Villanueva v. Cullen

Filing 6

ORDER re 1 Petition for Writ of Habeas Corpus filed by Michael Villanueva, ***Civil Case Terminated.. Signed by Judge ARMSTRONG on 5/10/11. (lrc, COURT STAFF) (Filed on 5/13/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 11-01715 SBA (PR)

MICHAEL VILLANUEVA,

ORDER DENYING PETITION FOR A
WRIT OF HABEAS CORPUS; AND
DENYING CERTIFICATE OF
APPEALABILITY

Petitioner,
v.
VINCENT S. CULLEN, Warden,
Respondent.

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Petitioner has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 claiming

United States District Court
For the Northern District of California

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that his constitutional rights were violated in connection with a decision by the California Board of

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Parole Hearings (Board) in 2009 denying him parole. Petitioner specifically claims that the decision

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does not comport with due process because it is not supported by "some evidence" demonstrating

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that he poses a current unreasonable threat to the public. He also claims that conducting his parole

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hearing under Proposition 9 (Marsy's Law) was a violation of the ex post facto clause of federal

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constitution. Proposition 9, the "Victims' Bill of Rights Act of 2008: Marsy's Law," modified the

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availability and frequency of parole hearings. Specifically, Marsy's Law provides that the Board

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will hear each case every fifteen years unless it opts to schedule the next hearing in three, five, seven

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or ten years. Cal. Penal Code § 3041.5(b)(3) (2010).

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A prisoner subject to California's parole statute receives adequate process when he is allowed

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an opportunity to be heard and is provided with a statement of the reasons why parole was denied.

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Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011). The attachments to the petition show Petitioner

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received at least this amount of process. The Constitution does not require more. Id.

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Whether the Board's decision was supported by some evidence of current dangerousness is

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irrelevant in federal habeas. The Supreme Court has made clear that "it is no federal

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concern . . . whether California's 'some evidence' rule of judicial review (a procedure beyond what

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the Constitution demands) was correctly applied." Id. at 863.

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Petitioner's ex post facto claim also fails. The Ninth Circuit has recently held that Marsy's
Law does not violate the ex post facto clause. See Gillman v. Schwarzenegger, No. 10-15471, slip

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op. 1339, 1357 (9th Cir., Jan. 24, 2011). Accordingly, the Court finds that Petitioner's allegations do

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not state a cognizable claim for an ex post facto violation.

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For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. Pursuant to

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Rule 11 of the Rules Governing Section 2254 Cases, a certificate of appealability under 28 U.S.C.

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§ 2253(c) is DENIED because it cannot be said that "reasonable jurists would find the district court's

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assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484

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(2000). Petitioner may seek a certificate of appealability from the Ninth Circuit Court of Appeals.

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United States District Court
For the Northern District of California

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The Clerk of the Court shall enter judgment in favor of Respondent, terminate all pending
motions, and close the file.
IT IS SO ORDERED.
DATED:

5/10/11
SAUNDRA BROWN ARMSTRONG
United States District Judge

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G:\PRO-SE\SBA\HC.11\Villanueva1715.DenyHC-Cooke&ExPost.wpd
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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL VILLANUEVA,

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United States District Court
For the Northern District of California

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Case Number: CV11-01715 SBA

Plaintiff,

CERTIFICATE OF SERVICE

v.
VINCENT S. CULLEN et al,
Defendant.

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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 May 13, 2011, 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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Michael Villanueva H-49644
California State Prison - San Quentin
San Quentin, CA 94974
Dated: May 13, 2011
Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk

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