Wilson v. Walker

• Decision Date: 15 February 2011
• Docket Number: No. CIV S-07-2752 GEB EFB P,CIV S-07-2752 GEB EFB P
• Parties: STEVE WILSON, Petitioner, v. J. WALKER, Warden, et al., Respondents.
• Court: U.S. District Court — Eastern District of California

STEVE WILSON, Petitioner,

v.J. WALKER, Warden, et al., Respondents.

No. CIV S-07-2752 GEB EFB P

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: February 15, 2011

FINDINGS & RECOMMENDATIONS

Petitioner is a state prisoner proceeding in propria persona with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges the decision of the California Board of Parole Hearings (hereinafter "Board") to deny him parole at a parole consideration hearing held on September 21, 2005. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.

I. Procedural Background

Petitioner is confined pursuant to a 1982 judgment of conviction entered against him in the Inyo County Superior Court following his conviction on a charge of first degree murder.

Pet. at 1.¹ Pursuant to that conviction, petitioner was sentenced to twenty-five years to life in state prison. Id.

The parole consideration hearing that is placed at issue by the instant petition was held on September 21, 2005. Dckt. 1-1 at 66. Petitioner appeared at and participated in the hearing. Dckt. 1-1 at 66-124; Dckt. 1-2 at 1-36. Following deliberations held at the conclusion of the hearing, the Board panel announced their decision to deny petitioner parole for four years and the reasons for that decision. Dckt. 1-2 at 37-45.

Petitioner filed three habeas petitions in California courts challenging the denial of parole. On May 22, 2006, petitioner filed a habeas petition in the Inyo County Superior Court. Answer, Ex. 1. On June 26, 2006, that petition was denied. Id., Ex. 2. On October 20, 2006, petitioner filed a habeas petition in the California Court of Appeal for the Third Appellate District. Id., Ex. 3. The Court of Appeal denied the petition on November 2, 2006, without prejudice to filing in the Court of Appeal for the Fourth Appellate District. Id., Ex. 4. On May 21, 2007, petitioner filed a habeas petition in the California Supreme Court. Id., Ex. 5. That petition was summarily denied on October 10, 2007. Id., Ex. 6.

II. Standards for a Writ of Habeas Corpus

Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings unless the state court's 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).

Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents "if it 'applies a rule that contradicts the governing law set forth in ^{reme Court} cases', or if it 'confronts a set of facts that are materially indistinguishable from a decision'" of the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).

Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 413. A federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 412; see alsoLockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")

The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). See also Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) ("When more than one state court has adjudicated a claim, we analyze the last reasoned decision"). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

III. Petitioner's Claims

A. Due Process

Petitioner's first claim is that the Board's 2005 decision violated his right to due process because it was not support by "any evidence" that he was unsuitable for parole. Pet. at 5. Heargues that his commitment offense, standing alone, is insufficient to demonstrate he is currently dangerous, and that numerous other factors indicate he is ready to be paroled. Id. at 5-13.²

The Due Process Clause of the Fourteenth Amendment prohibits state action that deprives a person of life, liberty, or property without due process of law. A litigant alleging a due process violation must first demonstrate that he was deprived of a liberty or property interest protected by the Due Process Clause and then show that the procedures attendant upon the deprivation were not constitutionally sufficient. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 459-60 (1989).

A protected liberty interest may arise from either the Due Process Clause of the United States Constitution "by reason of guarantees implicit in the word 'liberty, '" or from "an expectation or interest created by state laws or policies." Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (citations omitted). See also Board of Pardons v. Allen, 482 U.S. 369, 373 (1987). The United States Constitution does not, of its own force, create a protected liberty interest in a parole date, even one that has been set. Jago v. Van Curen, 454 U.S. 14, 17-21 (1981); Greenholtz v. Inmates of Neb. Penal, 442 U.S. 1, 7 (1979) (There is "no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."); see also Hayward v. Marshall, 603 F.3d 546, 561 (9th Cir. 2010) (en banc). 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." Greenholtz, 442 U.S. at 12). See also Allen, 482 U.S. at 376-78; California's parole scheme gives rise to a liberty interest in parole protected by the federal due process clause. Swarthout v. Cooke, 562 U.S.___(2011), No. 10-333, 2011 WL 197627, at *2 (Jan. 24, 2011) (per curiam). In California, a prisoner is entitled to release on parole unless there is "some evidence" of his or her current dangerousness. In re Lawrence, 44 Cal.4th 1181, 1205-06, 1210 (2008); In re Rosenkrantz, 29 Cal.4th 616, 651-53 (2002). However, the United States Supreme Court has held that correct application of California's "some evidence" standard is not required by the federal Due Process Clause. Swarthout, 2011 WL 197627, at *2. Rather, the inquiry on federal habeas is whether the petitioner has received "fair procedures" for vindication of the liberty interest in parole given by the state. Id. In the context of a parole suitability hearing, a petitioner receives adequate process when he/she is allowed an opportunity to be heard and a statement of the reasons why parole was denied. Id. at **2-3 (federal due process satisfied where petitioners were "allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied"); see also Greenholtz, 442 U.S. at 16.

Here, the record reflects that petitioner was present at the 2005 parole hearing, that he participated in the hearing, and that he was provided with the reasons for the Board's decision to deny parole. Pursuant to Swarthout, this is all that due process requires. Accordingly, petitioner is not entitled to relief on his claim that the Board's 2005 decision finding him unsuitable for parole violated his right to due process.

B. Ex Post Facto

Petitioner's second claim is that the decision of the Board in 2005 to deny him parole for four years, instead of one year, violates the Ex Post Facto Clause because "extending his hearings from once annually to once every four years is a law that was enacted long after his commitment offense of May 30, 1979." Pet. at 5; Traverse at 8. In essence, petitioner is claiming that the four-year parole denial rendered by the Board in 2005 violated the Ex Post Facto Clause because he should have been entitled to annual parole suitability hearings based on the law in effect at the time of his commitment offense in 1979.

The Constitution provides that "No State shall... pass any... ex post facto Law." U.S. Const. art. I, § 10. See also Garner v. Jones, 529 U.S. 244, 249 (2000). A law violates the Ex Post Facto Clause of the United States Constitution if it: (1) punishes as criminal an act that was not criminal when it was committed; (2) makes a crime's punishment greater than when the crime was committed; or (3) deprives a person of a defense available at the time the crime was committed. Collins v. Youngblood, 497 U.S. 37, 52 (1990). The Ex Post Facto Clause "is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts." Souch v. Schaivo, 289 F.3d 616, 620 (9th Cir. 2002)). See also Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504 (1995). The Ex Post Facto Clause is also violated if: (1) state regulations have been applied retroactively to a defendant; and (2) the new regulations have created a "sufficient...