Opinion
CV 22-6711-JGB (JEM)
10-05-2022
CLARENCE E. HOWARD, Petitioner, v. S. MOORE, Respondent.
ORDER DISMISSING ACTION AND DENYING CERTIFICATE OF APPEALABILITY
JESUS G. BERNAL UNITED STATES DISTRICT JUDGE
On September 16, 2022, Clarence E. Howard (“Petitioner”), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition” or “Pet.”).
PRIOR PROCEEDINGS
On March 1, 1995, following a jury trial in Los Angeles County Superior Court Case No. TA040412, Petitioner was convicted of one count of carjacking during which a principal was armed with a handgun (Cal. Penal Code §§ 215(a), 12022(a)(1)), and one count of possession of a firearm by a felon (Cal. Penal Code § 12021(a)(1)). (Clarence E. Howard v. C.A. Terhune, CV 20-4369-RSWL (JEM) (“First Habeas Action”), Dkt. 19-1 at 106-08.) The jury found true allegations that Petitioner had two prior serious or violent felony convictions pursuant to California's Three Strikes Law (Cal. Penal Code § 667(b)-(i)) and one prior serious felony conviction (Cal. Penal Code § 667(a)(1)), and that he had served a prior prison term (Cal. Penal Code § 667.5(b)). (Id. Dkt. 19-1 at 139-42, 147-48.) The trial court sentenced Petitioner to a total state prison term of thirty-six years to life. (Id., Dkt. 19-1 at 174-75.)
The sentence consisted of twenty-seven years to life for the carjacking offense, one year for the armed-principal enhancement, two years to life for the firearm-possession offense, a five-year enhancement for the prior serious felony conviction, and a one-year enhancement for the prior prison term. (First Habeas Action, Dkt. 19-1 at 174-75.)
Petitioner appealed, and the California Court of Appeal remanded the matter for resentencing on the firearm-possession count but otherwise affirmed the judgment. (Id., Dkt. 19-2.) On December 11, 1996, the California Supreme Court denied review. (Id., Dkt. 3, 4.)
On January 28, 1997, the trial court resentenced Petitioner to twenty-five years to life on the firearm-possession count, for a total state prison term of fifty-eight years to life. (Id., Dkt. 19-5.) The California Court of Appeal affirmed the judgment (Id., Dkt. 19-6), after which the California Supreme Court denied review on April 22, 1998 (Id., Dkt. 7, 8).
On May 13, 2020, Petitioner filed the First Habeas Action in this Court, which was dismissed as untimely on March 1, 2021. (Id., Dkt. 31 & 32.)
On September 16, 2022, Petitioner filed this action, in which he again challenges his judgment of conviction in Case Number TA040412 as well as the 2021 decision of the California Board of Parole Hearings (“Board”) to deny parole. (See Pet. at 2, 9-10.)
The Court refers to the pages of the Petition as numbered by the CM/ECF system.
PETITIONER'S CLAIMS
1. The 2021 Board decision to deny parole for five years violates Petitioner's Fourteenth Amendment right to due process and constitutes cruel and unusual punishment in violation of the Eighth Amendment. (Pet. at 10-11.)
2. Petitioner's sentence is excessive and grossly disproportionate in violation of the Eighth Amendment. (Pet. at 11-13.)
3. Petitioner's sentence should be recalculated because it was excessive and improperly calculated based on Petitioner's involvement in the underlying offense. (Pet. at 13-16.)
4. Petitioner's sentence under the Three Strikes Law was improper and excessive in violation of the Eighth and Fourteenth Amendments. (Pet. at 17-25.)
5. The Board's denial of parole was based on an erroneous understanding of the underlying crime of conviction. (Pet. at 26-28.)
DISCUSSION
I. DUTY TO SCREEN
This Court has a duty to screen habeas corpus petitions. See Rules Governing § 2254 Cases in the United States District Courts, Rule 4 Advisory Committee Notes. Rule 4 requires a district court to examine a habeas corpus petition, and if it plainly appears from the face of the petition and any annexed exhibits that the petitioner is not entitled to relief, the judge shall make an order for summary dismissal of the petition. Id.; see also Local Rule 72-3.2. The notes to Rule 4 state: “‘a dismissal may be called for on procedural grounds, which may avoid burdening the respondent with the necessity of filing an answer on the substantive merits of the petition.'” See Boyd v. Thompson, 147 F.3d 1124, 1127-28 (9th Cir. 1998); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989).
II. PETITIONER'S CLAIMS CHALLENGING THE DENIAL OF PAROLE ARE WITHOUT MERIT
In Grounds One and Five, Petitioner alleges that the Board's 2021 decision to deny parole deprived him of due process in violation of the Fourteenth Amendment and subjected him to cruel and unusual punishment in violation of the Eighth Amendment. (Pet. at 7-11, 26-28.) Specifically, he challenges the sufficiency of the evidence the Board relied on to find him unsuitable for parole, alleging that there was no evidence to support the decision. (See, e.g., Pet. at 7-11.) He further claims that the Board's decision to defer his next parole hearing for five years resulted in an excessive sentence in violation of the Eighth Amendment. (See, e.g., Pet. at 15-16.)
The Supreme Court's decision in Swarthout v. Cooke, 562 U.S. 216 (2011) (per curiam), precludes habeas relief on Petitioner's challenges to the Board's parole decision. In Swarthout, the Supreme Court recognized that Board decisions are reviewed by California state courts under a standard of “whether ‘some evidence' supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous.” Id. at 217 (quoting In re Lawrence, 44 Cal.4th 1181, 1191 (2008)) (additional citation omitted). The Court also acknowledged as reasonable the Ninth Circuit holding that California law governing parole creates a cognizable liberty interest for purposes of analyzing a federal due process claim. Id. at 219-20 (citing Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 2010)). However, the Court emphasized that any such interest is “a state interest created by California law”; there is no corresponding substantive right under the United States Constitution to conditional release before expiration of a valid sentence. Id. at 220 (The Court also stated: “No opinion of ours supports converting California's ‘some evidence' rule into a substantive federal requirement.”).
Accordingly, regardless of the standard of judicial review applied by California state courts, the proper scope of federal habeas review in the context of a parole decision concerns only the constitutional question of whether fair and adequate procedures were employed for protection of the prisoner's state-created liberty interest. Id. (“When . . . a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication - and federal courts will review the application of those constitutionally required procedures.”); see also id. at 222 (“Because the only federal right at issue is procedural, the relevant inquiry is what process [the petitioner] received, not whether the state court decided the case correctly.”).
The Court reaffirmed that, “[i]n the context of parole, we have held that the procedures required [by the Constitution] are minimal.” Id. at 220; see also Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 16 (1979) (adequate process consisted of an opportunity to be heard and a statement of reasons for parole denial). The Supreme Court determined in Greenholtz “that a prisoner subject to a parole statute similar to California's received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied.” Swarthout, 562 U.S. at 220 (citing Greenholtz, 442 U.S. at 16). “The Constitution does not require more.” Greenholtz, 442 U.S. at 16. Any further inquiry into the actual merits of a parole decision, and specifically into the question of whether the “some evidence” standard regarding present dangerousness was satisfied, would involve a question of state law that is not cognizable on federal habeas review. Swarthout, 562 U.S. at 221 (“[I]t is no federal concern here whether California's ‘some evidence' rule of judicial review . . . was correctly applied”); see also Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Engle v. Isaac, 456 U.S. 107, 121 n.21 (1982).
Following Swarthout, Petitioner may not obtain habeas relief on his challenges to the Board's decision to deny parole. Because there is no indication in the Petition and accompanying exhibits that the procedures followed by prison officials were constitutionally deficient, there is no basis for federal habeas relief on Grounds One and Five. See Swarthout, 562 U.S. at 220-21; see also Greenholtz, 442 U.S. at 16.
Accordingly, Grounds One and Five are dismissed with prejudice.
III. PETITIONER'S CLAIMS CHALLENGING HIS UNDERLYING JUDGMENT OF CONVICTION SHOULD BE DISMISSED AS UNAUTHORIZED OR SUCCESSIVE A. Applicable Law
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides, in pertinent part:
(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless -
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and [¶] (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.28 U.S.C. § 2244(b)(1)-(3)(A); see also Rule 9 of the Rules Governing § 2254 Cases in the United States District Courts. A claim is “second or successive” if the facts underlying the claim existed by the time of the initial petition, and if the claim challenges the same state court judgment as the initial petition. Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018).
This bar applies to many procedural rulings, as well as rulings on the merits. See McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (dismissal of federal habeas petition as untimely renders subsequent petitions second or successive under AEDPA as timeliness dismissal is a “permanent and incurable” bar to federal review of underlying claims); Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005) (denial of habeas petition on grounds of procedural default constitutes disposition on the merits and renders subsequent habeas petition “second or successive” under AEDPA); see also Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,228 (1995) (dismissal for failure to prosecute generally considered disposition on the merits); but see In re Turner, 101 F.3d 1323, 1323 (9th Cir. 1996) (§ 2244(b) does not apply where first habeas petition was dismissed without prejudice for failure to exhaust state remedies).
A district court does not have jurisdiction to consider claims presented in a second or successive petition absent authorization from the court of appeals. Burton v. Stewart, 549 U.S. 147, 152 (2007) (per curiam); see also Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam) (“When the AEDPA is in play, the district court may not, in the absence of proper authorization from the court of appeals, consider a second or successive habeas application.”) (citation and quotation marks omitted).
B. Analysis
In Grounds Two, Three, and Four, Petitioner challenges the same state court judgment that was at issue in his Prior Petition, which was dismissed with prejudice. Under AEDPA, Petitioner was required to obtain an order from the Ninth Circuit authorizing the Court to consider his claims prior to filing this case. Because he did not do so, the Court is without jurisdiction to entertain these claims. Burton, 549 U.S. at 153; see also 28 U.S.C. § 2244(b)(3)(A).
Accordingly, the Court finds that Grounds Two, Three, and Four are barred by § 2244(b) as unauthorized successive claims. These claims are dismissed without prejudice to Petitioner filing a new action including these claims if he obtains permission from the Ninth Circuit to file a successive petition.
The Court finds that the Petition should not be referred to the Ninth Circuit as an application for leave to file a second or successive habeas petition pursuant to Ninth Circuit Rule 22-3(a). There is no indication that the Petition was mistakenly filed in the district court and it would not be in the interests of justice to refer the Petition to the Ninth Circuit before dismissing it. Grounds One and Five are plainly meritless, and Grounds Two, Three, and Five appear to be untimely. If, however, Petitioner chooses to pursue this matter, he should submit his application for leave to file a successive habeas petition directly to the Ninth Circuit in compliance with Ninth Circuit Rule 22-3.
If Petitioner obtains permission from the Ninth Circuit to file a successive habeas petition, he should file it as an entirely new action. He should not file an amended petition in this action or use the same case number because this action is being closed today. Any new petition authorized for filing by the Ninth Circuit will be given a new case number.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Rules Governing Section 2254 cases, the Court “must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”
The Court has found that the Petition should be dismissed because Grounds One and Five are without merit and Grounds Two, Three, and Four are unauthorized successive claims. For the reasons stated above, the Court concludes that Petitioner has not made a substantial showing of the denial of a constitutional right, as is required to support the issuance of a certificate of appealability. See 28 U.S.C. § 2253(c)(2).
ORDER
IT IS HEREBY ORDERED that: (1) the Petition is dismissed; and (2) a certificate of appealability is denied.