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