Opinion
No. C 05-1001 JSW (PR), (Docket no. 3).
March 29, 2006
ORDER DENYING RESPONDENT'S MOTION TO DISMISS
This matter comes before the Court on consideration of Respondent A.P. Kane's ("Respondent") motion to dismiss the petition for writ of habeas corpus filed by Petitioner Wayland To ("Petitioner"). Having considered the motion, the opposition thereto, and relevant legal authority, the motion is DENIED.
BACKGROUND
According to the petition, Petitioner was convicted of aiding and abetting murder in Alameda County Superior Court and was sentenced to fifteen years-to-life. In this habeas action, Petitioner does not challenge his conviction, but instead challenges the execution of his sentence. Petitioner contends that the denial of parole by the Board of Prison Terms ("BPT") during parole suitability proceedings in 2004 violated his rights to due process and equal protection. He alleges that he has exhausted state judicial remedies as to all of the claims raised in his federal petition.
Petitioner filed his federal habeas petition on March 9, 2005. On July 21, 2005, Respondent filed a motion to dismiss the petition on the ground that recent California Supreme Court authority interpreting California's parole scheme establishes that Petitioner has no federally protected liberty interest in parole and, therefore, the Court lacks jurisdiction over the matter. Petitioner has filed an opposition to the motion to dismiss, arguing that Ninth Circuit precedent finding a protected liberty interest in California's parole scheme remains the applicable law.
ANALYSIS
In general, "[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1, 7 (1979). However, "a state's statutory scheme, if it uses mandatory language, `creates a presumption that parole release will be granted' when or unless certain designated findings are made, and thereby gives rise to a constitutional liberty interest." McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir. 2002) (citing Board of Pardons v. Allen, 482 U.S. 369, 377-78 (1987) ; Greenholtz, 442 U.S. at 12).
The California statutory provision at issue provides, in pertinent part, that "[t]he 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 . . . 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. . . ." Cal. Penal Code § 3041(b) (emphasis added). This "shall-unless" language is similar to the statutes that were at issue in Allen and Greenholtz. See Allen, 482 U.S. at 376 (" Subject to the following restrictions, the board shall release on parole . . . any person confined in the Montana state prison or the women's correction center . . . when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or the community.") (quoting Mont. Code Ann. § 46-230201 (1985) (emphasis added and in original); Greenholtz, 442 U.S. at 11 ("[w]henever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because . . .") (quoting Neb. Rev. Stats. § 83-1,114(1) (1976)) (emphasis added).
Recognizing the similarity between California's statutory scheme and the statutory scheme at issue in Allen and Greenholtz, the Ninth Circuit has held that "California's parole scheme gives rise to a cognizable liberty interest in release on parole. The scheme creates a presumption that parole release will be granted unless the statutorily defined determinations are made." McQuillion, 306 F.3d at 902 (internal quotations and citations omitted). That court reiterated this holding in Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003) ("[I]t is clear that "California's parole scheme gives rise to a cognizable liberty interest in release on parole.") (quoting McQuillion, 306 F.3d at 902).
Respondent contends that the California Supreme Court's decision in In re Dannenberg, 34 Cal. 4th 1061 (2005) undermines the Ninth Circuit's holdings in Biggs and McQuillion, and Respondent relies on Sass v. California Board of Prison Terms, 376 F. Supp. 2d 975 (E.D. Cal. 2005) in support of this argument. This Court disagrees with the Sass court's conclusion that the holding in Dannenberg clearly demonstrates California's parole scheme is not mandatory. The issue presented in Dannenberg was whether the BPT was required to set uniform parole dates under Section 3041(a) before it determined whether a particular inmate was suitable for parole under 3041(b). See Dannenberg, 34 Cal. 4th at 1069, 1077. It concluded the answer to that question was no. Id. at 1096. However, the Dannenberg court used language throughout the opinion which suggests that it presumed an inmate retained a protected liberty interest in the possibility of parole. See, e.g., id. at 1094 (noting continued reliance on commitment offense "might thus also contravene the inmate's constitutionally protected expectation of parole"), 1095 n. 16 ("well established principles" regarding parole discretion with deferential judicial oversight "define and limit the expectancy in parole from a life sentence to which due process interests attach"). Furthermore, California courts addressing the issue post Dannenberg continue to assume a protected liberty interest exists. See In re Scott, 133 Cal. App. 4th 573 (2005); In re DeLuna, 126 Cal. App. 4th 585 (2005).
Accordingly, this Court finds itself in agreement with a majority of courts that have considered the impact of Dannenberg on the issue presented by Respondent's motion and cannot find that the Dannenberg opinion represents a clear holding that California's parole scheme is not mandatory. See, e.g., Blankenship v. Kane, 2006 WL 515627 at *3 (N.D. Cal. Feb. 28, 2006) (citing cases). Accordingly, under the holdings of McQuillion and Biggs, Petitioner has a federally protected liberty interest in parole, the Court has jurisdiction over this matter, and Respondent's motion is DENIED.
CONCLUSION
In light of the Court's denial of Respondent's motion, within sixty (60) days from the date of this order Respondent must file and serve on Petitioner an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent must file with the answer a copy of all portions of the administrative record that are relevant to a determination of the issues presented by the petition.
If Petitioner wishes to respond to the answer, he must do so by filing a traverse with the Court and serving it on Respondent within thirty (30) days from the date he is served with the answer.
IT IS SO ORDERED.