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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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, 27 28 5

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