Reed v. Ground

Filing 7

ORDER DENYING re 1 Petition for Writ of Habeas Corpus filed by John Reed. Signed by Judge Charles R. Breyer on 10/12/2011. (Attachments: # 1 Certificate of Service)(beS, COURT STAFF) (Filed on 10/13/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOHN REED, C-66455,

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Petitioner,

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vs.
R. GROUNDS, Warden,
Respondent(s).

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No. C 10-5803 CRB (PR)
ORDER DENYING
PETITION FOR A WRIT OF
HABEAS CORPUS

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Petitioner, a state prisoner incarcerated at the Correctional Training

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Facility in Soledad, seeks a writ of habeas corpus under 28 U.S.C. § 2254

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challenging the California Board of Parole Hearings’ (BPH) February 4, 2009

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decision to deny him parole. For the reasons set forth below, a writ of habeas

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corpus will be denied.

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BACKGROUND
In 1983, petitioner pled guilty to second degree murder in Los Angeles

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County Superior Court and was sentenced to an indeterminate term of seventeen

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years to life in state prison with the possibility of parole. He has been found not

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suitable for parole each time he has appeared before BPH, however.

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On November 10, 2010, the Supreme Court of California denied

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petitioner’s challenge to BPH’s decision of February 4, 2009 finding him not

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suitable for parole and setting the next suitability hearing for three years.

On December 10, 2010, petitioner filed a pro se petition for a writ of
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habeas corpus under § 2254 in this court claiming that: (1) BPH’s decision of
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February 4, 2009 violates due process because it is not supported by some
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evidence demonstrating that he poses a current unreasonable threat to the public
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if released on parole; (2) setting the next suitability hearing for three years (rather
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than one), violates due process, the Eighth Amendment’s protection against cruel
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and unusual punishment and the Ex Post Facto Clause; and (3) BPH’s use of
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confidential information petitioner could not review and challenge at the parole
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suitability hearing violates due process.
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Per order filed on May 9, 2011, the court dismissed claims (1) and (2)
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under the rationale of Swarthout v. Cooke, 131 S. Ct. 859 (2011), and Gilman v.
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Schwarzenegger, 638 F.3d 1101 (9th Cir. 2011), but ordered respondent to show
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cause why a writ of habeas corpus under § 2254 should not be issued with respect
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to claim (3). Respondent has filed an answer to the order to show cause.
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Petitioner did not file a traverse.
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DISCUSSION
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A.

Standard of Review

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This court may entertain a petition for a writ of habeas corpus “in behalf
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of a person in custody pursuant to the judgment of a State court only on the
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ground that he is in custody in violation of the Constitution or laws or treaties of
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the United States.” 28 U.S.C. § 2254(a).
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The writ may not be granted with respect to any claim that was
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adjudicated on the merits in state court unless the state court’s adjudication of the
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claim: “(1) resulted in a decision that was contrary to, or involved an
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unreasonable application of, clearly established Federal law, as determined by the
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Supreme Court of the United States; or (2) resulted in a decision that was based
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on an unreasonable determination of the facts in light of the evidence presented
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in the State court proceeding.” 28 U.S.C. § 2254(d).
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“Under the ‘contrary to’ clause, a federal habeas court may grant the writ
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if the state court arrives at a conclusion opposite to that reached by [the Supreme]
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Court on a question of law or if the state court decides a case differently than [the
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Supreme] Court has on a set of materially indistinguishable facts.” Williams v.
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Taylor, 529 U.S. 362, 412-13 (2000). “Under the ‘reasonable application’ clause,
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a federal habeas court may grant the writ if the state court identifies the correct
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governing legal principle from [the Supreme] Court’s decisions but unreasonably
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applies that principle to the facts of the prisoner’s case.” Id. at 413. “[A] federal
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habeas court may not issue the writ simply because that court concludes in its
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independent judgment that the relevant state-court decision applied clearly
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established federal law erroneously or incorrectly. Rather, that application must
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also be unreasonable.” Id. at 411. “[A] federal habeas court making the
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‘unreasonable application’ inquiry should ask whether the state court’s
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application of clearly established federal law was objectively unreasonable.” Id.
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at 409.
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The only definitive source of clearly established federal law under 28
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U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme
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Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 331
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F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be “persuasive
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authority” for purposes of determining whether a state court decision is an
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unreasonable application of Supreme Court precedent, only the Supreme Court’s
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holdings are binding on the state courts, and only those holdings need be
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“reasonably” applied. Id.
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B.

Claim and Analysis

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Petitioner claims he was denied due process when BPH considered
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confidential information to deny him parole without affording him an opportunity
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to review and challenge the confidential information at the parole suitability
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hearing. The claim is without merit on federal habeas review.
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The Supreme Court recently made clear that under its holdings as of
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January 24, 2011 a prisoner subject to a parole statute similar to California’s
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receives adequate process when he is allowed an opportunity to be heard and is
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provided a statement of the reasons why parole was denied. Swarthout v. Cooke,
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131 S. Ct. 859, 862 (2011) (citing Greenholtz v. Inmates of Neb. Penal & Corr.
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Complex, 442 U.S. 1, 16 (1979)). The Constitution does not require more. Id.
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Petitioner argues that not being allowed an opportunity to review and
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challenge the confidential information BPH relied on to deny him parole
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amounted to not being allowed an opportunity to be heard. But in view of the
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holdings of the Supreme Court as of the time of the state court decision rejecting
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petitioner’s claim (i.e., November 10, 2010), petitioner cannot prevail on federal
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habeas because it cannot be said that the state court’s rejection of his claim was
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contrary to, or involved an unreasonable application of, clearly established
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Supreme Court precedent. See 28 U.S.C. § 2254(d)(1).
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In Greenholtz, the Supreme Court held that inmates were allowed an
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opportunity to be heard when they were allowed an opportunity to present their
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case for parole to the board by way of letters, statements and witnesses. See
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Greenholtz, 442 U.S. at 4-5. The Court thus recognized that the right to be heard
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in the parole context meant a general opportunity to present one’s case to the
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parole board. Nowhere in Greenholtz does the Court recognize that the right to
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be heard encompasses an opportunity to challenge specific evidence in an
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inmate’s file. In fact, the Court made clear that in order to satisfy due process a
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parole board need not provide an inmate with a summary of evidence used to
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deny parole, or even “specify the particular ‘evidence’ in the inmate’s file or at
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his interview on which it rests the discretionary determination that an inmate is
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not ready for conditional release.” Id. at 15.
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Here, the record shows that petitioner and his attorney had an opportunity
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to review the non-confidential parts of his file before his parole suitability
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hearing, and to present evidence in support of parole, answer the board’s
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questions, and present closing arguments at the hearing. On such a record, the
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state court reasonably could have found petitioner was allowed an opportunity to
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be heard because the Supreme Court has found similar procedural opportunities
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sufficient to satisfy the due process requirement of an opportunity to be heard.
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See Greenholtz, 442 U.S. at 5. That petitioner was not allowed an opportunity to
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review and challenge confidential information against him does not compel a
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different conclusion. After all, Greenholtz made clear that in the parole context
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due process does not require that inmates be allowed an opportunity to object or
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respond to any particular evidence because parole hearings are not adversarial in
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nature. See id. (parole hearing “not a traditional adversary hearing because the
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inmate is not allowed to hear adverse testimony or to cross-examine witnesses
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who present such evidence”); see also id. at 15 (“parole-release decision is . . .
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essentially an experienced prediction based on a host of variables,” carrying a
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lower set of procedural burdens than adversarial proceedings). Petitioner is not
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entitled to federal habeas relief because the state court’s rejection of his due
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process claim cannot be said to be contrary to, or an unreasonable application of,
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clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). Put
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simply, petitioner has not shown that there was “no reasonable basis for the state
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court to deny relief.” Harrington v. Richter, 131 S. Ct. 770, 784 (2011).
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Nor has he shown that the state court decision was “based on an
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unreasonable determination of the facts in light of the evidence presented in the
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State court proceeding” under 28 U.S.C. § 2254(d)(2). After all, the state court
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did not make any factual findings in support of its summary denial of petitioner’s
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claim. Nor did it need to. The claim involves the purely legal question of
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whether petitioner was afforded an opportunity to be heard consistent with
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federal due process. See Swarthout, 131 S. Ct. at 862-63 (unnecessary to
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examine factual basis for parole board’s decision when only issue of federal law
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is before federal habeas court).
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CONCLUSION
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For the foregoing reasons, the petition for a writ of habeas corpus is
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DENIED.
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Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a
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certificate of appealability (COA) under 28 U.S.C. § 2253(c) is DENIED because
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petitioner has not demonstrated that “reasonable jurists would find the district
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court’s assessment of the constitutional claims debatable or wrong.” Slack v.
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McDaniel, 529 U.S. 473, 484 (2000).
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The clerk shall enter judgment in favor of respondent and close the file.
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SO ORDERED.
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DATED: Oct. 12, 2011
CHARLES R. BREYER
United States District Judge

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