Phillips v. Davis
Filing
15
ORDER GRANTING MOTION TO DISMISS AND DENYING CERTIFICATE OF APPEALABILITY by Judge Charles R. Breyer: Granting 9 Motion to Dismiss.. (Attachments: # 1 Certificate/Proof of Service)(lsS, COURT STAFF) (Filed on 4/6/2017)
1
2
3
4
IN THE UNITED STATES DISTRICT COURT
5
FOR THE NORTHERN DISTRICT OF CALIFORNIA
6
7
Petitioner,
8
9
10
11
)
)
)
)
)
)
)
)
)
)
HAROLD PHILLIPS, C-20212,
v.
RON DAVIS, Warden,
Respondent.
No. C 16-3943 CRB (PR)
ORDER GRANTING
MOTION TO DISMISS AND
DENYING CERTIFICATE OF
APPEALABILITY
(ECF No. 9)
12
I.
13
14
Petitioner, a state prisoner incarcerated at San Quentin State Prison, seeks
15
a writ of habeas corpus under 28 U.S.C. § 2254 invalidating the California Board
16
of Parole Hearings’ (BPH) continued refusal to grant him parole. Per order filed
17
on August 16, 2016, the court (Kim, M.J.) found that, liberally construed, the
18
petition states an arguably cognizable due process claim for relief under § 2254
19
and ordered respondent to show cause why a writ of habeas corpus should not be
20
granted. Respondent instead moves to dismiss the petition under Rule 4 of the
21
Rules Governing Section 2254 Cases. Petitioner has filed an opposition and
22
respondent has filed a reply.
23
24
25
The case was reassigned to the undersigned after respondent declined
magistrate judge jurisdiction.
II.
26
Petitioner was convicted by a Los Angeles County Superior Court jury of
27
kidnapping for the purpose of robbery, three counts of rape by force or violence,
28
and three counts of oral copulation in concert with another. The jury also found
1
true allegations that he personally used a firearm in the commission of a felony.
2
On August 1, 1980, petitioner was sentenced to a life term, plus 15 years and
3
eight months, with the possibility of parole. BPH or its predecessor has found
4
petitioner not suitable for parole each time he has appeared for review.
5
On May 31, 2016, petitioner filed a federal petition for a writ of habeas
6
corpus challenging BPH’s continued refusal to grant him parole. See Phillips v.
7
Davis, No. C 16-2648 CRB (PR) (N.D. Cal. filed May 31, 2016). On October
8
11, 2016, the court granted respondent’s motion to dismiss on the grounds that
9
the petition failed to state a federal habeas claim and was untimely.
10
On July 13, 2016, petitioner filed the instant federal petition for a writ of
11
habeas corpus also challenging BPH’s continued refusal to grant him parole, and
12
asserting a new, arguably cognizable due process claim. Specifically, petitioner
13
claims that BPH’s October 31, 2014 decision to deny him parole did not comport
14
with due process because BHP did not properly consider his most recent
15
psychological examination conducted by Dr. Paul Good.
16
17
III.
Respondent moves to dismiss the instant petition on the grounds that it is a
18
second or successive petition, unexhausted, and procedurally defaulted. The
19
court finds that the petition is not a second or successive petition; but it need not
20
reach the other grounds because the underlying claim is clearly without merit.
21
A.
22
A second or successive petition may not be filed in this court unless the
23
petitioner first obtains from the Ninth Circuit an order authorizing this court to
24
consider the petition. See 28 U.S.C. § 2244(b)(3)(A). Respondent argues that
25
because the instant petition is a second or successive petition, and petitioner has
26
not obtained the requisite order authorizing this court to consider the petition, this
27
28
2
1
court is without jurisdiction. See Burton v. Stewart, 549 U.S. 147, 153 (2007)
2
(noting that district court is without jurisdiction to consider second or successive
3
petition if petitioner does not first receive authorization from court of appeals).
4
The instant petition, however, is not a second or successive petition within the
5
meaning of § 2244(b) because it was filed while the first petition was still
6
pending in this court. See Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008)
7
(when pro se petitioner files new petition under § 2254 while previous petition is
8
still pending, district court should construe new petition “as a motion to amend
9
[the] previous habeas petition,” and not as “a successive petition under the terms
10
of § 2244”). Therefore, this court is not without jurisdiction to consider the
11
arguably cognizable due process claim in the instant petition.
12
13
B.
The court need not address respondent’s additional grounds for
14
dismissal—nonexhaustion and procedural default—because it is clear from the
15
record that petitioner does not raise a colorable federal habeas claim under
16
§ 2254. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus
17
may be denied on the merits, notwithstanding the failure of the applicant to
18
exhaust the remedies available in the courts of the State.”); see also Cassett v.
19
Stewart, 406 F.3d 614, 623–25 (9th Cir. 2005) (where petition fails to raise a
20
colorable federal claim, it may be denied on the merits without reaching the issue
21
of exhaustion).
22
It is well established “that a federal court may issue a writ of habeas
23
corpus to a state prisoner only on the ground that he is in custody in violation of
24
the Constitution or laws or treaties of the United States.” Swarthout v. Cooke,
25
562 U.S. 216, 219 (2011). Federal habeas relief is unavailable “for errors of state
26
law.” Id. (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)).
27
28
3
1
In the context of parole, the Supreme Court has made clear that a state
2
prisoner subject to a parole statute similar to California’s receives adequate due
3
process when he is allowed an opportunity to be heard and is provided with a
4
statement of the reasons why parole was denied. Swarthout, 562 U.S. at 220.
5
The Constitution does not require more. Id.
6
Here, petitioner does not claim that BPH did not allow him an opportunity
7
to be heard, or that it did not provide him with a statement of the reasons why
8
parole was denied. The record shows that petitioner was afforded a full parole
9
consideration hearing on October 31, 2014, during which he presented testimony
10
regarding the psychological evaluation conducted by Dr. Paul Good and was
11
afforded the opportunity to respond to the board’s questions. See ECF No. 9-1 at
12
119- 147 (Oct. 31, 2014 Parole Consideration Hearing). The record also shows
13
that BPH provided petitioner with a decision explaining the reasons it denied him
14
parole, in which BPH specifically referenced Dr. Good’s psychological
15
evaluation. See id. at 148–62. Simply put, petitioner was afforded the due
16
process to which he is constitutionally entitled—an opportunity to be heard and a
17
statement detailing why he was denied. See Swarthout, 562 U.S. at 220.
18
Because petitioner does not question whether those procedures were provided,
19
and the record shows that they were indeed provided, this court’s inquiry “is at its
20
end.” Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011) (quoting
21
Swarthout, 562 U.S. at 220).
22
Petitioner’s attempt to challenge the probative weight BPH afforded his
23
most recent psychological is of “no federal concern” because it goes “beyond
24
what the Constitution demands.” Swarthout, 562 U.S. at 221. As the Supreme
25
Court has made clear, “the responsibility for assuring that the constitutionally
26
adequate procedures governing California’s parole system are properly applied
27
28
4
1
rests with the California courts.” Swarthout, 562 U.S. at 222. Petitioner is not
2
entitled to federal habeas relief on his claim that BPH did not properly consider
3
his most recent psychological evaluation in denying him parole after its October
4
31, 2014 hearing.
5
6
7
IV.
For the foregoing reasons, respondent’s motion to dismiss the petition
(ECF No. 9) is GRANTED.
8
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a
9
certificate of appealability (COA) under 28 U.S.C. § 2253(c) is DENIED because
10
it cannot be said that “reasonable jurists would find the district court’s assessment
11
of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.
12
473, 484 (2000).
13
14
15
IT IS SO ORDERED.
DATED: April 6, 2017
CHARLES R. BREYER
United States District Judge
16
17
18
19
20
21
22
23
24
25
26
G:\PRO-SE\CRB\HC.16\Phillips, H.16-3943.mtd.final.wpd
27
28
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?