Lorenzo Smith v. Matthew Cate

Filing 9

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. ***Civil Case Terminated. Signed by Judge Thelton E. Henderson on 04/10/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 4/12/2012)

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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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Petitioner,

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No. C-11-5652 TEH (PR)

LORENZO SMITH,

ORDER DENYING PETITION FOR WRIT
OF HABEAS CORPUS; DENYING
CERTIFICATE OF APPEALABILITY

v.
MATTHEW CATE, Secretary of the
California Department of
Corrections and Rehabilition,

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Respondent.

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/

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Petitioner filed a pro se petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254 in which he claimed that his due

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process rights were violated when the Board of Parole Hearings

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(“BPH”) found him not suitable for parole on May 7, 2009, and when

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the BPH applied the current version of Cal. Penal Code

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§ 3041.5(b)(3) in scheduling Petitioner’s next parole hearing.

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Recent decisions from the U.S. Supreme Court and the Ninth Circuit

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Court of Appeals require that this petition be summarily denied.

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//

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//

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A “federal court may issue a writ of habeas corpus to a

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state prisoner ‘only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United

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States.’”

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curiam) (citations omitted).

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Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011) (per

Petitioner’s first claim relates to the denial of parole

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on May 7, 2009.

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the parole board to conclude that he lacked insight and remorse

He argues that there was insufficient evidence for

United States District Court
For the Northern District of California

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(Doc. #1 at 21), that the denial of parole discriminated against him

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solely based on his developmental handicap (Doc. #1 at 25), that the

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parole board arbitrarily and capriciously excluded relevant evidence

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from his board hearing (Doc. #1 at 26), that he was provided

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ineffective assistance of counsel at his parole hearing (Doc. #1 at

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29), and that the denial of parole was not based on sound reasoning

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and some evidence (Doc. #1 at 29).

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In 2011, the Supreme Court held that, for purposes of

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federal habeas review, a California prisoner is entitled to only

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“minimal” procedural protections in connection with a parole

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suitability determination.

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prisoner is entitled under the Due Process Clause of the Fourteenth

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Amendment are limited to an opportunity to be heard and a statement

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of the reasons why parole was denied.

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The Court explained that no Supreme Court case “supports converting

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California’s ‘some evidence’ rule into a substantive federal

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requirement,” and the Ninth Circuit erred in holding otherwise.

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at 862 & 863.

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The procedural protections to which the

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Swarthout, 131 S. Ct. at 862.

Id.

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In light of the Supreme Court’s determination that the

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constitutionally-mandated procedural protections do not include a

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requirement that there be some evidence (or any other amount of

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evidence) to support the parole denial, Petitioner’s claim for

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habeas relief based on the parole denial is without merit.

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Petitioner was provided an opportunity to be heard at his May 7,

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2009 hearing and a statement of the reasons why parole was denied,

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see Doc. #1, Exh. C, and has therefore received the procedural

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protected required by the Due Process Clause of the Fourteenth

United States District Court
For the Northern District of California

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Amendment.

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Petitioner’s second claim is that the BPH violated his

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rights to due process by scheduling his next parole hearing in

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accordance with the current version of Cal. Penal Code §

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3041.5(b)(3).

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that time, Section 3041.5(b)(2) provided that parole hearings were

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to be held annually, with deferrals of two or five years allowed

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under certain circumstances.

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(2008).

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3041.5(b) and changed the law governing deferral periods.

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default deferral period was increased from one year to fifteen

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years, the minimum deferral period was increased from one year to

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three years, and the maximum deferral period was increased from five

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years to fifteen years.

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May 7, 2009 parole hearing, BPH decided on a ten-year denial of

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parole for Petitioner.

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that the application of the amended Section 3041.5(b)(3) in

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scheduling his next parole hearing violates the Ex Post Facto Clause

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Petitioner was sentenced in 1982.

Doc. #1 at 5.

At

See Cal. Penal Code § 3041.5(b)(2)

In 2008, Proposition 9 significantly amended Section
The

See Cal. Penal Code § 3041.5(b)(3).

Doc. #1, Exh. C at 108.

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At the

Petitioner argues

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by changing his parole eligibility.

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The Ninth Circuit has recently addressed this argument in

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Gilman v. Schwarzenegger, 638 F.3d 1101 (9th Cir. 2011) and found it

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without merit.

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3041.5(b)(4)1 allowed the parole board to, in its discretion,

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advance the next parole hearing to an earlier date, the amended

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Section 3041.5(b) did not create a significant risk of prolonging a

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prisoner’s incarceration, and therefore did not violate the Ex Post

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Facto clause.

The Ninth Circuit found that because Section

Gilman, 638 F.3d at 1108-11 (also noting that the

United States District Court
For the Northern District of California

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Board may decide sua sponte to hold an advance hearing or do so at

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the request of a prisoner, and that the Board’s decision to deny a

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prisoner’s request for an advance hearing is subject to judicial

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review).

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claim also fails to state a claim for habeas relief.

Accordingly, this Court finds that Petitioner’s second

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II

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For the reasons set forth above, Petitioner’s petition for

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a writ of habeas corpus is DENIED.

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appealability will not issue because Petitioner has not made “a

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substantial showing of the denial of a constitutional right.”

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U.S.C. §

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jurists would find the district court’s assessment of the

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constitutional claims debatable or wrong.”

2253(c)(2).

Further, a certificate of

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This is not a case in which “reasonable

Slack v. McDaniel, 529

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Cal. Penal Code § 3041.5(b)(4) provides: “The board may in its
discretion, after considering the views and interests of the victim,
advance a hearing set pursuant to paragraph (3) to an earlier date,
when a change in circumstances or new information establishes a
reasonable likelihood that consideration of the public and victim's
safety does not require the additional period of incarceration of the
prisoner provided in paragraph (3).”
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U.S. 473, 484 (2000).

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The Clerk is directed to terminate any pending motions as
moot and close the file.

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IT IS SO ORDERED.

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DATED

04/10/2012
THELTON E. HENDERSON
United States District Judge

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United States District Court
For the Northern District of California

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G:\PRO-SE\TEH\HC.11\Smith-11-5652-summary denial-cooke.wpd

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