Woods v. Gonzalez

Filing 17


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1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 FREDERICK NEWHALL WOODS, No. 10-02104 CW 6 Petitioner, ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS; AND DENYING CERTIFICATE OF APPEALABILITY 7 v. 8 TERRI GONZALEZ, Acting Warden, 9 Respondent. United States District Court For the Northern District of California 10 / 11 12 13 This is a federal habeas corpus action filed pursuant to 28 14 U.S.C. § 2254 in which Petitioner Frederick Newhall Woods, 15 represented by counsel, challenges the 2009 decision of the Board 16 of Parole Hearings (Board) denying him parole. Petitioner also 17 challenges, on ex post facto grounds, the constitutionality of 18 19 California’s newly enacted Proposition 9. Respondent has filed an 20 answer. 21 Court, has filed a supplemental memorandum addressing the recent 22 Supreme Court decision, Swarthout v. Cooke, 131 S. Ct. 859, 862 23 (2011). 24 25 26 27 28 Petitioner has filed a traverse and, with leave of the For the reasons set forth below, the petition is DENIED. BACKGROUND In July 1976, Petitioner hijacked a school bus, kidnaping the driver and twenty-six children. In 1977, Petitioner plead guilty to twenty-seven separate counts of kidnaping for ransom. 1 Petitioner initially received concurrent sentences of life 2 imprisonment without the possibility of parole on each count, but 3 this was modified on appeal to reflect a life sentence with the 4 possibility of parole. 5 On January 5, 2009, the Board, for the twelfth time, 6 determined that Petitioner was unsuitable for parole, finding that 7 8 9 he posed a threat to public safety if released from prison. Ex. B at 175-83. Pet's The Board issued a three-year parole denial, the United States District Court For the Northern District of California 10 shortest time period for a denial permitted under the newly-enacted 11 Proposition 9. 12 modified its decision to a one-year parole denial, "in conformance 13 with former Penal Code Section 3041.5." 14 December 10, 2009, Petitioner received another parole consideration 15 Pet's Ex. B at 183-84. On April 3, 2009, the Board Resp's Ex. 11 at 1. On hearing at which the Board again found him unsuitable for parole 16 and issued a three-year denial. Pet's. Ex. GG at 1. 17 18 In response to the Board's decision, Petitioner sought, but 19 was denied, relief on state collateral review. 20 petition followed. 21 This federal habeas STANDARD OF REVIEW 22 A federal writ of habeas corpus may not be granted with 23 respect to any claim that was adjudicated on the merits in state 24 court unless the state court's adjudication of the claims: 25 "(1) resulted in a decision that was contrary to, or involved an 26 unreasonable application of, clearly established Federal law, as 27 28 2 1 determined by the Supreme Court of the United States; or 2 (2) resulted in a decision that was based on an unreasonable 3 determination of the facts in light of the evidence presented in 4 the State court proceeding." 28 U.S.C. § 2254(d). 5 "Under the 'contrary to' clause, a federal habeas court may 6 grant the writ if the state court arrives at a conclusion opposite 7 8 9 to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] United States District Court For the Northern District of California 10 Court has on a set of materially indistinguishable facts." 11 Williams v. Taylor, 529 U.S. 362, 412-13 (2000). 12 'unreasonable application' clause, a federal habeas court may 13 grant the writ if the state court identifies the correct governing 14 legal principle from [the Supreme] Court's decisions but 15 "Under the unreasonably applies that principle to the facts of the prisoner's 16 case." Id. at 413. The only definitive source of clearly 17 18 established federal law under 28 U.S.C. § 2254(d) is in the 19 holdings of the Supreme Court as of the time of the relevant state 20 court decision. 21 precedents are binding on the state courts and only those holdings 22 need to be reasonably applied, circuit law may be persuasive 23 authority in analyzing whether a state court unreasonably applied 24 Supreme Court authority. 25 (9th Cir. 2003). 26 Id. at 412. Although only Supreme Court Clark v. Murphy, 331 F.3d 1062, 1070-71 To determine whether the state court’s decision is contrary 27 28 3 1 to, or involved an unreasonable application of, clearly 2 established law, a federal court looks to the decision of the 3 highest state court that addressed the merits of a petitioner’s 4 claim in a reasoned decision. LaJoie v. Thompson, 217 F.3d 663, 5 669 n.7 (9th Cir. 2000). In the present case, the only state 6 court that issued a reasoned decision on Petitioner's habeas 7 8 claims was the Alameda County superior court. DISCUSSION 9 United States District Court For the Northern District of California 10 11 I. Due Process Claim Petitioner claims that the Board's January 5, 2009 decision 12 violated his right to due process because it was not based on 13 "some evidence" that he currently poses an unreasonable risk to 14 public safety, a requirement under California law. 15 "There is no right under the Federal Constitution to be conditionally released 16 before the expiration of a valid sentence, and the States are 17 18 under no duty to offer parole to their prisoners." Greenholtz v. 19 Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 7 20 (1979). 21 Due Process Clause requires fair procedures for its vindication-- 22 and federal courts will review the application of those 23 constitutionally required procedures." Cooke, 131 S. Ct. at 862. 24 The procedures required are "minimal." Id. 25 adequate process when "he was allowed an opportunity to be heard 26 "When, however, a State creates a liberty interest, the and was provided a statement of the reasons why parole was 27 28 A prisoner receives 4 1 denied." 2 Greenholtz, 442 U.S. at 16.1 3 4 Id. "The Constitution does not require more." In the instant matter, Petitioner received at least the required amount of process. The record shows that he was allowed 5 to speak at his parole hearing and to contest the evidence against 6 him, that he had received his records in advance, and that he was 7 8 9 notified as to the reasons parole was denied. Having found that Petitioner received these procedural requirements, this federal Cooke, 131 S. Ct. at 863. United States District Court For the Northern District of California 10 habeas court's inquiry is at an end. 11 Petitioner's claim that the Board's decision did not comply with 12 California's "some evidence" rule of judicial review is of "no 13 federal concern." 14 claim is denied. 15 Id. Accordingly, Petitioner's due process II. Ex Post Facto Claim 16 Petitioner argues that Proposition 9, which became effective 17 18 shortly before his 2009 parole determination hearing, and which 19 amended California Penal Code section 3041.5(b)(2), violates the 20 ex post facto prohibition, both on its face and as applied to him. 21 Article I, Section 10, of the United States Constitution 22 prohibits the states from passing any ex post facto law. 23 Post Facto Clause "is aimed at laws 'that retroactively alter the 24 definition of crimes or increase the punishment for criminal The Ex 25 26 27 28 1 In a supplemental memorandum, Petitioner proffers several arguments for the proposition that Cooke does not apply to his case. The Court finds all of his arguments unpersuasive. 5 1 acts.'" 2 504 (1995) (quoting Collins v. Youngblood, 497 U.S. 37, 43 3 (1990)). 4 California Dep't of Corrections v. Morales, 514 U.S. 499, “Retroactive changes in laws governing parole of prisoners, in some instances, may be violative of this precept.” 5 Garner v. Jones, 529 U.S. 244, 250 (2000). The dispositive 6 question is whether the retroactive application of the changed law 7 8 9 regarding parole creates a significant risk of prolonging an inmate's incarceration. Id. at 251. However, when a statutory United States District Court For the Northern District of California 10 change creates only a speculative possibility of increasing the 11 punishment for specified crimes, there is no ex post facto 12 violation. 13 clause “should not be employed for the micro-management of an 14 endless array of legislative adjustments to parole and sentencing 15 Morales, 514 U.S. at 509. procedures.” Further, the ex post facto Garner, 529 U.S. at 252. 16 Proposition 9 significantly amended California Penal Code 17 18 section 3041.5(b), the statute that governs the length of deferral 19 of parole hearings. 20 (9th Cir. 2011). 21 period for holding the next parole hearing from one to three 22 years, increased the maximum deferral period from five to fifteen 23 years and increased the default deferral period from one to 24 fifteen years. 25 the Board to impose a deferral period other than the default 26 period. Id. Gilman v. Schwarzenegger, 638 F.3d 1101, 1104 Proposition 9 increased the minimum deferral Id. Proposition 9 also increased the burden on Previously, the deferral period was one year unless 27 28 6 1 the Board found it was unreasonable to expect the prisoner would 2 become suitable for parole within that year; after Proposition 9, 3 the deferral period is fifteen years unless the Board finds by 4 clear and convincing evidence that the prisoner will be suitable 5 for parole in ten years, in which case the deferral period is ten 6 years. Id. If, by clear and convincing evidence, the Board finds 7 8 9 the prisoner will be suitable for parole in seven years, the Board may set a three, five or seven year deferral period. Id. at 1104- United States District Court For the Northern District of California 10 05. 11 hearing date, on its own or at the request of the prisoner, “when 12 a change in circumstances or new information establishes a 13 reasonable likelihood that consideration of the public and 14 victim’s safety does not require the additional period of 15 Proposition 9 also authorizes the Board to advance a parole incarceration of the prisoner.” Id. at 1105 (citing 16 § 3041.5(b)(4)). A prisoner is limited to one request for an 17 18 advance hearing every three years. Id. Although three years is 19 the minimum deferral period, there is no minimum period for the 20 Board to hold an advance hearing. 21 Id. Petitioner claims that Proposition 9, on its face, is 22 designed to lengthen parole-eligible prisoners’ terms of 23 incarceration and, as applied to him, did increase his risk of a 24 longer incarceration. 25 26 A. Facial Challenge The state habeas court, relying on California Dep’t of 27 28 7 1 Corrections v. Morales and Garner v. Jones, denied Petitioner’s 2 facial challenge on the ground that he failed to show how the new 3 law would result in lengthier sentences. 4 Pet’s Ex. EE, In re Woods, on Habeas Corpus, No. 63187A (August 27, 2009) at 11. The 5 court noted that Proposition 9, like the parole policy examined in 6 Garner, allows an expedited parole review if there is a change in 7 8 9 United States District Court For the Northern District of California 10 circumstance or new information indicating that an earlier review is warranted. Id. at 11. Petitioner argues that the state court’s rejection of his 11 facial challenge was unreasonable for failing to discern the 12 differences between the parole policies addressed in Morales and 13 Garner and Proposition 9. 14 Gilman v. Davis, 690 F. Supp. 2d 1105 (E.D. Cal. 2010), where the 15 Petitioner relies on the reasoning in district court issued a preliminary injunction in a civil rights 16 action enjoining the Board from applying Proposition 9 because it 17 18 found that the petitioners were likely to succeed on the merits of 19 their ex post facto challenge. 20 by the Ninth Circuit in Gilman v. Schwarzenegger, 638 F.3d at 21 1110-11, issued after briefing was completed here. 22 the Ninth Circuit relied on Garner, 529 U.S. at 256-57 and 23 Morales, 514 U.S. at 512, for the proposition that the 24 availability of expedited hearings by the Board removes any 25 possibility of harm to prisoners who experience changes in 26 circumstances between hearings. However, this opinion was reversed Gilman, 638 F.3d at 1109. 27 28 In reversing, 8 The 1 Ninth Circuit noted that Proposition 9 explicitly made advance 2 hearings available and provided that the Board’s decision denying 3 a prisoner’s request for an advance hearing was subject to 4 judicial review. Id. at 1109. The Ninth Circuit concluded that, 5 under Proposition 9, “an advance hearing by the Board ‘would 6 remove any possibility of harm’ to prisoners because they would 7 8 9 United States District Court For the Northern District of California 10 not be required to wait a minimum of three years for a hearing.” Id. In light of this recent Ninth Circuit authority interpreting 11 the same Supreme Court precedent relied upon by the state habeas 12 court to deny Petitioner’s facial challenge to Proposition 9, this 13 Court concludes that the state court’s holding was not contrary to 14 or an unreasonable application of Supreme Court precedent. 15 Petitioner is denied habeas relief on this ground. 16 B. As-Applied Challenge 17 18 Petitioner argued to the state court that the Board’s three- 19 year denial prolonged his incarceration because, at his last two 20 parole hearings, he was given one-year denials. 21 pointed out that, in 2009, as at the two previous hearings, the 22 Board told him that he was quite close to getting a parole date. 23 The state court pointed out that Petitioner had received two 24 disciplinary reports for possession of pornographic material after 25 he had received the one-year deferrals. 26 The court stated, “In contrast, at the 2009 hearing, Petitioner had incurred two CDC 115 27 28 Petitioner 9 1 disciplinary reports, and the pattern demonstrated in the rules 2 violations was of great concern to the Board because it had a 3 nexus to Petitioner’s planning behavior before the crimes. 4 Thus, Petitioner has not demonstrated that it was the amendment to the 5 statute that created the significant risk of incarceration. 6 Instead, based on the record here, it is unlikely that the Board 7 8 9 United States District Court For the Northern District of California 10 would have given Petitioner a one year denial if the statute so allowed.” In re Woods, No. 63187A at 12. Petitioner argues that the state court unreasonably applied 11 the facts to his case because it ignored a Board commissioner's 12 observation that Petitioner was "quite close" to being paroled and 13 this was the same comment former panel members had made when they 14 gave Petitioner one-year denials. 15 As discussed above, the Ninth Circuit in Gilman, 638 F.3d at 16 1109, determined that the opportunity to obtain an advance hearing 17 18 by the Board would ameliorate any significant risk of a prolonged 19 sentence because prisoners would not have to wait three years for 20 another parole hearing. 21 Proposition 9 fails because he has not requested an advance 22 hearing, nor has one been denied. 23 colorable claim that Proposition 9 has created a significant risk 24 of prolonging his incarceration. 25 reconsidered its three-year parole denial and subsequently issued 26 Petitioner’s as-applied challenge to Petitioner cannot establish a Furthermore, because the Board a one-year denial, Petitioner cannot claim that Proposition 9 27 28 10 1 caused him harm. 2 Proposition 9 fails. Therefore, Petitioner’s as-applied challenge to 3 4 CONCLUSION For the foregoing reasons, the state court's adjudication of 5 Petitioner’s claims did not result in a decision that was contrary 6 to, or involved an unreasonable application of, clearly 7 8 9 established federal law, nor did it result in a decision that was based on an unreasonable determination of the facts in light of United States District Court For the Northern District of California 10 the evidence presented in the state court proceeding. 11 Accordingly, the petition is DENIED. 12 Further, a certificate of appealability is DENIED. 13 Reasonable jurists would not "find the district court's assessment 14 of the constitutional claims debatable or wrong." 15 McDaniel, 529 U.S. 473, 484 (2000). Slack v. Petitioner may seek a 16 certificate of appealability from the Ninth Circuit Court of 17 18 19 Appeals. The Clerk of the Court shall enter judgment in favor of Respondent and close the file. 20 21 IT IS SO ORDERED. 22 23 Dated: 10/12/2011 CLAUDIA WILKEN United States District Judge 24 25 26 27 28 11

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