Opinion
Case No. 16-cv-1679-TEH
06-08-2016
ROGER E. CHAVEZ, Petitioner, v. RON DAVIS, Respondent.
ORDER OF DISMISSAL AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner, Roger E. Chavez, proceeds with a pro se Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. The original petition was dismissed with leave to amend and Petitioner has filed an amended petition.
I
In 1993 Petitioner was sentenced to 16 years to life in state prison for second degree murder. Parole was denied in 2010 by the Board of Parole Hearings ("BPH").
II
This Court may entertain a petition for a writ of habeas corpus "in 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." 28 U.S.C. § 2254(a). It shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." Id. § 2243.
Petitioner argues that the imposition of a disproportionate term and the failure to set a specific parole release date violates his rights.
In 2011, the United States Supreme Court overruled a line of Ninth Circuit precedent that had supported habeas review in California cases involving denials of parole by the BPH and/or the governor. See Swarthout v. Cooke, 562 U.S. 216 (2011). The Supreme Court held that federal habeas jurisdiction does not extend to review of the evidentiary basis for state parole decisions. Because habeas relief is not available for errors of state law, and because the Due Process Clause does not require correct application of California's "some evidence" standard for denial of parole, federal courts may not intervene in parole decisions as long as minimum procedural protections are provided. Id. at 220-21. Federal due process protection for such a state-created liberty interest is "minimal," the determination being whether "the minimum procedures adequate for due-process protection of that interest" have been met. The inquiry is limited to whether the prisoner was given the opportunity to be heard and received a statement of the reasons why parole was denied. Id. at 221; Miller v. Oregon Bd. of Parole and Post-Prison Supervision, 642 F.3d 711, 716 (9th Cir. 2011) ("The Supreme Court held in Swarthout that in the context of parole eligibility decisions the due process right is procedural, and entitles a prisoner to nothing more than a fair hearing and a statement of reasons for a parole board's decision."). This procedural inquiry is "the beginning and the end of" a federal habeas court's analysis of whether due process has been violated when a state prisoner is denied parole. Swarthout at 220. The Ninth Circuit has acknowledged that after Swarthout, substantive challenges to parole decisions are not cognizable in habeas. Roberts v. Hartley, 640 F.3d 1042, 1046 (9th Cir. 2011).
To the extent Petitioner challenges the 2010 parole denial, this petition appears to be untimely. Petitioner has failed to address this issue in the amended petition. Regardless, he is not entitled to relief. Petitioner argues that the BPH erred with respect to state laws and procedures by failing to set a specific parole release date.
Petitioner's argument that the BPH violated state law and procedures only raises an issue of state law. As set forth in Swarthout the federal due process protections do not include adherence to California procedures. Challenges to the BPH's enactment of state laws and procedures must be presented in state court. Petitioner states that he presented his claims in state court but his challenges were all denied. This Court cannot overrule state court decisions or find that California courts incorrectly interpreted state law.
Regardless, Petitioner was sentenced to 16 years to life so there is a possibility that he will never be paroled. California's parole scheme contemplates that a prisoner sentenced to a term of years to life must be found suitable for parole before a parole date can be set. Criteria for determining whether a prisoner is suitable for parole are set forth in California Penal Code section 3041(b) and related implementing regulations. See Cal. Code Regs. tit. 15, § 2402. If, pursuant to the judgment of the panel, a prisoner will pose an unreasonable danger to society if released, he must be found unsuitable and denied a parole date. Cal. Code Regs. tit. 15, § 2402(a). The BPH does not sentence petitioner; only the sentencing court can do that. The BPH cannot revise sentences; it can only act within California law to set parole dates, if prisoners sentenced to an indeterminate term are found suitable for parole at all.
Petitioner also argues that the denial of parole violated the Eighth Amendment. As noted above, petitioner was sentenced to 16 years to life in prison for second degree murder. Petitioner has not identified any authority that such a sentence for second degree murder violates the Eighth Amendment. His sentence is consistent with state law and is not excessive or disproportionate under clearly established Supreme Court authority. See Ewing v. California, 538 U.S. 11, 23 (2003) ("'Eighth Amendment does not require strict proportionality between crime and sentence"'; "'[r]ather, it forbids only extreme sentences that are "grossly disproportionate" to the crime"'); see also Harmelin v. Michigan, 501 U.S. 957, 994-95 (1991) (upholding sentence of life without the possibility of parole for possession of 672 grams of cocaine by first time offender); Lockyer v. Andrade, 538 U.S. 63, 73-77 (2003) (affirming 25 years to life sentence under Three Strikes law for petty theft of $153.54 worth of videotapes). These Supreme Court decisions indicate that the term petitioner has served to date for the crime of first degree murder is not so disproportionate as to violate the Eighth Amendment or due process.
III
For the foregoing reasons and for good cause shown the petition is DISMISSED for the reasons set forth above. Because reasonable jurists would not find the result here debatable, a certificate of appealability ("COA") is DENIED. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000) (standard for COA).
IT IS SO ORDERED. Dated: 6/8/2016
/s/_________
THELTON E. HENDERSON
United States District Judge G:\PRO-SE\TEH\HC.16\Chavez1679.dis.docx