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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 ARLONZO ROYSTON, 9 Petitioner, v. 11 For the Northern District of California United States District Court 10 ORDER OF DISMISSAL RANDY GROUNDS, Warden, 12 No. C-12-3665 EMC (pr) Respondent. ___________________________________/ 13 14 Petitioner filed this pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. 15 § 2254. In his petition, he claimed that the June 24, 2010 determination by the Board of Parole 16 Hearings (“BPH”) that he was not suitable for parole violated several of his constitutional rights. 17 The Court conducted an initial review of the petition and dismissed it with partial leave to 18 amend. See Docket # 7. The Court dismissed without leave to amend the claims for violations of 19 Petitioner’s right to due process and his Eighth Amendment rights. See id. at 2-3. The Court 20 dismissed with leave to amend the claims for violations of Petitioner’s Fifth Amendment rights, 21 Sixth Amendment rights and rights under the Fourteenth Amendment’s Equal Protection Clause. 22 See id. at 3-4. As to the Fifth Amendment, Sixth Amendment and Equal Protection Clause claims, 23 the court explained that the allegations in the petition were insufficient because Petitioner had not 24 explained his legal theories and his factual allegations did not suggest a violation of any of those 25 constitutional provisions. Id. at 3. The Court instructed Petitioner that, “[b]ecause both the Fifth 26 and Sixth Amendments cover many different rights, Petitioner must specify in his amended petition 27 the particular Fifth Amendment right(s) and the particular Sixth Amendment right(s) that were 28 violated, and explain how the BPH’s actions violated each such right. He also must explain how the 1 BPH violated his right to equal protection. He should cite any case authority he has in support of his 2 contention that the BPH’s actions violated his Fifth Amendment, Sixth Amendment, and/or equal 3 protection rights.” Id. at 4. 4 Petitioner then filed an amended petition, which is now before the Court for review pursuant 5 to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United States 6 District Courts. 7 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 10 his psychological evaluation overall risk assessment was “high” when the psychological evaluation 11 For the Northern District of California equal protection because the BPH panel “clearly discriminated on the petitioner due to the 9 United States District Court 8 actually stated it was “low.” Id. The claim is meritless on the law and the facts. Assuming 12 arguendo that the BPH did change his psychological evaluation rating, doing so would not amount 13 to an equal protection violation because there is no allegation that Petitioner was treated differently 14 than someone similarly situated to him. See generally City of Cleburne v. Cleburne Living Center, 15 473 U.S. 432, 439 (1985) (“The Equal Protection Clause of the Fourteenth Amendment commands 16 that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which 17 is essentially a direction that all persons similarly situated should be treated alike.”) The claim also 18 is factually meritless because the BPH decision and the psychological report do not show that the 19 BPH changed the psychological evaluation. Instead, the BPH Commissioner’s comment reflects 20 that the panel believed that anything other than a rating of “low” on the risk assessment was 21 unfavorable to the prisoner’s parole prospects. See Docket # 8, p. 79. The Commissioner correctly 22 noted that Petitioner was in the “low range of psychopathy” on one test and in the “moderate range 23 for risk of future violence” on another test – both of which were accurate recitations of the 24 psychological report. Id.; see id. at 96-98. The BPH Commissioner then opined that the “moderate” 25 rating was “high as far as the Panel is concerned because any time it’s higher than low, we have to 26 question your ability to refrain from violent recidivism.” Id. at 79. That statement did not convert 27 the psychological evaluation into rating Petitioner as a “high” risk, but instead was a permissible 28 opinion that a convicted murderer who was evaluated as presenting a moderate risk for violence (or 2 1 a low-moderate risk overall) presented too high a risk of violence to be paroled from prison. The 2 equal protection claim is dismissed without leave to amend. 3 Second, Petitioner alleged that the parole denial violated his rights under the Double 4 Jeopardy Clause of the Fifth Amendment to the U.S. Constitution. In Petitioner’s view, the BPH’s 5 continued reliance on the commitment offense to deny parole amounted to multiple punishments for 6 a single offense. See Docket # 8, p. 4. This claim has no legal merit because a denial of parole is 7 not punishment for double jeopardy purposes. See Alessi v. Quinlan, 711 F.2d 497, 501 (2d Cir. 8 1983) (denial of parole “is neither the imposition nor the increase of a sentence, and it is not 9 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 11 For the Northern District of California United States District Court 10 beyond that set when he was sentenced. This claim is dismissed without leave to amend. 12 Third, Petitioner alleged that the denial of parole violated his rights under the Sixth 13 Amendment because “the panel was not fair in their decision or decision making when it came to 14 petitioner’s suitability.” Docket # 8, pp. 4-5. This is essentially a restatement of Petitioner’s due 15 process argument that the evidence did not support the decision to deny him parole. Swarthout v. 16 Cooke, 131 S. Ct. 859, 861 (2011), compels rejection of this claim. Cooke stated that the Due 17 Process Clause did not provide any right to any particular quantum of evidence supporting the parole 18 denial; Petitioner cannot avoid the reach of that case by merely recasting his challenge to the 19 evidence as a Sixth Amendment claim rather than as a due process claim. The only two procedural 20 rights the Supreme Court has recognized in the context of parole suitability hearings are an 21 opportunity to be heard and a statement of the reasons why parole was denied. See Cooke, 131 S. 22 Ct. at 862. The hearing transcript submitted by Petitioner plainly shows that Petitioner was afforded 23 both those rights. The Sixth Amendment claim is dismissed without leave to amend. 24 /// 25 /// 26 /// 27 /// 28 /// 3 1 2 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. 3 4 IT IS SO ORDERED. 5 6 Dated: January 2, 2013 7 _________________________ EDWARD M. CHEN United States District Judge 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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