Phillips v. Davis

Filing 5

ORDER TO SHOW CAUSE. Habeas Answer or Dispositive Motion due by 10/17/2016. Signed by Magistrate Judge Sallie Kim on 8/16/2016. (mklS, COURT STAFF) (Filed on 8/16/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HAROLD PHILLIPS, C20212,
Petitioner,

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Case No. 16-3943 SK (PR)
ORDER TO SHOW CAUSE

v.
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RON DAVIS, Warden,
Respondent.

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United States District Court
Northern District of California

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Petitioner, a state prisoner incarcerated at San Quentin State Prison, has filed a

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second pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the

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execution of an indeterminate life sentence from Los Angeles County Superior Court.

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The petition is properly before the undersigned for initial review because petitioner
has consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c).
BACKGROUND

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Petitioner was convicted by a jury of kidnapping for the purpose of robbery, three

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counts of rape by force or violence, and three counts of oral copulation in concert with

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another. The jury also found true allegations that he personally used a firearm in the

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commission of a felony. On or about August 1, 1980, petitioner was sentenced to a life

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term, plus 15 years and eight months, with the possibility of parole.

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Petitioner has been found not suitable for parole each time he has appeared before

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the California Board of Parole Hearings (BPH) or its predecessor. On December 31, 2015,

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the Los Angeles County Superior Court denied petitioner’s latest claims against BPH’s

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October 31, 2014 decision to deny him parole. The California Court of Appeal and the

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Supreme Court of California summary denied him state habeas relief on March 7, 2016

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and June 8, 2016, respectively.

DISCUSSION

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A.

Standard of Review
This court may entertain a petition for a writ of habeas corpus “in behalf of a person

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

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custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.

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§ 2254(a).
It shall “award the writ or issue an order directing the respondent to show cause

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why the writ should not be granted, unless it appears from the application that the applicant

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or person detained is not entitled thereto.” Id. § 2243.

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United States District Court
Northern District of California

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B.

Claims
Petitioner seeks federal habeas corpus relief from BPH’s October 31, 2014 decision

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to deny him parole on the grounds that the decision did not comport with due process or

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equal protection because (1) BHP refused to consider a recent psychological evaluation

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prepared at the request of petitioner’s attorney, and (2) BPH’s findings that petitioner

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lacked remorse, credibility and insight are not supported by the evidence in the record.

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Petitioner’s claim that BPH’s findings are not supported by the evidence in the record must

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be DISMISSED because it is well-established that in the context of parole, a California

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prisoner receives adequate process when he is allowed an opportunity to be heard and is

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provided with a statement of the reasons why parole was denied. See Swarthout v. Cooke,

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562 U.S. 216, 220 (2011). Whether BPH’s decision was supported by some evidence is

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irrelevant in federal habeas. See id. at 221 (“it is no federal concern . . . whether

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California’s ‘some evidence’ rule of judicial review (a procedure beyond what the

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Constitution demands) was correctly applied”). But liberally construed, petitioner’s claim

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that BPH refused to consider a recent psychological evaluation arguably implicates his due

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process right to be heard and merits an answer from respondent. See Zichko v. Idaho, 247

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F.3d 1015, 1020 (9th Cir. 2001) (pro se habeas petitions must be liberally construed).

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CONCLUSION
For the foregoing reasons and for good cause shown,
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1.

The clerk shall serve (1) a copy of this order, (2) the petition and all

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attachments thereto (ECF No. 1), and (3) a notice of assignment of prisoner case to a

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United States magistrate judge and accompanying magistrate judge jurisdiction consent or

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declination to consent form (requesting that respondent consent or decline to consent

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within 28 days of receipt of service), on respondent and respondent’s attorney, the

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Attorney General of the State of California. The clerk also shall serve a copy of this order

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on petitioner.

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2.

Respondent shall file with the court and serve on petitioner, within 60 days

of the issuance of this order, an answer conforming in all respects to Rule 5 of the Rules
Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be

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United States District Court
Northern District of California

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granted. Respondent shall file with the answer and serve on petitioner a copy of all

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portions of the state trial record that have been transcribed previously and that are relevant

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to a determination of the issues presented by the petition.

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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with
the court and serving it on respondent within 30 days of his receipt of the answer.
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Respondent may file a motion to dismiss on procedural grounds in lieu of an

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answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing

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Section 2254 Cases. If respondent files such a motion, petitioner must serve and file an

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opposition or statement of non-opposition not more than 28 days after the motion is served

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and filed, and respondent must serve and file a reply to an opposition not more than 14

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days after the opposition is served and filed.

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4.

Petitioner is reminded that all communications with the court must be served

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on respondent by mailing a true copy of the document to respondent’s counsel. Petitioner

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must also keep the court and all parties informed of any change of address.

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IT IS SO ORDERED.

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Dated: August 16, 2016

_________________________
SALLIE KIM
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HAROLD PHILLIPS,

Case No. 16-cv-03943-SK

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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RON DAVIS,
Defendant.

United States District Court
Northern District of California

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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 August 16, 2016, 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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Harold Phillips ID: C-20212
San Quentin State Prison 3-N-94 up
San Quentin, CA 94974

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Dated: August 16, 2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Melinda K. Lozenski, Deputy Clerk to the
Honorable SALLIE KIM

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