Jamison v. Davis

Filing 7

ORDER DISMISSING CASE AND DENYING CERTIFICATE OF APPEALABILITY, ***Civil Case Terminated. (Certificate of Service Attached) Signed by Judge Phyllis J. Hamilton on 6/6/16. (napS, COURT STAFF) (Filed on 6/6/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LUTHER G. JAMISON,

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Petitioner,

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ORDER DISMISSING CASE AND
DENYING CERTIFICATE OF
APPEALABILITY

v.

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RON DAVIS,

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Respondent.

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United States District Court
Northern District of California

Case No. 16-cv-01465-PJH

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Petitioner, a California prisoner, proceeds with a pro se petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254 challenging a 2014 parole denial by the

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Board of Parole Hearings (“BPH”). The original petition was dismissed with leave to

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amend and petitioner has filed an amended petition.

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DISCUSSION

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I.

STANDARD OF REVIEW
This court may entertain a petition for 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); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet

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heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An

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application for a federal writ of habeas corpus filed by a prisoner who is in state custody

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pursuant to a judgment of a state court must “specify all the grounds for relief available to

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the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules

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Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ pleading is not sufficient, for the

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petition is expected to state facts that point to a ‘real possibility of constitutional error.’”

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Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir.

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1970)).

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LEGAL CLAIMS
Petitioner challenges the procedures used by the BPH in denying him parole
which he contends violated due process.
In 2011, the United States Supreme Court overruled a line of Ninth Circuit

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precedent that had supported habeas review in California cases involving denials of

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parole by the BPH and/or the governor. See Swarthout v. Cooke, 562 U.S. 216 (2011).

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The Supreme Court held that federal habeas jurisdiction does not extend to review of the
evidentiary basis for state parole decisions. Because habeas relief is not available for

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United States District Court
Northern District of California

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errors of state law, and because the Due Process Clause does not require correct

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application of California's “some evidence” standard for denial of parole, federal courts

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may not intervene in parole decisions as long as minimum procedural protections are

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provided. Id. at 220-21. Federal due process protection for such a state-created liberty

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interest is “minimal,” the determination being whether “the minimum procedures adequate

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for due-process protection of that interest” have been met. The inquiry is limited to

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whether the prisoner was given the opportunity to be heard and received a statement of

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the reasons why parole was denied. Id. at 221; Miller v. Oregon Bd. of Parole and Post–

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Prison Supervision, 642 F.3d 711, 716 (9th Cir. 2011) (“The Supreme Court held in

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Swarthout that in the context of parole eligibility decisions the due process right is

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procedural, and entitles a prisoner to nothing more than a fair hearing and a statement of

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reasons for a parole board's decision.”). This procedural inquiry is “the beginning and the

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end of” a federal habeas court's analysis of whether due process has been violated when

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a state prisoner is denied parole. Swarthout at 220. The Ninth Circuit has acknowledged

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that after Swarthout, substantive challenges to parole decisions are not cognizable in

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habeas. Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011).

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Petitioner argues that the BPH erred setting his base term and adjusted base

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term. He states that his base term was set at 30 years, but he has not been granted
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parole despite serving 32 years. He states this violated due process and the state court

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case of In re Butler.

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Petitioner’s argument that the BPH erred in setting his base term only concerns

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state laws and procedures. As set forth in Swarthout the federal due process protections

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do not include adherence to California procedures. Challenges to the BPH’s enactment

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of state laws and procedures must be presented in state court. Petitioner presented his

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claims in state court but his challenges were all denied. This court cannot overrule state

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court decisions or find that California courts incorrectly interpreted state law.

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Regardless, petitioner's claim appears to allege that under state law the base term
of his sentence is the full measure of the time he legally can be required to serve for his

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United States District Court
Northern District of California

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crime and that, if that sentence is exceeded, he must be released. Yet, petitioner was

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sentenced to 25 years to life so there is a possibility that he will never be paroled.

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Petitioner is informed that the base term is simply a starting point, and his “adjusted

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period of confinement” will consist of his base term plus “any adjustments.” Cal Code

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Regs. tit. 15, § 2411(a). Such adjustments may be made for use of or being armed with

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a weapon, causing great loss, prior prison term(s), multiple convictions, and other factors

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such as pattern of violence, numerous crimes or crimes of increasing seriousness, the

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defendant's status at the time (e.g., on parole or probation), as well as other aggravating

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factors. Cal. Code Regs. tit. 15, §§ 2406–2409. These are matters for the BPH to

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consider at petitioner's next parole suitability hearing. The BPH does not sentence

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petitioner; only the sentencing court can do that. The BPH cannot revise sentences; it

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can only act within California law to set parole dates, if prisoners sentenced to an

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indeterminate term are found suitable for parole at all.

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The case of In re Butler actually comprises two cases: one dealing with Butler's

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suitability for parole, formerly published at 224 Cal. App. 4th 469 (2014) and ordered

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depublished, now appearing at 169 Cal. Rptr. 3d 1; and a separate lawsuit, 236 Cal. App.

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4th 1222 (Cal. Ct. App. 2015), relating to the issues discussed above. The settlement in

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the latter case requires the BPH to announce and implement the procedures petitioner
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herein conten should be applied to him. Se in re Butl 236 Ca App. 4th 1222 (Cal.
nds
ee
ler,
al.

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Ct. App. 2015 The But court he that the stipulated order settling the case applied to
.
5).
tler
eld
e
o

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a class of Cal
c
lifornia priso
oners. In re Butler, 23 Cal. App 4th at 124 The ca
r
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p.
44.
alculating of
f

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the base and adjusted base terms at the outse of a sent
e
a
et
tence assists the court in
ts

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determining whether an indetermina sentenc is becom
w
ate
ce
ming excess
sive, or is in fact
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exc
cessive. In re Butler, 236 Cal. Ap 4th at 1 243-44.1 T
n
pp.
This calcula
ation may d
discourage

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the BPH from unduly denying parole suitability but Butle does not mandate th BPH
e
m
y,
er
hat

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find in a priso
d
oner's favor at any part
ticular time. Id. Thus, the calcula
ation of bas and/or
se

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an adjusted base term in petitioner''s case wou have on a speculative effect on
b
n
uld
nly
t
wh
hether petitioner would be granted parole be
d
d
efore the ex
xpiration of his life. Re
egardless,

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United States District Court
Northern District of California

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spe
eculative or not, In re Butler deals only with state admi
inistrative la and the
aw

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pro
ocedures to be followe by the BPH.
o
ed
CONCLU
USION

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The pe
etition is DIS
SMISSED for the reas
f
sons set for above. Because re
rth
easonable

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jurists would not find the result here debatable a certifica of appealability (“C
n
e
e
e,
ate
COA”) is

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DE
ENIED. See Slack v. McDaniel, 529 U.S. 47 484-85 (2000) (sta
e
M
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73,
andard for C
COA).
IT IS SO ORDER
S
RED.

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Da
ated: June 6, 2016

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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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ndoak.cand.circ9
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2016\2016_01465
5_Jamison_v_Da
avis_(PSP)\16-c
cv-01465-PJH-dis
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California's parole sche
C
p
eme contem
mplates tha a prisoner sentenced to a term of years to
at
d
o
life must be fo
e
ound suitab for parol before a parole date can be se Criteria for
ble
le
e
et.
determining whether a prisoner is suitable for parole are set forth in California Penal
w
p
s
Co section 3041(b) an related im
ode
nd
mplementin regulatio
ng
ons. See C Code R
Cal.
Regs. tit. 15,
§ 2402. If, pu
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ursuant to th judgmen of the pa
he
nt
anel, a priso
oner will pos an unrea
se
asonable
danger to soc
ciety if relea
ased, he mu be found unsuitabl and denied a parole date. Cal.
ust
le
e
Co Regs. tit. 15, § 240
ode
02(a).
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UNITED STATES D
DISTRICT C
COURT

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NORTHER DISTRIC OF CAL
N
RN
CT
LIFORNIA

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LU
UTHER G. JAMISON,
,

Case No. 16-cv-014
465-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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RON DAVIS,
R
Defendant.

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United States District Court
Northern District of California

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I, the undersigned hereby ce
u
d,
ertify that I am an emp
ployee in th Office of the Clerk,
he
f
U.S District Court, North
S.
C
hern Distric of Californ
ct
nia.
That on June 6, 2016, I SER
2
RVED a true and corre copy(ies of the atta
e
ect
s)
ached, by
pla
acing said copy(ies) in a postage paid envelo addres
c
ope
ssed to the person(s) h
hereinafter
list
ted, by depositing said envelope in the U.S. Mail, or by placing sa copy(ies into an
d
y
aid
s)
inte
er-office de
elivery receptacle locat in the C
ted
Clerk's office.

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Luther G. Jam
mison ID: C-63753
C
Ca
alifornia Sta Prison - San Quent
ate
tin
Sa Quentin, CA 94974
an

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ated: June 6, 2016
6
Da

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Susan Y. So
oong
Clerk, United States Dis
d
strict Court
C
y:________
By
_________
_________
Nichole Peric Deputy C
c,
Clerk to the
e
Honorable P
PHYLLIS J. HAMILTON
N

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