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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Petitioner,

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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)

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I.

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Petitioner, a state prisoner incarcerated at San Quentin State Prison, seeks

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a writ of habeas corpus under 28 U.S.C. § 2254 invalidating the California Board

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of Parole Hearings’ (BPH) continued refusal to grant him parole. Per order filed

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on August 16, 2016, the court (Kim, M.J.) found that, liberally construed, the

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petition states an arguably cognizable due process claim for relief under § 2254

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and ordered respondent to show cause why a writ of habeas corpus should not be

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granted. Respondent instead moves to dismiss the petition under Rule 4 of the

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Rules Governing Section 2254 Cases. Petitioner has filed an opposition and

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respondent has filed a reply.

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The case was reassigned to the undersigned after respondent declined
magistrate judge jurisdiction.
II.

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Petitioner was convicted by a Los Angeles County Superior Court jury of

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kidnapping for the purpose of robbery, three counts of rape by force or violence,

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and three counts of oral copulation in concert with another. The jury also found

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true allegations that he personally used a firearm in the commission of a felony.

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On August 1, 1980, petitioner was sentenced to a life term, plus 15 years and

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eight months, with the possibility of parole. BPH or its predecessor has found

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petitioner not suitable for parole each time he has appeared for review.

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On May 31, 2016, petitioner filed a federal petition for a writ of habeas

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corpus challenging BPH’s continued refusal to grant him parole. See Phillips v.

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Davis, No. C 16-2648 CRB (PR) (N.D. Cal. filed May 31, 2016). On October

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11, 2016, the court granted respondent’s motion to dismiss on the grounds that

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the petition failed to state a federal habeas claim and was untimely.

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On July 13, 2016, petitioner filed the instant federal petition for a writ of

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habeas corpus also challenging BPH’s continued refusal to grant him parole, and

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asserting a new, arguably cognizable due process claim. Specifically, petitioner

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claims that BPH’s October 31, 2014 decision to deny him parole did not comport

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with due process because BHP did not properly consider his most recent

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psychological examination conducted by Dr. Paul Good.

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III.
Respondent moves to dismiss the instant petition on the grounds that it is a

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second or successive petition, unexhausted, and procedurally defaulted. The

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court finds that the petition is not a second or successive petition; but it need not

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reach the other grounds because the underlying claim is clearly without merit.

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A.

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A second or successive petition may not be filed in this court unless the

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petitioner first obtains from the Ninth Circuit an order authorizing this court to

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consider the petition. See 28 U.S.C. § 2244(b)(3)(A). Respondent argues that

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because the instant petition is a second or successive petition, and petitioner has

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not obtained the requisite order authorizing this court to consider the petition, this

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court is without jurisdiction. See Burton v. Stewart, 549 U.S. 147, 153 (2007)

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(noting that district court is without jurisdiction to consider second or successive

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petition if petitioner does not first receive authorization from court of appeals).

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The instant petition, however, is not a second or successive petition within the

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meaning of § 2244(b) because it was filed while the first petition was still

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pending in this court. See Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008)

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(when pro se petitioner files new petition under § 2254 while previous petition is

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still pending, district court should construe new petition “as a motion to amend

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[the] previous habeas petition,” and not as “a successive petition under the terms

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of § 2244”). Therefore, this court is not without jurisdiction to consider the

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arguably cognizable due process claim in the instant petition.

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B.
The court need not address respondent’s additional grounds for

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dismissal—nonexhaustion and procedural default—because it is clear from the

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record that petitioner does not raise a colorable federal habeas claim under

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§ 2254. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus

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may be denied on the merits, notwithstanding the failure of the applicant to

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exhaust the remedies available in the courts of the State.”); see also Cassett v.

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Stewart, 406 F.3d 614, 623–25 (9th Cir. 2005) (where petition fails to raise a

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colorable federal claim, it may be denied on the merits without reaching the issue

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of exhaustion).

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It is well established “that a federal court may issue a writ of habeas

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corpus to a state prisoner only on the ground that he is in custody in violation of

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the Constitution or laws or treaties of the United States.” Swarthout v. Cooke,

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562 U.S. 216, 219 (2011). Federal habeas relief is unavailable “for errors of state

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law.” Id. (quoting Estelle v. McGuire, 502 U.S. 62, 67 (1991)).

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In the context of parole, the Supreme Court has made clear that a state

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prisoner subject to a parole statute similar to California’s receives adequate due

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process when he is allowed an opportunity to be heard and is provided with a

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statement of the reasons why parole was denied. Swarthout, 562 U.S. at 220.

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The Constitution does not require more. Id.

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Here, petitioner does not claim that BPH did not allow him an opportunity

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to be heard, or that it did not provide him with a statement of the reasons why

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parole was denied. The record shows that petitioner was afforded a full parole

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consideration hearing on October 31, 2014, during which he presented testimony

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regarding the psychological evaluation conducted by Dr. Paul Good and was

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afforded the opportunity to respond to the board’s questions. See ECF No. 9-1 at

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119- 147 (Oct. 31, 2014 Parole Consideration Hearing). The record also shows

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that BPH provided petitioner with a decision explaining the reasons it denied him

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parole, in which BPH specifically referenced Dr. Good’s psychological

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evaluation. See id. at 148–62. Simply put, petitioner was afforded the due

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process to which he is constitutionally entitled—an opportunity to be heard and a

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statement detailing why he was denied. See Swarthout, 562 U.S. at 220.

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Because petitioner does not question whether those procedures were provided,

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and the record shows that they were indeed provided, this court’s inquiry “is at its

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end.” Pearson v. Muntz, 639 F.3d 1185, 1191 (9th Cir. 2011) (quoting

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Swarthout, 562 U.S. at 220).

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Petitioner’s attempt to challenge the probative weight BPH afforded his

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most recent psychological is of “no federal concern” because it goes “beyond

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what the Constitution demands.” Swarthout, 562 U.S. at 221. As the Supreme

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Court has made clear, “the responsibility for assuring that the constitutionally

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adequate procedures governing California’s parole system are properly applied

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rests with the California courts.” Swarthout, 562 U.S. at 222. Petitioner is not

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entitled to federal habeas relief on his claim that BPH did not properly consider

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his most recent psychological evaluation in denying him parole after its October

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31, 2014 hearing.

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IV.
For the foregoing reasons, respondent’s motion to dismiss the petition
(ECF No. 9) is GRANTED.

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Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, a

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certificate of appealability (COA) under 28 U.S.C. § 2253(c) is DENIED because

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it cannot be said that “reasonable jurists would find the district court’s assessment

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of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.

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473, 484 (2000).

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IT IS SO ORDERED.
DATED: April 6, 2017
CHARLES R. BREYER
United States District Judge

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