Opinion
Martin Rodriguez, Petitioner, Pro se, Soledad, CA.
For M E Spearman, Warden (A), Respondent: Brian Campbell Kinney, LEAD ATTORNEY, CAAG - Office of the Attorney General of California, San Francisco, CA.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Andrew J. Wistrich, United States Magistrate Judge.
In this petition for a writ of habeas corpus, petitioner challenges a decision of the Board of Parole Hearings (" Board") denying him parole. Respondent filed an answer to the petition, and petitioner filed a reply.
A federal court may not grant a writ of habeas corpus on behalf of a person in state custody
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). As used in Section 2254(d), the phrase " clearly established federal law" means " holdings of the Supreme Court at the time of the state court decision." Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) ( citing Williams, 529 U.S. at 412); see also Lopez v. Smith, 135 S.Ct. 1, 2, 190 L.Ed.2d 1 (2014) (per curiam) (the AEDPA " prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is 'clearly established.'") (citation omitted).
Respondent argues that the petition is untimely. [Answer at 5-6]. Because petitioner is not entitled to relief on the merits of his claims, the Court need not decide the procedural issue. See Lambrix v. Singletary, 520 U.S. 518, 525, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997)(explaining that a district court may address merits without reaching procedural issues when doing so best serves the interest of judicial economy).
Grounds One, Two, and Three
In ground one of the petition, petitioner alleges that the Board's failure to set a uniform prison term " commensurate on [sic] [his] offense and response to treatment violates [the] ex post facto clause." [Petition at 5]. In grounds two and three, he complains that the Board applied the incorrect evidentiary standard, and as a result, improperly relied upon his commitment offense to deny parole. He further contends that the Board's reliance on the standard allowing consideration of his commitment offense to find him unsuitable for parole violated the Ex Post Facto Clause. [Petition at 5-6].
Federal habeas review is limited to deciding whether a conviction violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); Swarthout v. Cooke, 562 U.S. 216, __, 131 S.Ct. 859, 861, 178 L.Ed.2d 732 (2011) (per curiam) (explaining that federal habeas corpus relief is not available for errors of state law); Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (same). Petitioner's allegations regarding the proper application of California law by the Board do not implicate any federally protected right. Roberts v. Hartley, 640 F.3d 1042, 1047 (9th Cir. 2011) (federal habeas court is not authorized " to reevaluate California's application of its rules for determining parole eligibility") (citation omitted). This is true notwithstanding his conclusory assertion of an ex post facto violation. See Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996) (explaining that a petitioner may not " transform a state-law issue into a federal one merely by asserting a violation of due process"), cert. denied, 522 U.S. 881, 118 S.Ct. 208, 139 L.Ed.2d 144 (1997).
Furthermore, despite his attempts to frame his claims as involving a federal constitutional right, petitioner essentially challenges the Board's reliance on the commitment offense to find him unsuitable for parole. Federal habeas review of state parole decisions is extremely limited. Cooke, 131 S.Ct. at 862. As the Supreme Court explained in Cooke, " the responsibility for assuring that the constitutionally adequate procedures governing California's parole system are properly applied rests with California courts, " and not with the federal court. Thus, the sole issue available for federal court review is whether a prisoner denied parole has received minimal procedural protections -- namely, an opportunity to be heard and a statement of the reasons why parole was denied. Cooke, 131 S.Ct. at 862 (citing Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 16, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). It is " of no federal concern ... whether California's 'some evidence' rule of judicial review (a procedure beyond what the Constitution demands) was correctly applied." Cooke, 131 S.Ct. at 863. Where, as here, an inmate has received an opportunity to be heard and a statement of reasons for the parole denial, that is " the beginning and the end of the federal habeas courts' inquiry into whether [petitioner] received due process." Cooke, 131 S.Ct. at 862.
Therefore, petitioner's allegations that the Board applied the incorrect standard when weighing the evidence related to his parole suitability are not reviewable in a federal habeas corpus action.
Petitioner's reliance on the Ex Post Facto Clause fares no better. The Ex Post Facto Clause prohibits states from enacting laws which, by retroactive operation, increase the punishment for a crime after its commission. Garner v. Jones, 529 U.S. 244, 250, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000). A law violates this prohibition if it: (1) " appl[ies] to events occurring before its enactment, " Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); and (2) " produces a sufficient risk of increasing the measure of punishment attached to the covered crimes." Cal. Dep't. of Corr. v. Morales, 514 U.S. 499, 504, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). There is no ex post facto violation if the new law " creates only the most speculative and attenuated risk of increasing the measure of punishment attached to the covered crimes." Morales, 514 U.S. at 513.
Although not entirely clear, petitioner apparently contends that the Board improperly relied upon a " new" standard set forth in In re Lawrence, 44 Cal.4th 1181, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008) rather than the one set forth in People v. Morse, 60 Cal.2d 631, 36 Cal.Rptr. 201, 388 P.2d 33 (1964). [Petition at 5-6].
California's current parole scheme, which went into effect in 1976, provides that the Board " shall set a release date unless it determines ... that consideration of the public safety requires a more lengthy period of incarceration for this individual...." Cal.Penal Code § 3041(b). The California Supreme Court has interpreted this language to require that an adverse parole decision must be supported by " some evidence" demonstrating current dangerousness. See In re Lawrence, 44 Cal.4th at 1204. Morse, the case on which petitioner believes the Board should have relied, interpreted California law prior to 1976 and considered the discretion of the Adult Authority, an entity that no longer exists. Petitioner has not pointed to any material change in the law from the date of his commitment offense in 1991 to the date of his parole hearing. Because he has failed to show that any change in the law actually resulted in a sufficient risk of increased punishment, his claim lacks merit. Cf. Garner, 529 U.S. at 254-257 (holding that a state law lengthening the interval between parole consideration hearings from three years to eight years for all prisoners serving life sentences does not violate the Ex Post Facto Clause where expedited parole review was available upon a change of circumstances or receipt of new information warranting an earlier review, and where there was no showing of significant risk of extending a prisoner's incarceration); Morales, 514 U.S. at 509 (rejecting an ex post facto challenge to a California statute that reduced the frequency of parole reconsideration hearings for prisoners convicted of multiple murders, finding that the law " did not modify the statutory punishment imposed for any particular offenses, " " alter the standards for determining either the initial date of parole eligibility or an inmate's suitability for parole, " or " change the basic structure of California's parole law"); Johnson v. Gomez, 92 F.3d 964, 967-968 (9th Cir. 1996) (holding that the 1988 amendment of Cal. Penal Code § 3041.2 to permit the governor to reverse or modify a decision of the Board that a prisoner was suitable for parole did not violate the Ex Post Facto Clause because the petitioner could only speculate that the Board would have granted parole if it had possessed the final review authority), cert. denied, 520 U.S. 1242 (1997), 117 S.Ct. 1848, 137 L.Ed.2d 1050.
The discretion the Adult Authority exercised in parole determinations arguably was greater than what the Board currently possesses. At least one district court has rejected an ex post facto claim like petitioner's because given the wide discretion of the Adult Authority, the petitioner could not demonstrate that he would have received a parole date under the prior law (including Morse), so he could not prove that application of the new law created a sufficient risk of increased punishment. D'Agostin v. Hernandez, 2007 WL 2481461, *9 (S.D.Cal. Aug. 29, 2007), aff'd, 440 Fed.Appx. 598 (9th Cir. 2011).
Grounds four and five
In grounds four and five of the petition, petitioner alleges that the Board's three year denial pursuant to Marsy's Law violated the Ex Post Facto Clause. [Petition at 6].
Proposition 9, also called " Marsy's Law, " was passed by California voters in 2008, and was codified in California Penal Code § 3041.5(b)(3). It altered the frequency of parole suitability hearings for prisoners found unsuitable for parole. Prior to the adoption of Marsy's Law, the default was for reconsideration of parole suitability at a new hearing in one year, although the Board had discretion to defer the next parole suitability hearing for a longer period. Marsy's Law increased the presumptive interval to fifteen years, and reduced -- but did not eliminate -- the Board's discretion to shorten it. Cal.Penal Code § 3041.5. In petitioner's case, the Board exercised its discretion to select the shortest permissible interval, specifically, three years. [Answer, Ex. 1 at 62].
Assuming that petitioner's claim is properly raised in a habeas proceeding, it is subject to dismissal because petitioner is a member of the plaintiff class in Gilman v. Fisher, Case No. 2: 05-CV-0830-LKK CKD (E.D.Cal.) (" Gilman"), which is comprised of " all California State prisoners who have been sentenced to a life term with possibility of parole for an offense that occurred before November 4, 2008." See Gilman, Order filed Feb. 28, 2014 (ECF No. 532 at 1-2) (citation and internal quotation marks omitted). Like the other plaintiffs in Gilman, petitioner alleges that retroactive application of Proposition 9 creates a significant risk that he will receive a longer period of incarceration than he would have under the law as it existed when he was sentenced. On February 28, 2014, the court in Gilman issued an order granting the Gilman class declaratory and injunctive relief, including entitlement to annual parole hearings unless the Board expressly finds that a longer deferral period is warranted. See Gilman, (ECF No. 532 at 57-58).
Petitioner's inclusion as a member of the Gilman plaintiff class is automatic, so he need not affirmatively seek inclusion.
The order is currently stayed until the resolution of cross-appeals pending before the Ninth Circuit Court of Appeals. [Ninth Circuit Case Nos. 14-15680 and 14-15613].
Members of the Gilman class " may not maintain a separate, individual suit for equitable relief involving the same subject matter of the class action." Gilman, Order filed Dec. 10, 2010 (ECF No. 296 at 2). Petitioner has not shown that he has opted out of the Gilman class. Accordingly, petitioner's ex post facto claim based upon the application of Marsy's Law should be dismissed without prejudice to petitioner's ability to obtain any relief to which he may be entitled as a member of the plaintiff class in Gilman. See Crawford v. Bell, 599 F.2d 890, 892 (9th Cir. 1979) (" A court may choose not to exercise its jurisdiction when another court having jurisdiction over the same matter has entertained it and can achieve the same result."); Robinson v. Hill, 2014 WL 4986619, *3 (E.D.Cal. Oct. 6, 2014) (dismissing without prejudice the petitioner's ex post facto claim without prejudice to the petitioner's ability to obtain relief to which he may be entitled as a member of the plaintiff class in Gilman); Johnson v. Ochoa, 2012 WL 6623401, *3 (C.D.Cal. Dec. 19, 2012) (same), report and recommendation adopted, 2012 WL 6616368 (C.D.Cal. Dec. 19, 2012).
For the foregoing reasons, petitioner's ex post facto challenge to Marsy's Law should be dismissed without prejudice and the remainder of the petition should be denied with prejudice.