Royston v. Grounds

Filing 9

ORDER of Dismissal. Signed by Judge Edward M. Chen on 1/2/2013. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 1/2/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ARLONZO ROYSTON,

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Petitioner,
v.

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For the Northern District of California

United States District Court

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ORDER OF DISMISSAL

RANDY GROUNDS, Warden,

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No. C-12-3665 EMC (pr)

Respondent.
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Petitioner filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C.

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§ 2254. In his petition, he claimed that the June 24, 2010 determination by the Board of Parole

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Hearings (“BPH”) that he was not suitable for parole violated several of his constitutional rights.

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The Court conducted an initial review of the petition and dismissed it with partial leave to

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amend. See Docket # 7. The Court dismissed without leave to amend the claims for violations of

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Petitioner’s right to due process and his Eighth Amendment rights. See id. at 2-3. The Court

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dismissed with leave to amend the claims for violations of Petitioner’s Fifth Amendment rights,

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Sixth Amendment rights and rights under the Fourteenth Amendment’s Equal Protection Clause.

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See id. at 3-4. As to the Fifth Amendment, Sixth Amendment and Equal Protection Clause claims,

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the court explained that the allegations in the petition were insufficient because Petitioner had not

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explained his legal theories and his factual allegations did not suggest a violation of any of those

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constitutional provisions. Id. at 3. The Court instructed Petitioner that, “[b]ecause both the Fifth

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and Sixth Amendments cover many different rights, Petitioner must specify in his amended petition

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the particular Fifth Amendment right(s) and the particular Sixth Amendment right(s) that were

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violated, and explain how the BPH’s actions violated each such right. He also must explain how the

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BPH violated his right to equal protection. He should cite any case authority he has in support of his

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contention that the BPH’s actions violated his Fifth Amendment, Sixth Amendment, and/or equal

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protection rights.” Id. at 4.

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Petitioner then filed an amended petition, which is now before the Court for review pursuant

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to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United States

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District Courts.

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First, Petitioner alleged in his amended petition that the parole denial violated his right to

committed offense.” Docket # 8, p. 3. He urged that the BPH treated him differently in stating that

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his psychological evaluation overall risk assessment was “high” when the psychological evaluation

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For the Northern District of California

equal protection because the BPH panel “clearly discriminated on the petitioner due to the

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United States District Court

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actually stated it was “low.” Id. The claim is meritless on the law and the facts. Assuming

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arguendo that the BPH did change his psychological evaluation rating, doing so would not amount

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to an equal protection violation because there is no allegation that Petitioner was treated differently

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than someone similarly situated to him. See generally City of Cleburne v. Cleburne Living Center,

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473 U.S. 432, 439 (1985) (“The Equal Protection Clause of the Fourteenth Amendment commands

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that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which

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is essentially a direction that all persons similarly situated should be treated alike.”) The claim also

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is factually meritless because the BPH decision and the psychological report do not show that the

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BPH changed the psychological evaluation. Instead, the BPH Commissioner’s comment reflects

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that the panel believed that anything other than a rating of “low” on the risk assessment was

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unfavorable to the prisoner’s parole prospects. See Docket # 8, p. 79. The Commissioner correctly

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noted that Petitioner was in the “low range of psychopathy” on one test and in the “moderate range

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for risk of future violence” on another test – both of which were accurate recitations of the

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psychological report. Id.; see id. at 96-98. The BPH Commissioner then opined that the “moderate”

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rating was “high as far as the Panel is concerned because any time it’s higher than low, we have to

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question your ability to refrain from violent recidivism.” Id. at 79. That statement did not convert

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the psychological evaluation into rating Petitioner as a “high” risk, but instead was a permissible

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opinion that a convicted murderer who was evaluated as presenting a moderate risk for violence (or

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a low-moderate risk overall) presented too high a risk of violence to be paroled from prison. The

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equal protection claim is dismissed without leave to amend.

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Second, Petitioner alleged that the parole denial violated his rights under the Double

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Jeopardy Clause of the Fifth Amendment to the U.S. Constitution. In Petitioner’s view, the BPH’s

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continued reliance on the commitment offense to deny parole amounted to multiple punishments for

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a single offense. See Docket # 8, p. 4. This claim has no legal merit because a denial of parole is

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not punishment for double jeopardy purposes. See Alessi v. Quinlan, 711 F.2d 497, 501 (2d Cir.

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1983) (denial of parole “is neither the imposition nor the increase of a sentence, and it is not

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punishment for purposes of the Double Jeopardy Clause”). Petitioner’s sentence on his second
degree murder conviction was 15-to-life and the BPH’s decision did not increase the punishment

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For the Northern District of California

United States District Court

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beyond that set when he was sentenced. This claim is dismissed without leave to amend.

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Third, Petitioner alleged that the denial of parole violated his rights under the Sixth

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Amendment because “the panel was not fair in their decision or decision making when it came to

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petitioner’s suitability.” Docket # 8, pp. 4-5. This is essentially a restatement of Petitioner’s due

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process argument that the evidence did not support the decision to deny him parole. Swarthout v.

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Cooke, 131 S. Ct. 859, 861 (2011), compels rejection of this claim. Cooke stated that the Due

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Process Clause did not provide any right to any particular quantum of evidence supporting the parole

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denial; Petitioner cannot avoid the reach of that case by merely recasting his challenge to the

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evidence as a Sixth Amendment claim rather than as a due process claim. The only two procedural

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rights the Supreme Court has recognized in the context of parole suitability hearings are an

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opportunity to be heard and a statement of the reasons why parole was denied. See Cooke, 131 S.

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Ct. at 862. The hearing transcript submitted by Petitioner plainly shows that Petitioner was afforded

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both those rights. The Sixth Amendment claim is dismissed without leave to amend.

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This action is dismissed because Petitioner failed to state a claim upon which federal habeas
relief may be granted. The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: January 2, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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