Davis v. Grounds

Filing 4

ORDER TO SHOW CAUSE. Signed by Judge Thelton E. Henderson on 05/04/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 5/4/2012)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA United States District Court For the Northern District of California 10 11 12 Petitioner, 13 14 15 No. C-12-0033 TEH (PR) MICHAEL WAYNE DAVIS, ORDER TO SHOW CAUSE v. RANDY GROUNDS, Warden, Correctional Training FacilitySoledad, 16 Respondent. 17 / 18 19 Petitioner has filed a pro se petition for a writ of 20 habeas corpus pursuant to 28 U.S.C. § 2254 challenging a March 29, 21 2010 denial of parole by the Board of Parole Hearings (“BPH”), and 22 the related deferral of his next parole hearing for a five year 23 period. 24 25 Doc. #1. I According to the Petition, Petitioner is serving a 26 sentence of 15 years to life, plus a one year weapon enhancement, on 27 a 1988 conviction of second degree murder. 28 challenge the conviction but, as noted above, challenges as a His petition does not 1 violation of the Ex Post Facto Law both the BPH’s March 29, 2010 2 decision finding him not suitable for parole, and the BPH’s related 3 deferral of his next parole hearing for a five year period. 4 Specifically, Petitioner argues that Marsy’s Law (also 5 known as Proposition 9), which was enacted on December 15, 2008, was 6 applied during his 2010 parole hearing which violated the Ex Post 7 Facto Clause by shifting the “burden of proof and quantum of proof” 8 required to demonstrate parole eligibility. 9 Petitioner argues that, prior to the passage of Marsy’s Law, there Doc. #1 at 5. United States District Court For the Northern District of California 10 was a presumption that a prisoner was suitable for parole upon 11 reaching his minimum eligible parole date (id. at 10-11) and the 12 burden of proof lay with the Board of Parole Hearings to demonstrate 13 by a preponderance of the evidence that the prisoner was unsuitable 14 for parole (id. at 11, 14). 15 eliminated the presumption of parole suitability and shifted the 16 burden of proof to the prisoner, who is now required to prove his 17 parole suitability by clear and convincing evidence. 18 14. 19 According to Petitioner, Marsy’s Law Id. at 10-11, Petitioner also appears to challenge the five-year 20 deferral of his next parole hearing as a violation of the Ex Post 21 Facto Law. 22 passage of Marsy’s Law, the BPH had to justify a multiple year 23 deferral of the next parole hearing. 24 required to defer the subsequent parole hearings for fifteen years 25 unless it can justify a shorter deferral period. 26 // 27 // 28 Doc. #1 at 15. According to Petitioner, prior to the 2 Under Marsy’s Law, the BPH is Id. 1 II 2 A “federal court may issue a writ of habeas corpus to a 3 state prisoner ‘only on the ground that he is in custody in 4 violation of the Constitution or laws or treaties of the United 5 States.’” 6 curiam) (citations omitted). 7 Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011) (per The United States Constitution prohibits the federal 8 government and the states from passing any “ex post facto Law.” 9 U.S. Const., Art. I, § 9, cl. 3 (federal government); Art. I, § 10, United States District Court For the Northern District of California 10 cl. 1 (states). 11 laws with certain retroactive effects: 12 act done before the passing of the law, which was innocent when 13 done, criminal; (2) aggravates a crime or makes it greater than it 14 was when it was committed; (3) changes the punishment and inflicts a 15 greater punishment for the crime than the punishment authorized by 16 law when the crime was committed; or (4) alters the legal rules of 17 evidence and requires less or different testimony to convict the 18 defendant than was required at the time the crime was committed. 19 See Stogner v. California, 539 U.S. 607, 611-12 (2003) (citing 20 Calder v. Bull, 3 U.S. 386 (1798)). 21 Law alters the burden of proof and quantum of proof required to 22 demonstrate parole eligibility in violation of the fourth category 23 of law prohibited by the Ex Post Facto Clause. 24 category focuses on the legal rules of evidence required to convict 25 the defendant. 26 eligibility. 27 28 These clauses prohibit the government from enacting any law that (1) makes an Petitioner argues that Marsy’s However, the fourth It does not address the requirements for parole However, the Supreme Court in Garner v. Jones, 529 U.S. 3 1 244 (2000), provided two methods for a prisoner to attack a parole 2 change under the Ex Post Facto Clause. 3 show the new rule by its own terms shows a significant risk of 4 increasing punishment for the crime. 5 challenge fails, the second way to establish an Ex Post Facto 6 violation is for the prisoner to “demonstrate, by evidence drawn 7 from the rule’s practical implementation by the agency charged with 8 exercising discretion, that its retroactive application will result 9 in a longer period of incarceration than under the earlier rule.” First, the prisoner could Id. at 255. If such a facial United States District Court For the Northern District of California 10 Id. 11 in fixing a parole release date under identical substantive 12 standards” is not enough. 13 Morales, 514 U.S. 499, 507-08 (1995); cf. Johnson v. Gomez, 92 F.3d 14 964, 967 (9th Cir. 1996) (retroactive application of law that 15 transfers final decision on parole from Board of Prison Terms to 16 governor does not violate Ex Post Facto Clause). 17 A new state law that simply alters “‘the method to be followed’ See California Dep’t of Corrections v. Liberally construed, Petitioner’s first claim appears 18 cognizable under 28 U.S.C. § 2254 and merits an Answer from 19 Respondent. 20 2001) (federal courts must construe pro se petitions for writs of 21 habeas corpus liberally). 22 will likely be very difficult, but this claim is not patently 23 meritless and also warrants a response. 24 Schwarzenegger, 638 F.3d 1101, 1108-11 (9th Cir. 2011). 25 See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. Prevailing on Petitioner’s second claim Cf. Gilman v. III 26 For the foregoing reasons and for good cause shown, 27 1. 28 The Clerk shall serve by certified mail a copy of 4 1 this Order and the Petition, and all attachments thereto (i.e., Doc. 2 #1), on Respondent and Respondent’s attorney, the Attorney General 3 of the State of California. 4 this Order on Petitioner. 5 2. The Clerk also shall serve a copy of Respondent shall file with the Court and serve on 6 Petitioner, within sixty (60) days of the issuance of this Order, an 7 Answer conforming in all respects to Rule 5 of the Rules Governing 8 Section 2254 Cases, showing cause why a writ of habeas corpus should 9 not be granted. Respondent shall file with the Answer and serve on United States District Court For the Northern District of California 10 Petitioner a copy of all portions of the state trial record that 11 have been transcribed previously and that are relevant to a 12 determination of the issues presented by the Petition. 13 If Petitioner wishes to respond to the Answer, he shall do 14 so by filing a Traverse with the Court and serving it on Respondent 15 within thirty (30) days of his receipt of the Answer. 16 3. In lieu of an Answer, Respondent may file a Motion to 17 Dismiss on procedural grounds, as set forth in the Advisory 18 Committee Notes to Rule 4 of the Rules Governing Section 2254 Cases. 19 If Respondent files such a motion, Petitioner shall file with the 20 Court and serve on Respondent an Opposition or Statement of 21 Non-Opposition within thirty (30) days of receipt of the motion, and 22 Respondent shall file with the Court and serve on Petitioner a Reply 23 within fifteen (15) days of receipt of any Opposition. 24 // 25 // 26 // 27 // 28 5 1 4. Petitioner is reminded that all communications with 2 the Court must be served on Respondent by mailing a true copy of the 3 document to Respondent’s counsel. 4 Court and all parties informed of any change of address. 5 Petitioner also must keep the IT IS SO ORDERED. 6 7 DATED 05/04/2012 THELTON E. HENDERSON United States District Judge 8 9 United States District Court For the Northern District of California 10 11 G:\PRO-SE\TEH\HC.12\Davis-12-0033-osc.wpd 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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