Chavez v. Chappell

Filing 4

ORDER OF DISMISSAL; DENIAL OF CERTIFICATE OF APPEALABILITY. Signed by Judge Thelton E. Henderson on 11/05/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 11/6/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C-12-3713 TEH (PR)

ROGER CHAVEZ,
United States District Court
For the Northern District of California

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Petitioner,
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ORDER OF DISMISSAL; DENIAL OF
CERTIFICATE OF APPEALABILITY

v.
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KEVIN R. CHAPPELL, Warden,
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Respondent.
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Petitioner, a state prisoner incarcerated at San Quentin
State Prison (SQSP), has filed a pro se Petition for a Writ of
Habeas Corpus under 28 U.S.C. § 2254 challenging the denial of
parole in 2010 by the Board of Parole Hearings (“Board”).
Petitioner has paid the $5.00 filing fee.
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According to the Petition, in February 1993, a jury in San
Francisco County found Petitioner guilty of second degree murder.
The superior court sentenced Petitioner to fifteen years to life
plus a one-year enhancement for the use of a knife.

Doc. #1 at 4.

Petitioner alleges the following claims: (1) the Board’s 2010
decision denying him parole was not supported by some evidence and,

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thus, it violated his Due Process rights; (2) the Board’s decision

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of a seven-year denial of parole violated Petitioner’s Due Process

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rights in light of the unconstitutionality of applying Proposition 9

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retroactively.

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claims in his state habeas petitions, but the California courts

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addressed only his first claim.

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exhausted.1

Id. at 2.

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Petitioner alleges that he presented both

He argues that both claims are

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This Court may entertain a petition for a writ of habeas

United States District Court
For the Northern District of California

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corpus “in behalf of a person in custody pursuant to the judgment of

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a State court only on the ground that he is in custody in violation

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of the Constitution or laws or treaties of the United States.”

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U.S.C. § 2254(a).

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directing the respondent to show cause why the writ should not be

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granted, unless it appears from the application that the applicant

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or person detained is not entitled thereto.”

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It shall “award the writ or issue an order

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Id. § 2243.

III

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The United States Supreme Court has recently held that

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“[i]n the context of parole . . . the procedures required [by the

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due process clause] are minimal . . . an opportunity to be heard and

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. . . a statement of the reasons why parole was denied . . . ‘[t]he

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Constitution . . . does not require more.’”

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S.Ct. 859, 862 (2011).

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no federal concern . . . whether California’s ‘some evidence’ rule

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of judicial review (a procedure beyond what the Constitution

Swarthout v. Cooke, 131

The Supreme Court has made clear that “it is

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If a petition is without merit the district court may deny it
even if it includes unexhausted claims. 28 U.S.C. § 2254(b)(2).
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demands) was correctly applied.”

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Supreme Court’s determination that due process does not require that

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there be any amount of evidence to support the parole denial,

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Petitioner’s first claim fails to state a cognizable claim for

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habeas relief.

Id. at 863.

In light of the

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Petitioner’s second claim is based on the applicability of

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Proposition 9, also known as Marsy’s Law, to the Board’s decision to

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defer another parole hearing for seven years.

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significantly amended the law governing the availability and

Proposition 9

United States District Court
For the Northern District of California

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frequency of parole hearings.

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1101, 1104 (9th Cir. 2011).

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rejected an ex post facto challenge to Proposition 9, thus allowing

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it to be applied retroactively.

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the Ex Post Facto Clause is to bar a law which, by retroactive

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application, would increase the punishment for a crime after its

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commission.

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would violate the Ex Post Facto Clause when “it creates a

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significant risk of prolonging [an inmate’s] incarceration.”

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(emphasis in original) (citing Garner v. Jones, 29 U.S. 244, 251

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(2000)).

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create a significant risk of prolonging an inmate’s incarceration

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because it allowed the inmate to request an expedited parole hearing

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based on changed circumstances.

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Id. at 1106.

Gilman v. Schwarzenegger, 638 F.3d

In Gilman, the Ninth Circuit explicitly

Id. at 1108-11.

One function of

Thus, a retroactive application of a law

Id.

The Ninth Circuit reasoned that Proposition 9 would not

Id. at 1109.

Petitioner asserts that, despite Gilman, his claim is

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cognizable because there is no definition of “changed circumstance,”

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which is significant because the nature of an offense is a constant

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and not a changeable variable.

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In Gilman, the Ninth Circuit
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addressed the plaintiffs’ concern that they would be unable to

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establish changed circumstances with respect to static factors such

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as the circumstances of the commitment offense or prior criminal

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history.

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The court stated:

Plaintiffs are correct that those static factors will not
change; but a prisoner’s suitability for parole may change
even though static factors remain unchanged. For example,
the passage of time is a change in circumstances that may
affect a prisoner’s suitability for parole (i.e., the
prisoner’s current dangerousness) even though his prior
criminal history has not changed. . . . Plaintiffs also
contend that they will be unable to establish changed
circumstances or new information with respect to
intangible factors such as the failure to accept
responsibility or the lack of sufficient remorse. But
just as a prisoner must explain his acceptance of
responsibility and convey his remorse at a parole hearing,
a prisoner can, in a request for an advance hearing,
explain that he has accepted full responsibility for his
crime and convey his remorse.

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United States District Court
For the Northern District of California

Id. at 1110.

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Id.
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Thus, in Gilman, the Ninth Circuit addressed Petitioner’s
claim and rejected it.

cognizable claim for habeas relief.
IV

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Therefore, this claim fails to state a

For the foregoing reasons, the petition for a writ of
habeas corpus is DISMISSED for failure to state a cognizable claim
for relief.
Pursuant to Rule 11 of the Rules Governing Section 2254
Cases, a certificate of appealability (“COA”) under 28 U.S.C.
§ 2253(c) is DENIED because it cannot be said that “reasonable
jurists” would find the district court’s assessment of the
constitution claims debatable or wrong.
473, 484 (2000).

Slack v. McDaniel, 529 U.S.

Petitioner may not appeal the denial of a

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Certificate of Appealability in this Court but may seek a

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certificate from the Court of Appeals under Rule 22 of the Federal

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Rules of Appellate Procedure.

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Section 2254 Cases.

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See Rule 11(a) of the Rules Governing

The Clerk is directed to enter Judgment in favor of

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Respondent and against Petitioner, terminate any pending motions as

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moot and close the file.

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IT IS SO ORDERED.
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United States District Court
For the Northern District of California

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DATED

11/05/2012
THELTON E. HENDERSON
United States District Judge

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