United States District Court, S.D. California
November 16, 2005.
GEORGE EDWARD SUMMERS, Plaintiff,
JEANNE S. WOODFORD, et al., Defendant.
The opinion of the court was delivered by: WILLIAM HAYES, District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff George Edward Summers, a state prisoner proceeding
pro se, filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. Plaintiff challenges former Governor Davis'
decision to reverse a decision by the California Board of Prison
Terms ("BPT") to grant Plaintiff parole. On July 28, 2005, the
Honorable William McCurine, Jr., United States Magistrate Judge,
issued a Report and Recommendation ("R&R") detailing the reasons
why the petition should be denied. The parties were permitted to
file Objections to the R&R no later than September 30,
2005.*fn1 On September 22, 2005, Plaintiff filed Objections
to the R&R. BACKGROUND
On May 7, 1982, Plaintiff was found guilty of first degree
murder with the use of a firearm under California Penal Code
sections 969(d) and 12022.5. The trial court reduced the offense
to second degree murder pursuant to Penal Code § 1181 and
sentenced Plaintiff to fifteen years to life plus two years for
use of the firearm, for a total term of seventeen years to life.
On appeal, the court affirmed the conviction. People v.
Summers, 147 Cal. App. 3d 180 (1983).
On December 2, 1992, Plaintiff became eligible for parole
consideration and began receiving hearings before the BPT. On
November 19, 2002, the BPT found the Plaintiff suitable for
parole. On April 18, 2003, former Governor Davis exercised his
constitutional authority to independently review Plaintiff's case
and decided to deny parole. The Governor reversed the BPT's
decision to grant parole on the bases of Plaintiff's lengthy
history of drug abuse, the insufficiency of Plaintiff's parole
plans in light of his history of drug abuse, and Plaintiff's
failure to acknowledge full responsibility for the crime. R&R,
On September 2, 2003, Plaintiff challenged the Governor's
decision in a petition for writ of habeas corpus in the San Diego
Superior Court claiming that his due process rights were
violated. The court denied Plaintiff's petition in a reasoned
On December 1, 2003, Plaintiff filed a petition in the
California Court of Appeal, Fourth Appellate District, seeking a
review of the appellate court's decision. The court of appeal
denied the petition without a written opinion. Plaintiff then
filed a petition for review with the Supreme Court of California,
which also denied to review the petition without a written
On April 12, 2004, Plaintiff filed a petition in federal court
for writ of habeas corpus. R&R, p. 2. The Plaintiff now Objects
to the recommendations set forth in the R&R.
STANDARD OF REVIEW
The duties of the district court in connection with a
Magistrate Judge's Report and Recommendation are set forth in
Rule 72(b) of the Federal Rules of Civil Procedure and
28 U.S.C. § 636(b)(1). The district court "must make a de novo
determination of those portions of the report . . . to which
objection is made," and "may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate."
28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz,
447 U.S. 667, 676 (1980); United States v. Remsing, 874 F.2d 614,
617 (9th Cir. 1989).
When no objections are filed, the district court may assume the
correctness of the Magistrate Judge's factual findings and decide
the motion on the applicable law. See Campbell v. United States
Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974). Under such
circumstances, the Ninth Circuit has held that "a failure to file
objections only relieves the trial court of its burden to give
de novo review to factual findings; conclusions of law must
still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514,
1518 (9th Cir. 1989).
On July 28, 2005, Magistrate Judge McCurine issued a R&R
regarding Plaintiff's petition for writ of habeas corpus. R&R,
p. 1. Specifically, the R&R recommended denying Plaintiff's due
process claim and his ex post facto claim. Id. at 13. The
Magistrate reasoned that Plaintiff has a sufficient liberty
interest in his parole to implicate due process rights, but that
adequate procedural protections were provided to comply with due
process. Id. at 8, 12. The R&R states the Plaintiff could not
prove that each of the factors the Governor relied on were not
supported by "some evidence." Id. The R&R also recommends
denying habeas relief because Plaintiff could not establish that
the state court's denial of his claim was contrary to, or an
unreasonable application of federal ex post facto law. Id. at
Plaintiff submits five Objections to the Magistrate's R&R. See
Pltf's Objections. Plaintiff first objects to R&R's application
of the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") in concluding that habeas relief be denied. Pltf's
Objections, p. 5. Plaintiff then argues the Magistrate erred in
recommending that due process was not violated, alleging the
factors the Governor relied on were not supported by "some
evidence." Specifically, Plaintiff argues that the American with
Disabilities Act ("ADA") protects prisoners from being
discriminated against based on prior substance abuse and that the
Governor should not have considered that element in his decision
to deny parole. Pltf's Objections, p. 8. Plaintiff also argues
that the Governor erred in basing his decision to deny parole on
a continuing failure by Plaintiff to accept full responsibility because it is not
supported by the record. Finally, Plaintiff objects to the R&R
recommending that the ex post facto claim be denied, alleging the
decision was based on unreasonable determination of the facts
presented. Id. at 12. The Court will address each Objection in
I. Application of the AEDPA
Plaintiff alleges that the R&R "failed to apply the appropriate
standard of review under the AEDPA . . . because the F&R's
[sic] did not explain how the State Court decisions did not
involve a violation of § 2254(d)(1) or (2). In fact, there was
substantial evidence to support a finding of bias on the part of
the State Courts when they refused to apply the rule in Winship
to the Governor's legal conclusion." Pltf's Objections, p. 5.
Plaintiff further alleges that "there is specific evidence to
show the F&R's [sic] made a sweeping conclusion that first and
[s]econd [d]egree [m]urder are one and the same for purposes of
punishment. This recharacterization of the elements to the
committment [sic] offense violates Winship and Wilbur."
Id. at 6.
The Court is having difficulty discerning Plaintiff's
Objection. Title 28 U.S.C. § 2254 as amended by the AEDPA, sets
forth the following scope of review for federal habeas corpus
The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an
application for a writ of habeas corpus on 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. [. . .]
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a state court shall not be granted 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(a), (d)(1)-(2).
Plaintiff alleges that the R&R erred in its analysis because it
did not explain why the state court decision did not violate
section 2254(d)(1) and (2). Pltf's Objections, p. 5. Plaintiff
has misinterpreted the meaning of the statute. It was not the
Magistrate's obligation to explain why the state court did not violate section 2254(d)(1) and (2).
Instead, a plaintiff seeking writ of habeas corpus has the burden
of establishing that the decision of the state court is contrary
to or involved an unreasonable application of United States
Supreme Court Precedent or 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. See Baylor v.
Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). If a plaintiff is
unable to show one of these two elements, then his application
for writ of habeas corpus shall be denied.
In the instant case, the Magistrate found that Plaintiff's
state court proceedings were sufficient to constitute an
adjudication on the merits for the purposes of § 2254(d) because
the state court issued a ruling based on the substance of the
claims, rather than on merely procedural grounds. R&R, p. 6.
The R&R goes on to state that "[b]ecause Summers has failed to
prove that the Governor did not rely on some credible evidence to
deny his parole, the state court's decision to deny Summer's due
process claims was not objectively unreasonable with the meaning
of 28 U.S.C. § 2254(d)." Id. at 12. The R&R discusses each
element of § 2254(d) and details why it recommends denying habeas
corpus. The Court does not find Plaintiff's argument persuasive
because the Magistrate's analysis of § 2254(d) was well reasoned.
Plaintiff further argues that the "unreasonable application of
United States Supreme Court precedent overcomes the presumption
of honesty and integrity on the part of the decision makers and
supplied evidence to show the decision makers [sic]
predetermined the case factors on suitability to uphold the
reversal of the Board of Prison Terms decision to grant parole."
Pltf's Objections, p. 6. Plaintiff cites to In re Winship,
397 U.S. 358 (1970), and Mullaney v. Wilbur, 421 U.S. 684
(1975), in support of his Objection. Id. These cases, however,
address the issue of which party bear's the burden of persuasion
in a heat of passion case. See Winship, 397 U.S. at 363; and
Wilbur, 421 U.S. at 702. In the instant case, there is no issue
as to who carries the burden of persuasion. The Court finds that
Plaintiff's argument is not pertinent to the issue at hand. The
Court also finds that the Magistrate applied the correct standard
of review. II. Due Process
In the instant case, the Magistrate found that Plaintiff does
have a liberty interest in his parole, but that due process was
not violated because Plaintiff was afforded sufficient
protections. R&R, p. 7-12. Plaintiff argues that the Governor
violated his due process rights by reversing the BPT's decision
to grant his parole. Id. at 6.
The Fourteenth Amendment provides that "[no] State [shall]
deprive any person of life, liberty, or property, without due
process of law." U.S. Const. Amend. XIV, § 1. In examining
questions of procedural due process, federal courts employ a
two-step inquiry: (1) whether there has been a deprivation of a
constitutionally protected liberty or property interest; and (2)
whether the procedures attendant upon that deprivation were
constitutionally sufficient. Board of Regents of State Colleges
v. Roth, 408 U.S. 564, 570-71 (1972); Kentucky Dept. Of
Corrections v. Thompson, 490 U.S. 454, 460 (1989); see also
Brewster v. Bd. of Educ. Lynwood Unified Sch. Dist.,
149 F.3d 971, 982 (9th Cir. 1998). Thus, the Court must begin its analysis
by determining whether Plaintiff has a constitutionally protected
liberty interest in parole.
The United States Supreme Court has expressly denied
entitlement to a protected liberty interest in parole.
Greenholtz v. Inmates of Nebraska Penal and Correctional
Complex, 442 U.S. 1, 7 (1979). In Greenholtz, the Court
established that "there is no constitutional or inherent right of
a convicted person to be conditionally released before the
expiration of a valid sentence." Id. Nevertheless, early
release statutes can create a liberty interest protected by due
process guarantees. Id. at 12. If there exists mandatory
language in the parole statute, then a prisoner has a protected
liberty interest in parole release. Id. at 11-12. If, however,
the statute merely holds out the possibility of parole, then no
such liberty interest exists. Id.
The Ninth Circuit has held that California's parole scheme
gives rise to a cognizable liberty interest in release on parole.
Biggs v. Terhune, 334 F.3d 910, 914 (9th Cir. 2003);
McQuillion v. Duncan, 306 F.3d 895, 901 (9th Cir. 2002). In
Biggs, the court held that the mandatory language of
California's parole statute creates a liberty interest in parole.
Biggs, 334 F.3d at 915. The court stated that "[t]he liberty
interest is created, not upon the grant of a parole date, but
upon the incarceration of the inmate." Id. However in 2005, the
California Supreme Court interpreted the language of § 3041 as not mandatory. In re
Dannenberg, 34 Cal.4th 1061, 1087 (2005). The court in Sass,
interpreting Dannenberg, held that the California parole scheme
for indeterminate sentence does not give rise to a federal
liberty interest. Sass v. Cali. Bd. of Prison Terms,
376 F. Supp. 2d 975, 982 (E.D. Cal. 2005). In referring to the
Dannenberg case, the court said, "[w]hen a state court has made
its own definitive determination as to the meaning of a state
statute, federal courts give this finding great weight in
determining the natural effect of a statute, and if it is
consistent with the statute's reasonable interpretation, it will
be deemed conclusive" Id. (citing Gurley v. Rhoden,
421 U.S. 200, 208 (1975)).
While other Ninth Circuit courts have declined to follow the
reasoning of Sass, and have stated that the mandatory language
in the California statute does give a prisoner a constitutionally
recognized liberty interest in parole that cannot be denied
without adequate procedural due process protections, those cases
are unpublished.*fn2 The Court recognizes that it is
somewhat unclear whether the language in the California parole
scheme gives rise to a constitutionally protected liberty
interest. However, the Court need not decide the issue of whether
a recognized liberty interest exists in parole, as the Court
finds that Plaintiff's due process rights were not violated. Even
assuming, argumentatively, that a liberty interest exists,
Plaintiff can not show a due process violation here.
The requirements of due process are satisfied if plaintiff (1)
had an opportunity to be heard, or (2) there is "some evidence"
in the record to support the parole decision. Biggs,
334 F.3d at 915; McQuillion, 306 F.3d at 904. Because Plaintiff does not
claim that he was not provided with an adequate opportunity to be
heard, it is not an issue in this case. See Pltf's Objections,
p. 4-10. Therefore the only inquiry the Court must make is
whether the "some evidence" requirement was satisfied. Biggs,
334 F.3d at 915. The "some evidence" standard is minimally
stringent and is satisfied if there is any evidence in the record
to support the conclusion to deny parole. Superintendent v. Hill, 472 U.S. 445, 455-56
(1985). Additionally, the "some evidence" standard requires that
the evidence underlying the decision to deny parole have some
"indicia of reliability." Biggs, 334 F.3d at 915 (quoting
Jancsek v. Oregon Bd. of Parole, 833 F.2d 1389, 1390 (1987)).
In the instant case, Plaintiff must prove that each of the
factors the Governor relied on were not supported by some
evidence. Each reliance factor that Plaintiff objects to will be
addressed in turn.
A. Governor's Reliance on Unchanging Factors Committed
Plaintiff alleges the Governor exclusively relied on the
unchanging facts of his crime to reverse the BPT and that such
reliance violated the rule set out in Biggs. Pltf's Objections,
p. 7. The Ninth Circuit has recognized that a decision to deny
parole based solely on a continued reliance on the unchanging
facts of an inmate's commitment offense may violate due process.
Biggs, 334 F.3d at 916-17. In Biggs, the court warned that if
"over time, should [plaintiff] continue to demonstrate exemplary
behavior and evidence of rehabilitation, denying him a parole
date simply because of the nature of [his] offense and prior
conduct would raise serious questions involving his liberty
interest in parole." Id.
Although the Governor made his decision to deny parole based in
part on a crime which occurred twenty-two years earlier, such
reliance did not violate due process because there is some
evidence to prove that the Governor did not exclusively rely on
the unchanging factors. (Lodgment 5 at 428-430). For instance,
the record shows that the Governor's conclusion that Plaintiff
was unsuitable for parole was also based on Plaintiff's continued
drug abuse during incarceration and on unsuitable plans by
Plaintiff if paroled. Id. The Governor also noted that
Plaintiff had not accepted full responsibility for the crime he
committed since being incarcerated. (Id. at 429-30).
Furthermore, the Governor noted that Plaintiff had a significant
potential for future violence. Id.
For the aforementioned reasons, the Court will adopt the
Magistrate's finding that the Governor's decision to deny parole
was not solely based on unchanging factors and thus did not
violate Plaintiff's due process rights. B. Governor's Reliance on Past Substance Abuse
The R&R recommends denying Plaintiff's due process claim
because the Governor's reliance on Plaintiff's substance abuse
was reasonable due to the fact that the abuse could create
serious public safety concerns. R&R, p. 11. Plaintiff claims
that the Magistrate erred in finding that the Governor's decision
to deny parole based on Plaintiff prior substance abuse was not
objectively unreasonable because the Court did not consider the
rules established by the American with Disabilities Act. Pltf's
Objections, p. 8. Plaintiff alleges that it is impermissible for
a decision maker to consider prior drug abuse in making a
decision for eligibility of parole because such consideration
would violate the ADA. Id.
In support of his claim that it was unreasonable for the
Governor to base his decision on prior drug abuse, Plaintiff
cites to Thompson v. Davis, 295 F.3d 890 (9th Cir. 2002).
Pltf's Objections, p. 8. In Thompson, state prisoners with
substance abuse histories brought action against state parole
authorities, claiming that the authorities followed an unwritten
policy of automatically denying parole to prisoners with
substance abuse histories in violation of the ADA. Thompson,
295 F.3d at 890. The court held that while a "`qualified
individual with a disability' does not include an individual who
is currently engaging in the illegal use of drugs, the ADA does
protect individuals who have successfully completed or are
participating in a supervised drug rehabilitation program and are
no longer using illegal drugs." Id. at 896 (citing
42 U.S.C. § 12210(a) & (b); Collings v. Fibre Co., 63 F.3d 828, 831-32
(9th Cir. 1995)). The court further stated that even though a
decision maker may not categorically exclude a class of disabled
people from consideration for parole because of their
disabilities, the decision maker can make an individualized
assessment of the future dangerousness of an inmate by taking
into account the inmate's disability. Id. at 898.
Here, like in Thompson, Plaintiff alleges that he is a
prisoner with a substance abuse history whose ADA rights were
violated when the Governor followed an automatic policy of
denying parole to inmates with prior drug abuse histories.
Pltf's Objections, p. 9. However, the record indicates that the
Governor made an individualized assessment as to the effect the
drug use would have on the dangerousness of Plaintiff if paroled.
R&R, p. 11. "As the state court indicated, Summers' substance abuse raised serious public safety
concerns which the Governor had to consider." Id. The record
does not support, as Plaintiff alleges, a claim that parole was
denied based on a policy against prior drug abusers. There is
sufficient evidence that the Governor's reliance on Plaintiff's
prior drug abuse was made in assessing his future dangerousness
to society if released and was not objectively unreasonable. For
these reasons, the Court finds that the Governor did not violate
the ADA and thus Plaintiff's due process rights were not
C. Governor's Exclusion of Stress as a Mitigating Factor
The R&R also recommends rejecting Plaintiff's claim that his
due process rights were violated when the Governor arbitrarily
excluded stress from the parole suitability criteria. R&R, p.
12. The Magistrate found that even though the Governor did not
specifically mention all stress factors the Plaintiff claims he
was under, the Governor did consider the most important
factor-that Plaintiff acted out of the belief that his son was
taken or harmed by the victim. Id. at 11. Plaintiff alleges
that the Magistrate erred in his recommendation because in
"Coleman," the court found the Governor had "arrogated a `no
parole policy' in violation of federal due process." Pltf's
Objections, p. 11-12. Plaintiff claims that "Coleman
undermines the reasonableness of the State Court adjudication of
the Governor's statement to reverse the grant of parole." Id.
Plaintiff refers to "Coleman" in his Objections to the R&R but
does not give the citation for the case. There are over three
thousand published cases in the Federal Circuit Courts with one
of the party names as "Coleman." In Plaintiff's ex post facto
claim he again refers to the case, there giving both party names,
"Coleman v. BPT". The Court has been unable to locate any case
with those party names. Thus the Court finds Plaintiff's argument
unpersuasive. Moreover, "[i]t was not the role of [the
Magistrate] to determine the correctness of the Governor's
determination, but only to assure that the decision was supported
by some credible evidence." R&R, p. 12. The record is clear
that the Governor did consider the stress factor that Plaintiff
acted out of the belief that the victim had taken or harmed his
son. R&R, at 11. Thus, the Court will adopt the R&R and deny
Plaintiff's due process claim because there was "some evidence"
to support the decision to deny parole. III. Ex Post Facto Claim
The Magistrate found that Plaintiff's arguments did not support
an ex post facto violation. R&R, p. 13. The rationale
articulated in the R&R was that Plaintiff failed to provide
sufficient evidence to show that the state court's denial of this
claim was contrary to, or an unreasonable application of, clearly
established federal law, or that it was based on an unreasonable
determination of the facts presented. Id. Plaintiff alleges
that the R&R erred in its recommendation because the decision by
the state court was based on an unreasonable determination of the
facts presented. Pltf's Objections, p. 12. Specifically,
Plaintiff contends that the Governor's exercise of his authority
to reverse Plaintiff's parole, as granted by Article V Section
8(b) of the California Constitution, violates the Ex Post Facto
Clause because the retroactive application results in a longer
period of incarceration than would have occurred under the
earlier rule. Moreover, Plaintiff alleges that the Governor's
blanket application of a "no parole policy," which violates
clearly established laws, merits the Court granting habeas
The Ex Post Facto Clause states that "[n]o State shall . . .
pass any . . . ex post facto Law." U.S. Const. Art. I, § 10,
cl. 1. The Clause applies to a statute or policy change which "alters
the definition of criminal conduct or increases the penalty by
which a crime is punishable." Cal. Dept. of Corr. v. Morales,
514 U.S. 499, 506 (1995).
The Supreme Court has provided two methods for a state prisoner
to attack a parole change under the Ex Post Facto Clause. Garner
v. Jones, 529 U.S. 244 (2000). First, a plaintiff can show that
the new rule or change in the rule "by its own terms [creates] a
significant risk" of increasing the punishment for the crime.
Scott v. Baldwin, 225 F.3d 1020, 1023 n. 5 (9th Cir. 2000)
(quoting Jones, 529 U.S. at 1369). If such a facial challenge
fails, then the convict can still "demonstrate, by evidence drawn
from the rule's practical implementation by the agency charged
with exercising discretion, that its retroactive application will
result in a longer period of incarceration that under the earlier
The Ninth Circuit has held that section 8(b) to Article V of
the California Constitution does not violate the Ex Post Facto
Clause because the law itself is neutral. Johnson v. Gomez, 92 F.3d 964, 968 (9th Cir. 1996). In Gomez, the court held that
merely changing who makes the final parole decision does not
violate the Ex Post Facto Clause because the governor was still
required to use the same criteria as the BPT in making a parole
decision. Id. at 967. The Court finds, as applied in the
instant case, section 8(b) is facially neutral and does not
increase Plaintiff's punishment on its terms.
Plaintiff argues that even if the law is facially neutral, the
practical retroactive application of the law is detrimental to
Plaintiff because it has resulted in a longer period of
incarceration. Pltf's Objections, p. 12. Section 8(b), which
gave the Governor the power to review parole grants was not
passed until 1988, three years after Plaintiff was incarcerated.
Plaintiff argues that the BPT would have granted parole had it
possessed the final review authority and that allegedly the
Governor's no parole policy has extended his incarceration.
Pltf's Objections, p. 13.
A review of the evidence leads the Court to conclude that the
R&R is correct in stating that the Plaintiff has not provided
sufficient evidence to show that the application of section 8(b)
has created a longer period of incarceration. See R&R, p. 13.
Here the BPT's parole decision is not final until after the
expiration of the discretionary review period and it cannot be
said with certainty that the BPT would have granted Plaintiff's
parole had it had the final review authority. Moreover, the facts
are not indicative of a blanket no parole policy, as Plaintiff
claims. As the R&R points out, it would not be unreasonable to
assume that the BPT would have a lower parole rate than under the
current system if it was given final review. R&R, p. 13.
Showing that the BPT might have granted parole is not sufficient
to find a violation of the Ex Post Facto Clause. Gomez,
92 F.3d at 968. As a result, the Court will adopt the R&R and deny
Plaintiff's ex post facto claim. CONCLUSION & ORDER
Having reviewed the Report and Recommendation, the Objections
submitted by Plaintiff, and the entire record, the Court finds
that Plaintiff is not entitled to habeas relief. Accordingly,
IT IS HEREBY ORDERED the Court ADOPTS the Report and
IT IS FURTHER ORDERED that Plaintiff's Petition for Habeas
Corpus be DENIED.
IT IS FURTHER ORDERED this action be DISMISSED.
IT IS SO ORDERED.
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