Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Consuelo B. Marshall, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on July 23, 2013. Respondent filed an Answer and lodged documents on September 18, 2013. Petitioner filed a Reply on October 11, 2013.
BACKGROUND
In 1992, a jury found Petitioner guilty of attempted wilful, deliberate and premeditated murder, and found true the allegation that Petitioner personally used a firearm within the meaning of California Penal Code section 12022.5(a) (Respondent's Lodgment 1). The court sentenced Petitioner to a term of life with the possibility of parole plus four years on the firearm enhancement (Respondent's Lodgment 1).
On October 17, 2012, Petitioner appeared before the California Board of Parole Hearings ("Board") for a subsequent parole hearing (Respondent's Lodgment 2). The Board found Petitioner unsuitable for parole and, applying "Marsy's Law, " deferred Petitioner's next parole hearing for five years. Id.
See Cal. Penal Code § 3041.5, as amended.
Petitioner filed a petition for habeas corpus in the Superior Court, which that Court denied in a brief order (Respondent's Lodgments 3 and 4). Petitioner filed habeas corpus petitions in the California Court of Appeal and the California Supreme Court, which those courts denied summarily (Respondent's Lodgments 5-8).
SUMMARY OF PETITIONER'S CONTENTIONS
Although difficult to decipher, the Petition appears to contend:
1. Marsy's Law assertedly does not apply to prisoners convicted of attempted murder, as distinguished from prisoners convicted of murder (Petition, Issue One);
2. Given the nature of Petitioner's recent conduct in prison, the 2012 parole unsuitability determination assertedly violated Petitioner's constitutional due process rights (Petition, Issue Four);
3. The continuing denial of parole and the application of Marsy's Law to delay Petitioner's next parole hearing have assertedly resulted in a constitutionally disproportionate sentence (Petition, Issue Two); and
4. The application of Marsy's Law to Petitioner assertedly violates the Ex Post Facto Clause (Petition, Issue Three).
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the 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); Woodford v. Visciotti , 537 U.S. 19, 24-26 (2002); Early v. Packer , 537 U.S. 3, 8 (2002); Williams v. Taylor , 529 U.S. 362, 405-09 (2000).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher , 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade , 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts... materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer , 537 U.S. at 8 (citation omitted); Williams v. Taylor , 529 U.S. at 405-06.
Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade , 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti , 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor , 529 U.S. at 407 (citation omitted).
"In order for a federal court to find a state court's application of [Supreme Court] precedent unreasonable, ' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith , 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad , 555 U.S. 179, 190 (2009); Davis v. Woodford , 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Harrington v. Richter , 131 S.Ct. 770, 786-87 (2011) ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.").
In applying these standards, the Court looks to the last reasoned state court decision. See DeWeaver v. Runnels , 556 F.3d 995, 997 (9th Cir.), cert. denied, 558 U.S. 868 (2009). Where there exists only a summary denial, "a habeas court must determine what arguments or theories supported, ... or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter , 131 S.Ct. at 786; see also Cullen v. Pinholster , 131 S.Ct. 1388, 1403 (2011) (quoting same).
Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey , 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
The Court has read, considered and rejected all of Petitioner's contentions. The Court discusses Petitioner's principal contentions herein.
I. Petitioner's Claim that Marsy's Law Does Not Apply to Prisoners Convicted of Attempted Murder Cannot Merit Habeas Relief.
Interpretations of California state statutes regarding the state's parole system present only matters of state law not cognizable in this federal habeas proceeding. See Swarthout v. Cooke , 131 S.Ct. 859, 863 (2011) ("[T]he responsibility for assuring that the constitutionally adequate procedures governing California's parole system are properly applied rests with California courts, and is no part of the Ninth Circuit's business."); Roberts v. Hartley , 640 F.3d 1042, 1047 (9th Cir. 2011) (federal habeas court is not authorized "to reevaluate California's application of its rules for determining parole eligibility") (citation omitted); see generally Wilson v. Corcoran , 131 S.Ct. 13, 16 (2010) ("We have repeatedly held that federal habeas corpus relief does not lie for errors of state law") (citations and internal quotations omitted); Estelle v. McGuire , 502 U.S. 62, 67-68 (1991) (same). In any event, although the Marsy's Law initiative discussed murder cases as examples of the supposed need for a change in the law, the text of the statute amended by Marsy's Law plainly applies to all parole suitability hearings, not only the parole suitability hearings of convicted murderers. See Cal. Penal Code § 3041.5 ("At all hearings for the purpose of reviewing a prisoner's parole suitability....").
II. The Board's 2012 Decision Did Not Violate Petitioner's Constitutional Due Process Rights.
"There 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 Correctional Complex , 442 U.S. 1, 7 (1979) ("Greenholtz"). In some instances, however, state statutes may create liberty interests in parole release entitled to protection under the federal Due Process Clause. See Bd. of Pardons v. Allen , 482 U.S. 369, 371 (1987); Greenholtz , 442 U.S. at 12. The Ninth Circuit has held that California's statutory provisions governing parole create such a liberty interest. See Hayward v. Marshall , 603 F.3d 546, 555 (9th Cir. 2010) (en banc), disapproved on other grounds, Swarthout v. Cooke , 131 S.Ct. 859 (2011).
In Swarthout v. Cooke , the Supreme Court did not reach the question of whether California law creates a liberty interest in parole, but observed that the Ninth Circuit's affirmative answer to this question "is a reasonable application of our cases." Swarthout v. Cooke , 131 S.Ct. at 861-62 (citations omitted).
"In the context of parole, ... the procedures required are minimal." Swarthout v. Cooke , 131 S.Ct. at 862. Due process requires that the State furnish a parole applicant with an opportunity to be heard and a statement of reasons for a denial of parole. Greenholtz , 442 U.S. at 16. "The Constitution does not require more." Id .; accord Swarthout v. Cooke , 131 S.Ct. at 862 (citation omitted); Styre v. Adams , 645 F.3d 1106, 1108 (9th Cir. 2011); see also Roberts v. Hartley , 640 F.3d at 1046 ("there is no substantive due process right created by the California's parole scheme"). Petitioner does not contend, and the record does not show, that Petitioner was denied these required procedural safeguards.
The California Supreme Court has held, as a matter of state law, that "some evidence" must exist to support a parole denial. See In re Lawrence , 44 Cal.4th 1181, 1212, 82 Cal.Rptr.3d 169, 190 P.3d 535 (2008). In Swarthout v. Cooke , however, the United States Supreme Court rejected the contention that the federal Due Process Clause contains a guarantee of evidentiary sufficiency with respect to a parole determination. Swarthout v. Cooke , 131 S.Ct. at 862 ("No opinion of ours supports converting California's some evidence' rule into a substantive federal requirement."). The Swarthout Court expressly disapproved Ninth Circuit cases to the contrary, including Hayward v. Marshall , 603 F.3d at 559-61. See Swarthout v. Cooke , 131 S.Ct. at 862-63. Petitioner's claim that the Board's decision is not supported by sufficient evidence (because of Petitioner's allegedly good behavior in prison or otherwise) fails to demonstrate that Petitioner is in custody "in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2254(a); Frantz v. Hazey , 533 F.3d at 736-37; see also Swarthout v. Cooke , 131 S.Ct. at 863 ("finding that there was no evidence in the record supporting parole denial is irrelevant unless there is a federal right at stake") (emphasis original).
III. Petitioner's Sentence Is Not Constitutionally Disproportionate.
"The Eighth Amendment, which forbids cruel and unusual punishments, contains a narrow proportionality principle' that applies to noncapital sentences.'" Ewing v. California , 538 U.S. 11, 20 (2003) (quoting Harmelin v. Michigan , 501 U.S. 957, 996-97 (1991) (Kennedy, J., concurring) ("Harmelin")). "The threshold determination in the eighth amendment proportionality analysis is whether [Petitioner's] sentence was one of the rare cases in which a... comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." United States v. Bland , 961 F.2d 123, 129 (9th Cir. 1992), cert denied, 506 U.S. 858 (1992) (citations and quotations omitted; emphasis added); see also Lockyer v. Andrade , 538 U.S. 63, 77 (2003) ("[t]he gross disproportionality principle reserves a constitutional violation for only the extraordinary case"); Rummel v. Estelle , 445 U.S. 263, 272 (1980) ("Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.").
Petitioner's claim of unconstitutional disproportionality stumbles at this threshold level. A comparison of Petitioner's crime and his term of imprisonment does not lead to an "inference of gross disproportionality." See Cornett v. Uribe, 2013 WL 1899731, at *9 (N.D. Cal. May 7, 2013) (sentence of 25 years to life for attempted murder not disproportionate); Jahad v. Hernandez, 2011 WL 1195401, at *7 (C.D. Cal. Feb. 28, 2011), adopted, 2011 WL 1156090 (C.D. Cal. March 29, 2011); Vasquez v. Horel, 2009 WL 1709042, at *24 (C.D. Cal. June 12, 2009) (sentence of 87 years to life for attempted murder with certain enhancements not disproportionate); United States ex rel. Eagle v. Gramley, 1999 WL 286086, at *8 (N.D. Ill. Apr. 27, 1999) (30-year sentence for attempted murder not disproportionate); Carter v. Henderson , 602 F.Supp. 1186, 1188-89 (S.D.N.Y.), aff'd, 779 F.2d 36 (2nd Cir. 1985) (sentence of 15 years to life for attempted murder not disproportionate); Ellis v. State , 736 N.E.2d 731, 734 (Ind. 2000) (50-year sentence for attempted murder not disproportionate); People v. Martinez , 76 Cal.App.4th 489, 496-97, 90 Cal.Rptr.2d 517 (1999) (sentence of 30 years to life for attempted murder not disproportionate); State v. Elbert , 125 N.H. 1, 15, 480 A.2d 854 (N.H. 1984) ("there is no gross disproportion between a penalty of fifteen to thirty years and the offense of attempted second-degree murder"); cf. Solem v. Helm , 463 U.S. 277, 290 n.15 (1983) ("clearly no sentence of imprisonment would be disproportionate for [felony murder]"); Windham v. Merkle , 163 F.3d 1092, 1106-07 (9th Cir. 1998) (life term for second degree murder not cruel and unusual).
Courts have upheld even more severe sentences for crimes far less heinous than Petitioner's crime. See Harmelin (life without possibility of parole for possession of 672 grams of cocaine); United States v. Van Winrow , 951 F.2d 1069, 1071 (9th Cir. 1991) (life without possibility of parole for possession of cocaine with intent to distribute); Terrebonne v. Butler , 848 F.2d 500, 507 (5th Cir. 1988), cert. denied, 489 U.S. 1020 (1989) (life without possibility of parole for 21-year-old heroin addict who delivered packets of heroin to an undercover officer); Holley v. Smith , 792 F.2d 1046, 1051-52 (11th Cir. 1986), cert. denied, 481 U.S. 1020 (1987) (life without possibility of parole for recidivistic robber).
Petitioner's reference to the matrix of base terms set forth in the California Code of Regulations does not affect the proportionality analysis. The Board is not required to consider the matrix, or principles of proportionality or uniformity, until after the Board deems an inmate suitable for parole. See Cal. Code Regs., tit. 15, § 2282(a); In re Dannenberg , 34 Cal.4th 1061, 1091-94, 23 Cal.Rptr.3d 417, cert. denied, 546 U.S. 844 (2005), abrogated in part, In re Lawrence , 44 Cal.4th at 1205-06; see also Sass v. Calif. Bd. of Prison Terms , 461 F.3d 1123, 1132 (9th Cir. 2006), overruled in part on other grounds, Hayward v. Marshall , 603 F.3d at 555 ("The matrix is intended to ensure sentencing uniformity among those who commit similar crimes. [citation]. Such considerations are, of course, inapplicable in the case of prisoners deemed unsuitable for parole. [citation]."); Ramos v. Kane, 2007 WL 1232052, at *4 (N.D. Cal. Apr. 26, 2007) ("going straight to the matrix to calculate the sentence puts the cart before the horse because it ignores critical language in the relevant statute and regulations that requires the prisoner first to be found suitable for parole"). Because the Board did not find Petitioner suitable for parole, the Board was not required to use the matrix, or principles of proportionality or uniformity, to determine a base term. See, e.g., Ramos v. Kane, 2007 WL 1232052, at *4; Wilder v. Dickinson, 2011 WL 1131491, at *4 (C.D. Cal. Feb. 10, 2011), adopted, 2011 WL 1118954 (C.D. Cal. Mar. 22, 2011); Smith v. Finn, 2007 WL 214597, at *8 (E.D. Cal. Jan. 25, 2007), adopted, 2007 WL 3151673 (E.D. Cal. Oct. 26, 2007); Fernandez v. Kane, 2006 WL 3041083, at *5, *9 (N.D. Cal. Oct. 24, 2006).
For the foregoing reasons, the state courts' rejection of Petitioner's claims challenging the length of his incarceration was neither contrary to, nor an unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1).
IV. Petitioner's Claim that the Application of Marsy's Law to Petitioner's Parole Consideration Violates the Ex Post Facto Clause Does Not Merit Habeas Relief.
Petitioner argues that the application of Marsy's Law to Petitioner violates the Ex Post Facto Clause. Prior to Marsy's Law, when the Board would deem an inmate serving a life sentence for attempted murder unsuitable for parole, the Board would conduct a subsequent parole hearing one year later, except the Board could defer the subsequent hearing for two years if the Board found that it was not reasonable to expect that parole would be granted sooner. See former Cal. Penal Code § 3041.5(b)(2). Marsy's Law increased the maximum deferral period to fifteen years and also provided for a presumptive deferral period of ten years unless the Board "finds by clear and convincing evidence that the [statutory] criteria relevant to the setting of parole release dates... are such that consideration of the public and victim's safety do not require a more lengthy period of incarceration...." See Cal. Penal Code § 3041.5(b)(3)(B). In such case, the Board has discretion to set a three-, five-, or seven-year deferral period. Id . As previously indicated, the Board imposed a five-year deferral period for Petitioner.
The retroactive application of a change in state parole procedures violates the Ex Post Facto Clause only if there exists a "significant risk" that such application will increase the punishment for the crime. See Garner v. Jones , 529 U.S. 244, 259 (2000). Retroactive application of the 2008 amendment to section 3041.5 (Marsy's Law) entails no such "significant risk." In Gilman v. Schwarzenegger , 638 F.3d 1101, 1109-11 (9th Cir. 2010) ("Gilman"), the Ninth Circuit reversed an injunction against the retroactive application of the 2008 amendment, finding that an ex post facto challenge to the amendment was unlikely to succeed. The Ninth Circuit reasoned that, because the amendment gives the Board discretion to advance parole suitability hearings whenever circumstances warrant, the amendment does not create a "significant risk" of prolonging prisoners' incarceration. Id .; see also Cal. Penal Code § 3041.5(b)(4), (d)(1) (providing that the Board may advance a hearing date upon an inmate's request).
The same reasoning applies in the present case. See Lucero v. Wong, 2011 WL 5834963, at *3-4 (N.D. Cal. Nov. 21, 2011) (following Gilman in denying ex post facto claim); Woods v. Gonzalez, 2011 WL 4831191, at *3-4 (N.D. Cal. Oct. 12, 2011) (same); Petrich v. Marshall, 2011 WL 322001, at *10 (C.D. Cal. Jan. 27, 2011). Although the Board denied Petitioner's parole suitability for five years, the Board retains the discretion to advance Petitioner's next parole suitability hearing whenever circumstances warrant. Thus, application of the challenged amendment to Petitioner does not create a "significant risk" of prolonging Petitioner's actual incarceration. Accordingly, Petitioner's ex post facto claim fails. See Gilman , 638 F.3d at 1110; Santos v. Gonzales, 2013 WL 2394983, at *3 (C.D. Cal. May 29, 2013); In re Vicks , 56 Cal.4th 274, 153 Cal.Rptr.3d 471, 295 P.3d 863, cert. denied, 2013 WL 3778411 (U.S. Oct. 7, 2013); see also Garner v. Jones , 529 U.S. at 259.
Additionally, because Petitioner appears to be a member of the Gilman class raising the same issue with Marsy's Law, it appears that Petitioner's interests will be represented in that action. For this reason, Petitioner's ex post facto claim should be dismissed without prejudice. See Gwinn v. Swarthout, 2011 WL 6704390, at *3-4 (E.D. Cal. Dec. 21, 2011) (recommending that petitioner's ex post facto challenge to Proposition 9 be dismissed in light of ongoing Gilman litigation, given petitioner's putative membership in Gilman class); Rivers v. Swarthout, 2011 WL 6293756, at *2-3 (E.D. Cal. Dec. 13, 2011) (same); Hall v. Martel, 2011 WL 7005465, at *8 n.3 (C.D. Cal. Dec. 7, 2011), adopted, 2012 WL 94331 (C.D. Cal. Jan. 9, 2012) (same but recommending dismissal without prejudice); Campbell v. Ochoa, 2011 WL 5436233, at *7 n.3 (C.D. Cal. Oct. 3, 2011), adopted, 2011 WL 5515486 (C.D. Cal. Nov. 9, 2011) (same); Lathan v. Swarthout, 2011 WL 4345826, at *3-4 (E.D. Cal. Sept. 15, 2011) (same); Curtis v. Dickinson, 2011 WL 2883253, at *3-5 (C.D. Cal. June 9, 2011), adopted, 2011 WL 2883153 (C.D. Cal. July 19, 2011) (same).
The Court takes judicial notice of the docket and records in Gilman v. Schwarzenneger, E.D. Cal. Case No. Civ. S 05-830-LKK (GGH), available on the PACER database. See Mir v. Little Company of Mary Hosp. , 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of court records). The certified class in Gilman is comprised of "all California state prisoners who have been sentenced to a life term with possibility of parole for an offense that occurred before November 4, 2008." Gilman, Docket No. 340, p. 2 (April 25, 2011 Order).
The state courts' rejection of Petitioner's ex post facto claim was not contrary to, or an objectively unreasonable application of, any clearly established Federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d); see also Biggs v. Sec'y of California Dep't of Corr. and Rehab. , 717 F.3d 678 (9th Cir. 2013) ("Gilman was a § 1983 case, and thus contained no holding about clearly established federal law") (citation omitted).
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying Petitioner's ex post facto claim without prejudice and denying all of Petitioner's other claims with prejudice.
In view of this disposition, Petitioner's request for the appointment of counsel is denied. See Knaubert v. Goldsmith , 791 F.2d 722, 728-29 (9th Cir.), cert. denied, 479 U.S. 867 (1986).