Remsen v. Holland, 1:12-cv-00731-BAM-HC
| Decision Date | 07 August 2012 |
| Docket Number | 1:12-cv-00731-BAM-HC |
| Parties | LAWRENCE REMSEN, Petitioner, v. J. HOLLAND, (A) Warden, et al., Respondents. |
| Court | U.S. District Court — Eastern District of California |
ORDER DISCHARGING ORDER TO SHOW
CAUSE (DOC. 5)
ORDER DISMISSING SOME CLAIMS IN
THE PETITION WITHOUT LEAVE TO
AMEND (DOC. 1)
ORDER GRANTING PETITIONER LEAVE
TO FILE NO LATER THAN THIRTY (30)
DAYS AFTER SERVICE A FIRST
AMENDED PETITION WITH RESPECT TO
PETITIONER'S EX POST FACTO CLAIMS
DEADLINE FOR FILING FIRST AMENDED
PETITION:
THIRTY (30) DAYS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on May 17, 2012 (doc. 4). Pending before the Court is the petition, which was filed on May 7, 2012.
On May 24, 2012, Petitioner responded to this Court's order to show cause why the petition should not be dismissed for failure to exhaust state court remedies. Petitioner did not provide the Court with copies of the full petition or petitions filed in the California Supreme Court. Therefore, it is not clear that Petitioner exhausted all state remedies. However, the Court will proceed to screen the petition to the extent possible at this juncture and will discharge the order to show cause.
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d at 491.
Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).
A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
Here, Petitioner alleges that he is an inmate of the California Correctional Institution at Tehachapi (CCI) serving a sentence of fifteen years to life1 plus five years imposed in 1983 in the Los Angeles County Superior Court for second degree murder and multiple counts of forgery and theft in violation of Cal. Pen. Code §§ 187, 470, and 487. (Pet. 1, 8.) Petitioner challenges the decision of California's Board of Parole Hearings (BPH) made after a hearing held on March 19, 2008, finding Petitioner unsuitable for parole.
Although Petitioner lists only four grounds in the form portion of the petition (doc. 1, 5-6), a review of the entirety of the petition shows that Petitioner appears to raise additional claims or sub-claims. The claims that appear to be raised in thepetition are as follows: 1) the finding that Petitioner was unsuitable for parole because he presented an unreasonable risk to the public safety was a violation of Petitioner's rights to substantive due process and equal protection guaranteed by the Fourteenth Amendment because it was unsupported by the evidence; 2) Petitioner was denied a fair and impartial hearing because the BPH failed to recognize its statutory limitations and was not impartial; 3) the failure to release Petitioner on parole violated Petitioner's right to due process and equal protection because when sentenced he was told that he could not serve more than fifteen years; 4) the determination of the length of Petitioner's sentence by the BPH exceeds the BPH's authority because it is a legislative function, and it results in an absence of uniformity of sentence and a violation of Petitioner's right under state law to have his sentence set on the basis of proportionality of the offense and earned credits; 5) the failure to provide annual parole hearings as was done when Petitioner was convicted is an incorrect interpretation or application of state law; 6) changing the parole rules after Petitioner's conviction (e.g., unspecified differences in standards, greater time periods between parole hearings, and deprivation of the right to a jury trial on dangerousness) violated the prohibition against ex post facto laws under the Constitution and the state constitution; 7) the application of Cal. Pen. Code § 3041 to Petitioner violates Petitioner's right to substantive due process and equal protection because Petitioner is not serving a life sentence under state law; 8) Petitioner's right of contract and right to a reduction of his sentence were denied when his agreement with thestate pursuant to Cal. Pen. Code § 2931 was violated; 9) under the state laws enacted in 1977, the BPH was without the authority to enact or apply to Petitioner rules and regulations concerning release on parole other than to credit Petitioner's earned good time credits; 10) Petitioner's First Amendment rights were violated because Petitioner never received a ruling on the merits of his claims; 11) Petitioner's rights to a jury trial and proof beyond a reasonable doubt on the issue of his dangerousness were violated; and 12) because Petitioner is serving a sentence longer than that which a person convicted of the more serious offense of first degree murder would serve, Petitioner has been deprived of the uniform operation of the laws under state law and in violation of his right to equal protection.
Petitioner's parole hearing was held on March 19, 2008, before a commissioner of the BPH and a deputy commissioner; Petitioner chose to appear without counsel and confirmed that his rights concerning the hearing had been met. (Pet. 80-83, 88.) Petitioner was given an opportunity to correct or clarify the record, and he submitted a work record, a notice regarding the jurisdiction of the BPH, and a copy of his "current case" pending in the Eastern District after the case was transferred from the Central District. (Id. at 87, 90-91, 153.) Petitioner affirmatively stated that he had no objection to the panel. (Id. at 89.)
Petitioner initially declined to discuss the commitment offense, which Petitioner attributed to his heavy drinking. The offense involved the disappearance of an extremely wealthy woman for whom Petitioner served as a business manager, followed byPetitioner's fraudulent sales of the victim's real estate, conversion of her funds, and attempt to purchase a vehicle for over $100,000. Petitioner stated that after he accompanied the victim to Las Vegas, the victim returned to Los Angeles alone, and when Petitioner returned in her car, he found her dead in her home, and he buried her at sea in a rubber raft with weights attached. No body was ever found. Petitioner did not report the death because he wanted to finalize some deals and felt he had something coming. The victim's usual activities suddenly ceased around the time of the alleged trip to Las Vegas. (Id. at 98-102.)
Petitioner had been previously convicted of exhibiting a deadly firearm to a hitchhiker who had stolen his wallet, trespassing, and carrying a concealed weapon in a vehicle. (Id. at 103-04.) Petitioner had an extraordinary disciplinary record and a good work record but no formal vocational education and no recent self-help programs. (Id. at 114-21, 129-30.) The psychological evaluator reported that Petitioner stated that he was not guilty of the charge; the evaluator concluded that Petitioner was in a low risk category for violence, relapse into alcoholism, or recidivism. The extent of Petitioner's exploration and coming to terms with the commitment offense was not addressed because Petitioner asserted his innocence. (Id. at 126-30.) When asked at the parole hearing if he was guilty of any crime in connection with the victim's death, Petitioner testified that at the very worst it would be voluntary manslaughter or manslaughter and not second degree murder because Petitioner pushed the victim in response to her having hitPetitioner over the head with a dust pan, and she fell down the stairs, although Petitioner did not do it intentionally or vindictively. Petitioner believed she broke her neck in the fall, but Petitioner was too scared to summon help, and he buried her a day or two later. Petitioner asserted that he came from a very wealthy family and did not know why he committed the financial crimes after the victim's death. (Id. at 135-40.)
The BPH denied parole for two years and stated in Petitioner's presence that it found that Petitioner posed an unreasonable risk of danger to society or a threat to public safety if released because of the cruel and callous commitment offense committed against an elderly victim with whom Petitioner was in a relationship of trust, Petitioner's failure to participate sufficiently in self-help programs related to alcohol, and P...
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