Isreal v. Hedgpeth

Filing 13

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 3/14/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 3/14/2012)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 MICHAEL ISREAL, ) ) Petitioner, ) ) v. ) ) A. HEDGPETH, Warden, ) ) Respondent. ) _____________________________ ) No. C 09-04233 CW (PR) ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY 8 9 United States District Court For the Northern District of California 10 INTRODUCTION Petitioner Michael Isreal, a state prisoner incarcerated at 11 High Desert State Prison, filed a pro se petition for a writ of 12 habeas corpus pursuant to 28 U.S.C. § 2254. 13 filed an answer in which he requests that the Court either dismiss 14 the petition as untimely, or, in the alternative, deny the petition 15 on the merits. 16 17 Respondent Hedgpeth Petitioner then filed a traverse. Having considered the papers submitted, the Court denies the petition on the merits, and thus finds it unnecessary to rule on timeliness. 18 BACKGROUND 19 In 1979, an Alameda County Superior Court jury convicted 20 Petitioner of first degree murder. He was sentenced to twenty-five 21 22 23 24 years to life in state prison. Petitioner had a parole suitability hearing originally scheduled for August 12, 2005; however, it was cancelled on July 25 26, 2005 and postponed to a later date. (Resp't Ex. 3 at 10; Pet, 26 Ex. A.) 27 suitability hearing scheduled for August 1, 2006 was similarly 28 cancelled and postponed to a later date. One year later, on June 28, 2006, Petitioner's parole (Resp't Ex. 3 at 13; Pet, 1 Ex. B.) 2 found Petitioner unsuitable for parole on the grounds that the 3 circumstances of his commitment offense indicated that, if released 4 from prison, he would pose an unreasonable risk of danger to 5 society, or a threat to public safety, or both. 6 denied parole for five years, and he will next be eligible for 7 parole in 2012. 8 United States District Court For the Northern District of California 11 Petitioner was On November 29, 2007, the Board's decision became final. 9 10 On August 1, 2007, the Board of Parole Hearings (Board) On July 17, 2008,1 Petitioner filed a state habeas petition in the Monterey County Superior Court. (Resp't Ex. 1 at 1, 4.) That petition was transferred to the Alameda County Superior Court and 12 was stamped as "FILED" in that court on September 9, 2008. (Id. at 13 1.) In that petition, Petitioner alleged that the Board violated 14 15 16 17 his due process rights by failing to give him two years of credit when it denied him parole for five years on August 1, 2007. at 3.) (Id. Petitioner claimed that the five-year denial was "illegal" 18 and that his next scheduled parole suitability hearing should be in 19 "August of 2010 instead of 2012" because the Board postponed it 20 twice. 21 22 23 24 25 26 27 28 (Id.) On October 23, 2008, the Alameda County Superior Court denied the petition for failure to state a prima facie case for relief, 1 A pro se federal or state habeas petition is deemed filed on the date it is delivered to prison authorities for mailing. See Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir. 2001), vacated and remanded on other grounds, Carey v. Saffold, 536 U.S. 214 (2002) (holding that a federal or state habeas petition is deemed filed on the date the prisoner submits it to prison authorities for mailing, rather than on the date it is received by the court). July 17, 2008 is the date the state petition was signed and the earliest date that the petition could have been delivered to prison authorities for mailing. For the purposes of this discussion, the Court deems that the petition was filed on that date. 2 1 stating: 2 The petition for writ of habeas corpus ("the Petition") filed on September 9, 2008 is DENIED for failure to state a prima facie case for relief. Although Petitioner has not provided the court with a complete record (the transcript of the parole suitability hearing was not attached to the Petition), Petitioner provides sufficient documentation to allow the court's review of the merits of the claim. 3 4 5 6 7 (Resp't Ex. 2 at 1 (emphasis in original).) On December 1, 2008, Petitioner filed a habeas petition in the 8 9 California Court of Appeal, Sixth Appellate District. The petition United States District Court For the Northern District of California 10 was stamped as "FILED" by the Clerk of the Court in the Sixth 11 District three days later, on December 4, 2008.2 12 1.) 13 refiling with the California Court of Appeal, First Appellate 14 District, on December 9, 2008. 15 refiled the petition in the First District on January 20, 2009. 16 (Id. at 1.) 17 2009. 18 (Resp't Ex. 3 at That petition was denied without prejudice and recommended for (Id. at 26.) Petitioner then That petition was summarily denied on February 4, (Resp't Ex. 4 at 1.) On March 24, 2009, Petitioner filed a habeas petition in the 19 California Supreme Court, and that petition was summarily denied on 20 August 12, 2009. 21 22 (Resp't Exs. 5, 6.) On September 8, 2009,3 Petitioner filed the present federal habeas petition, alleging the same due process violation raised in 23 24 25 26 2 The stamped filing date on the appellate court petition filed in the Sixth District is faded; therefore, this Court obtained the filing date from the state court's official online database. 27 3 28 September 8, 2009 is the date the federal petition was signed and the earliest date that it could have been delivered to prison authorities for mailing; therefore, it will be deemed filed on that date. See Saffold, 250 F.3d at 1268. 3 1 his state habeas petitions.4 2 3 4 DISCUSSION I. Timeliness The Antiterrorism and Effective Death Penalty Act (AEDPA) 5 became law on April 24, 1996 and imposed for the first time a 6 statute of limitations on petitions for a writ of habeas corpus 7 filed by state prisoners. 8 non-capital state convictions or sentences must be filed within one 9 United States District Court For the Northern District of California 10 11 Petitions filed by prisoners challenging year of the latest date on which: (A) the judgment became final after the conclusion of direct review or the time passed for seeking direct review; (B) an impediment to filing an application 12 created by unconstitutional state action was removed, if such 13 action prevented the petitioner from filing; (C) the constitutional 14 15 16 17 right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (D) the factual predicate of the 18 claim could have been discovered through the exercise of due 19 diligence. 20 during which a properly filed application for State post-conviction 21 or other collateral review with respect to the pertinent judgment 22 or claim is pending shall not be counted toward any period of 23 limitation." 28 U.S.C. § 2244(d)(1)(A)-(D). However, "[t]he time Id. § 2244(d)(2). 24 25 26 27 28 4 Aside from stating his due process claim, the "Grounds for Relief" section of his federal petition is blank. Instead, Petitioner incorporates the supporting facts and authorities relevant to his due process claim from his attached state supreme court petition; therefore, in this Order the Court will cite to the page numbers and exhibits from his attached state supreme court petition. 4 1 The one-year statute of limitations also applies to habeas 2 petitions that challenge administrative decisions. 3 Circuit held in Shelby v. Bartlett, 391 F.3d 1061 (9th Cir. 2004), 4 that section 2244's one-year time limit applies to all habeas 5 petitions filed by persons in custody pursuant to a state court 6 judgment. 7 limitations period is determined by section 2244(d)(1)(D), which 8 states that the limitations period begins to run on "the date on 9 United States District Court For the Northern District of California 10 11 The Ninth In cases challenging administrative decisions, the which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." at 1066 (quoting 28 U.S.C. § 2244(d)(1)(D)). Id. For an administrative 12 decision, such as those by the Board, this typically means the day 13 following notice to the petitioner of the decision. Id.; see also 14 15 Redd v. McGrath, 343 F.3d 1077, 1084 (9th Cir. 2003). In this case, the Board's denial became final on November 29, 16 17 2007. The limitations period began to run the following day, on 18 November 30, 2007. Accordingly, Petitioner was required to file 19 his federal habeas petition no later than November 30, 2008. 20 28 U.S.C. § 2244(d). 21 2009 -- nearly one year after the limitations period had expired -- 22 is untimely absent statutory tolling. See Therefore, his petition filed on September 8, 23 The present petition may nonetheless be timely if the 24 limitations period was tolled under 28 U.S.C. § 2244(d)(2) for a 25 substantial period of time. 26 limitations period is tolled under § 2244(d)(2) for "[t]he time 27 during which a properly filed application for state post-conviction 28 or other collateral review with respect to the pertinent judgment As noted earlier, AEDPA's one-year 5 1 or claim is pending." 2 period is also tolled during the time between a lower state court's 3 decision and the filing of a notice of appeal to a higher state 4 court. 5 where prisoners generally use the state's original writ system, 6 this means that the limitations period remains tolled during the 7 intervals between a state court's disposition of an original state 8 habeas petition and the filing of the next original state habeas 9 United States District Court For the Northern District of California 10 11 28 U.S.C. § 2244(d)(2). The limitations Carey v. Saffold, 536 U.S. 214, 223 (2002). In California, petition in a higher court, provided the prisoner did not delay unreasonably in seeking review in the higher court. See id. at 220-25. 12 Where a petitioner waits months to file a habeas petition in a 13 higher court, a federal court must later determine whether the 14 15 16 17 petitioner "delayed 'unreasonably'" in seeking higher state court review. Carey, 536 U.S. at 225. If a petitioner delayed unreasonably, the application would no longer have been "pending" Id. If the state court does not 18 during the period at issue. 19 clearly rule on a petitioner's delay, as in the present case, the 20 federal court must evaluate all "relevant considerations" and 21 independently determine whether the delay was "unreasonable." 22 at 226. Id. 23 The Supreme Court held that a determination of unreasonable 24 delay is particularly difficult to make in California: "The fact 25 that California's timeliness standard is general rather than 26 precise may make it more difficult for federal courts to determine 27 just when a review application . . . comes too late." 28 The Supreme Court held, however, that California's appellate system 6 Id. at 223. 1 could be treated similarly to those in other states, which measure 2 delays "in terms of a determinate time period, such as 30 or 60 3 days." 4 "California's 'reasonable time' standard [should] not lead to 5 filing delays substantially longer than those in States with 6 determinate timeliness rules." 7 at 222-23). 8 thirty or sixty day periods provided by states with determinate 9 United States District Court For the Northern District of California 10 11 Evans v. Chavis, 546 U.S. 189, 192 (2006). In other words, Id. at 200 (citing Carey, 536 U.S. Based on the Supreme Court's reference to the usual deadlines, a delay of sixty days would likely be reasonable. On the other hand, a longer delay of six months would likely be unreasonable: "Six months is far longer than the 'short period[s] 12 of time,' 30 to 60 days, that most States provide for filing an 13 appeal to the state supreme court." Id. at 201. 14 15 16 17 The language in Evans referred to above -- that most states find thirty to sixty days to be reasonable -- seems to imply that delays are reasonable only if they are roughly between thirty to 18 sixty days. More conclusive is the Supreme Court's statement that 19 in determining whether a delay is reasonable "the [Ninth] Circuit 20 must keep in mind that, in Saffold, we held that timely filings in 21 California fell within the federal tolling provision on the 22 assumption that California law in this respect did not differ 23 significantly from the laws of other states, i.e., that 24 California's 'reasonable time' standard would not lead to filing 25 delays substantially longer than those in States with determinate 26 timeliness rules." 27 U.S. at 222-23). 28 if, in this respect, we were wrong." Evans, 546 U.S. at 199-200 (citing Carey, 536 "California, of course, remains free to tell us 7 Evans, 546 U.S. at 200. 1 Respondent argues that Petitioner filed his state superior 2 court petition 284 days after the Board's decision became final. 3 Respondent's calculation considers the filing date as September 9, 4 2008, the date the superior court petition was received in the 5 Alameda County Superior Court, instead of the date that the 6 petition was filed in the Monterey County Superior Court. 7 8 9 United States District Court For the Northern District of California 10 11 Respondent also argues that the eighty-nine day gap between the superior court's denial and Petitioner filing his appellate court petition in the First District was a period of "unreasonable delay" and that the limitations period should not be tolled for that period. Respondent's calculation of an eighty-nine day gap 12 does not credit the date that Petitioner's appellate petition was 13 filed in the wrong appellate district. However, as noted above, 14 15 16 17 18 19 the Court finds it unnecessary to rule on Respondent's request to dismiss the federal petition as untimely because the petition fails on the merits. II. The Merits of the Petition Petitioner's due process claim arises out of the 2005 and 2006 20 postponements of his parole hearings. 21 claims that he "does not contest the five-year denial, which the 22 Board was entitled to do, so long as it gave Petitioner credit for 23 it's [sic] two years of postponements . . . which would schedule 24 Petitioner['s] next parole hearing for 2010 instead of 2012." 25 (Pet. at 3.) 26 A. 27 A federal court may entertain a habeas petition from a state 28 Specifically, Petitioner Legal Standard prisoner "only on the ground that he is in custody in violation of 8 1 the Constitution or laws or treaties of the United States." 2 U.S.C. § 2254(a). 3 habeas relief unless the state court's adjudication of the claim: 4 "(1) resulted in a decision that was contrary to, or involved an 5 unreasonable application of, clearly established Federal law, as 6 determined by the Supreme Court of the United States; or 7 (2) resulted in a decision that was based on an unreasonable 8 determination of the facts in light of the evidence presented in 9 United States District Court For the Northern District of California 10 11 28 Under AEDPA, a district court may not grant the State court proceeding." 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412 (2000). The first prong applies both to questions of law and to mixed questions of law and fact, id. at 12 407-09, and the second prong applies to decisions based on factual 13 determinations, Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 14 15 16 17 A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only if the "state court arrives at a conclusion opposite to that 18 reached by [the Supreme] Court on a question of law or if the state 19 court decides a case differently than [the Supreme] Court has on a 20 set of materially indistinguishable facts." 21 412-13. 22 Supreme Court authority, under the second clause of § 2254(d)(1), 23 if it correctly identifies the governing legal principle from the 24 Supreme Court's decisions but "unreasonably applies that principle 25 to the facts of the prisoner's case." 26 court on habeas review may not issue the writ "simply because that 27 court concludes in its independent judgment that the relevant 28 state-court decision applied clearly established federal law Williams, 529 U.S. at A state court decision is an "unreasonable application of" 9 Id. at 413. The federal 1 erroneously or incorrectly." 2 must be "objectively unreasonable" to support granting the writ. 3 Id. at 409. 4 Id. at 411. Rather, the application When there is no reasoned opinion from the highest state court 5 to consider the petitioner's claims, the court looks to the last 6 reasoned opinion of the highest court to analyze whether the state 7 judgment was erroneous under the standard of § 2254(d). 8 Nunnemaker, 501 U.S. 797, 801-06 (1991). 9 United States District Court For the Northern District of California 10 11 Ylst v. In the present case, the Alameda County Superior Court is the highest court that addressed Petitioner's due process claim. B. Analysis 12 The state superior court found, after reviewing the merits of 13 his due process claim, that Petitioner "fail[ed] to state a prima 14 15 16 17 18 19 facie case for relief." (Resp't Ex. 2 at 1.) That court's decision denying Petitioner's claim was based on a legal determination concerning the sufficiency of his legal claim, not on any factual determinations. In his federal petition, Petitioner states, "All postponements 20 were due to deficiency caused by Respondent actions and/or lack of 21 process[es] due." 22 2253 of Title 15 of the California Code of Regulations, which 23 authorizes the Board to postpone subsequent parole suitability 24 hearings, provides, in pertinent part: 25 26 27 28 (Pet. at 3 (alteration in original).) Section (a) General. The rights and interests of all persons properly appearing before a board life parole consideration hearing are best served when hearings are conducted as scheduled. Occasional circumstances may require the delay of a scheduled hearing. It is the intention of the board to recognize the need and 10 1 2 3 desirability to occasionally delay a scheduled hearing and to authorize said delays through a process of voluntary waiver or stipulation of unsuitability or to postpone or continue a scheduled life parole consideration hearing. 4 Cal. Code Regs. tit. 15, § 2253(a). 5 contends the Board improperly delayed his parole suitability 6 hearings in violation of state law, he asserts no cognizable claim 7 for federal habeas relief. 8 67-68 (1991). 9 United States District Court For the Northern District of California 10 11 To the extent Petitioner See Estelle v. McGuire, 502 U.S. 62, To show a constitutional violation, Petitioner must prove that any alleged delay was both unreasonable and prejudicial. See United States v. Santana, 526 F.3d 1257, 1260 (9th Cir. 2008); 12 Meador v. Knowles, 990 F.2d 503, 506 (9th Cir. 1993); Camacho v. 13 White, 918 F.2d 74, 79 (9th Cir. 1990); Hopper v. United States 14 15 16 17 18 19 Parole Comm'n, 702 F.2d 842, 845 (9th Cir. 1983). The Court need not determine whether the delay was unreasonable, because Petitioner has failed to demonstrate any non-speculative possibility of prejudice. First, the Board did not abrogate Petitioner's future right to 20 parole hearings, or even deny them indefinitely but rather 21 postponed his scheduled parole hearing on two occasions. 22 record shows that Petitioner was informed in writing about the 2005 23 and 2006 postponements, and he was advised that a new hearing would 24 be scheduled. 25 hearing eventually took place on August 1, 2007, and he was 26 afforded an opportunity to be heard in accordance with due process 27 before he was denied parole. 28 suggesting that the delays in 2005 and 2006 affected the merits of (Pet., Exs. A, B.) The Petitioner's parole suitability Petitioner alleges no facts remotely 11 1 the Board's August 1, 2007 decision deeming him unsuitable for 2 parole. 3 standards for determining suitability. 4 Nothing indicates the delays had any effect on the Second, Petitioner claims that the Board should have given him 5 "credit for it's [sic] two years of postponements." 6 As mentioned above, Petitioner argues that he should have received 7 a three-year denial instead of a five-year denial. 8 be arguing that the repeated delays in scheduling his parole 9 United States District Court For the Northern District of California 10 11 (Pet. at 3.) Petitioner may hearing have resulted in additional time for which no credit will ever be applied, thereby violating due process. argument is unavailing. However, his Even if, at some future hearing, the Board 12 were to find Petitioner suitable for parole, his ultimate release 13 date would not be fixed by reference to the hearing date, but 14 15 16 17 rather would be a product of the Board's discretion, taking into account the "matrix" of suggested base terms set forth in state prison regulations, circumstances in aggravation and mitigation, 18 and adjustments for enhancements or other offenses, and reduced by 19 any post-conviction credit awarded by the Board. 20 Regs. tit. 15, §§ 2403-2411. 21 alleged delays might cause some future suitability determination to 22 occur later than it otherwise would have occurred is far too 23 speculative to show the requisite prejudice. 24 of Corrections v. Morales, 514 U.S. 499, 509 (2000) (rejecting Ex 25 Post Facto challenge to amendment decreasing frequency of 26 California parole suitability hearings; amendment "create[d] only 27 the most speculative and attenuated possibility of producing the 28 prohibited effect of increasing the measure of punishment for See Cal. Code Petitioner's suggestion that the 12 See California Dep't 1 covered crimes"). 2 cause the actual release date (following some future suitability 3 finding or future grant of habeas relief) to occur later than it 4 otherwise would have occurred is even more speculative. 5 due process violation occurred because Petitioner has failed to 6 show any prejudice from the alleged delays in 2005 and 2006. 7 follows that the state courts' rejection of Petitioner's due 8 process claim was not contrary to, or an objectively unreasonable 9 United States District Court For the Northern District of California 10 11 Moreover, any suggestion that the delay might Thus, no It application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d). Therefore, Petitioner is not entitled to habeas relief. 12 Accordingly, the Court GRANTS Respondent's request to deny the 13 petition on the merits; the petition is DENIED. 14 CONCLUSION 15 16 17 18 19 For the foregoing reasons, the Court orders as follows: 1. The Court does not rule on Respondent's request to dismiss the petition as untimely. 2. Respondent's alternative request to deny the petition on 20 the merits is GRANTED, and the petition for a writ of habeas corpus 21 is DENIED. 22 3. A certificate of appealability is DENIED. Reasonable 23 jurists would not "find the district court's assessment of the 24 constitutional claims debatable or wrong." 25 U.S. 473, 484 (2000). 26 appealability from the Ninth Circuit Court of Appeals. 27 28 4. Slack v. McDaniel, 529 Petitioner may seek a certificate of The Clerk of the Court shall enter judgment in favor of 13 1 2 3 Respondent and close the file. IT IS SO ORDERED. Dated: 3/14/2012 4 CLAUDIA WILKEN United States District Judge 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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