Opinion
No. C 04-5450 CW (PR).
February 28, 2006
ORDER DENYING RESPONDENT'S MOTION TO DISMISS
In this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, Petitioner Bennie Blankenship, a prisoner of the State of California incarcerated at the Correctional Training Facility at Soledad, alleges that his right to due process was violated when former Governor Gray Davis reversed the finding of the Board of Prison Terms (BPT) that Petitioner was suitable for release on parole.
Respondent A.P. Kane moves to dismiss this action for lack of subject matter jurisdiction. Respondent contends that Petitioner has no federally protected liberty interest in parole and thus fails to present a federal question for review. Having considered all the papers filed by the parties, the Court DENIES Respondent's motion to dismiss.
Respondent requests that Warden A.P. Kane replace former Warden J. Solis as Respondent in this case. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, the Court grants this request. Under this rule the Court also replaces former Governor Gray Davis with Governor Arnold Schwarzenegger as a Respondent in this case. In a July 20, 2005 order, the Court directed the Warden, not the Governor, to file a response to the petition. Therefore, only Warden Kane moves for dismissal.
DISCUSSION
Although a convicted person has no inherent or constitutional right to early release on parole, a State's statutory parole scheme may create "a presumption that parole release will be granted" if it uses mandatory language. Greenholtz v. Inmates of Nebraska Penal Corr. Complex, 442 U.S. 1, 12 (1979). This presumption of parole release gives rise to a constitutionally protected liberty interest that cannot be denied without adequate due process protection. Id. at 11-16; see also Board of Pardons v. Allen, 482 U.S. 369, 376-78 (1987).
In Allen, the United States Supreme Court held that Montana's statutory parole scheme, which instructed that the parole board "shall" release a prisoner on parole absent certain conditions, used mandatory language such that it created a constitutionally protected right that parole would be granted if those conditions were not found to exist. Allen, 482 U.S. at 376-78. Also, inGreenholtz, the Supreme Court held that Nebraska's parole statute, which instructed that the parole board "shall" release the prisoner on parole absent certain conditions, created a liberty interest in release on parole if those conditions were found not to exist.Greenholtz, 442 U.S. at 11-12.
California's parole scheme largely parallels the Montana and Nebraska schemes. California Penal Code § 3041 instructs that the BPT "shall set a release date" unless it decides this is inadvisable based on the nature and timing of the offense and in consideration of public safety:
[a] One year prior to the inmate's minimum eligible parole release date a panel of two or more commissioners or deputy commissioners shall . . . meet with the inmate and shall normally set a parole release date . . . The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude in respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates. The board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime . . . [b] The panel or the board, sitting en banc, shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a more lengthy period of incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.
Cal. Penal Code § 3041(a), (b).
The Ninth Circuit has held that the California parole scheme "gives rise to a cognizable liberty interest in release on parole" under the Allen and Greenholtz standards because it "`creates a presumption that parole release will be granted' unless the statutorily defined determinations [set forth in § 3041(b)] are made." McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (quoting Greenholtz, 442 U.S. at 12); see also Biggs v. Terhune, 334 F.3d 910, 915-16 (9th Cir. 2003) (stating that § 3041 creates a liberty interest in parole that is protected by the due process clause, but holding that parole can be denied based on the gravity of the commitment offense). Thus, under Ninth Circuit authority, the mandatory language of California's parole scheme creates a federally protected liberty interest such that an inmate has a right to due process in parole release absent the determinations set forth in § 3041(b).
Citing Sandin v. Connor, 515 U.S. 472 (1995), Respondent contends that although "states may under certain circumstances create liberty interests which are protected by the Due Process Clause, . . . these interests will be generally limited to freedom from restraint" which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 483-84. Because Petitioner can expect to be imprisoned for life, Respondent claims, denial of parole is not an "atypical" or "significant hardship," so § 3041 does not give rise to a State-created liberty interest.
However, Sandin did not foreclose the possibility that a State parole scheme may create a protectable liberty interest; it did not discuss parole at all. The Ninth Circuit has interpretedSandin as applying "to internal disciplinary [prison] regulations" only. McQuillion, 306 F.3d at 903. Furthermore, the fact that McQuillion was decided after Sandin illustrates that the Ninth Circuit considered Sandin when it held that § 3041 creates a liberty interest in parole, and determined that Sandin did not affect this holding.
Respondent also relies on In re Dannenberg, 34 Cal. 4th 1061 (2005). Dannenberg determined that a prisoner's individual parole suitability must be ascertained before the BPT attempts to set a term that would result in uniform parole dates for similar crimes. Id. at 1098. In other words, the California Supreme Court determined that Penal Code § 3041(a)'s term-uniformity concerns only arise if the inmate is found suitable under § 3041(b). However, Dannenberg did not address whether § 3041(b) creates a federally protected liberty interest in parole. Indeed,Dannenberg used language that indicated it assumed such a liberty interest exists: "the Board has always enjoyed broad parole discretion with deferential judicial oversight. But these well-established principles do not deny due process. On the contrary, they define and limit the expectancy in parole from a life sentence to which due process interests attach." Id. at 1095 n. 16; see also id. at 1094 ("sole reliance on the commitment offense might . . . contravene the inmate's constitutionally protected expectation of parole.") Thus,Dannenberg did not undermine the Ninth Circuit's holding inMcQuillion that § 3041 creates a federally protected liberty interest in parole release absent the finding of certain conditions.
After Dannenberg, several district courts have addressed howDannenberg affects the Ninth Circuit's holding in McQuillion. A court in the Eastern District of California recently held thatDannenberg stands for the proposition that California's parole scheme is not mandatory, and thus it does not create a federally protected interest in parole release. Sass v. California Bd. of Prison Terms, 376 F. Supp. 2d 975, 983 (2005), appeal docketed, No. 05-16455 (9th Cir. July 12, 2005). However, the majority of district courts that have addressed this issue have determined that Dannenberg did not address the mandatory nature of the parole statute, and thus did not affect McQuillion's holding that California's statute creates a federally protected liberty interest in parole release. See Guzman v. Kane, 2006 WL 83060 (N.D. Cal.); Chilchil v. Kane, 2006 WL 83057 (N.D. Cal.); McCauley v. Brown, 2006 WL 83050 (N.D. Cal.); Machado v. Kane, 2005 WL 3299885 (N.D. Cal.); Thompson v. Carey, 2005 WL 3287503 (E.D. Cal.).
Unpublished cases in this district have reached the same conclusion. See Lewis v. Solis, 2005 WL 3454137 (N.D. Cal.) (unpublished); Mason v. Hamlet, No. C 02-5363 JF (N.D. Cal.) (unpublished).
Because the Ninth Circuit specifically held in McQuillion that California's parole scheme creates a federally protected liberty interest, and because Dannenberg did not address this issue, the Court rejects Respondent's argument that there is no protected liberty interest in parole for California inmates. Therefore, the Court has jurisdiction over this petition. Respondent's motion is denied.
CONCLUSION
For the foregoing reasons, the Court DENIES Respondent's motion to dismiss. Respondent shall file an answer to the petition within thirty days from the date of this order. Petitioner shall file a traverse within thirty days thereafter.
IT IS SO ORDERED.