Saif'ullah v. Chapell et al

Filing 6

ORDER TO SHOW CAUSE Habeas Answer due by 5/21/2013. Traverse due by 6/28/2013.. Signed by Judge Edward M. Chen on 3/22/13. (bpf, COURT STAFF) (Filed on 3/22/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KALIFAH E.D. SAIF'ULLAH
a/k/a FERNANDO JACKSON
(CDCR # C-14257),

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For the Northern District of California

United States District Court

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No. C 12-6507 EMC (pr)

ORDER TO SHOW CAUSE

Petitioner,
v.

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KEVIN CHAPPELL, Warden,

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Respondent.
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INTRODUCTION
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Petitioner, an inmate at San Quentin State Prison, filed this pro se action seeking a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the court for review
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pursuant to 28 U.S.C. §2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United
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States District Courts.
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BACKGROUND
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The petition and attachments thereto provide the following information: Petitioner was
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convicted in Los Angeles County Superior Court of kidnapping for ransom and was sentenced on
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March 7, 1980 to life imprisonment with the possibility of parole. His petition does not challenge
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the conviction or sentence imposed and instead challenges the decision of the Board of Parole
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Hearings ("BPH") to deny him parole at an August 26, 2011 parole suitability hearing. Petitioner
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alleges that he filed unsuccessful habeas petitions in the California courts before he filed this action.
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DISCUSSION
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody

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pursuant to the judgment of a State court only on the ground that he is in custody in violation of the

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Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A district court

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considering an application for a writ of habeas corpus shall "award the writ or issue an order

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directing the respondent to show cause why the writ should not be granted, unless it appears from

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the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243.

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Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory,

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palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th

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For the Northern District of California

United States District Court

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Cir. 1990).
The petition alleges three claims: (1) Petitioner was denied his right to due process because

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he was denied parole without a preponderance of the evidence showing that he is a current

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dangerous threat to society, Docket # 1, p. 6; (2) application of Marsy's Law by the BPH to give

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Petitioner a 7-year parole denial (i.e., to deny parole and set the next suitability hearing for 7 years

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later) violated his rights under the Ex Post Facto Clause because Marsy's Law was enacted after his

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crimes were committed, id. at 8; and (3) Petitioner's continued incarceration past his maximum

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sentence under the matrix in the regulations amounts to involuntary servitude prohibited by the

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Thirteenth and Fourteenth Amendments, id. at 9-12.

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The first claim must be dismissed. 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 violation of the Constitution or laws or

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treaties of the United States.’” Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011) (citations omitted.)

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Federal habeas relief is not available for state law errors. See id. For purposes of federal habeas

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review, a California prisoner is entitled to only “minimal” procedural protections in connection with

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a parole suitability determination. The procedural protections to which the prisoner is entitled under

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the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution are limited to 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 Court explained that no Supreme Court case “supports converting California’s

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‘some evidence’ rule into a substantive federal requirement,” id., and the Ninth Circuit erred in

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holding otherwise. In light of the Supreme Court’s determination that the constitutionally-

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mandated procedural protections do not include a requirement that the parole denial decision be

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supported by some evidence (or any other quantum of evidence), Petitioner's first claim that

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challenges the sufficiency of the evidence is dismissed without leave to amend. A California

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prisoner simply has no federally protected right to have any particular quantum of evidence support

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the BPH's decision.

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Petitioner's second claim is that the seven year parole denial violated his right to be free from

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ex post facto laws. Giving the pro se petition the liberal construction to which it is entitled, the

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court cannot say that the claim is patently frivolous and therefore will require respondent to respond
to it. See Gilman v. Schwarzenegger, 638 F.3d 1101, 1108-11 (9th Cir. 2011) (§ 1983 class action

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For the Northern District of California

United States District Court

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plaintiffs could not succeed on the merits of their ex post facto challenge to Proposition 9 unless

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(1) Proposition 9, on its face, created a significant risk of increasing the punishment of California

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life-term inmates, or (2) the plaintiffs demonstrate, by evidence drawn from Proposition 9's practical

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implementation, that its retroactive application will result in a longer period of incarceration than

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under the prior law); but see In re Vicks on Habeas Corpus, 2013 WL 781496, 13 Cal. Daily Op.

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Serv. 2316 (Cal. S. Ct. Mar. 4, 2013) (rejecting ex post facto challenge to Marsy's Law provision).

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Petitioner's third claim, i.e., that he is being subjected to involuntary servitude because he is

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beyond the end of his maximum term, is dismissed as frivolous. The Thirteenth Amendment

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prohibits slavery and involuntary servitude, "except as a punishment for crime whereof the party

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shall have been duly convicted." U.S. Const. amend. XIII. Petitioner was sentenced to life in prison

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with the possibility of parole. He therefore may be kept in prison for the rest of his life without

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exceeding the maximum permissible length of his sentence. The Thirteenth Amendment does not

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prohibit Petitioner's incarceration because that incarceration is "a punishment for crime" of which he

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was "duly convicted."

Id.

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CONCLUSION

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For the foregoing reasons,

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1.

The Ex Post Facto Clause claim warrants a response. All other claims are dismissed.

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The clerk shall serve by mail a copy of this order, the petition and all attachments

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thereto upon respondent and respondent's attorney, the Attorney General of the State of California.

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The clerk shall also serve a copy of this order on petitioner.

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3.

Respondent must file and serve upon petitioner, on or before May 31, 2013, an

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answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing

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cause why a writ of habeas corpus should not be issued. Respondent must file with the answer a

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copy of all portions of the court or parole proceedings that have been previously transcribed and that

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are relevant to a determination of the issues presented by the petition.

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4.

If petitioner wishes to respond to the answer, he must do so by filing a traverse with

the court and serving it on respondent on or before June 28, 2013. Petitioner's traverse, including

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For the Northern District of California

United States District Court

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the memorandum of points and authorities, may not exceed 20 pages in length.

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Petitioner is responsible for prosecuting this case. Petitioner must promptly keep the

court informed of any change of address and must comply with the court's orders in a timely fashion.
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Petitioner is cautioned that he must include the case name and case number for this

case on any document he submits to this court for consideration in this case.

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IT IS SO ORDERED.

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Petitioner's in forma pauperis application is GRANTED. (Docket # 2.)

Dated: March 22, 2013

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_________________________
EDWARD M. CHEN
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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KHALIFAH SAIFULLAH,
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Case Number: CV12-06507 EMC
Plaintiff,

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CERTIFICATE OF SERVICE
v.

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KEVIN CHAPELL et al,
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Defendant.
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For the Northern District of California

United States District Court

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on March 22, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Khalifah E.D. Saif’ullah C-014257
San Quentin State Prison
San Quentin, CA 94974

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Dated: March 22, 2013

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Richard W. Wieking, Clerk
By: Betty Lee, Deputy Clerk

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