,

For the Northern District of California

United States District Court

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ORDER GRANTING
RESPONDENT’S MOTION TO
DISMISS

Petitioner,

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No. C 10-3055 WHA (PR)

v.
FRANCISCO JACQUEZ, et al.,
Respondent.

(Docket No. 6)
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INTRODUCTION

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Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus

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pursuant to 28 U.S.C. 2254 challenging the denial of parole by the California Board of Parole

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Hearings (“Board”). Respondent has filed a motion to dismiss the petition for failing to state a

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valid claim for federal habeas relief, and petitioner has filed an opposition. For the reasons

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discussed below, the motion is GRANTED.

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STATEMENT

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According to the petition, Petitioner was sentenced in 1976 to a term of seven-

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years-to-life in state prison after a jury found him guilty of first degree murder in San

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Francisco County Superior Court. Petitioner challenges the Board’s decision denying

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him parole after a twelfth parole suitability hearing on September 9, 2008. Petitioner

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filed habeas petitions in the state superior court, state appellate court, and the state

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supreme court, all of which were denied as of December 2009.

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ANALYSIS
Petitioner agrees in his opposition that all but two of his claims are barred by the United

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States Supreme Court decision in Swarthout v Cooke, 131 S.Ct. 859, 862-63 (2011) (holding

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that due process does not require more in parole hearing than opportunity to be heard and

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statement of reasons why parole was denied; it is irrelevant whether there was “some evidence”

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to support denial of parole).

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Petitioner has two remaining claims. First, he claims that the Board violated the Ex Post

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Facto Clause by using parole regulations that were amended in 1979, three years after his

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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

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For the Northern District of California

United States District Court

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“substantive standards" for parole eligibility does not create an ex post facto violation. See

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California Dep't of Corrections v. Morales, 514 U.S. 499, 507-09 & n. 2 (1995). Moreover,

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such a change does not violate the Ex Post Facto Clause with respect to a prisoner who cannot

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demonstrate with certainty that he would have been granted parole before the change. See

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Johnson v. Gomez, 92 F.3d 964, 967-68 (9th Cir. 1996). Petitioner has not explained why he

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would have been granted parole under the prior law. Consequently, his claim under the Ex Post

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Facto Clause fails.

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Petitioner’s last remaining claim is that the Board violated his First Amendment rights

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by requiring him to attend Alcoholics Anonymous or Narcotics Anonymous in order to be

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granted parole. The Board did not require him to attend either of these programs in denying

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parole, however; indeed, neither of the programs were mentioned in the Board’s decision (Resp.

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Ex. 1 at 38-45). As the record does not support petitioner’s claim that he was “required” to

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attend Alcoholics or Narcotics Anonymous, his claim fails.

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CONCLUSION

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For the foregoing reasons, respondent’s motion to dismiss (docket number 6) is

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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
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which the petition is dismissed. Petitioner has failed to make a substantial showing that a

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reasonable jurist would find this court’s denial of his claim debatable or wrong. Slack v.

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McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is warranted

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in this case.

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The clerk shall enter judgment and close the file.

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IT IS SO ORDERED.

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Dated: November

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, 2011.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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G:\PRO-SE\WHA\HC.10\REDD3055.MTD.wpd

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