Opinion
No. C 01-668 SI (pr)
August 8, 2002
JUDGMENT
The petition for writ of habeas corpus is DENIED.
IT IS SO ORDERED AND ADJUDGED.
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
Randal L. McKissick, a California prisoner incarcerated at the Correctional Training Facility in Soledad, California, filed this action pro se seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His petition is now before the court for consideration on the merits. For the reasons discussed below, the court will deny the petition.
BACKGROUND
McKissick believed his wife was having a relationship with another man. McKissick confronted and shot the man in the head. McKissick was convicted of second degree murder and was found to have used a firearm during the commission of the offense. He was sentenced on May 29, 1981 to a prison term of 15 years to life plus two years for the firearm enhancement. His petition does not concern that conviction directly, but instead focuses on the Board of Prison Terms' ("BPT") refusal to parole him. A BPT panel found him unsuitable for parole at a parole suitability hearing on December 15, 1998. The BPT panel also deferred McKissick' s next parole suitability hearing for three years.
JURISDICTION AND VENUE
This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2241 and 2254. 28 U.S.C. § 1331. This action is in the proper venue because McKissick is in custody in a facility located in Monterey County, within this judicial district. 28 U.S.C. § 2241 (d).
STANDARD OF REVIEW
Section 2254 provides that the court can entertain a petition for 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).
The petition may not be granted with respect to any claim that was adjudicated on the merits in state court 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).
EXHAUSTION
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254 (b), (c). The parties do not dispute that McKissick exhausted his state court remedies as to the claims raised in his federal petition.
DISCUSSION
The starting point in the analysis is to note the limited nature of this court's inquiry: a federal habeas court does not concern itself with state law errors. The writ is available "only on the basis of some transgression of federal law binding on the state courts." Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)), cert. denied, 478 U.S. 1021 (1986). It is unavailable for violations of state law or for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). To the extent McKissick contends that the BPT did not comply with California law, his contentions are largely irrelevant for purposes of determining whether he is entitled to the issuance of the federal writ of habeas corpus. The court thus turns to a consideration of McKissick's federal constitutional claims.
While there is "no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence" see Greenholtz v. Inmates of Nebraska Penal Correctional Complex, 442 U.S. 1, 7 (1979), a state's parole regulations may create a liberty interest protected by due process if they contain mandatory language which restricts the parole board's discretion in making its decision, see Board of Pardons v. Allen, 482 U.S. 369, 373-81 (1987) (Montana's parole statute providing that board "shall" release prisoner, subject to certain restrictions, creates due process liberty interest in being considered eligible for parole). In such a case a prisoner gains a legitimate expectation in parole that cannot be denied without due process. See id.; Greenholtz, 442 U.S. at 11-16. The Ninth Circuit has determined that California law confers such an interest. See Armstrong v. Davis, 275 F.3d 849, 864-65 (9th Cir. 2001) (finding state statute "sufficiently determinate" to require parole hearings "as a matter of constitutional right"); cf. Perveler v. Estelle, 974 F.2d 1132, 1134 (9th Cir. 1992) (assuming a liberty interest existed in parole dates in California).
A. The Hearing
1. Challenges To The BPT Panel
McKissick contends that his due process rights were violated because the BPT panel that heard his case was not fair and impartial and did not understand the law concerning his criminal offense or parole. McKissick did not provide any significant evidence in support of his conclusory allegations of a biased decision-maker. His "[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief." James v. Borg, 24 F.3d 20, 26 (9th Cir.), cert. denied, 513 U.S. 935 (1994).
When asked by a BPT commissioner whether he had "any reason to believe that any of the Panel members who are seated here today couldn't give you a fair and impartial hearing?" McKissick responded "No." Respondent's Exhibit B, Reporter's Transcript (hereinafter "RT") at 3. McKissick' s attorney did, however, "object to the political make-up of the Commissioners" RT 5. McKissick and his attorney attempted, with little success, to explain the nature of the objection. The gist of McKissick's poorly articulated objection apparently was that the release dates were not set consistently — some first-degree murderers were being found parole-suitable sooner and would serve less time than McKissick. See RT 5, 7. The objection was overruled. RT 7. McKissick's argument did not persuade the BPT and does not persuade this court because it is based on the incorrect premise that no second degree murderer should serve more time than any first degree murderer. Determining suitability for parole in California is a predictive process and the prediction is based on more than simply the commitment offense. See 15 Cal. Code Regs. § 2402(b); see also Greenholtz, 442 U.S. at 8, 10. Due process is not offended by such a system.
115 Cal. Code Regs. § 2402(b) provides: "All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability."
The other portions of the hearing transcript McKissick cites in support of his bias claim do not support it. McKissick argues "the panel had demonstrated to me they had no comprehension of the law, trials, sentencing, matrixes that would apply in my case or others." Petition attach., p. 2. The record he cites — i.e., RT 7:3-11 — is only his own statement to the panel. No panel member said anything at the cited portion of the transcript, much less anything supporting McKissick's current argument. McKissick also states that the presiding commissioner "could not make the distinction for me between first and second degree murder and then overruled both my and my Attorney's objections." Petition attach., p. 2. The record he cites — i.e., RT 7:15-20 — simply shows the commissioner overruling the poorly articulated objection lodged by McKissick and his attorney. The record does not show that the commissioner "could not make the distinction . . . between first and second degree murder" and, even if the record showed that, it would be irrelevant because due process does not require that the hearing panel pass a quiz given by the prospective parolee. McKissick attaches to his traverse a declaration from Albert Leddy, a former BPT commissioner. Leddy states in his declaration that parole rates for murderers decreased while former Governor George Deukmejian was in office and appointing BPT commissioners. Leddy also states that parole rates for murderers decreased further while former Governor Pete Wilson was in office and appointing BPT commissioners. Leddy admittedly lacked personal knowledge of Governor Gray Davis' parole policies. Leddy's declaration — even assuming it is admissible and assuming the court could ignore the unexplained failure to present it until the traverse was filed — does not discuss the bias or lack thereof of the three particular commissioners who presided over McKissick's parole hearing. McKissick cannot develop the evidence to support his claim via an evidentiary hearing in this court because he failed to seek an evidentiary hearing in state court. The record does not support MeKissick's claim that the panel was biased.
If a petitioner has failed to develop the factual basis of a claim in state court, the court must deny an evidentiary hearing unless the petitioner establishes one of the two narrow exceptions set forth in § 2254(e)(2). Baja v. Ducharme, 187 F.3d 1075, 1078-79 (9th Cir. 1999), cert denied, 528 U.S. 1079 (2000); see e.g., Bragg v. Galaza, 242 F.3d 1082, 1089-90 (9th Cir.), amended, 253 F.3d 1150 (9th Cir. 2001) (court of appeals precluded from remanding case for an evidentiary hearing, despite concerns about gaps in the record, where petitioner failed to develop the factual basis for his claim in state court). A prisoner "fails" to develop the factual basis of a claim, triggering § 2254(e)(2), if "there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoners s counsel." Williams (Michael) v. Taytor, 529 U.S. 420 432 (2000). "Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law." Id. at 437. Because McKissick has not met the burden of showing he was diligent in efforts to develop the facts supporting his claims in state court — e.g., he did not show he ever requested an evidentiary hearing there — an evidentiary hearing will not be held so that he may do so in this court. As a result, McKissick is confined to consideration of the claim based on the record as it now exists.
2. Presentation of A Defense
McKissick also contends that his right to due process was violated because he was not allowed to present relevant evidence at the parole suitability hearing. Although the due process rights afforded a parole applicant include an opportunity to be heard see Greenholtz, 442 U.S. at 16, McKissick has not provided any evidence that he was not afforded such an opportunity. Most importantly, he has not pointed to any place in the transcript where he attempted and was not allowed to present documentary evidence or testimony. In fact, the record shows that the panel was receptive to McKissick presenting evidence. Early in the hearing, commissioner Gillis asked, "Do you have any documents you want considered for this hearing?" and apparently receiving documents from McKissick's attorney. RT 3-5. Later in the hearing, a commissioner said, "Okay. Now you started to reach for some documents and I stopped you a little while ago. What documents were you going to pull out?" RT 18-19; McKissick explained that he had a letter showing that after the crime he was still married to his wife when he learned that she had died in an accident. RT 19. When asked how that information related to the parole case, McKissick explained that "[i]t was mainly to establish that we were never divorced." RT 19. McKissick declined the hearing officer's invitation to tell him anything else he wanted to say about the crime of conviction. RT 19. McKissick was given an opportunity to discuss his parole plans, RT 22-29, his recent rule violation report, RT 31-39, and his self-help and therapy activities in prison, RT 40-41. McKissick has not identified a single piece of evidence he wanted to present, but was precluded from presenting, at the hearing. His due process rights were not violated at the hearing.
B. Refusal To Set A Term
McKissick argues that his due process and equal protection rights have been violated because he has been retained in custody beyond his "maximum release date" and beyond the time he should have been kept in custody under the matrix for those prisoners convicted of second degree murder.
McKissick's due process argument rests on a mistaken assumption that he had a right to be paroled on a specific date. See Greenholtz, 442 U.S. at 7 ("There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.") The maximum term for McKissick is life in prison, and he has not been kept in prison beyond the end of that term. He does not currently have a parole date, let alone a parole date that has passed. As a life prisoner, he must first be found suitable for parole before a parole date is set. See In re Stanworth, 33 Cal.3d 176, 183 (Cal. 1982); 15 Cal. Code Regs. §§ 2402, 2403. Since McKissick has not been found suitable for parole, the BPT has no obligation to set a parole date for him.
McKissick has not shown any equal protection violation because he has presented no evidence that similarly situated life prisoners who have received parole release dates without having been found suitable for parole. Cf. McQueary v. Blodgett, 924 F.2d 829, 835 (9th Cir. 1991) (prisoner must show that similarly situated prisoners have systematically received lesser sentences than he did to prevail on an equal protection claim). The prisoner in In re Rosenkrantz, 80 Cal.App.4th 409 (Cal.App. 2000) is not similarly situated to petitioner: the court ordered Rosenkrantz's parole date to be set after determining there was no evidence to support the BPT's finding that Rosenkrantz was unsuitable for parole. This court has not determined that there was no evidence to support the finding that McKissick was unsuitable for parole. While Rosenkrantz had a clean prison record, McKissick did not: McKissick had recently received a CDC-115 for disruptive behavior. RT 21, 31-34. The BPT also relied on several other factors in concluding that McKissick was not parole-suitable. RT 44-45. McKissick has not shown that Rosenkrantz or any other inmate who was similarly situated to him received a parole date after being found unsuitable for parole.
C. The Three-Year Gap Before The Next Parole Consideration Hearing
McKissick contends that the BPT has violated the Ex Post Facto Clause by not holding parole consideration hearings annually for him, and by setting his next parole hearing for three years after his last hearing.
When McKissick murdered his victim, California law provided for annual review of the prisoner's parole eligibility. The law was amended in 1981 to eliminate mandatory annual review. The U.S. Supreme Court held that the amendment did not violate the Ex Post Facto Clause. See California Dep't of Corrections v. Morales, 514 U.S. 499, 514 (1995). The Court found that the amendment "had no effect on the standards for fixing a prisoner's initial date of `eligibility' for parole" or for "determining his `suitability' for parole" and setting his release date; rather, the amendment merely relieved the BPT from the costly and time-consuming responsibility of scheduling annual hearings for prisoners who had no reasonable chance of being released. Id. at 507. Simply altering "`the method to be followed' in fixing a parole release date under identical substantive standards," the Court reasoned, was not enough to violate the Ex Post Facto Clause. Id. at 507-08 (citations omitted). Extending the period from one to three years between parole hearings for prisoners convicted of more than one murder who committed their crimes before the law was amended did not violate the Ex Post Facto Clause because it "create[d] only the most speculative and attenuated possibility of producing the prohibited effect of increasing the measure of punishment for the covered crimes." Id. at 509.
Although Morales considered the 1981 amendment which permitted the longer period between hearings only for those convicted of multiple killings, California amended the law again in 1982 to permit the longer period for other killers. The second change in the law does not change the result of the ex post facto analysis. The 1982 amendment, like the 1981 amendment, had no effect on the formal range of prison terms available for the covered crimes and merely altered the method to be followed under identical substantive standards.
California Penal Code § 3041.5(b)(2)(B) now permits up to a five-year interval between parole hearings if the prisoner has been convicted of murder "and the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding in writing." The BPT panel found it was not reasonable to expect that parole would be granted to McKissick during the following three years, and explained the reasons for this specific finding. RT 45.
There has been a change in the law, but there is no more than a speculative and attenuated possibility that McKissick's punishment will be increased by the three-year delay between his parole consideration hearings permitted under the amended law. See Morales, 514 U.S. at 509; Johnson v. Gomez, 92 F.3d 964, 967-68 (9th Cir. 1996) (change in ultimate parole decision. maker did not violate Ex Post Facto Clause where prisoner could only speculate that he would have been released under former version of the law), cert. denied, 520 U.S. 1242 (1997). The change in the law thus did not violate the Ex Post Facto Clause.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.