Bobby Thomas Jr v. Greg Lewis

Filing 7

ORDER TO SHOW CAUSE Habeas Answer due by 10/29/2012.. Signed by Judge Lucy H. Koh on 7/31/12. (Attachments: # 1 cert of mailing)(mpb, COURT STAFF) (Filed on 7/31/2012)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 BOBBY THOMAS, JR., 11 Petitioner, 12 13 v. GREG LEWIS, 14 Respondent. ) ) ) ) ) ) ) ) ) ) No. C 12-1747 LHK (PR) ORDER TO SHOW CAUSE 15 Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2254, challenging the Board of Parole Hearings’ (“Board”) 2009 denial 17 of parole suitability. Petitioner has paid the filing fee. The Court orders Respondent to show 18 cause why a writ of habeas corpus should not be granted. 19 DISCUSSION 20 A. Standard of Review 21 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 22 custody pursuant to the judgment of a state court only on the ground that he is in custody in 23 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose 24 v. Hodges, 423 U.S. 19, 21 (1975). 25 A district court shall “award the writ or issue an order directing the respondent to show 26 cause why the writ should not be granted, unless it appears from the application that the 27 applicant or person detained is not entitled thereto.” 28 U.S.C. § 2243. 28 Order to Show Cause G:\PRO-SE\SJ.LHK\HC.12\Thomas747osc.wpd 1 B. Petitioner’s Claims 2 In Grounds 1 and 2, Petitioner appears to allege that the Board violated his due process 3 rights by denying parole based on insufficient evidence that he remains an unreasonable risk of 4 danger to society if released. However, the Supreme Court has made clear that a prisoner’s 5 federal due process claim regarding a denial of parole is limited to whether he received the 6 minimum procedures necessary under the federal constitution. Swarthout v. Cooke, 131 S. Ct. 7 859, 861-62 (2011) (per curiam). Specifically, this Court’s inquiry is limited to whether 8 Petitioner was given an opportunity to be heard, and given a statement of reasons for the denial. 9 Id. at 862 (citing Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 16 10 (1979)). Thus, Grounds 1 and 2 fail to state a cognizable claim for federal habeas relief, and are 11 DISMISSED. See id. 12 In Ground 5, Petitioner claims that when the Board denied parole, it stated that 13 Petitioner’s next parole hearing would be in ten years. Petitioner alleges that the increase to ten 14 years violates the Ex Post Facto Clause. To the extent that Petitioner is making a challenge to 15 Marsy’s Law, it is DISMISSED. Marsy’s Law increased the minimum deferral period between 16 parole hearings from one to three years, and the maximum deferral period from five to fifteen 17 years. Gilman v. Schwarzenegger, 638 F.3d 1101, 1104 (9th Cir. 2011). Advance hearings can 18 be held by the Board sua sponte, or at the request of a prisoner, though the inmate is limited to 19 one such request every three years. Id. at 1105. The Ninth Circuit reversed the grant of a 20 preliminary injunction against enforcement of Marsy’s Law, holding that the plaintiffs were not 21 likely to prevail on the merits of their claim that Marsy’s Law violates the Ex Post Facto Clause. 22 Id. Gilman’s holding that the plaintiffs there were not likely to prevail on the merits makes clear 23 that the state courts’ rejection of Petitioner’s Marsy’s Law claim could not have been 24 unreasonable. Petitioner thus cannot obtain habeas relief on this claim, and it is DISMISSED. 25 See 28 U.S.C. § 2254(d). 26 In Grounds 3 and 4, Petitioner asserts that the Board has an unconstitutional blanket 27 policy of denying parole to all inmates placed in the SHU. Petitioner further argues that the 28 Board did not provide him with an individualized consideration of his case. Liberally construed, Order to Show Cause G:\PRO-SE\SJ.LHK\HC.12\Thomas747osc.wpd 2 1 Grounds 3 and 4 state a cognizable claim for relief. 2 CONCLUSION 3 1. Grounds 1, 2, and 5 are DISMISSED. 4 2. The Clerk shall serve by mail a copy of this order and the petition (docket no. 1) 5 and all attachments thereto upon the Respondent and the Respondent’s attorney, the Attorney 6 General of the State of California. The Clerk shall also serve a copy of this order on Petitioner. 7 3. Respondent shall file with the Court and serve on Petitioner, within ninety days 8 of the date this order is filed, an answer conforming in all respects to Rule 5 of the Rules 9 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be 10 granted. Respondent shall file with the answer and serve on Petitioner a copy of all portions of 11 the underlying state criminal record that have been transcribed previously and that are relevant to 12 a determination of the issues presented by the petition. 13 14 15 If Petitioner wishes to respond to the answer, he shall do so by filing a traverse with the Court and serving it on Respondent within thirty days of the date the answer is filed. 4. Respondent may file a motion to dismiss on procedural grounds in lieu of an 16 answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section 17 2254 Cases within ninety days of the date this order is filed. If Respondent files such a motion, 18 Petitioner shall file with the court and serve on Respondent an opposition or statement of non- 19 opposition within thirty days of the date the motion is filed, and Respondent shall file with the 20 court and serve on Petitioner a reply within fifteen days of the date any opposition is filed. 21 5. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep the 22 court and all parties informed of any change of address by filing a separate paper captioned 23 “Notice of Change of Address.” He must comply with the Court’s orders in a timely fashion. 24 Failure to do so may result in the dismissal of this action for failure to prosecute pursuant to 25 Federal Rule of Civil Procedure 41(b). 26 IT IS SO ORDERED. 27 DATED: 7/31/12 LUCY H. KOH United States District Judge 28 Order to Show Cause G:\PRO-SE\SJ.LHK\HC.12\Thomas747osc.wpd 3

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