Opinion
Civil No. 04cv0748 WQH (WMc).
November 16, 2005
ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff George Edward Summers, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Plaintiff challenges former Governor Davis' decision to reverse a decision by the California Board of Prison Terms ("BPT") to grant Plaintiff parole. On July 28, 2005, the Honorable William McCurine, Jr., United States Magistrate Judge, issued a Report and Recommendation ("RR") detailing the reasons why the petition should be denied. The parties were permitted to file Objections to the RR no later than September 30, 2005. On September 22, 2005, Plaintiff filed Objections to the RR.
The parties were permitted to file objections to the RR no later than August 31, 2005. See RR, p. 14. However, the Plaintiff requested and was granted an extension of time in which to file Objections to the RR.
BACKGROUND
On May 7, 1982, Plaintiff was found guilty of first degree murder with the use of a firearm under California Penal Code sections 969(d) and 12022.5. The trial court reduced the offense to second degree murder pursuant to Penal Code § 1181 and sentenced Plaintiff to fifteen years to life plus two years for use of the firearm, for a total term of seventeen years to life. On appeal, the court affirmed the conviction. People v. Summers, 147 Cal. App. 3d 180 (1983).On December 2, 1992, Plaintiff became eligible for parole consideration and began receiving hearings before the BPT. On November 19, 2002, the BPT found the Plaintiff suitable for parole. On April 18, 2003, former Governor Davis exercised his constitutional authority to independently review Plaintiff's case and decided to deny parole. The Governor reversed the BPT's decision to grant parole on the bases of Plaintiff's lengthy history of drug abuse, the insufficiency of Plaintiff's parole plans in light of his history of drug abuse, and Plaintiff's failure to acknowledge full responsibility for the crime. RR, p. 3.
On September 2, 2003, Plaintiff challenged the Governor's decision in a petition for writ of habeas corpus in the San Diego Superior Court claiming that his due process rights were violated. The court denied Plaintiff's petition in a reasoned opinion.
On December 1, 2003, Plaintiff filed a petition in the California Court of Appeal, Fourth Appellate District, seeking a review of the appellate court's decision. The court of appeal denied the petition without a written opinion. Plaintiff then filed a petition for review with the Supreme Court of California, which also denied to review the petition without a written opinion.
On April 12, 2004, Plaintiff filed a petition in federal court for writ of habeas corpus. RR, p. 2. The Plaintiff now Objects to the recommendations set forth in the RR.
STANDARD OF REVIEW
The duties of the district court in connection with a Magistrate Judge's Report and Recommendation are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 676 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).
When no objections are filed, the district court may assume the correctness of the Magistrate Judge's factual findings and decide the motion on the applicable law. See Campbell v. United States Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989).
DISCUSSION
On July 28, 2005, Magistrate Judge McCurine issued a RR regarding Plaintiff's petition for writ of habeas corpus. RR, p. 1. Specifically, the RR recommended denying Plaintiff's due process claim and his ex post facto claim. Id. at 13. The Magistrate reasoned that Plaintiff has a sufficient liberty interest in his parole to implicate due process rights, but that adequate procedural protections were provided to comply with due process. Id. at 8, 12. The RR states the Plaintiff could not prove that each of the factors the Governor relied on were not supported by "some evidence." Id. The RR also recommends denying habeas relief because Plaintiff could not establish that the state court's denial of his claim was contrary to, or an unreasonable application of federal ex post facto law. Id. at 13.
Plaintiff submits five Objections to the Magistrate's RR. See Pltf's Objections. Plaintiff first objects to RR's application of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") in concluding that habeas relief be denied. Pltf's Objections, p. 5. Plaintiff then argues the Magistrate erred in recommending that due process was not violated, alleging the factors the Governor relied on were not supported by "some evidence." Specifically, Plaintiff argues that the American with Disabilities Act ("ADA") protects prisoners from being discriminated against based on prior substance abuse and that the Governor should not have considered that element in his decision to deny parole. Pltf's Objections, p. 8. Plaintiff also argues that the Governor erred in basing his decision to deny parole on a continuing failure by Plaintiff to accept full responsibility because it is not supported by the record. Finally, Plaintiff objects to the RR recommending that the ex post facto claim be denied, alleging the decision was based on unreasonable determination of the facts presented. Id. at 12. The Court will address each Objection in turn.
I. Application of the AEDPA
Plaintiff alleges that the RR "failed to apply the appropriate standard of review under the AEDPA . . . because the FR's [ sic] did not explain how the State Court decisions did not involve a violation of § 2254(d)(1) or (2). In fact, there was substantial evidence to support a finding of bias on the part of the State Courts when they refused to apply the rule in Winship to the Governor's legal conclusion." Pltf's Objections, p. 5. Plaintiff further alleges that "there is specific evidence to show the FR's [ sic] made a sweeping conclusion that first and [s]econd [d]egree [m]urder are one and the same for purposes of punishment. This recharacterization of the elements to the committment [ sic] offense violates Winship and Wilbur." Id. at 6.
The Court is having difficulty discerning Plaintiff's Objection. Title 28 U.S.C. § 2254 as amended by the AEDPA, sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. [. . .]
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted 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(a), (d)(1)-(2).
Plaintiff alleges that the RR erred in its analysis because it did not explain why the state court decision did not violate section 2254(d)(1) and (2). Pltf's Objections, p. 5. Plaintiff has misinterpreted the meaning of the statute. It was not the Magistrate's obligation to explain why the state court did not violate section 2254(d)(1) and (2). Instead, a plaintiff seeking writ of habeas corpus has the burden of establishing that the decision of the state court is contrary to or involved an unreasonable application of United States Supreme Court Precedent or 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. See Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). If a plaintiff is unable to show one of these two elements, then his application for writ of habeas corpus shall be denied.
In the instant case, the Magistrate found that Plaintiff's state court proceedings were sufficient to constitute an adjudication on the merits for the purposes of § 2254(d) because the state court issued a ruling based on the substance of the claims, rather than on merely procedural grounds. RR, p. 6. The RR goes on to state that "[b]ecause Summers has failed to prove that the Governor did not rely on some credible evidence to deny his parole, the state court's decision to deny Summer's due process claims was not objectively unreasonable with the meaning of 28 U.S.C. § 2254(d)." Id. at 12. The RR discusses each element of § 2254(d) and details why it recommends denying habeas corpus. The Court does not find Plaintiff's argument persuasive because the Magistrate's analysis of § 2254(d) was well reasoned.
Plaintiff further argues that the "unreasonable application of United States Supreme Court precedent overcomes the presumption of honesty and integrity on the part of the decision makers and supplied evidence to show the decision makers [ sic] predetermined the case factors on suitability to uphold the reversal of the Board of Prison Terms decision to grant parole." Pltf's Objections, p. 6. Plaintiff cites to In re Winship, 397 U.S. 358 (1970), and Mullaney v. Wilbur, 421 U.S. 684 (1975), in support of his Objection. Id. These cases, however, address the issue of which party bear's the burden of persuasion in a heat of passion case. See Winship, 397 U.S. at 363; and Wilbur, 421 U.S. at 702. In the instant case, there is no issue as to who carries the burden of persuasion. The Court finds that Plaintiff's argument is not pertinent to the issue at hand. The Court also finds that the Magistrate applied the correct standard of review.
II. Due Process
In the instant case, the Magistrate found that Plaintiff does have a liberty interest in his parole, but that due process was not violated because Plaintiff was afforded sufficient protections. RR, p. 7-12. Plaintiff argues that the Governor violated his due process rights by reversing the BPT's decision to grant his parole. Id. at 6.
The Fourteenth Amendment provides that "[no] State [shall] deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV, § 1. In examining questions of procedural due process, federal courts employ a two-step inquiry: (1) whether there has been a deprivation of a constitutionally protected liberty or property interest; and (2) whether the procedures attendant upon that deprivation were constitutionally sufficient. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 570-71 (1972); Kentucky Dept. Of Corrections v. Thompson, 490 U.S. 454, 460 (1989); see also Brewster v. Bd. of Educ. Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998). Thus, the Court must begin its analysis by determining whether Plaintiff has a constitutionally protected liberty interest in parole.
The United States Supreme Court has expressly denied entitlement to a protected liberty interest in parole. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979). In Greenholtz, the Court established that "there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Id. Nevertheless, early release statutes can create a liberty interest protected by due process guarantees. Id. at 12. If there exists mandatory language in the parole statute, then a prisoner has a protected liberty interest in parole release. Id. at 11-12. If, however, the statute merely holds out the possibility of parole, then no such liberty interest exists. Id.
The Ninth Circuit has held that California's parole scheme gives rise to a cognizable liberty interest in release on parole. Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003); McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir. 2002). In Biggs, the court held that the mandatory language of California's parole statute creates a liberty interest in parole. Biggs, 334 F.3d at 915. The court stated that "[t]he liberty interest is created, not upon the grant of a parole date, but upon the incarceration of the inmate." Id. However in 2005, the California Supreme Court interpreted the language of § 3041 as not mandatory. In re Dannenberg, 34 Cal.4th 1061, 1087 (2005). The court in Sass, interpreting Dannenberg, held that the California parole scheme for indeterminate sentence does not give rise to a federal liberty interest. Sass v. Cali. Bd. of Prison Terms, 376 F. Supp. 2d 975, 982 (E.D. Cal. 2005). In referring to the Dannenberg case, the court said, "[w]hen a state court has made its own definitive determination as to the meaning of a state statute, federal courts give this finding great weight in determining the natural effect of a statute, and if it is consistent with the statute's reasonable interpretation, it will be deemed conclusive" Id. ( citing Gurley v. Rhoden, 421 U.S. 200, 208 (1975)).
While other Ninth Circuit courts have declined to follow the reasoning of Sass, and have stated that the mandatory language in the California statute does give a prisoner a constitutionally recognized liberty interest in parole that cannot be denied without adequate procedural due process protections, those cases are unpublished. The Court recognizes that it is somewhat unclear whether the language in the California parole scheme gives rise to a constitutionally protected liberty interest. However, the Court need not decide the issue of whether a recognized liberty interest exists in parole, as the Court finds that Plaintiff's due process rights were not violated. Even assuming, argumentatively, that a liberty interest exists, Plaintiff can not show a due process violation here.
See, e.g., Saif'ullah v. Carey, 2005 WL 1555389, at 8 (E.D. Cal. June, 28, 2005) (finding liberty interest in parole in California post- Dannenberg); Devries v. Schwarzeneger, 2005 WL 2175875 (E.D. Cal. Sep. 8, 2005); Murillo v. Perez, 2005 WL 2592420 (C.D. Cal. Oct. 12, 2005). CTA9 Rule 36-3 (unpublished dispositions and orders may not be cited to or by the courts of this circuit).
The requirements of due process are satisfied if plaintiff (1) had an opportunity to be heard, or (2) there is "some evidence" in the record to support the parole decision. Biggs, 334 F.3d at 915; McQuillion, 306 F.3d at 904. Because Plaintiff does not claim that he was not provided with an adequate opportunity to be heard, it is not an issue in this case. See Pltf's Objections, p. 4-10. Therefore the only inquiry the Court must make is whether the "some evidence" requirement was satisfied. Biggs, 334 F.3d at 915. The "some evidence" standard is minimally stringent and is satisfied if there is any evidence in the record to support the conclusion to deny parole. Superintendent v. Hill, 472 U.S. 445, 455-56 (1985). Additionally, the "some evidence" standard requires that the evidence underlying the decision to deny parole have some "indicia of reliability." Biggs, 334 F.3d at 915 ( quoting Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (1987)).
In the instant case, Plaintiff must prove that each of the factors the Governor relied on were not supported by some evidence. Each reliance factor that Plaintiff objects to will be addressed in turn.
A. Governor's Reliance on Unchanging Factors Committed Offense
Plaintiff alleges the Governor exclusively relied on the unchanging facts of his crime to reverse the BPT and that such reliance violated the rule set out in Biggs. Pltf's Objections, p. 7. The Ninth Circuit has recognized that a decision to deny parole based solely on a continued reliance on the unchanging facts of an inmate's commitment offense may violate due process. Biggs, 334 F.3d at 916-17. In Biggs, the court warned that if "over time, should [plaintiff] continue to demonstrate exemplary behavior and evidence of rehabilitation, denying him a parole date simply because of the nature of [his] offense and prior conduct would raise serious questions involving his liberty interest in parole." Id.
Although the Governor made his decision to deny parole based in part on a crime which occurred twenty-two years earlier, such reliance did not violate due process because there is some evidence to prove that the Governor did not exclusively rely on the unchanging factors. (Lodgment 5 at 428-430). For instance, the record shows that the Governor's conclusion that Plaintiff was unsuitable for parole was also based on Plaintiff's continued drug abuse during incarceration and on unsuitable plans by Plaintiff if paroled. Id. The Governor also noted that Plaintiff had not accepted full responsibility for the crime he committed since being incarcerated. ( Id. at 429-30). Furthermore, the Governor noted that Plaintiff had a significant potential for future violence. Id.
For the aforementioned reasons, the Court will adopt the Magistrate's finding that the Governor's decision to deny parole was not solely based on unchanging factors and thus did not violate Plaintiff's due process rights.
B. Governor's Reliance on Past Substance Abuse
The RR recommends denying Plaintiff's due process claim because the Governor's reliance on Plaintiff's substance abuse was reasonable due to the fact that the abuse could create serious public safety concerns. RR, p. 11. Plaintiff claims that the Magistrate erred in finding that the Governor's decision to deny parole based on Plaintiff prior substance abuse was not objectively unreasonable because the Court did not consider the rules established by the American with Disabilities Act. Pltf's Objections, p. 8. Plaintiff alleges that it is impermissible for a decision maker to consider prior drug abuse in making a decision for eligibility of parole because such consideration would violate the ADA. Id.
In support of his claim that it was unreasonable for the Governor to base his decision on prior drug abuse, Plaintiff cites to Thompson v. Davis, 295 F.3d 890 (9th Cir. 2002). Pltf's Objections, p. 8. In Thompson, state prisoners with substance abuse histories brought action against state parole authorities, claiming that the authorities followed an unwritten policy of automatically denying parole to prisoners with substance abuse histories in violation of the ADA. Thompson, 295 F.3d at 890. The court held that while a "`qualified individual with a disability' does not include an individual who is currently engaging in the illegal use of drugs, the ADA does protect individuals who have successfully completed or are participating in a supervised drug rehabilitation program and are no longer using illegal drugs." Id. at 896 ( citing 42 U.S.C. § 12210(a) (b); Collings v. Fibre Co., 63 F.3d 828, 831-32 (9th Cir. 1995)). The court further stated that even though a decision maker may not categorically exclude a class of disabled people from consideration for parole because of their disabilities, the decision maker can make an individualized assessment of the future dangerousness of an inmate by taking into account the inmate's disability. Id. at 898.
Here, like in Thompson, Plaintiff alleges that he is a prisoner with a substance abuse history whose ADA rights were violated when the Governor followed an automatic policy of denying parole to inmates with prior drug abuse histories. Pltf's Objections, p. 9. However, the record indicates that the Governor made an individualized assessment as to the effect the drug use would have on the dangerousness of Plaintiff if paroled. RR, p. 11. "As the state court indicated, Summers' substance abuse raised serious public safety concerns which the Governor had to consider." Id. The record does not support, as Plaintiff alleges, a claim that parole was denied based on a policy against prior drug abusers. There is sufficient evidence that the Governor's reliance on Plaintiff's prior drug abuse was made in assessing his future dangerousness to society if released and was not objectively unreasonable. For these reasons, the Court finds that the Governor did not violate the ADA and thus Plaintiff's due process rights were not violated.
C. Governor's Exclusion of Stress as a Mitigating Factor
The RR also recommends rejecting Plaintiff's claim that his due process rights were violated when the Governor arbitrarily excluded stress from the parole suitability criteria. RR, p. 12. The Magistrate found that even though the Governor did not specifically mention all stress factors the Plaintiff claims he was under, the Governor did consider the most important factor-that Plaintiff acted out of the belief that his son was taken or harmed by the victim. Id. at 11. Plaintiff alleges that the Magistrate erred in his recommendation because in "Coleman," the court found the Governor had "arrogated a `no parole policy' in violation of federal due process." Pltf's Objections, p. 11-12. Plaintiff claims that " Coleman undermines the reasonableness of the State Court adjudication of the Governor's statement to reverse the grant of parole." Id. at 12.
Plaintiff refers to "Coleman" in his Objections to the RR but does not give the citation for the case. There are over three thousand published cases in the Federal Circuit Courts with one of the party names as "Coleman." In Plaintiff's ex post facto claim he again refers to the case, there giving both party names, "Coleman v. BPT". The Court has been unable to locate any case with those party names. Thus the Court finds Plaintiff's argument unpersuasive. Moreover, "[i]t was not the role of [the Magistrate] to determine the correctness of the Governor's determination, but only to assure that the decision was supported by some credible evidence." RR, p. 12. The record is clear that the Governor did consider the stress factor that Plaintiff acted out of the belief that the victim had taken or harmed his son. RR, at 11. Thus, the Court will adopt the RR and deny Plaintiff's due process claim because there was "some evidence" to support the decision to deny parole.
III. Ex Post Facto Claim
The Magistrate found that Plaintiff's arguments did not support an ex post facto violation. RR, p. 13. The rationale articulated in the RR was that Plaintiff failed to provide sufficient evidence to show that the state court's denial of this claim was contrary to, or an unreasonable application of, clearly established federal law, or that it was based on an unreasonable determination of the facts presented. Id. Plaintiff alleges that the RR erred in its recommendation because the decision by the state court was based on an unreasonable determination of the facts presented. Pltf's Objections, p. 12. Specifically, Plaintiff contends that the Governor's exercise of his authority to reverse Plaintiff's parole, as granted by Article V Section 8(b) of the California Constitution, violates the Ex Post Facto Clause because the retroactive application results in a longer period of incarceration than would have occurred under the earlier rule. Moreover, Plaintiff alleges that the Governor's blanket application of a "no parole policy," which violates clearly established laws, merits the Court granting habeas relief. Id.
The Ex Post Facto Clause states that "[n]o State shall . . . pass any . . . ex post facto Law." U.S. Const. Art. I, § 10, cl. 1. The Clause applies to a statute or policy change which "alters the definition of criminal conduct or increases the penalty by which a crime is punishable." Cal. Dept. of Corr. v. Morales, 514 U.S. 499, 506 (1995).
The Supreme Court has provided two methods for a state prisoner to attack a parole change under the Ex Post Facto Clause. Garner v. Jones, 529 U.S. 244 (2000). First, a plaintiff can show that the new rule or change in the rule "by its own terms [creates] a significant risk" of increasing the punishment for the crime. Scott v. Baldwin, 225 F.3d 1020, 1023 n. 5 (9th Cir. 2000) ( quoting Jones, 529 U.S. at 1369). If such a facial challenge fails, then the convict can still "demonstrate, by evidence drawn from the rule's practical implementation by the agency charged with exercising discretion, that its retroactive application will result in a longer period of incarceration that under the earlier rule." Id.
The Ninth Circuit has held that section 8(b) to Article V of the California Constitution does not violate the Ex Post Facto Clause because the law itself is neutral. Johnson v. Gomez, 92 F.3d 964, 968 (9th Cir. 1996). In Gomez, the court held that merely changing who makes the final parole decision does not violate the Ex Post Facto Clause because the governor was still required to use the same criteria as the BPT in making a parole decision. Id. at 967. The Court finds, as applied in the instant case, section 8(b) is facially neutral and does not increase Plaintiff's punishment on its terms.
Plaintiff argues that even if the law is facially neutral, the practical retroactive application of the law is detrimental to Plaintiff because it has resulted in a longer period of incarceration. Pltf's Objections, p. 12. Section 8(b), which gave the Governor the power to review parole grants was not passed until 1988, three years after Plaintiff was incarcerated. Plaintiff argues that the BPT would have granted parole had it possessed the final review authority and that allegedly the Governor's no parole policy has extended his incarceration. Pltf's Objections, p. 13.
A review of the evidence leads the Court to conclude that the RR is correct in stating that the Plaintiff has not provided sufficient evidence to show that the application of section 8(b) has created a longer period of incarceration. See RR, p. 13. Here the BPT's parole decision is not final until after the expiration of the discretionary review period and it cannot be said with certainty that the BPT would have granted Plaintiff's parole had it had the final review authority. Moreover, the facts are not indicative of a blanket no parole policy, as Plaintiff claims. As the RR points out, it would not be unreasonable to assume that the BPT would have a lower parole rate than under the current system if it was given final review. RR, p. 13. Showing that the BPT might have granted parole is not sufficient to find a violation of the Ex Post Facto Clause. Gomez, 92 F.3d at 968. As a result, the Court will adopt the RR and deny Plaintiff's ex post facto claim.
CONCLUSION ORDER
Having reviewed the Report and Recommendation, the Objections submitted by Plaintiff, and the entire record, the Court finds that Plaintiff is not entitled to habeas relief. Accordingly,IT IS HEREBY ORDERED the Court ADOPTS the Report and Recommendation.
IT IS FURTHER ORDERED that Plaintiff's Petition for Habeas Corpus be DENIED. IT IS FURTHER ORDERED this action be DISMISSED.
IT IS SO ORDERED.