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D'Agostin v. Hernandez


August 29, 2007


The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge


Petitioner was convicted in California state court on April 18, 1974 of two counts of first-degree murder and one count of attempted murder. He was sentenced to seven years to life in prison with the possibility of parole. On September 6, 2002, he was denied parole at a parole suitability hearing. After pursuing his state habeas remedies, Petitioner filed his petition in federal court for writ of habeas corpus on June 1, 2004. In addition to other bases for issuance of the writ, Petitioner contended that denial of parole was a violation of the U.S. Constitution's prohibition of ex post facto laws. The matter was referred to Magistrate Judge Jan Adler for a report and recommendation pursuant to 28 U.S.C. § 636. Judge Adler recommended that the petition be denied, and Petitioner objected.

After this, the Court granted Petitioner's request to stay further proceedings pending the Ninth Circuit's decision in Irons v. Warden, on appeal from the Eastern District of California's decision published at 358 F. Supp.2d 936 (E.D.Cal. 2004). Irons dealt with the issue of repeated denials of parole on the basis of an inmate's commitment offense, an issue Petitioner also raised. On January 23, 2006, the Court, noting that Irons had been referred for settlement and concluding that a decision by the Ninth Circuit was unlikely, lifted the stay. The Court then overruled Petitioner's objections to the first report and recommendations, except as to Petitioner's ex post facto argument. The Court remanded the matter to Judge Adler for a second report and recommendation so that the ex post facto issues could be more fully addressed. All theories of relief have been ruled on except Petitioner's ex post facto argument.

On May 3, 2006, Judge Adler issued his second report and recommendation (the "R&R"), addressing the ex post facto issue. Petitioner filed objections. Respondent filed no reply. Thereafter, it became apparent the Ninth Circuit would after all issue an opinion in Irons. Its initial opinion was issued on March 6, 2007 and published at 479 F.3d 658, but was then amended on denial of rehearing by ___ F.3d ____, 2007 WL 2027359 (July 13, 2007). The newly-issued opinion in Irons does not counsel reconsideration of the Court's earlier ruling. See id., slip op. at *6 (reversing the district court's order granting petitioner's habeas corpus petition).

I. Legal Standards

In reviewing a Magistrate Judge's report and recommendation, the Court "shall make a de novo determination of those portions of the report . . . to which objection is made." 28 U.S.C. § 636(b)(1). The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Under this statute, "the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

Because Petitioner filed his petition after April 24, 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") applies. AEDPA permits a federal court to grant a petition of a state prisoner whose claims were adjudicated on the merits in state court, only if the state court decision was contrary to clearly established federal law, or involved an unreasonable application of the facts to such law. Specifically, the Court may grant habeas relief where a 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). A state court's decision can be "contrary to" federal law if it fails to apply the correct controlling Supreme Court authority or comes to a different conclusion when presented with a case involving materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694 (2002). The Court may grant habeas relief under AEDPA's "clearly erroneous" provision only if the state court's application of federal law is objectively unreasonable. Clark v. Murphy, 331 F.3d 1062, 1068 (9th Cir. 2003). An "unreasonable application of federal law is different from an incorrect application of federal law," and the Court may not substitute its own judgment for that of the state court. Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (citations omitted).

Alleged errors in the application of state law are not cognizable in federal habeas corpus proceedings. Little v. Crawford, 449 F.3d 1075, 1082 n.6 (9th Cir. 2006). Under AEDPA, only the Supreme Court's holdings are binding on the state courts and only those holdings need be reasonably applied. Clark, 331 F.3d at 1069 (9th Cir. 2003).

"[N]ot every retroactive procedural change creating a risk of affecting an inmate's terms or conditions of confinement is prohibited." Garner v. Jones, 529 U.S. 244, 250 (2000) (quoting California Dept. of Corrections v. Morales, 514 U.S. 499, 508--9 (1995)). "The question is a matter of degree." Garner at 250 (citing Morales at 509) (internal quotation marks and further citations omitted). In determining whether the retroactive application of a state law constitutes an ex post facto violation, the controlling inquiry is "whether retroactive application of the change in state law created a sufficient risk of increasing the measure of punishment attached to the covered crimes." Garner at 250 (quoting Morales at 509) (internal quotation marks omitted).

II. Request for Judicial Notice

Petitioner requests that the Court take judicial notice of certain published case authorities. (Request for Judicial Notice, filed Aug. 30, 2006; see also Notice of Further Proceedings and Decisions, filed Oct. 20, 2006 (updating citations and references to cases where judicial notice was requested)). In addition, Petitioner has drawn the Court's attention to other legal rulings in other cases by filing notices bringing these cases to the Court's attention. (See pleadings filed March 29, 2006; October 20, 2006; March 19, 2007.)

While the Court can take notice of these rulings, United States v. Wilson, 631 F.2d 118, 119--20 (9th Cir. 1980) ("[A] court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other cases."), they are, at most, persuasive authority. This is particularly true after the Ninth Circuit's recent ruling in Irons, whose holding is both binding and contradictory to the holdings of most of the rulings which are the subject of Petitioner's judicial notice request. The Court will therefore treat Petitioner's pleadings bringing these authorities to the Court's attention as supplemental briefing. Because judicial notice is thus unnecessary, the request for judicial notice is DENIED AS MOOT. See Ventura Mobilehome Communities Owners Ass'n v. City of San Buenaventura, 371 F.3d 1046, 1052 n.5 (9th Cir. 2004) (denying request for judicial notice of rulings by other courts in unrelated cases, where rulings had no clear relevance to the case at bar and did not alter the court's determination of the case).

III. Petitioner's Objections

At this stage of the proceedings, the only remaining theory of relief is Petitioner's contention that he was denied parole in violation of the U.S. Constitution's prohibition on ex post facto laws. Petitioner's objections are essentially a repetition of the ex post facto arguments raised in his petition. The Court has reviewed the R&R de novo and concludes that Petitioner's objections lack merit.

Petitioner contends that, had the ISL continued in force, he would have certainly been released from custody by now, but under the DSL he is "forever precluded" from being released. (See, e.g., Obj. at 3:19--21, 7:22--25, 9:12--14, 10:5--6.) In support of this argument, Petitioner provides no analysis, but simply refers the Court to Exhibits D (Resolution of the Adult Authority Regarding Contingency Parole Dates, Adopted Jan. 18, 1972) and E (Chairman's Directive No. 75/30, Adopted September 2, 1975), respectively, which were attached to his petition.

Having reviewed the record, the Court cannot conclude either that Petitioner would already have been entitled to be released before, or that he is forever precluded from being released. Rather, it appears the criteria for release on parole are similar under the ISL and DSL. In re Stanworth, 33 Cal.3d 176, 183 (1982) (holding that, under both the ISL and DSL, however, "parole considerations, philosophically, were the same for all inmates," and under both, a life prisoner first had to be found suitable for parole before a parole date was set). Furthermore, under the ISL as it existed when Petitioner committed his offense, the Adult Authority (the parole-granting authority at that time) exercised "almost unlimited discretion" by a person acting unilaterally whose decision was based on informal criteria*fn1 and who was not required to justify his decision. In re Seabock, 140 Cal.App.3d 29, 34 (1983) (citations omitted). An inmate "had no right to a parole at any fixed time, or at all. . . ." Id. Under the ISL, the Adult Authority's individualized consideration of each inmate meant that release on parole could not be predicted. Stanworth, 33 Cal.3d at 182.

Petitioner therefore cannot show with any assurance, or indeed with any degree of probability, he would have received parole under the old system. See Johnson v. Gomez, 92 F.3d 964, 968 (9th Cir. 1996). Under Garner, Petitioner cannot show an ex post facto violation.

Petitioner, in the alternative, seeks relief on state law grounds. (Obj. at 5:16--18 (". . . if this claim does not succeed on an ex post facto basis, it must succeed on statutory and regulatory non-retroactivity grounds.") As discussed above, state law cannot support this Court's issuance of the writ.

III. Conclusion and Order

For these reasons, Petitioner's objections are OVERRULED and the R&R is hereby ADOPTED. The writ of habeas corpus is DENIED.


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