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