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Mendoza v. Hernandez

April 29, 2008

ROBERT MENDOZA, PETITIONER,
v.
ROBERT J. HERNANDEZ, RESPONDENT.



The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER REJECTING THE REPORT AND RECOMMENDATION; GRANTING THE PETITION FOR WRIT OF HABEAS CORPUS [doc. #1]; and DIRECTING ENTRY OF JUDGMENT

Petitioner Robert Mendoza filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. The Honorable Nita L. Stormes entered a Report and Recommendation ("Report"), under 28 U.S.C. § 636(b)(1), recommending that the petition be denied. [doc. #20] The parties have filed objections to the Report and respondent has filed a reply to petitioner's objections. [doc. # 21, 22, 23]

The district court's role in reviewing a magistrate judge's Report is set forth in 28 U.S.C. § 636(b)(1). 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.) (en banc), cert. denied, 124 S. Ct. 238 (2003); see Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia's holding to a habeas corpus proceeding). The district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

PROCEDURAL BACKGROUND*fn1

On August 31, 1982, Mendoza entered into a negotiated plea agreement with the state and pleaded guilty to unpremeditated second degree murder. Thereafter, Mendoza was sentenced to 15 years to life with the possibility of parole. (See Lodgment 1; see also Lodgment 2 at 2.) His minimum eligible parole date was August 21, 1990. (Id.) In 1990, 1991, and 1994, the Board of Prison Terms*fn2 ("Board") found Mendoza unsuitable for parole and refused to set his prison term or a parole date. But in 1995, a unanimous Board panel found Mendoza suitable for parole and set his term and a parole date. Nevertheless, the Board's review unit "disapproved" the decision. In 1998, a unanimous Board panel again found Mendoza suitable for parole and set his term and a parole date. Later that year, Governor Gray Davis reversed the decision.

On August 31, 1982, Mendoza entered into a negotiated plea agreement with the state and pleaded guilty to unpremeditated second degree murder. Thereafter, Mendoza was sentenced to 15 years to life with the possibility of parole. (See Lodgment 1; see also Lodgment 2 at 2.) His minimum eligible parole date was August 21, 1990. (Id.) In 1990, 1991, and 1994, the Board of Prison Terms2 ("Board") found Mendoza unsuitable for parole and refused to set his prison term or a parole date. But in 1995, a unanimous Board panel found Mendoza suitable for parole and set his term and a parole date. Nevertheless, the Board's review unit "disapproved" the decision. In 1998, a unanimous Board panel again found Mendoza suitable for parole and set his term and a parole date. Later that year, Governor Gray Davis reversed the decision. In 1999, 2001, and 2002, Board panels found Mendoza unsuitable for parole. (Pet. at 4.) On June 23, 2004, at his ninth hearing for parole suitability, fourteen years afer his minimum eligible parole date and seven years after he completed his minimum term, a unanimous Board panel found Mendoza suitable for parole. (See Lodgment 5 at 80-85.) But on November 9, 2004, Governor Arnold Schwarzenegger reversed the panel's decision. (Contained within Lodgment 10.)

Thereafter, Mendoza filed a habeas petition challenging the Governor's decision with the Los Angeles County Superior Court, which the court denied on June 27, 2005. (Lodgment 9.) Mendoza then filed a habeas petition with the California Court of Appeal, which was denied on July 14, 2005. (Lodgment 11.) The California Supreme Court denied a petition for review on September 28, 2005. (Lodgment 13.)

With the assistance of counsel, Mendoza filed the present federal habeas petition on October 11, 2005, [doc. # 1] arguing that (1) Governor Schwarzenegger's November 9, 2004 reversal of Board's grant of parole to Mendoza lacked any evidentiary support, was inapposite to the record, and relied upon unchanging offense factors and therefore, violated Mendoza's due process rights; (2) the Governor's reversal, which re-characterized petitioner's offense as first degree murder, violated Mendoza's due process rights because it vitiated the express terms of Mendoza's plea agreement; and (3) the additional level of gubernatorial review now required by California for parole grants for convicted murderers violates Mendoza's due process under the ex post facto clause of the Constitution.

The magistrate judge entered her Report on June 27, 2007, and recommended that the petition be denied. Because both parties have filed objections to the Report, the Court will review the petition de novo.

DISCUSSION

1. Legal Standards

This Court may grant habeas relief only if the California Court of Appeal*fn3 acted contrary to or unreasonably applied clearly established Supreme Court precedent, or made an unreasonable determination of facts. See 28 U.S.C. § 2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-73 (2003). A "state court decision is contrary to . . . clearly established [Supreme Court] precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [its] precedent." Id. at 73 (internal quotation marks omitted).

A due process claim is analyzed in two steps. First, the court must determine whether there is a liberty or property interest which has been interfered with by the State. Second, the court must consider whether the procedures provided are constitutionally sufficient. Sass v. California Board of Prison Terms, 462 F.3d 1123, 1128 (9th Cir. 2006).

It is settled law that California prisoners whose sentences provide for the possibility of parole have a "constitutionally protected liberty interest in the receipt of a parole release date," and a parole board's decision to deny parole deprives a prisoner of due process if it is not supported by "some evidence." Irons v. Carey, 505 F.3d 846, 850-51 (9th Cir. ...


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